Law Office of Stephen Demik, LLC

Recently, I had a case in California where federal law enforcement officers installed a “pole camera,” or video camera outside a shopping center to monitor alleged criminal activity. They did not seek a warrant to do so. At the same time, I had a case in South Dakota where officers installed the same device, but sought and obtained a warrant first. The difference led me to question whether or not a warrant is, in fact, required for these pole cameras.

Pole cameras can record footage for months at a time, and law enforcement officers can manipulate the cameras to pan or zoom. These can be a useful law enforcement tool to gather information without requiring an in-person presence by officers at all times. But there is some growing support for the argument that they may be subject to Fourth Amendment restrictions.

In United States v. Jones, 132 S. Ct. 945 (2012), law enforcement installed a GPS device without a search warrant on a suspected drug-trafficker’s car, tracking his movements for weeks. The Supreme Court ruled that a warrant was required because the installation of the GPS tracker involved a physical intrusion into the vehicle (constituting a trespass). Five Justices opined that prolonged GPS monitoring violates an individual’s reasonable expectation of privacy (thus requiring a warrant). Interestingly, these Justices were not bothered by short-term monitoring on public roads, but said that the aggregate of long-term monitoring information is an invasion of privacy.

Although Jones involved tracking a suspect’s movements, it could be used to support a broader argument about long-term electronic surveillance. One could contend that under Jones, while officers are free to observe a suspect’s residence from the public streets or a neighbor’s property to see who comes and goes, permanent round-the-clock video surveillance is substantially more intrusive and constitutes a search under the Fourth Amendment.

Most courts that have considered the issue have rejected a defendant’s argument based on the trespass theory that the installation of a pole camera was a trespass under Jones, where the cameras are not on private property.  See United States v. Nowka, 2012 WL 6610879 (N.D. Ala. 2012); United States v. Root, 2014 WL 4715874 (E.D. Wash. 2014); United States v. Wymer, 40 F. Supp.3d 933 (N.D. Ohio 2014).

But there is some support for the argument subjecting these pole cameras to the Fourth Amendment under the reasonable expectation of privacy theory. In Shafer v. City of Boulder, 896 F. Supp. 2d 915 (D. Nev. 2012), a pole camera surveilled the defendant’s backyard continuously for 56 days, and the camera was long-range, infrared, and waterproof. The defendant’s backyard was protected by a solid fence and within the home’s curtilage. In a summary judgment context, the court held that the video surveillance of Shafer’s backyard constituted a “search” under the Fourth Amendment.

An interesting federal district court case out of Massachusetts recently ruled that the pole cameras in that case “collected information that permitted the Government to peer into [the defendants’] private lives and constitutionally protected associations in an objectively unreasonable manner.” United States v. Moore-Bush, 381 F. Supp. 3d 139, 143 (D. Mass. 2019) (citing United States v. Jones, 565 U.S. 400, 415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Sotomayor, J., concurring)). The court there incorporated the Supreme Court decision in Jones and Carpenter, also noting the unique characteristics of pole cameras, which utilize searchable digitized footage, distinguishing it from ordinary “human surveillance.” Id. at 146-50. In that case the pole cameras were used for eight months and the residence being surveilled was in a “quiet, residential neighborhood in a house obstructed by a large tree.” Id. at 143.

However, when confronted with this question, most courts have ruled that warrantless pole camera surveillance did not violate the Fourth Amendment under the reasonable expectation of privacy theory. For example, a recent federal appellate case, United States v. Houston, 813 F.3d 282 (6th Cir. 2016), found that ten weeks’ surveillance with a camera installed on a utility pole about 200 yards from a trailer used as a residence on a farm did not violate a resident’s reasonable expectation of privacy because the camera recorded the same view of the residence as that enjoyed by people on nearby public roads. The court believed that the Jones case did not require a different result. Interestingly, a concurring opinion in Houston believed that Jones required the officers to obtain a search warrant.

This is a question that this technological question, like Carpenter, may end up in the Supreme Court very soon, and it will be interesting to see how the legal landscape forms before that happens. For now, I would almost always make the argument that these pole cameras necessarily involve Fourth Amendment concerns and a warrant, supported by probable cause, must be obtained to use them.

Parole has been abolished in the federal criminal system. However, “supervised release” is almost ubiquitous. What that is, as judges admonish thousands of defendants every day, is a period of time after a prison sentence when there are conditions that you are given and must follow. If you don’t, you go back to prison. My qualm with that is that most attorneys don’t give the conditions a second thought. They are usually, and understandably, concerned with the actual prison sentence imposed (if they can’t get probation). But over the last few years, some conditions have been sneaking into the federal parlance– so-called “standard conditions”– that are unreasonable and overly broad. One that I have (so far) unsuccessfully challenged, is a standard condition stating that “[i]f the probation officer determines that [the defendant] pose[s] a risk to another person (including an organization), the probation officer may require [him or her] to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that [the defendant has] notified the person about the risk.”

I have two problems with this condition: (1) it gives the probation officer virtually unbridled discretion in deeming what constitutes a violation, (2) it is way too broad to effectively put a supervisee on notice about that they could be violated for, and therefore could put a lot of people in prison for innocuous conduct. These may be theoretical risks, because we don’t really know until a client is alleged to have violated the condition. But it should still be challenged.

I have recently filed an appeal on this condition, asking the 8th Circuit Court of Appeals to vacate it. Hopefully, that will happen. And the result should be that the condition gets wiped from the “standard conditions” for all defendants. Before I brought this challenge, I wasn’t aware that anyone else had attacked this condition. However, after I filed my appeal, the United States Court of Appeals for the Tenth Circuit vacated the same condition in United States v. Cabral, No. 18-1263 (10th Cir. Jun. 10, 2019).

Although the Tenth Circuit did not address the overly broad/vague challenge, it did conclude that the condition impermissibly delegates judicial authority to the probation officer. And while this holding is not binding on the Eighth Circuit, it still presents persuasive authority supporting the issues raised in my appeal. In Cabral, the Tenth Circuit invalidated a “risk condition” nearly identical to the one in my case, holding that “the risk-notification condition, as imposed by the district court, improperly delegates judicial power to a probation officer.” Id., Slip Op. at 2. The court held that “[b]y tasking Mr. Cabral’s probation officer with determining whether Mr. Cabral poses a “risk” to others in any facet of his life and requiring Mr. Cabral to comply with any order to notify someone of any such risk, the district court delegated broad decision-making authority to the probation officer that could implicate a variety of liberty interests.” Id., at 16. The court noted that the “risk-notification” condition implicated a multitude of liberty interests, including infringing on the fundamental right of familial association. The court also noted that the condition presented an impermissible occupational restriction. After this analysis, the Tenth Circuit unequivocally held that the risk-notification condition “is an improper delegation of judicial power.” Id., at 19.

We will see how the 8th Circuit falls on this issue. However, in the meantime, I encourage federal criminal defense practitioners and defendants to object to the standard condition and preserve the issue for appeal. Who knows, perhaps there might be a circuit-split and the Supreme Court will take up the issue, as it did in another one of my cases from the Southern District of California. See Tapia v. United States, 564 U.S. 319 (2011).

I was recently at the Trial Lawyers College teaching and sat down for lunch with another instructor who told me a story about a jury trial in which the attorneys had a juror consultant in jury selection. During attorney-conducted voir dire, the jury consultant was watching the attorney explore the difficult topic of race (without going into the details, race was an issue in the case). Most of the jurors explained that they don’t entertain stereotypes, harbor subconscious bias, or hold any prejudices based on race. We all like to think that of ourselves, of course. And my intent here isn’t to open up a discussion on race in jury trials, which as important as that is, would take far more than one post to explore. I grew up in the South, and I grew up knowing racism, both out in the open and behind closed doors. And I think race is almost always part of any exploration or discussion on justice, fairness, and… well, reality. But I digress.

The lawyer was asking questions of the jury venire panel when one juror raised their hand. The juror told a story about how she was raised not to see skin color. She grew up on a ranch and her father, seeing the long line of Native American workers walk past every day on their way to work, would always offer food, drink, or shelter in bad weather. He would set up hay beds and light a heater for them in the barn, giving them a warm place to stay and food. She told this story in fond recollection of her father, who she clearly loved very much and respected. The jury consultant quickly handed a yellow post-it note with a question for the lawyer. The question was, and the lawyer asked, “where would your father allow those workers to stay if they were white?” The juror teared up, and answered, “He would have them stay in the house.” She realized that there was a difference there and, even though her father was a good, generous and kind man, there was a difference. Even kind people can internalize racial bias.

During the break when the lawyers have to exercise their “peremptory strikes,” the lawyer said he wanted to “kick” the juror– exercise a peremptory challenge and excuse the juror from the case. His feeling was that she harbored some prejudice based on their exchange, and he didn’t want to risk putting a juror on the case that might feel that way. “No,” the jury consultant said, “you have to keep her.” “Why?” the lawyer asked. “Because she was honest.” Being honest, her reasoning went, is more important than saying what the court and the lawyers want to hear.

I practice the “TLC voir dire” method whenever I can in court (another subject that would take tomes to discuss). I am a big believer that it is the most effective way to find jurors who will follow the law and apply the facts of the trial to the law as the judge gives it to them. It’s not, as most lawyers practice, finding jurors who “like you” or “will vote for your case.” It is about finding honest jurors who, despite all the prejudices and biases we all have as humans, will be honest about them and look deep inside themselves to impartially follow the law as the judge gives it to them.

In one of my recent trials, after hours of voir dire, I stumbled on a juror who had the courage to admit in open court that she simply couldn’t follow the law that says that if a defendant does not testify you cannot take that into consideration in any way. Frankly, I believe that most jurors feel the way she did, although not many could bring themselves to admit it because they did not want to appear bias or feel like they were failing to follow the law. But she was real. She was honest. And she chose to exclude herself because she searched herself and realized that she just couldn’t follow the oath and ignore the fact that the defendant didn’t testify.

I’m not saying this is a way to get out of jury duty. And I’m not saying this means that no one can follow the law. It takes a lot of energy to follow the counter-intuitive principles enshrined in the Constitution (presuming the defendant “innocent,” treating the doctor witness the same as any lay witness, only holding the prosecution to the burden of proof, awarding money damages as justice for a dead spouse or relative even though that won’t fix anything, potentially acquitting someone who you think is guilty because there just isn’t enough proof, etc.). But what our goal should be, as trial attorneys, is finding honest and fair jurors, rather than jurors who want to appear fair and impartial, or say what we want to hear. And that’s a huge task.

There are many courts around the country that are eliminating attorney-conducted voir dire from trials. That is an injustice. There is no better way that I know of to help find twelve honest and fair jurors who will follow the law and apply the facts to the law as the judge gives it to them. And I’m thankful and appreciative that most courts in South Dakota still allow attorney-conducted voir dire. It is one of, if not the, most important part of a trial.

A Section 1983 lawsuit may allow someone to sue if a police officer or other government official violates their constitutional rights.

People whose constitutional or other federal rights have been violated by federal and state government officers may bring a Section 1983 lawsuit or what is called a Bivens claim against those officers to recover damages. For state or local government officials, a Section 1993 lawsuit is the right way to sue, and when the constitutional violation(s) involve a federal official a Bivens claim is the way someone can pursue a lawsuit.

Both legal avenues provide for recovery from the government for any damages resulting from the violation of that person’s rights, including physical, mental, and emotional injuries. Plaintiffs may also seek punitive damages and attorney’s fees in certain cases.

The primary purpose (and importance) of these actions is to deter unconstitutional government actions. But there are important differences between Section 1983 claims and Bivens claims:

Section 1983

18 U.S.C. § 1983 gives people the right to sue state government officials and employees who violate their constitutional rights: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

States are generally immune from lawsuits, but Section 1983 claims can be brought against the specific government officials or employees who violated your civil rights. Sometimes this means suing a police officer for violating your rights; sometimes it means suing the state’s elected officials to block an unconstitutional law from taking effect, such as was done by James Leach recently in South Dakota– Voice v. Noem, 1:19-CV-01003-CBK (D.S.D. May. 9, 2019).

While state agencies and local governments can also be sued for violating your rights, the rules for suing them are slightly different—rather than being able to sue the local government when one of its employees violates your rights, you can only sue the local government if it was a local government policy that led to your rights being violated, or there was a pattern or practice. Local government “policies” include both official rules, decisions by authoritative “policy makers,” and informal, common practices that are de facto policy within the local government entity.

A Bivens Lawsuit

The 1971 Supreme Court case Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, established the right to sue federal government officials. As opposed to 1983 lawsuits, Bivens actions are is only used as a basis for lawsuits against individual officers or officials, not entire agencies. A Bivens claim is also limited to constitutional violations and usually not used for violations of federal statutes.

Where there are other, separate means of vindicating violations of constitutional rights, a Bivens action may not be allowed.

What constitutes violations of constitutional rights?

Most 1983 and Bivens lawsuits are brought for violations of the Constitution’s Fourth, First or Eighth Amendment rights by an official of the state or federal government. For example, officer shootings of unarmed citizens or cases of police brutality and excessive force, false arrests, illegal searches without proper warrants, custodial inmates beaten or injured by guards, inmates medical needs being willfully ignored by guards, or schools or government entities that censor or punish students or public employees’ right to free speech or religion, could all be subject to these types of claims.

The “qualified immunity” roadblock

When a police officer or other government official is facing a Section 1983 lawsuit or Bivens claim, they will almost always try to get out of it by raising the defense of “qualified immunity.” This concept presents a roadblock for many lawsuits. Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). It allows a police officer or other official to escape liability if the constitutional right the officer is accused of violating was not “clearly established under federal law” at the time the right was allegedly violated. Courts disagree on what “clearly established” actually means, and most defendants in these lawsuits can tie up a lawsuit in appellate courts by appealing a trial court’s denial of qualified immunity.

While there are significant roadblocks in these types of lawsuits, they are a vitally important legal mechanism to hold government accountable. If your constitutional rights have been violated by state or federal officials and you want to discuss it, feel free to contact our office for a case review/consultation.

Yesterday the Rapid City Journal did an excellent piece on the under-representation of Native Americans in the federal jury pool for the division in which I practice. You can read it here.

The Journal article begins with the law review article that I referenced in my last post. While I disagreed with some of the statistics quoted in the article for the actual percentage of Native Americans in the relevant community (a statistic that, like 73.8% of all statistics, can be easily manipulated– that’s a joke), I was impressed and grateful that the Journal took notice of the issue. And, actually, the author recognized that there are differing views on what the actual statistics are, but all can agree there’s an under-representation, just not on how significant the under-representation is.

I also should take a minute here to explain that the judge interviewed in the piece, Chief Judge Viken, is one of the best, if not the best, federal judges I’ve ever practiced in front of, and I’ve seen a lot of them in my career. It takes a lot of courage for a judge to say that there is an obligation of the courts to ensure reasonably accurate cross-sections of the community in its jury pools. And he did that.

Most judges take no proactive role at all in the jury pool process, in my experience. If they do, it is to simply deny the challenges using the “systematic exclusion” prong of the Duren case (i.e. it’s not our fault that the group in question doesn’t go out of their way to register to vote or volunteer for the jury pool). That is an easy way out of the under-representation dilemma, which has been long recognized in South Dakota as far as I can tell, both in state and federal courts.

That Duren prong has been cited ad nauseum to ensure that no one will ever win a cross-section challenge, no matter what your statistics show. Anyone in any jurisdiction in any state would be hard pressed to find one case where a successful cross-section claim was granted. In fact, in another law review article, legal scholar Nina Chernoff’s quotes a study that found that, out of 167 cross-section challenges that were brought between 2000 and 2010, exactly zero were granted. That article was written on January 1, 2019 and published the Washburn Law Journal. You can find an abstract and download the paper in PDF format here.

I highly recommend that article for anyone who is interested in this topic and wants to delve into the cross-section issue. The paper is fairly dense for the non-lawyer reader, but articulates a better argument for my opinion that the courts should shoulder the responsibility to hold government accountable for ensuring fairly representative jury pools, not the litigant. The abstract notes that “courts are undermining the government’s constitutional obligation to produce racially representative jury pools by sidestepping the substantive task of balancing constitutional values.” And I’m glad we don’t have one of those courts in this division. But that doesn’t change the reality that 90% of courts out there are, in my opinion (and my own statistic) are actively avoiding the under-representation issue by refusing to acknowledge government’s responsibility in remedying any significant under-representations.

So… back to the statistic– zero out of 167 cross-section challenges were granted. I think we can safely assume that the lawyers wouldn’t bring a cross-section challenge without some demonstrable statistic showing under-representation of an identifiable group. Does that mean that every jury pool in every one of those jurisdictions s a reasonably fair cross-section of its relevant community? Call me a skeptic, but I highly doubt that.

I am proud of the motion I brought, and I’m humbled that it actually got someone’s attention. And I’m more humbled in reading the Journal article and realize that the court is looking to solve the issue and some progress may finally be made. In times like these, the courts can hold the torch in the darkness and shed the light of the constitution on injustice, when the ordinary citizen can do nothing. And it’s up to lawyers, their clients, and sometimes law students and journalists, to light those torches sometimes.

I am very proud to be part of a recently published law review article on the under-representation of Native Americans in the federal jury panel for the Western Division of South Dakota, found here. The author, Camille Fenton, did an excellent job in presenting the issue.

The right to a fair cross-section of the community in jury pools really gained traction with the Supreme Court case Duren v. Missouri, 439 U.S. 357 (1979). That case involved a criminal trial in which the defendant argued the jury did not represent a fair cross-section of the community, a right guaranteed under the Sixth Amendment. The jury pool excluded women because each juror summons included a section whereby women could exempt themselves from jury service if they were stay-at-home caregivers. Based on the returns, the jury pool from which petit venire panels were pulled under-represented women. The Supreme Court ruled that jury pools must include a fair cross-section of the relevant community.

In 2016, I challenged the jury pool in the Western Division of South Dakota District Court for its underrepresentation of Native Americans. Under Duren, if a defendant can show that a “distinctive group” is significantly underrepresented in a jury pool as a result of “systematic exclusion,” he or she has made a prima facie case that their fair cross section rights have been violated. The “systematic exclusion” part is what tanks most challenges because most courts hold that a challenger must show some kind of intentional exclusion of the distinctive group. I have a big problem with this because I believe that the fair cross section right is one that is the courts’ duty to preserve and protect, not the “distinctive group.” In other words, the court should be responsible to ensure a fair cross section of the community is represented in its jury pool, and the numbers should speak for themselves.

While many attorneys can demonstrate an underrepresentation (as I did with a statistician who found that Native Americans composed approximately 22% of the community, but the jury pool was only around 4%), their challenges fail under the “systematic exclusion” requirement. This is unfortunate because the problem of underrepresentation is often easy to solve by simply expanding the sources jury pools are drawn from. Most jury pools are taken from voter registration lists, such as in federal court in South Dakota. However, by simply expanding the sources to driver licenses, state IDs, tribal enrollment records, etc. the problem can normally be resolved– i.e. the underrepresented groups are better represented.

While there are many courts that proactively deal with the underrepresentation of various groups, such as the Central District of California when it expanded its jury sources to include state DMV records, most stubbornly resist change. This is unfortunate. For the lawyer in the trenches, it often leads to the invariable conversation where a minority client asks you how many Native Americans, African-Americans, Latinos, or other specific group they belong to will be in their jury pool. And, as their attorney, you have to explain that there is really nothing that can be done unless the court changes the way it draws jurors.

I’ve practiced in many different areas– from large cities to border zones, criminal and civil courts, from Guantanamo to the Pine Ridge Indian Reservation. Something that always bothers me is intellectual dishonesty. One such issue came up for me in practicing in “Indian country,” as the federal law books call the reservation. I saw that when tribal officers are sued, the courts say “these are tribal police officers, not federal law enforcement officers,” thereby getting the federal government “off the hook” for civil liability. But when a young Native American kid, like Justin Janis, swats at a tribal officer lunging to arrest him, the officer is suddenly a full-fledged “federal law enforcement officer” for purposes of 18 U.S.C. Section 111, a penal code section criminalizing anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” a federal law enforcement officer. And when tribal officers make mistakes in search warrants or criminal procedure, guess what they are now? If you’re as cynical as me, you guessed it– no longer “federal law enforcement officers” beholden to the federal rules of criminal procedure.

The rationale is simple enough– the federal government doesn’t want to pay for civil plaintiffs who sue the tribal officers. But they want to bring the full weight of the federal prosecution arm on anyone who touches a cop on the reservation. Don’t get me wrong, I understand why we want to criminalize assaults on officers. That is a given. But what bothers me is that the federal government wants to have it both ways, and define “federal law enforcement officer” two different ways in order to protect itself against civil liability and excuse any governmental wrongdoing.

I filed an appeal on the issue, and the Eighth Circuit found the jury instruction error (which was only a legal technicality, and not the full picture of my problem with this intellectual dishonesty) was “harmless.” See United States v. Janis, 810 F.3d 595 (8th Cir. 2016). I think the law has it wrong. And I still believe that something should be done to correct this legal wordplay. Either a tribal officer is a federal law enforcement officer or not, but having it both ways is simply semantic gymnastics.

During my seventeen years practicing criminal law, I can recall only one case where someone was able to claw back hundreds of thousands of dollars that were seized as part of a drug crime. This week’s Supreme Court opinion, Timbs v. Indiana, may change that. Normally, as attorneys we routinely tell our clients “if the cops took it, you’re never going to get it back.” From cars to cash, homes to helicopters, the government routinely files what is called “civil forfeiture” actions against criminal defendants’ property. The only way to contest those forfeitures was by filing a claim or an appeal of the government’s action, which would almost always be summarily denied. Then you could file a lawsuit in court, but those were also almost always denied.

The reason is that the government only has to show that the property had some connection to a crime. If you had drugs in your car, you lost the car. If you had drugs or guns in your house, you sometimes lost the house. I remember reading about a woman who lost her house to civil forfeiture even though she repeatedly tried to get people to stop selling drugs around it.

The Timbs opinion was a 9-0 decision (rare nowadays, but we’ll see with the new composition of the court). And I think that’s because it really doesn’t do much new, although I do think it will have some effect. Most states already have laws regulating civil forfeiture and prohibiting “excessive” forfeitures. This opinion really just says that the 14th Amendment applies the 8th Amendment right to the states. So, in most states there’s no substantive change in the law. However, I am hopeful that the Timbs case will at least influence government and judicial referees to look at forfeiture orders with more scrutiny.

If you have a civil forfeiture case, you should either consider filing a motion contesting the forfeiture or speak to an attorney about your options. It is no longer a hopeless proposition to stop the government from taking everything.

 

In 1966, the Supreme Court issued its seminal ruling in Miranda v. Arizona, 384 U.S. 436 (1966). We are familiar with the “Miranda warning” that comes when someone gets arrested (i.e. “You have the right to remain silent. Anything you say can and will be used against you…”). Those rights include the right to remain silent and the right to an attorney. Free of charge. But there is a minority of states, including South Dakota, where that “right” comes with a price tag. Without addressing my problems with that (and I think there are many), I think it is worth noting the inherent contradictions between South Dakota’s “pay to play” criminal justice system and the way the Supreme Court saw things in Miranda.

In Miranda, the Court held that “the Federal Bureau of Investigation has compiled an exemplary record of effective law enforcement while advising any suspect or arrested person, at the outset of an interview, that he is not required to make a statement, that any statement may be used against him in court, that the individual may obtain the services of an attorney of his own choice and . . . that he has a right to free counsel if he is unable to pay.” 384 U.S. 436, 481 (1966) (emphasis added). That “free” part was based on the Criminal Justice Act of 1964, which is codified at 18 U.S.C. Section 3006A. Here’s the gist, folks– if you are suspected of a crime, arrested for a crime, and need legal representation for that case, you should get it free of charge if you can’t afford it because it is your constitutional Sixth Amendment right to the effective assistance of counsel, thanks to Gideon v. Wainright, 372 U.S. 335 (1963).

But here’s the rub– if you are in South Dakota, and some other states, and you need to exercise your Sixth Amendment right, you get a bill at the end of your case. That doesn’t sound right to me. In fact, it sounds un-American. So the right is different in South Dakota. If the state cops were telling the truth, they would have to tell suspects or defendants “you have the right to an attorney if you can afford one. If you can’t afford one, we’ll slap you with a bill at the end of your case and you’ll have to pay it or you’ll go to jail.” But they don’t tell them that. Because they want suspects to talk. They want to use the “Reid Method” to coerce confessions. Simply put, they don’t want lawyers there because lawyers would tell anyone to not speak to law enforcement without an attorney present to help you. If the cops were honest and did tell you that you’ll get a bill if you ask for a lawyer, it could be construed (in my mind) as coercive– telling suspects that it will literally cost them to get legal assistance to help them.

I believe this inherent contradiction can be challenged in court. If you have a case where the Miranda advisal simply told the suspect or defendant that they had a right to an attorney (as is common in states like South Dakota), without telling them that they will have to pay, then you (or your attorney) should challenge the constitutionality of that advisal. In other words, there may be a legal remedy to suppress or exclude any statements made pursuant to one of these faulty advisals. After all, we are not the state legislature, and the state legislature is not always kind and thoughtful of criminal defendants. So perhaps if some of the statements start being thrown out of court, state law enforcement and/or the legislature may be more inclined to take a second look at whether or not it makes sense to slap bills on indigent criminal defendants who cannot pay them.

Let me begin here by saying that I respect police officers, detectives, agents, and other law enforcement officers. I have some that I call close friends. And they have a tough job. A really tough job. I’ve learned that through my many years working in the criminal justice system. I continue to believe that law enforcement people have one of the hardest jobs out there. That’s evidenced by the high rates of suicide in the profession, and the incredibly high levels of stress and PTSD among law enforcement.

But I want to briefly talk about an important, if not controversial, question– who polices the police? Recently, Jeff Sessions decided to markedly limit oversight of local police in this country, which was already not that significant. That should be concerning to us all. We all hear the worst stories about police brutality and excessive use of force anecdotes, sure, but if the Department of Justice drops oversight of law enforcement abuse, then what are we supposed to do to combat this issue? Well, you won’t be surprised to know that my view is that the lawsuit is the last tool left when government abdicates its role.

And that doesn’t make me “anti-cop”. I’m not anti-cop any more than most people are “anti-lawyer.” Like any profession, legal or law enforcement, there are bad apples. And we can’t excuse the bad apples and their conduct just to prove that we value and respect law enforcement. In fact, I believe that calling those officers who engage in willful misconduct to the mat gives due credit to the men and women in blue who do their jobs, and do them well. It’s the same as me opposing lawyers who file frivolous lawsuits or abuse the legal process— they give a bad name to the ethical attorneys who strive for justice and accountability instead of greed or notoriety. They make good attorneys’ jobs harder.

We shouldn’t forget that we, as citizens, give a signed check over to law enforcement every year we pay taxes (literally, but here figuratively). But it’s not a blank check. We give them guns, batons, mace, pepper spray, handcuffs, jails and prisons… and we give them uniforms so that they will be respected and obeyed when necessary. But that doesn’t mean we give them licenses to abuse, harass, or attack us. It’s not a blank check. We need some limits on that account.

I chose the clip of this image at the top of this post deliberately.  Though it happened seven years ago, I still remember it vividly. There are many other examples, some justified and some more questionable, of police abusing their power, but this one is indefensible. Law enforcement behavior like this should provoke anger and outrage in all of us, whether or not we supported the kid protesters or their agenda. This is a good example of a “bad apple” whose arrogance and bullying need to be checked.

Sometimes it’s poor training. Sometimes it’s a lack of resources. Sometimes a lack of leadership. Sometimes all three. And sometimes it’s a bad apple. Any which way, who is going to hold them accountable?

If the Department of Justice is done checking this kind of behavior, then we need lawyers who will step up and do it if we want any meaningful balance between order and justice in our society.

Civil Lawsuits are the Last Empowerment for the Citizen

I remember sitting at the dinner table in Kingsport, Tennessee one night around 1996– a restless and rebellious college student– engaged (as usual) in a spirited debate with my own father and some family friends. They were making fun of lawyers and “frivolous lawsuits”, a common topic fueled by the “McDonald’s coffee lawsuit” myth. If you haven’t already, please take a minute to watch this video (here) and get the facts on that case, rather than the sensationalized media myth. Anyway, I remember (fresh off a course in civics or American history, I’m sure) making the argument that the judiciary and, specifically, the lawsuit, were the last vestiges of citizen empowerment left in our country. Let me explain (with the caveat that I’m oversimplifying and recognize it):

Our government, as we all know, is composed of three branches, as well as a system of checks and balances. The two branches that are supposed to “represent the people” are the executive and the legislative. Those branches are elected officials that are, in theory, accountable to the voters and, hence, the citizenry. However, anyone with half a brain (even an argumentative college student) knows that these two branches are bought and sold by corporations and lobbyists. Further, these branches are exclusively controlled by two parties– a fact that is underscored by facts (here) and my own anecdotal experience working as an intern for a Democratic congressman the summer of 1995. I remember vividly when families, veterans, and ordinary citizens would come to this congressman’s office to visit or voice their opinions. They were sent to me– a 21-year-old college student intern. In stark contrast, when the Exxon lobbyists, health insurance lobbyists, and other corporate cronies showed up, they were immediately ushered back into the congressman’s office for whiskey and “good ole boy locker room banter” (at least that’s what I imagined happened behind the closed doors). The cronyism was crystal-clear.

But my argument (then and now) is that these two branches have been so corrupted that there is only one branch left to empower the citizen against these forces of corporations, insurance companies, and lobbyists– the judiciary. Voting is really an illusory power nowadays, with super delegates, the electoral college, and rampant gerrymandering. Our elected officials bear no loyalty to us as citizens because they’ve been bought and sold ten times over by the time they are elected and re-elected. It’s depressing, I know, but it’s true.

And, as usual, the corporations, insurance companies and cronies are mounting a multi-faceted attack on that last vestige of power that we, as citizens and litigants, have. An interesting video someone sent me recently made me remember that conversation I had back in 1996 (here), and made me proud, once again, to have ended up having the honor and privilege to be a trial attorney for the people.

Cognitive dissonance is a term used in psychology, that I have always kept in mind during jury trials. It is defined, generally, as the mental discomfort or psychological distress experienced by a person who simultaneously holds two or more contradictory beliefs, idea, or values. In “A Theory of Cognitive Dissonance,” published in 1957 by Leon Festinger, he operated on the theory that we, as human beings, strive for internal psychological consistency in order to mentally function in our surroundings. I know I’m going to blatantly dumb this down, but basically, I understand it to mean that we try to keep our beliefs and our actions consonant with each other.

Juries do not want to believe in a world where someone is falsely accused, arrested, indicted, and put on trial for a crime they didn’t commit. They also don’t want to live in a world where the “rules of the road” don’t work — they need to believe that the system works and that it protects them. This is the “reptilian” part of our brain that we unconsciously internalize. All of this, of course, sounds familiar to many civil plaintiffs attorneys, acolytes of David Ball and Don Keenan’s “Reptile” or Rick Friedman and Patrick Malone’s “Rules of the Road.” And those are good books. Books that have a lot to teach plaintiffs lawyers; I’ve learned a lot from reading them. And they talk about the same concept, generally, in the civil context.

But in the 14 years I’ve been trying cases, I’ve realized that we cannot overlook the jury’s reluctance towards cognitive dissonance in criminal defense cases. It took me some time to realize that, and mostly it came through talking to jurors after an acquittal. One time in particular, I remember sharing an elevator ride with a juror who was going to the clerk’s office for a per diem check after an acquittal. I didn’t say anything to her, but I’ll never forget what she said to me: “You tell your client to stop hanging around that crowd. He needs to straighten up and fly right– change his life around. I would never hang out with them.” I thought to myself, “Why did she acquit my client so quickly when she had these strong feelings about him?” Because she needed him to be different than her. “And why did he have to be different than her?” Because she needs to live in a world where she would never be sitting in the defendant’s seat in a jury trial. That is too scary a place for the average juror.

We don’t often think about our criminal cases in those terms, i.e. “What does the jury need to believe in order to acquit my client?” Instead, sometimes we only focus on our client and their cause, which can be a mistake.

We have to keep in mind what we’re asking the jury to do (acquit our client). But we seldom ask what we’re asking them to believe. Some attorneys go into trial extolling their client’s virtues and good deeds, which isn’t always a bad strategy, but I think they miss the mark. If we are asking the jury to embrace the idea that our client, John Doe, was simply walking down the street one day and the cops arrested him for nothing, then we’re asking the jury to believe in a world where that could happen to them. And no one wants to believe that. Contrary to our intention, it makes it harder for the jury to acquit our client.

If, on the other hand, we accept that our client may have made some mistakes, or may have even just been in the wrong place at the wrong time, then we aren’t asking them to believe in such a chaotic world. We are allowing the jury to believe that the system works, and that it generally keeps us safe. That “the rules” are intact. And the jury can more easily acquit our client because he or she is somehow different than they are.

I know this seems counter-intuitive, because we love and care for our client. But at trial our job is to secure an acquittal, regardless of whether or not the jury likes our client. In fact, an acquittal won’t win them any trophies or outstanding citizen awards… but it will keep them out of prison. As much as we care for our clients, at the end of any jury trial there are only twelve people that determine our client’s fate. And we have to keep them (and cognitive dissonance) in mind when we frame our cases.