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For the term "shutup".

SHUTUPSHUTUPSHUTUPSHUTUP

Really, seriously, just shut the fuck up.

The weekly scenario:

  1. Potential client calls and explains cops/FBI/IRS/etc. are asking to interview him. He's not sure if he is in trouble. We discuss how we could help, what our strategy for dealing with the situation would be, our rates, etc. Potential client decides to think about it. We tell potential client, "Whatever you do, don't talk to the cops/FBI/IRS/etc. until you have hired somebody, even if it isn't us." (more…)

All Across The Country, Prenda Law's Rubble Is Getting Bounced

All of Popehat's Prenda coverage is collected here.

It's been two months since I wrote about Prenda Law. Since then its fortunes — and the fortunes of its principals — have been on the wane. Prenda, John Steele, Paul Hansmeier, Paul Duffy, and Mark Lutz have been suffering devastating blows across the country. Any one of these developments would be grave for any normal lawyer or legal enterprise. Combined, they represent a swiftly accelerating rout. Each development makes it more and more plausible that Judge Wright's referral of Prenda's principals to federal prosecutors will yield a grand jury investigation and, eventually, federal criminal charges. To one side, career and financial ruin loom as multiple courts issue brutal and reputation-destroying sanctions; to the other side, the door to federal prison yawns open.

So what's been going on? Let's look at updates state by state, and then turn to last Thursday's big development in Los Angeles. Brace yourself; this is a long post.

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Reminder: Oh, Won't You Please Shut Up?

There's really no excuse for the fact that we don't have a "SHUT UP!" tag; I shall have to remedy that. After all, "SHUT UP!" is one of our most venerable and consistent themes.

There's a reason for this. The reason lies at the heart of law enforcement methodology in general and federal law enforcement abuse of Title 18, United States Code, Section 1001 in particular.

Imagine this scenario, based on an actual situation:

A business associate calls you and says, "my dear business associate, the shit has hit the fan; Federal Agency X is investigating Project Y we did together. Two Agency X agents are interviewing people."

"Oh coitus," says you, or words to that effect, and terminate the conversation.

Later that day, two well-dressed and polite agents of Agency X visit you. Because you despise me and want me to weep and gnash my teeth, you consent to be interviewed. At some point, they ask you "have you talked about this investigation with anyone?"

"No," you say.

They smile.

At the end of the interview, it occurs to you to ask, "Hey, am I in trouble? Do I need a lawyer?"

The agents smirk. "No," they say. "I mean, unless you lied about talking to anyone about this investigation."

See, you've fallen into a false statement trap, which I've talked about before. The feds know that you've talked to somebody about their investigation. They were probably standing next to your friend when he made that call this morning. And now you've talked your way into a felony.

Here's how it works. The feds identify some fact that they can prove. It need not be inherently incriminating; it might be whether you were at a particular meeting, or whether you talked to someone about the existence of the investigation. They determine that they have irrefutable proof of this fact. Then, when they interview you, they ask you a question about the fact, hoping that you will lie. Often they employ professional questioning tactics to make it more likely you will lie — for instance, by phrasing the question or employing a tone of voice to make the fact sound sinister. You — having already been foolhardy enough to talk to them without a lawyer — obligingly lie about this fact. Then, even though there was never any question about the fact, even though your lie did not deter the federal government for a microsecond, they have you nailed for a false statement to a government agent in violation of 18 USC 1001. To be a crime under Section 1001, a statement must be material — but the federal courts have generally supported the government's position that the question is not whether a false statement actually did influence the government, but whether it was the sort of false statement that could have influenced the government.

Hence, the government's chickenshit false statement trap works — even though the government agents set it up from the start. Now, however weak or strong their evidence is of the issue they are investigating, they've got you on a Section 1001 charge — a federal felony. In effect, they are manufacturing felonies in the course of investigations.

You think this is an improbable scenario? You think I'm talking about rare and extreme cases to color the entirety of federal law enforcement? To the contrary, as a federal defense attorney, I'm encountering this more and more often. Not to sound like an old fart, but we never indulged in such bullshit when I was a federal prosecutor (cue the scoffing from many defense attorneys). But in the last 12 years, I've seen it in a dozen cases, and heard about it from colleagues across the country. It's now routine for federal agents to close out an investigation with a false-statement-trap interview of a target in an effort to add a Section 1001 cherry to the top of the cake.

The lesson — other than that criminal justice often has little to do with actual justice — is this: for God's sake shut up. Law enforcement agents seeking to interview you are not your friends. You cannot count on "just clearing this one thing up." Demand to talk to a lawyer before talking to the cops. Every time.

SHUT UP.

"So You Got My Letter": A Small Businessman's Guide To Dealing With Obnoxious Letters From Lawyers

Just before leaving the office last night I got a call from Greg, of Greg's Quality Plumbing.  Greg does seem, on the phone anyway, to be a quality plumber: a nice guy running a six employee shop for new construction and homeowners.  Unfortunately one of Greg's employees made a mistake, overtightening a compression nut on the toilet water supply line in a very expensive house insured by BigState Casualty Insurance Company.  The nut eventually fractured,over Christmas vacation with the family out of town, and the water flowed for days.  BigState paid hundreds of thousands of dollars to rehabilitate the waterlogged house, and wants its money back.  From Greg's Quality Plumbing.

And so Greg got my letter, and Greg picked up the phone to sort this all out, and to set me straight.  As I said, I have no doubt Greg is a quality plumber but Greg is an absolute amateur when it comes to dealing with sharks in the water.  He made a number of serious mistakes, feeding me information about his business, the employee who did the work, the general contractor who built the house and will be cross-claiming against Greg in the coming lawsuit, and Greg's business assets.  All while trying to set me straight.

In the end, Greg did not set me straight.  What he accomplished was to give me information I will use against him at his deposition and at trial.  He kneecapped the defense attorney his insurance company will retain, an attorney who won't even hear about the dispute between BigState and Greg's Quality Plumbing for several months.  I almost feel sorry for Greg, who came into the conversation with high hopes that he would frighten me off or convince me that I have no case against him.  All that he did was convince me to write this post, as friendly advice to small businessmen on what to do when they get "the letter".

  1. When you get a letter from a lawyer, read it. Read it immediately. Read it more than once. Then take a short break, and read it again.  When Greg called me, he told me he "wanted to find out what all of this was about."  If Greg had bothered to read my letter, which detailed exactly what we think the problem was, what we want from Greg, and how to give us what we want, he wouldn't have needed to call me. And he wouldn't have answered a bunch of my questions as I pretended to search my files and databases to get to the bottom of the problem in BigState v. Greg's Quality Plumbing.
  2. Don't be an ostrich. Don't ignore the problem: It won't go away. I've spent most of my career defending clients for insurance companies, so I've ceased being amazed at how people hide their heads in the sand when they get bad news. But they do. They even get a "letter", by certified mail, that says CIVIL SUMMONS with another "letter" titled COMPLAINT attached, and file it away, meaning to get around to responding to it. They violate rule #1, failing to read the Summons which clearly states that they have 30 days to respond, in writing filed with the clerk of court, or something bad will happen to them. After you've read the letter, you need to frame a response. And that response should not come from you.
  3. Don't be an internet hero. You read a lot of things on the internet: you read about the day-to-day life of lesbians in Syria. You read about cute women who are just dying to meet lonely men in New York. And you read stories about laypeople who've beaten lawyers at their own game, with nothing but their wits and the righteousness of their cause. Those sure are nice stories, but are they true? All I can judge from is my own experience: I've never "lost" a case, for the plaintiff or the defendant, in which I faced a layperson on the other side. ("Losing" is a relative term: every time I litigate against laypeople, I feel like a loser because it's like beating up a twelve year old.) I've beaten a neurosurgeon who could have afforded counsel but didn't feel the need because it was a small case, he was right, and doggone it he was smart. I've beaten a hyperlitigious crank who's filed so many pro se lawsuits she's been featured in the Wall Street Journal and Forbes. And I've beaten everyone in between. Because while I'm not all that smart, I'm old. And I've been doing this for a long time. You haven't. Which leads to:
  4. Shut up. Wise advice, that applies to civil matters as much as criminal cases. Don't call the lawyer who sent you "the letter" to "set him straight". You won't solve the problem on the phone.  But you might hang yourself.
  5. Get help. Obviously the person or company on the other side thought the dispute between you was important enough to retain counsel. That's a hint. If you have a business, you probably know a lawyer. Even if you don't, your customers and friends do. Ask around, discreetly (i.e. not blabbing all over town that you're getting sued), for the name of a good lawyer or two. And call the lawyer. Today. If the lawyer doesn't call you back with reasonable promptness (meaning if you call me at 11pm on a Saturday, don't expect a return call before midnight), call another.
  6. Get professional help. Bob who pleads out speeding tickets for $250 a pop at the courthouse may be a good negotiator, but he's probably not the best choice to address your bank's demand for you to cover that Nigerian "certified check" that turned out to be fraudulent. The best source of legal referrals is other lawyers. By all means ask the lawyer whether the problem facing you is in one that's in his field. You'd be happy to have an ophthalmogist stop to help you as you lie bleeding on the side of the road, but once you get to the emergency room you'd want a trauma surgeon. If as Robert Heinlein said, specialization is for insects, that explains why lawyers give many people the creeps.
  7. Don't be penny-wise but pound-foolish. If you're getting a letter from an attorney because you owe sixty dollars at the video store, just pay the bill. If you're getting a million dollar demand because old Ms. Shuffler broke her neck when she slipped in the banana aisle of your store, get out your checkbook. You're going to need a quality defense.  Which leads to:
  8. Are you in good hands? Any claim that could conceivably be covered by your business's insurance policy (you are insured, right?) should be reported to your insurance company. In writing. Immediately. If you don't report a problem to your insurance company because you don't want your rates to increase or you're afraid they'll cancel your policy (as clients have told me when I was asked to get their default judgments set aside), YOU'RE DOING IT WRONG! What do you think you're writing the premium check every month for? If a loss is even arguably covered, your insurer will take over negotiation of the claim, speak for you through an adjuster who's not terrified of lawyers, and hire a lawyer to defend you at its own expense. Don't be Greg of Greg's Quality Plumbing, who should have turned this over to his insurer (in fact that's what I told him to do) and then could have rested easy.
  9. Keep your files. It should go without saying, but when you get a notice from an attorney, or for that matter the government, the first thing you should do is not to throw away all records relating to whatever the problem is. Covering up may turn a humdrum civil case into a criminal case. Instead, turn the file over to your lawyer. Let him worry about what to do with it. And lastly,
  10. Don't get depressed. And don't panic. The sonofabitch who sent you that obnoxious letter may not love you, but plenty of other people do.

Lawyers should feel free to criticize or supplement this list in comments.  Our lay readers are encouraged to tell us stories of how they fought City Hall and The Man on their own, and won.

 

Just A Friendly Reminder: Please Shut The Hell Up

Imagine this:

It's a dark and gloomy six in the morning. You've just gotten out of bed. You are fuzzy-headed, bleary-eyed, badly in need of coffee. You haven't showered or dressed. You're in your underwear, or pajamas.

Suddenly there's a thunderous pounding on the door, and loud men are shouting something at you. Your heart lurches and the adrenaline jolts you. You open the door, and there is a team of FBI agents, guns prominently displayed in holsters, raid jackets open. They are large and aggressive and unfriendly. They tell you they have a search warrant for your home and push past you. Two of them grab you, bodily turn you around, and handcuff you. They'll say later they had to do that to secure the scene and assure agent safety, and that you totally weren't in custody or anything.

Two agents take you outside to your driveway in your pajamas or underwear. At this point your neighbors are beginning to peek curiously out of their windows. The agents push you into the back seat of a G-ride — a late-model American made sedan that smells of air freshener and despair. The two agents sit on either side of you in the back seat; a third agent climbs into the front seat. You shift uncomfortably, trying to avoid sitting on your handcuffed hands. But there's no way to get comfortable sitting in your underwear in the back of a G-ride with your hands cuffed behind you.

The agents begin to question you about your business dealings. They don't read you your rights first — they'll say later they didn't have to, because you totally weren't in custody, despite being handcuffed in the back of a G-ride in your underwear surrounded by FBI agents in raid jackets. The agents tag-team you, switch topics rapidly, play good-cop-bad-cop, and use every law enforcement rhetorical trick to intimidate you. We have some really serious questions here, they say. But if you just cooperate, maybe we can clear all of this up.

They start to ask questions about a meeting that took place two years ago. Were you at that meeting with Mr. Smith and Mr. Jones? You say no, no I wasn't. Maybe you say it without thinking, agitated and confused and muddle-headed from the circumstances. Maybe you don't have a clear memory of what happened two years ago. Maybe you panic and lie. The agents move on in their questioning.

After a few uncomfortable hours, the agents uncuff you, pull you out of the car, and hand you an incomplete, inaccurate, and illegible receipt purporting to state what they've taken. They haul off boxes of documents, disks, disk drives, and whatever else catches their fancy. They'll see you soon, they say.

And, relatively speaking, they do. Six months later you are indicted. You're indicted not only for whatever matter the FBI was investigating. As a kicker, you're also indicted under 18 U.S.C. section 1001 for lying to the FBI. That's a felony. Your lawyer reviews the discovery, and tells you that when the FBI agents asked you whether you were at that meeting two years ago with Mr. Smith and Mr. Jones, they already knew the answer to the question. Mr. Jones recorded the meeting and is cooperating with the FBI, and they had two other witnesses who placed you there. There was no chance whatsoever that your denial — whether it was a panic-induced brain fart, or a failure of memory, or a lie — could have misled or deterred the FBI in its investigation for even a moment. But that doesn't matter. Though materiality is an element of Section 1001, it's a weak, diluted type of materiality. Statements to the government are deemed material if they are the sort of statements that have the capacity to influence it. Courts have come very close to creating a presumption of materiality by reasoning that if the information were not material the government would not have asked for it and you wouldn't have offered it. There was a time when most prosecutors thought it was chickenshit to charge someone with a felony for an exculpatory denial of wrongdoing that never fooled anyone; that time is in the past.

So. By failing to shut the fuck up, you have just handed the feds a gimme felony charge that will make your case much more difficult to defend.

When the authorities ask you questions, they are not out to "clear this thing up so we can let you go." They are not your friends. They do not want to help. They are very likely not trying to learn anything or discover anything. They are trying to make, or improve, a case against you. They are hoping that you will fall into their trap. They may be trying to make a weak case strong or turn a lesser charge into a greater one.

Is there ever a situation where, by being friendly and cooperative and answering questions, you can deflect government suspicion or satisfy their concerns without charges? Yes. Very rarely, there is. And when the government comes knocking, they count on you grasping at the hope that this is one of those times. Don't be a fool. If there's a chance that cooperation will satisfy the authorities today, there will still be a chance in a day or a week or a month after you've consulted a lawyer who understands the situation. When you answer law enforcements' questions — especially when you do it in a stressful situation like a search — you take grave risks of substantially worsening your situation. You may say, "oh, but I won't lie." Sure. But can you be sure, sitting cuffed in your underwear at six in the morning in that G-ride, that you will remember events from years ago accurately? Are you sure you won't be confused and muddled under the circumstances? Are you sure that the government won't — fueled by claims by cooperators — believe that you've lied? Do you really think that if you misremember or mix up events in your head or if your memory is different than the story of a cooperator, that the government is going to give you the benefit of the doubt?

Don't be a fool. Invoke. For God's sake, just shut up.

Sometimes — Just Sometimes, Mind You — Rules Matter

I frequently advise clients who are the subjects of criminal investigations. They expect to be the subjects of search warrants or arrest warrants at any time.

I give them all four key pieces of advice:

1. Shut up.
2. No, really. SHUT UP.
3. Because police may come to your house any day to arrest you or search your house, this would be a good time to send any dogs to a kennel or a friend or neighbor's house.
4. Gather all communications with me and with any other lawyer and put them in one big physical or electronic folder. Now label that folder "ATTORNEY CLIENT COMMUNICATIONS PRIVATE AND CONFIDENTIAL PRIVILEGED COMMUNICATIONS." And put that inside ANOTHER container labeled the same way.

The first three are fairly self-explanatory.

You might think that the fourth is calculated to prevent police and prosecutors from invading the attorney-client privilege by reading my communications with my client. You'd be wrong. Nothing will prevent them from doing that if they feel like it. The labels are calculated to (1) deter those principled cops and prosecutors who see them, and (2) make it marginally more likely that I can get some sort of remedy when dishonest cops and prosecutors look at the labels, shrug, and read the communications anyway.

The ugly truth is that, in my experience, cops and prosecutors routinely, deliberately, and without any apparent regret invade the attorney-client privilege and read communications that are obviously between attorney and client. My clients describe sitting in handcuffs during a search while cops pick up my letters on my letterhead and casually page through them, smirking at the client. And I will not soon forget the Deputy District Attorney who soberly informed me that the attorney-client privilege had been "burst, as a matter of law" when the police seized his papers. (Later, after losing a motion regarding the privilege against self-incrimination, this DA said that "he would have to read up on this Fifth Amendment thing." Yes, of course he's a judge now.)

Why do they do it? Because they can. Because judges are indifferent or hostile to defendant rights or mere chickenshits who rarely recognize prosecutorial or police misconduct and even more rarely impose any sort of sanction when they do recognize it. Prosecutorial misconduct happens all the time with little consequence for the government.

So, naturally, it's thrilling when judges actually impose consequences.

Today A Public Defender is over the moon over a great state Supreme Court ruling. Patrick Lenarz was a karate instructor acquitted of eight counts of molestation and convicted of one. In addition to appealing on the basis that the trial court refused to let him call an expert on how bad interrogation taints the testimony of child witnesses, Lenarz complained that the trial court acknowledged that prosecutor Christopher Parakilas wrongfully read his attorney-client communications, but refused to do anything about it. In a stunner, one day after oral argument, the justices ordered Lenarz released immediately. That bodes well for Lenarz and poorly for Parakilas.

A Public Defender is right to be jazzed over this. But it's the exception that proves the rule, I'm afraid.

As Blagojevich Might Say, Just Shut the Fuck Up

Patrick already noted that the Blagojevich prosecution suffered an embarrassing reversal today. His take is entirely sensible. I write further only to point out what the verdict — a mistrial on 23 counts, and a guilty verdict on one count of lying to the FBI — says about criminal defense and dealing with the government.

The jury found Blagojevich guilty on Count 24 of the indictment. That count charged him with violating 18 U.S.C. section 1001 by falsely stating to the FBI, during his interviews in the course of the investigation, that he kept a "firewall" between his political activities and his official government activities, and that he did not keep track of who donated to him.

Those assertions were, of course, bullshit. More to the point, they were utterly obvious bullshit. There is no chance whatsoever that Blagojevich's patently ludicrous and self-serving boasts about his rectitude could have delayed or deterred the FBI for a nanosecond. Regrettably, when it comes to Section 1001, that's not the point. The question, in determining whether a lie to a government investigator violated section 1001 is not whether it actually obstructed or influenced the investigation, but whether it was possible that a statement of that kind would influence the investigation. That's such a loose and easy standard that almost any statement related to the subject matter of an investigation will satisfy the element.

Hence federal investigators frequently use 1001 to strengthen otherwise weak cases. They carefully build their proof about all the issues in the case, convince some credulous target and his foolhardy lawyer to talk, and then hope that the target will lie about some detail — or at least make some claim that a jury will believe is untrue. As I've mentioned before, the feds can even use this trick to convert a misdemeanor investigation into a felony investigation, and can certainly transform a losing case into a conviction. Just ask Martha Stewart (who was never indicted on the issues for which she was investigated). Or Rod Blagojevich, who now stands convicted for stupid lies that the FBI didn't believe for a hot second.

People talk to the FBI because they hope that they will be able to convince the FBI that they've done nothing wrong. Lawyers let their clients talk to the FBI because their clients (who are terrified of being charged) want to do so, and the lawyer does not want the client to freak out and blame the lawyer if he takes the Fifth and get charged. But the FBI is not interviewing you to help you. The FBI is not interviewing you with anything approaching an open mind about whether you have committed a crime. The FBI is hoping that you will say something that will help them prove up their case, and that if you don't, you will at least tell some marginal lie that they can charge you for. Just ask the Zasi family. The FBI interview is merely a out-of-court version of a perjury trap.

Some lawyers will argue that they have to walk their client in despite all this, because being charged would be a career death penalty, and they have nothing to lose. But clients will grasp the concept of "nothing to lose" quite differently when they're looking at an actual criminal conviction. Suddenly, the prospect of being disgraced and fired or impeached, but not convicted, will not sound nearly as bad as it did compared to a felony conviction and a stretch in federal prison. Besides, to be indelicate, anyone who occupies so high a position that they have "nothing to lose" in this sense is very likely to be a narcissistic freak. Narcissistic freaks are notoriously unreliable clients and make awful, awful interview subjects. Anyone who listens to Martha Stewart or Rod Blagojevich for thirty seconds will realize that they are highly likely to shit the bed in some spectacular way or other during an interview with the government. Like the scorpion of the fable, it is their nature. Walking them anyway suggests high idiocy or low client control.

Remember Rule One: just shut up.

Memo To Defense Attorneys: When In Doubt, Shut Up

This week I watched, with some amusement, as an associate navigated an encounter with the media. No clients were harmed, but she emerged indignant.

Some criminal defense attorneys believe that media relations is essential to an effective defense. I'm a skeptic. I think that very, very few clients are helped by engagement with the media. I think that in most cases, the putative benefits or media engagement (getting your message out, or driving the narrative) are substantially outweighed by the risks. Those risks include (1) increasing negative attention to your client, (2) accidentally saying something stupid or harmful to your client, and (3) being misquoted, or quoted out of context, by journalists with a tenuous grasp of law who don't care about due process and favor drama over precision.

Eric Lipman at Legal Blog Watch offers a prime example of why I feel this way. When his client Marc Payen was accused of immigration fraud in connection with allegedly taking money based on false promises to file requests for asylum, attorney D. Andrew Marshall tried, and failed miserably, to engage the press to make things better:

"This is a nonviolent felony offense. If certain services were supposedly rendered that were not rendered, then the individuals who paid for the services may very well be entitled to their money back. Whether a crime was committed is another story," said Payen's attorney D. Andrew Marshall.

Perhaps D. Andrew Marshall was disastrously misquoted, which is why he emerges sounding incoherent. That's completely foreseeable in dealing with the press. Or maybe he really just did say something that sounds, depending on how you read it, like he's suggesting his client committed a felony.

Rule One applies to lawyers as well as clients: the best course is to shut up.

10 Rules For Dealing With Police: Prudence and Subservience

Over at the Cato@Liberty blog, Chris Moody announces the premiere of the movie 10 Rules for Dealing With Police, a new short film by Flex Your Rights. 10 Rules presents, in a surprisingly compelling and non-cheesy dramatic frame, excellent advice for navigating encounters with law enforcement. I think it's a great resource for clients, kids, and friends who are not familiar with their rights.

Here are the 10 rules, stripped of the detail and commentary that makes the movie very worthwhile:

1. Always be calm and cool.

2. You have the right to remain silent.

3. You have the right to refuse searches.

4. Don't get tricked into waiving your rights.

5. Determine if you're free to go.

6. Don't do anything illegal.

7. Don't run.

8. Never touch a cop.

9. Report misconduct: Be a good witness.

10. You don't have to let them in.

Many of these rules — the ones about shutting up, not consenting to searches, not waiving rights, and demanding that police clarify whether you are free to go — are excellent points about asserting constitutional rights. Asserting your rights may, in the real world of cops, get you detained, abused, assaulted, tased, arrested, accused of false charges premised on "testilying", and occasionally murdered for contempt of cop, but it's crucial that you know what those rights are and how to assert them.

But then there's that first rule — "always be calm and cool." In the movie, it's dramatized by a young black man being pulled over and, when he gets mouthy, subjected to retaliatory detention and searches.

Women's rights advocates often complain that advice to women about how to avoid rape often degenerates into ancient victim-blaming rapist-excusing stereotypes, no matter how well-intentioned or sensible (for instance, "don't go to a frat party alone and get drunk") the advice is. I've always had a conceptual problem with this complaint; I think one can advise a friend not to walk down a dark alley at midnight without suggesting that people who do so "deserve" to get mugged, or that muggers are justified or excused. There's a difference between recognizing a need for prudence, on the one hand, and accepting the circumstances that call for it, on the other.

But when I watch 10 Rules, I can understand better what the women's rights advocates are talking about.

See, if your goal is not to be abused, wrongfully arrested, falsely accused, searched without probable cause, or proned out on the pavement because you irritated someone with a gun and a badge, then "don't be mouthy to a cop" is excellent practical advice. But dammit, we shouldn't have to give that advice. The concept that you should expect to be abused if you aren't meek (or, to be more realistic, subservient) in dealing with public servants ought to be abhorrent to a society of free people. Courtesy is admirable, and unnecessary rudeness is not, but rudeness ought not be seen as inviting government employees to break the law. But the reality is that our society largely issues apologias for, not denunciations of, police abuse. The prevailing belief is that claims of abuse are about lawyers or crooks trying to game the system, that people accused of crimes generally committed them, and that cops are heroes of the sort who deserve the benefit of the doubt when their account of a roadside encounter differs from that of a citizen. Our society, for the most part, indulges cops in their expectation that citizens will be subservient. As a result, "don't talk back to a cop" remains tragically apt practical advice.

Moreover, the truth of it is that many cops will interpret an assertion of your constitutional rights, however politely delivered, as a rude challenge. They are supported in that view by four decades of "law and order" talk that classifies constitutional rights as mere instrumentalities of crime, not as the rules by which we have chosen to live.

Shame on us if we put up with that.

Edited to add: The police reaction is classic:

A spokesman for the D.C. police, who had not seen the film, said the rules are good rules to follow. "However," he said, "if you have nothing to hide and police are doing some kind of investigation, you should tell them whatever they need to know. Police are there to protect the society and the community in which we work."

In other words, if you stand on your rights, you must have something to hide, and you must be a foe of society. Because remember — cops are friends.

Rule 2: Go Re-Read Rule 1

Over at Not a Potted Plant, the Transplanted Lawyer (in the course of explaining a decision by Justice Scalia the principled basis of which requires resort to a proctologist with a flashlight) is kind enough to give us a shoutout for what he aptly calls our Rule #1: Just Shut Up.

Well, technically, that was my Rule #1, inspired by my criminal practice. But I suspect that Patrick would agree it's usually applicable to civil practice as well. The bottom line: when folks on the other side of the v. want you to run your mouth, it's almost never in your best interests. Rather, it's almost always in their best interest.

I'm in Miami this week for the American Bar Association's annual White Collar Crime Conference. At one of the many alcohol-drenched social events at which the defense lawyers mingle, I had occasion to discuss recent trends in the consequences of clients failing to shut the fuck up. I've talked before about a chickenshit tactic the feds have increasingly been using in the last decade — interrogating suspects, and then charging them with false statements to the government in violation of 18 U.S.C. section 1001 if they deny their guilt. This week some colleagues pointed out a fun variation on this practice. This colleagues practice maritime law, which often involves getting rolled out of bed at three in the morning because your client's vessel has been detained by the Coast Guard for discharging oil or dumping garbage or some other environmental regulatory violation. Very often, federal investigators pursuing maritime incidents don't have a wide variety of charges available to them — in fact, often the only possible charges are misdemeanors.

But 18 U.S.C. section 1001 is a felony. You see where this is going, right?

So increasingly the feds approach maritime incidents by aggressive questioning of everyone involved — often including crew members who may speak little English, may be unsophisticated, and may come from countries where you lie to the police to avoid being shot in the head. The feds go into those interviews with a specific belief about what happened in the incident, and if they get a statement in variance with that belief, they use it to bootstrap a misdemeanor violation of maritime regulations into a felony false statement to the government. In some circumstances they can even bootstrap it into felony charges against the company, or against supervisory personnel, on the theory that the false statements are part of a deliberate cover-up of the incident.

How to respond to this? Well, do I need to read Rule One to you again? Shut up, for God's sake. Now, I'm aware this fights with every instinct as a suspect — and often instincts as a lawyer. As a suspect you're conditioned by popular culture to believe that you need to cooperate and talk your way out of the situation or you'll be arrested. As a lawyer, we're conditioned to believe that the worst possible thing to happen is for your client to be arrested because you didn't somehow finesse the situation. Fight those instincts. Shut up. The people wanting to question you — or your client — do not care about your best interests. They care about charging someone. It might as well be you.

Two Years Of Griping, Goofing Off, And Smug Self-Satisfaction

Today marks Popehat's second birthday.  As mentioned on our "About" page, Popehat is really almost five years old, but we were driven underground by our own laziness for a time.  The site reemerged in this form, like a drunken phoenix from a flaming couch, on October 26, 2007.

Laziness remains a problem.  We'd intended to write a "thanks to our readers" post on our first anniversary, then promptly forgot to write it.  We meant to write some sort of retrospective as our thousandth post, but that got delegated to Patrick, who was going through one of his moods, and nothing happened.  Odds are that future milestones will be ignored.

Anyway, two years are twice as much as one year.  And a thousand posts is like a thousand dollars.  It's nice, sure, but it won't help you when your car is broken down on the side of the road because you never change the oil.  Two years, on the other hand, is about a year longer than some very good weblogs have lasted.  So we'll commemorate them.

First of all, we would like to thank our readers, and most especially our readers who comment.  In all sincerity, engaging with commenters is one of the most satisfying things about having a weblog.  The number of our "regulars" has grown over time, and we're very happy about that, in particular because we've been lucky enough to enjoy discussion with some very sharp people, rather than the mongoloids, morphodytes, troglodytes, and mopers who infest some sites we could name but won't.

It wouldn't be fair to name some commentariat and not others, but we will single out one, who has been with us from the beginning and remains with us today:  Alex C., or "Al," from a large city in southern California.  Thanks for your input and throughput Al.  We enjoy your quips, barbs, and humor.  Bless your pointed little head.

Second, while we've been fortunate enough to grow this site (in terms of traffic) from nothing to "small medium" size, we couldn't have done that without help from larger and older blogs.  We've been lucky enough to score links from GIGANTOR VERSUS MECHAGODZILLA VERSUS SHOGUN WARRIOR sized blogs from time to time, but their readers don't stay, and when they comment, well … meh.

But a couple of very large, though non-Japanese-robot-monster sized blogs have been very generous to us in terms of sending traffic, links, and virtual friends our way, so we'll mention them by name:  We'd like to thank the authors of Overlawyered, Patterico's Pontifications, Dispatches from TJICistan, and the League of Ordinary Gentlemen (a very different but most worthwhile group blog which has grown like a weed in the past year – we remember when we steered traffic their way) for their kind words, links, patronage, and readership.  And everyone else on our blogroll, especially the "law bloggers," who send us nice words and traffic even though this is not a law blog.

And now, finally, a selection of posts that we think might prove to be entertaining in some fashion:

The first post that wasn't a rerun from some other site or a meta post:

SHUTUPSHUTUPSHUTUP. (Coincidentally, our standard/favorite advice, useful in nearly all situations)

Comments, We Get Comments!

While we enjoy comments, sometimes we enjoy them for the wrong reasons. Take, for example, the following:

One of our first widely read posts, in which we debate the meaning of certain constitutional amendments with the then-insurgent followers of Ron Paul.

Like all bloggers, we get spammers.  When we can find out who they are, we name them.  Occasionally that upsets them.

Sometimes it really upsets them.

And then again, sometimes comments really upset us.  Or some of us.

Other times comments are fun because a famous, or infamous, person shows up, like a writer/director/actor from a kids' show, or a notorious and violent white supremacist, or a jackass who got on a crowded aluminum tube of people while he had a dangerous contagious disease, and decided to sue over it.

Finally, few posts have drawn more irritated people than this one about an obscure lawsuit over a tattoo.

There's No Accounting For Taste

Why do some posts draw huge traffic over the years, and others languish in relative obscurity? It would be nice if we knew, because then we could write those sorts of posts more often. The truth is, though, that you are a fickle and unpredictable audience. One thing is clear: you like stories about outrageous lawsuits and legal threats. That's why two of our most highly trafficked posts were about a jackass suing a volunteer rescue organization and a lawyer threatening to sue a blogger for making fun of a hideously decorated house. A New York ophthalmologist with a mortal fear of peanuts was also quite popular. If you were looking at search engine traffic, our most read posts would be this essay on a PETA official willing her body to melodrama, and especially this quickie about Dora the Explorer's makeover. (We shudder to think how many innocent little girls, Google image searching for their friend Dora, have been corrupted.)

Arts And Letters

The bulk of our posts are about law, politics, and related matters. But we're no mere policy wonks. We're Rennaisance wonks. Readers have been treated to David's thoughtful takes on iconography and leadership and bawdiness in art, Ezra's excellent boardgame reviews and After Action Reports, and one of the first obituaries to appear on the web of a certain irascible Nobel laureate.

Who Knows What Evil Lurks?

One of the cool things about blogging is that you can play investigative reporter without deadlines or responsibility. You can spend weeks researching a post to fact-check some poor bastard at a newspaper without subject matter expertise who was writing on a deadline, or some other blogger who posted something off the cuff. It's a bit like shooting fish in a barrel. That doesn't mean that it's any less fun, as we found when we fact-checked the Los Angeles Times on a story about a woman arrested for misbehaving on an airplane, or multiple libertarian bloggers who held up an orchid smuggler as an example of over-criminalization, or multiple blogs breathlessly reporting that a juvenile was being held in some PATRIOT ACT dungeon. It's also fun to use the web to expose bad behavior, as we very recently saw when Patrick investigated the background of a litigious game company. It's even more fun to tweak the government, as we did with a kind assist from a reader in New Zealand (who we still can't name), becoming the first website to violate the order of a silly judge (who claims to be an expert in "cyber-law") barring the internet from publishing the names of two murder defendants.

We Laugh So We Won't Cry

It's not all law and small-l libertarianism around here. We're nothing if not whimsical. But the truth is that we're nowhere near as funny as our kids or complete strangers washing up on our shores.

Moreover, we've learned that humor must be used sparingly. Especially satire. Someone once said that all satire is a joke between the writer and the reader at the expense of a hypothetical third person who is too dumb to know that it's a joke. Except sometimes that third person is not hypothetical.

There's No Place Like Home

We generally try to maintain some level of privacy for ourselves, but Ezra is an exception.  His posts on San Francisco are personal and illuminating, showing sides of city that aren't famous, from crab-mascots to exotic pizza.  Our sole flirtation with the "big leagues" of blogging would not have been possible without Ezra's research and insights into one of the city's most unusual characters.

The Dead Walk!

As we've stated, this is not a law blog.  Of all of us, only Charles is actually an attorney.   At one time, we considered this a gaming blog.  Then Derrick vanished, leaving us without impetus and bereft of gaming insight.  It was a nice ride while it lasted, as evidenced by Derrick's epic two parter analyzing the 2008 elections as a real time strategy game.

Today, to the extent we have a "theme," that theme is whatever we want it to be.  Lately, that means we're a zombie blog. Lots and lots of zombies in fact.  And the bloggers who love them.

Your Friday Afternoon Has Been Missing For Eight Months

One of our early features was ways to waste your Friday afternoon, while you're watching the clock, when you should be working.  We regret the casualty, and will try to bring the feature back this week.  The problem is that while our Monday mornings are dull and dreary, our Friday afternoons are often busy.

Again, thanks for reading.  When the dead walk, we hope that they eat you last.

Memo To All n00bs: STFU!

One of the little-known perils of ballooning is hot air:

The Colorado parents accused of concocting a publicity stunt by pretending that their young son had climbed aboard a homemade helium balloon and was hurtling through the skies above Fort Collins, Colo., will voluntarily surrender to authorities as soon as charges are filed, which is expected to happen on Wednesday, the lawyer for the father said Monday morning.

We were as freaked out as the rest of America by last Thursday afternoon's "Balloon Boy" strangeness, but the behavior of parents Richard and Mayumi Heene afterward was as strange as anything else in the situation.  Admittedly, normal people don't build backyard UFO-shaped balloons, but it did seem unusual that the first thing the Heenes did, seemingly moments after learning that their six year old son Falcon had not fallen 10,000 feet to his death, was to book an interview on Larry King.

After initially believing the Heenes’ story, investigators grew suspicious after Falcon, in an interview on “Larry King Live,” said to his father, “You guys said that, um, we did this for the show.”

Mistake number one.  Reporters and the media are not your friends.  Assuming that the Heenes are innocent of filing false reports and contributing to the delinquency of a minor, the ghost of Richard Jewell could have told them all about what can go wrong when ordinary people in strange situations talk to reporters.

The Heenes, who had appeared on the show “Wife Swap,” have made no secret of their television aspirations, and Falcon’s remark prompted authorities to reinterview the parents. At a news conference Sunday, the Larimer County sheriff, Jim Alderden, said that the entire series of events had been an elaborate hoax drummed up by the Heenes to gain attention.

Mistake number two.  Assuming, again, the Heenes' innocence, it was should have been pretty clear by Friday morning that the police weren't calling because they wanted to find Falcon.  He'd been on Larry King the night before.  Yet, like lambs on a television reality show about the meat industry to the slaughter, the Heenes did not answer with the only response that makes sense:

"Gosh, I'd love to talk to you, but my lawyer won't let me. Why don't you call him.  His telephone number is 555-1212.  Thanks and goodbye!"

One assumes that, as good parents, the Heenes have taught their children never to talk to strangers.  The media and the police definitely fall into that category.

Some Client Delusions Are Useful

Step one of becoming a criminal defense attorney after years as a prosecutor was learning that clients have entrenched, bizarre, misinformed ideas of how the criminal justice system works.

Step two was learning how to persuade clients gently that these entrenched ideas were not true or accurate without mortally offending them or accidentally convincing them that I am some sort of secret flunky for The Man.

Step three has been realizing that client delusions can be useful, even beneficial, and that it is counterproductive to cure them. Case in point: an astonishing percentage of clients, charged with an astonishing array of banal offenses, come to me convinced that their phones are being tapped by the government. If they aren't connected to a multi-kilo drug trafficking organization, organized crime, terrorism, or an extremely significant crime, that's actually highly unlikely. Wiretaps are a gigantic pain in the ass. Even if you think the universe revolves around you, Mr. Client, the U.S. Attorney's office isn't going to be filling out the mountain of paperwork to go up on a wire on your hundred-thousand-dollar fraud case. I spent huge amounts of time explaining this patiently to clients: no, no, it's not that your affairs are insignificant, exactly; it's just that it's terribly unlikely that the government would choose to pursue them with a wiretap.

Suddenly it hit me. These people are motormouths. They refuse to heed my favorite advice. That's often why they are in trouble in the first place. This level of paranoia is useful for client control. Why the hell am I trying to convince them that they aren't being wiretapped, when that will simply encourage them to call everyone they know (like probable government witnesses) to talk about their case? Why am I not recognizing their paranoia as a power for good?

Today In "Shut Up, Moron": Terrorism Suspects Learn FBI May Not Be Trying To Just Help Them Out After All

Folks who have read this blog for a while know that my favorite default advice to clients is to just shut up. See, for instance, here and here and here for non-criminal examples, and here and here and here and here and most especially here for criminal examples.

Wow. When I link them all, I come off looking kind of crazy. But I'm like Cassandra, except I'm not a Greek chick, and I'm doomed to walk the earth telling people to shut up without them listening to me instead of telling the truth and having them not listen to me.

Today's case in point: Najibullah Zazi and his dad, Mohammed Wali Zazi. The Zazis (Zazii?) are at the center of a frightened shitstorm over threatened terrorist attacks on U.S. soil. You've probably seen someone on the news trying to make you wet yourself about it.

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Crisis Management: It's Like Being Arrested

There are so many directions I could go with the story of the Valley Swim Club, a Philadelphia private club that admitted, then expelled, a group of local black kids from its pool. I could use it to talk about lingering racism in America. I could use it to talk about proof versus belief, and explore whether the evidence supports the proposition that the expulsion was based on race. I could use it to discuss the legal question of whether the club is sufficiently private to escape the reach of nondiscrimination laws, or the philosophical libertarian question of whether society should regulate club membership at all.

Instead, I'm going to use it to talk about crisis management.

I split my practice between criminal defense and civil litigation. Both practices — which are frequently intertwined — involve institutions suddenly finding themselves in crisis. The government has issued a grand jury subpoena for our records! Our CFO was just indicted! Someone just filed a lawsuit accusing us of fraud! We've gotten two calls from reporters asking for comment! Oh, God, they say they have a 4:00 p.m. deadline and need a response right now, or they'll write that we refused to comment!

I've found that the dangers presented by these crises — which arise from the human frailty of the participants — are remarkably similar to the dangers presented when a client gets arrested. Most people, when arrested, find themselves in the grip of an extraordinary compulsion to try to talk their way out of it, to deny or excuse or justify or minimize their conduct, to establish a human connection with the cops arresting them. In this process they blurt out all sorts of harmful nonsense — easily disproved lies that will be used to show their consciousness of guilt, equivocations and half-truths that will bite them later, dangerous admissions. Hence my consistent advice to clients (and anyone who will listen) approached by the cops — for the love of God, will you just shut up, already. You're not helping yourself by talking, and the cops are not there to help you.

My advice to clients and companies in crisis is the same — especially in the opening hours or days of the crisis. The pressure to say something, to try to staunch the public relations wound, to get their side of the story out during the same news cycle, is almost irresistible. They fear that if they don't return the call from that reporter, they'll get the dreaded "Company X refused to comment" in the paper the next day. They fear that if they don't return the call from the investigator instantly, they'll be locked in as a suspect in the government's mind. Every fiber of their being screams for immediate action.

But that's precisely the time — under enormous pressure, with nerves all jingle-jangle, and before time for reflection and investigation — where the very worst decisions are made. Hence, at the Valley Swim Club, you get a statement like this:

"There was concern that a lot of kids would change the complexion … and the atmosphere of the club," John Duesler, President of The Valley Swim Club said in a statement.

See, there's an archetypal rush-to-put-out-a-statement statement. Duesler didn't think it through, or he would have recognized what it sounded like. He didn't vet it with anyone — or if he did, they were also in the grasp of panic. He didn't take time to conduct a thorough investigation of the situation. He didn't consult with professional and detached advisers. Rather, he let the news cycle control him, and rushed out a statement. The result, predictably, was catastrophic — his use of the "complexion" and "atmosphere" code-words became the story and drove the story, and cast crippling doubt on the club's later explanations for its conduct. Those explanations were themselves questionable — how can a club not realize in advance that adding 60 kids at once to the pool with overcrowd it? — but were rendered futile by what sounded remarkably like an admission of racism.

It didn't have to happen that way. The statement "We have not had time to review and investigate the allegations, and will respond promptly when we have done so" works perfectly well. If you can't manage that, just don't return the calls. You might think that the line "Company X did not return calls for comment" looks bad in a news story the next day. But as Duesler illustrates, many of the things that will fall out of your mouth in crisis mode will sound vastly worse, and will poison everything you might want to say later after investigating, reflecting, and getting good advice. "Company X refused to comment," to the extent it is harmful, will be forgotten almost immediately. A panicked statement — or panicked action — will hang around your neck forever. And bear this in mind — if the story is going to stay in the news for multiple news cycles, you'll have other chances to comment. If, on the other hand, it's going to disappear after one news cycle, then you'll be in the clear unless you make it worse.

Slow down. Hold all calls. Call your lawyer, or your public relations company, or your priest. If necessary, go home and sleep on it. But don't say a damn thing just because the reporters or investigators are at your door screaming for you to say something. Don't say anything until you can get together in a room, write all the pros and cons of a statement on a whiteboard, and talk them out. Don't say anything until somebody who is not hyperventilating has read through your proposed statement line by line and asked, skeptically, how it helps or hurts. The reporters and investigators are not your friends. They are not demanding an immediate statement to help you. They want you to panic and blurt something newsworthy or incriminating.

Just. Shut. Up.

What Part of "Shut Up" Didn't You Understand?

You know, I thought that my simple advice about just shutting up for a while when accused of misconduct was easy to follow. And it's free! But it's too rarely followed.

Part of the problem is that people think — incorrectly — that if they don't admit to misconduct, they can just kind of hem and haw and mumble about the subject without getting in trouble. Generally, this is not so. Anything more complicated than "I'm innocent, fuck you, talk to my lawyer" is full of peril. That's because when we are facing the stress of an accusation and of scrutiny, and gasping for "safe" things to say, we often wind up just blurting out something that sounds awful. There's a great scene in the movie version of Presumed Innocent that illustrates this — Rusty Sabitch has just been accused by of killing his colleague and secret lover at her home on a particular date, and Rusty blurts out something like, "What was that, a Tuesday?"

This week's case in point — California Democratic Congresswoman Jane Harman.

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