Category: Law Practice

Why Is a British-Recognized Esquire Asking Questions in an American Court?

I think I've mentioned that I don't acknowledge the legitimacy of the US government for Spooner-like reasons, and I consider most LEOs thugs.

…and yet, after watching this, I find that there's a part of me – a very small part – that really just wants to curb-stomp Natural Law protesters.

Get off my lawn side, you damned hippie kids!

Tales From Another Shutdown

In Fall 1995 I was a brand-new federal prosecutor, handling the simplest cases available at the U.S. Attorney's Office in Los Angeles — no-weapon bank robberies, relatively minor drug mules, and aliens returning after deportation.

Congress and the President clashed, and when the shutdown hit in November, federal agencies suspended "non-essential" activities, a classification that was not entirely rational. Oddly, rookie federal prosecutors were deemed "essential," though only in the sense of being required to come to work, not in the sense of enjoying any guarantee of being paid for our work. The agencies we worked with – particularly the INS, as it was called then — were much harder hit. Many of the agents we were supposed to rely upon as witnesses or as case agents (that is, the lead agent in a matter who would coordinate government and civilian witnesses coming to trial) were furloughed.

I had a trial — a 1326, if memory serves — scheduled in December, with a status conference in November. The public defender representing the defendant wanted a continuance, and — since my government witnesses and case agent were furloughed — so did I. I arrived at the hearing unconcerned. How could the judge not see that it was impossible for the lawyer for the government to put a case together with government witnesses furloughed, and how could a judge fail to grant a continuance when the defense wanted one as well?

The late judge Edward Rafeedie barked at me for several minutes, telling me that (1) I was "making up" the government shutdown and furlough, (2) my explanation of why I could not muster a case with the requisite government agents was "double-talk," and (3) I only wanted a continuance because I was just "lazy." No continuance.

Hence the government shutdown of 1995 taught me valuable lessons about how I should regard all three branches of government.

Today In Stunt Marketing: FATTY FATTY FAT FAT

Back in April I noted that a prominent court reporting firm had started marketing by spamming me with somewhat unsettling short stories. Today I see a private investigation firm is taking the same approach.

I just received an email from this firm — familiar to me, and probably to many in Southern California — with a very brief subject line:

FATTY

Well, I thought. Fair enough, but I don't see why someone needed to hire a private dick to figure that out.

But the email was not a j'accuse — the subject line was intended as an attention-grabber, referring to the street name of a character in the possibly-true story that followed about how this firm uncovered an insurance cheat, ending with a pitch for their services.

Did the subject line grab my attention? Yes it did.

Will I ever use this private investigation firm? No. I forwarded the email to my office. The reactions were universal: "creepy" "pathetic" "unprofessional" "ugh".

No sale.

Popehat Poll: How Irrritating Is It For A Lawyer Not To Have A Listed Email Address?

I was thinking of writing an email seeking comment from a lawyer who threatened someone. But despite being a lawyer who threatens people with lawsuits (by phone), this lawyer doesn't seem to have a web site, and doesn't seem to have an email listed anywhere publicly. It's not on her State Bar profile, not on any of the various referral or rating sites, not anywhere easily accessible.1

This irritates me. I recognize that I am well behind the curve on technology. I recognize that my firm's web site was just a static under-construction placeholder with contact information for years. But when a lawyer makes it difficult for me to find their email address, I am immediately suspicious and annoyed.

So. How obnoxiously snobbish is that?

Ken's Attorney Technology Snobery Post
A lawyer doesn't have a listed email address or a web site. This irritates me. How much of an insufferable tech snob does that make me?


  • - 79% ( 1103 votes )



  • - 2% ( 24 votes )



  • - 13% ( 176 votes )



  • - 3% ( 43 votes )



  • - 3% ( 47 votes )

A Brief Prenda Interlude: In Which I Am Accused Of Causing Embarrassment

All of Popehat's Prenda coverage is collected here.

It's been three months since I wrote a substantive Prenda Law post. Frankly, covering the well-deserved downfall and destruction of Prenda and its various agents can get tedious. I'll be posting a cross-country update sometime in the next few weeks.

For now, consider one small incident.

I previously described an AF Holdings case in Georgia, where Attorney Jacques Nazaire, representing AF Holdings, indulged in some ridiculous rhetoric in opposing sanctions. For example:

10. The defendant should realize that California has different laws than Georgia, a different Governor than Georgia; a different legislative body than Georgia, different business needs than Georgia and different views than Georgia and as such all of its decisions cannot serve as a mandate for Georgia.

11. For example the California Courts have legalized gay marriage. Perry v. Schwarzenegger 704 F.Supp.2d 921 (N.D. Cal., 2010);Certified question, 628 F.3d 1191 (9th. Cir.); Answered 52 Cal.4th 1116 (2011) Affirmed, 671 F.3d 1052 (9th Cir.) Such a decision cannot serve as a mandate on Georgia Courts to legalize gay marriage as well.

Yeah.

Anyway, since then, things have continued to go badly for Prenda, AF Holdings, and Mr. Nazaire. The Georgia court gave the defendant leave to take discovery into Prenda Law's operations in aid of the defendant's motion for sanctions. The court also denied Mr. Nazaire's motion seeking to limit that discovery. Now, undaunted, Mr. Nazaire has asked again for a protective order on behalf of AF Holdings, complaining that the defendants' inquiries into Prenda Law are simply too voluminous and intrusive. As part of that motion, Mr. Nazaire attaches comments to various blog posts discussing his client, including the comments to my post, and complains as follows:

9. Additionally, the Plaintiff is respectfully requesting that any future filings in this case may be filed under seal. This case has generated much unneeded attention on the internet. Please see Exhibits N-S. While the writers listed in exhibits N-S have the right to post these articles, unfortunately, these articles and blogs have created an embarrassment, misleading characterizations and perhaps an unsafe environment for plaintiff’s counsel and third parties. As such, plaintiff is respectfully requesting that all future filings be permitted to be made under seal.

10. Plaintiff 1) understands that the articles attached hereto have not been authenticated and apologizes to this Court for the same. In such a short notice of time, it is difficult to authenticate these press releases and postings; however, a search on any search engine will prove these articles and postings to be real; and 2) Plaintiff is not criticizing the authors of the press releases and postings and realizes that the attached postings were meant to be humorous and not spiteful; nevertheless, those not familiar with this case may misinterpret said postings. This may lead to anger by those not quite familiar with the case but yet familiar with the captions. As such, it may be best for the court to allow sealing further filings (which may include addresses and personal information of the parties and counsels herein).

So: Mr. Nazaire seeks to hide not only exhibits and documents (which might be a reasonable request if they contained private information), but court pleadings discussing the merits and progress of the case — to spare "embarrassment."

O Mr. Nazaire. To the extent these paragraphs refer to my post, you are correct that I did not mean to be spiteful, and correct that I try to employ humor, but you leave out that I intended to convey disgust for your client's nationwide campaign, which at least one judge has already concluded constitutes a criminal enterprise. Of course, I represent people accused of crimes all the time; everyone is entitled to a vigorous defense. However, your arguments on behalf of your client were ridiculous, and so I ridiculed them, and will continue to do so. Some of your arguments are contemptible, and I hold them in contempt, and invite others to do so.

Mr. Nazaire, you will not find many people sympathetic to your belief that vigorous coverage of this case — of all of Prenda Law's cases — is "unneeded." In fact that coverage is quite needed — it is essential to assuring that justice is done and to exposing structural flaws in our judicial system.

Truly, Mr. Nazaire, I have feelings about you or anyone associated with AF Holdings — including but not limited to Mark Lutz' hypothetical unborn children — experiencing "embarrassment." To explain those feelings, I invite you to consider Prenda Law's recent extortionate threats to contact the neighbors of the targets. Are you experiencing more or less embarrassment than your client contemplates inflicting there, Mr. Nazaire?

Oho! You may protest. That letter was sent by Paul Duffy! I work for AF Holdings, controlled by Mark Lutz, laboring for the benefit of a trust that benefits children yet ungotten and unborn!

Why yes, Mr. Nazaire, that was Mr. Duffy. May I assume that's the same Paul Duffy who — according to metadata — drafted your most recent motion for a protective order complaining about embarrassment?

I can understand how you might prefer not to answer that question, Mr. Nazaire, being sensitive to posts that "lead to anger."

My dear Mr. Nazaire. Are you quite sure you have considered all of your options?

A Brief Story Illustrating My View of Law Enforcement And The Media That Covers It

Today I convinced a judge to dismiss a criminal case against my client. I was happy. He was happy.

The end of the case made me think of the beginning.

Last year, DA Investigators executed a search warrant at my client's home.

They brought unassembled boxes — you know, those flat cardboard boxes that you have to unfold and assemble to use.

They found very little to seize at my client's home.

But the media showed up. They had cameras.

So the DA Investigators assembled the boxes they had brought into the house, including the tops, and carried them out as if they were taking away documents they were seizing, so the media could see.

It always bugs me on TV when a character is carrying around a coffee that's clearly empty. You can tell because of the way they hold it — the angle and tension in their arm and hand show it's nearly weightless. It's easy to spot.

The media didn't notice that the DA Investigators were carrying out empty boxes.

But I guess they have a lot on their minds.

More Great Moments In Legal Marketing: MyMotionCalendar.Com

I have a partner here in my office in Los Angeles. Today he got an email from MyMotionCalendar.com, an outfit that offers independent contractor attorneys to cover court hearings.

From: support@mymotioncalendar.com [mailto:support@mymotioncalendar.com]
Sent: Thursday, July 11, 2013 1:05 PM
Subject: Hearing Wednesday July 17, 2013 @ 10:45- Marianna, Jackson County.

Hello,

I was inquiring on if you were available to cover a hearing for us on Wednesday July 17, 2013 at 10:45 pm In Marianna, Jackson County. [Note: that part is highlighted in yellow in the original email.] This hearing simply involves a motion to dismiss. Please let me know if you will accept covering this hearing for us for the flat rate of $75.00. [Ditto] I will attach all relevant documents and information to assist you if you can confirm that you can attend. Please confirm that you accept covering this hearing for us with a response to this email. Thank you.

In re: US Bank National Assoc vs. [Unfortunate Person] Case No. 209CA1262 Internal Case ID 12-003054

Type of hearing Hearing Court's Motion Type: Motion for Summary Judgment
Representing Plaintiff City Defuniak Springs, FL Walton County
Location
Date: Wednesday, July 17, 2013 at 2:00pm (orderID:76446)

Best Regards,

Lisa Marie Rodriguez,
MyMotionCalendar
1001 W. Cypress Creek Road, Suite 407
Ft. Lauderdale, FL 33309
[phone numbers]
www.mymotioncalendar.com
support@mymotioncalendar.com

Note that Ms. Rodriguez seems confused: the text refers to a motion to dismiss hearing in Jackson County, but the case information block refers to a summary judgment hearing in Walton County.

So: MyMotionCalendar.com would like my partner to fly to somewhere in Floria to represent U.S. Bank at hearing — maybe a motion to dismiss, maybe a motion for summary judgment — for $75. Or would it?

I have a few questions for MyMotionCalendar.com.

1. Is this a real solicitation for an attorney to join you as one of your contract attorneys for a real hearing? Or is this an advertisement, using a fake hearing, to solicit either our business (to pay you for hearing coverage) or participation (as contract attorneys)? If it is an advertisement, does U.S. Bank know that you are using a (real or fake) case bearing its name to solicit business?

2. If it's an advertisement, disguised as a shout for help on a real hearing, then why would anyone — contract attorney or customer — want to do business with a company that advertises by fraud? Also, if it's an advertisement, why haven't you — a company nominally providing legal services — complied with the CAN-SPAM Act?

3. If, on the other hand, this is a real solicitation, genuinely seeking help from some attorney on a hearing:

a. Why would any contract attorney, or any customer, want to trust a company that is so freakishly incompetent that it is soliciting Los Angeles attorneys to got to Florida to handle hearings for $75?

b. Why would any contract attorney, or any customer, want to trust a company that is so freakishly incompetent that it can't keep straight what county the hearing is in, or what type of hearing it is?

c. Do you honestly think that any competent attorney can prepare for, and attend, a hearing on a motion to dismiss or a motion for summary judgement for $75? Either of those motions can result in the permanent end of the case, or the wrongful continuation of the case, to the substantial detriment of one side or the other. For $75? Really? How much time do you think that attorney is going to spend, for $75, preparing to argue what may be the incredibly complex matters presented in the motion? What kind of lawyer, or client, would trust a business that says "simply involves a motion to dismiss?"

Also:

4. Who the holy hell hires you people? If lawyers or law firms use you, do they disclose to their clients that they are subcontracting out their legal and ethical obligations at $75 per hearing to a company that doesn't know how far Los Angeles is from Florida, or, alternatively, to a company that gets business by lying? Do they know that they are trusting their cases to a company that sends $75 lawyers to handle "simply" a motion to dismiss?

This is what the marketeers are doing to the legal profession.

Edited to add: If you share my questions, perhaps you could ask company founder Jonathan Broder at jon@mymotioncalendar.com.

The Mega-Marketeers: Just As Bad As The Mini-Marketeers, If Not Worse

When I make fun of awful legal marketing on this blog, I often borrow Eric Turkewitz' phrase "outsource your marketing, outsource your reputation and ethics." Because some of the incidents we talk about involve small-scale artisanal asshattery, readers might draw the incorrect conclusion that I'm saying attorneys should go with big, established, "reputable" marketeers to get reliable results. Nope. The most established institutions have some of the worst practices in marketing.

Today I'd like to share with you some truly awful spam from Thomson Reuters, and find out how many of our attorney readers received it as well.

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NOW I'm Going To Hit The Big Time!

I haven't written much about Avvo, a well-known purveyor of lawyer & client referrals and fora for questionable online legal advice. I've mentioned the terrible legal marketing advice on their blog, but it's Scott Greenfield who has long been owning the subject, discussing both Avvo's questionable referral services and their unreliable free-bad-advice free-for-all.

This weekend I got spam from Avvo illustrating their business model.

Greetings Kenneth,

If you're looking for new clients, Avvo's Legal Marketplace is where to find them. A prospective client just posted their traffic ticket case details and is ready to hire an attorney. Review the case details and, if interested, submit your proposal:

Case Details

"Lots of tickets because I can't pay my car's registration. They have given me one every day. Can't pay the registration until I pay the tickets! Have nowhere to get it off the street. Can I just take a car cover and cover it, or can they look under?"

Act Fast!

This case has been sent to: 95 attorneys in the Los Angeles area

This case closes on: July 03, 2013 at 03:07PM

There are two possibilities here. One is that someone at Avvo made a conscious decision to feature, as a prospective client to entice me to Avvo's referral service, someone whose problem is they can't afford to register their car. Under this scenario, someone at Avvo consciously (sort of) thinks I want to compete with 95 other attorneys for a client who has no money, on a matter that will not generate money by definition. Avvo's selection of this matter is supposed to impress me about their acumen and value.

The second possibility is that Avvo has set up some sort of auto-spam system that selects potential cases at random to include in solicitations, not recognizing that the random selection will generate "leads" like this one. Once again, I am supposed to be impressed with Avvo and decide to use them to get quality cases.

Who the blue fuck responds to something like this? Who would want to be associated with a business that thinks this is attractive or persuasive?

More importantly: who advises the folks who are posting about their potential cases on Avvo? This "case referral" is relatively benign. But it would be easy for someone talking about a case — criminal or civil — to reveal details that would be harmful to their interests. Do they understand that posting to Avvo is not privileged, and that what they post can be seen by hundreds or thousands, and emailed to more, and possibly used to their detriment?

Plumbing The Depths of Legal Marketing: What Does the ABA Think You Should Do To Get Clients?

Say what you want about the American Bar Association, but it has a certain amount of credibility. The ABA may not be a locus of excellence, but it has a bajillion attorney members, it participates (for better or worse) in vetting judicial nominees, it accredits law schools, it gives fairly popular if overpriced continuing education presentations, and it publishes like a demon. If the ABA recommends a practice, that practice will be seen as normal in the legal profession, or at least not as an outlier.

Should that make us happy? No. No, it should not.

This month the ABA shares with us a collection of legal marketing strategies. I could say that I am shocked, or just disappointed, at the result, but both of those sentiments suggest an element of surprise, which I am lacking.

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Rakofsky Versus The Internet: Advantage, Internet

Remember Joseph Rakofsky? He's the brand-new lawyer who thought it was prudent and appropriate to attempt, as his first trial, the defense of a man accused of murder. Havoc ensued. A federal judge granted Rakofsky's request to withdraw, which coincided with the defendant's request for a new lawyer, and granted a mistrial. In doing so the judge said that in the alternative he would have granted a new trial based on Rakofsky's incompetence:

I must say that even when I acquired [sic -- probably "inquired of"] Mr. Deaner [the defendant], I — as to whether or not, when the Court found out through opening, at least near end of the opening statement, which went on at some length for over an hour, that Mr. Rakofsky had never tried a case before. And, quite frankly, it was evident, in portions of the trial that I saw, that Mr. Rakofsky — put it this way: I was astonished that someone would purport to represent someone in a felony murder case who had never tried a case before and that local counsel, Mr. Grigsby, was complicit in this.

It appeared to the Court that there were theories out there defense theories out there, but the inability to execute those theories. It was apparent to Court that there was a — not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to t detriment of Mr. Deaner. And had there been — If there had been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110.

So I am going to grant Mr. Deaner's request for new counsel. I believe both – it is a choice that he has knowingly and intelligently made and he understood that it's a waiver of his rights. Alternatively, I would find that they are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable perrson could expect in a murder trial.

And later in that hearing . . .

And I think that the – As I said, it became readily apparent that the performance was not up to par under any reasonable standard of competence under the Sixth Amendment.

This was widely reported, resulting in Rakofsky suing a ridiculous array of news outlets and lawbloggers, and stubbornly pursuing those claims in what became known as "Rakofsky versus the Internet."

Last week he lost — a judge granted motions to dismiss his case. That represented two major victories last week for Marc Randazza, who not only represented many lawbloggers in Rakofsky's case, but also crushed infamous copyright troll Righthaven on appeal. This will not make him any easier to live with.

Rakofsky's lead argument was that he was defamed because his detractors reported that a judge had declared a mistrial based on his incompetence, when in fact the judge had declared a mistrial based on the defendant's request and had only said that in the alternative he would have granted a mistrial based on Rakofsky's incompetence. The correct rejection of this argument is a good example of the substantial truth doctrine, also known as the "gist" or "sting of it" doctrine — the rule that says that a statement isn't defamatory if the main insulting thrust of it is true. So, if you accuse me of molesting squirrels in a public park, and I sue you for defamation on the grounds that my companion was a chipmunk and I was in the storm drain adjacent to the park, my defamation suit against you should not survive. (Unless, I suppose, we live in a community where squirrels are held in high esteem but chipmunks are generally despised.) Here, it was patently ridiculous for Rakofksy to maintain that the "mistrial resulting from incompetence" story was meaningfully misleading or false. The trial judge was brutally frank in his evaluation of Rakofsky's ability, and trial judges don't just go around letting defendants change lawyers mid-trial for no reason.

There are a few lessons to learn from this regrettable affair.

1. Our legal system is so broken that it can take years to resolve even the most patently vexatious, harassing, and incompetently prosecuted lawsuits like this one.

2. Rakofsky doubled down. Had he slunk away after his grave error in judgment, giving thanks that his rashness did not lead to someone being convicted, he might have learned the trade, become a competent lawyer, and overcome a brief flurry of bad publicity. Instead, he chose to file a vexatious lawsuit. Now he belongs to the ages. He will never, in the half a century he has left to him, live this down.

3. Yielding to censorious thuggery like Rakofsky's is harmful to your reputation. Cowardly and unprincipled University of St. Thomas School of Law, I'm looking at you. You yielded to a frivolous suit and taught your students and alumni a terrible lesson about being a lawyer and a citizen. You encouraged vexatious and speech-chilling litigation. Let your cringing suckitude be proclaimed throughout the land.

4. Judge Wright's photon torpedo salvo notwithstanding, most judges are reluctant to award sanctions even against conduct that richly deserves it. Here the judge declined to award sanctions against Rakofksy. I'm inclined to agree with Scott that Rakofsky's youth, inexperience, and nationwide humiliation probably stayed the judge's sanctioning hand.

5. If you want the law to be an instrument of self-actualization, start a blog. Law practice — the profession of providing services to clients who need you — is not your personal voyage of self-discovery and empowerment. If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage. Regrettably, the profession is barraged with eager voices telling us that attracting clients with puffery and keywords and Twitter accounts is the way to build a practice. Nobody's reminding us that you have an obligation to know what you're doing before you accept the client. Somebody should.

Karaoke And The Criminal Justice System We Deserve

This will be a familiar story to anyone who has ever represented a criminal defendant famous enough to make the news.

You client is convicted at trial, or pleads guilty. You work to put together a convincing presentation for sentencing that will humanize your client — help the judge see him (or her) as a human being, as someone whose offense is only one part of a larger life, as someone who has done good things as well as this bad thing. You ask friends and colleagues to write letters in support of your client. If your client is like most people, his life has been a mix of good and bad; some people admire him for some of the things he's done, and he's treated some people decently. Your client's friends and colleagues write letters in support, helping put his actions in the context of his whole life. Because they are human, their memories of your client are emotional and idiosyncratic. In their letters, they tell stories not only of the big things (support for family and friends, charitable work, dedication to the job) but the small, silly things that tend to touch us as people. You file the letters as part of your sentencing brief.

Then the media reads the sentencing brief, picks out one of the small and inconsequential things mentioned by a supporter, and runs it as the sensational headline, suggesting that it is the entire premise of your sentencing position.

Today's example: disgraced former Congressman Jesse Jackson, Jr.

Jackson, a deeply flawed and troubled man, resigned and pleaded guilty to a federal crime for misuse of campaign funds. It's frankly ridiculous he was reelected, and he clearly doesn't belong in Congress, and by his own admissions he abused his position and broke the law, and must face the consequences.

But now he's facing the federal criminal justice system, and his lawyers are trying to show the judge the whole story of who Jesse Jackson Jr. is. They've presented evidence of his family life, his work in Congress, his mental problems, his whole life. They've submitted letters from people who know and like him talking about dozens of topics.

What topic gets play?

A single colleague — Rep. Marcia Fudge (D-OH) — mentioned that he was an enthusiastic participant at karaoke nights. She did so in passing in the context of praising his life and work. Suddenly, though, that silly detail is the story: the media is framing it as "defense seeks lower sentence for karaoke."

Talking Points Memo: Congresswoman Wants Jackson’s ‘Karaoke Nights’ Considered In Sentencing

Huffington Post: Jesse Jackson Jr., Rep. Marcia Fudge Tells Judge, Is 'Charming' Karaoke Star Who Deserves Break

Chicago Tribune: Ohio lawmaker urges mercy for Jackson Jr., cites karaoke skills

Los Angeles Times: Ohio lawmaker urges mercy for Jackson Jr., cites karaoke skills

Notice that this is not just a matter of media political bias. Nominally "progressive" websites, and papers with a liberal sensibility, reliably go straight for the karaoke headline when talking about a fallen Democratic Congressman. Context doesn't sell; silly bits ripped from context sell.

Insipid sensationalism is an old story. It was old in 1979 when the media lied to the public about "The Twinkie Defense" in Dan White's trial for murdering Milk and Moscone.

Insipid sensationalism is what sells. Insipid sensationalism is why we have, too often, journalists who care more about maintaining relationships with law enforcement than questioning law enforcement. Insipid sensationalism is why we get misleading or incomplete reporting about criminal justice, little attention to horrifying problems in the system, and a surfeit of detached amusement where there should be outrage.

Some day soon one of the journalists who wrote one of the karaoke stories above will try to be taken seriously writing something serious and frowny about criminal justice. Please join me in inviting them cordially to shut the fuck up.

Shut Up, I Explained, Mostly Pointlessly

It's my best piece of advice — and the advice most consistently ignored. If you're dealing with the government, and you are in any doubt, why won't you just shut up?

Yesterday at Ars Technica, Nate Anderson had a great piece about the FBI's capture of a couple of meatheads who were extorting a professional poker player with nude pictures hacked from his email account. Some people may walk away with the lesson, "you're a fool to keep your naked pictures online." Some may walk away with a Coen Brothers type of lesson that some criminals are stupid and doomed to failure. I walk away with the same lesson as always: shut your damnfool mouth and stop trying to convince law enforcement of anything.

Nate's article tells about two defendants — Keith Hudson and Tyler Schrier. The FBI confronted them both in a manner well-calculated to scare the living shit out of them, rousting Hudson at gunpoint at his home and yanking Schrier out of his dorm room in his underwear. Most people have a hard time thinking straight under those circumstances. They forget things, they misread signals, they judge poorly, and they let their desperation to control the situation overcome whatever minimal good sense they have. The only good approach is to shut up. Hudson and Schrier didn't. They both talked, and both started with a series of stupid and easily countered lies, before blundering around towards the truth.

"The FBI does not fly us out here and we don't break into your door to talk to you if we don't have a substantial amount of evidence against you," said one of the FBI agents to Hudson. Actually, the FBI goes off on a wild tear based on lousy evidence all the time. But this much is true: when the FBI shows up to interrogate you, there is an excellent chance they already know the answers to their questions (or think they do) and already have evidence lined up to back their beliefs. When you run your fool mouth, you are probably doing one of three things: (1) incriminating yourself by admitting to parts of their case, (2) telling stupid and easily disproved lies, which make you look guilty, thus making you easier to convict, and (3) telling stupid and easily disproved lies that the government will use to pile additional charges onto you.

Indeed, in this case, when the feds indicted Hudson and Schrier, they added a charge under 18 U.S.C. section 1001 against Schrier for lying to the FBI during his interrogation. They did that even though the FBI agents knew it was a lie at the time and had the evidence they needed to disprove it and it didn't slow or deter the investigation by a hair. Now, that extra charge probably didn't have much impact on Schrier's sentence — it's really chickenshit rubble-bouncing — but it's an additional federal felony that makes his case more complicated, needlessly.

Some people are sociopaths and would try to fast-talk God Almighty. Some people talk compulsively under any pressure. And some people have somehow picked up a foolish notion that if they don't talk, if they don't cooperate, if they don't show the cops that they're good citizens, they'll be hustled off to a cell even if they've done nothing, or that they will lose a chance to divert the cops from the something they have done. Here's the truth: maybe, possibly, there could be a scenario where your long-term interests will be hurt if you refuse to talk to law enforcement. Maybe, possibly, in some extremely unlikely scenario, you could do actual harm to your fortunes by asking to talk to a lawyer before you talk to the cops. But those remote and hypothetical scenarios are vastly outweighed by the strong likelihood that you will make your situation much worse by talking. The "I better talk to the cops right now or things might get worse" approach is like deciding to jump off a bridge because you might get struck by lightening if you keep standing on it.

Shut up. For the love of all that is holy just shut up.

How A Defendant's First Appearance In A Federal Criminal Case Works

As I write this it seems pretty clear that CNN shat the bed by reporting that the FBI arrested a suspect in the Boston Marathon bombing and that there will be an appearance in federal court today.

Who knows when — or even if — an arrest and federal court appearance will happen.

But the media has been spewing inaccuracies about how it will happen, if it does. Here are a few things to keep in mind if the feds arrest someone and charge a federal crime. Federal criminal lawyers will find this oversimplified.

1. Federal prosecutions start in one of two ways: by a criminal complaint or an indictment. You get a complaint by presenting a federal magistrate judge with an affidavit explaining the facts establishing probable cause that the defendant committed the specified crime. You get an indictment by presenting a case to a grand jury. If an arrest happens soon, it will be by complaint. If it takes months, it could possibly be by indictment.

2. The feds will probably get an arrest warrant before they arrest a suspect. They will probably do that by filing an affidavit in support of a criminal complaint, as set forth above in (1). The feds could arrest someone without a warrant, but they won't unless emergency circumstances (like the suspect fleeing) arise. If they do arrest the suspect without a warrant, they'll immediately draft an affidavit in support of a criminal complaint and present it to a magistrate judge, as the defendant will be entitled to a prompt determination of probable cause after arrest. They will probably do that before the defendant's first appearance. So: if they arrest without a warrant, there will be a delay while they draft the affidavit.

3. The feds will probably try to interview the defendant. If the defendant is dumb or dumb-political and talks to them, the interview process will consume some time.

4. The defendant will be entitled to talk with an attorney before the first appearance. That will likely be a Deputy Federal Public Defender or someone from the local federal indigent defense panel. The first attorney meeting won't be extensive but will consume some time.

5. Pretrial Services — an arm of the court — will want to meet with the defendant. Pretrial Services' purpose is to gather information the court can use in making a bail determination. Here that's something of a farce; there's no way someone charged with this bombing will get bail. Nevertheless, Pretrial will go through the motions. The defendants' lawyers will tell Pretrial the defendant doesn't want to talk to them.

6. The arresting agent will have to get the office of the clerk to put the defendant on calendar before the magistrate judge on duty that day. How difficult that is depends on how busy the calendar is, which depends on who else has been arrested. Practically speaking, in a busy federal court like Boston, if the feds don't check in with the clerk by noon, it's very hard to get someone on calendar before the judge that day. Here the clerk's inclination to treat the case specially will conflict with all the complicating factors, causing a wash. Our defendant may not appear on the same day he's arrested unless he's arrested quite early. (Feds and locals everywhere love arresting people late morning Friday, which assures a weekend in custody with no bail determination. Some agencies love bringing in hordes of defendants as late as possible on Friday just, as far as I was ever able to determine, for the lulz. I'm looking at you, DEA.)

7. At his first appearance the magistrate judge will arraign the defendant. That means the judge will inform the defendant of the charges against him and his relevant constitutional rights. The judge will set a next court date. The government will ask the court to detain the defendant without bail, which the court will do. (Under the Bail Reform Act a federal defendant is entitled to bail unless no bail conditions will assure the safety of the community and the appearance of the defendant — here the judge will likely find both a flight risk and a danger to the community, no matter who the defendant is.) The defense may simply submit or ask for a delay of the bail hearing.

8. If the defendant was arrested based on a criminal complaint, and he's held without bail, he's entitled to a preliminary hearing within 14 days unless he's indicted. The feds will avoid the need for a preliminary hearing by indicting him first.

The bottom line is this: if there is an arrest, it's possible (or probable) the defendant won't make his first appearance the day of the arrest.