Sparta Townson, CEO Of Internet Guru Girl

 From the internet guru girl blog:

Personal note from CEO of IGG:

While there are many ways to project your business on line, you have to make sure you feel comfortable with the company or person you are intrusting[sic] your site and online marketing to.

Make sure you understand what it does, what you expect from it, and know that IGG is telling you that the web works better than any other medium but you have to allow the features you’ve chose to work together.

IGG will not encourage you to do anything that isn’t in your best interest.

Thank you! Sparta Townson

Sparta is right. Outsource your marketing, outsource your ethics. Everyone in the blogosphere agrees.

That’s why I was surprised to have to give her a call. I had finished two conversations with horrified clients of IGG, who were completely unaware that they were paying her to spam my blog. One of those clients has been fielding phone calls from other bloggers who were kind enough to let him know that IGG was leaving comments like these:

[Name of Lawyer]
Divorce Attorney
Fathers rights Attorney
Family lawyer
Military family law

and

Houston Criminal Defense Attorney

When you are facing criminal charges, every aspect of your life is subject to negative effects. Not only is your freedom threatened, but also your relationships with family and friends, your job and even your health are at risk.

All comments came with the obligatory URL from a backlink bot. I received 30 to 40 identical comments to different posts in the space of just over an hour.

I let her clients know that if this little ole, rarely updated, and less frequently read blog was getting hit, that there were probably some of the bigger blogs on the block being targeted as well. And that some blogging lawyers don’t start with a “Hey, did you know what your SEO person is doing?” phone call… they just lash out with the name of the offending lawyer in the title of the post.

Sparta had already heard from at least one unhappy client by the time I spoke with her, but was not at all sympathetic to my plight. She asked if my blog was open or closed, and told me that since it was open, my comment section was fair game. What I got from the conversation was that she would damn well put whatever idiotic comments she wanted on my blog, and happily associate her client’s names to them, as often as she pleased, and that there was nothing I could do about it. Open blog, therefore the fault was mine.

I asked her if there were any other techniques she uses on behalf of her clients that she would like me to include in an upcoming post. She told me I was threatening her, and mentioned defamation of character, but hung up before I completed my next thought.

Sparta, it’s not a threat, it’s a promise. After all, you encourage folks to find out what an SEO marketer does before hiring one. I’m just doing my part.

How To Write An Anders Brief

I just read Anders v California for the first time (ever, or in a long time) in preparation for writing this post. You always hear about Anders briefs, and I have some vague notion that it’s what an appellate lawyer files when they want to tell the court that there is nothing worth appealing in their client’s case. Heck, I didn’t even know (or remember) that Anders won, by reverse and remand – which makes me fairly certain I’ve never carefully analyzed the opinion.

The gist of it is that sending a letter to the court saying,

“I will not file a brief on appeal, as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders, and have explained my views and opinions to him. . . . [H]e wishes to file a brief in this matter on his own behalf,"

is not enough. The case then outlines the proper procedures, which are not the topic of this post, so ‘nough said about that.

The dissent has an interesting tidbit. Here are Potter “I Know It When I See It” Stewart’s thoughts on the issue of whether a no merit letter to the court should suffice:

The quixotic requirement imposed by the Court can be explained, I think, only upon the cynical assumption that an appointed lawyer's professional representation to an appellate court in a "no merit" letter is not to be trusted.

That is an assumption to which I cannot subscribe.

I cannot believe that lawyers appointed to represent indigents are so likely to be lacking in diligence, competence, or professional honesty.

If the lawyer can be trusted in all things, then a letter stating his view that there are no issues to appeal would be good enough. Fair point. Now here’s a snippet from a recent Texas appellate court memorandum opinion affirming a six and a half year DWI sentence where an Anders brief was filed for appeal:

[The] attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.

The case met the other requirements of Anders, and thus the defendant loses. He had a professional evaluation of the record, so that’s that. Then I noticed the footnote:

We did note, however, errors in appellate counsel's brief of a nature suggesting that more care should have been taken in using prior briefs as a basis for preparing the current brief.

Counsel stated in his preliminary statement of this case that this was an aggravated robbery case instead of a DWI—but then later in the same sentence states the jury found Roark guilty of DWI (the correct offense).

This misstatement of aggravated robbery also occurs on page three of counsel's brief. Counsel further states the offense took place June 28, 2004, when in fact it occurred January 28, 2004.

Also, counsel states there was no motion for directed verdict based on insufficient evidence; however, trial counsel did move for a directed verdict based on insufficient evidence that [the defendant] was driving a vehicle as opposed to just being in his yard when he was arrested.

Some of these errors are piddling, inconsequential. The first one simply shows that the attorney has filed these in the past, but is unaware of Microsoft Word’s handy “find and replace” function. Practitioner tip: use control-H and then you don’t have to replace every single “Aggravated Robbery” with “DWI” one at a time.

Remember, the court’s footnote in no way disapproved of using a prior brief as a template, so that’s not a problem. It’s all that pesky wrong-name-of-offense that causes a few seconds time to double take, and then giggle to themselves about the sloppiness of the lawyer. Judicial time is valuable; don’t slow them down.

Second error, simple typo.

The third goof is slightly more troubling. Currently, there is no Word Processor on the market that will be able to evaluate whether or not this client’s lawyer asked for a directed verdict, while your last client’s lawyer did not. But we affirm the conviction because the defendant “had a professional evaluation of the record”.

Case Closed

Overheard a bench conference about a motion to revoke a felony probation while standing in line waiting to talk to the judge this week. Putting the pieces together, the story went something like this:

The defendant was on a possession of controlled substance probation, and had mucked it up in several different ways. Probably at least one dirty U/A along the way, had absconded (fancy legal talk for “disappeared/not reported” for a few months), and was generally speaking not winning any awards for probationer of the year. As far as I could tell, no arrests for new offenses, but… what are you going to do?

The defense lawyer was doing a good job of explaining what the probationer had done to straighten up since being released this time, although, that job was complicated by a few bumps in the road since then. I wasn’t totally paying attention, but I’ve been there myself (let’s assume I mean as the lawyer) and know the routine.

The prosecutor had the easier job, listing off the violations, ignoring known facts like “some drug defendants will backslide/relapse,” reciting the facts of the underlying case in a manner that made it seem like agreeing to felony probation in the first place had been both an act of extraordinary prosecutorial grace and an enormous mistake. And perhaps that was all true; I won't comment about that.

So the judge, to clarify the State’s position, asked if they were asking for pen time, and the prosecutor said something that caught my ear:

“Let’s just get it done with, 2 TDC.”

The minimum. They’re only asking for the minimum, that’s reasonable. And prefacing the request with the age old argument that the court should consider the value of getting the motion to revoke resolved. If this case drags on and on, there will be more court hearings. Maybe the probationer will have straightened out his act, but probably not.

More time the judge has to spend listening to both sides. Time for both the prosecution and defense to waste on arguing basically the same old points we always hear in this scenario. The coordinator has to enter more court dates, the field probation officer has one more visit, the court P.O. has one more file to prep for next month, the clerk has another file to wheel over in his cart, the deputy downstairs has one more person to screen, the bailiff has one more defendant in the pews to keep his eye on.

If we just deal with it today, two years prison, think of all the time saved. For everyone.

Everyone involved would be better off if we resolve it today with a prison sentence, right?
 

Qualified For Anything

There are two kinds of reactions to the following statement, made by Andrea Mitchell on Morning Joe, about Elena Kagan’s qualifications to be a Supreme Court Justice:

If you can run Harvard, and the Harvard Law factory, then you can run almost anything.

Reaction number one… nodding head in silent (and unthinking) approval, and reaction number two… “What’s that again?”

Seriously? Anything? As Dean of the law school, she proved adept at fundraising, no doubt. But this qualifies her for almost anything? What about vetting mergers and acquisitions, negotiating a contract, representing someone in a divorce, not to mention running a bakery or a bank…

The list of things that running Havahd Law School does not auto-qualify you for is almost infinitely longer than the list of things that it does. Here is the question and answer she gave last year in a questionnaire for the Senate Judiciary Committee for her nomination as Solicitor General, part 15 Legal Career, subsection (d):

State the number of cases in courts of record you tried to verdict or judgment (rather than settled), indicating whether you were sole counsel, chief counsel, or associate counsel.

I have never tried a case to verdict or judgment.

What percentage of these trials were:
1. jury;
2. non-jury.

Not applicable; see above.

That’s not just criminal, that’s civil too. Cases come to the Supreme Court after trial and multiple appeals, not from some hypothetical on a law school exam. Would you want someone telling surgeons what the proper method for cutting someone open was, if they had never been inside an operating room? OK, what if they also skipped frog dissection in ninth grade biology?
 

What The Miranda Rule Says...(According To TV Version)

Heard Jeffrey Toobin explaining Miranda to CNN’s Wolf Blitzer last night on the tube, and my head exploded. Sometimes a quick press of the record button, followed by several rewinds and I end up with an informal transcript of something an expert TV commentator said which ends up on my blog, but not this time. Wasn’t quick enough with the TiVo remote.

But no matter, CNN, being justifiably proud of its expert, has posted it online. Blitzer asked Toobin to “explain to our viewers about the Miranda rights” to which the expert replied:

The Miranda rule says nothing you say can be used against you in court unless you first have been read your Miranda rights.

That doesn't mean that the police can't use the information, that they can't follow leads, that they can't go get search warrants, that they can't use the information that they give you before you get your Miranda warnings.

It just means that if you go to trial, information cannot be used against you.

Now, once he did receive his Miranda rights and the statements that he made afterwards, those certainly would be used against him if he goes to trial.

Of course, as every not-on-TV-because-I’m-too-busy-in-the-actual-courtroom criminal defense attorney knows, Miranda only applies to custodial interrogation, and Toobin’s explanation completely fails to touch on two separate issues, namely: (a) custody and (b) interrogation. Granted, the whole discussion is in the context of Faisal Shahzad, who was already in custody, and presumably being interrogated, yet it’s a slip shod explanation.

The Miranda and everything-else-related-to-Shahzad case and controversy is covered more substantively in the criminal defense blogosphere elsewhere, inter alia: here, here, here, here and here. Now back to my beef with Toobin’s so called explanation…

What Toobin leaves out, the custody part, and the interrogation part, is exactly the portion of Miranda that 99% of the public misunderstands. If you’ve been in the same room as a TV since Kojak first aired, you already know the “You have a right to remain silent, anything you say can and will be used” spiel. But it’s the what you don’t part that might hurt you. Or, perhaps, if you wanted to be a decent TV analyst, the part of Miranda that folks don’t know is the part that needs explanation.

All sorts of things you say can be used against you in court, without the need of a Miranda warning. In fact, since most cases involve a police investigation and then an arrest, and then no more investigation after the arrest… Miranda is completely inapplicable. In the majority of criminal cases.

The police make sure of it. If there’s ever a need to question a suspect, they just invite him on down to the police station. Have him spill his guts. Then they let him walk out of the lion’s den, and go prepare the warrant. Tada – not custody.

Also, interrogation is an important component. Basically, it has to be in response to questioning. If, for example, Shahzad is volunteering the information (“Now that you’ve arrested me, let me tell you my entire plan” – like a villain leaving James Bond hopelessly tied to an automatic death machine that doesn’t work) then it might be custody, but not necessarily interrogation.

I know I’ll spend the rest of my career explaining to DWI clients (for example, although they do seem to bring it up quite a lot) why it doesn’t help that they “never read me my rights”. The fault lies squarely with those who continue to perpetuate the myth that “nothing you say can be used against you in court unless you first have been read your Miranda rights”. Thanks a lot Toobin.