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Rebel Thinking & Defense

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I am going to digress from a legal analysis this month. When not practicing law, I enjoy, among other activities, walking and gardening. Both lend themselves to listening to podcasts. One of my favorite podcasts is “Hidden Brain” on NPR. The host, Shankar Vedantam, “uses science and storytelling to reveal the unconscious patterns that drive human behavior, shape our choices and direct our relationships.” You can imagine that this would be insightful to a trial attorney!

A recent episode entitled, “Rebel with a Cause” discusses the importance of being willing to break out of the norm. The old adage, “Think outside the box” has truth. The truth is that it is important to reevaluate our suppositions from time to time. Nowhere is this truer than in defending persons accused by the mighty government.

What does this have to do with me?

Recently, I was approached by a client who was represented by one of the preeminent Atlanta attorneys. The attorney had negotiated what, under nearly all circumstances, would have been a terrific plea agreement to avoid significant time in federal prison. However, the plea of guilty would result in time in federal prison, the client’s green card not being renewed, and, ultimately, deportation.

My client hired me to replace this other high-profile attorney. I looked at the case with a fresh set of eyes and found the problem. I filed a motion to dismiss the indictment. Before a United States Judge ruled on my motion, the government dismissed the charges!

Take a Fresh Look

Back to the “Rebel” podcast. There is no need to be the proverbial “bull in the china cabinet.” I have encountered those attorneys. They usually don’t last long. It is also inappropriate to be the defense attorney who is the “waterboy” for the government. Do I even have to comment on what we think of that “attorney?”

It is critical to look at every case as if it’s the first case. Bring your experience to the case. It’s invaluable to bring experience to a case. But, it’s also important to look at it and think about it as if it is the first case you have ever reviewed.

The other experienced attorney just followed the routine. He saw evidence of guilt in the form of a wiretap and phone calls. He then negotiated what would otherwise be an excellent plea disposition. However, he did not see the glaring defect in the case that would require dismissal.

In “Hidden Brain” terminology: Experience + Fresh (Rebel) Thinking = Best Chance of Success!

by John Lovell

The Commerce Clause to the United States Constitution and Criminal Law

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I am interrupting my review of sentencing law to write about the “Commerce Clause” of the United States Constitution. Recently, I listened to an excellent podcast on the Commerce Clause. I encourage you to listen to is here.

The commerce clause is the legal fiction used to grant the federal government virtual unfettered jurisdiction in matters traditionally reserved to the states. The producers of the podcast at More Perfect note that the Commerce Clause was used effectively during the civil rights era to bring freedom to the oppressed. What they did not have time to develop is that the commerce clause has since been used to lock up a disproportionate number of African Americans. Until relatively recently, crime was largely a matter for states. Today, the federal government has gone beyond its traditional role to prosecute street-level, hand-to-hand drug sales, local fraud, and a host of other crimes that do not have a meaningful impact on interstate commerce.

Since the federal government got involved in the prosecution of what was typically thought of as local crime, the number of persons incarcerated in federal prisons has risen drastically. For instance, from 1980 to 2015, persons incarcerated in federal prison increased from 22,037 to 185,917, a 743% increase. Federal incarceration for drug offenses during the same period is even more severe with a 1826% increase. This prison growth occurred while the U.S. population increased by less than 50%. And, with over 10,000 attorneys, DOJ is the world’s largest “law firm!”

So, while most Americans were pleased to see the federal government use the commerce clause to desegregate the south, today it is frequently used as a means of inserting the federal government into local criminal matters. You will have to read my recent blog on mandatory minimum sentences to appreciate the impact of the federal government being involved in low-level and local crimes.