Why not just cut out the middle man?

There was a story posted yesterday in the ABA Journal, titled “Lawyer Reportedly Went Undercover in Drug Sting, Snagging Ex-Clients“:

Frank Pignatelli was facing a possible indictment as a co-conspirator when he agreed to work with authorities in the drug sting, according to a story in the Akron Beacon Journal. Now he’s representing drug defendants and other accused criminals in Denver.

…

The Wall Street Journal Law Blog says the story has raised hackles among some legal bloggers. But Mark Bennett of the Defending People blog says it is possible that Pignatelli’s clients were using him to commit crimes. “In that case, what they told him was not privileged, and it’s hard to sympathize with either him or them,” he writes.

As I’ve said before, one thing that people should take into account when retaining a lawyer is the moral fiber and character of any particular person.  In my opinion, there are severe disadvantages to hiring one of these shyster lawyers who would slit your, or anyone else’s, throat if they thought they could make a buck at it – client or not.  We all know who they are in our respective communities.  Unfortunately, the nature of the profession seems to attract the type, and there’s no shortage wherever you go.  I suppose these “clients” of Pignatelli got what they deserved.

Would you really want your life, or your case (or both), in the hands of someone who jurors can see through like an ice sculpture?  Someone who a juror can look at, and say, “I really don’t trust that guy….”  Someone who just talks a little bit too fast.  Someone who gives you that feeling that your getting lied to….  Of course, it also doesn’t help build credibility with the jury if your lawyer was the undercover informant who busted you.

 - John H. Bryan, West Virginia Attorney

Computer Crimes and Steganography

It wasn’t that long ago that I observed that computer crime prosecutions were on the rise in West Virginia.  This morning the Charleston Gazette published an article titled “Hidden digital files may be going unnoticed by law enforcement.”  The article talks about a method of concealing messages/images/video/audio within other digital files, called steganography, which is a process of hiding one digital file within another, rendering it “literally invisible.”  This is not something that I have seen come up in West Virginia, but apparently it has been popping up elsewhere.

The West Virginia State Police does have some type of anti-steganography software, but apparently has of yet been unsuccessful in detecting any.  According to the article, anyone with access to a computer, including registered sex offenders who are being monitored, can access this method, merely by googling “information hiding.”

This will be something to look out for as time goes on.  I predict that we will start seeing some criminal prosecutions in West Virginia where incriminating information is found encrypted on some innocuous-looking files, probably on the hard-drives of registered sex offenders who are attempting to evade their overseers.  But that brings up an interesting question – can we find out who encrypted any such files, and when?  And can we be certain that if law enforcement claims to find such a hidden file, that it wasn’t in some way planted after-the-fact.  I guess we will eventually find out.

 - John H. Bryan, West Virginia Attorney.

Things I should have done…

On things he “should have done” regarding starting his own practice, David Tarrell of the Nebraska Criminal Defense Blog, listed several things that hit close to home, and which I wholeheartedly agree with – some that I did do, and some that I also did not do but should have.

First on his list is “bought a Mac.”  Fortunately I did do this, and have never regretted it.  In fact, I bought several Macs.  Number 10 on his list is that he should have bought an iphone/ ipod sooner.  I finally got an iphone about a month ago, and now I don’t know how I ever functioned without it.  They go together (the iphone and Mac).

Second, third, and fourth has to do with billing.  One “thing I should have done” that I would add to the billing category, is making sure to take cases that allow you to bill.  A wise attorney told me as his one piece of advice to me when I started my practice, “don’t waste your time taking cases that your not gonna get paid on.”  That seems obvious enough, but you would be surprised.  It’s easy to do.  For instance, any case where your not paid a substantial amount of what the fee is going to likely be, up front, it is extremely likely that your not getting paid for your time.  Some are worth it – e.g., personal injury cases – most are not.  Of course, the realization that he should have “gotten more money upfront” is number 7 on his list.  I would put it at number 1 on mine.

Fifth, he lists “not taking business I had no business doing.”  For me, this was real estate work.  At least one time, I agreed to do a title search, etc., and after I had wasted about 30 minutes floundering around, I said, forget it, leave this to the real estate attorneys, and referred the client to one.  Another one is the drafting of any type of trust.  Forget about it.  I’ll stick to litigation.

He also notes that he should have implemented G.T.D. sooner.  I’ll have to look into that one.

 - John H. Bryan, West Virginia Attorney.

Foundation of a false confession

Grits For Breakfast (hat tip: Simple Justice) posted on an insightful discussion by the Texas Court of Criminal Appeals’ Criminal Justice Integrity Unit (hey, we need one of those in West Virginia….) on false confessions and their proposed causes.  Grits notes that 

most police interrogation training in the United States is based on the so-called “Reid method,” which teaches there are three stages to the process of questioning suspects: Behavior analysis, the interview, and the interrogation.

But…

Much of the behavioral analysis taught by Reid and Associates amounts to “faux psychology,” said [Richard] Leo (San Francisco academic presenting to the above said group), about how guilty and innocent people behave that doesn’t stand up to scholarly rigor. Police are taught to believe these methods are so reliable that officers become “human lie detectors,” but excessive confidence in their ability to read deception cues can cause police to inadvertently assume guilt. That can directly lead to the more critical mistake: Moving too quickly from interview to an interrogation.

This guy is a perfect example of this.  For years I have been watching all of those cold case murder investigation shows.  In many, many of them, there is one central detective that was originally on the case, who was convinced that so and so committed the crime – despite the evidence.  Detectives are trained to believe that they can be human lie detectors, and it becomes personal to them – so much so that they start to have tunnel vision.  Then, 30 years later you see the case on some show, and you think, how could they focus on that person when it was obviously the other person?  It works the same way with false confessions.  Some “interviewees” can actually be convinced that they did have something to do with the crime.  Others can be tricked into confessing some guilt or sorrow regarding the victim, which can be portrayed as a confession.

I think John Grisham’s book, “The Innocent Man” should be required reading for criminal defense attorneys.  It will blow your mind how in one small town, so many people could be convicted of false confessions using the same flawed tactics by investigators.  Specifically, when you take an overbearing interrogator and match that person with a guarded, feeble, shy, and honest “interviewee,” the chances rise dramatically that the innocent “interviewee” will says something incriminating.  Meanwhile the real guilty person is long gone.

 - John H. Bryan, West Virginia Attorney.

Clarifications to the State Journal story on the Flanary case

The State Journal posted a story on their website this morning on the Flanary case. Since this blog has been getting a lot of traffic on this case, I have the usually-absent opportunity to correct some slight inaccuracies in the story – including some of my quotes that are slightly out-of-context. Though you can hardly blame the reporter when the Complaint is 45 pages with 39 defendants.  The article stated the following:

The case, Flanary v. Pocahontas County et al., like many police or government liability cases, will be hard to prove, according to John Bryan, the Monroe County attorney who filed the suit.

Actually I said that police and governmental liability cases are difficult cases. I was not saying that there was anything particular about the facts of this case that will make it any more difficult to prove than other police and governmental liability cases.  The article further noted that:

The alleged incidents occurred in Pocahontas County and many of the involved parties live there as well. But Bryan said he opted against filing the suit there. Instead, the suit was filed in Kanawha County. “I think there’s a benefit to getting the whole mess out of Pocahontas County,” he said.

Actually, since several state agencies are defendants in the suit, state law mandates that the proper venue for the case is Kanawha County. Thus, it really wasn’t my choice – as I explained to the reporter when she asked me why it was filed in Kanawha County. Though it is true that there is an obvious benefit to not having to sue a county in their own courthouse.  The article continued:

Upon his release, Flanary had to go back to jail and immediately posted bail. As soon as he was released, court documents said, Snowshoe had him rearrested due to a perceived threat to Rock. Flanary’s lawsuit said the resort then barred him from all Snowshoe properties, including his own townhouse. Court records said Snowshoe officials eventually had him arrested a third time, alleging a harassing phone call between Flanary and a Snowshoe employee that was immediately acted upon by authorities.

Actually, it was vice-versa. The first time he was released on bond, indeed the same day, Snowshoe contacted authorities and said that he allegedly made a threat to commit a crime over the phone.  And Snowshoe did not bar him from entering his own townhouse, but they did bar him from all other Snowshoe property – though they didn’t explain to him how he would actually get to his townhouse without touching foot on Snowshoe soil since it sits in the middle of the resort.   Then, the second time Mr. Flanary bonded out from jail, Snowshoe had arrested for allegedly driving into the neighborhood that Mr. Rock lives.

- John H. Bryan, West Virginia Attorney

“Handling the Police Liability Claim” in West Virginia CLE

I am presenting the plaintiff’s portion of a continuing legal education seminar entitled “Handling the Police Liability Claim” in Charleston, West Virginia on March 27, 2009 at The Summit. I am presenting an overview of state law involving civil actions against police departments and officers, as well as an overview of common liability issues. Among the items discussed will be forms of immunity, criminal procedure rules, state case law, and state law causes of action. I probably will also discuss the significance and procedure of the Department of Justice’s pattern or practice investigations of police misconduct.

There also will be two seasoned defense attorneys there discussing an overview of federal law, an overview of the police internal investigation and disciplinary process, the filing of a state civil action, and the defending of a police liability claim. I am really looking forward to hearing their viewpoint and strategies for defending these cases.

You can register or find out more information on this CLE by calling 1-800-930-6182, or by visiting NBI’s website.

– John H. Bryan, West Virginia Attorney