A Big Decision...that Makes Sense

The focus today is solely on Obama's healthcare law that the Supreme Court upheld.  However, there was another opinion handed down today - in the shadow of the healthcare decision - that evokes an equally guttural and emotional response...but that makes perfect constitutional sense.

 

United States v. Alvarez, No. 11-210

The lies were horrific and unthinkable.  It's maddening.  Xavier Alvarez openly claimed to have served in the military, claimed to have been a retired marine of 25 years, and to have been awarded the Congressional Medal of Honor in 1987.  All were lies told for no other reason than to make himself look better at his local water board meeting.

Alvarez was indicted and convicted for violating the Stolen Valor Act.  In principle every American would agree with the Act - to punish those (like Alvarez) who lie about military service, especially falsely receiving military decorations or medals.  Alvarez argued the Act violates the First Amendment.  Today the Supreme Court agreed, and it makes sense once the emotion is removed from the decision making process.

The opinion absolutely "rejects the notion that false speech should be in a general category that is presumptively unprotected." The Court notes that "[t]he Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace."  In this case, the government simply did not have an "actually necessary" and compelling enough interest in restricting the content based speech. 

Alvarez's speech is, unquestionably, the speech we detest.  However, as the US Supreme Court noted "[f]undamental constitutional principles require that laws enacted to honor the brave must be consistent with the percepts of the Constitution for which they fought."  The Act simply cannot stand up under constitutional scrutiny.

The Court of public opinion has unanimously judged and convicted Alvarez, and there will be no appeal.  He will be forever stained with his scarlet lies.  Thankfully, though, "[t]here is nothing that charlatans like Xavier Alvarez can do to stain the medal winner's honor."

Just as Good

Ask any criminal defense lawyer, and he/she will tell you that 2 of the greatest sounding words in the English language are "not guilty."  There's just nothing quite like it - the satisfaction and adrenaline that comes with those 2 words after a hard fought battle for the underdog.

But I think there's something equally as good.  It's not words.  It's the look on a client's face when you have truly made an impact in their life - the look that says all that words cannot convey.  The look that says you have changed my life.  I am forever different now in a very good way because of you.  You are more to me than just my lawyer.  You helped me with not just my case, but you really cared about me and that made the difference in my life.  

I was privileged to get that look today.  I was both humbled and proud to get that look - and words to go along with it - but the look said it all.  That's the kind of thing that makes your day as a lawyer and keeps you going - to know that you've made a lasting, positive difference in someone's life.  After all, that's why I choose to do this work every day.  

And to the person who gave me that look (you know who you are), I'm very proud of you.

Be Honest

Thursday morning, I showed up to court ready for trial.  It was a DWI (one of only 2 "opinion" crimes, in Texas, by the way - the other is obscenity).  We started jury selection.

The panel consisted of 20 people from which 6 for our jury would come.  They walked in single file and looked just like ordinary people.  The judge began first by giving some very general instructions and swearing in the panel.  Everyone took an oath and promised to tell the truth to whatever questions were asked of them by the prosecutor and I.  Then, the prosecutor made his presentation.  With the exception of 2 gentlemen on the panel who would clearly vote guilty every time without hearing any evidence at all, the panel seemed pretty neutral. 

Then, it was my turn to find out as much as I could about these people in 45 minutes.  45 minutes sounds like a long time, and most all judges think it's more than enough time.  However, it's 45 minutes to talk to 20 people, tell them a little about the law, and find out what they really think about it.  

It's important, especially from the perspective of the accused, because you need people who can actually apply the presumption of innocence, believe in the 5th Amendment, and apply proof beyond a reasonable doubt.  These are the 3 cornerstones of justice system, and they've been around and unchanged since the very beginning of our nation.  Think about how often the legislature meets and makes new laws and amends preexisting laws.  Yet, these cornerstones - the presumption of innocence, the 5th Amendment, and proof beyond a reasonable doubt - have remained unchanged.  They are that important.

Thankfully, people told the truth.  The great majority of the panel understood the 5th Amendment and the presumption of innocence but either didn't agree with or couldn't apply these principles.  Mind you, all these constitutional principles don't just come from the lawyers - they come from the judge.  Even after explaining and discussing the 5th Amendment, people overwhelmingly believed that not testifying is an admission of guilt and would consider it as such.  They also believed that if a person is on trial it means they must have done something wrong - they must be guilty.  

As a criminal defense lawyer it is hard to hear that the majority of people in the room already believe your client is guilty and expect you to prove that he's innocent.  It's a hostile environment.  It makes you and certainly the person on trial question whether there will actually be a fair trial.  It's disappointing.  All of these jurors are U.S. citizens.  Wouldn't they want the constitutional principles that have been around for over 200 years to protect them from a wrongful conviction if they were ever accused of a crime or would they feel confident with jurors like themselves?

Thankfully, they told the truth, though.  In the end, there weren't near enough jurors who could follow the law - the 5th Amendment, presumption of innocence, and proof beyond a reasonable doubt - as given to them by the judge.  Because of that the judge declared a mistrial.

That doesn't make the case go away.  We get to come back another day and do it all over again.  And I sincerely hope that the next panel of jurors we get is as honest as this group was and that if any of these people are ever called for jury duty again they will continue to be honest.

So You Messed Up on Probation...Now What?

If you were on probation, and you've messed up somehow there are some things you need to know.  First, although it's definitely time for concern if you've messed up, don't panic and shut down.  After all, you are still on probation.  Only the judge, not the probation officer, can revoke your probation.  Sure, probation officers will threaten and intimidate you.  They will tell you they have no choice but to file the paperwork.  But the filing of the paperwork (the motion to adjudicate or motion to revoke) doesn't signal the end of your probation.  You are still on probation.  So, continue checking in, continue doing your community service, continue doing your classes.  If you're behind on any of these things then catch up pronto.    

If you've had a dirty UA then before you're told by your probation officer start going and documenting your attendance at AA/NA meetings.  People (even probation officers, prosecutors and judges) are much more willing to help those whom they perceive as helping themselves.

If you've been arrested for a new offense then the first thing you need to do is talk to a lawyer.  Do not make the first call to your probation officer - no matter how well you think he/she likes you - without talking to a lawyer first.  Most probation departments have an unwritten rule that if a probationer is arrested for a new offense then they file a motion to revoke/adjudicate.  That doesn't mean there aren't things to do to mitigate any punishment.  Your lawyer will know what those things are.   

Always document everything you do on probation.  Always keep a copy of everything for yourself.  It has happened where a probation officer - especially one from out of county - mistakenly doesn't transfer all the community service hours, classes, etc.

Bottom line: if you ever have any questions while you're on probation ask your lawyer.  If you've messed up while your on probation - no matter how insignificant you think it might be - take the time to call your lawyer.  That phone call and advice could save you jail or prison time.