Wednesday, February 11, 2009
Taking On Corrections: "They Just Think The Law Stops At Their Door"
The most important rule of practicing criminal law, a rule never taught in Criminal Procedure in law school, is to be nice to court staff. Clerks that don't like you can conveniently forget to bring your client's file, the bailiff who thinks you're a jerk can decline to give the judge a message for you that you have to go and want to be
called first, and corrections can, "oh sorry," not bring your client to court because he "didn't make the list."
In recent years, and understandably so, security has become tighter in courtrooms. A hug between family members and a defendant, passing discovery, talking to the client in custody in court, is now often a major issue, or denied. Judges have completely abdicated their right to run their courtroom to corrections, and corrections knows this. "I'm sorry counsel, but I defer to corrections on whether crying mom can hug her sentenced-to-life-in-prison son goodbye."
So I was thrilled to see that a lawyer took a case of strip searching inmates arrested for minor offenses to a federal judge who said "nope, unconstitutional," or something to that effect. According to this story, "More than 10,000 people arrested for minor crimes have been strip-searched at the facilities since 2003, a practice that could end up costing the counties millions of dollars, said Susan Chana Lask, a New York lawyer suing the jails.
"They just think the law stops at their doors, and they can do whatever they want," Lask said.
Oh Susan, they must love you now. Are you meeting with your clients at the jail, or is it now always "closed" or on "lock down" when you arrive?
Susan began her lawsuit over her client who was arrested while driving and had an outstanding warrant for failing to pay a court fine, even though he produced documentation to show the fine had been paid. Documentation? What, like a receipt? Go to jail you terrorist.
He was held in the Burlington County jail for six days before being transferred to the Essex County jail, and strip searched, twice. Here comes that canned "public safety" argument from corrections: "They said the inspection of the nude inmates was necessary to ensure they were not smuggling contraband, to identify gang members through tattoos, and to detect health issues, such as evidence of the MRSA virus."
The federal judge put it into perspective: "Thus, a hypothetical priest or minister arrested for allegedly skimming the Sunday collection would be subjected to the same degrading procedure as a gang member arrested on an allegation of drug charges."
Corrections, through their lawyer, obviously understood the ruling and responded in kind: "The county fully intends on appealing and defending the case vigorously."
Nice use of money you don't have.
Congrats Susan, or as they refer to you now, Susan "don't touch my client" Lask.
Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free
ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please
What about the freaking IA judge? The guy still has to be pulled into IAs. Why the heck didn't the judge there handle it and let him go, instead of just abdicating his/her responsibility? Gutless
Judges. Six plus days in jail on a charge like that is rediculous.
Rick Horowitz said...
Frankly, to hell with worrying about corrections. If EVERY defense attorney was like Susan, we wouldn't be having as much of a problem with corrections, because they'd eventually get tired of being pulled into court for every interference with attorney-client conferences.
I've had to get COURT ORDERS for private visits with my clients. That comes notwithstanding the fact that in California, it is a misdemeanor for an officer not to allow a visit from an attorney when the inmate or his family has requested it.
Even then, in one outlying community, I had a jail actually say they were not going to honor the court order. I actually had to open up my cell phone, call someone who I knew had the judge's home phone and ask them to call the judge to tell him his signature was no good in that county. (THAT finally got me
in, without the person actually having to call the judge.)
In another jail, on a certain floor, every room -- EVERY SINGLEROOM -- on the floor has an intercom. You can't tell if it's on or off. A judge refused my request for a visit in a room without an intercom. City attorney never even wrote a response to my motion. The commander of the jail simply filed a declaration
with the court saying no one was listening. Although the CA "Supreme" Court has ruled this isn't enough and allowed prisoners visits in rooms without intercoms, my peremptory writ to the "Appellate" Court got a postcard denial; no explanation, just "denied."
But the saddest part? This has been going on for years apparently, and no other attorney has ever even noticed it.
Too many defense attorneys are spineless and "don't want to sweat the small stuff," like correctional officers listening in on conversations so that DA investigations are easier.
Used to be the case in the U.S. that the LAW trumped corrections.
Partly because of defense attorneys, this is no longer true.