23.Aug.2010 A.C Flora High School: One of America’s Top Schools

GO FALCONS!

A.C. Flora High School in Columbia, South Carolina (my alma mater) was ranked by Newsweek Magazine as one of the top high schools in the country. It ranked #4 overall in the state of South Carolina, and #397 nationally (out of over 25,000 high schools). Click the link below to see if your school made the list.

Dumb Criminal

Sometimes people are just bound and determined to get caught…

16.Aug.2010 Going “Stewardess”: The Case Against Steven Slater

The story of JetBlue flight attendant Steven Slater has garnered quite a bit of attention in the last week. And rightly so. The guy snapped, cursed out a surly passenger, deployed the emergency slide, grabbed a cold one and slid of the plane onto the JFK airport tarmac. Come on…that’s awesome! The 80′s gave us the ubiquitous “go postal”, and now, thanks to Mr. Slater, we all know what it means to “go stewardess”. (Yes, I know, “stewardess” is a relic of a bygone sexist era, and not politically correct. I also realize that it is female-specific and that Steven Slater is a man. But “go flight attendant” just doesn’t work. Anyway, something tells me Mr. Slater himself would be thrilled with the expression.)

But, on the assumption that someone out there might intend to realize their own “go stewardess” moment, I thought it worthwhile to discuss the potential legal consequences of Slater’s behavior? He was, of course, arrested at his home shortly after sliding of the JetBlue aircraft, and charged with reckless endangerment, criminal mischief and criminal trespass. While I agree that Slater’s behavior is less the product of a “criminal” mind, and more the product of a” righteously-pissed-off” meets “fabulous-show-biz” mind, I DO think there are some legitimate criminal issues in this case for him.

• Point 1:  Deploying the emergency slide did not injure anyone, but presumably COULD have. Pursuant to New York Penal Law § 120.20, “a person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person”. As the District Attorney pointed out at Slater’s bond hearing,”the emergency chute deploys at 3,000 pounds per square inch within seconds and could easily injure or kill ground crews or others on the tarmac who are unaware the chute has been activated.” Of course, Slater’s lawyer suggested his client was being prosecuted for a hypothetical, arguing that therewas no one below the window when the chute was released. But reckless endangerment, by definition, deals with risk of harm and not actual harm. So while he had no intent to hurt anyone (his exit was clearly calculated to be only an act of pure drama), Slater arguably was reckless, and his conduct  probably did at least create a risk of danger to someone.
• Point 2: A persistently rude passenger is not a defense to criminal conduct. On Friday, the AssociatedPress reported that JetBlue was suspicious of Mr. Slater’s explanation that a passenger’s “lack of civility” led to his tirade and subsequent sliding exodus. JetBlue Chief Operating Officer Rob Maruster said in a memo that the airline is still investigating, but that no one has yet corroborated Slater’s version of events. In fact, the memo noted that several passengers had given conflicting accounts of the incident. ”If Mr. Slater’s story proves to be accurate, and even if there was a precipitating event that motivated his behavior, that still doesn’t excuse his actions,” Maruster wrote. Well, the same would be true in a criminal context. A surly passenger causing Slater to snap might help explain his behavior, but it does not absolve him from criminal wrongdoing.

The above notwithstanding, the real question is whether Slater will actually be prosecuted or convicted of any criminal wrongdoing. Two things are important, as I see it, to answer this question:

• The State of New York, JetBlue Airlines and the aviation industry have an incentive to seek prosecution to prevent repeat “pranks” like this. Unfortunately, the sheer “diva-ness” of Slater’s exit could be exactly what condemns him to prosecution. Can you imagine a world where every frustrated flight attendant (or passenger) pulls such a dramatic stunt -especially given the fame  (and presumably book-tour/movie deal fortune) that has followed? Mr. Slater has to be the example for the next guy, so my guess is he is dealt with harshly.
• But, would you convict Steven Slater if you were on the jury? No? You wouldn’t? Of course not! And you’d have plenty of company. Everybody loves this guy. I would love to have Slater as a client. The case may not be a factual winner (see above analysis), but  I’m guessing the prosecutor’s are going to have their work cut out for them if they want to convict Slater of anything. Unless the prosecutors want to take him to trial for aggravated awesomeness!

28.Jun.2010 Arrests for Minor Offenses a Drain on NOPD – and YOU

If you spend much time (like I do) looking at the types of offenses most people are arrested and taken to Orleans Parish Prison for on an average night, you will notice one thing above all others – most of them probably shouldn’t be in jail.

A recent story in the Times Picayune tells the story in stark, statistical terms. In 2009, of the nearly 60,000 arrests by NOPD, less than 8,000 (13.2%) were for felony offenses, leaving the vast majority (86.8%) divided between misdemeanor and traffic offenses.

For a city with the crime problems we have, these are very discouraging statistics. The NOPD needs to be arresting people for serious felony violations, and issuing summons in most misdemeanor and traffic matters. While it is good for my business to help my clients clean up the mess the NOPD makes of their lives by arresting them for minor violations, it doesn’t really makes sense in the grand scheme of things.

11.May.2010 The Truth About Treme, Part II

Maybe I was just missing what everyone else was seeing, or maybe the story just wasn’t that strong, but up until this last episode (Ep 5, “Shame, Shame, Shame”) I really didn’t like Treme that much. Well call me late to the party, but I am officially a fan. Episode 5 did it for me.

Perhaps it was the larger influence that local writer Lolis Eric Elie had on the story (he is credited with the script), or perhaps it just took this much time for me to get the vibe of the show, but this is my New Orleans.

I had some criticisms to offer about a couple of aspects of the show in Part I of this blog. While much “criminal activity” has been made part of the story to date, in Part II of this post I would like to revisit the two general themes from Part I an offer my thoughts on on the accuracy of what are quickly becoming two of the main crime-related story lines in the show.

The Search for Daymo Brooks: Revised Grade B-

I gave this an “A-” in my earlier post because the notion of lost prisoners was legitimate and a story worth being told. I’m lowering the grade this time because the story is quickly turning from reality to made-for-TV drama. Granted, it’s good drama, and a good story – but accuracy-wise it’s starting to get off track. For instance, let’s assume the fact of a “missing” inmate, or as the story is told in Treme, an inmate posing as a different inmate. Kudos to the crusading Toni Bernette for discovering that “David Brooks” is really Keevon White, an imposter who has switched identification wristbands for his own selfish reasons. But his reluctance to provide an affidavit, the D.A’s “lack of evidence” argument in court, and the resulting legal dead-end is not how this would play out in reality.

First, the idea that the assertions of an attorney as an “officer of the court” (even an attorney making assertions to support her own case) would carry no weight in the absence of the affidavit of an inmate in State custody is absurd. It makes for great drama that the crusading attorney is powerless at the hands of the mighty State because she can’t get the murderous inmate to do the right thing and sign a statement, but its bogus.

My experience after the storm is quite different. The courts and prosecutors were far more willing to assist in locating inmates than they were inclined to hinder the process, especially if an accused murdered (Keevon White) was posing as someone arrested for, and presumably soon to be released, on minor charges. So its not a big leap to presume that the D.A. might want to help get this mess straightened out before it got even bigger. Besides the solution could be as simple as finding out where “Kevon White” is. (If Keevon White is “David Brooks” vis-a-vis a switched wristband, then David Brooks could now be “Keevon White”, right?)

The character, Toni, seems to be a well connected lawyer, and perfectly capable of a good New Orleans-style handshake deal. In fact, her insider connection to the NOPD presents one of the most compelling scenes in Treme to date, in my opinion (see below). Any assistant D.A. would have been more than willing to help Toni out under these circumstances.  So why does she seem to have this adversarial relationship with the D.A. in spite of all the reasons why she shouldn’t? Answer: better drama.

The New Orleans Police Department: Revised Grade B+

I’m bumping this grade up a couple of notches from Part I, mostly because we have moved from away from predictable depictions of NOPD as over-aggressive enforcers, towards a more institutional exploration of the dynamic between cops and post-Katrina New Orleans and its people. And I think Episode 5 was spot on on this score.

Witness the theft of Antoine Batiste’s trumpet by an NOPD officer. Do cops steal stuff from arrested people? You bet they do. Not all the time – probably only rarely – but it happens. And I have to admit, when I saw this plot line begin to develop I was cringing, thinking how this was going to be yet another in the theretofore litany of “bad cop” examples. But what did the writers do with this in Episode 5? They used it as an opportunity to tell a much more interesting and deep story, and one that is far more acutely accurate.

I remember the real second line shooting in January 2006. More pointedly, I remember how the city’s mood about crime changed after that. There had been a curious absence of crime up until that point, and folks had started thinking (maybe just dreaming) that this really was a new New Orleans. The second line was a celebration, at least in part, of that hopeful feeling of recovery. But, the hopeful feeling that everybody had about a new crime-free New Orleans faded almost immediately as shots rang out that day. Yes, New Orleans was coming back…good and bad.

And it is on the heels of that second line shooting that Toni Bernette confronts Lt. Colson of the NOPD about the stolen (and later pawned) trombone. What follows is one of the more relevant lines of the show so far, as Lt. Colson explains the crisis in the NOPD: A police force depleted by walk-offs and no-shows, officers that wanted to stay struggling to work without homes to live in, and allegations of police brutality in the wake of the storm. “The wheels are off the cart”, he says. “Crime is coming back and we ain’t ready. But you wanna talk about a trombone.”

The New Orleans Police Department after Katrina was a study in contrasts – cops who left vs. cops who stayed; good cops vs. bad cops; good cops vs. bad work conditions; and good and bad cops vs. crime. To a national audience used to simple “cops and robbers”, the post-Katrina NOPD is not a simple picture to paint. But it looks like the writers of Treme have decided that they are determined to try to paint it as accurately as possible, and judging from Episode 5, I’d say they have gotten off to a pretty good start.

06.May.2010 NOLA Criminal Law at IgniteNOLA, February 1, 2010

IgniteNOLA is part of the Ignite Series which started in 2006 by Brady Forrest and Bre Pettis.  The objective is for innovators to share their ideas with one another.  The tag line: “Enlighten Us, But Make It Quick”.

Speakers from around the community talk about what they’re most passionate about.  The topic can be about anything.  Each speaker has five minutes with only 20 slides that auto advance every 15 seconds.  This gives the speaker a tight window for their presentation but it also give the audience a way to digest all the great information that comes their way.

My topic, my passion: “Guilt free” criminal defense. Check out the short video or more information.

29.Apr.2010 The Day the Music Died: Getting Arrested at Jazz Fest

So, I guess the title of this post is a little misleading. Not because this isn’t about getting arrested at Jazz Fest – it is – but because many people who get arrested around this time of the year don’t get arrested at the fest, they get arrested on their way to or from the fest, or out at night afterwards.

Anyway, there is no better way to ruin the best time of year in New Orleans than to spend a beautiful April afternoon and evening in jail instead of at the Fairgrounds. So here are my top 3 ways to avoid getting arrested at (and around) Jazz Fest, and some tips on what to do if it happens:

1. Watch what you put in your backpack. Remember, though it is only a cursory search, your bag will be searched before you enter the Fairgrounds. It seems to get more and more thorough each year, and plenty of people have had their day end real early when they tried to bring in something they should have thought twice about bringing (read: bong, for instance). More people get arrested trying to get in to the fest with contraband than get arrested once inside. Pack wisely.
2. Don’t be an asshole. This is a two-way street, actually. Don’t be an asshole (and I’m sure you wouldn’t) but just as importantly, don’t tell someone else they are being an asshole. There are lots of written (and unwritten) rules about fan to fan conduct at the fest (like roping off space, blocking off too large of an area with an armada of chairs, popping open a giant beach umbrella and blocking everybody behind you, etc.). Most folk respect theses rules. But inevitably it always happens right by you;  some giant d-bag decides to starts breaking all know codes of decency and reasonableness, and you feel compelled to call him on it. Don’t. This can lead to fights (even if YOU are a lover), and fighting will get you arrested at Jazz Fest faster than anything.
3. Finally, remember that after you leave the fest, you are in the City of New Orleans, where all usual laws apply – even to you, you enlightened guardian of the groove, grand master of the funky nation… weed was not legalized because Widespread Panic just blew your mind. Have fun, but stay in touch with reality.

So what do you do if this horrible fate befalls you? Stay calm. Freaking out will only make it worse. For general tips on how to handle being arrested,  see this page of my website. But read on for more Jazz Fest specifics:

1. You’ll need to get someone involved ASAP to help start the process of getting you out of jail. Make sure a friend or family member knows that you are being arrested if at all possible. The quicker they start working to help you get out, the faster you will be out.
2. Assuming you are arrested in Orleans Parish, your friends can get your booking information online at the OPCSO Website. This will show them what you hve been arrested for, what your bond is, and whether or not a release has been posted. If you don’t have this direct link, you can access this and other helpful links on this page of my website.
3. Once your friends know where you are, and what you are charged with, the need to get you out of jail on some kind of bond. You have three options for making bond:

• Post the full amount of bond with the court;
• Pay a non-refundable bail bond premium to a licensed Bail Bondsman;
• Contact an attorney to help secure a release on personal recognizance

You should be aware that if you are from out of town, chances are that you will not be able to use a bail bondsman to make bond, as most bail bondsmen consider out of town defendants to be too much of a risk of non-appearance in court. In such cases, be prepared to post the full amount of the bond, or contact an attorney. For more help with getting someone out of jail, see this page of my website, and for out of town defendants, check out this page.

26.Apr.2010 The Truth About Treme, Part I

Watching Treme on HBO, like everyone here in New Orleans, I am prone to look for what is true New Orleans, and what is not. And being a criminal defense attorney (and one who was back working during the fall of 2005) I tend to be more critical of those parts of the show portraying the criminal justice system…and there are many. So I am going to throw my hat in the ring with the many Treme critics, but only insofar as my thoughts on the accuracy of the show’s depiction of crime and criminal justice after the storm. Below are my “grades” for accuracy, and thoughts on a couple of aspects of Treme, Episodes 1-3. Stay tuned for more…

Orleans Parish Prison/ Lost Inmates: Grade: A-

The story of attorney Toni Bernette’s search for an inmate who was “lost” after the storm is a simplified version of what was a complex problem, but is nonetheless essentially accurate. Inmates who had been housed in Orleans Parish Prison when Katrina made landfall were “evacuted” to prisons across the state, and in many cases were at least temporarily unaccounted for. Their stories were made public, after the fact, in a griping report by the ACLU highlighting the myriad problems and injustices they faced along the way. So I give Treme high marks for accuracy on this front.

But was this the norm, and were sheriffs and correctional officers around the state (as Episode 3 would suggest) deliberately thwarting the search for inmates for financial gain? Not so much, in my opinion (although I’m sure there were specific instances). So, I have to take a few points off for taking an anecdotal story and making it appear to be the rule. And the crusading civil rights angle the show seems to put forth as the answer (“We are just gonna have to sue someone”) was not the answer in my experience. Certainly the Katrina inmate diaspora was handled poorly by everyone involved, but it was ultimately sorted out through trial and error, and as much by throngs of public defenders with hundreds of clients as by any one lawyer on a mission for justice.

The New Orleans Police Department: Grade C

OK, so anyone who lives in New Orleans, or who has had the chance to experience one of New Orleans finest as a visitor, can tell you that cops here can be a little… well, eager. And as a criminal defense attorney for the last 15 years here, I wont give you much of a fight on that one. But in Treme, it seems that some a-hole group of cops is always right up in somebody’s business before they know what hit them. I have some specific thoughts on the various arrest scenarios presented so far in the show which I will detail in future posts, but overall, again, I think the writers have taken an exception and tried to make it seem like the rule.

Everyone is aware of the tarnished reputation of the New Orleans Police Department, and it was events just after Hurricane Katrina like the Danziger Bridge shootings that helped formed the basis for these judgments. And so, given that Treme is set in this immediate post-Katrina world, it is not surprising that the writers have set out to put forth this viewpoint.  And they may be right to include this as a point of reference. But I have represented numerous NOPD officers (including one in the Danziger Bridge case) and have worked with countless cops as a criminal defense attorney over the years, and I know that while these events are symptomatic of a perceived “culture of corruption” within NOPD, they do not speak to the reality of how the average everyday cop handles his or her business on the streets.

I think Treme needs to decide if it wants to focus on some of  the specific alleged police brutality cases after the storm (a direction it may well be headed) or on the average beat officer on the street (which it has done so far). But to meld the two and try to put the “Danziger 7″ brand on the whole of the NOPD is painting with too broad of a brush.

25.Apr.2010 At least someone thinks I know what I’m doing

Well, I didn’t make the 2009 list of top lawyers in New Orleans, but it looks like someone thinks I know what I am doing. I include an excerpt from the blog post I just discovered, written by Ernie Svenson, below:

“I will tell you one lawyer that got left off the list (as far as I could tell).  Townsend Myers is one of the best criminal lawyers in New Orleans.  He has a niche practice area, handling state law misdemenors and felonies, as well as DUIs, traffic matters and municipal offenses. I list Townsend on my own firm website as a ‘recommended lawyer’ (along with a few other folks) because I know he’s smart, works hard and is completely ethical.  It’s just my opinion, but it’s not one I reach haphazardly or just to impress people. After 20 years of practicing law I know excellent lawyers when I see them, and I’m happy to let people know who those folks are.”

Thanks Ernie! Maybe next year I’ll make the real (?) list, but for now I am happy to be on yours!

20.Apr.2010 Big News in Federal Sentencing Computation

A recent email I received from Virginia Schlueter, Chief Federal Defender in the Eastern District of Louisiana, details some big news regarding sentencing in Federal Court. I have copied the email in full:

On April 7, 2010, the U.S. Sentencing Commission voted to amend the Guidelines Manual by deleting §4A1.1(e) (Two points are added to criminal history score if the defendant committed the offense less than two years after release from imprisonment). The presumed reason for the amendment is that recency points add nothing to the predictive quality of the criminal history score and fail to reflect meaningful differences in offender culpability, as set forth at pp. 90-98 of the Defenders’ testimony to the Commission, available here.

The recency amendment (along with other amendments being voted on this cycle) will be sent to Congress on May 1, 2010 and, if no further action is taken, will be adopted on Nov. 1, 2010. This does not mean, however, that courts must continue applying recency points in the interim. The court remains free under 18 U.S.C. § 3553(a) and Supreme Court precedent to disagree with any part of the guidelines on policy grounds. Defense counsel should argue that courts should not assess recency points now for the same reason that the Commission recommends abandoning them on Nov. 1st: they do not reflect either increased culpability or an increased risk of recidivism and thus do not serve any sentencing purpose.

The Commission will be announcing all of the pending amendments on its website soon, www.ussc.gov, and SRC will provide a summary of those amendments ASAP. There may be an additional benefit resulting in a client becoming safety valve eligible because often those two recency points are disqualified for the safety valve two point after Nov. 1st, when if nothing is done by congress these recency points will go the way of the dinosaur.

There is also a real benefit to continuing sentencings past the Nov. 1st date in any case if it will change the Criminal History Category.