Judge makes mistake and goes after criminal defense lawyer

This story really amazes me:

At issue: Anthony pleaded guilty to 13 charges in a check fraud case in January 2010. Judge Stan Strickland sentenced her to time-served in jail, and a year of probation after her jail release.

But last month, when Anthony was acquitted of murder and released from the Orange County Jail, she wasn't put on probation. The Department of Corrections said Anthony served that probation in jail while she was awaiting the murder trial.

Soon after her release, Strickland amended his original order clarifying his intentions, which were clear in video and transcripts from the January 2010 sentencing.

Anthony's defense team objected, and Perry heard arguments from attorneys earlier this month.

Perry asked the defense team if they knew Anthony was serving her probation while she was in jail. One of Anthony's attorneys admitted that they did, but didn't think it was their burden to notify the court.

Perry eventually issued an order stating Anthony does have to report to probation.

In that order, Perry took up the issue with the attorneys too, saying that, "the failure to abide by that order and the failure to notify the court of a known scrivener's error in the order may be a violation of an attorney's duty of candor."

"No attorney should conduct himself or herself in a way that impedes an order of the court. ... Our system of justice should never be in the position of rewarding someone who willfully hides the ball."

This investigation reminds me of the old F. Lee Bailey quote after he was charged with mail fraud: In England, a criminal defense lawyer is apt to be knighted, in America, he is apt to be indicted.

This is especially true where the criminal defense lawyer is representing an unpopular defendant like Casey. The Florida Bar should quickly clear Jose Baez.

News & Notes

1. Prosecutors in Georgia are in hot water about their handling of a prosecution against a criminal defense lawyer. Friends of the blog Tom Withers & Craig Gillen represent the defense lawyer. They were part of the defense team that tried the Savannah case with me a couple years back. Good peeps.

2. Richard Simring's sentencing was postponed. Sad: "Richard B. Simring, a lawyer, was the chief legal officer of Okun Holdings, was also to be sentenced this morning after pleading guilty to charges of conspiracy to commit mail fraud and money laundering.
However, Payne said he wanted a mental health evaluation conducted of Simring, who has a history of depression and was said to have been under a great deal of family stress at the times the crimes were committed.
A new sentencing date for Simring has not yet been set. Payne said the five years called for under the plea agreement may be appropriate, but said he wanted more information about Simring’s emotional condition."

3. On Agusut 24, 2009, the Third District Court of Appeal will be holding an en banc hearing at Judge Moreno’s courtroom. The building's namesake -- Judge Wilkie Ferguson -- is a former 3rd DCA Judge. From what I understand, the case deals with PIP... UPDATE -- the argument has been cancelled.

4. Supervised release numbers are way up -- from 51,000 on supervision in 1997 to almost 100,000 now.

Blogging about your own criminal trial...

... as a defendant.
UPDATED BELOW

Yup, you can read about photographer Carlos Miller's trial in state court from Miller's perspective.

I find it fascinating. Apparently, the prosecutor asked Judge Joe Fernandez (in state county court) to prohibit Miller from blogging about the trial. Fernandez denied that request.

Interesting that in a trial about First Amendment rights that the prosecutor would ask for the defendant not to be able to blog about the case....

Good for Judge Fernandez.

Hat Tip Rumpole.

UPDATE -- Well, the trial is over. And blogger/defendant Carlos Miller is not happy with the result. And apparently, Judge Fernandez is not happy with Mr. Miller, sentencing him to more probation than requested by the prosecutor.

Update on Kozinski

Above the Law has all the details here, including that Judge Alex Kozinski has suspended the trial for 48 hours to figure out what to do, and an email from Kozinski himself:

David [Lat]: I can't comment on the trial.
As for the other matter, the server was maintained by my son, Yale, for the entire family. Pictures, documents, music, audio and other items of personal and family interest are stored there so various family members can reach them from wherever they happen to be. Everyone in the family stores stuff there, and I had no idea what some of the stuff is or was -- I was surprised that it was there. I assumed I must have put it there by accident, but when the story broke, Yale called and said he's pretty sure he uploaded a bunch of it. I had no idea, but that sounds right, because I sure don't remember putting some of that stuff there.
I consider the server a private storage device, not meant for public access. I'd have been more careful about its contents if I had known that others could access it.

Here's the latest from the LA Times.

UPDATE -- There are a number of sites that have collected the images from Kozinski's website. See here, for example. Ann Althouse discusses those images and the controversy at this link.

Ethics

Here's a little ethics question for my SDFLA readers on Monday morning:

Should the attorney-client privilege survive a client's death when revealing that client's statements (that he was the murderer and not the guy on death row) would save a man from death row or from life imprisonment (or any imprisonment)?

Those are the questions Adam Liptak examines in this NY Times article from a real life example. It's pretty dramatic that the judge is threatening the lawyer for revealing his dead client's statements:

STAPLES HUGHES, a North Carolina lawyer, was on the witness stand and about to disclose a secret he believed would free an innocent man from prison. But the judge told Mr. Hughes to stop.

“If you testify,” Judge Jack A. Thompson said at a hearing last year on the prisoner’s request for a new trial, “I will be compelled to report you to the state bar. Do you understand that?”
But Mr. Hughes continued. Twenty-two years before, he said, a client, now dead, confessed that he had acted alone in committing a double murder for which another man was also serving life. After his own imprisoned client died, Mr. Hughes recalled last week, “it seemed to me at that point ethically permissible and morally imperative that I spill the beans.”
Judge Thompson, of the Cumberland County Superior Court in Fayetteville, did not see it that way, and some experts in legal ethics agree with him. The obligation to keep a client’s secrets is so important, they say, that it survives death and may not be violated even to cure a grave injustice — for example, the imprisonment for 26 years of another man, in Illinois, who was freed just last month.


This is a classic law school hypo, and it's interesting to see how it is playing out in the real world. Monroe Freedman, the ethics guru, is quoted a bunch in the article. He would draw the line at saving someone from death row, but not life imprisonment:

Most experts in legal ethics agree that lawyers should be allowed to violate a living client’s confidences to save an innocent man from execution, but not to free someone serving a prison term, however long.
“I prefer to draw the line at the life-and-death situation,” said Monroe Freedman, who teaches legal ethics at Hofstra. “That situation is sufficiently rare that is doesn’t present a systemic threat. If that is extended to incarceration in general, it would end the sense of security clients have in speaking candidly with their lawyers.”
The questions get more complicated when the client has died.

So, SDFLA readers, what do you think?

And have a happy Cinco de Mayo!