Plead guilty and get out immediately, or fight a winnable case but stay in jail a few more months while waiting for trial.

It’s a hard choice, especially when I can look the client in the eye and say “I think I can win this,” followed by a very clear articulation of how to do that. I tend to be a little pessimistic about my chances in any case — “winnable” is a strong word for me. If the client was not in jail, I’d have advised him to try the case.

Of course, he was in jail — getting out now is a major consideration. It doesn’t matter how strong I think the case is, three or so months in jail is three more months than anyone wants to do.

More often than not, a defendant is faced with a menu of nothing but lousy choices. Everything has downside. I don’t know if this is by design, but it is there at every turn. This was a relatively simple case. I know of people whose options include Lousy Choices C thru G.

Plead, and get out. Win, after a few more months in jail. What would you do?

Today, I was on trial. Note that I did not say in trial, I said on trial. I was the defendant in a summary matter that I chose to fight myself, and you know what that makes me.

A man who is his own lawyer has a fool for a client. Henry Kett, 1814.

On November 1 of last year, I finished moving out of my old place, and into my new house where I live with the love of my life. I was literally moving the last carload of stuff out of the old house — we loaded up the last few things, vacuumed, shook hands with my old landlord, and proceeded out the door one last time, on toward our new home.

But there was the matter of the ironing board.

I had an old, cheap, slightly broken, definitely squeaky ironing board, the cheapest one at Target — not even ten bucks when I bought it. Erin suggested that we not bring it with us. It was a few days before the next curbside garbage pick up, but my old neighborhood was a townhouse/condo community with a dumpster every few courtyards. I drove over to the dumpster, and in went the ironing board.

Then, from across the courtyard, and old guy came running out and screamed at me, “Get that outta my dumpster!”

“I’m sorry?” I asked, not sure what he was shouting.

“Get that outta my dumpster! It’s for residents!”

“I am a resident. I live at 1017.” [NOTE: House number altered for privacy — there is no 1017 AFAIK.]

This flummoxed him for a second. He stuttered and stammered, then forcefully shouted, “It’s for residents of this circle!”

There were no signs or markings on or around the dumpster stating that it was limited to that circle only. I replied calmly, “I am a resident here. I live at 1017.”

He walked closer and said “GET THAT OUTTA THERE!!!”

Erin, sitting in the passenger seat, became afraid. She said to get in the car and leave. I looked at the old man’s face, growing redder by the second. I watched him draw nearer to us. I saw a situation rapidly escalating out of control, far beyond all proportion to the incident. I got in the car and left, backing out of the circle to avoid any further agitation.

An hour later I got a text from my former roommate — Hey the cops were here. Something about a dumpster.

A week later I received a citation in the mail for Theft of Services.

It was graded as a Summary Offense, the lowest grade of offense in Pennsylvania, which is technically punishable by up to 90 days in jail but realistically only results in fines. No jury, no court reporter, and typically no hearing lasts more than 20 minutes. For most purposes, it doesn’t even count as a crime. I wasn’t going to prison, I wasn’t getting probation or community service, but I am a lawyer — if I am convicted of an offense, I may have to report it to the Supreme Court Disciplinary Board, which could result in some seriously bad consequences.

Upon receiving the citation, I experienced a range of automatic emotional responses — rage and fear being the two most prominent, but also a feeling of offense that I had been accused of doing something illegal. My character and integrity were under assault here. A person’s reputation is his only social capital — I had worked mightily hard to become a person of good character and reputation after a series of poor personal decisions came back to bite me in the rear. Now, after all the hard work I’d done, I resented the hell out of that cantankerous old man for going nuclear about his dumpster.

I read the citation further: it said that old guy showed me the homeowner association by-laws where it says that the dumpster is for residents of that particular circle. I showed that to Erin and got furious all over again. The old guy just flat out lied — he never showed me the by-laws. He never got close enough to show me the by-laws. He never had them in his hand, he never mentioned them to me. Nothing. He just lied.

We got to court this morning and as is my usual practice, I scanned around for the witness. I never even knew his name before today, but I spotted his face immediately. He sat there, carrying laminated maps and diagrams of the community, along with copies of the by-laws; rules & regs; covenants; and a whole binder full of documents relating to the homeowners association.

I pointed this out to Erin, and told her I was going to jam those diagrams up his ass. She quickly pulled me aside and warned me not to lose my cool — “You’re a lawyer, you have to be better than this.”

I knew what she meant by this. I was getting agitated and hyper. I was getting short, loud, and aggressive. Talking to the cop — a younger officer who I cannot fault one bit — I called his witness “a flat freakin’ liar.”

I was, in short, nothing like how I am when representing someone else.

The hearing began, and the old man used very neutral terms He didn’t scream at me, he asked me to remove the ironing board. In his testimony he was calm, polite, even respectful.

When Erin testified, she presented a very different version of events. The old man was loud, aggressive, and unreasonable. He was approaching closer and causing her fear. She also testified (without being asked) that she is a “bossy girlfriend,” and suggested we get rid of the ironing board. (That statement alone makes me wish I had a court reporter — I’d frame the bossy girlfriend comment and put it on my wall. To be fair,  after the hearing she smiled and said the “bossy girlfriend” remark was a little gift to me.)

My testimony added only a few details — that the old man’s face was getting redder as he talked. That it was four days before the usual garbage day in my circle and leaving the ironing board on the curb for a week was not a viable option. That no signs on the dumpster indicated it was for residents of that circle only. That when confronted with this non-sensically aggressive behavior, I chose to de-escalate the situation and leave.

The court found me not guilty and very calmly explained why. He said that although it may be frustrating to for residents to use the wrong dumpster, it is sometimes not easy for residents of large communities to know what is and what is not permitted. This set the old man off, and he stood up and tried to hand more documents to the officer, he was talking to the court, trying to get the judge to see just how wrong the court was and how right he was.

And as in the parking lot that day, he was getting loud, aggressive, and red-faced. Then I paused, calmed down, looked at my accuser’s life. How sad it must be to spend his retirement years in the Western Suburbs of Philadelphia with nothing to do but guard the dumpster from ravaging hoards.

Having been vindicated, here is what I learned from this experience:

Getting accused of something is a deeply personal assault on one’s sense of self. I am no saint, and I very freely own up to my faults. Part of my growth as a human being depends on it. However, getting accused of a crime — even something so petty as Theft of (dumpster) Services — invariably bears on one’s self-worth. I may be a lot of things, but I ain’t no thief.

Someone thought I was, however. And that made me wonder what other people would think.

Criminal charges are scary. I would think this would be obvious. Every day, at least one of my clients tell me how frightened they are.I never feel that fear — I stand in their place and fight their fights, but it is never personal to me. My stake in the matter never rises to the level of my own freedom or reputation.

Before today that is. I was not going to jail under any circumstance, but I was looking at possible professional ramifications. It may be an exaggeration, but I felt as though I was in danger of losing my livelihood. That triggered waves of resentment and fear on a number of fronts. I was reasonably certain that I would win, but the stress and tension is only now beginning to wear off, which leads directly to the last lesson here:

Never, ever, ever represent yourself. I am an experienced criminal defense lawyer. I have handled thousands of cases ranging from summary Retail Theft to the most serious felonies like Burglary, Robbery, Drug Dealing, various Sex Crimes, and even a Murder. I can cite statutes, rules, and cases by heart. I know the Rules of Evidence better than most. And my track record is solid — I have won outright acquittals far more than my share, and on some cases I thought were stone losers.

However, I was far too close to the situation here and nearly boned it fifteen ways to Sunday. I was angry, agitated, and defensive. Talking to the cop before the hearing, he repeated the lie that the old guy showed me the by-laws and it sent a ripple of fury up and down my spine. I talk to cops every day on other people’s behalf, and I don’t have that reaction. I stay calm, I stay focused, I stay professional.

That an experienced and successful attorney, who knows this stuff in and out could nearly lose it over a petty, stupid summary hearing about an ironing board clearly proves that defendants — who mostly do not have the benefit of a legal education and years of trial experience — should NEVER try to go it alone in court.

Also? Don’t put anything in the dumpster on McIntosh Road in Bradford Square. It’s very closely guarded.

Fortunately for me, there is plenty of crime from the Shoulda-Known-Better Department to comment on that doesn’t besmirch Polk (or any President for that matter). As always, if you are considering doing any of these things… don’t.

• If one is a judge, one should not dismiss one’s own tickets. I know this judge, and while I am not friendly with her, it makes me sad nonetheless.
• Nor should a judge fix her son’s matters. I do not know this judge, but was scheduled to appear in front of her next week. Guess it’ll be someone else now.
• If you’re going to Wal-Mart, PUT YER DAMN PANTS ON!
• While I strongly encourage all pet owners to be responsible by spaying and neutering their animals, for the love of God have a vet do it.
• While it’s important for soccer moms to support the team, they should stick to cheering, not by showing the boys some porn.

C’mon, people! Make your country proud! Don’t do anything you wouldn’t want James K. Polk to see you doing.

But as with all things, most of the time doesn’t mean all of the time.

• Homeownership. It’s the American Dream. So much of ourselves is wrapped up in our homes — financially and emotionally, a home is the physical embodiment of our hard work behind us, and our hopes and dreams yet to come. So what does a successful professional do when she thinks that it’s time to move on up to something bigger, better, maybe flashier, but her husband doesn’t? She and her BFF fake a violent rape to convince the hubby that the neighborhood isn’t safe. The husband? Filed for divorce. The house may be on the market after all.
• Sin City seems like everywhere at once, and nowhere at all. Forget New York — Vegas is the City That Really Never Sleeps — everything is open 24/7, and everything is available for a price. Gambling, booze, drugs, and sex all a phone call away. Unlike the rest of Nevada, however, prostitution is against the law. Every so often, one of that city’s working girls gets arrested, so they call a lawyer who agrees to take care of everything — which apparently includes running a scam with two other conspirators to forge fake court-ordered counseling certificates. While I can appreciate going the extra mile to take care of your clients, I can’t condone (or understand) how a lawyer can possibly think this was a good idea.
• School violence is, sadly, commonplace. As long as there are schools, there will be kids with anger issues who snap. Let us pray that all such kids are as dumb as these guys in Utah, who sent texts to selected friends warning them to stay home.
• What do you say when your boyfriend asks you to molest a three-year-old and send him pictures of it? Hint: It’s not “yes.” Honestly, I can’t tell from this writeup which of these two is the sicker. Let’s call it a tie.
• And last but not least… the owner and manager of a head shop in DuPage County, Illinois were arrested for selling bath salts and synthetic pot. I know what you’re thinking… why did this story make the cut? Because the owner has an ill-advised mustache.

Yeah, he looks like Hitler. With a toupee!

Once again, don’t do any of the above things!

Writing for the majority, Justice Scalia found as crucial the fact that placing the tracking device required the Government to trespass on the suspect’s property. The Fourth Amendment, he writes, at the very least protects against such government trespass, and this is consistent with the Framer’s understanding at the time. In short — if the government has to screw with your property to get the info, it’s a search.

Justice Alito countered that making modern constitutional law by citing principles of tort law from the 18th Century is kinda… dumb. He would decide the case under the more modern formulation articulated by Justice Harlan in his concurrence in a crucial wiretap case — the “reasonable expectation of privacy” test. In short — if the government has to get the info by poking where it ain’t nobody’s business, it’s a search.

All of this law geekery — and make no mistake, these distinctions are of interest only to law geeks — miss the point in my estimation. The crucial language of the Fourth Amendment for this case is:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…

Unpacking that clause, Scalia is correct that it is very closely related to property, calling out  houses, papers, and effects… for protection. Only persons relate to things not property-related, but by using a very common noun it suggests that the Framers were more concerned with the body itself and what may be found on it rather than with a sphere of personal integrity. Think of all the things a person may contain — fingerprints and DNA are undoubtedly found only on the person, but are in an entirely different class from a bag of weed in the pocket, which is the traditional understanding of person. In modern criminal justice, what matters most — especially in complex cases — is information.

A strict literalist might note that information about someone’s location is neither a house, paper, or effect. As long as that information is not obtained by physical interference, then the person is not seized either. Information, in the abstract, is unprotected (which was essentially Chief Justice Taft’s point in Olmstead v. US, the wiretap case). (NOTE: Olmstead was overturned years later by Katz v. US, a case cited heavily by the Court yesterday.)

In a paperless society, we must extend the full protection of the Fourth Amendment to information. Information passes back and forth at light speed without ever once becoming anything tangible. Text messages, emails, voicemails, and yes, physical location can be protected from intrusive policing. It makes no sense whatsoever to limit the protections of the Fourth Amendment only to those things that can be seen and felt by personal observation. After all, even in the 1790s someone’s papers were only of interest to the extent that evidence could be obtained from them — a confession sent in a letter, or a ledger showing where the money went. That info just isn’t kept in a book anymore.

So too the GPS tracker. In yesterday’s case, the evidence obtained by the Government was used circumstantially — the GPS placed the suspect at a warehouse where large sums of cash and MOUNTAINS of cocaine were hidden. The jury could infer that someone who frequently visited a stash house has an interest in the items stashed.

But what really matters is all the other stuff the GPS will reveal, a point made by Justice Sotomayor, who joined the majority but also wrote to elaborate on a larger point:

I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques…. I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent a too permeating police surveillance….

(CITATIONS AND QUOTATIONS OMITTED.)

Like Justice Sotomayor, I have no problem from old-fashioned policing, like following a suspect in public. But using a device to do it for them? A device that does not distinguish trips to the stash house from trips to churches, political rallies, and gay bars? That needs a warrant.

• If I’ve said it once, I’ve said it a thousand times… don’t use your cell phone for kiddie porn.
• If you break the bong, there’s no need to fight. Just get a new one, and use your words…
• It’s that same old story… boy meets girl, girl plays coy, boy stands outside her window with a boombox playing “In Your Eyes,” and then boy and girl live happily ever after. Well, mostly. It’s more like boy stares creepily at girl on train platform, boy obsesses over girl, boy breaks into her home to steal her underwear, boys goes to the county for burglary. Other than those small differences, we have the makings of an ideal chick flick. I see Katherine Heigl for this — she can’t seem to say no to a picture, can she?

Once again, folks, no one ever gets in trouble if they ask themselves one simple question — Is this a good idea? If you have to ask, it surely ain’t.

The caller didn’t understand my reply, “Because the other guy lived.”

On the whole, the law doesn’t really want to encourage people to settle matters on the street, so there are many restrictions on self-defense:

• It has to be in the moment — if someone punched you yesterday, and you punch back today, that’s not defense, that’s revenge.
• It has to be reasonable — if someone across the street has a knife, you can’t shoot them from a distance.
• It has to be immediate — if someone threatens to kill you over the phone, you can’t go to their house, hide in the bushes, and launch a preemptive strike.
• It has to be only enough force to end the threat — if someone is punching you, you can’t start throwing Molotov cocktails at them.

One of the oldest and most basic restrictions on the right to use self-defense was known as the Duty to Retreat. In short, if someone attacks you and you can safely escape, the law requires you to do so before fighting back. Out on the streets, if you can run, you must do so before resorting to force. However, there is no duty to retreat from your own home or place of business. The Castle Doctrine (as in, “a man’s home is his…“) holds that one’s home is special, and allows homeowners to stand their ground.

A caller yesterday asked a question that forced me to look carefully at a change in the law here in Pennsylvania that greatly expands the Castle Doctrine.  Specifically, the new law officially known as Act 10 of 2011, does two things:

• The Castle Doctrine applies anywhere as long as the person has the right to be there — if someone attacks you in public, you believe force is necessary to prevent immediate serious bodily injury, and the attacker displays a weapon, then you can fight back.
• The new law creates a presumption in favor of reasonable belief under certain circumstances.

The new law has already been used to justify a homicide in Western Pennsylvania.

The press has focused on the expanded right to stand your ground (because it is easier to understand), but what really gets me thinking as a lawyer is the presumption. Presumptions in the law are huge, and in very simple terms, if something is presumed it does not need to be proven. Most people understand the presumption of innocence in criminal cases — the defendant does not need to prove his innocence, the prosecution must prove his guilt.

Presuming that a person has a reasonable belief of immediate serious bodily injury means, essentially, that the prosecution must specifically prove that there was no way anyone could reasonably believe their life was in danger. That is a very high burden.

This is a change that goes a tad too far, in my opinion. The law should encourage people to avoid conflict, not escalate it. Standing your ground in one’s home or business is one thing, but those places are special. If an attack occurs in public, where bystanders are in jeopardy from an errant bullet, society is better off if we make people pursue other options before fighting back.

The cop later tried to cover it up by writing one report saying that he personally observed the two people arguing, but then later altered it to say that a complaint was called in about the argument.

The problem with that story is that nowadays even crappy obsolete cell phones have a detailed call history. As a general rule, a good cover story should require more than an old Jitterbug to debunk. Consider that some free legal advice.

Spend any time practicing law in the Philly area, and you learn a few things — which stores vigorously prosecute shoplifters, and which stores engage in a little hands-on justice in the stock room, for instance. One of the things I’ve heard a few times too many to be overlooked is that police in Delaware County pride themselves on being tough. I hope this helps get that culture of faux masculine toughness under control.

Whatever their reasons for wearing the badge, nearly all of them are good people.

Nearly.

The Delaware County District Attorney’s Office is charging a former Darby Township cop and also a Pennsylvania State Constable — an elected position that ranks among the most ludicrous jobs anyone has to run for — with five counts of rape (and 31 counts of lesser offenses). Kevin Walker stands accused of using his badge to force women into sex.

The allegations are pretty horrendous. According to Philly.com:

In what is perhaps the most severe case, a woman claims that Walker would sit in front of her house and invite her to the police station to “give her a rub down.” When the woman was stopped by Darby Township Police in the summer of 2010 and brought to the station, Walker allegedly pulled her out of a cell and away from surveillance cameras, according to court documents.

He then had the woman, who was pregnant at the time, explain how she would perform oral sex on him before he had her strip naked and digitally probe herself in front of him to prove she had no drugs on her, court documents said.

The woman was never charged with a crime and Walker allegedly let her out of the front door of the police station after the incident.

Disturbing stuff, indeed.

From a defense perspective, there is a lot to worry about here. The case was put together by the Delco Criminal Investigation Division, not the local police. The CID is a division of the DA’s office, and consists entirely of detectives. In other words, people who know how to build a case. They’ve been working this case for months, and only filed the case when it was ready. It doesn’t bode well for Mr. Walker.

If I were his attorney — which I am not — my first piece of advice to him would be the very unoriginal but never wrong “shut your mouth.” No chatting with cellies, girlfriends, best friends, mother, or brother. And under no circumstances should he speak to the press — a move I now call the Sandusky. The only thing that talking does for a defendant is make it easier for the other side.

My second piece of advice? Don’t tell anybody in the jail you’re a cop.