Sorcery and the Law

You think it’s just memorizing a bunch of spells and throwing them at him, like you’re in class or something? The whole time you’re sure you know there’s nothing between you and dying except your own—your brain brain or guts or whatever…

—Harry Potter, chapter 15, Harry Potter and the Order of the Phoenix

Most people have a decidedly magical view of lawyering. Speak the right Latin phrase and—presto!—the judge rules in your favor. A police officer fails to give you a Miranda warning and—abracadabra!—the charges are dismissed.

The law is magic.

Lawyers are wizards.

People ask me for ways to handle their own case. For myriad reasons, this is a bad idea, but the biggest reason is that most people have no idea what to expect in court. They do not even know the reason for their next court date, let alone what they are supposed to do once they get there. They say, “if you just told me what to do, I’ll save myself a lot of money and you can save yourself the the hassle.” If only it were so simple. This is the simplistic view that Harry Potter says people have about magical duels. There is more to lawyering than just muttering a Latin incantation to a judge, and nothing is simple once you get to court.

In truth, it would be easy to give a naive client a plan A for when they get to court, but they will also need a plan B, C, and D. Whenever the client is throwing “incantations” about the law, the other side is throwing them right back at you. Anyone unprepared will lose a case that they could have won. Nearly any case can be lost through bad lawyering. There are many rules of the courtroom that are not forgiving to the uniformed. For example, if someone fails to object in a timely manner, the law considers the objection waived. Miss a crucial objection and it will sink the case and its appeal, too. Knowing how and when to make objections is something that takes years of study and practice.

People often think that because they are innocent they do not need a lawyer. A proper resolution to a criminal case can take months or even years. This is no less true for those who have a good case for defense and are factually not guilty of the crime. There is no way to quickly teach someone how to fight a case.

People think they can show up to the arraignment, and (Perry Mason style) the judge will see how wronged they have been, and the charges will be magically dismissed. Even if you have a good issue for suppression, you have to know when and how to raise the issue. In my experience, laypeople are bad at even identifying issues for suppression and do not know what will happen even if they win. Sometimes, a prosecutor can proceed with charges without the piece of suppressed evidence.

For so many reasons, it is best to hire a lawyer. Let them do their magic and fight the battle for you.

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Posted by on April 17, 2014 in Criminal Law


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Bootleg Video Renews Debate about Cameras in Supreme Court

On ongoing debate among Supreme Court observers concerns whether or not the Supreme Court should allow cameras into the Court. “Debate” might not be the right word since no one seems to be making a strong case for the opposing argument. The consensus among observers is that the Court should allow cameras, and the Court seems not to care. It just quietly continues to forbid cameras in the courtroom.

Last month a youtube video emerged (shown below) which appears the be the first video of the Court in session. This has rekindled the old argument. Professor Erwin Chemerinsky is the latest to take up the mantle. His argument essentially is that open government proceedings are a necessary part of a functioning democracy.

I cannot disagree with Chemerinsky, but this will likely decrease the public’s estimation of the Court. For the most part, the way the Court operates is a mystery. Most decisions are ignored, but occasionally there is an important case that catches the public interest. At those times people seem to care most about the outcome of the case and not necessarily about the reasons the Court made its decision. Idealistic notions of the Court will likely end once everyone sees the behavior of individual justice. It is only a matter of time until a justice is lampooned on late night television for an impolitic jab from oral arguments.

That is not to say that I am necessarily against cameras in the courtroom. Perhaps the public could use a little healthy distrust of the Supreme Court.


Posted by on March 19, 2014 in Miscellaneous Legal



Is Prosecutorial Misconduct Becoming Common?

That certainly seems to be the opinion of a growing number of judges, and a few opinion writers have have followed their lead and registered complaint. The most prominent judicial critic thus far has been Chief Judge Kozinski of the Ninth Circuit Court. Writing a scathing dissent of the Court’s refusal to rehear United States v. Olsen last December, Kozinski characterized the panel opinion as a free pass for prosecutors to shirk their duties. He wrote, “the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway.”

Prosecutors have a constitutional duty in the United States to turn over evidence that could be favorable for the defendant. To fail to do so would be a due process violation and should be grounds for a new trial and sanctions against the prosecutor. You would not know it, however, by examining appellate court decisions. All too often, appellate judges shrug theirs shoulders and decide to do nothing.

It has been just over fifty years since the Supreme Court explicitly stated a prosecutor has a duty to turn over evidence to the defendant. In Brady v. Maryland the Court held, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” As United States v. Olsen shows, however, appellate courts find that a lot of evidence is not “material.” Taping unparalleled powers of mind-reading, appellate judges regularly express “confidence” that a jury would have convicted even if they had heard the evidence favorable to the defendant. Kozinski thinks this has lead to rampant unethical prosecutorial behavior. “Some prosecutors don’t care about Brady because courts don’t make them care,” he wrote in his dissent.

The bottom line is that there are plenty of incentives for prosecutors to shirk their duties. Formal sanctions from state bar associations are rare. Appellate courts are reluctant to overturn convictions. In the rare instances where a conviction is overturned, a prosecutor is rarely personally punished. It is very difficult to bring civil suits against prosecutors for constitutional violations. They enjoy qualified immunity which means—without getting too technical—there is a threshold a person has to show before they are even allowed to get their day in court and sue for damages. And if someone happens to prevail in spite of those difficulties, taxpayers pay the settlement.

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Posted by on March 14, 2014 in Criminal Law


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Smaller is Better!

According to the Utah Bar Association, the number one official complaint they receive about lawyers is that a lawyer did not return the client’s phone calls or emails. A large percentage of attorney-client problems stem from poor communication. That has not a problem for me. I do not have a secretary; I answer all my calls and write my emails. If I miss a call, I call the person back within a matter of hours.

Regardless of the type of case, people hire a lawyer for a reason. Usually, that is because they do not understand what exactly to expect or how to proceed. When people hire a lawyer that does not communicate, the legal job may be done sufficiently, but that does not mean the client’s mind will be at ease during the process. How much money is it worth to the average person to avoid the dread of the unknown? To avoid worry about what, exactly, their lawyer is doing for them?

When you hire a lawyer at a small firm like Natty Shafer Law, you do not have to worry about an associate lawyer (or worse, a paralegal) doing all the work and then the lawyer signing off on everything. I write my own briefs, fill out my own paperwork, and schedule my own appointments. Phone calls and emails are always returned, usually the same day. I talk to my clients about what to expect and what specifically I am doing for them. Good communication and client peace of mind are what makes the difference at Natty Shafer Law.

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Posted by on March 11, 2014 in About Natty



And Down the Slippery Slope We Go

The Utah legislature is considering a bill that requires police departments to collect a DNA sample from every person arrested for a felony. This is the logical extension of last year’s Supreme Court decision Maryland v. King, which I discussed at the time. The Court limited its decision to the collection of DNA for “serious offenses,” but it did not say what constitutes a serious offense. The Maryland law that the Court condoned limited DNA collection to those arrested for violent crimes (specifically enumerated under Maryland law), for an attempted violent crimes, or for burglary. The Utah bill (HB212) expands DNA collection to everyone arrested for any felony.

The Supreme Court justices are not known for being imprecise with language. If the Court had intended to say it was acceptable to collect the DNA of everyone accused of felony, it could have done so. Instead it chose the undefined phrase “serious offenses.” It is a phrase vague enough to not raise initial concern—I do not remember any non-lawyers expressing concern about the decision—but allows the Court to later expand DNA collection for all arrestees. This should worry anyone concerned about civil liberties. Utah already collects the DNA of everyone convicted of felonies. The only people a change in the law would negatively affect are people who are arrested but later acquitted. This is another way the criminal justice system is eroding civil liberties of everyone, whether or not they are guilty of anything.


Posted by on February 12, 2014 in Criminal Law


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Just Say ‘No’ to the Police

A new 10th Circuit court case came out this morning that highlights why everyone should just refuse to give the police officers consent for just about anything. The defendant, Michael Harmon, had multiple opportunities to tell the officer “no” and missed them all.

After speaking with the police officer outside his car, the defendant was issued a written warning for failing to maintain a lane and then he was told he was free to go. As Harmon was walking back to his car, the officer called out to him and asked him if he would mind asking a few more questions. As far as the law is concerned, at this point, everything Harmon did and said to the officer was voluntary. If he had just answered that he had to get going, the officer would have had to let him go. Obviously, Harmon did not do that. The officer then asked if he could search the car, and once again, Harmon missed an opportunity to just say, “no.”

Imagine for a moment that Harmon was innocent and had nothing to hide. There still would have been no benefit to continuing to talk to the officer. It could only delay him from wherever he was headed. Yet there he was, answering questions and letting the officer search his car for evidence.

Personally, I would rather be anywhere else besides watching passively as an officer rifles through my car. He would not find anything illegal, but it would be a complete waste of my time (and potentially embarrassing) as he snoops around my personal belongings. Everyone has the right to tell a police officer they need to leave, and everyone should do so. Nothing good will come from letting an officer look around.

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Posted by on January 27, 2014 in Criminal Law


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Utah’s Same-sex Marriages Eligible for Immigration Benefits

Last Friday, the Department of Justice released a video (embedded below) that states explicitly the federal government will treat Utah’s same-sex marriages as “lawful and considered eligible for all federal benefits.” Currently, same-sex marriage licenses are not being issued in Utah, but couples that are already married are eligible for immigration benefits. Among those benefits are a higher priority for the receipt of green cards (i.e. permanent resident cards) and a shorter wait time to become a U.S. citizen.

For couples who can no longer become married in Utah but would like to be, it is possible to be married in other states. New Mexico and California are the closest states that currently perform same-sex marriages. Although Utah will not recognize those marriages either, the federal government will. The federal government recognizes marriages that were legal at the time the were performed, regardless of where the couples move or travel afterward.

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Posted by on January 13, 2014 in Immigration Law


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Utah Considering Lowering Legal Alcohol Limit

The Utah legislature is considering a bill that would lower the legal blood alcohol content (BAC) to .05, KUTV’s Rod Decker is reporting. It was inevitable that Utah would be among the first states to consider the change once the National Transportation Safety Board (NTSB) announced last May it was recommending a .05 BAC legal limit. Utah legislators are always quick to act whenever it allows them to appear more moral than their peers. With NTSB’s endorsement, Utah may not pass the law this legislative session, but you can bet that in the coming years it will happen.

Even though the change may be inevitable, that does not mean it is good policy. To borrow a term from economics, this is not the “lowest hanging fruit.” Utah consistently ranks among the bottom states in per capita DUI fatalities. To promote driving safety, Utah would have better results if it attacked other unsafe driving practices first: speeding, drowsy driving, or cell phone use. Every time a police officers pulls over a motorist, their attention is diverted away from policing anyone else. If officers start using resources to arrest someone with a BAC between .05 and .08 (the current legal limit), they may be missing out on a more serious offender. We have likely reached the point of diminishing returns where each incremental increase in DUI laws no longer yields a significant improvement in driver safety.

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Posted by on January 10, 2014 in Criminal Law


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Handling the Traffic Stop

At one time or another, nearly everyone will have a police officer pull their car over. While it is never going to be a great experience, there are steps you can take to prevent it from becoming a disastrous experience.

The most important step is that you remain cordial and polite to the officer. Address them as “officer” or “sir/ma’am.” The best case scenario for every traffic stop is that the officer lets you go with a warning. Politeness never hurts when a police officer is deciding whether or not to ticket you, and a police officer can nearly always find more citations to add. Do not give an officer reason to do so.

Next, to the extent possible, you want to decline to answer any questions. Yes, this can be done in a polite manner. You are required to give your driver’s license and proof of insurance when you are pulled over, but you are not required to answer questions. Almost immediately an officer will start asking questions, such as, “Do you know why I pulled you over?” Or, “Where are you coming from? Where are you heading?” Regardless of how you answer, the police officer is going to enter it into the computer and it will appear in their police report. If you have any intention of fighting the underlying charge, you do not want the officer to remember your answers. It will help the officer to distinguish you from the many other people they have pulled over. Months can pass between a citation and the trial, and it is quite possible that an officer will not remember anything about you. If an officer is honest with the judge, the case may have to be dismissed due to lack of evidence. Also, you do not want to help the prosecutor with your answers. The answers you give will help the prosecutor tell a narrative about how the traffic incident occurred. Without that narrative, a prosecutor has to tell a very boring story that begins and ends with the traffic citation. Neither judges nor juries give such stories much weight.

It should go without saying that you never impugn an officer’s motives. Most officers are just doing their jobs. Even if they are wrongly accusing you, chances are that it was an honest mistake.

Finally, you do not want to do anything to add further charges. Remain in your seatbelt, and turn off the car engine while you wait for the officer to approach. Do not consent to have the officer search the car; you are not required to consent and nothing an officer finds is going to help you. For the same reason, do not submit to field sobriety tests. You do, however, have to submit to a chemical test if an officer arrests you for a DUI. You will know you are under arrest after the officer tells you. Refusing to take a chemical test (a breathalyzer, urine analysis, or blood test) carries harsher penalties than the underlying DUI.

Following these simple steps may not prevent you from receiving a traffic ticket—the severity of the alleged offense will be taken into account—but they will improve your chances at prevailing during a trial and reduce the likelihood of additional charges being added.

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Posted by on January 3, 2014 in Criminal Law



Meeting People on Their Worst Days

Compassion is a necessary part of being a criminal defense lawyer. We meet people on some of the worst days of their lives. Regardless of whether or not they are guilty, being charged criminally is a scary situation. My first job when meeting a new client is to reassure them that all hope is not lost, and they are taking the right steps to secure the best outcome possible for their case.

The next step is to dispel misconceptions. Criminal law is unusual in that unlike other legal fields, most people think they have a pretty good handle on the legal process. TV shows generally cut out the tedium of court appearances, filing motions, or waiting for the next court date. TV shows also tend to focus on the most serious crimes, which are a small percentage of all criminal cases prosecuted. I see it as my job to explain the law to my clients and explain possible outcomes to them with compassion and understanding.

During that conversation about the law, I let my clients explain to me about their personal lives. There is no greater expert on what clients want than the clients themselves. People have different expectations and desires when they hire an attorney. Some clients want to see a case concluded as soon as possible. It is my job to explain the possible drawbacks and balance their desires against the need to have a favorable outcome. Other clients want to fight every step of the way. Because I enjoy going to trial, that is a desire I am willing to accommodate. All people charged with a crime should make sure they hire a lawyer willing to listen and willing to walk them through the legal process. A good lawyer has the ability to make the worst day of someone’s life just a little bit better.

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Posted by on December 26, 2013 in About Natty, Criminal Law




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