Natty Shafer Law

Utah lawyer for criminal and immigration cases

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The Myth That Long Prison Sentences Deter Crime

Getting “tough on crime” sounds good in the abstract. Nearly every politician, regardless of political party, says it is necessary. It certainly sounds good to the average voter. But what does that actually entail? Prisons and jails in the United States are miserable places to visit, let alone actually spend time incarcerated in them. No one wants to be there. They are over-crowded, lack privacy, devoid of natural light, and the prisoners must do what they are told, all day, every day. Despite media depiction of jails as relaxing places, politicians would be hard pressed to make incarceration any more miserable.

The usual method politicians use to get tough on crime is to lengthen prison sentences. The problem is, the United States has been getting tough on crime for 40 years now with only longer sentences to show for it. Our sentences are longer than other any other industrialized nation. (Our crime rates have been dropping since the early nineties, but that has been happening throughout the industrialized world, including countries that have very short sentences.)

More importantly, the average law-abiding citizen has no idea how long sentences are now. People I talk to are often very surprised to hear how long someone can be incarcerated for various crimes. If people do not know how long sentences actually are, how do they know they want them lengthened?

A federal judge by the name of James Gwin ran an unusual experiment. He had jurors write down how long they believed someone they had just convicted should be incarcerated. He did this for 22 trials. He gave the jurors a description of the defendant’s past criminal convictions and then had each juror write down, anonymously, what they felt the appropriate sentence was. On average, jurors recommended sentences that were 36% as long as the minimum sentences under the Federal Sentencing Guidelines. In other words, completely average people thought the person they had just convicted deserved to spend about 1/3 the amount of time incarcerated as the defendant would get under the most lenient sentence using the federal sentencing guidelines.

The argument in favor of longer sentences stems from the belief that criminals are making a rational calculation. In order for longer sentences to deter crime, a criminal must make a calculation like this: “I would rob that house if the jail sentence is 12 months, but if the jail sentence is 18 months, then forget about it.” It just does not seem that people make these calculations before committing crimes. Despite decades of experience, there is scant evidence that anyone is actually deterred by longer sentences.

If society really wants to deter crime, it needs to convince every potential criminal that they are almost certainly going to be caught. At that point, the punishment is less important because everyone knows they will be deprived of whatever benefit they would have gained through crime.

Take this thought experiment: imagine that the punishment for speeding was $5. “Great! Now I am always going to speed,” you might think to yourself. However, imagine there are enough police on the road that you are 90% sure you will be pulled over if you speed, even a little, even if it is for a minute only. Suddenly the calculation changes. Not only would every speeder have a 90% chance of losing $5, but they would also have to deal with the hassle of being pulled over and then mailing payment to the courthouse. Deterrence is sometimes less about the punishment and more about the certainty of being caught.

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How a Lawyer Would Have Helped Jane Doe

The scales of justice favor those with an attorney.

The scales of justice favor those with an attorney.

While reading about Jane Doe’s foray into the criminal justice system (see Part I and Part II), I hope there were points where it was obvious how a lawyer would have helped. I am going to highlight some of the less obvious ways that a lawyer could have helped Jane. However, before I do that I would like to address a couple common misconceptions that might prevent a reader from appreciating the hypothetical.

The first misconception is that the prosecutor would have dropped the charges once she saw that Jane was not guilty. Maybe a few prosecutors would, but not nearly enough. I have personally witnessed some appalling cases move forward when a defendant acts as their own lawyer (i.e. pro se defendants). For example, I once saw a pro se defendant plead guilty to a DUI when her BAC was .04 on the breathalyzer (well under the legal limit of .08).

The second misconception is that pro se defendants do not perform as badly as I indicated. I have personally witnessed much worse: they make irrelevant arguments and forget to make their best arguments; they throw around legal terms that they do not understand; they get flustered when a judge inevitably rules against them; and they antagonize the judge unnecessarily.

How would a lawyer have helped Jane Doe? First, a lawyer would have saved her time. Many Utah courts will forgo the arraignment if their attorney has notified the court that they are pleading “not guilty.” If if that is not possible, the attorney can let the court clerk know at the arraignment that they will be entering a “not guilty” plea, allowing to defendant to see the judge faster.

Second, an attorney would explain to Jane the purpose of each court date and the likely outcome. She would not arrive at court expecting the prosecutor to just drop the charges. Even when defendants have great arguments for dismissing charges, prosecutors want to investigate and make sure they are not missing crucial information. Once a prosecutor has had a chance to verify the claims, then they might dismiss the case. Even without a dismissal, prosecutors are more likely to offer a reasonable plea agreement when they know you have an attorney.

Finally, everything about the trial would have gone smoother. Although it is conventional wisdom to ask for a jury trial, this hypothetical may have called for a bench trial. There are specific facts a prosecutor must prove beyond a reasonable doubt for someone to be convicted of theft of services. Judges are better able to understand arguments such as Jane lacked the “requisite intent” to steal.

Defense attorneys have experience public speaking. It is common for attorneys to practice their opening statements. Assuming it is a jury trial, more than half of all jurors do not change the opinions they form during opening arguments. That is the time to tell the jury, as plainly as possible, why a defendant is not guilty. Defense attorneys generally do not lose their composure when prosecutors say something negative about their clients.

Cross-examination, done by a talented defense attorney, could have won Jane her case. The police officer could have been used to Jane’s advantage. The officer did not witness Jane at the restaurant, and he was only able to find Jane because she was the person to pay with a credit card. An attorney would have pointed out to the jury that the fact that the server did not see Jane pay also means the server was not watching closely. A lawyer would also point out that there were two other people eating with Jane.

Jane’s friends might have still invoked their rights and chosen not to incriminate themselves, but the lawyer would at least have been prepared for that possibility. The lawyer would have talked to them before the trial and known how likely they would be to testify.

Most importantly, a lawyer would have prepped Jane to testify. The jury would have heard all the important pieces of her side of the story. An occasional objection from the prosecutor would not have flustered Jane’s attorney. Also, the lawyer would know how to enter Jane’s credit card receipt into evidence. There are certain procedures one must follow to enter a document into evidence, and I have never seen a pro se defendant do it correctly.

The bottom line is that a criminal conviction has long-term consequences. It is best to leave criminal defense to someone with experience handling trials.

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Representing Yourself in Criminal Court: Part II, the Trial

When we left off in Part I, Jane Doe was getting ready for a trial after being accused of Theft of Services. She decided to represent herself because she does not think she needs a lawyer; only guilty people hire lawyers and she is sure the jury will see she is innocent.

Jane does not sleep very well the night before the trial. She shows up to court looking tired, she does not think as sharply as normal, and she is feeling the stress.

Jane’s two friends arrive at court that morning, which is fortunate because she is not sure if she properly served them with their subpoenas. The friends, John Jones and Sally Roe, ask Jane where they are supposed to go. Jane is not sure and spends ten minutes talking to the clerk, instead of calming her nerves. Eventually, they are asked to wait outside the courtroom until they are called.

Jane Doe has never been very good at public speaking, but she plans to keep it simple. The judge tells her that she can help select the jury and he explains how. The prosecutor does most of the actual selection. They all look the same to Jane. A few minutes later, the judge swears in the jury.

The Trial
The prosecutor gives a fairly short opening statement, but the prosecutor does make Jane seem dishonest. The judge tells Jane she may give an opening statement. Jane starts to tell her side of the story. Halfway through the opening, Jane tries to show the jury a copy of her credit card receipt showing she paid for her meal. The judge stops her and tells her she cannot introduce evidence at this time. Jane gets flustered and cuts her opening statement short.

The prosecutor starts her case by calling the restaurant server to testify. The server seems friendly, but he does make it sound like Jane personally stole money from him.

Jane then has her chance to cross-examine the server. Jane asks him if he saw her pay. He says he did not. She tries to show him her credit card receipt. The prosecutor objects and after some confusing discussion between the prosecutor and the judge, the judge allows Jane Doe to show the receipt to the server. The server denies having ever seen the receipt before, and Jane does not ask any follow up questions.

After the cross-examination, the jurors are confused about what Jane was trying to prove. All they know is that the server thinks he was not paid, and Jane has something that might be a receipt, but they do not know what is on the receipt.

The prosecutor calls the police officer. Jane does not see anything damaging about the police officer’s testimony. The judge interrupts the officer and asks Jane if she would like to make any objections. Jane cannot think of any. The police officer explains that in his experience it is very common for thieves to come up with a plausible explanation for their behavior. The prosecutor rests her case.

The judge tells Jane that she can call any witnesses if she so chooses. Jane calls friend #1, John Jones, to the stand. He begins to testify that he was at the restaurant with Jane for lunch. At this point, the prosecutor interrupts and asks the judge if the witness has been advised of his right to remain silent. The judge asks the witness a few questions and asks if he understands that he too could be charged with Theft of Services. At this point, John becomes less helpful answering Jane’s questions. By the end of his testimony, he has made it clear that he paid cash for his meal, but he did not know what Jane Doe or Sally Roe had planned.

The prosecutor is mostly happy with John’s testimony, and during her cross-examination she just uses John’s testimony to make absolutely clear that Jane was present at the restaurant and she ate food.

Sally then enters the courtroom. The prosecutor asks the judge to once again make sure that the witness understands that she could be prosecuted for any incriminating statements. Sally is similarly scared by this news. She decides not to answer any questions at all. The judge excuses Sally.

Jane then takes the stand on her own behalf. Jane does make some good points, but unfortunately she buries them in the middle of a rambling story filled with “ums” and “uhs.” By the time she mentions to the jury that she had paid for her portion of the meal, half of them are not listening. She repeatedly tells the jury that she is an honest person and that she would never steal; each time Jane starts to say this, the prosecutor objects. The judge asks her politely to keep to the facts and to avoid giving her opinion. This flusters Jane and she is not sure what she is allowed to say. She forgets to testify that she has a receipt for her share of the meal.

The prosecutor keeps her cross-examination short. She makes it clear to the jury that Jane was at the restaurant. She also gets Jane to admit that the full cost of her meal was not paid when she left.

The prosecutor tells the jury that it is very important that everyone pay for the services they use. It is part of living in a civilized society and Jane needs to be punished. The prosecutor says that she could have also prosecuted Sally and maybe even John, but Jane is here right now. It is the jury’s job to find Jane “guilty” of the charge.

Jane does not give a good closing. She mentions again that she is not a bad person and that she is so sorry that the restaurant was not paid, but it was not her fault.

The jury is completely confused as to why Jane thinks she should be found “not guilty.” The jury deliberates for about 20 minutes before returning with a guilty verdict. The judge asks Jane if she is ready to be sentenced. She says she is. Fortunately, the judge does not impose any jail time, but he does impose a fine and makes Jane go to a class about theft. Jane now has a criminal record which can be researched by anybody.

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Representing Yourself Against a Criminal Charge: Part I, Pretrial

Rimmer: If only I’d hired a smarter lawyer, instead of the brain-dead, pompous, stupid-haired git I ended up with.
Lister: You defended yourself!
Rimmer: Yes, and I don’t need reminding of that, thank you very much.

Red Dwarf

In the United States, you are allowed to represent yourself in a criminal trial, but it is almost always a bad idea. To help illustrate what it might look like when a person tries this in Utah’s courts, I am going to take readers through a hypothetical Utah case. Assume Jane Doe has been accused of Theft of Services under Utah Code 76-6-409. Jane is an intelligent businesswomen, but she has never dealt with the criminal justice system before.

Jane’s Side of the Story
Jane had lunch with two of her friends at a local Utah cafe. Normally, each one of Jane’s friends pays for their own food. Jane needed to return to work earlier than her friends. She went to the cashier and paid for her portion with her credit card and returned the remainder of the bill to her friends. A couple days later, a police officer tracked her down via her credit card address. The officer informed Jane Doe that she is being charged with Theft of Services for not paying the whole bill. After talking with her friends, she determined that friend #1 paid in cash, and friend #2 thought friend #1 paid for both of them. Somehow $17 from the lunch did not get paid, and the restaurant called the police. The police officer contacted the only person in the group the restaurant could identify.

Jane’s First Day in Court
The police officer told Jane Doe that she will have to go to court. Jane shows up for what turns out to be her arraignment. She asked for the morning off of work, but she hopes she can put this scary episode behind her once she explains to the judge what happened. After waiting through a couple hours of miscellaneous court proceedings, the judge finally calls Jane’s case. The judge wants Jane to enter a plea and to set the next court date. Jane has been waiting all morning and has no intention of simply saying “not guilty.” She thinks that if she explains what happened, the judge will simply dismiss the case.

Unfortunately, the judge cannot dismiss the case at this point. Even if the judge believes Jane, it is still the prosecutor’s decision about whether or not to dismiss the charges. The judge tries to find a polite way to tell Jane, “I don’t care.” (Judges want to avoid giving that impression. Everyone accused is entitled to their day in court.) Jane’s judge knows that regardless of what Jane says, he cannot yet dismiss the charges. After interrupting Jane’s story, the judge manages to help Jane to understand that she will have to come to court again.

Pretrial Conference
A month later, Jane once again asks for time off work and comes to court. Surely now the justice system will understand her point-of-view! Maybe. The prosecutor talks to Jane, and the prosecutor does have the power to drop charges. However, most prosecutors have heavy case loads and have to make snap judgments. At best, the prosecutor read the police files that morning and knows what the police officer wrote. At worst, the prosecutor merely looked at the charges. Regardless, most prosecutors generally do not dismiss the charges without something in return.

For our hypothetical, the prosecutor offers to reduce the charge from a Class B misdemeanor to a Class C misdemeanor, and promises to recommend to the judge that Jane serve no jail time. At this point, Jane is completely mystified as to why she should plead to anything. Although it was her friend’s meal, Jane would gladly pay the restaurant $17 to make the charges go away, but the prosecutor refuses to drop the charges. Jane considers accepting the plea to avoid further hassle, but she decides she does not want to have a theft charge on her record. She is confused and angry that no one is listening to her.

Jane waits another hour to speak to the judge. She implores the judge to listen to her story, but the judge still does not have the power to dismiss the charges. The judge tells Jane that she can set her case for a trial and that will be her opportunity to tell her side of the story. Jane says that is what she wants. The judge asks her if she wants a jury trial or a bench trial. Jane does not know which she would prefer. She tentatively asks for a jury trial.

The judge sets a trial date . The judge tells Jane there will be a final pretrial conference one week before the trial. Jane does not know what that means. The judge tells her that it is customary in Utah for both parties to meet about a week before the trial to meet. It is an opportunity to discuss jury instructions and make sure everyone is ready.

The judge gives Jane Doe an outline of how the trial will proceed. He asks Jane if she will want anyone to testify at her trial. Jane says she thinks she wants her two friends to testify. The judge tells Jane that she has the power to subpoena witnesses if she wants. He advises her it is not too late to hire an attorney and then excuses Jane. Jane spends the next 45 minutes talking to the court clerk trying to figure out how to subpoena her friends.

Final Pretrial Conference
Jane once again must take time off work for her court date. She arrives for the final pretrial conference, and the prosecutor tells Jane that she talked to the restaurant manager. The restaurant is very “active” in pursuing criminal charges, according to the prosecutor. The restaurant is adamant about discouraging someone else from trying to “dine-and-dash.” Jane says she paid for her meal and would gladly reimburse the restaurant for her friend’s meal if they will drop the charges. The prosecutor shrugs her shoulders and says that her hands are tied.

The prosecutor asks Jane if she looked over the proposed jury instructions. Jane says she thinks they look fine. They then speak to the judge, who asks if everyone is ready to go forward with the trial. The prosecutor says she is ready. Jane says she is not sure; she has never seen a real trial before. The judge again explains the procedure of how the trial will go, but gives very little in the way of trial advice.

Jane has missed parts of three days from work and is frazzled. She is no closer to winning her case.

Up next in Part II: the Trial.

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Junk Science Continues to Plague Criminal Justice System

The criminal justice system is still suffering from decades of poor forensic evidence. One of those fields, microscopic hair comparison review, has been in the news lately. The FBI has been reviewing cases where their experts gave testimony about supposed hair matches. They found that in over 95 percent of the cases reviewed the FBI’s own forensic examiners overstated the forensic matches.

It is unfortunate that there has not been more of an outcry over this story. It is bad enough that innocent people have been sent to jail. There is no other way to describe this but as a tragedy. We know people have spent years, even decades, in jail for crimes they have not committed. It also means that law enforcement stopped looking for the person who actually committed these crimes. Perpetrators likely remain free, committing more crimes, because the law enforcement agency stopped investigating.

The problem with hair analysis is it is not scientific. It is subjective. When comparing two strands of hair, the identifiable characteristics of each strand are limited. Usually, what can really be determined by looking at a hair under a microscope is its color. That might, for example, narrow the field of suspects if the police think the perpetrator has red hair, but that strand of hair cannot definitely be said to come from any one person (unless there is DNA attached).

For decades FBI analysts were testifying in court that they could identify matches, sometimes going so far as to say they could positively identify them. Local forensic agencies followed the FBI’s lead. Countless people have been wrongly convicted, but the wheels of justice have been slow to reverse the wrongfully convicted.

By Nevit Dilmen - Licensed under CC-BY-SA-3.0 via Wikimedia Commons.

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How Long Can a Traffic Stop Last? It Has to Be Reasonable

Today, the Supreme Court clarified how long police officers may keep someone they have pulled over for a traffic stop. Thankfully, the answer is only for a short time. “Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed,” the Court said. This means that an officer may not require people to stay and chit-chat or wait for a drug-sniffing dog to arrive once the officer has issued a ticket or a warning.

Some courts had been allowing police officers to keep people a few minutes extra as long as the intrusion was minimal (“de minimis“). This is good news for anyone who will ever be pulled over for speeding or any other traffic infraction. Police officers will not be allowed to waste more of your time as they go on fishing expeditions for illegal conduct.

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Advance Parole under DACA

The Deferred Action for Childhood Arrivals (DACA) program has vastly improved the lives of thousands of immigrants. The primary benefit is that it allows people to have an employment authorization card and work legally. However, it only grants a few other immigration benefits. Travelling can be an issue, at least for anyone who would like to leave the country. It is fine to travel within the United States, but leaving the country requires a plan. DACA holders must apply for “Advance Parole” from USCIS, and then wait for permission before they leave the country. Any DACA holder who travels outside the United States without Advance Parole, or who has already done so since August 15, 2010, automatically loses their deferred action.

USCIS does not grant Advance Parole to all DACA holders. A mere desire to travel will likely be rejected. The applicant must qualify one of the three specific reasons USCIS grants Advance Parole, which are:

    Humanitarian Purposes – travel to obtain medical treatment, attend funeral services for a family member, or visit an ailing relative
    Educational Purposes – semester-abroad programs and academic research
    Employment Purposes – overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

To apply for Advance Parole, a DACA holder should collect and submit the following: 1) a completed I-131 form Travel Document from USCIS; 2) a photocopy of their photo identification, such as a passport or driver’s license 3) a copy of their I-797 form showing approval for DACA; 4) 2 color, passport-style photos of the applicant; 5) documents that support the claim that they qualify for one of the above reasons for Advance Parole, such as medical documents proving the existence of an ailing relative; 6) a check or money order for the current application fee for an I-131. The applicant then mails the necessary documents to USCIS for approval.

A word of warning for anyone who have been ordered to be deported or removed: speak with an immigration attorney before applying for Advance Parole since there are complication for those types of cases. It is possible to be approved for Advance Parole, but still not be eligible for re-entry to the United States.

Emergency Travel
If you are experiencing an extremely urgent situation or otherwise need a shorter processing time, USCIS will consider expediting a request for Advance Parole. Emergency travel and expedited requests are reviewed on a case-by-case basis, and are granted at the discretion of USCIS. Applicants must demonstrate that the meet the criteria of USCIS. Anyone in such a situation should contact a lawyer about whether or not they qualify and to make maximize the chances the request is granted in a timely manner.

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Utah and the Firing Squad

On Tuesday, the Utah Legislature passed a bill that would permit the state to use a firing squad for an execution if the state cannot procure the drugs that are currently used for a lethal injection. The bill needs Governor Herbert’s signature before it becomes a law.

This piece of news was picked up by national news outlets and is giving Utah a black-eye. While I am against the death penalty, I do not see using a firing squad as worse or more barbaric than lethal injection. I could not state it more eloquently than Judge Alex Kozinski wrote it in his dissent for Wood v. Ryan (internal citations omitted):

Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution…. Firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

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Utah’s Controversial Ag-Gag Law

Utah has a law making it illegal to “interfere with agricultural operations,” or, as it is colloquially known, the “ag-gag” law. Utah Code 76-6-112 makes it illegal to film or record an image of a meat processing facility, or to enter a facility under false pretenses. The law has been controversial since the Utah legislature passed in in 2012. At least one person has argued that the law is a violation of the First Amendment. However, only a few people have ever been charged so a judge has yet to rule on the constitutionality of the law.

The law is unique in that it protects a specific industry. Utah does not have similar protections for other workplaces. Regardless of whether or not it is good policy, the law is most likely to affect people who intend to expose the practices of meat production. Someone who breaks the law could potentially research the laws before hand.

Anyone considering leaving a recording device within an agriculture operation should know that conviction is punished as a class A misdemeanor. Class A misdemeanors are punishable by up to one year in jail with a maximum fine of $2,500. That provision of the law does not extend to public property. If a person were somehow able to film the facility from a neutral vantage point, this law would not be implicated.

Alternatively, a person could be convicted of a class B misdemeanor under three different provisions of the law. First, a person could be convicted for entering an agricultural facility under false pretenses. “False pretenses” could be any sort of lie designed to gain access to a facility. Second, a person could be convicted for obtaining a job and filming the facility. Finally, a person could be convicted for committing a criminal trespass and then recording the facility. Class B misdemeanors are punishable by up to six months in jail with a maximum fine of $1,000.

Anyone accused of interfering with an agricultural operation should contact a lawyer immediately. After all, there is little point in engaging in some civil disobedience and then unwittingly neglecting the best legal arguments. As mentioned, there may be constitutional and other legal arguments in favor of dismissal.