John Samore
Blog: Lawyer’s Insight on Legal Matters: - Thoughts about the law - "Lawyer's Insight' is a periodic blog by Mr. Samore on current legal issues that informs readers how current, legal events influence Americans' lives.  If you would like to ask Mr. Samore to address a particular concern which you may have, simply send an email to the address at left with subject "Questions for Lawyer's Insight." Click on the links below to quickly reach a particular topic, or just scroll down to read what is of interest.  Other sources of information from Mr. Samore are on the Common Questions and About Us pages of this website.
If you don’t see a link to a topic of interest, check the other Lawyer’s Insight pages.

Thoughts about the law

Why Small Crimes are Good for Big Business Reel to Real: Lawyer Movies That Could Haunt or Help You

WHY SMALL CRIMES ARE GOOD FOR BIG BUSINESS

Article images reprinted with permission. The articles attached to these comments is written by a dedicated journalist, who is highly-respected because he so thoroughly researches all his work before it is published.  Crime can be a serious problem but, in this country over the last 35 years, the far worse problem is actually businesses that owe their existence to locking up small-time offenders for long prison sentences.  Let me give you a brief overview. In the mid-1980's, laws were passed for the first time that permitted private corporations to operate prisons in which persons convicted of federal or state crimes could serve their sentence.  In the same year, with the support of the same Senators (who received their financial contributions from the corporations), Congress passed the sentencing guidelines that greatly restricted the discretion of judges in making sentencing decisions.  The reason Congresspeople gave for establishing these guidelines was to be "tough on crime" and make sure people committing similar crimes received similar sentences, but that was not the real reason then, and it still is not the real reason now. These guidelines set prison sentences for non-violent crimes absurdly high in term of incarceration, often with what is called "mandatory minimums."  People who became addicted to illegal drugs could not maintain regular jobs, so they would sell or trade illegal drugs to other addicts on behalf of their supplier.  This approach virtually guarantees that the low-level sellers (called "low-hanging fruit") got arrested far more than any really important supplier.  These low-level addicts need treatment far more than incarceration.  Politicians and too many in law enforcement could care less.  (Unfortunately, judges become like any other politician when it comes to getting elected or selected.) No one gets elected because they say they want to reduce prison sentences to give non-violent people a chance to get their lives together.  They get attention (and elected) by telling hopeful voters that they will be "tough on crime."  Now, what does that glib phrase really mean? To simple-minded voters, it can only mean longer and longer prison sentences for people (usually poor) who are convicted.  The rest of the Western democracies (Canada, Europe, Scandinavia, most of South America, New Zealand, Australia, Japan, etc.) have far lower rates of incarcerating people who commit crimes.  But not us Americans;  we think that we must slam people away for years just to get them out of our sight, and then delude ourselves into believing the problem will diminish.  A little over ten years ago, Peru decided to try something else, quit locking up drug addicts for minor crimes and committed the their country to funding treatment instead of prison.  Within this amazingly short period of time, they have reduced addiction rates over ninety percent (!) and find treatment costs their country far less than imprisoning people. That won't work in good old USA.  Why?  Because we have hugely-profitable private prison corporations that lock people up to feed profit to their shareholders, and these corporations have far more money to influence legislators with their contributions than those of that stand up for the poor, weak, and convicted people. When you read Jeff Proctor's first article and second article, you will see how outrageous the situation has become.  Our office is representing two of the more than 100 people who were ensnared is this outrageous operation in the Albuquerque area last year.  The operation was guided by DEA (and others) that wants to convince people that they are doing something to make society better but they really are not.  Most of the agents who came to town to set up these powerless addicts had done the same kind of thing in Chicago and two other cites, where they destroy so many lives that were already struggling to escape addiction. Many Americans are considering whether our drug penalties are too harsh and whether there may be a better way.  DEA agents with whom I have had this discussion and asked, "How can you do this to these people, running them into prison for such small drug amounts?'  They respond, "Change the laws, and we will change the way we act." Maybe they are right, maybe it is that simple.  With an Attorney General like Jeff Sessions, who has told his Department of Justice lawyers to be even more severe on small-time drug sales, the likelihood of change for the better is increasingly slim.  As a result, we will all be less secure, not more so.  Together, we need to ponder how we can change the laws to be more sensible and humane.

Reel to Real: Lawyer Movies That Could Haunt or Help You

Reprinted from Spring 2015 NMCDLA Newsletter John Samore, Samore Law, Albuquerque Legal proceedings have long been the source of dramatic tension in film, television, and theater.  These art forms profoundly shape public perceptions of our profession and our clients.  In turn, they are carried by jurors into deliberation, and even affect the legislators who determine public financing of indigent defense. It behooves us to be aware of popular cultural influences in our efforts to protect the rights and salvage the lives of our clients.  Reel to Real will examine some "lawyer movies" that have influenced impressions of defense attorneys and the justice system at work. With references to a famous scene or character, images that have become bigger than life through popular culture, we can gain helpful insight into, and persuasion with, jury panels and official decision-makers.  Movies are also a vivid way to illustrate, in mentoring younger colleagues. "Better Ask Saul" is a prime, local example. The new hit AMC series has already received rave reviews and may be destined for a long run with wide viewership.  Set in Albuquerque, the star is a hustler-attorney and, as we laugh or shake our heads at his shenanigans, we also cannot help but wince.  When we represent our client, will we be seen as cut from the Jimmy McGill cloth?  How do we actually see ourselves, individually and as a group? Measure the damage when the long-running series "Law and Order" starts every show by telling its loyal audience that "the criminal justice system is made up of three" elements:  the police, the prosecutors, and the victims.  Could any other element of justice possibly be missing here?  How does such nonsense increase our challenges?  (As a wiser colleague than I once said, "Most jurors don't even realize we are bound by the same Code of Ethics as prosecutors.")  Ignore these realities at your peril -- and at your client's peril. Do you see yourself an Atticus Finch ("To Kill a Mockingbird"), ethical and honorable, even in defeat?   Better check that classic 1962 award-winning film more closely, because Atticus presents (in the climactic trial) one of the more pathetic defenses ever found in fact or fiction (those facial injuries are as likely to have occurred from a backhand blow) and exposes his own coward's morality.  When the villain who spit in his face (misdemeanor) is stabbed to death by Boo Radley, Finch quickly accedes to the convenient disposition suggested by the equally weak Sheriff, "Bob Uhl fell on his knife -- let the dead bury the dead."  Is this the depth to which we aspire?   Maybe you, like Tom Cruise's Lt. Kaffee, think that if he just keeps shouting at the imperturbable, esteemed officer, "I want the truth!" (in lieu of genuine cross-examination), his seasoned witness will suddenly fold completely, give up his career, and admit (paraphrasing here), "Yeah, I guess you got me; I been lyin."  Well, that's all he did in the execrable "For a Few Good Men," but it ain't gonna happen in any of our real lives.  (Aaron Sorkin, what were you smoking when you wrote this crap?) Maybe a better model is Joe Pesci's streetwise "My Cousin Vinnie," who, for all his shady qualifications and inexperience, puts together a substantive defense on the merits that disproves the prosecution's murder case and carries the day for two innocent men.  In the twenty-two years since that surprising gem, few movies have captured what we are supposed to do in a courtroom:  follow the rulings (whatever they may be), maintain focus, and find the ethical response.  In an entertaining way, it also portrays a misleading admission, how discovery works, judicial discretion, and incisive cross-examination.  Might this movie be a good frame of reference for your panel? Remember that the "old movie channel" TCM already has one-third of its audience under thirty-five years of age.  Few of our jurors will be of the caliber found in "Twelve Angry Men."  While over fifty years old, this famous TV-photoplay-then-movie (better-yet, the more recent, Russian-made "Twelve") is still popular with local playhouses and has been seen by many prospective panelists.  Use it to educate.   From the perspective of jury dynamics, how do we prevail on men and women who do not know each other or the accused to really care - about the facts, about their duty, about justice?  Why does the little guy or gal so often win in fiction to the adulation of the audience in the movie theater, but sitting in the jury box their cheers change to jeers - they cannot wait to lock another one away for "Da Guvmint?"  Can becoming conversant with movies help us reach them before it is too late?     Trials usually aren't that exciting. Many of our panelists grew up thinking Paul Newman could still win that medical malpractice case ("The Verdict") even after the judge threw out his only expert witness.  (Paul's good looks must have won over that jury, although we are never told what the appellate court inevitably did with that judgment.)   Many also expect lawyers to continually scream and interrupt each other as they do in "Witness for the Prosecution," "Judgment at Nuremberg," "For a Few Good Men," and so many others of more recent vintage.  How do we prepare jurors for the possibility - the inevitability, even - of being bored, while fulfilling their civic duty to listen to the evidence?  Better, how do we hone our examinations and arguments so they are compelling and effective?   Popular film will not be the sine qua non of effective jury selection, but it is one of the topics that usually makes panel members more comfortable, thus helping you establish rapport and elicit more candid answers.  (It is especially helpful if you have a judge who permits rare supplemental juror questionnaires or individual voir dire.)  Remind jurors that the issues before them won't be decided in less than two hours - a real trial has no trailer, no review, no plot summaries.  They are going to have the responsibility to decide who is the hero, or if there even are heroes and villains. Begin in your voir dire to weave your client and his accusers into a memorable construct that may have helpful artistic references.  It can be as simple as asking for hands as to who saw a movie which has poignant similarities.  Where will their initial sympathies lie?  Are you the big-city boy before a small-town jury (or vice versa)?   What movie cops became so zealous (or corrupt) that they tried to convict the innocent ("Les Miserables," et al.), and what other cops have been honorable enough to admit their mistake?   What expert just forgot an important part of the puzzle, which led to a mistaken opinion (and an acquittal in "My Cousin Vinnie")?  What prosecutor hid the evidence, and which one did the right thing? Trial drama has long been the wellspring of emotion and corruption, deception and redemption, triumph and tragedy.  We can and must be aware of the vivid images from popular culture that color jurors' thinking before they walk into the courtroom, and be able to incorporate those images - translate them into real life - for the betterment of our career and the fate of our clients.   Next time, we shall look at law-related documentaries and how they can help us be better lawyers.
Samore Law • 505-244-0450  300 Central Ave SW, Albuquerque, 87102 Practicing in Albuquerque and across the state of New Mexico
Copyright 2009-2017, John F. M. Samore Disclaimer  •  Privacy Policy Information on this website is not legal advice and does not create an attorney-client relationship. You should always consult an attorney for individual advice pertaining to your current or past situation.
Blog: Lawyer’s Insight on Legal Matters: - Thoughts about the law - "Lawyer's Insight' is a periodic blog by Mr. Samore on current legal issues that informs readers how current, legal events influence Americans' lives.  If you would like to ask Mr. Samore to address a particular concern which you may have, simply send an email to the address at left with subject "Questions for Lawyer's Insight." Click on the links below to quickly reach a particular topic, or just scroll down to read what is of interest.  Other sources of information from Mr. Samore are on the Common Questions and About Us pages of this website.
Samore Law 505-244-0450  300 Central Ave SW Albuquerque, 87102 Practicing in Albuquerque and across the state of New Mexico
Copyright 2009-2017, John F. M. Samore Disclaimer  •  Privacy Policy Information on this website is not legal advice and does not create an attorney- client relationship. You should always consult an attorney for individual advice pertaining to your current or past situation.
If you don’t see a link to a topic of interest, check the other Lawyer’s Insight pages.

Thoughts about the law

Why Small Crimes are Good for Big Business Reel to Real: Lawyer Movies That Could Haunt or Help You

WHY SMALL CRIMES ARE GOOD FOR BIG BUSINESS

Article images reprinted with permission. The articles attached to these comments is written by a dedicated journalist, who is highly-respected because he so thoroughly researches all his work before it is published.  Crime can be a serious problem but, in this country over the last 35 years, the far worse problem is actually businesses that owe their existence to locking up small-time offenders for long prison sentences.  Let me give you a brief overview. In the mid-1980's, laws were passed for the first time that permitted private corporations to operate prisons in which persons convicted of federal or state crimes could serve their sentence.  In the same year, with the support of the same Senators (who received their financial contributions from the corporations), Congress passed the sentencing guidelines that greatly restricted the discretion of judges in making sentencing decisions.  The reason Congresspeople gave for establishing these guidelines was to be "tough on crime" and make sure people committing similar crimes received similar sentences, but that was not the real reason then, and it still is not the real reason now. These guidelines set prison sentences for non- violent crimes absurdly high in term of incarceration, often with what is called "mandatory minimums."  People who became addicted to illegal drugs could not maintain regular jobs, so they would sell or trade illegal drugs to other addicts on behalf of their supplier.  This approach virtually guarantees that the low-level sellers (called "low- hanging fruit") got arrested far more than any really important supplier.  These low-level addicts need treatment far more than incarceration.  Politicians and too many in law enforcement could care less.  (Unfortunately, judges become like any other politician when it comes to getting elected or selected.) No one gets elected because they say they want to reduce prison sentences to give non-violent people a chance to get their lives together.  They get attention (and elected) by telling hopeful voters that they will be "tough on crime."  Now, what does that glib phrase really mean? To simple-minded voters, it can only mean longer and longer prison sentences for people (usually poor) who are convicted.  The rest of the Western democracies (Canada, Europe, Scandinavia, most of South America, New Zealand, Australia, Japan, etc.) have far lower rates of incarcerating people who commit crimes.  But not us Americans;  we think that we must slam people away for years just to get them out of our sight, and then delude ourselves into believing the problem will diminish.  A little over ten years ago, Peru decided to try something else, quit locking up drug addicts for minor crimes and committed the their country to funding treatment instead of prison.  Within this amazingly short period of time, they have reduced addiction rates over ninety percent (!) and find treatment costs their country far less than imprisoning people. That won't work in good old USA.  Why?  Because we have hugely-profitable private prison corporations that lock people up to feed profit to their shareholders, and these corporations have far more money to influence legislators with their contributions than those of that stand up for the poor, weak, and convicted people. When you read Jeff Proctor's first article and second article, you will see how outrageous the situation has become.  Our office is representing two of the more than 100 people who were ensnared is this outrageous operation in the Albuquerque area last year.  The operation was guided by DEA (and others) that wants to convince people that they are doing something to make society better but they really are not.  Most of the agents who came to town to set up these powerless addicts had done the same kind of thing in Chicago and two other cites, where they destroy so many lives that were already struggling to escape addiction. Many Americans are considering whether our drug penalties are too harsh and whether there may be a better way.  DEA agents with whom I have had this discussion and asked, "How can you do this to these people, running them into prison for such small drug amounts?'  They respond, "Change the laws, and we will change the way we act." Maybe they are right, maybe it is that simple.  With an Attorney General like Jeff Sessions, who has told his Department of Justice lawyers to be even more severe on small-time drug sales, the likelihood of change for the better is increasingly slim.  As a result, we will all be less secure, not more so.  Together, we need to ponder how we can change the laws to be more sensible and humane.

Reel to Real: Lawyer Movies That Could Haunt or Help You

Reprinted from Spring 2015 NMCDLA Newsletter John Samore, Samore Law, Albuquerque Legal proceedings have long been the source of dramatic tension in film, television, and theater.  These art forms profoundly shape public perceptions of our profession and our clients.  In turn, they are carried by jurors into deliberation, and even affect the legislators who determine public financing of indigent defense. It behooves us to be aware of popular cultural influences in our efforts to protect the rights and salvage the lives of our clients.  Reel to Real will examine some "lawyer movies" that have influenced impressions of defense attorneys and the justice system at work. With references to a famous scene or character, images that have become bigger than life through popular culture, we can gain helpful insight into, and persuasion with, jury panels and official decision-makers.  Movies are also a vivid way to illustrate, in mentoring younger colleagues. "Better Ask Saul" is a prime, local example. The new hit AMC series has already received rave reviews and may be destined for a long run with wide viewership.  Set in Albuquerque, the star is a hustler-attorney and, as we laugh or shake our heads at his shenanigans, we also cannot help but wince.  When we represent our client, will we be seen as cut from the Jimmy McGill cloth?  How do we actually see ourselves, individually and as a group? Measure the damage when the long-running series "Law and Order" starts every show by telling its loyal audience that "the criminal justice system is made up of three" elements:  the police, the prosecutors, and the victims.  Could any other element of justice possibly be missing here?  How does such nonsense increase our challenges?  (As a wiser colleague than I once said, "Most jurors don't even realize we are bound by the same Code of Ethics as prosecutors.")  Ignore these realities at your peril -- and at your client's peril. Do you see yourself an Atticus Finch ("To Kill a Mockingbird"), ethical and honorable, even in defeat?   Better check that classic 1962 award- winning film more closely, because Atticus presents (in the climactic trial) one of the more pathetic defenses ever found in fact or fiction (those facial injuries are as likely to have occurred from a backhand blow) and exposes his own coward's morality.  When the villain who spit in his face (misdemeanor) is stabbed to death by Boo Radley, Finch quickly accedes to the convenient disposition suggested by the equally weak Sheriff, "Bob Uhl fell on his knife -- let the dead bury the dead."  Is this the depth to which we aspire?   Maybe you, like Tom Cruise's Lt. Kaffee, think that if he just keeps shouting at the imperturbable, esteemed officer, "I want the truth!" (in lieu of genuine cross-examination), his seasoned witness will suddenly fold completely, give up his career, and admit (paraphrasing here), "Yeah, I guess you got me; I been lyin."  Well, that's all he did in the execrable "For a Few Good Men," but it ain't gonna happen in any of our real lives.  (Aaron Sorkin, what were you smoking when you wrote this crap?) Maybe a better model is Joe Pesci's streetwise "My Cousin Vinnie," who, for all his shady qualifications and inexperience, puts together a substantive defense on the merits that disproves the prosecution's murder case and carries the day for two innocent men.  In the twenty-two years since that surprising gem, few movies have captured what we are supposed to do in a courtroom:  follow the rulings (whatever they may be), maintain focus, and find the ethical response.  In an entertaining way, it also portrays a misleading admission, how discovery works, judicial discretion, and incisive cross-examination.  Might this movie be a good frame of reference for your panel? Remember that the "old movie channel" TCM already has one-third of its audience under thirty- five years of age.  Few of our jurors will be of the caliber found in "Twelve Angry Men."  While over fifty years old, this famous TV-photoplay-then- movie (better-yet, the more recent, Russian-made "Twelve") is still popular with local playhouses and has been seen by many prospective panelists.  Use it to educate.   From the perspective of jury dynamics, how do we prevail on men and women who do not know each other or the accused to really care - about the facts, about their duty, about justice?  Why does the little guy or gal so often win in fiction to the adulation of the audience in the movie theater, but sitting in the jury box their cheers change to jeers - they cannot wait to lock another one away for "Da Guvmint?"  Can becoming conversant with movies help us reach them before it is too late?     Trials usually aren't that exciting. Many of our panelists grew up thinking Paul Newman could still win that medical malpractice case ("The Verdict") even after the judge threw out his only expert witness.  (Paul's good looks must have won over that jury, although we are never told what the appellate court inevitably did with that judgment.)   Many also expect lawyers to continually scream and interrupt each other as they do in "Witness for the Prosecution," "Judgment at Nuremberg," "For a Few Good Men," and so many others of more recent vintage.  How do we prepare jurors for the possibility - the inevitability, even - of being bored, while fulfilling their civic duty to listen to the evidence?  Better, how do we hone our examinations and arguments so they are compelling and effective?   Popular film will not be the sine qua non of effective jury selection, but it is one of the topics that usually makes panel members more comfortable, thus helping you establish rapport and elicit more candid answers.  (It is especially helpful if you have a judge who permits rare supplemental juror questionnaires or individual voir dire.)  Remind jurors that the issues before them won't be decided in less than two hours - a real trial has no trailer, no review, no plot summaries.  They are going to have the responsibility to decide who is the hero, or if there even are heroes and villains. Begin in your voir dire to weave your client and his accusers into a memorable construct that may have helpful artistic references.  It can be as simple as asking for hands as to who saw a movie which has poignant similarities.  Where will their initial sympathies lie?  Are you the big-city boy before a small-town jury (or vice versa)?   What movie cops became so zealous (or corrupt) that they tried to convict the innocent ("Les Miserables," et al.), and what other cops have been honorable enough to admit their mistake?   What expert just forgot an important part of the puzzle, which led to a mistaken opinion (and an acquittal in "My Cousin Vinnie")?  What prosecutor hid the evidence, and which one did the right thing? Trial drama has long been the wellspring of emotion and corruption, deception and redemption, triumph and tragedy.  We can and must be aware of the vivid images from popular culture that color jurors' thinking before they walk into the courtroom, and be able to incorporate those images - translate them into real life - for the betterment of our career and the fate of our clients.   Next time, we shall look at law-related documentaries and how they can help us be better lawyers.
John Samore
Samore Law 300 Central Avenue SW Suite 2500 W Albuquerque, NM 87102-3298 office@samorelaw.com