Years ago, I served as the amcius chair for the New York State Association of Criminal Defense Lawyers. With surprising regularity, issues arose that could have significant impact on the state of the law that would impact not only the parties in a specific case, but the practice of criminal law in general. When we learned of these cases, we cranked up the amicus machine to get our two cents in. Sometimes, it was because the issue at stake was too important not to get involved. Other times, it was because the lawyers involved weren’t up to snuff, and we didn’t want to lose on an important issue because the defendant was represented by a mediocre (or worse) lawyer.

But there were problems. The first, and most obvious, was that it was often impossible to find anyone willing to write the amicus brief. This was pure pro bono stuff, and most criminal defense lawyers have to work for a living. Writing an amicus brief was a big deal, a lot of work, and there was no money and little glory for the author. I had to beg people to become an author, and most of the time came up empty handed. Much of the time, I wrote the briefs myself because there was no one else willing to do so. Whether it mattered to the law was hard to say, but what else could I do but try?

Things have changed a great deal since then. There are many organizations dedicated to causes who will come in as amicus today that didn’t exist back then. Causes are a lot bigger today, and they are funded to do this work. Then there are law school clinics who do this work as a training ground for law students, similarly dedicated to causes where the cost is not an issue. Indeed, many go searching for opportunities for amici involvement, and often leap into cases where there is no real need for amicus except as a practice opportunity.

The problem now is that the parties are no longer just litigating against each other, but litigating against amici who show up after the papers are filed and then have to do a second or third round of briefs to address the new points raised by amici, the arguments of adversaries having already been addressed. Not only does this mean a lot of extra work, but the time and cost has to be eaten by someone. If the client is paying, he’s now paying to do with the same job more than once. If not, the lawyer has to eat the cost.

Eastern District of Arkansas Judge Lee Rudofsky has issued a rosy order inviting greater involvement of amici.

When I was practicing law, I often wondered why amicus briefs were generally not filed at the district court level. It occurred to me back then that such briefs could have considerably more impact at the district court level than they have at the circuit court level or even at the Supreme Court. Since taking the bench, my views on the desirability of amicus briefing at the district court level have only grown stronger. While the majority of cases on a district court’s docket don’t warrant amicus briefing, there are a healthy number of cases each year that do.

By way of example, and not limitation, each year a handful (or two) of cases on my docket present really serious issues of constitutional law or statutory interpretation that are not directly controlled by binding precedent. And I have found that, in these cases, the parties often do not have the necessary time or economic resources to devote to full analyses of the text and history of the provision or provisions at issue. In such cases, my judicial process and my decisions would likely benefit from amicus briefing on the original public meaning of the disputed provision or provisions. I can imagine amici providing, among other things, important historical context, in-depth corpus linguistics analyses, or detailed structural arguments that might not make it into the parties’ briefing.

judge Rudofsky, who was born the year I graduated from Cornell, isn’t wrong about the benefits of amici to a judge, but enjoyed working at Kirkland and Ellis where he never had to worry where his next paycheck was coming from. He’s quite right that parties often lack the time or resources to devote to more scholarly analyses of issues, but this is an adversarial system, not inquisitorial, and the objective of a party isn’t to address the theory that might be of academic interest but to beat the adversary. And when the adversary includes amici, it’s that much more to do. Even when amici say they aren’t appearing for either side, they are. Somebody is going to get burned by amici.

I recognize that amicus briefing is a costly and time-consuming endeavor. However, it is also a great way for more junior attorneys at law firms, non-profits, corporations, and government entities to gain valuable experience, make a good reputation for themselves, and get some oral argument time. Accordingly, in addition to making it known that I invite and am grateful for amicus briefs in my cases, I wish to extend the following notice. Anyone who is the principal drafter of an amicus brief on either a dispositive motion or a motion for preliminary relief in one of my cases will be guaranteed at least ten (10) minutes of oral argument time so long as the person has been a lawyer for fewer than seven (7) years. The parties in the case may not in any way fund the amicus brief or the drafter’s attendance at oral argument.

it appears that Judge Rudofsky’s concern for cost and time relates more to amici than to the parties before him. Similarly, his invitation reflects concerns for “junior lawyers” to gain experience, which Eugene Volokh likens to the “teaching hospital model.” This sounds grand, except litigation is adversarial and there’s nobody in a hospital rooting for the disease to prevail. Much as Judge Rudofsky’s interests and invitation have some legitimate virtues, the burden it places on litigants should amicus involvement become commonplace in mundane suits may make judges, think tanks and law profs happy, but will put many litigants in untenable situations, fighting off not just their adversary but amici as well.

The Michelle Dauber of prosecutorial commentators, Andrew Weissmann, has come to New York County District Attorney Alvin Bragg’s defense.

Prosecutors are trained to consider whether a case can be brought — in other words, is there proof beyond a reasonable doubt to support a conviction? They also consider whether a case should be brought — principally, is the crime one that is typically charged by the office in like circumstances? Put another way: Is bringing the charge consistent with the rule of law that requires treating likes alike?

Alvin Bragg, the Manhattan district attorney, would be well within his discretion in determining that the answer to those questions is yes and therefore supports charging Mr. Trump in connection with any crimes arising from an effort to keep Stormy Daniels from disclosing an alleged affair to the electorate before the 2016 election.

The case reflects a novel legal theory, never before tried in New York, whereupon the misdemeanor of falsifying business records is elevated to a felony by attributing its purpose to committing or concealing another crime, in this instance a federal election law violation. That may be the motive, but there are also other plausible motives having nothing to do with the election, such as concealing his infidelity (or, if you believe Trump, there was no infidelity and this was extortion) to protect his own reputation or spare his current wife humiliation.

The case doesn’t bear upon any of the multitude of wrong committed while in office. It’s the sort of crime that’s rarely prosecuted because it rarely comes onto a prosecutor’s radar, and even when it does, it’s more likely a matter for taxing authorities to address, as its only harm relates to expensing out a cost that should be taxable.

Ironically, the prosecution’s star witness in the case, Michael Cohen, may be one of the least credible or likable witnesses to ever get a free donut at One Hogan Place. Would you want to bet your prosecution on the likes of such a witness?

At worst, the crime would be a Class “E” felony, which in the ordinary scheme of things, would be pleaded down to an “A” misdemeanor and a fine or some community service as a first offense. Even if it goes to trial and results in a conviction, the felony would get probation at worst as a first offense. Usually, anyway.

But chances are pretty good that this case will never make it to trial, and will be tossed for one of a variety of reasons along the way.

And if this was anyone, anyone at all, other than Trump, would any prosecutor even be considering this prosecution? If this came after a serious indictment was brought, say in Georgia or by the feds, it would barely make a ripple in the legal puddle surrounding Trump. If it was tossed, or lost, while he was being prosecuted for something serious, it wouldn’t even be mentioned by Rachel Maddow. But if it comes first, a stand-alone indictment among the myriad crimes under investigation, it will become the national focus. Is this really the case that will take Trump down?

If you come at the king, you best not miss.

On the other side, the argument is that district attorneys prosecute “ordinary” people for the most trivial offenses all the time, and they do. They prosecute “ordinary” people for offenses with tenuous evidence, dubious theories and no socially responsible reason. Why, then, should the “ordinary” person be subject to the power of the state, even for lesser crimes, that a former president is not? Is he “above the law”?

Politically, indicting Trump will outrage his supporters and give them a rallying point, similar to what Dobbs did for the Democrats. Even worse, should the case against Trump be dismissed, or Trump be tried and acquitted by a jury, it will validate his claims of a witch hunt. Given all he’s done, is this one the witch hunt?

Is this, as Weissmann argues, required by the “rule of law,” or is this a misbegotten, desperate attempt to bring down the pariah that will be little more than a paper cut if it succeeds, but will more likely fail and serve to make Trump both stronger as well as the pathetic victim he constantly claims to be?

*Tuesday Talk rules apply, within limits.

The acts upon which the putative indictment of former president Donald Trump were completed in 2017. It’s now 2023. Math challenges aside, that comes out to be about six years ago. So how is it possible that six-year-old alleged conduct can be prosecuted when the statute of limitations in New York for most felonies is five years, and two years for misdemeanors?

The Manhattan district attorney, Alvin L. Bragg, has signaled he is preparing to seek felony charges against Mr. Trump; Mr. Bragg is expected to accuse him of concealing a $130,000 hush-money payment that Michael D. Cohen, Mr. Trump’s lawyer and fixer, made to Ms. Daniels on the eve of the 2016 presidential election.

A conviction would be likely to hinge on prosecutors’ proving that Mr. Trump reimbursed Mr. Cohen and falsified business records when he did so, possibly to hide an election law violation.

This assumes that the charges can make it past a motion to dismiss based on statute of limitations, CPL § 30.10. which provides for certain tolling periods.

4. In calculating the time limitation applicable to commencement of a criminal action, the following periods shall not be included:

(a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence. However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.

Of course, Trump wasn’t continuously outside the state of New York since 2016, and it’s not as if his whereabouts were unknown. Then again, as president, he was not subject to prosecution, so that could arguably serve to toll the statute of limitations for the four years of his presidency. Then again, the presumption that Trump couldn’t be prosecuted didn’t preclude his being indicted during that period and the indictment held in abeyance. Such indictments, referred to as NA indictments, have often been used to toll the statute of limitations in rape cases where the identity of the rapist is unknown, but the prosecution doesn’t want to let the case to time out.

Should an indictment be filed, it will face a slew of problems, from a novel and untested theory of prosecution that the falsified business records violated federal elections law to elevate the misdemeanor to a felony, to the argument that this is a politically motivated prosecution, as this case would never have been brought against any other defendant.

And it cannot be ignored that the state’s chief witness is Michael Cohen, a lawyer who was thrilled to do Trump’s bidding when it paid off for him, and was similarly thrilled to show up at either MSNBC studios or the grand jury room to forsake client confidentiality to enjoy what little benefit he could gain from being the Michael Avenatti of the moment. It doesn’t make Trump innocent of wrongdoing, but these are serious issues.

However, none of these questions will see the light of day if New York County District Attorney Alvin Bragg can’t get over the hump of the statute of limitations.

Bookkeeping fraud has a two-year statute of limitations as a misdemeanor and a five-year one as a felony, both of which would normally have expired for payments made to Mr. Cohen in 2017. But New York law extends those limits to cover periods when a defendant was continuously out of state, as Mr. Trump was while living in the White House or at his home in Florida. In addition, during the pandemic, New York’s statute of limitations was extended by more than a year.

At NRO, former SDNY AUSA Andy McCarthy raises a different approach.

Let’s reasonably hypothesize that these 2017 payments had bookkeeping implications in 2018, when the 2017 fiscal year was presumably accounted for. Assuming the statute of limitations was thus triggered in 2018, the five-year period would lapse sometime this year. That, at least in part, explains the frenetic investigative activity that has gone on the last few weeks: If the state doesn’t indict soon, the case would be time-barred.

If the last payment by Trump to Cohen was on December 5, 2017, McCarthy presumes it would be reflected in 2018 for bookkeeping purposes as a legal expense. Why he makes this assumption is unclear, and contrary to standard accounting practices which book payment when made, but even assuming its accurate, is the “crime” complete upon tender of the check or booking payment, or if you want to stretch that theory out even further, upon paying taxes that include the payment as a deductible legal fee rather than a non-deductible payment of hush money?

Should this happen as anticipated, there may be a great many issues raised that take this case far outside of the norm. But if Bragg can’t get past the statute of limitations, the result will be very unsatisfying to many even though it should have been an obvious stumbling block for the prosecution.

Update: As brother Bennett pointed out on the twitters, the Court of Appeals in People v. Knobel read the word “continuous” out of the statute and held that every day a non-resident was outside the state is tolled from the Statute of Limitations. This was applied by Justice Mark Dwyer in People v. Cruciani, holding that he was a nonresident and so days out of state didn’t count. Notably, Trump changed his residence from New York to Florida in September, 2019.

Adding to the mix, Justice Angela Mazzarelli held in the Harvey Weinstein case that the statute makes no distinction between residents and non-residents, despite Knobel expressly holding its applicability to non-residents.

There is little difficulty distinguishing people who hold themselves out to provide legal advice for a fee or appearing before a judge in court as “practicing” law. But what about your aunt or the neighbor in the back telling you what you should do about a lawsuit? Surely, they’re not committing a felony, but just kibbutzing, as folks are wont to do. Between the two, however, is a no man’s (person’s?) land consisting of people to whom one turns for advice when confronted with problems who neither sell their services nor passed the bar.

Are they criminals? Should they be?

A civil rights lawsuit pending in New York in the United States Court of Appeals for the Second Circuit, Upsolve v. James, provides a prime example of the broad sweep of these laws.

Brought by the nonprofit organization Upsolve and the Rev. John Udo-Okon, a pastor in the South Bronx, the case focuses on debt collection lawsuits. Hundreds of thousands are filed annually in New York State, and millions more across the country. Many people sued in these cases cannot afford a lawyer. With help, many could defend themselves by explaining, for example, that the wrong person was sued, the wrong amount was sought, the wrong creditor claimed to own the debt, the lawsuit was filed too late and the like. But most people do not respond to the suits, allowing creditors to obtain default judgments and then garnish people’s wages and seize their assets.

To be fair, the word “many” is too vague for comfort here. While many get sued, few have any defense. “I didn’t have the money” is not a defense, contrary to popular belief. Most of these suits are brought in small claims court, which is very informal and no lawyer is needed. Much of the time, defendants in these suits just don’t appear and plaintiffs get a default judgment upon which they’ll never collect.

Often, the defendants’ addresses for service are old and they never receive notice. Often, they’re in the wind. Sometimes, they’re on the street. People who fail to pay one bill sometimes fail to pay many, like the rent. And some people just don’t pay their bills because they don’t want to. They also don’t want to go to court to explain this because it never comes off well to small claims court arbs.

But what about the cohort of defendants who aren’t deadbeats but just don’t know what to do when they receive a summons?

Mr. Udo-Okon wants to help members of his congregation sued in debt collection cases, and he has received training from Upsolve, a civil rights group focused on helping low-income New Yorkers respond to debt collection lawsuits, to help him do this well. More than 100 community residents have said they would want his free legal help. If permitted, he would download a fill-in-the-blank form from the New York courts’ website, then explain to people how to complete and file the form. That’s all. But even this would violate the state’s unauthorized practice bans.

That Pastor Udo-Okon wants to help his flock is understandable, just as his being trained by Upsolve is commendable. He did the work to learn how to be as legitimately helpful as a non-lawyer can be, and he appears careful not to overstep the bounds of his knowledge. But he evoked the wrath of New York AG Tish James, likely for doing his job too well, who now wants to shut down Upsolve and silence him for the unlawful practice of law. But what of his free speech?

A Federal District Court judge found last year that the unauthorized practice prohibition likely infringes on Mr. Udo-Okon’s First Amendment freedom of speech, and authorized him to begin helping people while the case is on appeal. The order applies only to the plaintiffs in this case, but if the Court of Appeals upholds it and endorses the district judge’s analysis, groups such as Upsolve can explore other ways to train people to take on their low-income communities’ vast unmet legal needs.

The bold-face quoted sentence is where the toes go over the line. Is small claims debt collection the same as child custody, landlord/tenant, estate planning, criminal defense? They all have common aspects, but they also have significant differences. Bad advice, coupled with the imprimatur of being “professionally” trained without being legally trained can be disastrous. And if Upsolve wants to play the DoNotPay game of expanding from a niche where the law is pretty simple and the downside small compared to higher stakes legal games, can a line be drawn to allow them some leeway without giving them carte blanche to play fake lawyer?

Many would agree that the Constitution should give everyone the right to give and receive free advice about life’s challenges, including legal problems. The Constitution requires that laws censoring speech must be narrowly tailored to serve a compelling purpose. States can protect people from bad or fraudulent advice, but not by forbidding everyone but a lawyer from helping others in their community with their legal problems. That goes too far, because people who do not have a lawyer can benefit from free advice about common legal problems from someone with training or experience they know and trust, even if that person is not a lawyer.

It’s true that many would, but that merely invokes the 60 Million Fly Rule.* It’s a non sequitur to argue that because people are too poor to hire lawyers the advice of non-lawyers magically becomes legally sound. Whether it’s beneficial depends on whether it’s accurate and helpful, and a oft-ignored problem is that sound limited advice may be good enough to get people embroiled in legal battles but not good enough to get them out unscathed, leaving them worse off than when they started.

The sort of help being proffered by Pastor Udo-Okon arguably falls beneath the level that most would consider the practice of law. It involves law, but at such a basic level that it really doesn’t implicate any level of legal skill that falls within the ambit of regulated speech. But then, if it treads an inch further, will it cross the line? When someone asks an entirely reasonable question beyond what the pastor is trained to answer, has his advice gone too far? Is there any clarity to the line such that he knows his limits and won’t stray beyond them? Does Upsolve recognize its limits or will its zeal to help cause it to push the envelope to the detriment of those it seeks to help? Will good intentions make its advice, its exercise of free speech, any less dangerous to those who rely on it?

*There was a poster that was popular back when I was in college that said “60 million flies can’t be wrong: Eat shit.”

Ed. Note: This is a guest post by Pittsburgh criminal defense lawyers, Joe Otte, former public defender until he went rogue.

Before the chatbots replace online human opinions, I’d like to say my piece about indigent defense funding in the Commonwealth of Pennsylvania. Here in the Commonwealth, we have no state-level funding for indigent defense.* We rely upon counties to fund public defenders and court-appointed attorneys in criminal cases. It’s a moronic system that has thankfully gone by the wayside in 49 states.

Pennsylvania wasn’t always lonely. Michigan, despite its divided legislature, came around in 2013. Utah got wise in 2016. Now, Pennsylvania is in 50^th place. Unfortunately for us Keystoners, the high court, the legislature, and the executive have twiddled their thumbs for the last seven years.

However, things appear to be changing. Governor Josh Shapiro, who investigated or prosecuted every possible living organism and corporate entity while he was attorney general, agrees that the status quo is unacceptable.

Pennsylvania is one of only two states in the nation that provides zero dollars for indigent defense.

That’s not a list we want to be on.

Today, I’m proposing a $10 million investment in public defenders — this year and every year going forward.

— Governor Josh Shapiro (@GovernorShapiro) March 7, 2023

His solution is underwhelming. The plan he developed is to throw $10 million to the Pennsylvania Commission on Crime & Delinquency (PCCD). This is a mistake, and it’s a mistake that I tried to warn him about. Unfortunately, his office likely thought I was a regular lunatic rather than a well-informed lunatic (Josh, if you’re reading this, my phone number is publicly available. Cut out your staff. Let’s talk!).

The first part of the mistake is that $10 million isn’t nearly enough money to measurably improve indigent defense in Pennsylvania. It would be foolish to suggest that it won’t make any difference, but I know what happens an hour after I have a salad for lunch. Pennsylvania has 13 million people in 67 counties. If apportioned by population without saving any money for the state to train attorneys, a county like Cambria with its 132,000 inhabitants** could see an additional $100,000 per year. Taking into account benefits, that’s an additional 1.4 untrained, just-barred assistant public defenders. It’s an improvement, but if you’ve seen a struggling public defender office in action, you know that one newbie isn’t going to drastically change things.

And the world doesn’t revolve around full-time public defenders. Even in the 50+ counties where the public defenders bear the brunt of the burden, private attorneys are appointed to represent clients in cases of conflicts of interest, the whim of the judiciary, or overflow. So, after the counties start paying assigned counsel a little more, that additional 1.4 untrained assistant public defenders might now be 1.1.

Experience tells us that training is important. So, that $10 million shouldn’t be pumped into salary alone. Barred lawyers, much like 3Ls, don’t wake up on Day 1 and know how to practice criminal defense. That 1.1 untrained assistant public defenders that Cambria could potentially hire is now 0.9 untrained assistant public defenders after the PCCD develops a training curriculum and some Carlisle training sessions. And thus, Cambria gets 0.9 untrained assistant public defenders, zero paralegals, zero secretaries, zeros social workers, and maybe some training [Ed. Note: In the correct use of pronouns?].

The second issue is what caused me to shake my fist at the sky. The PCCD is not an indigent defense commission. Not even close. It’s composed of prosecutors, victim’s advocates, judges, bureaucrats, politicians, cops, academics, more politicians, more cops, and more judges. When you search the minutes of the PCCD meetings, the only action items you’ll find relating to indigent defense are the occasional appropriation for capital defense. The PCCD is almost certainly composed of well-meaning people. Unfortunately, those well-meaning people have no business deciding what to do with the $10 million if it’s intended for indigent defense.

“But…but!” you say? “But, the funds in the Governor’s budget are to be distributed by the Criminal Justice Advisory Committee (CJAC) of the Pennsylvania Commission on Crime and Delinquency, not the Commission itself!” Yes, indeed. Meet the new boss. Same as the old boss.

Neither the PCCD nor its CJAC have a single public defender or criminal defense attorney as a member. Sure, there are some formers, but there’s nobody in the trenches. They cannot adequately understand this issue. They cannot adequately address this issue. Most of them simply haven’t a damn clue. The ones who do have a damn clue have moved on and are now Honorables or Partners. They have other jobs.

There needs to be people whose job it is to administer indigent defense. It needs to be the full-time job of several people. There is no need to study the issue. There is no need for a goddamn task force. Pennsylvania will not be sanctioned for plagiarizing another state’s system. The legislative research arm of the General Assembly could draft a fantastic plan if given the order. Pennsylvania can easily create a commission that will fully implement the promise of Gideon by 2027.

In 2013, Michigan chose to create the Michigan Indigent Defense Commission. In 2016, Utah chose to create the Utah Indigent Defense Commission. Those two states were far behind the rest of the pack a decade ago. But their respective governments chose to finally do the hard work of public policy despite the poor man charged with crime having no lobby.

Governor Shapiro chose the path of least resistance this time around. He need not do the same in 2024.

*Pennsylvania effectively has no state-level funding. The last budget included a $1 million appropriation, but that was not a serious attempt to address indigent defense funding.

**Cambria County has the correct population for my example and it also has some of the nicest people.