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Turkey Travel Time
Happy Turkey everyone! We're off for a few days of vacation and I don't know if I'll be able to update, so if not, I will just say: I'm thankful that you take the time to stop in and see what's going on around the imbroglio once in a while and I hope you have a grrrreat holiday!
Posted 06:25 AM | TrackBack | life generally
Computers in the Courtroom
When will attorneys regularly begin using computers in the courtroom?
The question just crossed my mind because I'm working on a grant proposal to get funding to produce a criminal practice manual for public defenders in Montana. If you have ever done any criminal defense work in D.C., you are probably familiar with the Criminal Practice Institute's criminal practice manual. The manual is a comprehensive resource for DC criminal defense practitioners, containing both federal and local case law and other resources that defense attorneys commonly need. It is also a trial manual, covering every aspect of the trial process from pre-trial release (which is generally the first issue you face when you're first appointed) to jury instructions and everything in between. Only five chapters are available online (covering severance and joinder, motions to suppress statements, motions to suppress eyewitness ID, and motions to suppress on 4th amendment grounds, and other grounds evidence), but those should be enough to demonstrate what an invaluable resource this can be—especially for new attorneys just getting their start here. It's great for learning the local law and procedure, it provides starting points for many of the motions and briefs you might need to write, and it also makes a great trial resource—something you can take with you to court so you have case law and advice at your fingertips if something comes up unexpectedly. The one problem with it in the last regard is that the printed version is one huge book and a big hassle to haul around.
So my idea is that, while this manual is great for DC, it won't travel to other jurisdictions as-is because it is focused on DC practice, customs, regulations, law, etc. Still, wouldn't attorneys in other jurisdictions benefit from something like this? And how much more would those attorneys benefit if they were working in a brand new model PD-system that is attempting to implement the ABA's “10 Principles of A Public Defense System” My thinking (er, hope) is that they would benefit a lot, hence the grant proposal.
But as I think about this project, I'm also thinking: Why don't attorneys have laptops in the courtroom? Or, barring that, why not at least handheld computers (e.g. today's Palm pilots or Windoze handhelds) that have resources like this stored on them? The judge has a computer at her disposal on the bench, the clerk has one, so why not the attorneys? And now that I think about it, it seems like the attorneys in federal court (at least in Alexandria, VA, where I've been to the federal court house a couple of times) do have computers at their tables, although I never saw them use those machines. Having computers installed in the courtroom would be less useful than allowing attorneys to bring them in, anyway.
But imagine going into court armed with a compilation of the relevant law you think you're going to need for a case, including every possible issue that might arise at trial. And I don't mean just the handful of cases you've researched and printed in advance. Of course you need to have that, but what if you could have even more?
Real-world example: I had to make an argument last week in court for which I was poorly prepared and which I took mostly from verbal instructions from my supervisor. He provided the case name and the two prongs of the relevant rule it established, and I then argued that as if I knew what I was talking about. Of course, the judge asked me for a cite to the case and I didn't have it. Neither did my supervisor. So we looked really stupid. If we had had the CPI manual with us, we would have had the cite. However, one reason we didn't have the manual was because it's so big we don't like to carry it around. That would have been the perfect situation in which to have the manual on a handheld where, with a couple of taps on an index or something, we could have had the cite. Not only would it have saved us from looking stupid, but it might have been a big help to our client, and that's really the point, isn't it?
So the question is: Do you think it's only a matter of time before it becomes common practice for attorneys to use computers in the courtroom? Is this already common in some jurisdictions? Or is this something that just wouldn't be that helpful?
Posted 11:33 PM | Comments (3) | TrackBack | 3L crimlaw
Congratulations Gideon
Congratulations to a Public Defender for his recent small victory!
Of course, I wish he could share more about what happened and what role he played in it, but that's not usually possible for lawyers. It makes me wonder: How much do confidentiality rules contribute to the general dissatisfaction so many lawyers express? In another profession Gideon might be able to share more detail about what happened, what role he played, etc. But as an attorney, he just has to say “good things” and that's it. That's got to be a little less than satisfying, no?
Not that there's any way we could change this. We obviously can't abandon client confidentiality in exchange for a little more ego satisfaction, but still...
Posted 12:06 PM | Comments (1) | TrackBack | crimlaw
Criminal Investigation Ethics
One of the things lawyers have to learn is that the law has fewer definitive answers than it has ranges of possibility. An incident last week raised one of these possibility ranges, namely:
Exactly what is your duty to identify yourself when you're investigating a case?
Here's the situation: Say you have the home and work addresses and phone numbers of a complaining witness (CW). The CW gave the police a statement, so you'd like to talk her to get another statement to have something to impeach her with if she tells you a different story than she told the police. But, of course, you know the CW probably won't want to talk to you, so you don't want to call. Calling on the phone makes it easy for the CW to hang up on you; visiting the CW in person makes it at least a little more likely she'll talk to you. And you don't really want to bother her at work because, well, she might feel less like talking in that setting, you might be interrupting something if you tried to visit her there, etc. So you decide to try to catch her at home.
So you go visit the CW's apartment. You go on weekends because you know she works during the week. You visit four times in the middle of different Saturdays and Sundays, but the CW is never home. On your last try, as you and your investigator are leaving and in the parking lot after finding the CW not home once again, you run into one of the CW's neighbors and ask the neighbor: “Do you know CW? Does she live here?” You're just asking because after four visits you're starting to wonder if you're in the right place. The neighbor says yes, but asks why you want to know.
You: “She was involved in an incident a couple of months ago and we're investigating that. I just was hoping to talk to her about it.”
Neighbor: “Would you like me to give her a message?”
You: “No. I'll just try to call her or something, but thanks.”
And that's it. Then you get to court and during pre-trial plea negotiations the prosecutor starts off with “There are some really bad things going on with this case.” Huh? “Somebody has been harassing the victim, terrorizing her neighbors, asking questions without identifying themselves.”
You: “Are you saying we're not allowed to investigate?”
Prosecutor: “No, but... Do we need to take this up with the judge?”
You: “Go ahead. We haven't done anything wrong.”
But have we? What do you think? Should we have given our card to that neighbor? Was it unethical not to do so?
My answer is that, probably yes, we should have said that we were investigating on behalf of the accused in the case. Some criminal attorneys I've talked to agree, but others take the position that you don't have to identify yourself as a criminal defense attorney/investigator to everyone you meet on the street, so we had no obligation to tell the neighbor anything.
So, any thoughts?
Posted 10:08 AM | Comments (4) | TrackBack | 3L crimlaw
Lessons from Court
I spent a day and a half in court last week and the days before that preparing, then I was in court again yesterday, all of which partially explains the lack of posting here. For various reasons, I think it best not to say too much about the details of what happened in court, but let's just say last week wasn't great in terms of the outcome for my client. Of course, since it was bad for my client, it was probably excellent in terms of experience for me b/c I definitely learned some important lessons that I'd never really anticipated.
One thing I learned is how hard it can be to have done everything you can think of to do, and still watch your client get a bad result. Was that your fault? Was there something more or something different you should have done? Could you do it better next time? Or is it even more frustrating because you did all you could and the system just worked arbitrarily and unfairly? Whatever your answers to these questions, it's definitely disappointing to watch your client being led away to lockup for more time behind bars.
But another thing I learned (or was reminded of) is how great this job can be. That may sound a little paradoxical, but the job is actually great because of the risk of that bad result for your client. As a criminal defense attorney, no matter what specific task you're doing, your work is always meaningful because your client's liberty interest is at stake. What you're doing is so damned important! And although that can be a daunting responsibility, it also makes for a much better job because even when you're spinning your wheels in bureaucratic mazes you know what you're doing is worthwhile.
An a more practical level, the past few days reminded me of another reason I was originally drawn to this area of law, and that is simply the variety the job provides. In one day you might do some legal research, go out and investigate a scene, talk to witnesses, talk to your client (in jail or otherwise), negotiate with a prosecutor, and argue a motion or even have a trial in court. It's not a job where you just show up in the morning, sit down at your desk for 8 hours, then go home. If variety is the spice of life, being a public defender should make for a very spicy life, which is great as far as I'm concerned.
Posted 09:11 AM | Comments (1) | TrackBack | 3L crimlaw
NaNo Update
Still busy around here. The NaNo novel is not faring well amidst all other things. This is what it's going to be like if I'm going to finish 50,000 words:
UPDATE: That animation is a little icky after a while, so, um, if you want to watch it, it's
here
Not pretty.
(Image courtesy of Sheena Banday on the NaNo Icons LJ community.)
I've been busy with clients for the clinic and promise to update on developments there soon....
Posted 10:16 PM | Comments (2) | TrackBack | NaNoWriMo
Stop the Machine
It's been a little busy around here in the “real” world, but here's something I just heard quoted by a fellow student in my Race, Racism & the Law class: Mario Savio's Speech before the FSM Sit-in - December 3, 1964, Berkeley, California :
There is a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part; you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all!
Republican Myths of Merit
A friend of mine recently received the following “joke” from a Republican friend of hers:
One day she was challenging her father on his opposition to higher taxes on the rich and the addition of more government welfare programs. The self-professed objectivity proclaimed by her professors had to be the truth and she indicated so to her father. He responded by asking how she was doing in school. Taken aback, she answered rather haughtily that she had a 4.0 GPA, and let him know that it was tough to maintain, insisting that she was taking a very difficult course load and was constantly studying, which left her no time to go out and party like other people she knew. She didn't even have time for a boyfriend, and didn't really have many college friends because she spent all her time studying.
Her father listened and then asked, “How is you friend Audrey doing?” She replied, “Audrey is barely getting by. All she takes are easy classes, she never studies, and she barely has a 2.0 GPA. She is so popular on campus; college for her is a blast. She's always invited to all the parties, and lots of times she doesn't even show up for classes because she's too hung over.”
Her wise father asked his daughter, “Why don't you go to the Dean's office and ask him to deduct a 1.0 off your GPA and give it to your friend who only has a 2.0. That way you will both have a 3.0 GPA and certainly that would be a fair and equal distribution of GPA.”
The daughter, visibly shocked by her father's suggestion, angrily fired back, “That wouldn't be fair! I have worked really hard for my grades! I've invested a lot of time, and a lot of hard work! Audrey has done next to nothing toward her degree. She played while I worked my tail off!”
The father slowly smiled, winked and said gently, “Welcome to the Republican Party.”
Of course, my friend didn't find this very funny. In fact, it made her kind of mad. So after giving the matter a bit of thought, she sent the following back to her Republican friend:
As professor Mitchell ends his lecture on the socio-economic factors that determine class structure in the US, he runs his chalky fingers through his thick, black hair and continues, “So, as you can see, in what many conservatives today call the 'good ole days', marginal tax rates on the wealthy were about twice what they are today, which essentially freed the lower classes from the burden of financially supporting those public institutions from which they had yet to benefit.”
The newest republican promptly raises her hand to protest, “But, professor, why should the wealthy pay more? Poor people would be wealthy too if they weren't so lazy and irresponsible.”
Professor Mitchell raises his eyebrows and grins. “And wealthy people are wealthy because they work hard?”
“Well, yeah. My dad works hard. He tells me all the time. Once he told me 7 times in just 90 minutes that his job was hard work.”
“I think I remember what you're father does, but tell me, how did he acquire his wealth?”
“I think he was part-owner of a baseball team for awhile.”
“And what did he do there? Did he make smart investments for the team? Did he mow the grass on the fields?”
“No, he mostly just talked to people. You know, he networked.”
The professor suppresses an urge to chuckle.
“Why was he so successful at networking? What made people want to talk to him? Was it his brilliant oratorical skill?”
The class laughs.
“No, I think he was already a well-known businessman.”
“Was he well-known for his hard work? For his business acumen?”
“I don't really know.” she admits.
“Well, was he a successful businessman?”
“He had four companies- he must have been!”
Again, laughter erupts.
“More doesn't always mean merrier. Do you know why he had four companies?”
“No.” She begins to wonder where her professor is going with this.
“Well, I do. They went bankrupt. Each and every one of them.”
“But that doesn't make any sense! Why would people continue to trust him if he couldn't keep any of his businesses afloat?”
“That's an interesting question. Why do you think people kept bailing him out?”
She thinks for a minute and answers, “Because he's a good man... trustworthy... affable. And he went to a prestigious university.” she smiles and continues, “Not as prestigious as ours of course- Hook em' horns! Go Bevo!”
The class erupts in wild applause.
“O.K. Settle down, class. So what you're saying is that your father is an all around nice guy.”
“Yeah, with a great education to boot.”
“And how does one get into one of these schools like the one your father went to?”
Exasperated now, she answers “You know, professor. The usual- good grades, test scores.”
“Hmmm.” The professor takes a deep breath and continues. “You know, not everyone that has good grades and test scores get into those colleges.”
“They don't?”
“Not always. Sometimes it helps to have a family member that has also gone there. It's called a legacy. And you get extra points for being one.”
“Like extra-credit points?” she asks.
“Yep. Except you don't have to do any work yourself to get them.”
“Well, that doesn't seem fair.”
“No? Do you know if your father was a legacy?”
“Actually, I'm pretty sure Poppy went there, too.” She is visibly upset now. “But once my dad got there, he made the most of his opportunity. That has to count for something, doesn't it?”
“I hate to break this to you, but I actually went to school with your father. And he wasn't exactly the sharpest tool in the shed. Even when he was sober. And the worst part was he seemed proud of that fact. It was his badge of honor. He was the stereotypical frat boy.”
Three guys from Delta Felta Thi cheer from the back.
“Really? He never told me that? He sounds just like my friend Audrey.”
“So you see, Jenna, sometimes it has nothing to do with how hard you work. Laziness and irresponsibility can lead to wealth and power, too. And sometimes hard work leads nowhere if you don't know the right people.”
The professor gathers his things and announces “Class dismissed. Don't forget, midterms are Monday after the break!”
Jenna sits in silence as the class files out the door. She thinks to herself “my dad sure has a lot of explaining to do.”
A few days later, back at the ranch, Jenna confronts her father.
“Dad, you convinced me that in our society, the great thing is that deserving people are rewarded with wealth and the undeserving remain poor. My professor proved otherwise. He showed me that sometimes even the most undeserving among us rise to the top with the proper connections.”
“What?!” He's surprised to hear the tone in her voice. Can't she see he's busy clearing brush? “Was he talkin' bout that lazy, good for nuthin' friend a yers? What was her name again?”
“You mean Audrey? Audrey Delay?”
“Delay??? You didn't say she was Tom's little girl! She's a great gal- why, you let her know that when she graduates I'd be happy ta have her as my deputy chief of staff. You know, that position's opening up again.”
“But dad!” she shouts. “She doesn't deserve that!”
And that's when Dubya puts an arm around his daughter's shoulder and gives her another wink.
“Jenna, honey, being a republican means knowing that you and your friends are ALWAYS the deserving ones.”
How would you have replied to the original “joke”?
Posted 07:47 AM | Comments (3) | TrackBack | general politics
Holy Tons Of Public Interest Money, Batman!
According to Harvard's new admissions blog, Harvard law gave out over $1.5 million dollars in subsidies to its students engaged in public interest work last summer. Apparently, if you work a summer public interest job, you're guaranteed $4500 from the school. Harvard also has an Office of Public Interest Advising that employs 9 attorneys (full-time, I assume) helping students find public interest jobs.
Just for the sake of comparison, GW gave out something near $160,000 last year in public interest subsidies, and that includes some stipends during the school year so the summer amount was less. GW has no office of public interest advising or anything that would even approximate such a thing, and, as far as I know, it has one attorney and one career office assistant who each spend half their time helping students find public interest jobs.
Obviously it pays to go to the top school, but I never realized just how much. Unfortunately, it looks like Harvard didn't participate in the Equal Justice Works E-Guide to Public Service at America's Law Schools so I can't make more direct comparisons between the two schools. It's not like I'm surprised to learn of Harvard's huge advantage here, anyway, it's just the size of the difference that shocks me.
Posted 06:38 PM | Comments (1) | TrackBack | 3L law school
At First I Scoffed
I just noticed that I was tagged by MeSawYou a couple off weeks ago. Oops. My assignment was:
1. Go into your archives. 2. Find your 23rd post. 3. Post the fifth sentence (or closest to it). 4. Post the text of the sentence in your blog along with these instructions. 5. Tag five other people to do the same thing.
My 23rd post was about spinning (as in pedaling fast to music on a stationary bike), which I really love(d). (I know I'd still enjoy it, I just haven't found a good place to get back into it since I moved to DC.) The fifth sentence was:
I couldn't ask for anything better. Hard to believe that was on September 1, 2002. Have I really been doing this for three freaking years? I know, that's not that long, but still... Is that something to lament or be proud of?
Anyhoo, the final part of the assignment is to “tag” five other people, but I'm pretty sure most people I can think of have been “tagged” already. Still, I'll give it a try:
- Energy Spatula
- Mackenzie
- Greyhame
- Sui Generis
- Audacity (who we should congratulate for officially becoming a lawyer, so: Congratulations! Those 70% out-of-state bar passage rates in Georgia are very scary for those of us planning to take bar exams in states where we didn't attend law school....)
Posted 10:38 AM | Comments (1) | TrackBack | meta-blogging
Their Lies Have Consequences
This a bit old so perhaps you've seen it; if not, you should. The White House is literally trying to rewrite history. Watch the short video linked here of an Oct. 31 press briefing where spokesperson Scott MClellan says “that's accurate” in response to a question about the Scooter and Karl's involvement in outing Valerie Plame. The sound is pretty clear and the way his lips move, he can hardly be saying anything else. Yet the White House insists McClellan actually said “I don't think that's accurate.”
Every time I write about bullshit like this I wonder why I bother. Still, I can't help it because I still have some small capacity to be shocked by what American citizens are letting this administration get away with. Lies upon lies upon lies. The latest is the new offensive to claim that “everyone agreed we had to go to war.” Talk about rewriting history!
But just as I'm shocked, offended, and angered by these lies, I'm also nearly struck dumb with awe at the sheer audacity of these people. Bush attempts to rewrite history by accusing his critics of attempting to rewrite history! Orwell would be so very proud!
It's really not enough that this administration has lost popular support. The crimes of Bush and Cheney are so heinous that they need to be run out of town on a rail (so to speak), and the way to do that is to impeach the bums. And how can we do that? We can elect a Congress that will hold these liars accountable. One year from now, impeachment proceedings could begin. To paraphrase Captain Picard, let's make it so.
Posted 06:02 PM | Comments (1) | TrackBack | general politics
Welcome (and Welcome To) Wex
Have you seen the new Wikipedia-like legal resource? It's called Wex and it's part of the awesome LII.
Sounds terrific. They're seeking qualified contributors to help build the resource, so if you'd like to help and you're qualified, go to it!
Posted 12:39 PM | TrackBack | law general
Clinic: 1 & 0
One of my fellow clinic students just finished her first trial yesterday, and although she technically lost (her client was found guilty), the outcome (probation only) was much better than could be normally hoped for such a case, so I'm counting it as a win. Also, her judge is known as a lock-em-up judge, so giving the client probation only was about the same as the judge saying he'd had a reasonable doubt. Too bad the judge didn't do his job and acquit, but hey, police officers always testify truthfully and credibly, right? Even when they contradict each other, right? Uh huh. Yeah.
I watched the closing argument and learned a lot. I mean, I've seen a lot of closings in bench trials, but they start to get blurry so this was a good reminder of how judges can be. In this case, the judge listened to the prosecutor w/only one interruption that I can remember. But the defense attorney got only one sentence out before the judge was interrupting. After that, the judge talked more than the defense attorney; he seemed determined to tell her why he wasn't going to believe anything she said. Nevermind that she had evidence that raised a reasonable doubt as to the necessary facts of the government's case. No, that's not important. Despite the government's contradictory evidence, the judge appeared to have his mind made up and was basically telling the defense attorney she had to prove her client's innocence. Um, no, your honor, that's not the way it works. Oh, but yeah, it is. It's just good to be reminded of the realities of the system.
Speaking of those realities, I picked up another case yesterday and got my new client released on his own PR. That wasn't hard b/c the government wasn't seeking a hold, but that didn't matter to my client. As we walked out of C-10 he just couldn't stop telling me what a great lawyer I was. I was flattered, sure, but I hadn't really done anything and parts of what I had done had been whispered in my ear by my supervisor. Still, this suggests to me that this guy has had some really crap lawyers in the past. No surprise there.
So my trial is scheduled for Tuesday and there's no way I'm ready. I haven't been able to secure any witnesses to testify for us and I suspect this is going to come down to another situation where someone makes a claim, my client is homeless and says it's not true, but the complaining witness is an “upstanding citizen” and therefore must necessarily be telling the truth even though the complaining witness has no witnesses, either. So in a he said/she said, the defendant is going to lose. I hope I can come up with some way to change that outcome over the weekend, but it's going to be a busy couple of days.
Oh, and tomorrow I'm going to go help build a Habitat house for a few hours, so, you know, it's good to have plenty to do.
Blogroll Dive #2: Let's burn this law school down.
Energy Spatula has a great rant against the stupidity that is law school, a story about the Dating Protection Program, and she's like this close to getting a job she wants if only the drycleaner doesn't ruin her chances. I am jealous. Maybe I should, like, at least apply for jobs. You think?
Scoplaw is working on a brief for the SCOTUS and celebrating Georgetown's success at raking in the public interest funds—their auction just pulled in a record $75k! Congrats to GULC's EJF. Why why why can't we do this at GW?
Mackenzie is getting published—his case note was accepted for publication next summer. Congrats, Mackenzie!
Dave! is getting excited about BlawgThink, apparently a legal blogging conference that's going to happen this week in Chicago. He can also tell you a lot about cheese.
Half-Cocked notes that in Dover, PA, the town that is currently the subject of a court case to determine whether school teachers should teach intelligent design, all the Intelligent Design proponents on the school board lost their bids for reelection. He's also recommends you add Chili-5-ways to your weekly menu. With the coming cold weather, I'm thinking that sounds like a fine idea.
Monica Is happy she doesn't have to apply for financial aid again next year. Me, too! Now if someone would just give us jobs.... (Ok, yeah, I have to apply first, I know. This seems to be a recurring theme.)
Posted 09:55 AM | TrackBack | blogrolldiving
NaNo2005: 10,000 Strong and Growing
NaNoWriMo has entered its second week. If you're keeping up, you should have 13,300 words or so by the end of today. And if you're like me, you're about a day or two behind at around 10,000 words. But that's ok, because that's what weekends are for, right?
November can be such a crazy time! For me, classes are quickly spiraling to an end; at GW we only have three more weeks of class, including this one. Due dates for assignments that are due at or near the end of the semester are looming, and anything else you've been putting off before the holidays is starting to look more and more urgent. What a perfect time to write a novel!
Oh, and in clinic news, my client was rearrested and I was unable to get him released this time (shock!) so he's in jail for at least a week and unless we can get some kind of worthwhile plea deal (which is pretty rare around here) it looks like I'll be having my first trial next week.
Man, I better get busy!
Technorati Tags: nanowrimo
Posted 01:11 PM | Comments (2) | TrackBack | 3L NaNoWriMo
MPRE, Client Fees and IOLTAs
The MPRE is history for me, I hope. I have no idea. Before the test I was getting 70-80% of practice questions right, and that should be good enough to get a “passing” score for most states. (According to the BarBri review you only need to get 32-38 out of the 60 possible questions correct in order to pass in even the most rigorous states.) So will I be taking the test again in March? I'll know in five weeks.
But while studying I learned something I didn't know about lawyer fees. I haven't ever thought much about fees because I plan on not having to think about them at all for at least the foreseeable future; one of the great things about being a public defender is you don't bill hours or clients (at least in most states). But in studying I learned that when a lawyer is holding a large sum of money for a client for a long period, the lawyer is supposed to put that sum into a client trust account and pay the interest to the client for whom the money is held. If the lawyer is holding a small sum of money for a short period, the lawyer should put it into a pooled trust account (typically a checking account that holds money entrusted by numerous clients) and the interest on the whole pool of money goes to the state bar or to a legal foundation where it's used to fund indigent legal services. These are called “Interest On Lawyer Trust Account” (IOLTA) programs.
Great, right? Except, isn't this just backwards? Why do large sums of interest revert to the client, while small sums go to the poor? Why not just give all the interest—whether from small or large sums, and wether held for long or short periods—to indigent legal services? Why not just tell people, “Hey, if you retain a lawyer and give that lawyer money to safeguard for some reason, the interest on that money is going to go for the greater good.” It would just be one of the costs of legal services.
So whadya say, ABA? Shall we make this little change in our “model” rules?
Posted 10:19 AM | Comments (2) | TrackBack | 3L
spuffy pumpkin picture test
This is a test of posting images from flickr. There are so many great images just waiting to be shared with the world and this blog is so texty texty texty, this may be a great way to break things up a bit.
This image is for M and L, both of whom are Buffy fans. We didn't really do anything for Halloween this year except eat candy so, well, Happy Late Halloween!
MPRE Today
The test is in about 4 hours and I'm busily cramming study questions. I'm not too worried, though. I took the 5-hour BarBri review on Wednesday and I'm armed with the following guide to answering all questions, courtesy of Beau:
It's a pretty good guide, don't you think? At least for the context of the MPRE. I'll let you know how it goes...
(Note to self: You need to add permalinks to individual comments.)
Posted 08:13 AM | Comments (3) | TrackBack | 3L
Why I don't want to work in a big city
One word: Bureaucracy.
I spent over 4 hours on Tuesday running from office to office, standing in lines and waiting for people to return from random lunch breaks (which sometimes apparently begin at 2:30 p.m.!?), and still I don't feel much closer to where I need to be. The goal was to get a voucher to pay for a transcript of a hearing so I can use that transcript to impeach the cop if he tries to lie. In order to get such a voucher, you have to request authorization and submit your request to the finance office about four blocks from the courthouse. Then, sometime later (maybe a day, maybe two, maybe a week), you have to go to the courthouse and see if your voucher has been issued. If it the office that is supposed to have the voucher doesn't have it, you have no recourse; there is no way to check on whether it's still being processed, whether it was lost, whatever. Your best bet is to start over and come back in another day or two or week and hope it worked the second time. I've now been through this process twice and it looks like I'm going to have to try again.
Bureaucracy, I tell ya....
Oh, if the process ever works, once I get the voucher I have to fill it out and ask the judge to approve it. If the judge approves the expense, I have to then take the voucher to the court reporter and ask them to produce a transcript. Theoretically this shouldn't be a very big deal, but you can see the hoops defense attorneys have to jump through to provide quality representation to their clients.
Anyway, my experience has been that a smaller jurisdiction simply has fewer layers of bureaucracy. Where in D.C. this process requires visiting no less than four offices in two different buildings, the process in a smaller jurisdiction would probably require visiting two offices in the same building. Or maybe not. But the advantage in the smaller jurisdiction is that the people you interact with in this process are less likely to be burned out and overwhelmed because of the sheer mass of humanity that passes through their door each day. You might know their names and they might know yours, and instead of just wanting to get rid of you maybe, just maybe, they'll want to see if they can help you do what you need to do.
In short, my experience has been that smaller jurisdictions are more human, more friendly, and just easier for me to negotiate. I'm sure mileage varies on things like this.
I got a chance to talk a bit w/a friend who worked at PDS last summer and who also worked with me in a smaller public defender's office in the area during our 1L summer. She said PDS is just amazing in terms of the resources it has to defend its clients. For example, whereas in our smaller jurisdiction we always had to battle with the judge to get funds for an expert witness for the defense, at PDS it seems that cost is no object—if they want an expert, they get one and that's that. Each attorney has an investigator and a couple of students to help out with things at all times so the attorneys don't have to mess with investigation or busywork and have more time to prepare for trial. They are “trial machines,” my friend said. And since the prosecutors here never make reasonable plea offers, PDS takes everything to trial. And it wins because it did the work to find every little crack in the government's case and every little fact or bit of evidence that could help its clients. In short, the DC PDS is probably one of the best criminal defense firms in the country.
But you know what? I still don't really want to work there. Ok, PDS wouldn't hire me, so it's not like it's an option, but still, I don't want that kind of pressure, nor do I want to try to plug myself in as a cog in such a huge machine, regardless of how well-oiled it might be. I'm sure the PDS attorneys never have to spend 4 hours running from office to office trying to get a transcript voucher so that would certainly make it better, but still...
So where am I going to work? I don't know. I don't even know where I'm going to sit for the Bar. But I do know that, if at all possible, I will seek out a job in a smaller public defender office in a smaller jurisdiction, maybe something with a dozen attorneys or less. I just think that's the sort of place where I'm going to find a better fit.
Anyway, if anyone's keeping track, my client didn't show up today so I wasn't able to make my arguments about the unconstitutionality of the bail-jumping statute. On closer inspection and thanks in no small part to “Jack” of Gideon's Guardians and his helpful tip, I decided that arguing that the statute was unconstitutional was probably less wise than just arguing that the presumption of willfulness is a very weak presumption that can be rebutted by almost any small amount of evidence showing lack of willfulness—evidence that we just happen to have in this case, I think. I'm sure my client will get picked up again soon and I'll have a chance to try this all out and see how it goes.
Posted 09:52 PM | Comments (1) | TrackBack | 3L crimlaw
Shifting the Burden of Proof and the Sixth Amendment
When does a “rebuttable presumption” shift the burden of proof unconstitutionally from the state to the defendant?
If you're anywhere around the mid-Atlantic region you may have heard recently about the Fairfax County, VA, judge who is tossing out drunk driving cases because he believes Virginia's drunk driving law is unconstitutional.
The judge's argument is that if you presume intoxication at .08, you shift the burden to the defendant to prove his innocence and relieve the state of its Constitutional burden to prove all elements of the offense beyond a reasonable doubt. If a blood test reveals a .08 alcohol level, the state has proven a .08 alcohol level, but has it proven intoxication or impairment? Not necessarily.
So the judge is refusing to convict people accused of DWI if the state is relying only on this presumption and has no other evidence of impairment. This first came up in August and TalkLeft had a thread on it then, and then another last week.
I'm interested in this issue for several reasons, but the big one is this: I have a Bail Reform Act (BRA) trial tomorrow where the statute involved in the case includes the same sort of “rebuttable” presumption and burden shifting as Virginia's DWI law. Should I try to argue that this DC law is unconstitutional?
The D.C. Law is § 23-1327, “Penalties for failure to appear,” which says in pertinent part:
(b) Any failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear is wilful.
Section (b) is where the state shifts the burden to defendant. In effect, the statute says: If you don't show, you're presumed guilty until you prove otherwise. That sounds unconstitutional, doesn't it?
Yet, the Second Circuit said that this law was Constitutional. According to the annotations to the statute, section (b):
I don't get it. It's doublespeak. The burden isn't shifted but the defendant has to prove his innocence? How can that work?
But as those TalkLeft threads point out, U.S. law creates rebuttable presumptions all the time. Are all of these unconstitutional, or are there differences among them? And what are the chances a lower court judge is going to say so? None? Yeah, that's what I thought.
Still, I might argue something about this tomorrow. If you have anything to add (esp. cases regarding the Constitutionality of this burden shifting), please share! For example, according to the WaPo:
Does anyone know what those SCOTUS cases are? I haven't had a chance to dig into this so they may be easy to find; no need to do my research for me but if you have them off the top of your head, that would be awesome.
Posted 09:11 AM | Comments (3) | TrackBack | 3L crimlaw
Comments Problemos
Dear Readers,
If you have attempted to leave a comment here in recent weeks and never saw it show up on the site, I apologize. Since I upgraded to MT 3.2, I've been trying to figure out the optimal settings for its new spam filter. Apparently, I had the setting turned too high and all of your great comments were getting junked. I believe I have fixed that and your comments should now appear as soon as you post them (at least for the most part). I will also start watching this more closely in the future. Again, I apologize. Your comments are pretty much makes this worth doing, so please comment early and often. Thanks!
p.s.: Is Typekey authentication working for anyone?
Posted 08:39 AM | Comments (4) | TrackBack | meta-blogging
SCOTUS to Pro Se Criminal Defendants: Screw You
In a per curiam decision, the SCOTUS ruled today in Kane v. Garcia Espitia (PDF) that pro-se criminal defendants have no right to access to legal research materials. In other words, if you want to represent yourself in a criminal matter and you're incarcerated at the time, good luck, bub.
Ok, that's not exactly what it says. So what does it say? Here are your choices:
- The decision shows how out of touch the Court is with the reality of our legal system as it applies to criminal defendants. The court said Garcia Espitia “had declined, as was his right, to be represented by a lawyer with unlimited access to legal materials.” Since when do lawyers have unlimited access to legal materials? Last I checked in most of the country you have to pay for that and some lawyers can't afford it.
- The decision shows how narrowly this Court is interpreting the 6th Amendment.
- The decision shows how the Court uses the AEDPA as another tool to avoid deciding cases it doesn't want to decide.
- The decision shows how awful the AEDPA is for criminal defendants and the Constitution.
- The decision shows the Court respecting the wishes of Congress and declining to decide and issue that has not appropriately arisen for decision.
- The decision shows something else you haven't thought of, you silly little man.
Whadyathink?
Another potentially important criminal case granted cert. today was Hammon v. Indiana in which the Indiana Supreme Court held that a victim’s oral statements to a responding officer were not testimonial and therefore did not violate the confrontation clause of the Sixth Amendment. If the SCOTUS agrees, this could be really good for domestic violence prosecutions and pretty bad for domestic violence defendants.
I learned about both of these cases (and another one about 911 calls that was granted cert. today) via Willamette Law Online's email summaries of breaking legal news. I highly recommend it as a way to stay up-to-date on SCOTUS news (or 9th Circuit or Oregon higher courts, if that's what floats your boat). Good stuff.
Gearing Up for 50k
So what do you do after you've finished your first marathon? Hmm... Why not start your next 50k-word novel? NaNoWriMo 2005 started today and lots of people are already off to the races. You don't need anything but a pencil and paper and a few ideas in your head to get started, but if you're like me, you have almost as much fun with the technology as you do with the writing and wow! is there ever a bunch of technology you can choose from for this “event.”
First and most important in the NaNo tech extravaganza are the writing tools. In the past I've relied on Z-Write or MacJournal to write my novels, but I'm definitely using something new this year. Z-Write hasn't really been updated in quite a while and is a little buggy and aged. MacJournal is great, but it's not really made for this purpose and it's fun to try new things. TUAW reviewed some options recently, and I'm toying with using CopyWrite. It's got lots of cool things, but especially the ability to attach notes to individual documents like chapters or character sketches. (Here's a review of CopyWrite.) Ulysses looks cool, too, but way too expensive. And then there's the Scrivener beta, which looks like the swiss army knife of writing programs. It does all that and a bag of chips, or at least it claims to, but it's beta so you have to wonder about the wisdom of trusting it with your novel. Jer's Novel Writer, appears to be free and filled with all the neato cool things like notes attached to docs and also has a supercool margin notes feature that I imagine I'd use all the time. Finally, there's this Avenir thing that looks interesting, too.
But in addition to writing tools, there are writing counters! Last year I used NaNoWriMoProMe, which makes it easy to show your progress on a blog. But I also used the NaNo Report Card, an Excel sheet that helps you track your progress in multiple ways. You can find multiple versions in that discussion thread, one of which is available here. And if that's not enough, there are more blog word-counters here.
What to do? What to do? Oh, I know, I can play w/technology options all day and not write a word!
