Quick! Build more prisons!
Mister District Attorney checks in to tell us what he's been up to recently:
Sorry, it’s been way too long between posts, but I’ve just been unable to muster the writerly wherewithal to post anything. Work is still work. The bad guys still do terrible things to people, and we do our level best to lock ‘em up for as close to forever as we can.
Good to know.
Best public interest law school plan ever!
The latest comment on Blonde Justice's great second thread about choosing a public interest law school concludes:
This is really the best plan I've ever seen for those who have some certainty they want to do a particular kind of public interest law when they graduate. Oh how I wish I had done this!
Posted 09:24 AM | Comments (2) | TrackBack
My lawyer can beat up your lawyer.
Have you ever heard of a motion for a fist-fight? It seems a defense attorney in Western Montana filed such a thing in a criminal case. You can read the motion and response here.
It's an interesting way to emphasize that you think the prosecutor is making a ludicrous argument, but as the dark goddess of replevin notes, the case appears to be quite serious. Apparently one of the authors of the motion has decided to move away from the town as a result of the case. It's hard to know what to make of the case from the published accounts other than that it stems from one seriously scary high school party and that this is one seriously frustrated defense attorney.
In other Montana criminal defense news, the Billings public defender who is currently serving a 30-day suspension of her law license was formally censured by the Montana Supreme Court. Of course the actions that led to the censure are confidential. We wouldn't want the public to know any more than it already does about lawyers behaving badly, now would we?
Finally, the Montana Public Defender Commission is meeting tomorrow and Friday to talk about attorney salaries (among other things). That means next week, if all goes as planned, they will be posting job openings on the state jobs website.
When I tell people I want to move to Montana I mostly get strange looks and silence. Before they can even think of a suitable question to ask I always add, “my family lives there.” This makes the explanation easy, but it's far from the only reason I want to live there (even if it is the most important reason). I sometimes get kind of annoyed with this knee-jerk “why Montana!?” response, but now I'm glad for it. If it means that fewer people will be competing for whatever jobs the State Public Defender posts next week, then people can be as “why Montana?” as they want.
Posted 10:28 AM | Comments (3) | TrackBack
Advice for careers in criminal law
Professor Kerr recently asked for opinions on good advice for law students who might be considering careers in criminal law.
Coming from a law professor that is priceless! The post generated a veritable goldmine of priceless advice. First, these helpful thoughts on pursuing criminal appeals work, and more generally:
Excellent advice, I'm sure, but not so helpful if you made the mistake of taking internships in geographical areas where you can't/don't want to work. For people in that position (like me), a public defender offered this encouraging advice:
I've probably heard all of that before but it's great to see it all put together like that. In my recent interview one of the questions was: “Why did you spend a whole year working for this civil law thing? And don't they sue attorneys?” I couldn't figure out whether that seemed of interest to them b/c they thought it showed I'm not committed to criminal defense, or if they were concerned about it b/c they thought maybe I don't like lawyers and have some agenda to get them in trouble for malpractice. Now I realize it was probably both and if it comes up again I'll try to be more clear about addressing those potential concerns. (The real reason I did the civil law job was that it was interesting, it paid, and I wanted to learn at least about about the civil side of things while I had the chance.)
Many of the comments on this OrinKerr.com thread are from people doing criminal defense in private practice (like this one) and it's encouraging to hear that so many find that so rewarding since I might end up having to go that route if the public defender options don't come through.
The thread also offers a brief outline of how to start your own criminal defense practice, and this from a public defender that encapsulates why I prefer to find a job in a smaller jurisdiction:
Amen! I could quote just about every one of the comments here b/c they are all so helpful (this one even gives ), but better still, just read the rest of the thread on OrinKerr.com. If you're pursuing a career in criminal law, you'll find this 10 very well-spent minutes.
Lawyers: Moonlighting as pizza delivery boy = bad idea.
A few weeks ago Arbitrary and Capricious reported on a Missouri public defender who wasn't making enough money to pay his loans as a PD so he took a second job delivering pizzas and ran into a really awkward situation:
“The guy's mother called us and was very upset,” said Cathy R. Kelly, director of training and communications for the Missouri Public Defender's Training Division. “She said she wanted her son to have a real lawyer, not a pizza guy.”
Although that's a bit funny, it's also sad. The rest of the article details some of the other problems with MO's system of indigent defense. Like too many states, MO appears to be at risk of failing in its Constitutional duty to provide quality defense to the indigent accused. According to this story, the “cumulative turnover rate” for public defenders in Missouri since October 2005 is 100%. Yikes.
I'm posting this now b/c I had written it weeks ago and just never hit “publish,” but I was reminded of it b/c a Deputy Public Defender from Missouri emailed me recently to ask me to correct an error in this post about the contract public defender who was threatened w/having his contract cancelled if he took a certain case that one of his county employers didn't like. I said that this was happening in Missouri; it was actually in Mississippi. I have corrected the error and I apologize for it. I hope the Missouri legislature will wake up soon and give its hardworking public defenders the resources they need to do their jobs.
Posted 12:40 PM | Comments (1) | TrackBack
Criminal Defense Dilemmas
Blonde Justice has had a string of absolutely fantastic posts recently about criminal defense dilemmas. The first jumps off from the witness tampering imbroglio at the Moussaoui trial and asks whether “my supervisor told me to do it” can excuse an ethical breach by an attorney. In the comments, that led to some great discussion, including consideration of the ineffectiveness of relying on lawyers to regulate each other's ethical conduct.
The second post raises an ethical dilemma about the duty of attorney A to tell attorney B about a questionable aspect of a case when A hands off the case to B. The excellent discussion in the comments includes this gem from “jasonpw”:
And this from PD Dude:
And finally this from That Lawyer Dude:
It never fails to amaze me how many people sit convicted of crimes because a lawyer refused to believe the story the client told them and wouldn't put it before the jury.
Blondie's third post in this great series about ethical dilemmas is mostly her reaction to the previous discussions, plus a little twist for further consideration. It also addresses the “interview by suggestion technique,” which an attorney can use to guide a client toward a story that fits well with what the attorney thinks is a good theory of defense in the case. For example, if you're accused of possession of cocaine, in order to be convicted you have to actually know the cocaine was in your bag/pocket/car/whatever, and you had to actually know it was cocaine and not powdered sugar or something else. So in the “interview by suggestion” technique, a lawyer might ask you: “So you had no idea what was in that bag, did you?” or “You saw the baggie, but you thought it was powdered sugar, right? I mean, Joey is a baker, isn't he?” (I apologize for the really bad examples, but I hope you get the idea.) Blondie says this technique isn't her style; it's not mine either. I've learned different things from different lawyers about the extent to which this technique is useful, but in my admittedly limited experience it just has never seemed very helpful.
One of my mentors once told me along these lines that instead of asking a client “what happened?” you should ask “what is the government going to say happened?” Of course, your client can't know this, exactly, but it gives the client an initial clue that what's important is not necessarily “the whole truth” (since the client often does know that any more than you do),* but what the cops know and what the government is likely to be able to determine through investigation. I think this approach can be useful in some cases, but I think it can also lead to a troubling lack of candor between attorney and client which can ultimately be unhelpful. It can also lead pretty quickly to the whole “interview by suggestion” and its related problems.
So what is the best way to approach the initial or even second or third interview with a client? As some of Blondie's commentors suggest, “interview by suggestion” is different from hearing your client's story and then explaining possible defenses. My limited experience has been that a client will usually not tell me much about what “really” happened at first. In fact, I'll get nothing but denial. “I wasn't there” or “I didn't do it” or “It wasn't mine.” But after I explain the elements of the crime and what must be proven for my client to be convicted, the client will often mention some bit of info that conforms at least somewhat to a possible defense. Is the client lying at that point? Maybe. But what matters more is what's going to convince the judge (or jury, but I've never been anywhere near one of those). The client can say anything he/she wants and it can all be 100% true, but none of it will matter if the government has a witness or piece of evidence that is going to make the judge tend to doubt the client's version of the story.
Speaking of Criminal Defense Dilemmas, Gideon's Guardians had a good one a while back, too. I have one of my own I've been meaning to write about, but maybe another day.
* The question of truth in the law is too fraught to go into here but what I'm getting at here is that the client can only know what he saw or heard or did. That's part of the “truth,” but, it's not only reliable. The client's story is always filtered through the stress and fear of arrest and possible (or real) incarceration, so even if he thinks he's telling you the whole truth, he might be forgetting or changing things w/out even meaning to. And what about what the cops did or said? Does the client know those things, or have intervening circumstances messed up his/her memories? And many times the client doesn't know what the cops did or said; he was paying attention to something else, such as the fact that he was totally busted. So obviously even the most honest and trustworthy client can only give you a story. The truth? As the Lawyer Dude said, it doesn't play a big role in our system of justice.
Posted 10:38 AM | Comments (1) | TrackBack
Reciprocal Criminal Discovery in MA
Dan Filer comments on the NY Times' coverage of Commonwealth v. Durham, the recent Massachusetts high court decision requiring defense counsel to turn over statements it plans to use to impeach gov't witnesses. As Filer notes, the Times is pretty late to the game here—Woman of the Law posted about this weeks ago. Still, both the Times and Filer add some interesting perspective. My first reaction was that this was awful, and like Filer, I can't imagine it's going to help defendants much. On one hand, I agree with the theory that everyone benefits when we minimize the “gotcha” element of trials and try to make them more about who has the most and best facts on their side. Or, as one off the judges in that case wrote:
On the other hand, we know there's always going to be a gotcha element to trials and the state has many more resources available to gather evidence and overpower defendants, so there's a possible equity in allowing the defense to keep a couple of cards closer to its vest. I also agree with one of the defense attorneys involved that this is just a way to make lying witnesses into better liars. I mean, if you have impeachment evidence for a witness, that means that the witness is already of questionable credibility and therefore more likely than the average person to be willing to lie. This will just give those people time and opportunity to strengthen their stories.
The Times story adds the context that only two other states require this reciprocal discovery in criminal cases—NJ and MN. At least one lawyer in MN said this rule has lead to more dismissals b/c the prosecution sees the impeachment evidence and realizes its case is weak. However, that's just anecdotal. This would be a great topic for research—have these rules really led to more dismissals in NJ and MN?
Conviction, Take Two: “Denial”
I just got around to watching the second episode of “Conviction,” the latest addition to the Law & Order tv franchise. To give you an idea of the quality of this show, Blonde Justice can't even watch it, and she's a practicing public defender who knows a thing or two about criminal trials and prosecutors. As Magic Cookie suggests, the degree to which one likes this show may be inversely related to how much one knows about prosecutors. I guess I don't know very much, so the show retains some fascination.
The second episode raised lots of questions for those of us who don't really know the ins and outs of how prosecutors do their jobs. For example, how common is it for prosecutors to run around their jurisdiction chasing down witnesses and otherwise investigating cases? I've always been under the impression that prosecutors never leave their offices except to go to court. Don't the police do their investigation for them? Does it just depend on the jurisdiction? Or the prosecutor? And how often would they pay their witnesses? Here in D.C., witness get $40 just for showing up to court in response to a subpoena, so I guess prosecutors don't have to fork it over so much.
Next, Harry Potter (the baby prosecutor) would not be allowed to go handle arraignments for the first time w/out any supervision whatsoever, would he? I mean, prosecutors might be irresponsible, but...
And talk about your prosecutorial discretion—that blonde “bureau chief” w/the glasses sure has a lot of power. It seems like she's the only one who decides what to charge and what deals are allowed. Sure, they talk about political pressure coming from somewhere, but she's the enforcer. I would so hate to be that person, but I would hate even more working under her thumb and being told how I can and cannot handle my cases. She makes her prosecutors into even bigger tools than they would be on their own.
The best thing about this episode is that it shows that prosecutors often have to be inhuman jerks and prosecute people they don't think they should be prosecuting. I'm referring to the 14-year-old who beats his older brother to death with a baseball bat after the older brother had physically and mentally tortured the defendant for two years. The case also shows how frequently the law can do nothing about the real cause or guilty party in crime. Here, the father supposedly pushed the dead older brother mercilessly, and the older brother then took out his frustrations on his younger brother; therefore, the father is the real person to blame for the fact that the older brother is now dead. This is the kind of emotional manipulation this show (and its Law & Order siblings) is best at, but still, it's a pretty good illustration of one of the reasons I don't want to be a prosecutor—I just could not try that kid (as an adult, no less!) and lock him up for some sizable number of years.
Some might say that this sort of dreck humanizes prosecutors by casting them in the most favorable possible light. No doubt, that's true. But this is still positive b/c I think too many idealistic law students think they want to be prosecutors because they don't realize they're going to have to do these kinds of things and that they will have so little control over what to charge, what pleas they can offer, etc. So this kind of thing might at least give a short pause to some of those would-be prosecutors, and that's a good thing, I think.
The worst thing about this episode is the totally implausible (I hope) situation where the state's witness (described as a homeless, drug-addicted prostitute) doesn't show and instead of dismissing the case (which is what would probably happen in D.C.), the judge “orders” the attorneys to “make a deal.” As if. If I was the defense attorney I'd just say no deal and keep going to court in the hope that the witness would continue to not show and the judge would eventually dismiss. I guess if the offer was really awesome I might think about it, but....
I don't even want to get into the whole “bad” gambling prosecutor plotline. Whatever. I mean, I'm sure there are prosecutors who get into that sort of trouble, but those people—who obviously know their behavior is reprehensible, if not illegal—are not nearly as interesting to me as the ones who think they are doing the right thing.
Anyway, that's episode two. What did you think of it?
p.s.: Tivo should be recording episode three for me tonight, so whenever I get around to watching it, I'll let you know
Posted 10:53 AM | Comments (1) | TrackBack
Victory for Alaskablawg!
Congratulations to Alaskablawger Steven Wells on his nearly complete victory in the case of Rachel Waterman, the Alaska teen blogger accused of plotting her mother's murder. Yesterday, the judge dismissed all charges and it seems unlikely the state will try to bring the case back, based on Alaskablawg's explanation of things. He calls yesterday the best day of his professional life and I can only imagine what it must feel like to get such a result after so much work (the case has already been tried once and ended in a hung jury) and with stakes so high. I'm in awe.
[Thanks to Blonde Justice for bringing this latest development to my attention.]
Conviction? Oh, that's clever.
Dick Wolf, Mr. Law and Order, has a new show that sings the praises of the beloved prosecutor. The show is called “Conviction.” You know, that's what prosecutors get b/c that's what they have.
(Excuse me. I just had to pause there to get a drink because I was starting to gag a little.)
From the name alone you can tell this is just going to be a top-notch show. And the opening scenes do not disappoint, setting up the whole cliched sympathy story about Nick Potter, the hot-shot law student who went to a great school (NYU) and has rich and powerful parents and friends but who turns down the big money firm job ($150k/year!) because “I really want to try cases.” You might think that's a bit of a dropped ball; if the guy really had conviction, wouldn't his motivation be to protect the public and put the bad guys behind bars? Of course it would! But don't worry, the show knows what it's doing—Potter can't just be born with the required conviction, he's going to have to earn it.
As Potter goes about this task, the show makes sure to hammer us over the head with the righteousness of the prosecutor's profession just about as often as it can. Take, for example, our young hero's first meeting with his supervisor. As young Harry, er, Nick Potter is leaving his supervisor's office he points to a picture of a young, blonde, white girl pinned to the supervisor's bulletin board. “Is that your daughter?” Potter asks. “No. Murder victim,” the supervisor mutters. Hammer, meet head.
But it gets even better when a prosecutor is killed “in the line of duty.” (Because, well, you know, that kind of thing happens all the time.) The message is clear: Just like the cops, these valiant prosecutors are putting their lives on the line every day just to keep the streets safe for you, dear viewer. Don't you love and admire them?
To its credit, the show does not depict prosecutors as saints. They oversleep, drink too much, and have problems in their relationships. Sometimes they even make little blonde girls (there's a theme here, it seems) cry in order to make them testify so they can put the bad guys behind bars. Of course, that prosecutor had to make that little girl cry because of the cruel injustice that is the rule against hearsay and the defendant's right to cross examine witnesses against him. If not for that, the prosecutor could do the right thing and lock the bad guy up on the basis of videotaped testimony alone. Damn that pesky Constitution!
To further make the point that prosecutors are only human (but nobly so, because of their, um, conviction), one of them even leaves evidence laying around in a public place, thereby destroying the chain of custody and making the evidence inadmissible against her defendant. Lucky for us, the vulnerable and innocent public, the judge is there to save silly prosecutors like this from their own stupidity and help them keep increasing the prison population; the good judge just chooses to ignore this glaring violation of the rules of evidence. Hooray for the objective factfinder who is guided only by the rule off law!
In sum, the show is basically what you'd expect from the creator of Law & Order—another pean to the people that work so hard and sacrifice so much to keep us all safe. I for one, could hardly be more thankful. *cough*
Sarcasm aside, you know I'm going to keep watching the show. The over/under on Potter has him at three months. I'd say the over/under on this show is about three weeks. If you've seen it, would you take the over or the under?
Posted 04:05 PM | Comments (6) | TrackBack
What a week! A.k.a.: What she said!
Isn't Saturday morning grand? The start of any day is a moment of possibility—you never know what might happen that day, right? But Saturday morning is possibility times two, or maybe three, or maybe twenty, because it's the start of two days during which maybe, just maybe, you'll finally have time to do all those things that have been building up on the fringes of your to-do list for the last week. Possibility. It's a wonderful thing.
This Saturday morning is especially great because the past week was so damned packed with stress and busy.
I wasn't the only one with a week like this. But while the busyness of the week made it seem long to Kristine, all that action made the week fly by for me. And it really was a whirlwind of a week. Monday I prepared for trial, which turned into a motions hearing, which turned into a “motions denied!” and a plea. I thought that was a pretty bad day. I mean, it felt crappy, even though it was a good day in terms of all I learned.
Then there was Wednesday—yet another rough day in court. But again, I wasn't the only one — Energy Spatula summarized both our Wednesdays perfectly: Your Honor, as it turns out, I am a moron. I apologize. Deeply.
What made my Wednesday so rough was a combination of the sort of lack-of-confidence hangover from Tuesday and the fact that the client I've worked for all year, my very first client ever, refused to talk to me. That wasn't really new—he hasn't really been talking to me for about two months now, which has made representing him kind of difficult. But during that time, he was pronounced incompetent to stand trial so I just had to tell myself that he didn't like me because he didn't really understand what was going on.
On Wednesday my client was found competent and he was pretty clear about the fact that he did not want me to represent him anymore. He said he didn't want any student—he wanted a real lawyer. So, faced with a client who wouldn't talk to me and in fact accused me of actively working to keep him locked up, I moved to withdraw as his assigned counsel. I was sort of prepared for the judge to at least have a little discussion about this motion to at least test out my client's certainty that he did not want me as his counsel, but that didn't happen. Instead, without a blink the judge granted my motion, called out an attorney who was waiting for her matters to be called, and appointed her as my now former client's representative right there on the spot. Just like that, bing bang, I was minus one client.
I still don't know what to think of that. It sucked because it shook my confidence further even though I know I did everything I could for that client and there's no rational reason he would not want me to represent him. In fact, I was able to get some great results for this client previously, such as getting him released on his own recognizance after his first, second, and third charges, winning a probable cause hearing that my supervisor assumed was not winnable, and negotiating a plea offer that would have had him out of jail last November w/barely more than time served if only we'd been able to make it through the plea colloquy. So I know I didn't fail this client, but still, it sucks that he doesn't understand that.
Then there's the fact that the judge that granted the withdrawal w/out hesitation was the same judge who denied my motions so profoundly the day before, so I had to wonder whether she also questioned my competence—either based on my performance the previous day, or on the fact that I was making the motion at all. Was she disgusted w/me that I would just throw up my hands and give up on a tough client? Is that what I did?
Always the second-guessing. But it just seemed that if he felt like I was his enemy and didn't want to work with me, it would be better for him in the long run to work with someone he likes or trusts or at least doesn't actively dislike. I want what he wants—for him to be free and out of the criminal system as soon as possible. It just seemed like getting him new counsel was going to be the best way to achieve that for him.
But Wednesday wasn't finished with me yet. I also had a simple set date that turned a little sketchy. After the preliminary hearing where the judge barely found probable cause, I thought we were just going to set a date for trial. But no, that would be two easy. Instead the two attorneys for the codefendants wanted to set a status date to possibly accept plea offers, and doubtless those plea offers would include their clients making statements against my client, which means if they take pleas and I don't, my client could get screwed. Awesome. Thanks, guys. I know you've gotta do what's best for your clients, but if it's good for your clients to plea guilty to crimes the government is just not going to be able to prove then I'm a monkey's uncle. Grr.
Thursday was all about making a zillion phone calls and investigating the above case, as well as preparing for Friday in court. Friday was not that big a deal. I had two matters that should have taken about 5 minutes each, which meant I was in court from 9:00 a.m. to about 3 p.m. So yeah, pretty typical.
In all, it was an action-packed and stressful week, but as I've said before, I learned tons of good lessons and nothing really bad happened to my clients as a result of my learning experiences so it's all going to work out, I think. Still, I'm so glad it's Saturday!
p.s.: I know if you're a public defender or other trial attorney reading this you're probably thinking, “quit yer whining.” I know the day-to-day life of the full-time public defender is packed with much more of this kind of thing and I'd better get used to it. So this isn't whining; this is me getting used to it.
Posted 11:28 AM | Comments (1) | TrackBack
You lose, suckaaaah!
I argued a suppression motion (statements and evidence) today and at the end of it that's what the judge said to me: You lose, suckaaaah!
So let's see what we learned today:
- You can never prepare too much for any court proceeding that requires questioning witnesses and/or making arguments. I repeat: There is no such thing as over-preparation!
- Cross examinations are hard. When the witness doesn't say what you were hoping/expecting, you have to pick up and keep moving or you'll look really stupid. More preparation (e.g., investigation) might reduce the chance you'll get answers you don't expect or don't want. See lesson number one, above.
- Asking leading questions without sounding hostile or petulant is an art.
- Remember: If a judge overrules your objection, it's generally a fairly bad idea to make it again just to see if she's changed her mind in the last 30 seconds.
- When the judge makes and sustains her own objections to your questions w/out any prompting from opposing counsel, that's probably a good sign you're seriously screwing up. It is also a sign that the prosecutor may be incompetent or asleep at the wheel, but forget about that—it will only make you feel worse when you eventually lose.
- Judges believe cops. Get used to hearing the words, “the court credited the testimony of the police officers.”
- Judges do not believe defendants. Get used to hearing the words, “the court did not credit the testimony of the defendant.”
- Innis may not be as handy as it seems to defense attorneys.
- Pulling together arguments on the fly and incorporating all of the important evidence just elicited at a hearing is crazy tough. There were at least three big things I forgot to say in my final argument, dammit. They almost certainly wouldn't have changed the outcome, but I still wish I'd said them.
- It takes concentration and constant vigilance not to make faces at judges who insist on spending five minutes describing in painful detail why they are basically ignoring everything you've been saying for the last two hours.
In the end, although it was tough to hear how absolutely my motions were denied, my client got a pretty good sentence of all suspended time and a few months supervised probation. He was pleased to be staying out of jail so all's well that ends well, more or less.
And hey, tomorrow's another day, and in front of the same judge, too. You're jealous, aren't you?
Posted 09:03 PM | Comments (6) | TrackBack
Alaskablawg Hangs 10
Speaking of trials, Steven Wells, a blogging public defender, just won a hung jury in the murder trial of Rachel Waterman, “a Southeast Alaska teenager accused of plotting with two former boyfriends to murder her mother.” Wells writes about the verdict on his own blog, saying in part:
As Skelly puts it, “A great lawyer blogs among us.”
For more information about the Waterman case, CourtTV has been following it pretty closely. One of the angles that makes the story especially interesting is that, like her lawyer, Waterman was a blogger:
Her last blog entry before the police seized her computer and took her to jail said:
I have a feeling that final post did not make Wells' job any easier, which is all the more reason for him to be proud of the hung jury.
Posted 09:37 AM | Comments (2) | TrackBack
The Secret of Today's Success
Everyone say it with me now: An average, everyday tennis shoe cannot be a “dangerous weapon” in DC unless its manner of use inflicts “serious bodily injury.”
That's what all the cases I read say, anyway. Let's hope the judge agrees with me.
Unfortunately, even if the judge agrees on that point, there's another charge for which I have no such neat response. Ok, I know what I'm going to argue about it, but, well, I'm a bit less confident that my argument will carry the day.
Anyway, unlike my last “first” trial which ended in a failed plea agreement, this trial is almost certainly going to go today. In, like, a couple of hours. Am I really ready for this? I guess I'll find out soon enough....
Posted 07:28 AM | Comments (2) | TrackBack
But Montana's PD reform continues
As Arbitrary and Capricious notes, Montana's new public defender has just told all chief and deputy public defenders in the state that their jobs have been eliminated. This makes sense because the state is moving from a public defender system in which PDs were county employees to one in which all PDs will be state employees.
So what does this mean for a soon-to-graduate law student who would like to become a public defender in Montana? I have no idea. The one report we have of this says that “The terminated chief and deputy chief public defenders can apply for the regional and public defender jobs, according to Hood's letter.” So I assume that most—it not all—former chief and deputy PDs will end up doing much the same thing they do now; the only difference is they will report to the state's chief public defender rather than to a county board. If that's the case, this move won't create any PD vacancies in the state, meaning this move won't change my chances of getting a job there.
I could be wrong, though. I hope so. Fat Tire is widely available throughout Montana.
Other posts about Montana's new public defender system:
Posted 09:23 AM | Comments (7) | TrackBack
CSI Effect As Blowback
Some cops and prosecutors are claiming that TV crime shows are helping real life murderers commit crimes and cover their tracks. If true, this would be another facet of the so-called “CSI effect,” “an expectation in every trial for the type of high-tech forensic evidence the show's investigators uncover.” Both of these developments are disturbing—especially if you're a cop or prosecutor. What's sort of funny about these “CSI effects” is that they're products of shows that are popular primarily because Americans so badly want to believe in humanity's ability to perfectly track down and punish law breakers and “evildoers.” It appears to work like this:
- People get scared.
- The President or the prosecutor or the police (the three P's!) reassure the scared people: “Don't worry, we're on it!”
- The scared people see CSI and think, “Sweet! With cops and investigators and technology like that, we have nothing to fear!”
- The scared people aren't really scared quite so much. CSI and similar shows become wildly popular.
- A few of the not-so-scared CSI watchers commit crimes, using tricks they saw on the shows to make it harder for law enforcement to crack their case. More people get away with their crimes.
- The rest of the not-so-scared CSI watchers sit on juries and hold the state to a higher burden of proof; therefore, more people get away with their crimes
Now, the real question: Is the Bush/Cheney “War on Terra” really just “CSI” for global terrorism?
Posted 06:42 AM | Comments (2) | TrackBack
Penciling in a murder trial
A lot of law students think they have tough class schedules and that law school is so hard and all that, but what if your calendar looked like this:
Holy crap. I have my first misdemeanor trial scheduled in a couple of weeks and I'm freaked out about that (a little). If it was a murder trial? I can't even imagine.
Aside from that stress, “Janet” offers some great insight into the mind of a high-stakes criminal defender:
So there you go: A public defender who is basically motivated by a slightly modified Golden Rule. When put that way, the cliched “how can you defend those people?” becomes “how could you not?”
At any rate, good luck, Janet!
Posted 10:24 PM | Comments (1) | TrackBack
The Talk of the Crimlaw Blawgosphere
For the past week everybody in the crimlaw blawgosphere (or at least the part of it that I know) has been talking about two great examinations of criminal justice in America. The first is a three-part series called The $40 Lawyer about Charley Demosthenous, an unlikely public defender in Florida. (In that jurisdiction you have to pay a $40 application fee to get a public defender, hence the title of the series.) The second is a five-part series called Tainted Trials, Stolen Justice about the failures of the criminal justice system in Silicon Valley.
The three parts of the unlikely PD series (one, two, and three) have already received plenty of commentary elsewhere, including especially the posts and comment threads (and links to further posts and discussion) from Blonde Justice (and here) and Arbitrary and Capricious (and here). While the series is terrific reading for anyone wanting to be a PD, it is, as many have noted (and I mentioned the other day), sad to see the article perpetuate the stereotype that PD is a job of last resort for slacker law students. Nothing could be further from the truth in most jurisdictions. Take it from someone who's now looking for a PD job—these are incredibly competitive positions and there are many many people who would love to have one but can't get one b/c of that stiff competition. That said, the series also shows what a tough job it can be—often thankless, low-paid, and with an incessant and grueling workload. Even if the series is suggesting that PDs are the losers of the legal world, it can't help but give them props for their dedication and determination against big odds.
Although I haven't been able to read everything people have already said about this series, I haven't seen one reaction that struck me from the first installment, namely that Charely's colleague, Chris Chapman, sounds like a tool:
“No, man, no,” Chapman says, trying to spare Charley's feelings, though he knows the state is griping.
Chapman is bald and chatty and an improbable presence, grandson of former Tampa Bay Buccaneers owner Hugh Culverhouse. He wanted to be a fighter pilot or, failing that, a prosecutor. He hates the long hours at the PD's office but wants the job on his resume. His rich-kid hobbies - horseback riding, fencing, piloting prop planes - seem alien to his cash-strapped colleagues.
Chapman thinks Charley's courtroom approach is shortsighted and self-sabotaging. Chapman tries hard not to irritate what he calls “my state attorney people.” He thinks being nice gets him better deals.
Plus, he figures he'll be in private practice soon and may be working with some of them. “I'm looking ahead,” Chapman says. “If you ask any state attorney over there about their favorite public defender, I bet they'd say me.”
Great strategy, Mr. Chapman! Way to put your own interests ahead of those of your clients! I, for one, cheered when I read in the second installment of the series that Chapman resigned from the PD's office. He claimed his bald head, white skin, and upper-class background made him an outsider in the PD's office, but just from the little the article tells us about him, I'd have to say the real reason he never “fit in” was his attitude. Perhaps that does come from his upper-class background, but I worked my first summer with a PD who had come from and still had lots of money and she was a totally kick-ass PD who delighted in pissing of the prosecutors if doing so would help her clients.
As far as the five-part Santa Clara County series, I haven't been able to read the whole thing yet, but the third installment focuses on the defense, basically concluding that inept defense counsel produces injustice time and again.
But the newspaper review found a telling distinction, in that private attorneys' failings are often driven by money. The most unscrupulous behavior involved a class of private lawyers who take cases for a relatively low fee, and then boost their profits by avoiding a time-consuming trial.
Defendants with language barriers and little education found themselves at the mercy of these lawyers, who pushed them to plead guilty even when it may not have been in their best interest. In 10 cases uncovered by the review, defendants buckled; in four of those cases, including Herrera's, there was significant evidence the defendants were not guilty.
Laurie Levenson, a former federal prosecutor who now is a professor of criminal law and ethics at Los Angeles' Loyola Law School, calls the phenomenon of innocent people pleading guilty to crimes ``one of my biggest concerns. Unfortunately, it happens all the time,'' she added, because guilty pleas ``take a lot less work.''
In other words: When PDs fail it's because they're overworked, but when private defense attorneys fail, it's because they're greedy. That sounds about right, and it's a situation that I doubt will change any time soon because the end result is that we get more “bad people” off the streets, and that's the whole point of the criminal justice system, right?
The rest of the installment on the defense function is definitely worth reading. Defense attorneys may benefit from the reminder to be vigilant about making objections and preserving issues for appeal, while the article's indictment of the judiciary for failing to discipline ineffective counsel argues for the need for reform in that area.
UPDATE: A couple more links about this story:
- Public Defender Dude had many of the same reactions I did.
- Great comments from David Feige at Indefensible, here, here, and here. He calls the series “offensive” and “insufferable.”
Posted 11:53 AM | Comments (1) | TrackBack
Ain't I A Lawyer?
Ok, I'm not, but I really think I will be soon, and a public defender too, I hope, so you can understand why I find this little story so simultaneously sad and funny. If you don't laugh you might cry, right?
And you know, there's a reason people have this misperception that public defenders are not lawyers, that they're “public pretenders,” and/or that they are somehow complicit in trying to punish their clients. That reason is that prosecutors and most legislators and public figures don't like public defenders. Defending criminals is not popular with voters, its importance doesn't fit easily into soundbites, so it is always, always dissed. And so our cultural is drowning in the message that public defenders (and all other indigent criminal defense attorneys) are somehow either incompetent or ineffective, when most of the time just the opposite is true.
Stories like The $40 Lawyer (which I will post more about soon) don't exactly help, but they present the chicken/egg question: Does media coverage like that make people think less of PDs, or does the fact that people already think less of PDs simply encourage stories like The $40 Lawyer?
Posted 11:32 AM | Comments (7) | TrackBack
Criminal Justice Web Imbalance
Searching for jobs I can't help but notice that no matter what city or county website I visit I can always find information about the prosecutor for that jurisdiction. The prosecutor may be called a “City Attorney” or a “County Attorney” or a “District Attorney,” but his or her office always has a website and it's always very easy to find.
On the other hand, if you want to find information about that jurisdiction's public defender or other system of indigent criminal defense, well, good freaking luck. Just another sign of Gideon's Broken Promise, I guess.
Ok, I understand that even where there's a healthy and well-funded public defender's office, most of the people who will benefit from its services are not going to go looking for its website. Yet public defenders are public servants every bit as much as prosecutors; if one needs a website, so does the other. And that's true whether the jurisdiction has an actual public defender or whether it fulfills its Constitutional obligation to provide indigent criminal defense services via some other means. In other words, it should be just as easy for a person to learn about a jurisdiction's prosecuting function as it is to learn about its defense function, yet there's virtually no information about that defense function available for most jurisdictions.
On a personal note, this stinks especially if you're trying to find a defense job somewhere other than one of the major PD markets!
Posted 09:13 AM | Comments (9) | TrackBack
Update: Montana's Public Defender System
Montana's new, “model,” statewide public defender system is still gearing up for a July 2006 start-date. I've been following the progress through the new State Public Defender webpage where the Public Defender Commission has kindly been posting the agendas and minutes of its monthly meetings. At the December meeting, the Board discussed a state attorney general's decision that their enabling legislation allows them to retain current state and county employees, but does not require them to do so. That means they could, theoretically, be replacing some attorneys or hiring new ones for whatever reason, and that would be good for me. Still, hiring new attorneys wasn't on the agenda of their meeting yesterday so if they plan to do that I guess it will be in the future.
One other tidbit I just noticed: The last sentence of this article about the appointment last October of Randi Hood as the new Chief Public Defender says “She is married to John Connor, the chief criminal prosecutor in the attorney general’s office.” Huh? Is there really no conflict of interest there for either of them?
Public Defender Retreat?
I just learned there's a “6th Annual Public Defender Retreat” coming up in March in Las Vegas. Does anyone out there know anything about this?
UPDATE: Sanchovilla, the Public Defender Investigator, knows something about this conference. He writes:
World Defender Poker Championship? Sounds very tempting, but I think I'll wait until I'm actually a defender before I try to buy in.
Posted 08:16 PM | Comments (2) | TrackBack
I am the Rule of Lenity
Via Divine Angst via Citations, Which Canon of Statutory Construction Are You?
Big shock there, huh? I'm not sure “soft on crime” is a fair way to put it. How about “more concerned with fairness and due process than illusions of public safety”?
Posted 02:20 PM | Comments (1) | TrackBack
A Plainspoken Public Defender
I haven't been following this case so I might not have the story straight here, but as best I can tell it goes like this: A Missouri Mississippi attorney had a contract with two counties to be their public defender. He apparently also does his own private work. He considers taking on an unpopular case. One of the counties for whom he's the PD says if he takes the case, they'll terminate his PD contract. He takes the case. The county fires him.
Awesome, don't you think? It means you have the right to an attorney but only one who only takes cases approved by the local bigshots. But don't listen to me, listen to the public defender involved:
What it boils down to is something that I have known and personally observed about members of the “unwashed masses” for many years: When the Constitution and Bill of Rights are applied to benefit others, the right to counsel, due process, fair trial et al. are “technicalities”. Criminals get off on technicalities such as the 4th Amendment. Only when one of their asses is in a sling are these same documents “fundamental rights”.
Ain't that the truth. The same is true for all those people who say they don't care if the NSA is spying on them b/c they have nothing to hide. If they were arrested (say, because of some “misunderstanding”), they'd quickly sing another tune.
I wish people weren't so selfishly shortsighted, but then, if wishes were fishes...
BTW, I originally learned of this story via Alaskablawg, which is an awesome blog for anyone thinking about becoming a public defender. Excellent stuff. Plus, he's a celebrity: His trial is going to be webcast next week on CourtTV!
UPDATE: This post originally said that this situation happened in Missouri. My apologies to the Missouri State Public Defender for the error.
Posted 11:09 AM | Comments (2) | TrackBack
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
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
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
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
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
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
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.
Defender's Dilemma: Is it ever better for your client to be in jail?
My first ever client was arrested for the third time last week—thanks to me. I'm really starting to wonder if I'm really helping this guy at all.
Long story short: When he was first arrested on a minor misdemeanor, I was assigned to his case and I argued for his release on his own recognizance while we prepared for trial. He was released with conditions to stay away from a designated area of the city. The next day, he was arrested in that stay-away area and held for 5 days, after which I again went to court and argued for his release on his own recognizance. He was released and we set a date for a status hearing in both cases for about two weeks later. Two weeks later, he failed to appear in court and the judge issued a warrant for his arrest. Thus, last week he was picked up on that warrant and hauled back into jail; luckily, he didn't get any new charges, but the failure to appear is the most serious charge of the three—it carries a minimum of 90 days in jail if he's convicted and as far as I can tell we don't have much of a defense for that. Bringing the story up to date, we went to court last week and argued for his release once more. To my own (and my supervisor's) suprise, the judge let him go on his own recognizance to await trial. We set a trial date for about three weeks out.
After our appearance, I set an appointment with my client to meet the following day to talk about what we were going to do and to impress upon him once again the importance of staying in touch with me and making his court dates. The next day, he didn't show. This is basically what has happened the last two times he was released: I set an appointment, he misses it, and then I don't hear from him again until the next time he's arrested. He's homeless and will not tell me where I can find him on the street (even though I know many homeless people tend to hang in relatively small areas with which they are familiar). I have looked for him in the neighborhoods where he's been arrested but I have never been able to locate him on my own.
Hence, my dilemma: Am I doing this guy any favors by continuing to get him out of jail? Of course, he never wants to be in jail, so he's always happy to be released. However, he's now facing about six times the potential jail time he could have even been eligible for if we would have just pleaded guilty on day one, and honestly, I kind of feel responsible for that. I mean, I've been doing what he wants—getting him out of jail. However, in doing so, I've helped make his situation much, much worse.
So what do you think? And this is a question especially for the public defender types out there: Is it ever better for your client to remain in jail? And does this sound like one of those times? If my client fails to appear for trial in a couple of weeks, I probably won't be able to argue him out of jail a fourth time; I think that will be the end of the line for him. But should I have argued for his release the second time? The third? Is there a limit here, or should you always do what your client wants you to do in this type of situation?
Posted 01:13 PM | Comments (18) | TrackBack
Montana Public Defender Act
Since Montana is one of the states where I'd like to get a job (sssh! Don't tell my girlfriend!), I've been reading up a bit on Montana's recently revamped public defender system. As NLADA notes, the state passed the Montana Public Defender Act last June. It supposedly attempts to implement the ABA's 10 Principles of a Public Defense System (PDF). The Act was a response to a lawsuit brought by the ACLU charging that Montana's previous system of indigent defense was insufficient. According to the ACLU, the system was badly in need of reform (but at least it wasn't as bad as its neighbor, ND, where the public defender system is being run by a prosecutor).
From a quick read of the Montana Act, it looks like the legislation takes public defender responsibilities from the county level and moves them to the state level by creating a State Public Defender Office headed by a Chief Public Defender. The Chief will hire one Deputy Public Defender for each of 11 “regions” in the state. I'm not sure how regions are delineated. Those Deputies will then hire and manage public defenders for their regions, and/or contract w/private attorneys to furnish indigent defense. The whole thing will be governed by a Public Defender Commission whose 11 members will be appointed by the governor.
All of this sounds fine and dandy, but what I want to know is: 1) Does this mean they'll be hiring and employing more or fewer public defenders? and 2) How, where, and when should I apply for such a job? The Commission was supposed to have been appointed by July 1, 2005. Did it happen? The state was advertising for a Chief Public Defender, so that's a good sign, and it seems a safe bet that any public defender jobs will be advertised on the state jobs site, as well. But who knows? I guess I'll just have to keep my eyes peeled, but if any one out there has any more info or tips, the comments are always open!
Of course, there are also forces at work encouraging me to go to someplace like Michigan or Illinois. It looks like Cook County might be a good bet in the Land of Lincoln, but what about MI? Washtenaw County (Ann Arbor) would be nice, but it doesn't appear to be hiring at the moment. Not that most openings advertised right now would really be relevant anyway b/c if a public defender's office is advertising a job now, that's a pretty good sign it wants an attorney now—not a year from now after I pass the bar. *sigh*
Posted 04:56 PM | Comments (2) | TrackBack
Locked Up to Die in Templeman III
Since hurricane Katrina hit we've all heard many stories of poor planning, and poor-to-horrible choices made by people who were in various positions of responsibility in terms of helping to reduce the human cost of the storm. But among those stories, yesterday was the first I'd heard of the Orleans Parish jail where guards and officials just left the prisoners locked up to die when the floodwaters started rising. L. pointed me to yesterday's Democracy Now which has many of the details about the facility known as Templeman III.
Thumbnail sketch: The storm started and no one did anything about evacuating the jail; instead, many area jails transferred prisoners there so the place was totally overcrowded w/people just wandering in common areas, etc. Water started rising, the guards abandoned the jail. Eventually some of the prisoners who were sort of “free” in the common areas helped others break out of lower cells so they wouldn't drown. And when prisoners eventually got out of the jail, the guards were waiting outside to transport them to an overpass where they were made to sit, some for three days or more. They were not allowed to move and had to relieve themselves where they sat. They were also not given food or water. When they were eventually bused out, they were scattered all over the place to approximately 39 facilities. This has made tracking them down and helping them get out of jail a nightmare. Many of them were moved to a prison football field somewhere where death-row prisoners were mingling freely w/misdemeanor defendants who hadn't even had a trial yet and had just been picked up for reading taro cards w/out a permit. Guards would come to the football field once a day and throw peanut butter sandwiches over the fence.
Currently over 500 prisoners from Templeman III are still unaccounted for, though it seems unlikely that that many died. Thank goodness for criminal defense attorneys Phyllis Mann, Ben Cohen, and Marcia Widder, who have been investigating all of this and have filed writs of habeas to get as many of these people released as possible.
Imagine: You're picked up for something ridiculous like reading taro cards, you face a max of 1-3 days in jail maybe—if you're even convicted—and you end up being in jail for weeks and going through all of the above horror. Many of these people were just being held pending trial!
How the heck could this happen? What were those guards thinking when they just left the jail w/thousands of prisoners locked inside as the water began to rise?
What is Allocution? Take II
Last week Blonde Justice and I exchanged notes about the meaning of the word “allocution.” I noted that the U.S. Attorneys' plea offers generally indicate whether the AUSA (Assistant U.S. Attorney) wants to waive or reserve allocution. I thought that meant they were waiving or reserving the right to argue at sentencing about specific terms of the sentence, such as how long a period of incarceration might be, or how how many hours of community service, etc. Blondie explained that, in fact, “allocution” is a term of art that usually refers to a defendant's formal recitation of guilt. That made sense to me and I thought I had it figured out.
However, now I'm looking at a plea offer from the AUSA and it says (among other things) the United States will agree to:
___Waive _X_Reserve Allocution (the right to allocute at the time of sentencing)
So what does that mean? It doesn't make much sense to me that the prosecutor is saying she's reserving the right to demand a formal recitation of guilt from the defendant. Instead, the prosecutor reserves the right “to allocute”—that suggests the prosecutor is going to do something, not the defendant. That's why, in this context, “allocution” seems to refer to argument, and the verb “to allocute” seems to mean “to argue.” And if that's true, it's stupid. And if it's not true, it's still stupid because it confuses me and I don't like to be confused.
The lesson here is really this: If something confuses me, that means it's stupid. If everyone will just remember that we'll all get along much better.
Confusing matters further, the plea offer also has a blank for the prosecutor to check that reads:
_X_Limit allocution to: ___(insert period of time here; e.g. 30 days)___
So what can “allocution” be if you limit it to X days? Does that mean the prosecutor reserves the right to argue, but agrees not to argue for more than X days in jail? Or, um, what?
But, and so, if anyone has any more thoughts on this allocution question, I'm listening. It's very possible I'm just being dense. It's also possible I'm looking for reasons to say the prosecutors are being pompous and stupid, even if such reasons don't really exist. Hmph.
Posted 06:14 AM | Comments (1) | TrackBack
Katrina: Police Behaving Badly
Sean over at Objective Justice has been tracking news about police participating in looting in New Orleans. I was actually skeptical at first b/c the whole looting angle is something I expect the media is blowing way way way out of proportion because it gives it something sensational to talk about and because looting is perversely more palatable than “gee, this is a human tragedy and no one really seems to be doing much about it.” However, it seems pretty clear that the cops—at least some of them—are part of the problem. Salon reports that in the French Quarter the cops were using their guns and authority to protect their barbecue from hungry residents:
In contrast, some residents of the French Quarter appear comfortable, well-fed and relaxed. About 150 New Orleans police officers have commandeered the Royal Omni Hotel, part of the international luxury chain of Omni hotels that is housed in an elegant 19th century building, complete with crystal chandeliers and a rooftop pool. “All of the officers that are here, I can tell you in a classical sense, are gladiators,” says Capt. Kevin Anderson, commander of the Eighth District of the NOPD (French Quarter). “To be able to put your family's concerns aside to protect the citizens of New Orleans, it's just an awesome job,” he says. Across the street from the Royal Omni at the Eighth District police department, several police officers keep a wary eye on the street with shotguns at the ready, while some fellow officers grill sausage links over charcoal barbecues. They are under strict orders not to communicate with the media. Capt. Anderson does confirm, however, that locations where officers were housed came under gunfire on Tuesday night. No officers were injured. “It is a very dangerous situation that we're in,” Anderson says.
So the cops are “gladiators” in a classical sense? Does that mean every man for himself? Read on in the story to learn how the cops are offering protection to upper-class restaurant owners in exchange for prime rib. Meanwhile, thousands of people are basically trapped in the city's convention center and FEMA didn't even know authorities had been telling people to go there. Who knows how many thousands are still on the streets, or who knows where, without drinking water or food.
You all know this, and maybe it's still too early for recriminations, but there's a growing realization that the relief response has been inadequate. And why is that? Um, Iraq? Does anyone believe that we wouldn't have tens of thousands more National Guard troops working on relief and evacuation efforts on the ground in the affected area if we didn't have so many National Guard resources committed in Iraq? Don't you think they'd be doing airdrops of food and water, or mass helicopter evacuations—if those helicopters weren't already in use in Iraq? And it's not just Iraq; a Seattle disaster-response leader put it:
”New Orleans shows the result when known problems aren't addressed because we're fixated on something else.“
Meanwhile, Yubbledew holds press conferences and flies over the area like a perverse tourist. Yeah, he's got my full support for that.
Posted 06:11 AM | Comments (1) | TrackBack
Guest Computer User
I left my computer sort of laying around the other night when we had a houseful of guests and when I opened it up the next morning I found a browser window open to the Westlaw version of U.S. v. Johnson, 123 Fed.Appx. 240, 2005 WL 589976 (C.A.7 (Ind.)). Another window was open to this recording of the oral argument in that case in which an exasperated attorney is apparently arguing a position that would contradict the U.S. Supreme Court and the 7th Circuit is having none of it. I have not investigated beyond this point to really understand what this is about except that the attorney is arguing that pretextual stops by police are really really bad. I certainly agree. When he's done, it sort of sounds like he tries to walk out and the clerk won't let him. It's all very strange.
But who was looking at this case and why? The mystery may never be solved....
Posted 11:14 PM | Comments (5) | TrackBack
Complicating the Defense
In the past couple of weeks I've witnessed or participated in a small number of somewhat troubling conversations related to the question of why criminal defense lawyers do what they do, and why prosecutors do what they do.
In one such conversation, a law student was arguing that prosecutors and defenders are basically motivated by the same ideals of justice and fairness, but with different ideas of what those things mean. For prosecutors, it's fair and just to lock people up for very long periods or even kill them if they break society's rules. For defenders, it's fair and just to keep people out of jail and instead provide them with the means to resolve whatever problems they have in their lives that led them to break—or be accused of breaking—society's rules. The public defender involved in this conversation dismissed the argument categorically and vehemently, arguing instead that defenders and prosecutors have absolutely nothing in common, that they were essentially different animals w/entirely different motivations and goals. The PD's argument basically seemed to be that prosecutors are just very evil people w/no feelings.
In a second such conversation, a law student was arguing that she wanted to be a prosecutor because she wanted to help people and she thought she could do that better from inside the prosecutor's office than she could as a defender. The public defender in this conversation simply could not accept that possibility because, again, he seemed to be of the opinion that prosecutors are something very close to pure evil and incapable of redemption. From his perspective, the big sin of prosecutors is that they simply do not care at all for defendants; they don't see a person accused of a crime, they see a criminal, and that's really not a human being at all, so all they want is to put that person away and get another X in the “win” column. The defender kept repeating: “They don't care about them [the accused]! They just don't care!”
These conversations trouble me for a couple of reasons. First, it surprises and disappoints me to think that defenders have such simple and uncomplicated views of the prosecution. “They're just bad.” Really? Well, isn't that what they say about our clients? If defenders dismiss prosecutors as just evil lowlifes who don't care about other people, aren't we being just as inhumane and uncritical and ignorant as we accuse them of being? Second, I find it hard to believe that these public defenders started their careers with these opinions, which suggests that a few years of the job has turned them into ... well, how to say it? Rather bitter and twisted people? I hate to think that these are the views I will hold in a few years.
Don't get me wrong. I don't love prosecutors or think they are generally terrific people. However, I'm willing to give them a bit more benefit of the doubt. Everyone I've known who has been or is on his/her way to becoming a prosecutor is motivated by a desire to help people and to do something good for society. I generally disagree with their methods toward this goal, but that doesn't mean I think they are evil. I think they are wrong. They think I am wrong. We disagree. But it also seems that it's crucial to have good people on the side of the prosecution—people with good judgment, people who really care about the responsibilities they carry and who will work hard to make good charging decisions and to conduct their prosecutions ethically and fairly. And sure, I have seen that there are prosecutors who are none of these things—they really do act as if they have no concern for anything other than the “win” and they are willing to do all manner of unspeakable—and criminal—things to get it. But they can't all be like that ... can they?
Posted 06:28 AM | Comments (7) | TrackBack
DC LSIC: Orientation Notes, Day 2
Day two was not quite so packed w/pithy little bits of wisdom to share, but there were a few, including:
- If you're never sort of tempted to breach ethical rules for your client you may be in the wrong line of work. You've got to want to win. You also have to never cross the line even when you're tempted.
- Do not have sex w/your clients.
- Jencks is a double-edged sword. You want to take statements and notes from adversarial (prosecution) witnesses, but not from your own.
- In D.C., every person ever arrested for anything gets a PDID number (Police Department Identification) that that person for life. Lower numbers mean this person was first arrested longer ago. Note that PDID looks a little like P. Diddy. Is there some connection?
Oh, and apropos of nothing but fun: I had drinks w/a superhero last night and it was the most entertaining hour I've spent in some time! We talked about everything from summer experience to the horrors of job searching to love, lust, and its many permutations. Thanks, E. Spat! You are the rockingest!
p.s.: Thanks to everyone who left tips on the job searching. I will definitely be following up on those next week!
Posted 08:19 AM | Comments (1) | TrackBack
Can Courts Trust Forensic Science?
Not surprisingly, the answer is: Yes and No. To hear a discussion of the current state of forensic science, check out today's edition of Science Friday. It doesn't look like that show is online as of this writing, but you can subscribe to the podcast and get it automatically once they put it online.
Posted 03:03 PM | Comments (1) | TrackBack
20 Truths About Criminal Justice
Just quickly: 20 Incontrovertible Truths About Criminal Justice [via Alaskablawg].
Posted 07:01 AM
Bad Prosecutor, No Consequences
Several moons ago Blonde Justice asked for stories about prosecutors behaving badly. I promised a story “about a prosecutor who suppressed and lied about evidence, was caught red-handed doing it, but managed to get a guy executed despite these crimes, and now sits as a trial court judge in a nearby U.S. city.” Well, I wasn't kidding. I finally dug out a few of my notes on the incredible case of Wilbert Lee Evans. Justice Marshall summarized the relevant facts pretty well in his dissent from the Supreme Court's denial of certiorari to reconsider Evan's death sentence:
Evans v. Virginia, 471 U.S. 1025 (1985) (some internal citations omitted).
That opinion goes on to describe how Virginia law at the time of Evans' original conviction said that “when a capital defendant's right to a fair and impartial jury is violated during the sentencing phase of trial, a death sentence must be commuted to life imprisonment.” This was because the law also said that only the jury that heard the guilt or innocence phase of the trial could impose punishment, but since the jury was tainted by some sort of error in the first phase, it could not effectively change the punishment, and therefore the only fair solution in death penalty cases was to commute the sentence to life. However, the law changed on March 28, 1983 “to allow for resentencing by a different jury after a death sentence was set aside.” Coincidentally, the prosecutor who knew he had committed fraud in the original Evans trial in 1981 decided on that very day—March 28, 1983—to admit to his crime. This means that not only did this prosecutor willfully and knowingly deceive a judge and jury in order to convict Evans, but he then kept his fraud secret until the very day when his admission would no longer be able to save Evans life. Can you say bad, bloodthirsty, evil prosecutor? I can.
Here's how Justice Marshall dispassionately describes this:
Um, why wasn't this prosecutor disbarred?
The story only gets more awful from there. Much of it is summarized in Marshall's 1990 dissent to the Supreme Court's denial of certiorari to consider staying Evans' execution. Evans v. Muncy, 498 U.S. 927 (1990). The short story is that during the nine years Evans was in prison, he was a model inmate and even acted heroically to help stop a prison riot. “According to uncontested affidavits presented by guards taken hostage during the uprising, Evans took decisive steps to calm the riot, saving the lives of several hostages, and preventing the rape of one of the nurses.” This was rather important in light of the fact that his death penalty was based on the jury's finding of “future dangerousness.” A guy who steps in to stop a riot doesn't sound too dangerous, does he?
(Tangent: This pro-death group provides a PDF file of a story about Evans' actions in the riot. The group's point is that Evans can't be a hero because he killed a man. That story is interesting for the added detail it provides about Evans' case, but my point here is just to draw attention to the irony of the pro-death site using an animated image of the scales of justice going up and down constantly. They're right: So long as the state is killing people, those scales of justice will never balance.)
But none of the evidence in Evans' favor mattered. Viriginia killed Evans on October 17, 1990. It apparently did a great job of it, too:
But that's not the end of the story. The very best part of this whole horrible tale of American justice in action is that the intentionally fraudulent prosecutor was not disbarred. In fact, I don't think he was disciplined at all. In fact, he now sits as a judge hearing criminal cases in the same jurisdiction where he committed his horrible crimes.
So there you have it: A true and chilling tale of a very very bad prosecutor who suffered no consequences for his egregious behavior. I've seen him in court and I secretly suspect he is an emotionally broken man because he's being devoured from the inside by guilt from what he's done, but that's probably just wishful thinking on my part.
Posted 03:17 PM | Comments (5)
