Turkey Travel Time

Happy Turkey everyone! We're off for a few days of vacation and I don't know if I'll be able to update, so if not, I will just say: I'm thankful that you take the time to stop in and see what's going on around the imbroglio once in a while and I hope you have a grrrreat holiday!

Posted 06:25 AM | TrackBack | life generally

Computers in the Courtroom

When will attorneys regularly begin using computers in the courtroom?

The question just crossed my mind because I'm working on a grant proposal to get funding to produce a criminal practice manual for public defenders in Montana. If you have ever done any criminal defense work in D.C., you are probably familiar with the Criminal Practice Institute's criminal practice manual. The manual is a comprehensive resource for DC criminal defense practitioners, containing both federal and local case law and other resources that defense attorneys commonly need. It is also a trial manual, covering every aspect of the trial process from pre-trial release (which is generally the first issue you face when you're first appointed) to jury instructions and everything in between. Only five chapters are available online (covering severance and joinder, motions to suppress statements, motions to suppress eyewitness ID, and motions to suppress on 4th amendment grounds, and other grounds evidence), but those should be enough to demonstrate what an invaluable resource this can be—especially for new attorneys just getting their start here. It's great for learning the local law and procedure, it provides starting points for many of the motions and briefs you might need to write, and it also makes a great trial resource—something you can take with you to court so you have case law and advice at your fingertips if something comes up unexpectedly. The one problem with it in the last regard is that the printed version is one huge book and a big hassle to haul around.

So my idea is that, while this manual is great for DC, it won't travel to other jurisdictions as-is because it is focused on DC practice, customs, regulations, law, etc. Still, wouldn't attorneys in other jurisdictions benefit from something like this? And how much more would those attorneys benefit if they were working in a brand new model PD-system that is attempting to implement the ABA's “10 Principles of A Public Defense System” My thinking (er, hope) is that they would benefit a lot, hence the grant proposal.

But as I think about this project, I'm also thinking: Why don't attorneys have laptops in the courtroom? Or, barring that, why not at least handheld computers (e.g. today's Palm pilots or Windoze handhelds) that have resources like this stored on them? The judge has a computer at her disposal on the bench, the clerk has one, so why not the attorneys? And now that I think about it, it seems like the attorneys in federal court (at least in Alexandria, VA, where I've been to the federal court house a couple of times) do have computers at their tables, although I never saw them use those machines. Having computers installed in the courtroom would be less useful than allowing attorneys to bring them in, anyway.

But imagine going into court armed with a compilation of the relevant law you think you're going to need for a case, including every possible issue that might arise at trial. And I don't mean just the handful of cases you've researched and printed in advance. Of course you need to have that, but what if you could have even more?

Real-world example: I had to make an argument last week in court for which I was poorly prepared and which I took mostly from verbal instructions from my supervisor. He provided the case name and the two prongs of the relevant rule it established, and I then argued that as if I knew what I was talking about. Of course, the judge asked me for a cite to the case and I didn't have it. Neither did my supervisor. So we looked really stupid. If we had had the CPI manual with us, we would have had the cite. However, one reason we didn't have the manual was because it's so big we don't like to carry it around. That would have been the perfect situation in which to have the manual on a handheld where, with a couple of taps on an index or something, we could have had the cite. Not only would it have saved us from looking stupid, but it might have been a big help to our client, and that's really the point, isn't it?

So the question is: Do you think it's only a matter of time before it becomes common practice for attorneys to use computers in the courtroom? Is this already common in some jurisdictions? Or is this something that just wouldn't be that helpful?

Posted 11:33 PM | Comments (3) | TrackBack | 3L crimlaw

Congratulations Gideon

Congratulations to a Public Defender for his recent small victory!

Of course, I wish he could share more about what happened and what role he played in it, but that's not usually possible for lawyers. It makes me wonder: How much do confidentiality rules contribute to the general dissatisfaction so many lawyers express? In another profession Gideon might be able to share more detail about what happened, what role he played, etc. But as an attorney, he just has to say “good things” and that's it. That's got to be a little less than satisfying, no?

Not that there's any way we could change this. We obviously can't abandon client confidentiality in exchange for a little more ego satisfaction, but still...

Posted 12:06 PM | Comments (1) | TrackBack | crimlaw

Criminal Investigation Ethics

One of the things lawyers have to learn is that the law has fewer definitive answers than it has ranges of possibility. An incident last week raised one of these possibility ranges, namely:

Exactly what is your duty to identify yourself when you're investigating a case?

Here's the situation: Say you have the home and work addresses and phone numbers of a complaining witness (CW). The CW gave the police a statement, so you'd like to talk her to get another statement to have something to impeach her with if she tells you a different story than she told the police. But, of course, you know the CW probably won't want to talk to you, so you don't want to call. Calling on the phone makes it easy for the CW to hang up on you; visiting the CW in person makes it at least a little more likely she'll talk to you. And you don't really want to bother her at work because, well, she might feel less like talking in that setting, you might be interrupting something if you tried to visit her there, etc. So you decide to try to catch her at home.

So you go visit the CW's apartment. You go on weekends because you know she works during the week. You visit four times in the middle of different Saturdays and Sundays, but the CW is never home. On your last try, as you and your investigator are leaving and in the parking lot after finding the CW not home once again, you run into one of the CW's neighbors and ask the neighbor: “Do you know CW? Does she live here?” You're just asking because after four visits you're starting to wonder if you're in the right place. The neighbor says yes, but asks why you want to know.

You: “She was involved in an incident a couple of months ago and we're investigating that. I just was hoping to talk to her about it.”

Neighbor: “Would you like me to give her a message?”

You: “No. I'll just try to call her or something, but thanks.”

And that's it. Then you get to court and during pre-trial plea negotiations the prosecutor starts off with “There are some really bad things going on with this case.” Huh? “Somebody has been harassing the victim, terrorizing her neighbors, asking questions without identifying themselves.”

You: “Are you saying we're not allowed to investigate?”

Prosecutor: “No, but... Do we need to take this up with the judge?”

You: “Go ahead. We haven't done anything wrong.”

But have we? What do you think? Should we have given our card to that neighbor? Was it unethical not to do so?

My answer is that, probably yes, we should have said that we were investigating on behalf of the accused in the case. Some criminal attorneys I've talked to agree, but others take the position that you don't have to identify yourself as a criminal defense attorney/investigator to everyone you meet on the street, so we had no obligation to tell the neighbor anything.

So, any thoughts?

Posted 10:08 AM | Comments (4) | TrackBack | 3L crimlaw

Lessons from Court

I spent a day and a half in court last week and the days before that preparing, then I was in court again yesterday, all of which partially explains the lack of posting here. For various reasons, I think it best not to say too much about the details of what happened in court, but let's just say last week wasn't great in terms of the outcome for my client. Of course, since it was bad for my client, it was probably excellent in terms of experience for me b/c I definitely learned some important lessons that I'd never really anticipated.

One thing I learned is how hard it can be to have done everything you can think of to do, and still watch your client get a bad result. Was that your fault? Was there something more or something different you should have done? Could you do it better next time? Or is it even more frustrating because you did all you could and the system just worked arbitrarily and unfairly? Whatever your answers to these questions, it's definitely disappointing to watch your client being led away to lockup for more time behind bars.

But another thing I learned (or was reminded of) is how great this job can be. That may sound a little paradoxical, but the job is actually great because of the risk of that bad result for your client. As a criminal defense attorney, no matter what specific task you're doing, your work is always meaningful because your client's liberty interest is at stake. What you're doing is so damned important! And although that can be a daunting responsibility, it also makes for a much better job because even when you're spinning your wheels in bureaucratic mazes you know what you're doing is worthwhile.

An a more practical level, the past few days reminded me of another reason I was originally drawn to this area of law, and that is simply the variety the job provides. In one day you might do some legal research, go out and investigate a scene, talk to witnesses, talk to your client (in jail or otherwise), negotiate with a prosecutor, and argue a motion or even have a trial in court. It's not a job where you just show up in the morning, sit down at your desk for 8 hours, then go home. If variety is the spice of life, being a public defender should make for a very spicy life, which is great as far as I'm concerned.

Posted 09:11 AM | Comments (1) | TrackBack | 3L crimlaw

NaNo Update

Still busy around here. The NaNo novel is not faring well amidst all other things. This is what it's going to be like if I'm going to finish 50,000 words:

UPDATE: That animation is a little icky after a while, so, um, if you want to watch it, it's
here

Not pretty.

(Image courtesy of Sheena Banday on the NaNo Icons LJ community.)

I've been busy with clients for the clinic and promise to update on developments there soon....

Posted 10:16 PM | Comments (2) | TrackBack | NaNoWriMo