Monday, October 31, 2005

Halloween weekend

This was a long weekend. I had friends that had come into town for the Halloween party. Since their family is from around here. I drove them to their hometown on Friday night. We went to the local football game. Granted I'm not from a small town and am not use to Midwest high school football, but the color commentator was the best I've ever heard. We arrived during the first quarter and the first announcement we hear is " If you have a red truck your alarm is going off and your dog doesn't like it" Ten minutes later , "the dog still is upset and really wants someone to turn off the alarm." five minutes later, "Don't worry the dog had enough and turned of the alarm" The next pause in the game, " everyone give a congratulations to Billy Ross he shot himself a deer last weekend." I spent the whole game waiting to hear what would come out of the loud speakers next.
The Halloween party went well. I'm tired and looking forward to a weekend without company.

Thursday, October 27, 2005


Today my client from a couple of weeks ago testified. He had picked up two cases that only carried life without parole. He was stuck and the evidence was overwhelming. He coped a deal for thirty five years. The state had charged his wife with drugs. He testified today that all the drugs were his and the judge found his wife NOT GUILTY. At least he could save his wife.

Wednesday, October 26, 2005

Trial by Wager of Battle / Trial by Combat

Skelly's post on gladiators got me thinking. Why NOT trial by combat? It worked out pretty well for the last defendant to demand it. In Ashford v. Thornton, 1 B. & Ald 405, Thornton had been acquitted of the rape and murder of Ashford's sister. Ashford appealed the acquittal, but Thornton demanded his right to trial by combat. The Court of Kings Bench decided that even though it hadn't been used in a long time, Thornton could still insist on trial by combat. The court noted that:

One of the inconveniences of this procedure is, that the party who institutes it must be willing, if required, to stake his life in support of his accusation.

This is generally how it worked: The two parties fought in an enclosed square, 60 feet on a side, with 45-inch long sticks and a small shield. There were opening arguments; the defendant went first: he took a Bible in his right hand and the accusers right hand in his left, and swore:

Hear this, O man, whom I hold by the hand, who callest thyself [accuser's name], by the name of baptism, that I, who call myself [defendant's name], by the name of baptism, did not feloniously murder thy father [victim's name], by name, nor am anyway guilty of the said felony. So help me God.

Then they switched hands and Bible and the accuser swore:

Hear this, O man, whom I hold by the hand, who callest thyself [defendant's name], by the name of baptism, that thou art perjured, because that thou feloniously didst murder my father, [victim's name] by name. So help me God and the saints ; and this I will prove against thee by my body, as this Court shall award.

They both then swore that:

Hear this, ye justices, that I have this day neither ate, drank nor have upon me either bone, stone or grass ; nor any enchantment, sorcery or witchcraft, whereby the law of God may be abased, or the law of the devil exalted. So help me God and His saints.

(One time this rule was broken by the champion for the Bishop of Salisbury, who was discovered to have hidden many scripts and prayers in his clothing - he was disqualified.)

Then the fight was on, and it lasted until the stars appeared. If the defendant won, or lasted until the stars appeared, he was acquitted. If the defendant lost or gave up, he was hanged immediately. (if he wasn't already dead) If the accuser gave up, he lost the protection of the law thereafter. There were exceptions for women, children, old people, priests, nobles and city folk.

But what about Mr. Ashford's appeal against Mr. Thornton? Ashford chickened out and dismissed his suit against Thornton. The following year, 1819, Parliament abolished the right of trial by combat. 59 Geo. III c.46.

And THAT is my problem. My state incorporates English common law as it existed at the time of statehood. And unfortunately, statehood around here occurred well after 1819. But you East Coasters keep it in mind. (Too bad, because I can take any of the DAs I regularly work with.)

The problem is that its not just me against the DA; its against the DA, the DA investigators, the Detectives, the cops, etc.



This weekend was Octoberfest the time for brats, beer and the chicken dance. I did them all. It's alway good to walk in the front gate of a beer fest and run into every police officer you've ever cross examined in your time as a public defender. Good thing is I was with two former prosecutors and was meeting up with about 10 other attorneys so at least we were protected. We danced the polka (at least my version of it some where between pulp fiction and my idea of polka) on the dance floor and the chicken dance on the tables. I needed the weekend but was glad when all the bodies took themselves off of my extra beds, couch, chaise, etc. etc. and went home. One more week until HALLOWEEN!!!!! and no i haven't finished my costume but will be done with it by tonight.

Halloween and the NBA

I have finished the costume! finally! I think Halloween is always a good reflection of the past year. I've already heard that one person coming dressing as Tom Delay in prison gear, while another is coming in a life jacket and mardi gras beads. Alot of different stories have been important in the news. The most recent one concerns the NBA. Huge fan of basketball since I worked as a manager of a ncaa basketball program during college. Here's the goofy part, the NBA is mandating a dress code for the players while at sactioned events. The NBA is not asking the players for make overs just that they act like professionals. I remember when high schools mandated all players for all sports travel in dress attire to cut down on the behavior problems. College rules under the NCAA does not require this. How sad teenagers and the adults are the ones causing the problems. I thought college was the wild time in peoples lives.

Friday, October 21, 2005

Jumping out of a Perfectly Good Airplane is for Sissies.

Driving a 28-ton armored personnel carrier off the back of a Perfectly Good Ship?

That's Hard Corps.

Thursday, October 20, 2005

Don't Gimme No Government Cheese

This little note raises a couple of questions:
1. Why do many people view indigent defenders as not real lawyers?
2. Why do I find this gentle contempt humorous?

The root of the reason why we're not 'real' attorneys is money. Money is the defining and driving force of our society. If something costs less, its not as good. If its free, it must be crap. Now add to the mix the fact that we're from the government and we're here to help you. Result: If its free and from the government, you're screwed.
We are suspect if we are not out in private practice making money. There are only two possible reasons why we aren't already in private practice: a. We are so incompetent we can't even make it as the courthouse bottomfeeder. (but you have to pay money to the bottomfeeder - so he's obviously better than any free attorney) b. We are new and inexperienced and need to hone our skills on some poor folks first. (hmm. two years should just about do it...)
Now, what happens if you do well for your client - really well? Usually its something related to (b) above. "Man, I want your card, 'cause when you get out into private practice; I'm gonna look you up" or "Why haven't you hung out your own shingle out yet?"
The folks who buy into the philosophy that we're not really lawyers cannot conceive that we might be here for something other than money. If you tell somebody you're a PD because you're called to it, or because you believe in what America ought to be, they look at you in the same way we might look at someone who told us about how they live off the grid and weave their own clothes from their own sheep's wool. "Yes, these people exist, but not in my world."
Indigent Defenders engender a great deal of cognitive dissonance in people because of what we do, and why we do it. For most people its easier to invent an (incorrect) explanation that fits their worldview than to accept that there might be other reasons besides money for doing something.

So why is it funny?
Laughter is another way to deal with cognitive dissonance. Or absurdity or cruelty or injustice. Abraham Lincoln, in discussing the Union's difficulties in the Civil War, said that "I laugh because I must not cry."
I like Robert Heinlein's explanation better, though. Laughter is a necessary survival mechanism that keeps us from going crazy or committing suicide. "In Stranger in a Strange Land" a human, Michael Valentine Smith, is raised from birth by Martians and is returned to Earth as a young adult. He tries to understand laughter, but can't until he sees the monkey house at a zoo. Big monkey picks on little monkey. Little monkey picks on smaller monkey. Smaller monkey picks on yet smaller monkey. Mike understands and bursts out laughing.
Mike laughed at the monkeys becasue he saw, he understood, the unfairness, the dissonance in the behavior of the monkeys, and also saw human behavior mirrored by the monkeys. His response was the same a Lincoln's: cry or laugh. Mike's rebuttal to the 'that can't be it' argument was something along the lines of "OK, tell me a laugh out loud joke that does not involve somebody getting hurt, or embarrassed or put down." Try it.
Humans are aware of their situation. We can see the way things ought to be. We can imagine changing our situation. We can see the difference between the is and the ought. Laughter is the salve that soothes the emotional pain of that dissonance. Laughter is a defense against the despair that humans, being self-aware, are prone to. (Especially ones that read too much Sartre)
Ugh. too heavy. How about laughter is a defense against absurdity. Existentially equivalent, but with better connotations.
With regard to our clients who know that we aren't real lawyers, the joke (for us) is that we're actually among the best around. That (for example) in this area, there are no private attorneys that can try a death case better; that there are only 1, maybe 2 private attorneys who can try a case better than the best in our office; that there are only a dozen or so private attorneys who are better than the average public defender. The humor is in the cognitive dissonance/absurdity between the client's view of us and the reality.
The humor gets a little darker when you think that even though your client knows their life is in your hands, and they know that you're not a real attorney, the system has them so beaten down that their whining that you're not a real attorney is the most resistance they can muster against the system that (in their eyes) you are still a part of. (more cognitive dissonance)
I promise I'll post something more upbeat tomorrow.

Monday, October 17, 2005

October: trials, Octoberfest, and Halloween

I love October. It has Octoberfest which is an excuse to consume foreign beer and dance on a table like a chicken while the police are also standing on the tables (they don't dance) and leave basically everyone to the good times. I love this holiday. I'm not German so don't really know why we do the chicken dance but hell I support the Irish during St. Patrick's Day and their drinking of green beer. I have friends coming from across the United States to stay with me this weekend to enjoy the "cultural experience" ( yea I couldn't even type that with a straight face) Because of the festivities I spent the weekend cleaning up the yard and finishing redoing the kitchen that has taken a month and a half. The Judge ruled on Thursday to grant the State's motion for continuance on my murder trial so at least I didn't spend the weekend at the office refining cross examination. I also got started on my halloween costume. Love this holiday. I have had a Halloween party for the last three years and its slowly growing to monstrous proportions. I got a local organization that I belong to this year to sponsor it. So I get to throw a party without paying, score! Yes for a Monday morning I'm way too chipper. My comrades in arms, Jack (1 trial) and Chrissy (4 trials) are battling again this morning to see who will go to trial now that my first up murder has been passed. They both fought the valiant fight last week, so I know they're tired. Good luck out there and we'll keep a little luck for here too.

Friday, October 14, 2005

Many Mansions

Tuesday, October 11, 2005

I love civil "trial" attorneys!

It's Tuesday morning and I'm sitting here eating a healthy breakfast of chocolate pop tarts. Jack and Chris are both at court trying to figure out if there are extra Judges to try their cases this week. (Guess we forgot to read the NACDL article that says we don't try cases and public defenders are bleeding and pleading our clients.) I'm set next week for a murder case so I'm still preparing my trial and seeing how many other cases I get to work on for my partners to cover for them. But to my gripe for the day. I have a tragic case where a mother stabbed to death her youngest son. She is mentally ill. Luckily, the family is supportive of both her and my efforts. A family member in law has contacted a civil attorney to sue an organization that potentially could have intervened. $$$$$ The American way tragedy= payoff. The attorney called to see if there was anyone else they should think about suing. I'm trying to prevent my client from being killed by the State, deal with her family and her remaining children and get the information that I need for my defense and this civil attorney is smelling the sweet smell of green backs. What a life. I went to this attorney's law firm's web site and it described them a litigators (okay I giggled when I read this) it also stated that their firm (7 attorneys) had tried six cases last year. I alone tried more than that last year. Janet

Good Morning!

Friday, October 07, 2005

The Guardians Revealed!

Janet really is the Princess...

Why Chrissy never blogs...

Jack saves the world...

Blonde Justice, Sanchovilla, thanks for helping us waste an enjoyable 30 minutes.

Thursday, October 06, 2005

How Can You Represent People Like That?

I got that question from a potential witness I was interviewing for my murder trial that settled this week. (Day in the Life aside: she was the only one of 22 potential defense witness who was still at her last known address/phone number)

Reason 1: Naive idealism. I believed everything I heard in American History and Civics class. I believed that America is a nation of laws, laws that implement the ideals of freedom, fairness, equality and personal autonomy. That those laws apply equally to every person. That those who break the laws are punished in proportion to their crime and rehabilitated. That serving one's country is the highest goal. That the guiding beacon of our elected officials is the well-being and happiness of the greatest number of people. That while the purpose of the courts is to judge disputes dispassionately, the courts' ultimate purpose is to be a bulwark between the tyranny of the majority and those ideals of freedom, fairness, equality and autonomy.

I bought into the "Glossy Brochure" version of America and internalized it. I made it part of who I was as an American. My environment growing up reinforced those ideals; I was simultaneously raised in accordance with those ideals and protected from seeing where those ideals were not being honored.

For example: I was raised an Army brat. The military is a two-class meritocracy; as a metric of the (relative) lack of divide, the pay difference between the two classes ranges from 2:1 to 3:1. Compare that to the private sector: from 200:1 to 300:1. When my father became a battalion commander (like being the CEO of a subsidiary with 700 employees) he took me aside and told my why I could not and would not invoke his rank over others. We lived in the exact same apartment a married Staff Sergeant with two kids would live in. For an example on the protection side, when we moved to Petersburg, VA, I went to a private school. I was never confronted by poverty or racism. I didn't know about inner-city schools and the fight against desegregation.

I gradually learned that the "Glossy brochure" version of America doesn't exist.
But it should.

And that's one reason why I do what I do. Trying to get the way it is closer to the way it should be. The laws that protect us and guide us should apply equally, whether you're poor, addicted, stupid, or bad. The witness found it very ironic that the victim in the case had (previously) represented by indigent defenders for his cases, and now indigent defenders represented the guy who killed him. But they, like every other preson in America, both deserve the benefit of the laws and they both need and deserve a public defender - the best representation money can't buy.


Wednesday, October 05, 2005

The War on Terror is Over!

At least the FBI thinks so. They're going to pull eight agents and a supervisor from elsewhere in the Bureau for the "War on Porn." This war on porn isn't against the kiddie stuff, but against the consenting adult stuff.

Maybe there needs to be a "Porn Threat Advisory" like Homeland Security's.
GREEN/LOW - Burqa time!
BLUE/GUARDED - Great Scott! Ankles and wrists exposed! For shame!
YELLOW/ELEVATED - Son, we don't take kindly to Sears Catalogue smugglers around here...
ORANGE/HIGH - Sir, I hope you have a Section 1421(d) researcher's permit to possess these unedited copies of historical National Geographic Magazines. (Irony alert: possibly NSFW)
RED/SEVERE - Rape! Rape and dismemberment! Incest! Genital mutilation followed by murder, pillage and rape! Offering virgin daughters to be raped! Pornographic poetry!

I wonder what a "Porn Threat" preparedness kit would have inside?


Two Thumbs Up For Sanchovilla!

Sanchovilla over at PD Investigator had a caption contest last month.
Neither Janet nor I won. (We wuz robbed!)
But the Lords of Karma got confused and gave us a second chance at the prize, a fingerprint kit.
The package arrived at the Tripper family compound over the weekend, but one of my clients wanted me to work on his murder trial rather than play with the fingerprint kit. (I guess the police were busy too - they didn't even try to get prints from the murder weapon)
Now that there's some breathing space, we've gotten to play with the kit. Of course, we still need to retain our anonymity...

Thanks, Sanchovilla!

Folk Tales for the Urban Age, or Every Lucky Streak Must End

There's a folk tale about good and bad news involving an airplane flight (good) where the plane breaks down (bad) but the flyer has a parachute (good) that doesn't work (bad) but he's falling onto a haystack (good) with a pitchfork in it (bad) but he misses the pitchfork (good) but misses the haystack too (bad).

Here's the newer, hipper, urban version:
Dumb and Dumber are divvying up some marijuana outside a business and another customer sees what they're doing.
That's bad.
No, That's good. The guy just tells them they need to take that stuff away from there.
That's good.
No, That's bad. Dumb and Dumber start swearing at the guy and threatening him.
That's bad.
No, that's good. The guy's an off-duty COP and isn't threatened, he just tells Dumb and Dumber that he's a cop and they need to get that stuff out of there.
That's good.
No, That's bad. Dumb and Dumber tell him he's a lyin' a$$ bit©# and continue to threaten him.
That's bad.
No, that's good. The cop shows them his badge, and tells Dumb and Dumber again to leave; Dumb and Dumber get in their car and start to pull away.
That's good.
No, that's bad. Dumb pulls out a pistol, hangs out the window and points it at the cop.
That's bad.
No, that's good. The cop pulls out his gun and points it at Dumb; Dumb gets back in the car and cowers on the floorboard.
That's good.
No, that's bad. Dumber takes the gun, stops the car, and walks up to the cop, pointing the pistol at the cop. The cop shoots Dumber. Twice.
That's bad.
No, that's good. Dumber lives.
That's good.
No, that's bad. Dumb and Dumber pick up charges for the pointing and the drugs.
That's bad.
No, that's good. Dumb and Dumber don't have records, so they're only looking at 2-20 years, maximum.
That's good.
No, that's bad. They didn't want their plea bargain, so they're going to trial, where they'll get maxed out.
That's bad.
No, that's good, becasue they aren't dead. Darwin must have been on his coffee break that evening.