Good DA Story

This week there was a motion hearing on a murder case, to suppress the defendant's statements to the police. The issue was whether the defendant was 'in custody' for Miranda purposes when he was questioned by the police.

Defense made their argument, and the important part of the State's response was "Your Honor, I do not believe the State has a good faith basis to assert that [Mr. Defendant] was not on custody at the time he made those statements.

Motion Sustained. Thank goodness seeking Justice isn't a firing offense, if used sparingly.

(It's not all that bad for the State; they've got other witnesses, the Defendant's statements to others, decent circumstantial evidence, and ugly facts "but look what he did!")

Thanks, C. You try a clean case, and you've bucked your corporate culture to do the right thing.

Jack

Sunday

Yes its Sunday and sunny at least its sunny outside my office window. I have a murder trial starting in one week. I'm stressed. I always convince myself that i'm going to win everytrial. I think you almost have to. If you don't believe in your case how are 12 jurors supposed to believe in your client. Then the worst thing happens. My client tells me that I'm just an angel who has been sent to him from heaven to make sure nothing bad happens in trial. AGHHHH! Like i need anymore pressure. I"m getting my office cleaned and getting all my cases ready for next week so any spare moments can be spent on working on refining Mr. M's case. I like this client. Would we have been fast friends if he weren't in jail. No, we probably would never have met but that doesn't discount that he's been put in a bad spot and made some poor choices in his life but is genuienly a nice person. I think trials are almost harder when you really like your client. Its harder emotionally for the attorney but a benefit for the client when the attorney is addressing the jury about the person. My perspective is I represent each client as if they were a relative. I try to think how would I want my sister, mother, father, etc. treated and represented if they were in my clients shoes. I always have law related dreams right before trial and then during trial I work on the next days court proceedings. Its amazing you could be so focused that it not only engulfs your day but also you night. Well enough goofing off have to get done here and go for a run.
Janet

Paraphilia Phriday 8

Where did all the crazies go? I've been reduced to old stuff (last week) or tangential stuff (this week)

Trooper's having a bad day:
1. Trooper stops a car going the wrong way down the highway.
2. Driver told he was under arrest for DUI.

3. Driver refuses to get out. Repeatedly.
4. Passenger, the driver's father, gets out, telling the driver "let's get him."

5. Passenger told to stop, but charges Trooper, saying "I'm going to rip your head off."
6. Passenger kicked in the chest, goes down, driver approaches, is told to stop, and obeys.
7. Passenger charges again, gets kicked in the chest again, goes down again.
8. Driver gets behind Trooper, who turns, baton in hand. Driver allows himself to be cuffed.
9. Passenger charges again, Trooper uses driver as shield.
10. Passenger leaves, talking about the AK-47 and a bullet with the Trooper's name on it.
11. Driver put in police car, Trooper goes after passenger, kicks passenger in the butt, passenger goes down again.
12. Passenger removes his prosthetic leg and throws it at the Trooper.
13. Passneger removes his other prosthetic leg and throws it at the Trooper.
[from The Smoking Gun]

Hence, today's paraphilia:
Acrotomophilia.
a compulsive sexual attraction to amputees.

Next week? Who has more fun?:
Diablophiliacs?
or
Parakleytophiliacs?

Jack

Rainmaking

I was in court this morning, telling one of my clients I was able to get him out of jail for another chance. Another guy in custody overheard the good news and asked:
"Hey, will you be my lawyer?"
After determining that the judge had already passed him to give him time to hire counsel, I told him, "Maybe," figuring that the judge will probably appoint us if the guy can't get counsel.
He told me, "My family's outside, if you go talk to them, they can give you some cash today."
Me: "I can't take cash."
Him: "Then they'll give you a check, then."
Me: "No, I can't take any money; I'm a Public Defender."
Him: "Oh Man!....[pause].... I thought you was a lawyer!"

Jack

Update: for those of you coming from ambivalent imbroglio, I've geeked out on this subject before, trying to answer the same simultaneously sad and funny/ laugh so as not to cry issue ai raised.

Hooray For Mary Jane!

Mary Jane Burton, that is.

Ms. Burton was a forensic scientist in Virginia in the 70's and 80's. When she ran tests on blood/semen etc. samples, she would cut off a bit of the cloth or Q-tip and tape it to her file so she'd have something to show a jury when she testified. (There are some hagiographers who are claiming that she was saving the evidence for a more scientifically advanced future, but people she trained and worked with say otherwise.)

According to protocol, the primary samples were returned to the agency that requested the test, and often destroyed after however long Virginia requires such evidence to be retained.
Ironically, the Department of Forensic Science stopped saving the snippets of evidence in 1989 in order to meet accreditation standards.

In 2001, the Innocence Project found out about Ms. Burton's saved samples. This led to the DNA exoneration of Marvin Anderson. In 2003, Ms. Burton's samples exonerated Julius Ruffin. In 2004, Ms. Burton's samples exonerated Arthur Whitfield.

In September 2004, Governor Warner ordered the testing of a 10% sample of the old files where DNA might be a factor. 31 files were pulled and the DNA tested. In 2005, the innocent men in two of those 31 cases were exonerated and pardoned, Willie Davidson and Phillip Thurman.

The 300-odd remainder of Ms. Burton's files are now being collected and tested.

Joshua Marquis, Vice-President of the National DA's Association, thinks only people on death row who can raise credible issues about their guilt should get this kind of review; testing others would be a waste of resources. (at 6:30) Seek Justice, my ass.

Read the summaries at the links on the names; what is the recurring theme? Bad eyewitness ID and/or suggestive ID. (Especially Marvin Anderson, with a touch of racism, a sprinkle of confirmatory bias and a couple dashes of IAC thrown in.)

Thanks, Mary Jane.

Jack

Fitness in the courtroom

Jack has been getting on me for not writing. I've been busy getting ready on five trials that all carry only life or life without parole. The last time I had this many back to back, I got to go to the cardiologist for chest pains. I'm trying not to repeat that by running four times a week and now i've added weight lifting to the regime. I'm also trying to eat better. I think sometimes we get so wrapped up in saving some one elses life we forget that we need to spend some time making sure we save our own. Being a lawyer we end up sitting on our posterior alot. Recent reports say for individuals that have desk jobs thirty minutes/three times a week is not enough to combat a seditary life. I have noticed that I have a lot more energy and my ability to wake up in the morning has gotten really easy. So take time this week to go for a walk, it will serve your client if your healthy and ready to tackle their case with a sound mind and body.
Janet

Paraphilia Phriday 8

Paraphilia news has been running kind of slow, lately. Maybe it's the season. So here's an oldie but grossie that also happens to be a super example of thinking outside the box:

United States v Guglielmi, 819 F.2d 451

(4th Cir. 1987)

a/k/a "The Snakef*cker Case"

Alan Dershowitz's client had been shipping some movies for the zoophilia market and got caught by the FBI. Dogs, Ponies, Pigs, Eels, the usual...

Deshowitz's defense was that under Miller, the government had to prove, inter alia, whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.

His argument was that the movies were SO disgusting and repellent that they could not be found to appeal to the average person's prurient interest.

The appellate court obliged and went into great detail as to what the movies showed and agreed with regard to the disgusting and repellent argument, but ruled against Guglielmi on his argument that (in essence) something can be so nasty that it can't be considered legally obscene.
His sentence of 25 years stuck. (He got released in 1991, four years after the decision)

P.S. this Louis Guglielmi is not the O. Louis Guglielmi.
Jack

Another Good Cop Story

We rarely get to hear stories about police fixing problems other than by arresting people and letting the court sort them out, because we usually only hear about cops because our clients have been arrested.

This week I spent about an hour with a former client, L.C. She's very needy emotionally and (I believe) paranoid schizophrenic to boot. She'd been followed by a security guard who thought she's stolen something from a store she'd stopped at to use the phone. The security guard was in a vehicle and she was on foot. L.C. got a little paranoid and sought to defuse the situation by throwing rocks at his car. When that didn't work, she tried to go up to him and ask why he was following her. He wasn't interested in talking. She went to a phone booth to call the police. While she was calling, the police arrived in response to the security guard's call.
Officer A was being very assertive and overcontrolling the situation. (i.e., being a jerk) L.C. was freaking out, trying to explain that the scary guy had been following her and that of course she hadn't stolen anything. She wasn't getting anywhere with cop A.
Officer L shows up. He knows L.C., settles her down, gets both sides of the story, mollifies Officer A, the security guard and L.C.. Crisis over, nobody arrested.
She came to see me because she 'wanted to take the security guard to mediation' or to the local TV station where the security guard would have to listen to her until he understood that all he had to do was come up to her and tell her why he was following her and that he was wrong to follow her in his car and not talk to her when she came up to the car (after throwing the rock).
I told her to let it drop and to pleasepleaseplease go to a certain clinic for a mental health evaluation and maybe treatment (she'll need it to fulfill her ambition of becoming a police officer or security guard after finishing probation and getting an expungement) but she doesn't need the evaluation because everything will get better after she exposes the Freemasons for what they are. She's going to get a second opinion (on the mediation issue) from Officer L.

So thanks, Officer L. You used your power and discretion in an evenhanded and Just way. I'm glad you're on patrol.

Jack

But Judge, All I was Doing Was "Shepherding Her Process of Sexual Awakening"

The Prison Rape Elimination Act of 2003 (PREA) provided for grants to study the incidence of prison rape due to insufficient research. (at 17) One of those DOJ funded studies was "an anthropological study of inmate culture" with regard to prison rape. (at 21) The study is not out yet, but some details have come out, which has DOJ backpedaling a bit.

Some highlights from the author of the study, Mark Fleisher:

When inmates have sex, it is usually by choice, and often engaged in as a way to win protection or privileges.
Inmates who cry rape are usually lying and looking for a transfer, money or publicity.
Fleisher, in 700 hours of interviewing 564 inmates never met anyone who claimed to be a victim of sexual violence.

Cindy Struckman-Johnson, professor of psychology at the University of South Dakota and one of nine National Prison Rape Elimination Commission members, said Fleisher’s 155-page study is not in scientific form. She said there is no literature review, no raw data, and no in-depth explanation of his subjects or research methods. oops.
DOJ folks were quick to point out the study hasn't been peer-reviewed yet and isn't finished. What information there is was released by Fleisher in the American Society of Criminology's newsletter. (online version currently running three issues behind)

But the best quotes I'm saving for my motion to dismiss in my next rape case:

Inmates’ sexual activity is not “routinely or overwhelmingly violent or aggressive” and sex is “engaged in by men and women who choose it.” “Prison rape worldview doesn’t interpret sexual pressure as coercion,” he wrote. “Rather, sexual pressure ushers, guides or shepherds the process of sexual awakening.” (emphasis mine)

I can hear it now:
"My client was merely using the knife to guide her sexual awakening"
"But DA, my client was using his 40 greater pounds in weight and 5 greater inches in height to shepherd her into her process of sexual awakening."

Now, I don't have the report or Fleisher's article, so he may have just been looking at how sexual relationships develop in prison. If so, he badly spent the $939,223.00 (at 35) he was given under PREA for the purpose of studying the incidence of prison rape.

Here's some more links on prison rape:
DOJ's 2005 report
Human Rights Watch's article and 2001 report
Website of Andrew Vachss, whose sexual assault section includes a prison rape section. (beware: this site is a navigation disaster; try the site map if you want to explore)

P.S. Men enjoy seeing bad people get their due, while women empathize with the person being justifiably punished. (small study of only 16 men, 16 women (none of the women were prosecutors, obviously))

Jack

Protective Slime Coating

Why don't PD's get sick? Because their immune systems have already been exposed to, and overcome, whatever nasties are floating around out there. (actually, floating around in there, in jail) You'll notice 'defense counsel' didn't show up in this news item, where court personnel were sickened by a man who "pulled out a vial of an unknown liquid, rubbed his hands with the contents and insisted on shaking hands with the three people" (Maybe the DC got a clue after the guy "rubbed his hands" with "an unknown liquid" and "insisted on shaking hands," much like not shaking hands with your clients who've been playing pocket pool)

Interestingly, there is a study that showed that passive stressful situations (like listening to the audiotape of your client failing miserably to exercise his right to STFU or reviewing gory crime scene photos) tend to suppress the immune system, while active stressful situations (like meeting deadlines or prepping for trial) tend to boost the immune system.

Jack

Karmic Balance

Steve at Ken's and Skelly been covering the lawyer who was kidnapped by one of his former clients over a case he handled 10 years ago: The guy felt his attorney had done him wrong all those years ago and wanted another day in court. (The attorney's OK)

But last week, an attorney kidnapped her former client from his own wedding to get him to pay her. That's a great thing about being in indigent defense. You don't have dun (or kidnap) your clients over money. (now, getting them to get a mental health evaluation? that's another story)

As for clients who want payback on their attorney, karma works there, too. We had a frequent flyer client who had threatened several of his attorneys, including a promise to rape one with a knife after she got him released on a misdemeanor. A couple years later, he gets killed by another one of our clients (with a knife) (client # 2 got a sweeeet deal)

Jack

storage

ignore this post

OK?

Paraphilia Phriday 7

Friggatriskaidekaphilia

Under the DSM-IV's definition, a paraphilia is a sexual urge, fantasy or behavior that lasts a least 6 months, which causes marked distress or personal difficulty.

Someone who has sex only on Friday the 13th or fantasizes only about having sex on Friday the 13th is a friggatriskadekaphiliac.

Friday is named after the Norse goddess Frigga, a.k.a. Freya.
If you want to stick with Greek, you can call it paraskevidekatriaphilia, but the Norse version is quite apropos in this context.

Jack

Prooftext Pat Partially 'Pologizes

Last week, Pat Robertson issued another fatwa declaring that Ariel Sharon's stroke was God's punishment for clearing Israeli settlers from Gaza.

So Israel axed Robertson and like minded Evangelicals from participation in a plan for a "Christian Heritage Center"/Theme Park/Tourist trap in Israel.

So Pat kind of apologized:
"My concern for the future safety of your nation led me to make remarks which I can now view in retrospect as inappropriate and insensitive in light of a national grief experienced because of your father's illness."
Translation: Now that I stand to lose a ton of money, I really sorry that you got angry at what I said; not that I'm sorry for what I said, just that it made you mad.

It wasn't decency or prayer or reading the Bible that got Pat to 'apologize'; it was money.

But Pat and Bush apparently have learned the same lesson; so long as it doesn't involve sex, you can do whatever the hell you want in America. Lie your country into war and kill thousands? OK. Call for foreign leaders to be assassinated? OK. Spy on Americans without warrants? OK. Call down God's wrath on those who disagree with you on how to look at Creation? OK. But lie about a blowjob (Clinton) or have a mistress (Bakker) ? You're outta there!

Out of Article 88 Pan and Into the Section 223 Fire

As I was venting my spleen last week, I thought how glad I was that I was no longer under the military's jurisdiction, particularly with regard to Article 88 of the Uniform Code of Military Justice, which states:

“Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.”

Until I read this:

"Whoever... makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both." [47 USC 223 (a)(1)(C)]
"The use of the term “telecommunications device” in [section (a)(1)(C)], includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet." [47 USC 223 (h)(1)(C), (at section 113) signed into law on January 5]

So: anonymous, annoying, internet (or telephone) communications are illegal. However, even Clarence Thomas understands that there just might be a First Amendment issue in there somewhere...
Now, in addition to declaring that he will not obey the law, Bush has decreed that we must obey a law that is clearly unconstitutional. Great.
Even more troublesome, remember those prank phone calls we all made when we were kids? They're violations of Federal law.

(and I know, section 223 is ostensibly directed toward domestic violence/stalking by phone - so why not go with the earlier version that required 'substantial emotional harm' (House version, section 509)

Jack

Car Searches and the Theory of Everything

From an discussion on inventory searches and cars brought about by U.S. v. Roland (inventory search report that lists only evidence and nothing else is pretextual; however, since police could have searched incident to Terry, the search was OK):

In the beginning, there was nothing.
Then, an infinitely dense and infinitely compressed particle of something (not matter, because matter didn’t exist until about 3 seconds later) expanded in an incredible explosion that is still expanding today. A few years later, amphibians emerged from the water and begat reptiles, mammals and eventually the Constitutional Convention of 1787 and the Bill of Rights.
Before long, Henry Ford perfected the principles of mass production and made lots of money and not a few cars, which led to unsupervised courtship, early marriage and unsupervised children. Being unsupervised, children used their cars to do naughty things, which police (a separate evolutionary branch of the reptile family) didn’t like, because their cars were painted in funny colors, even though they got to go really fast and had pretty lights.
Later, some smart guy who had never been to Louisiana or Arkansas decided that because no houses had wheels, cars were not houses, and therefore, even houses with wheels were cars and the police could jealously examine them anytime they wanted, if a policeperson might think something bad might have happened in the car.

Jack

Paraphilia Phriday 6

I had to make this name up. That's a good thing, because I'm hoping this is a very isolated paraphilia. It's a very specific manifestation of a much broader paraphilia, sadism.

Pareisagostomaspermaphilia.

Dentist comes up with his own concoction; a special cleaning solution/hemostatic.

So why does this max out my disgust-o-meter whereas it wouldn't if he'd "merely" raped those women?

Jack

Whiskey Tango Foxtrot, Over!

Under considerable pressure from his betters, President Bush agreed to sign a law that prohibited torture (beginning on page 60) of anyone under U.S. control.

"Holy crap," I thought when I read the news, "somebody finally shamed that shameless bastard into acting like an American rather than some tinhorn banana-republic dictator."

But no, that wasn't to be. Sure, Bush signed the bill into law, but published this statement of the Administration's interpretation of the law, saying "since I'm the President, I can do whatever the hell I want, so fuck you, Rule of Law, and the Constitution you rode in on."

On a related note, last month the DOJ sent congress a letter regarding the Administration's violations of FISA, which allows warrantless wiretaps and other surveillance, so long as a secret court rubber-stamps the activity after the fact. The short version of the letter? "Yeah, we broke the law, but because we are the Executive, we don't have to follow it if we deign not to; fuck you, Congress, and the Founding Fathers you rode in on, We hope this information is helpful." (last sentence)

Apparently, today I'm in the anger stage of grief for my country.

Jack

the future

Our office is set up ( I would assume) like most other public defender offices across the country. We have different divisions from juvenile, appellate, mental health, civil, and criminal. Jack, Chrissy and I are in the criminal division. While there are attorney's that have been lawyers much longer than me (including Jack) I have been here the longest as a trial attorney with the office. The one person that had been hired a year before me is leaving the 20th. Now, (I'm not including the other divisions or the Chief or Deputy Chief) I'm it. We lost alot of attorneys in 2005. Some to a move to another city or state, some to retirement, some to just being tired. I was told, when I was first hired, that after five years you have to decide whether your going to be a lifer or you have to go find something else to do while your brain can still learn something new.
I love being a public defender. I love criminal law. I can't imagine practicing in a big firm where I HAVE to wear stockings everyday or for that matter a suit every day and never seeing a court room. I was an athlete growing up I like the adrenilin rush that you get when you set foot on a battle field its the same rush you get when you walk in a court room and own it. I've talked to former pd's that have left for the money of other firms or insurance defense. They make more money but they're not happy. WHY would you spend three years after college and countless dollars on education not to be happy at work. Isn't that the benefit of higher education so you can have a careet that you love and not have to work a menial job just to pay the bills? Don't get me wrong, would love to get a raise. But I still get to go on my adventures around the counrty and world. I have at least one vacation (usually more) a year, I own my own house, and I have food in the fridge what really more can you ask for?

What started this rant you may ask? Well, periodically, I go and talk to another attorney who primarily does death penalty work. We only do it about once every six months but its sort of a sanity check. Her personality and mine are very similar. She's told me this in the past, but this time it hit, she told me I need to leave this work or it will suck me dry. I was approached in the last six months to start transitioning into death work. I understand that its supposed to be the most rewarding work as a public defender or criminal practioner but I've also seen the after effects it has on an attorney. It's not pretty, regardless the result. This attorney approached criminal work the same way I currently do but she told me you can't do our style in death work. It absorbs your entire soul. I keep my emotions out of the case, unless it involves a juvenile client. I do a very good job with juvenile clients in the adult system but I hate them. They stress me out more than any other case, cause I feel I can save them. This is my worry about death work. My job will literally be to save them not their souls but their lives.
I'm not going anywhere any time soon, (don't worry Jack ) I went to law school to help people and I get to do that here. I like to be needed and my clients need me even if I do tell them the truth and don't blow sunshine up there asses when that's what they want to hear. I may get my soul sucked dry but at least I did it to uphold the constitution and to help the people that others won't look at when their walking down the city streets. I truly believe that we all have a role to fill, this I believe is mine.
Janet

evening tv

I watch Jon Stewart on the Daily Show and then Dave Letterman during the week before I go to sleep. The other night Dave had Bill O'Reilly on the program. Now I'm use to Jon Stewart going after people if he doesn't agree with their politics but what I was surprised and delighted about was Dave's interview with Bill O'Reilly. He basically told him that his show was not "fair and balanced" and he didn't believe 60% of what came out of his mouth. It was lovely.
janet