Monday, May 28, 2007

Justice vs. Vengance and Efficiency

As I was writing this post on the defendant who cold-cocked one of his jurors and whose case was mistried, I was thinking that if more people read this blog, my post would pull an indignant comment or two. It did, from Anonymous, who commented on two posts in a row.
(Anonymous' comments are in red)

Anonymous had two beefs with the outcome of Richard Glawson's first trial: First, that the mistrial appeared to reward Glawson for his bad behavior. Second, that the mistrial wasted taxpayer's money.

"I guess the esteemed "judges" weren't in law school when they taught that a person was not entitled to profit from his own wrong."
The judges probably were in law school when they were taught that there was a tree called "he who comes into equity must come with clean hands." (which is the origin of the maxim that anonymous stated in the negative) But they also learned that there is another tree called "a person is entitled to be tried on the facts of the crime of which he's accused, not on his past" and another tree called "a person is entitled to be tried on the facts of the crime of which he's accused, not on facts not having to do with the facts at trial" (those tree's nicknames are 404b and 403, respectively)
More importantly, the judges also learned about a forest called "due process" and another forest called "impartial jury"

Glawson was on trial for shooting a cop, carjacking, etc. He was not on trial for battering that juror; if he was, that would have been proper and relevant evidence, and the jurors from the first case would be witnesses, not jurors.

"It never ceases to amaze me how liberal bleeding hearts always feel sorry for criminals."
Actually, when I first read the article, my heart said, "serves that little sh>> right;" then my brain took over and realized that even dicks are entitled to a fair trial. Its also interesting to note that the "no profit from wrongdoing /clean hands" maxim is one of the maxims of equity. Equity, as in not the law, but an emotional response serving to excuse a decision not to uphold he law "It just ain't fair." (or in this case, "But look what he did!")

(Besides, if the "sleep in the bed you made" maxim really applied, Geo. Bush (FT leader), Condi Rice (a-gunner), Dick Cheney (SAW) and Don Rumsfeld (rifleman) would be patrolling Sadr City, winning hearts and minds.)

A criminal trial is not a societal determination of whether a defendant is a bad person. A criminal trial exists to determine whether a discrete bad act occurred. It is the jury's duty to determine whether that discrete act occurred, free from evidence other than the discrete bad act. Their decision must be free of things that would distract them from finding or not finding whether those discrete acts occurred. Distractions include the accused's record,(who, given his crime, likely has a record as long as my arm) his behavior, his color, his national origin, etc.
(Of course there are exceptions, but they have yet to completely swallow the rule)

It is a human tendency to judge the whole person, not the act. That's partly why the 400 series of the evidence code exists. And that's why I initially thought "Good - the little turd deserves it" That's also the reason why the mistrial was ordered; after intellectual reflection rather than emotional reaction, that was the only just result.

As for Efficiency, that's the Founding Fathers' problem. They're the ones who thought justice was more important than money. I agree. Our system is inefficient, and the only way to really make it more efficient is to make it less fair. (Remember when habeas review actually meant something?) I can think of a lot of things that are a lot more wasteful of my tax dollars than our criminal justice system. A standing army is a hell of a lot more wasteful and inefficient; but I'm not ready to give that up, either.

As for "tell that to the taxpayer who's money was wasted by a criminal" - he's not a criminal. He won't be one unless he's found guilty of a crime. (Unless we make the justice system so efficient that we can determine guilt or innocence merely by reading about something in the paper or on the internet.) Under the law, an accusation does not make you a criminal; nor does an accusation make you less truthful. For anonymous and the court of public opinion, that may be (unforunately) so; but it's not supposed to be that way in a Court of Law, which is where Glawson was.

I have no doubt Glawson will be punished, but there'll be a time and place for it. Inside the trial for a different set of events is not the right place or time. The time to be punished for hitting the juror is not in his other trial, but after trial (or plea) on a charge for assaulting the juror. Remember the Red King (verdict first! trial later!) from Alice in Wonderland? He demanded that the jury consider the verdict immediately after the reading of the charges. It was satire then, and just as wrong in reality now.

I've gone on long enough, so I'll Godwin myself here - I don't want a system where the Courts run on time; I want Courts that listen, and I want Courts whose bottom line is justice, not money. In reality, Courts end up in a balance between justice and inefficiency on one side and efficiency and injustice on the other. We sure as heck don't need any help overbalancing on the efficiency side. There are countries where the justice system is a lot more "efficient," but I wouldn't want to claim citizenship in any of them.


Sunday, May 27, 2007

Good Question on the Ethics of Calling Cops Liars

In the last post I was talking about having to convince a jury a cop is lying. Anonymous left a comment, wondering whether it was ethical to call the cop a liar if I didn't really think the cop was lying.

Well, in that case, I don't have to worry; this cop has lost the presumption of truthfulness by lying on previous cases. This cop is a bit of a zealot, which isn't bad by itself, but in this cop it's combined with a strong sense of "to hell with the law, this is a bad person who must be punished, so I'll say what's required to send them to prison."

But let's assume the cop hasn't got a background. If my client tells me he didn't have any drugs, the the police officer is a liar. Moreover, is the D.A. being unethical? In essence, the D.A. is calling my client a liar by filing charges/ going to trial. Considering the presumption of innocence, the D.A. would truly have an ethical problem if the same thinking were applied to the other side of our adversarial system.

However, the reason we have courts and judges and juries and lawyers and an adversarial system of justice (inefficient in time and money as it is) is because we can't know who's telling the truth, the cop or the defendant. In an adversarial system, I take up the position that my client, the defendant, is telling the truth. The D.A. stands up for his/her side of the argument; that the cop is telling the truth. Then 12 people decide who's telling the truth. Furthermore, with the presumption of innocence, the defendant doesn't have to have a story or even be telling the truth (but if I know he's not telling the truth, he's either not testifying or he's giving narrative testimony. (PD's don't get to withdraw in situations like that)) My job/duty is, at its simplest, to bring or highlight the evidence that shows the truth isn't on the D.A.'s side.

There are also some practical considerations when trying a case where there are two mutually incompatible assertions being argued. e.g., "He did it" vs. "No, he didn't", i.e., just about every case that's filed.
If you tell a jury that a cop is lying they'll shut down on you, unless you've got airtight proof. (In which case the D.A. would have dumped the case already)
If you couch the incompatible assertions as a misunderstanding or a misperception, that's easier for a jury to accept.
Finally, if you're in a situation where you've just got to flat-out say, "The cop/witness/alleged victim is lying, don't say it. Show it. Lay the problems in the evidence out for the jury and let them come up with the idea that the D.A.'s witness is a liar. This method gets around the problem of the jury tuning you out, as well as some of the ethical concerns anonymous has; all you're doing is talking about the evidence.

I don't like calling people liars. You'd better have some good evidence before I'll decide someone's a liar. But here's what I think may be anonymous' error; that requirement for good evidence before calling someone a liar? It applies to defendants as well as cops. If anonymous believed not only that cops were truthful unless proven liars, but also that citizens accused of crimes were truthful unless proven liars, he'd have the same ethical question for prosecutors.

Our system is an adversarial system, and even with all its warts, I'll take it over any other system (though I'm open to suggestions for alternatives)

And he cop wanting payback? If it's a good cop, he/she won't. If it's a bad cop, my pointing that fact out isn't going to make a bit of difference in what he/she does.

Thanks for the question, anonymous - passioned, yet polite.


Saturday, May 26, 2007

Two for Two

My client's sister and I were discussing the cost/benefit of trial/plea (with client's permission, of course) when she asked me of I was a public defender or a lawyer - I told her "both."

A little while later, Janet overheard her speaking to their mom, giving a decent account of me, noting:
"He's good, mama, he's a public defender and a lawyer!"

My advice to my client was to take the 12 years , out after 35% rather than rolling the dice on 10-to-life and having to serve 98%. But hey, all I've got to do is convince 12 people that the cop is lying about seeing my guy throw the bag 'o drugs. I've actually got something to work with on this case, but my guy's risking a lot to find out if its enough.


Wednesday, May 23, 2007

Client Attacks His...

Richard Glawson was on trial for shooting a police officer (and a handicapped guy's dog, among other things) when he attacked his...

Juror. A grey-haired older man, as the jurors were leaving court for the weekend. The DA had asked to chain Glawson, but the Judge said no.

That rule had changed by the time court resumed this week. Judge Patrick Brady had Glawson belly chained, leg chained, and chained to the floor. The Judge also refused defense attorney Joseph Griffin's request to question the jurors to see if their impartiality might be affected. The Judge did, however, release from jury service the juror who was attacked. Brady also denied the motion for mistrial, saying that Glawson brought this upon himself.

What a great reason to let in all sorts of 404b /bad acts stuff - "the defendant brought this stuff upon himself." So much for being tried for the crime you're accused of committing. The Judge gave the guy the benefit of the doubt the first time by not securing him the first time when the DA asked for it. As it turned out, it was a bad idea - but that doesn't excuse the Judge's fit of pique because he was embarrassed by what turned out to be a bad (in hindsight) call.
In my jurisdiction, I think the appellate court would find that "overwheling evidence of guilt" would "render harmless" any error in failing to declare a mistrial.

But yesterday, Glawson's appellate court came through - they directed Judge Brady to examine the remianing jurors to determine whether they could remain impartial; a measured, minimalist response, giving Judge Brady an out to save face by declaring the mistrial himself, if he could uncloud his judgement in time.

The remaining jurors were questioned, and although eleven jurors said the could remain impartial, four jurors said they could not be impartial. I can only imaging the Judge's questioning:

"The trial has been expensive, and preparation time and effort are difficult for both the defense and the prosecution. If you say that you cannot be impartial, the case is left open and undecided as to those counts. And like all cases, it will still need to be disposed of at some point in time. There appears no reason to believe that the case would ever be submitted to twelve men and women who would be more conscientious, more impartial or more competent to decide it, or that more or clearer evidence could be produced on behalf of either side."
"You are a reasonable person, aren't you, Mr. Juror?"'
"You could follow my instructions to disregard Mr. Glawson's actions, couldn't you, Mrs. Juror?"


But Justice (however inefficient) prevailed, and Mr. Glawson's new trial started today. The outcome may or may not be the same as if the original jury stayed on the case, but at least that part of the trial will have been done rightly and justly.


Thursday, May 17, 2007

Should I Stay or Should I Go?

After a somewhat convoluted set of circumstances flowing from last year's election loss, I was offered a successful private practice - doing domestic law. The departing attorney pays him/herself a little over 20% more than I make, plus a car, cell phone and insurance. There's also the matter of 8:30 to 3:30 work days, which is an easy 20% less than I work now.

I was very strongly considering leaving (Janet says she could tell I'd been thinking about leaving for almost a year - I still don't [want to] believe her) The reason is that I literally cannot afford to work here. For example, we have $13 to last the rest of the month. (Utilities and rent are paid already, and we raise/grow most of our own food.)

Then, another opportunity presented itself - one of my staff moms heard I was thinking of leaving, and had another attorney reveal a secret to me and to the boss: He/she was leaving in about half a year, and recommend to the boss that I take his/her spot - doing appellate work. He/she makes 75% more than I do, though I didn't expect to make that same salary. I did appellate work before coming here. I am/will be a very good trial attorney, but I'll never be a great one - but on the appellate side, I think I can be. Sounds good - work I love, with people that I love, doing stuff that I've been called to do, and that I'm good at.

I talked to the boss, who had some constructive criticism about my affinity for clutter, and said that I was at the top of the list for the job. Of a list consisting of me. Boss asked me to work up some salary numbers and come back. I did. The results?
1. No raise now.
2. If somebody better comes along, they get the job.
3. Even if you do get the job, maybe you'll get a raise, maybe not, and if you do, don't count on getting anything like you asked for.
All very politely and diplomatically said, but I'm still pissed off.

I'm pissed off for a few reasons - for all of the mid-level trial attorneys in the office and for me.
One of the many good things about the boss and the office is that there is no deadwood. If the attorneys aren't good, they're gone. What's left is a proficient, dedicated cadre of people who believe in indigent defense - they wouldn't stand for the low pay otherwise. Unfortunately, the boss knows this, and once you're in, the pay raises will be few, small and far between. When a more senior attorney leaves, the boss hires an outsider with the same experience as his mid-levels, but pays the person coming in from outside more. The boss has to, in order to get that person to leave the private sector. Welcome to the Roach Motel - once you're in, you're stuck. So what happens is that people's frustration at not being paid commensurate with their ability eventually overpowers their idealism in doing this job that they believe in, and they leave. All of the mid-level attorneys (5-15 years experience) who've been here for a while are in the same bind.
As for me, because I came in with relatively little trial experience, I started at a new attorneys pay, even though I'd been licensed for 8 years. I've shown I can try cases well, and I've kept my hand in the appellate pot, too. Appellate work is more specialized, and there are fewer good appellate attorneys than there are good trial attorneys. It makes sense that the appellate guys get paid more, and in fact they do, getting paid 50% to 75% more than I do. Moreover, to get the chance at the appellate spot, I have to forego the offer of an established practice, in an area of law I need to explore and can easily expand to include criminal, that is closer to home, with more pay and less hours, in a jurisdiction I want to become more familiar with, in order to learn the local ropes and to get more name recognition for my next run at Judge, as well being able to continue to help a broader group of people who otherwise don't have access to Justice.

I think Terri's already convinced me that domestic is not what I want to do, but there are former interns who've been lawyers for 2 years who are making a good bit more than we are - maybe it's time to go. Perhaps the fear of the unknown in hanging out my own shingle is being neutralized by being pissed off about being unappreciated and taken for granted if I stay.



Thursday, May 03, 2007

A Good Start to a Long Day

(If you want the short cut to the good stuff skip down to the bottom. )

Just finished a full day in the courtroom, most of that taken up by several probable cause hearings. In this jurisdiction, these hearings are basically mini-trials, but with a "some evidence of illegal activity by your client" burden of proof. The state doesn't need as many witnesses, and since the judge examines the evidence in the light most favorable to the State, credibility and impeachment aren't part of the hearing. Generally, we put on these hearings only for the cases that are likely going to go to trial. It's also our first bite at the suppression apple, though you're arguing to Judges who serve only "at the pleasure" of the trial judges.

My guy got arrested after he tried to get away from the police, by vehicle and on foot. The police found a gun (felon in possession) and some (felony) drugs in the car he was in. However, the gun and drugs were found underneath the rear passenger seat and were neither visible nor accessible to the driver. Unfortunately, my guy told the police that the car was his and nobody else had driven it for at least a year. I needed to get the statement tossed out.

There wasn't any one thing obviously wrong with the statement. The cops said they Mirandized him, so no automatic win there, and the argument fell back to the totality of the circumstances with regard to his knowing, voluntary and intelligent waiver. Here's how it fell out:

The same officer who questioned my guy was the one who first tackled him and used "holds and grappling techniques" to "subdue" him. The officer admitted that for him, "grappling" in this case also included punching.

My guy was also arrested for DUI, having a strong odor of alcoholic beverage, staggered gait, slurred speech, and red, bloodshot eyes. I learned from a hearing I lost the day before to ask him how much time passed after the arrest to when he questioned my guy; 10 minutes. After those 10 minutes, all that could be detected was "some" odor of alcoholic beverage and "slightly" slurred speech.

The questioning took place at the precinct, not in the field; the cop had access to voice and video recording devices, but used none, nor did he take contemporaneous notes. At my hearing, he added some stuff to what was not in the report he prepared later: that my guy also told him that he knew the gun was in the car. We did the wedding dance, and he admitted that a statement of knowledge of the gun was something he was trained to put in his reports and was something that he made a practice of putting in his reports, if such a statement was made.

Although the questioning took place in the precinct, the officer did not use a written Miranda form, where the defendant initials by each of the Miranda rights and signs that he agrees to waive his rights and talk. Furthermore, the office testified that my guy indicated his waiver and desire to talk with the officer by "nodding his head."

The DA did a very impressive job of trying to staunch her case's multiple hemorrhages; she anticipated where I was going with each problem and tried hard to cover those areas. In the end there wasn't much for her to argue, but she argued the law; that the Court should consider "the totality of the circumstances" in denying my suppression motion. However, the totality of the circumstances was exactly what was wrong with the case. My client's statement got thrown out, leaving nothing to connect my guy to the gun and drugs under the back seat.

I then went on to lose the rest on my hearings that day, most of them to her.

The Best Part of the day was when I was doing the wedding dance with the cop as to why he didn't use the written Miranda waiver:

(After establishing that although there were written waivers readily available, he did not use one)

Jack: Officer, have you received any training in doing Miranda waivers?
Cop: Yes, sir.

Jack: Did you receive training at the Academy in how to properly do a Miranda waiver?
Cop: Yes, sir.

Jack: Did you receive any training in how to fill out the written Miranda waiver form?
Cop: No, sir.

Jack: So, at the Academy, they don't teach you how to fill out this one-page waiver form for Miranda warnings?
Cop: No sir, the waiver form is so simple they don't even need to teach you how to use it.


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The Wedding Dance

The Wedding Dance is a choreographed piece to lock witnesses (usually police officers) into their reports to make it harder for them to weasel their way of out omissions, errors, and inconsistencies.

If they try to go outside their report, they will have to choose whether to admit that they're hiding something or that they're incompetent.

Did you prepare a report in relation to this case?
Do you consider yourself a professional when it comes to preparing police reports?
You have been trained to prepare accurate reports, correct?
Is it your practice to prepare accurate reports?
You have been trained to prepare complete reports, correct?
Is it your practice to prepare complete reports?
Would you agree that a complete and accurate report will contain all of the important facts?
Your report in this case is complete and accurate, correct?
Your report in relation to this matter contains all of the important facts, correct?
Officer, please take a minute or two to review your complete and accurate report before answering this next question...
Is there any aspect of your complete and accurate report that you would like to change, correct, modify of expand upon?
You have now "married" the officer to his or her report.


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