Gideon's Guardians

Yes Yes I am a republican

2007-10-18T11:12:00.000-05:00

I have been registered to vote since the day I turned 18 years old. I have attended a presidential inaugeration ( I was in high school) and have worked on campaigns for democrats as well as republican throughout my years opting to support the best candidate instead of just my parties' person. I grew up military and consider myself fiscally conservative but socially liberal (thus being a defender of the indigent). Why am I bringing this up well this week I recieved a republican party census document because by god my "opinions represent my fellow republicans in my area". The questions are so slanted its ridiculous. So Jack and I decided to put a few responses in that weren't offered. ex/ should we make sur president Bush's judicial nominees recieve fair hearings and up or down votes in thesenate even when Democrats threaten a filibuster. Our answer states "as long as that goes both ways". The questions that is making me contemplate going to the election board and reregistering was number three on the back:
3. Will you join the Republican National Committee by making a contribution today?
Yes I support the RNC and am enclosing my most generous contribution
Yes I support the RNC, but I am unable to participate at this time However I have enclosed 11 dollars to cover the cost of tabulating my survey.
No, I favor electing liberal democrats over the next ten years.
Seriously
Janet

Renesting

2007-10-11T15:53:00.000-05:00

Every time I finish a big trial (i.e. 2005 murder trial) I have to clean. This drives Jack crazy. If my office is already in order which it usually is I attack his office (his usually is not). Lucky for Jack I am rearranging. I had ten years of old jury instructions, seven years of calenders and ten years of pocket parts. Why as attorneys do we feel the need to hold on to every piece of paper concerning law? I have finally today gotten rid of my barbri books. It's not like i'm going to take my own state's bar again.

Does anyone else have this problem?
Janet

John Ashcroft: The First and a Quarter Kind of Loyalty

2007-06-05T23:45:00.000-05:00

Like PD Dude, I noted the attempted John Ashcroft sickbed hustle by Alberto Gonzales (then White House counsel) and Andrew Card. (then White House Chief of Staff) The short story is that the acting Attorney General, James Comey, would not sign off on the legality of the NSA's domestic spying program, so the White House sent Gonzales and Card to Ashcroft's hospital room to try to get Ashcroft to sign off on the reauthorization of the program.

Ashcroft did not sign the papers and told Card and Gonzales that Comey was the AG. The White House reauthorized the domestic spying program anyway. After Ashcroft got better, the program was reauthorized with the AG's approval. Allegedly there were some changes to the program, but those changes have not been revealed by anyone.

The entire incident speaks volumes about the ethics and morals of Gonzales and Card. It also shows that there are/were decent people in the Bush Administration who knew right from wrong. Read it; it would make a great movie or a Bill Bennett homily, except that the bad guys ultimately win and are rewarded for their utter lack of decency. Here's the transcript of James Comey's testimony.

But what does the incident say about John Ashcroft? Did he have a sickbed conversion to Defender of the Constitution? Comey said that Ashcroft expressed his views on the matter to Gonzales and Card in very strong terms and then told them that it didn't matter because Comey was the AG at the time. Comey did not state what Ashcroft's views were.

So why did Ashcroft do what he did?

1. Because legally he was not the Attorney general; he did not have the legal authority to be the AG at that time, due to his incapacity.

2. Because he was loyal to his deputy, James Comey, and to his rice bowl, the Department of Justice.

3. Because the Office of Legal Counsel said it was illegal. The OLC used to be the smart guys about the law for the executive. They looked at laws and legal questions as they affected the executive branch and said what the law was. That all changed with the Bush Administration, and the OLC became apparatchiks for the Administration, switching from "hey, boss, this is what the law says" to "OK boss, you want to justify this action? Here's how." The 2002 Torture Memo is an excellent example of the OLC's switch from honest broker to whore.
With regard to the NSA's domestic spying program, when the OLC said it was illegal, so you can imagine how blatantly illegal it had to be for OLC to have second thoughts.

4. Because he felt the Administration had gone too far in violating our Constitutional rights, requiring him to come to their rescue? I wondered if it was true when I read Comey's testimony, but it was silent about what Ashcroft's views were. So I had to do a little research about what Ashcroft had said about the domestic spying program. He's written a book, Never Again: Securing America and Restoring Justice, which is a narrative of the things he's done to keep America safe before and since 9/11. The book is very short on discussion or explanation of why, and there is no discussion of the hospital hustle (though he talks about how mean the 9/11 commission was to want him to testify after he got out of the hospital) There is no discussion of the domestic spying program, and only contempt for those who questioned the civil rights implications of his policies (he said they were aiding the enemy)
Ashcroft also spoke to NPR about his book, and when asked directly about the incident at the hospital, he either would not comment or redirected. (at 2:22 and 3:10)
On thing Ashcroft is able to answer is how necessary it is to protect our security, but he does not discuss the cost to our liberty; it is simply not part of his calculus.

So, no, I don't think John Ashcroft was doing the Constitution any favors that night in intensive care, but PD Dude has a good point - Ashcroft has principles, even though I disagree with them, and that puts Ashcroft out of step with many of the people in this Administration.

However, Ashcroft's principles are either not so strong or not so offended for him to show the second kind of loyalty to those principles, and that makes him still part of the problem.

Jack

UPDATE: WRT Alberto Gonzales; it all makes sense now...

Thank God for Understanding Spouses

2007-06-05T16:31:00.000-05:00

Katie Hayden's husband Bob and another passenger took matters in hand when a pair of passengers were causing a disturbance on an airline flight. Bob is a retired cop, the other passenger a retired Marine.
During the fracas, Katie kept reading her book; an agitated woman ahead of her wondered how Katie could just keep reading. This was her reply:

Bob's been shot at. He's been stabbed. He's taken knives away. He knows how to handle those situations. I figured he would go up there and step on somebody's neck, and that would be the end of it. I knew how that situation would end. I didn't know how the book would end.

To all the spouses who put up with their loved one's poorly-paid, wrong-righting, dangerous, windmill-tilting, long-houred, unappreciated jobs, and who support them with humor, calm, patience, strength and understanding,
Thank You.

Jack

Dead Man Laughing - Chino's aren't

2007-06-05T14:27:00.000-05:00

Patrick Knight will be killed by the State of Texas June 26, but he's facing his end with more humor than most, and it's making some parts of the pro-death camp unhappy.
He's soliciting jokes, and will select the best one to tell as his last words.
No profane, vulgar, prison or death penalty jokes, please. (But lawyer jokes are popular)
He's got a myspace page (sponsored for him by someone outside) and you can see some comments, too.
His competition for the reading public who's tastes run to the ghoulish aren't happy, and I'll bet the pro-death camp isn't happy either. (he's not enough suffering to satisfy their Christian vengeance)
New word for the day, thought up while discussing the sentencing/forgiveness views of Old Testament Christians vs. New Testament Christians:
Chino
hint

Jack

Update: I googled chino and its definition and got 500,000+ results. So much for new words. I need to get out more.

Five Days

2007-06-05T12:41:00.000-05:00

Five days. That's how long a recent client took to get picked up for the same offense as the one to which I pled him. In the grand scheme of things, it was a piddly case, and the DA wanted to get rid of the case, too, so we were able to make everyone happy. Unfortunately, the DA got his butt chewed for giving my guy the deal he got. Luckily, he's got prior military service, so he won't be scarred by this butt-chewing, and won't be as shy with pleas in the future as he would be if he hadn't already been yelled at by the best (Well, second-best; he was Army)
It's frustrating that my future clients are going to have their option list shortened by what a past client has done. He'll get his payback; he signed on to longer probation than he would have done in prison, so now he'll have longer prison time from messing up. (In addition to the new charge) But my other clients are less likely to get a chance at the 'more rope to hang myself with' deal whether they're likely to succeed at it or not.

However, five days still isn't my record for shortest release-to-recommit time:
7 hours, 22 minutes.
Beat that.

Jack

Justice vs. Vengance and Efficiency

2007-05-28T12:55:00.000-05:00

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.

Jack

Good Question on the Ethics of Calling Cops Liars

2007-05-27T22:28:00.000-05:00

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.

Jack

Two for Two

2007-05-26T09:56:00.000-05:00

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.

Jack

Client Attacks His...

2007-05-23T12:39:00.000-05:00

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?"
"NOW, YOU CAN CONTINUE TO BE A FAIR AND IMPATIAL JUROR IN THIS CASE, ISN'T THAT CORRECT MR. 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.

Jack

Should I Stay or Should I Go?

2007-05-17T23:29:00.000-05:00

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.

Suggestions?

Jack

A Good Start to a Long Day

2007-05-03T16:45:00.000-05:00

(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.

Jack

The Wedding Dance

2007-05-03T16:43:00.000-05:00

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.

Jack

Can I get a trial?

2007-04-18T17:43:00.000-05:00

Well after spending three days picking a jury puting on 10 witnesses out of 25 the dang thing gets mistried. I've only announced ready four times. GRRRRRR. Anyhoo time to get reading on the next one. Jack and I have been bouncing in and out of trials lately he's been kicking my butt on numbers so i'm going to have to get back into the courtroom. Hopefully i'll actually get to complete a trial this year.
Janet

A Second Kind of Loyalty

2007-03-28T23:44:00.000-05:00

A while ago, Skelly had a post about why people go into public defense; from a profound belief in the fundamentals of the Constitution and/or a strong anti-authoritarian streak. This post is about people who are stirred to act on that profound belief, and the price they pay for it.

Beginning in the 1960's one of the many slogan/propaganda programs going on in China was to "Emulate Lei Feng." To emulate Lei Feng was to show obedient, unquestioning loyalty to the Party. Not heroism, not brilliance, not standing out in any way. In Feng's words, to aspire to be nothing more than "a revolutionary screw that never rusts."

Beginning in the 1950's a journalist named Liu Binyan began writing literary reportage pieces, exposing corruption, bureaucratism and incompetence in China. As part of the crackdown after the Hundred flowers movement, Binyan was "sent to the countryside" for "reeducation through labor."

He was rehabilitated in the early 1960's but kept writing. In the late 1960's he was again sent to the countryside, but for "reform through labor" i.e. a prison labor camp

He was rehabilitated again in the late 1970's and wrote into the 1980's about the same problems of corruption, incompetence and the suffering and injustices of the regular citizen. In 1988 he came to the US to teach, and was forced to remain here in exile after speaking out against the Tiananmen Square massacre and the following crackdown. He died in 2005.

One of the pieces he wrote in the 1980's was called "A Second Kind of Loyalty." It was a response to the "Emulate Lei Feng" movement, who represented the first kind of loyalty. The person who showed the second kind of loyalty loved China or the Party no less than Lei Feng, but acted out of love and loyalty to tell the nation or Party when it had betrayed its ideals.

This second kind of loyalty is the kind that Binyan himself lived. His autobiography is called "A Higher Kind of Loyalty" and it fits him. He remained a committed Communist all of his adult life. He grieved for what had become of the Communism he believed in, sacrificed for, worked in prison camps for, and tried to point out its errors, without avail. I had the honor to meet him in 1990 after Tiananmen, after he'd been exiled. He still believed. He still struggled, honorably and with total loyalty, the get the Party to see the error of its ways - to return it to that ideal that Binyan kept in his heart of hearts.

One of the reasons people become public defenders that that they have a second kind, the higher kind of loyalty. They believe that the Constitution and the Founding Fathers contemplated something better than what we're doing now; that in order to be worthy of being called "American" we must try to do better; that the ends don't justify the means; that as Americans we're the good guys, even when the other guys play dirty; that we're a nation of laws, and those laws apply equally to all. We know how and why the Constitution should work; and those with the higher kind of loyalty are trying to get the way it does work as close as possible to the way it should work.

The second kind of loyalty is rarely popular; people don't like to hear that what they hold dear has been corrupted or perverted. The tendency is to kill or at best resent the messenger, even the loyal one. For both Lei Feng and Liu Binyan, their personal comfort was secondary to their loyalty. Feng merely honored the letter of the law of loyalty, which won't save what you're fighting for if it's gone astray; Binyan honored the spirit of the law of loyalty and tried to save what he believed in.

Jack

Phil Spector - Unambiguous on everything except the request for counsel?

2007-03-23T15:35:00.000-05:00

Another study says ugly looking people get found guilty more often than good looking people.

Phil Spector's got a haircut and a venire of 300 for his murder trial.

The Smoking Gun has a partial transcript of an interview with a police officer. TSG's transcript starts at page 18, where the cop is (apperently) verifying with Spector that "you wanna get ahold of your [attorney, Robert Shapiro]"

Unfortunately, Phil Spector had some serious diarrhea of the mouth (and serious potty mouth, too) to include trashing the dead woman in the case.

I'd like to see the first 18 pages, and hope for Spector's sake that he unequivocally invoked his right to counsel. His vehemence for the dead "piece of shit" and the authorities certainly is unambiguous.

If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.
Davis v. US, 512 US 452 (1994)

My experience (with one exception) has been that "unequivocal" means no less than "I want an attorney now." And in the event of an unequivocal invocation, the police will "mention" other things that might just happen to cause a client to "reinitiate" the conversation, like "I do not want you to answer me because you dont' want to talk to me without your attorney, but we've arrested your girlfriend for her involvement in this." (in this particular robbery case, the DA's victim was starting to go south on him, so we worked out a reduced charge/time served deal, so we'll never know what the appeals court would say about that.)

Jack

What's With the No New Posts, eh?

2007-03-22T23:49:00.000-05:00

I'm not sure why I haven't been posting much - I've got a few reasons floating around.
1. Burnout. Maybe... At least part of my lack of posting has been a feeling that most of what I've been writing shows a good bit of contempt for defendants - my clients. I don't consciously feel contempt. Sadness, yes, but not contempt. One of my coping mechanisms is the black humor that most of us keep to ourselves - but my writing has seemed to focus on that aspect, and not on the others, so I want to de-emphasize that. Other than being more tired than usual of my clients doing stupid things, I don't feel any other symptoms of burnout. I'm at the jail more, seeing my clients more, I'm trying more cases, I'm having more fun doing it, my understanding of the spiritual aspects of my calling is deepening, I'm balancing work and family better, etc.
2. The new has worn off. My posting has always run in fits and starts, but committing to posting has started to feel like...work. So, maybe so. But that in and of itself isn't really reason to not post, but it does feed into the next reason:
3. What have I got to offer? Somebody else usually picks up the new stuff before me, posts more intelligently and insightfully, has better stories and tells better stories - what can I offer that no-one else does, or at least offer something as good as someone else? fark.com for lawyers, paraphilia phridays and debunking meth recipes? I don't think so.
4. Shades of grey /100% solution. Once I do start writing on something non-fluffy, it turns into mush because I can see the other side's argument and in my mind concede that reasonable minds can differ. The writing tends to lose direction and strength. Also, the nigh-untappable knowledge available on the internet makes it very hard to write fully on a subject without it ballooning - I have a tendency to digress because the digression is as interesting or more interesting than the primary discussion, and the internet both facilitates and multiplies that tendency. I also want to have the whole, correct answer based on all the data - the 100% solution. However, living in the real world requires us to think and act on less than 100% information; otherwise we'll always be gathering information, rather than acting on it.
5. A day late, a dollar short. By the time a I have something useful to post about something, it's old news. That's partly a function of my tendency to want the 100% solution and partly my laziness. In my head, I've got a great article on the development of 'humane' ways to execute people that was perfectly illustrated by the Iraqi's popping off the head of Saddam Hussein's half-brother two months ago.

The answer is probably all of them. But hey, it's a post.

Jack

AAJ trial comp 2

2007-03-07T16:17:00.000-06:00

We went we saw and we got home towned. WE didn't have the right twang to our accents to go forward. BUT, the kids learned alot as did I and they represented their law school with dignity and honor. I'm very proud of them. So I"m sitting here listening to Etta James and if you haven't heard her your missing out she sings "At Last" one of my all time favorite songs. And a great person to listen to as your reading police reports.
Janet

AAJ Competition

2007-02-23T11:25:00.000-06:00

Well one week left before I take my former ATLA now AAJ trial team to compete against law schools across the nation. I'm nervous for them. Will they win, I have no idea. We are scrimmaging a law school in the next state for practice this weekend. I guess I will have a better idea. Will these law school kids be able to walk out of school and into a courtroom most definitly yes. Have a lured any into becoming public defenders we shall see.
Janet
cross your fingers and wish us luck

Paraphilia Phriday 12

2007-02-16T17:26:00.000-06:00

Today's paraphilia is Hemophilia:

But I don't think young Prince Alexis would like that, so I'll use a Latin prefix.

How about Sanguiphilia, instead? (Those who prefer Greek could use hemolagnia instead.)

Apparently young Ms. Sutton would like that. According to an unnamed man, who was using drugs and alcohol with her, he let her tie him up but got cold feet when she brought out a knife, stabbed him (lightly, I presume) and told him she liked to drink blood. He escaped, she followed with a pickaxe. Sounds like somebodies forgot their safe words.

The Spanner case from England shows some of the problems that people who enjoy edgeplay run into - Whether one can consent to conduct that is likely to amount to something more than simple battery.

Jack

Women's Heart Month

2007-02-16T16:12:00.000-06:00

The center of Disease Control and Prevention released a study this week stating that the top five states with heart disease are West Virginia, Kentucky, Louisiana, Tennessee and Oklahoma. The five lowest were Colorado, DC, Hawaii, Minnesota and Montana. The only connection I could see was the five highest eat chicken fried steak okay maybe that wasn't in the report. But since it is February and it is Heart month and our field of choice is a little bit stressful, make an appointment and go have the ticker checked out.
Janet
AND WEAR RED

From the Mouths of Babes - Evidence Rule 613 vs. 801(d)(1)(A)

2007-02-14T06:54:00.000-06:00

I recently helped Professor Janet with one of her classes. One of the things the kids had to work on was laying a foundation for impeachment by prior inconsistent statements. They had to unlearn some previous (not Janet's) mis-teaching, but one thing they always got out was that the witness was under oath and subject to perjury. I usually ask that as part of cluing the witness in to where they were when they made the statement, but I didn't think it was a necessary part of the foundation.
So I've relearned where that came from.

Impeachment using prior inconsistent unsworn statements comes in under Rule of Evidence 613, and can only be used as impeachment evidence, not as substantive guilt/innocence evidence.

Impeachment using prior inconsistent sworn statements comes in under Rule of Evidence 801(d)(1)(A), and can be used both as impeachment evidence, and as substantive guilt/innocence evidence.

(For non-lawyers), a jury may be required to consider evidence only for certain reasons. For example, if a witness has made other statements before trial (like in a police report) and the witness says something different in trial, the witness can be impeached by their prior inconsistent statement (in the police report) However, that inconsistency can only be used to show that the witness shouldn't be believed; it cannot be used to prove (or rebut) that what the witness says happened before really happened. The prior inconsistency is not "real" or substantive evidence that a jury can use to determine guilt or innocence.
However, as a matter of practice, once a jury hears something, the jurors will use that evidence for whatever they want to use it for. This is one reason why defense attorneys don't often have their clients testify when the clients have felony convictions - although the jury will be instructed that they can only use the fact of the prior conviction to gauge the defendant's credibility as a witness, juries will often use the prior convictions to find the person guilty because he or she is a bad person.

Our jury instructions provide only for Rule 613 impeachment by prior inconsistent statement instructions, so the jury is instructed that they cannot use the impeachment evidence for their guilt/innocence determination - I need to make sure I ask for a modification for prior inconsistent sworn statements.

Jack

Check ... and Mate.

2007-02-13T08:31:00.000-06:00

I just got a report from the police lab. Statistically speaking, if there were 25,000 planet Earths, then I might find some other guy besides my client whose saliva was on the bag of drugs that the police found after the foot chase of my guy ended.
On a clear night, one can see about 2500 stars without magnification.

Here are 70,000 stars:

I wonder which one that other guy is orbiting?

Jack

Shout out to the Trial DOG!!!

2007-02-08T15:26:00.000-06:00

Jack just recieved a not guilty on a Robbery with Firearm!!!!
Janet

New Blood

2007-01-19T17:05:00.000-06:00

Meet Terri:

From her bio:
upscale image and zany personality...falls into place with the rest of the crowd...very serious about her career...wise-cracking upbeat character...