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...

Get to know the three's company gang

2007-01-18T14:59:00.000-06:00

Okay blonde justice put in her four truths and one lie so i've gotten the three's company together to see how much we know of each other. Can you guess which one is not true. Here goes for me:
1. I'm related to Elvis.
2. I have never flashed anyone at Mardi Gras.
3. I got stuck in a blizzard in Iceland.
4. I make Jack and Terri play "I love the 80's" board game on slow afternoons
5. I have tipped a cow and climbed a water tower.

Janet

1. I can place an unopened can of beverage on my head and without using my hands, drink it.
2. The first time I had Chinese food I was in Copenhagen.
3. I can read Anglo-Saxon.
4. I danced in the street when Ronald Regan was first elected president.
5. I’m an AWS certified welder.

Jack

1. I have approximately six extra teeth in my mouth.
2. I have studied Spanish, French and Russian.
3. I was an intern in the Clinton Whitehouse.
4. I find clowns extremely disturbing( and I don't mean the Bush administration, I mean actual for real, red nosed, white make-up wearing clowns .)
5. I enjoy extreme remote wilderness camping.

Terri (a/k/a the girl who replaced Chrissy)

Nature relecting life

2007-01-18T14:35:00.000-06:00

I have clients that blame drugs and alcohol for their problems with the law. Being a Gen Xer, yes I am, although from the older end of the spectrum, I feel that people make choices and there choices are why they have problems that cause there files to end up on my desk. I may have to start rethinking my logic. I recently saw a documentary from a nature show. Maybe i'm wrong.

Spider On Drugs. Make Sure You Watch The Entire Video. - video powered by Metacafe

Janet

Green Day: "Punk, Twice Removed"

2007-01-17T20:28:00.000-06:00

There was some discussion today after court about people's favorite/most formative albums - one of the newer DA's mentioned Green Day's "Dookie" and having been really into punk like that.

Punk like that? Green Day? Punk?

One of these bands is not like the others...

One of these bands just doesn't belong:
The Ramones - The Clash - Buzzcocks - Stiff Little Fingers - Black Flag - Circle Jerks - Dead Kennedys - Cockney Rejects - Green Day - Bikini Kill - Rancid

Rancid and Bikini Kill are about the same era as Green Day, so I don't think it's just me being old, grumpy and not open to new music (the other bands, however, are a telling 25-30 (!) years old...)

I guess Green Day could be punk in the same way Adam Ant and Avril Lavigne were/are called punk. Is punk-pop a contradiction in terms? Or maybe emo-pop, like Weezer? Or a softer version of whatever Bad Religion and Offspring are? (I guess since Suicidal Tendencies are punk, that makes The Offspring almost-punk, then Green Day could be almost-almost punk, or "punk, twice removed")

Heck, what's in a name? Whatever it is, Green Day just fades into the placid vanilla haze - "Punk" has to get your adrenaline pumping, and at its best, your brain socially and politically engaged. Green Day gets the brain going occasionally, but so did Simon and Garfunkel, occasionally.

Thus endeth the Rant.

And my formative album, after broadening beyond the Simon and Garfunkel, Neil Diamond and John Denver that mom and dad played?

Jack

Lady sings the Blues

2007-01-16T11:36:00.000-06:00

You just got to love Billie Holiday. Well the midwest is taking a beating and i'm back at work after a three day weekend. I don't do well with free time. The sun is out so maybe the cold weather is taking a break today. Feel bad for the people in Colorado and Oklahoma they need a break and a 75 degree weather day. Life is trotting along. Getting ready for a three trials next week cause its always feast or famine. If we can get our new three out of trial she'll be joining the blog and Jack and I will be better promise.
janet

PD Blog Awards - And Where the Name Came From

2006-12-27T17:58:00.000-06:00

Public Defender Stuff is hosting and inaugurating the 2006 PD Blog Awards
(they need a name for the awards, too)

We got nominated for "Best Title of a Blog That Reflects Something About The Job"
AND have a couple of votes, no less.

SO GO VOTE!

A couple of years before we started the blog, another PD wanted to know what the office's gang name would be - here are some of the (non-identifying) also rans, running the range from pretentious to profane (and from not bad to pretty crappy)

The Continuous Objectors (maybe if we had a band…)
Overrule this, Biyatch! (Gang Motto)
The Handbiters

The Imprecators
The White Hats
The G stickers

One Candle
The Guardians of Gideon
The Black Sheep (yeah I know its already taken)
Clarence Darrow’s Bastard Sons (another band name)

Churchill’s Successors
The Pauper’s Paupers
The Mouthpieces
The Dark Cursers
The SuperEgos

Jack
(my favorite is Clarence Darrow's Bastard Sons)

Bootylicious Bad Girls

2006-12-15T17:11:00.000-06:00

There was a post last week at The Wretched of the Earth on Courtroom Etiquette that a lot of my clients need to read, too - particularly the "Dress" sections.

I ran across this one today - Mom shows up for sentencing in a child endangerment case where she had her 12 year old son and 13 year old daughter take pictures of her in "nude seductive poses."

Guess what was written in Rhinestones on the left butt pocket of her jeans?

Booty and on the right butt pocket? licious

Yep, she went to jail.

I've seen a lot of people at the courthouse in their best Sunday T-Shirt, and enough Sunday Zoot Suits to tell people to wear job interview clothes rather than Church clothes.

My best clothes story is the witness/"victim" in a Kidnapping case - it was a girlfriend/boyfriend case where the girlfriend was going to get her probation revoked and maybe kids taken away of she was out with my client. So, she was "kidnapped" when she gave him a ride across town, with a non-physical argument on the way.
She shows up under threat of a material witness warrant and steps up to the witness stand wearing this T-shirt:

Jack

Tonight I Helped Twelve People Save a Man's Life

2006-12-14T20:18:00.000-06:00

and it feels pretty damn good.

I never thought I'd be thrilled to hear the words, "life in prison without the possibility of parole" but I am.

Jack

Levity Intermission

2006-12-14T19:26:00.000-06:00

While waiting for a verdict, this little gem came my way from a client's sentencing report:

"I have Lernd alot from bein Stupid"

Jack

brrrr

2006-11-30T22:20:00.000-06:00

i'm sitting here with my laptop in my lap thus the name laptop. This is what happens when i get snowed in. I do not deal with free time well. I'm due to start trial on monday but Jack isn't done beating up on the state's attorney so i guess i'm not going to have my wack. Its cold here. I think half of the country is covered in freezing rain or snow. I'm waiting for the local news to tell me whether or not I have to set my alarm in the morning. I have alot of work to do but yea really don't want to go out in this stuff. I have lived in many different areas of the country but they had one thing in common they were usually warm. Well since I'm a captive audience here's my movie review for the blogosphere out there as we approach a long weekend. "Bobby" is about a variety of people in LA the day that Bobby Kennedy was shot. It is a great character study. Worth a see. This was my intelligent movie. My not so intelligent movie was "Let's go to Prison" or something like that. Very Very dumb, you will laugh. Well is looks like everything in my area of the world is closed except my court house so i guess i better sign off and get ready to plow ahead to court tomorrow. grrr
janet

Rorschach Religion

2006-11-30T15:52:00.000-06:00

Some Death Penalty views from people who self identified as Christian and "very religious"

"The Death Penalty should be imposed in every case where someone deliberately takes the life of another"

"The word of God says, "Thou shall not kill"
"The Death Penalty is used too seldom in this State [a very active killing state] - there are very few death penalties relative to the number of heinous crimes"

"Only God decides, not us"

"The Death Penalty is used too seldom in this State" "If someone chooses to take a life, the penalty should be to take their life"

"Victims and families of victims do not experience any sustaining fulfilling relief after "avenging" those who have wronged them"

"I believe that there are people that have a bad soul and cannot be forgiven" "The Death Penalty should be imposed in every case where someone deliberately takes the life of another"

"God forgives everyone but there area always consequences we must face for our actions" "If we impose the death penalty and he or she does not know Jesus, then we send a soul to hell and Satan wins" "Humans categorize sin and it's not our job. In God's eyes sin is sin and he can forgive us."

"Zealously Religious" "The Death Penalty should be imposed in every case where someone deliberately takes the life of another"

"The death penalty gives people employed by the government the right to kill a killer to show that killing is wrong. We can't create or destroy life and judgment is reserved for God"

Reading through these got me thinking about something the mindful mission posted a while back on the differences between the Religious Right and the Religious who aren't the Religious Right, and some of my thoughts on the efforts by the religious right to co-opt Caesar's means of enforcing certain behaviors. Note that the anti-death penalty people cite to doctrine or the Bible; the pro-death penalty folks don't (except for the "bad soul" person). The article cited above brings out part of why that is.

Jack
Jack

Deer Judge: You Boned It. (Part 1)

2006-11-30T15:45:00.000-06:00

The Judge's ruling in the dead deer sex case came out last week and I've been too busy to write about it.

In fairness to Judge Lucci, as a response to the brief filed, the ruling's not that bad. The motion was a quick one and the argument had to do the the Websters definition of animal specifying a living being. The ruling was equally hastily thought out and was essentially:

1) we shouldn't be bound by a dictionary definition, we need to use a "common and ordinary meaning of the word based on common usage and understanding" which I define as (essentially) "it's an animal so long as there is a recognizable animal "sex organ, mouth or anus""
and
2) since the pertinent chapter of the Wisconsin statutes criminalizes sexual activity "outside the institution of marriage" and what Brian Hathaway did was sexual activity outside marriage, what he did must therefore have been intended by the legislature to be covered by the statue.

But a Judge has a duty to the Law, not just to react to counsel's arguments. If both counsel are wrong and are arguing the wrong law, the Judge should know (or find) and follow the law, even if the parties don't cite it.
Since this appears to be an issue of first impression, it's curious that the Judge failed to do that. (Then again, maybe it's because it's an issue of first impression that he ostriched it. - But that leads to another question: if you don't know the law, won't research the law, and won't rule on the law, why are you making the big bucks?)

So what should the Judge have done? (and maybe counsel, too)
1. Hmm. Interesting issue - The statute is silent and there aren't any on-point cases. maybe I should look for similar statutes and see how they are treated. Maybe I'll look to see how the statutes treat sex with humans and sex with dead humans?

A. With a little bit of searching, one would find Wis. Stat. 940.225 (at page 8) , which punishes sexual assault. With a little bit more searching, one would find paragraph 7, which specifies "This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse" AHA! The legislature noted an ambiguity and cleared it up, yet did not do so for another sex offense, bestiality, at 944.17 (at page 1)

B. Going a little further afield, Theft of property "taken from the person of another or from a corpse" is a felony. Wis. Stat. 939.20(3)(e) (at page 7) (emphasis mine) Once again, the legislature seems to know the difference between a live person and a dead person and legislates accordingly.

C. So we see that the Wisconsin legislature understands that they need to specify whether they meant a statute to apply to the dead, not only with regard to general criminal offenses, but specifically with regard to sex offenses. If the legislature knows how to, and does, write laws that specifically include the dead, that means that when the legislature does not include the dead, they aren't meant to be included. If the Legislature wants to, they can change the law, and they probably will. Then and only then will having sex with a dead animal be illegal in Wisconsin.

Preview of part 2:

2. Hmm, maybe there is another, more studied area of law that addresses the legal implications of life and death? Perhaps a question having to do with when a fetus becomes a person/victim of an offense under the law? Perhaps there's been more written on that issue? Maybe even an ongoing national and states-wide debate on those issues? Well, actually, in Wisconsin that's a bad idea. The caselaw is an absolute mess of contradictory, Monty Python worthy nonsensical, results oriented junk.

Jack

To Defend (Thanks Indiana PD)

2006-11-23T06:20:00.000-06:00

Some writings are inspired. They're the ones that make you catch your breath, or get chills, or choke up when you read/hear them. Like the Gettysburg (pic) Address (text) , or the I Have a Dream speech. (text, audio, video)
Some writings are more focused on a smaller audience; I'm sure there are some of Peggy Noonan's Reagan speeches that work for some people, but not for me.
Similarly, stuff that works for PDs may not work for DAs.
I've been able to write a couple that still work for me, but I haven't read or heard one better than this for PDs:

Indiana PD had a blog for a while, then disappeared. There was some stuff left on Google cache, but that's gone now.

One of her posts was entitled "To defend"

To defend
In all formal relationships with society, the most intimate and most valuable is the giving of counsel. Those of us who do this stand against the passions of the mob, wherever it rages. We stand against legal barbarism. Some of us do it and are well paid; some of us do it and are not. But no matter who we are, we insure fairness from the Judge and the Court.

Fairness is enforced, not by law or wisdom, but by the vigorous advocacy of public defenders. We teach the loneliest lesson of all - that even guilt deserves a fair hearing, both in order to determine its measurement and to decide a fitting punishment.
The greatest trial lawyers in the world are not the ones watched, covered, and adorned by the media. The greatest trial lawyers in the world are the public defenders, who do their work in empty courtrooms, without the press, without an audience and, sad to say, most of the time without the family of the person on trial. Each day, the public defenders in that grim and dismal setting open their mouths for the dumb; for the rights of all who are racked desolate by time, by circumstances, by class, by race, by hatred.
Each day, it is the public defenders who guard against the human person. Each day in courtrooms, it is the criminal defense attorney who draws from juries their own central goodness, to raise them up to restrain bad laws. This calling insures that humankind's insatiable thirst for cruelty will not be gratified. This sacred responsibility assures that the lowest and most humble beings are exalted by their presence before the bar of justice.
posted by Indiana Public Defender at Saturday, June 18,
2005

Wow.

Jack

Subsidizing the Private Bar

2006-11-22T17:11:00.000-06:00

One of the private attorneys won a motion in front of the Judge today. He had a good brief and good facts. I should know, because I developed the facts and wrote the brief. However, my client had been able to bond out, which meant he had to get private counsel. I wrote the brief anyway, to make sure it'd get done. I'm glad it worked and I'm glad my guy went free on that B.S. charge. I just wonder how much his attorney charged for my work...

Jack

Is the Bronx Really that Bad?

2006-11-21T17:34:00.000-06:00

Testimony from the trial of Greenburgh, NY police officer Erik Ward for "official misconduct":

"He wanted to go to a motel in the Bronx where I would defecate on him, but I told him I was uncomfortable going to the Bronx"

I guess there are just some places a dominatrix won't go.

Jack

And This Month's Miranda Award Goes To...

2006-11-21T08:45:00.000-06:00

Miss V. B., for her hard-edged portrayal of a citizen in a custodial interrogation:

Officer B. attempted to interview V. but she would not respond with anything but "F*** You! I want my lawyer."

Unfortunately, she was saddled with a co-star whose performance was characteristically not up to the rigorous demands of the Academy.

However, she did get a deferred sentence.

Jack

Paraphilia Phriday 11

2006-11-17T17:44:00.000-06:00

What makes a good story?
To quote The Princess Bride,

Fencing, fighting, torture, revenge, giants, monsters, chases, escapes, true love, miracles!

(the book adds, inter alia, Bad men... Beasts of all natures and descriptions... Death...Passion.)

What makes a good paraphilia phriday?
Sex...Life...Death...Paraphilia...Epistemology...Wisconsin...Public Defenders...

Today's paraphiliac (news article here) was NOT caught having sex with a deer, but was caught having sex with a deer carcass.
There's an important legal difference - having sex with an animal would be illegal in Wisconsin - but are dead animals legally animals? Fredric Anderson, Bryan Hathaway's Public Defender (brief here) says no, and the DA helps to explain why the PD's right.
If, for purposes of the bestiality law, 'animal' includes dead animals, where does a dead animal stop being an animal? when its decomposed? (how much decomposition?) when its temperature reaches the ambient temperature? when its not recognizable as an animal?
Or is it as simple as the DA pointed out in argument, that (at least for pet dogs) once dead "It stays a dog for some time." How's that for void for vagueness?
Hathaway's PD points out that the only sensible rule is the bright-line rule - death. Anything else leads to absurd results: "When does a turkey cease to be an animal? When it is dead? When it is wrapped in plastic packaging in the freezer? When it is served, fully cooked?"

There's a lot of helpful analogous law out there - rape does not include dead people, so we have necrophilia laws. You can't have assault and battery on a dead person, its charged as violating the dead. On the other end of life, (depending on your jurisdiction) you don't have a "person" for purposes of being a murder victim unless one is "born alive" i.e. taking one's own breath and sustaining one's own circulation.

To carry on the good story analogy, one place there Hathway's case and story run into problems is that this is a sequel. He pled nolo last year to killing a horse - so he could have sex with it.

And the Wisconsin angle? The winners from Paraphilia Phriday 10 are Cheddarheads, as was this platonic necrophiliac.

Oh - and what's up with the Princess Bride theme? Its because of one of the cites in Anderson's brief:

As Billy Crystal noted in The Princess Bride (1987), "There's a big difference between mostly dead and all dead."

Brilliant.

Jack

UPDATE: The ruling is out, and some of my analysis here.

Police "Expert" Gets His Bluff Called

2006-11-15T07:40:00.000-06:00

Our system of justice relies on the faith that, if both sides bring their "A" game, the truth will be revealed. However, it rarely works out that way. To paraphrase Winston Churchill, the adversarial system is the worst form of dispute resolution except all the others that have been tried.

This time the State didn't bring its A game. The State put on a police officer to serve as its expert witness in a meth manufacturing case. It became very clear very soon that the officer wasn't ready for prime time:

"Striker plates are used to get Phosphoric Acid."
"You can use alcohol or HEET - they're different, but they do the same thing - it turns cold pills into a liquid... I don't know if it's a chemical reaction or if it goes into solution- I'm not a chemist."
"I don't know why Sodium Hydroxide is used, I just know its used in meth manufacturing." "No, we didn't find any Sodium Hydroxide."

"I assume they had either made methamphetamine in the past or were going to make it sometime in the future."

"If you have Iodine, Red Phosphorus and Pseudoephedrine, you have a meth lab."
"We found red powder that we believed to be Red Phosphorus - No, we didn't ask the lab to test for Red Phosphorus""
"I know you can make Iodine out of Hydrogen Peroxide but I don't know how - I'm not a chemist."
No, we didn't find any Iodine, Pseudoephedrine or Hydrogen Peroxide."

Motion to Dismiss Sustained.

Moral:
1) Sometimes the State, with its huge advantages in manpower, money, experts, and influence, squanders those advantages.
2) If you know the law and the facts better than the State and its witnesses do, you can capitalize on the State's errors.

3) Resist that urge to humiliate a cop to tears, no matter how momentarily satisfying - the good ones (i.e. most of them) will remember that you let them off with a warning and appreciate it - which may pay off later.

Jack

Slow Posting Excuse # 43

2006-11-14T16:36:00.000-06:00

I'd meant to write a post for Veteran's day, but I was still doing election stuff. Picking up signs. If losing isn't enough to depress you, picking up your own signs over 2000+ square miles will. It takes some time, too, time that could have been spent getting to know the campaign operatives formerly known as wife and kids.

However, buoyed by the flattering euphemism"sporadic" being used to describe our posting over the last few months, I'm going to try to stay with it a little better.

Jack

Birthday Chauvinism

2006-11-10T08:33:00.000-06:00

Why do you join the Army?

Why do you join the Navy?

Why do you join the Marines?

Things haven't changed a lot since World War I...
OK, it is a little over the top, but it's our birthday...

Trivia aside: (not trivia for Marines, though)
What is wrong with this phrase proposed by my campaign manager a couple months ago?

"this ex-Marine Corp JAG"

There are two cringers and a quibble - can either of the two readers we have left find them?

Happy Birthday, Marines!
Jack

Sometimes You Get What You Deserve, Not What You (Think You) Paid For

2006-11-09T15:51:00.000-06:00

Overheard in an empty courtroom being used as an office by one of the private attorneys and his client:

"Man, my co-defendant on this case is getting the exact same deal! And he's got a Public Defender! I've got a paid attorney, so I should get a better deal! You need to get me a better deal!"

Jack

Electoral Hangover

2006-11-08T17:43:00.000-06:00

Harrumph.

For the last month, I've had two competing thoughts: 1) Crap! November 7 is coming up WAAAY too fast and 2) Lord, will November 7 EVER get here?

Well, it's come and gone and Jack's going to be staying put for a while; we lost, and even accounting for the opposition's going negative and dirty politicking, he probably would have won, anyway (for the appellate folks, yes there was misconduct but it was harmless error)
He's been in the area 20+ years, part of the local judicial system there almost as long, and a judge for over half that time. I've been in the area 5 years and working in the nearby city, i.e not locally.

So I had an uphill battle. Like the little guy in the picture, I kept all my work above the belt, even though there were some very tempting targets had I been inclined to play dirty. I take the fact that my opponent did go negative and did play dirty as a compliment: In his assessment I was frighteningly close to beating him.

So how do I feel? Really good, actually. I busted my butt for something I believed in and kept my honor clean while all around me others were further tarnishing theirs.

If I made Judge, I was preparing for a rather lonely time on the bench, as a good judge can't have any friends, at least no friends who expect favors or favorable rulings. A good man I will continue to have the pleasure of working with used to be a judge in that jurisdiction, and was ostracized because he ruled on the basis of the law an not on (what he thought were) friendships.

So what do I have to come back to? What have I got here at the office? A family. True friends. Professional, honorable (98% of the time) opponents. A calling to the work and work that has purpose. It's as close to a win-win situation as you can get.

In other news, Janet's candidate lost too, getting outspent several times over. Terri's candidate lost a close, dirty and frustrating race.

Terri?

Yes, Terri.

She may be coming on board to take Chrissy's place - we'll see.

Jack

Tuesday afternoon

2006-10-17T15:39:00.000-05:00

Yep, I should be in trial. Especially since i was set for trial on Monday. That would require the state's attornies to be ready. So after working on the trial saturday and sunday i didn't goto trial yesterday. I'm not bitter. My best friend will be flying in tomorrow so i'm excited about that so i've told my candidate i'm out of it for a week and someone else will have to pick up the slack. Jack will be campaigning pretty hard here on out so i'm the only one holding down the fort at the good ole pd's office. Chrissy is leaving the office and if Jack wins the election I guess three's company will be down to one. Hopefully Jack will still make guest appearances.
janet

i'm still alive

2006-10-15T14:06:00.000-05:00

Haven't checked in for a while. I've been working on three trials at once trying to get ready and not jeapordize the clients in the process. Hopefully in the next two weeks at least two out of the four will be resolved and then things can calm down
janet

Crack Campaign

2006-10-07T20:58:00.000-05:00

Talking to people on the campaign trail is by far the most rewarding thing about running for office.
It's a lot like what I'd expect going on a bender would be like. Fun while it lasts, but then you have to come back to all the other crap - fitting 36 hour's work into 24, laundry, auto repair, herding volunteers, phone calls, media coordination, home and campaign, finances, trying to convince loved ones that you love them for more than their ability to campaign, recordkeeping the day's work and planning the next, and Oh, yeah - Do your job.
Then after you're done playing catch up after the bender, you do it again. Becasue you can't stop.
November 7th is waaay too close, AND it can't come fast enough.
Jack

Yeah, What She Said...

2006-09-29T17:44:00.000-05:00

Here.

Still Here

2006-09-28T22:21:00.000-05:00

Sorry for the lack of posts, and the even longer lack of good posts, but the Guardians have been busy politicking. Janet's helping on an election and I'm running for a different one. There's a lot to talk about, and some great stories, but operational security prevents their telling just yet.

Jack

Here I am, Cleaning Sh*t off of Practically Everything

2006-09-08T09:27:00.000-05:00

Kurt Vonnegut said his stories had two themes, which he got from his siblings. His sister died from cancer; her last words were, "no pain." From his brother, with a baby in diapers, Kurt got "Here I am, cleaning sh*t off of practically everything." (From the intoduction of "Welcome to the Monkey House," an excellent collection of short stories.

Sounds a lot like our jobs, eh?

Paraphilia Phriday 10.1

2006-09-08T08:00:00.000-05:00

When it rains it pours...

TSG has an FBI obscenity complaint that covers a few more paraphilia:
coprophilia (from the greek kopros, excrement)
urolagnia (from the greek ouron, urine; and the greek lagneia, intercourse)
emetophilia (from the greek emetos, vomiting)
bukkake (from the Japanese verb bukkakeru, to splash)
fisting (from anglo-saxon, fyst)

George Grosz needs to come back from the dead and do a painting for this. He was a brilliant and utterly uncompromising critic of Weimar culture and politics. He's needed now, too. Perhaps a photo, split between an immaculate and stylish office where the distributor of these DVDs does business and the (literal) sh*thole where these movies are made.

But wait! There's more!:

Santa Barbara County sheriff's deputies come across a bizarre encounter at La Purisima Mission in Lompoc.
Around midnight they found a 69-year-old Huntington beach man naked and covered in oats.
Deputies say the man had covered himself in olive oil, rolled around in oats and allowed the horses at the mission to lick him clean.
He apparently told deputies this has always been a fantasy of his and drove up from the Los Angeles area to play it out.
Alfred Thomas Steven was cited and released for trespassing, animal cruelty and sexually assaulting an animal.

Jack

Paraphilia Phriday 10

2006-09-07T17:13:00.000-05:00

Today's news starts out like a stalker story.

Emo boy

(the comedian, not the fashion) longs for a pretty girl.
He's seen her picture in the newspaper.
He finds out where she lives,
enlists his friend Shaggy

and his (Emo's) brother Doogie

to help,
and the three head on over to the girl's place.
He also makes sure he's prepared,
bringing shovels and condoms.

Condoms? Isn't that a bit presumptuous?
And scary?

Shovels? Hunh?

Yes, shovels. You see, the picture was from her OBITUARY:

They had gotten down to the concrete vault by the time the police,
responding to a 'suspicious vehicle' call at the cemetery, arrived.

Yes, this week's word is Necrophilia.

Rosman and Resnick (1989) theorized that either of the following situations could be antecedents to necrophilia (pp. 161): ... He (usually male) is very fearful of rejection by women and he desires a sexual object who is incapable of rejecting him...

So he wasn't being the least bit presumptuous.
But definitely scary.

Full story at The Smoking Gun.

Today's Pop Culture reference has been sponsored by the Hoodoo Gurus.

Jack

Good Weekend on the Campaign Trail

2006-09-06T17:39:00.000-05:00

We were in a parade over the weekend. I cant' go into much detail, but here's how it felt:

Those who can learn from history are sometimes blessed to repeat it.

Something nice to whoever IDs the allusion.

Jack

At Least He's a Kook with A-List Aspirations

2006-08-29T17:55:00.000-05:00

John Karr, most recently of not-the-killer-of-Jon-Benet-Ramsey fame, is now colluding with Johnny Depp to further wreck a fond childhood memory: Willy Wonka.

Gene Wilder doesn't like it, either.

Karr has a plan for a movie of himself based on a manuscript by himself, starring Johnny Depp as himself, to use Depp's Willy Wonka as a model. Karr would have some constructive criticism for Mr. Depp, though:

Willy Wonka is "very similar to my personality except for the fact that Willy Wonka did not know how to treat children, he had no knowledge of how to be around children."

Which just goes to show that no matter how badly an actor can butcher a character, somebody can always do you one better. Thanks, guys.

Now, where should the Oompa-Loompas take Mr. Karr/Depp and what should they do with him when they get there?

Jack

Life Lessons

2006-08-28T15:23:00.000-05:00

1. If you're playing with a sex toy and it gets stuck, you will only increase your embarassment by explaining to the police that what REALLY happened was that a couple of Samoans beat, garrotted and drugged you and you just woke up that way.

2. Saying you were "pretty much drunk" may explain a one-night stand, but it doesn't explain a one-night stand with a corpse.

3. Never, never insist that the police take your DNA.

Jack

Conspiracy of Pluto

2006-08-24T11:23:00.000-05:00

It was decided today that Pluto will no longer be considered a planet. I personally feel it was a conspiracy by the editors of school books. How many grade school science books will now have to be reprinted? I personally will miss Pluto. Goodbye icy friend
janet

politics

2006-08-07T08:38:00.000-05:00

I'm still involved in the politic scene but honestly will be glad when the circuit judge district judge and all other judge races are decided. the back door politics is amazing. I went out to play a game of pool the other night and the owner of the bar ended up being a major party oppertive luckily the right party or i could have been in the wrong place. just a couple of months and all will be done
janet

sex, sex, and sex

2006-07-27T13:06:00.000-05:00

Okay don't get too excited. What is the verdict on the new Federal Sex Registration law? Any one who has info please let me know a link. My state passed a law about year ago when all of the hoopla started about the rampant sex offenders. The effect of the law is that the city that I live in (pop. 550,000 approx.) has absolutley no areas that sex offenders can live in. How is this right? Now I know what your asking, Janet do you want to have a person who is a predator living next door? No but thats also why i live next to an elemenatry school and park.
I'm currently helping one of my clients to try to live within the system and i'm failing miserably.
janet

new ABA ethics opinion

2006-07-24T16:29:00.000-05:00

http://www.abanews.org/releases/news072006.html

The ABA has come up with its new opinion on the amount of cases that public defenders should handle. 150 felonies; 400 misdemeanor; 200 juvenile; 200 mental health; and 25 appeals. So how is the running with everyone elses dockets?
janet

Aww, thanks, Moms.

2006-07-19T18:48:00.000-05:00

Some of the staff in the office are planning on getting some "Have You Hugged Your Public Defender" T-Shirts from public defense's Cafe Press shop Public Defender Wear. (The blog is on sabbatical)
The ladies who run the office take good care of the attorneys, especially the absent-minded professor types. And they're going to be supporting us some more with the shirts.

A couple (or so) years ago, the staff were mom-aged, but they seem to have been getting younger over the last few years. I've noticed this trend everywhere I've practiced. Now they're all young - just about my age...

Jack

New Meth Recipe - a/k/a Easter Bunny Meth

2006-07-18T16:36:00.000-05:00

I've had a couple of clients independently tell me about a new kind of methamphetamine. I'd never heard of it before, and it didn't make sense.

Its effects are supposed to be physiologically identical to meth, but the substance will not test as meth, either in a Narcopouch test or in a GC/MS.

It's made by mixing 1) household ammonia (more accurately, ammonium hydroxide (aq)) 2) crumbled charcoal (carbon) and 3) gun bluing (Selenious Acid, Cupric Nitrate, Nitric Acid, Phosphoric Acid and water [MSDS here]) in equal parts. Then the mixture is buried in a sealed fish tank or cooler. Some recipes call to suspend strings from the top of the container into the mixture. (hence the occasional name "string dope") Then wait a month. By then crystals will have formed; the crystals are [meth] ice.

However, this is not really meth; it's alive. It is a fungus that keeps growing inside your body long after you ingest it (by shooting or smoking) That's why addicts scratch and get open sores; it's the ice forming new crystals in a person's skin. These are called "meth bites." (locally, "ice bites" - assonance is important to addicts, too) On top of all that, it has a "half-life" of only a few days after removal from the ground; within two weeks, it will be pharmacologically inert.

The problem is, this recipe is all a bunch of crap; even the DEA knows it. (at 11)
On a more basic level, you just can't get there chemically. Period. There is no organic compound in the recipe, so you're not going to get anything remotely similar to the organic compound methamphetamine. You need an organic compound like an amine - as in meth-amphet-amine. Pseudoephedrine is an amine, and is used in both the red phosphorus/Hydrogen Iodide and Lithium/anhydrous ammonia cooking methods.

The base (ammonium hydroxide) and any of the acids (from the bluing) will react, and form a salt, which may form crystals, but it's not going to be chemically or pharmacologically anything like meth.

Another thing that had me skeptical was that none of my searches were getting hits on any of the drug information clearing houses; Erowid, Rhodium (now defunct), or Lycaeum.

But Erowid eventually came through; the recipe is "complete bunk" - the idea was dreamed up in the 1970's by a guy named Scott French and published in a book, the "Complete Guide to the Street Drug Game."
as explained by the erowid article's author,

As with the Net in general, there is a paucity of accurate information available on the subject of illicit drugs. Even the fact of publication is not necessarily a guarantee of any sort of technical legitimacy, particularly, though not limited to, "counter-culture" efforts.
There are many reasons why people write books, but making money is one of the biggest. When the subject is of an illegal nature, the likelihood of inadequate, incomplete, or blatantly wrong information is even higher than usual.
Companies like Paladin, Delta Press, and Loompanics are typical purveyors of such trashy misinformation under cover of the U.S. First Amendment. Ever seen the list of "underground" books by Ragnar Benson & Duncan Long? How many things can these guys be "expert" in? Not bloody likely. What's that maxim? If you can't do, teach.

I'm amazed that people will believe this crap; a living crystalline fungus that will continue to grow new crystals underneath the skin, even after being smoked. (but see gout; crystalline, yes, but not organic, not fungal, and not alive) I'm even more amazed that, armed with this erroneous but alarming information, people still use the stuff!

Jack

Tuesday FarmBlog

2006-07-18T06:19:00.000-05:00

Mrs. Tipper and the Tripperlets are gone this week to the A&M college for competition and classes. Guess who gets all the chores?

That's right, Jack of the too-big hands.

But think of all the chevre and blue cheese and feta... oh my!
unfortunately, no joy. The baby cows get the milk.

This is the girl Tripperlet feeding Klungo early one morning as Venus was rising and the sky was pure Maxfield Parrish.

Jack

Satire, Though Difficult, Still Exists

2006-07-17T12:54:00.000-05:00

The current state of the Union makes satire rather difficult, because whatever the most cynical and over-the-top commentator can dream up will be announced as policy (or at least as a fait accomplit) by the Administration soon thereafter.
Enter Fafblog. Giblets, Fafnir and the Medium Lobster, through a secret process, condense the political miasma into a sweet and intoxicating liquor. (though they produce precious little of it)
Here's a sample:

Wednesday, July 12, 2006
Now They Hate Us With Our Freedom!
Giblets takes a few weeks away from the blog and the whole world goes insane! After four years of justly convicting Guantanamo prisoners of classified crimes before a fair and impartial kangaroo court of their peers, a power-mad Supreme Court has ruled that the military tribunals at Gitmo are "illegal" and that the president has to "obey the law." Well this is just the kind of dangerous radicalism that leads to fascism and human rights! What are we going to do with these people, try them in actual courtrooms with lawyers, juries and "evidence"? That way lies madness - or worse, democracy! If we give our enemies actual rights they'll turn the deadly power of our justice system against us, smuggling weaponized due process into American cities, crashing the Fifth Amendment into skyscrapers, setting off radiological writs of habeas corpus in Times Square!

It may not be the cure for what ails us, but it makes it go down better.

Jack

weekend

2006-07-17T12:03:00.000-05:00

I hope everyone has recovered from the weekend. We live in on of the areas that has been experiencing the 95+ degree weather with the heat index of being 100 to 110 degrees. Needless to say the yard didn't get cut until Sunday night at 8 pm. I got the kitchen floors layed down and i must say pretty impressed with my jigsaw abilities. The best complement I got was after the ballroom party the other night. I've been asked to compete in next months competition. I'm not going to be able to compete but it was nice to think I"m getting better
janet

another reversal

2006-07-14T16:29:00.000-05:00

The witch of Pungo after 300 years has finally been exonerated!
janet

Everything I Needed to Learn About Trials I Learned from Deliverance

2006-07-14T14:31:00.000-05:00

Some days you're Burt Reynolds;

Some days you're Ned Beatty.

This week I'll be Ned.

Jack

UPDATE:
I'll count this as a (defense) victory.

Solid search warrant
+no knock and announce, but see Hudson.
+Solid Miranda
+Meth weighing more than a dozen times over the trafficking minimum
+Many pounds of marijuana
+Rock solid constructive possession
+Solid confession, admitting knowledge, possession, and sales per week well in excess of what was found
=15 years, assuming the meth and marijuana are multiplicious for sentencing purposes.

Renaissance woman

2006-07-13T10:12:00.000-05:00

Okay, I'm walking funny and don't know how I'm going to dance tonight but damn 2/3 of my kitchen looks good. I decided to to redo the floors this week. I bought the material on Sunday let it acclimate to the room and last night after waiting for the prescribed 48 hours I started to install the laminate wood flooring. The lied when they said it was a one person job. Its a two person job you need someone else there to laugh at you when you cut the wrong side off only to find out your have fun out of the planks because you didn't buy enough. Needless to say I went back to Home Depot this morning for the two additional boxes and will have to wait another 48 hours before I can finish. BUT, it does look really nice.

janet

Chicken Catcher

2006-07-07T15:39:00.000-05:00

Last year, a couple of half-geniuses came up with a brilliant plan to get rid of the 2 pounds of meth they were carrying in their car: A four-foot long rocket to be raised from the trunk by a series of ropes and pulleys and fired using the cigarette lighter as the ignition source. Since you're reading this, you can be sure the plan didn't work, but I can't tell from the news accounts where the plan failed; whether there was an ignition failure or moving-into-firing-position failure or decision making failure "dude, he's just going to give us a speeding ticket, no sense in shooting El Diablo's $145,000 in meth into the woods."

Our heroes pled out recently, and some more facts came to light.
One of the defendants was employed as a "chicken catcher" and claimed that the $12,000 in cash found in the car was savings from his job.
So how much does a chicken catcher get paid in a year?

$40,000.

Almost as much as a starting PD gets here, and more than a starting DA gets. And chicken catchers don't have student loans, and don't forego 7 years of salary to join the chicken catchers guild.

Jack

Judge Slap

2006-06-30T17:11:00.000-05:00

If you're ever looking for prosecutorial misconduct cases you might find this little gem:

The total failure to constrain this prosecutor, combined with the obvious annoyance displayed by the court that defense counsel was “interrupting the flow” of the State’s argument, suggests that the trial judge may have forgotten, at least momentarily, where she was sitting and what she was wearing.

Jack

Public Defenders and Criminal Defense Attorneys

2006-06-27T16:08:00.000-05:00

There are a couple of attorneys in the office that just don't fit. It's not that they're bad attorneys, they just seem out of place Janet independently mentioned that there are public defenders and there are criminal defense attorneys who happen to work in a public defender office. She hit the nail on the head. That was the difference; they just don't give off that PD 'vibe.'
But what is the "PD vibe?"
I think it's giving a damn. Criminal defense attorneys that become PD's do so for the steady salary and a guaranteed case referral service. This is particularly important for those whose bedside manner is so bad they can't attract their own clients. Note that I said case referral, not client referral, because the PD vibe involves seeing clients as humans and as individuals. For a criminal defense attorney, a divorce is the same as a criminal case is the same as a zoning variance. It's a file to get finished and be done with; just another widget on the assembly line.
Caveat; I'm overgeneralizing all over, particularly with regard to the criminal defense attorneys who do care. They've got the vibe, too. So maybe it's not a PD vibe, but a decency vibe. It's both a humanist vibe (focusing on the worthiness and dignity of the individual) and a Christian (Matthew 25:40) vibe.

Jack

Soul for Sale

2006-06-27T15:44:00.000-05:00

I was recently being candidate Jack and was asked, "Where is your practice?" and I told him, and he asked, "What kind of law?" I told him I was a public defender. And his shields went up. You could tell it in his expression, and he quickly turned away and walked off.
So, now I need to add something like, "I'm a public defender, which balances my time as a prosecutor in the Marine Corps."
Janet has suggested that I might also need to say I do criminal law rather than being a PD. Ugh. The idea that its necessary to take the sting out of representing accuseds and the Constitution by postfacing my answer with my prosecution time is bad enough, but I'm proud to be a public defender - I don't know if I'm willing to compromise that far.
Do prosecutors running for office ever feel compelled to give short shrift or excuse their time as prosecutors? I think not.

Jack

Ballroom mania

2006-06-16T12:08:00.000-05:00

This week I started ballroom dancing. I have found my new crack. I've had two lessons and have learned the basics to the foxtrot, rumba, waltz, and swing. Last night I started learning the tango. It is so nice to go and dance and not have to think about dna, police, jail, or anything dealing with criminal law or politics.

Janet

Jack goes to Washington

2006-06-09T14:58:00.000-05:00

Jack has thrown his hat into the political arena. Surprised... Yes, think he would do a good job, absolutely. Jack and I live in two different areas of the state even though we converge into the same office Monday through Friday. My commute is 7 minutes if I hit the light and his is god awful long. So I can't even vote for him. I am also working on a campaign althought from the backroom. Being a public defender thus a government employee have to be careful. I have absolutely no respect for the individual my candidate is running against. I have two hours left and time is going backwards today. Atleast there is baseball tonight. I'm going to go out and support the local boys. have a good weekend
janet

back with a tan

2006-06-02T09:24:00.000-05:00

I'm back and granted I would rather be drinking bahama mamas on the ship still. It was a wonderful time. As soon as Jack gets out of court I'll have him put some pics on the web. Luckily after three days of straight court i'm finally back in the office where I can actually get some work done.
Janet

Ahhh Vacation

2006-05-18T09:21:00.000-05:00

Well Jack has been gone most of this week taking some R&R and Chrissy has been AWOL, so needless to say this week has been quiet. I've basically seen all my clients this month and gave them updates on everything. I do not have a trial untill July. I don't know what i'm going to do with myself with all my free time. I've already been to the jail this morning to see the last of my clients before I start the vaca. My attitude has been horrible lately. Not to clients but in general. There is a reason why people in public service burn out, they don't take time off. It seems that people in our industry get to the point that they feel the world will stop turning unless they are at work. This is the first time Jack has taken off since i've known him. I'm signing off for the next ten days have fun at work
janet

TWO WEEKS

2006-05-08T08:44:00.000-05:00

In two weeks i get to go on vacation for ten days. Needless to say the next two weeks are going to be the longest of my life. But at least its only TWO WEEKS AWAY!

JANET

Interesting "Day Without Immigrants" Quote

2006-05-02T07:22:00.001-05:00

At our city's "Day Without Immigrants" rally, there was a small group of counterprotestors. The guys alternated yelling "Why don't y'all speak English" with shouts of "Look over there! La Migra! La Migra!" I particularly liked what some of the women were chanting:

"No Immigrants In America!"

And yes, they were Anglos, not Indians.

Jack

Fibonacci Fisher - The Smithy Code Revealed

2006-04-28T14:44:00.001-05:00

The answer is: "Jackie Fisher, who are you? Dreadnought."

John Fisher was First Sea Lord of the Royal Navy who (among other innovations) tried to get the British to go for fast, heavily gunned, but lightly armored battlecruisers, (bad idea; see HMS Hood) but was forced to realize that vision as a class of battleships, the first being the HMS Dreadnought, launched on February 10, 1906, 100 years before the DaVinci Code copyright infringement trial began.

The code was cracked by Dan Tench using the Fibonacci sequence, a number series described in The DaVinci Code. The Fibonacci sequence can also describe the Golden Mean, which also describes the curve of a nautilus shell.

Jack

Cool Judge Stuff, a/k/a the "Smithy Code"

2006-04-26T17:04:00.000-05:00

The Honourable [sic] Mr. Justice Peter Smith was the Judge in the DaVinci Code copyright infringement trial. On April 7, in a 71-page ruling, he decided that there was no infringement.

Recently attorneys noticed some odd errors in the document; randomly spaced throughout the document are italicized letters.
The first ten italicized letters spell "smithy code."

Quoth Judge Smith, this is "something more than a typo." He also noted that a sentence in paragraph 52 might provide a hint:

The key to solving the conundrum posed by this judgment is in reading HBHG and DVC.

HBHG is "Holy Blood, Holy Grail" and DVC is "The DaVinci Code." Perhaps the judge is throwing the losers a bone by trying to get people to buy their book.

Get crackin'...

Jack (back?)

From Stupid Girl to Marriage of Figaro

2006-04-20T15:54:00.000-05:00

You got to love my music tastes. I'm sitting here getting ready for court tomorrow listening to Pink's latest album (i know cd but I still call them albums, hell i still own some albums) and tonight i'm going to the opera. One of our Lawyers is on the Board. Jack's going too with his wife. This is the first date he's taken her on in this century. For the love of god! Poor woman! Jack is wondering if he'll see Bugs Bunny in it tonight. Aghhhhhhhhh. That's all folksss!!!

Janet

pro se nightmare

2006-04-10T08:52:00.000-05:00

Okay so my client decided on last monday to go pro se. That lasted through out pretrial and voir dire. He asked all of two questions to the potential voirmen and then sat down. The State's attorney had never tried a case so his wasn't much better. It was PAINFUL,. After the first and most important witness was called Mr. Pro se half way through cross decided that maybe he shouldn't have represented himself. For some reason the Judge was making him follow the rules of criminal procedure and evidence. At the end of the witness i was reappointed as counsel and given a night to get ready to finish the last two witness and then give closing. The jury found him guilty since he showed characteristics that the alleged suspect had. If he had not spoken would not have been obvious. But after arguing in closing the jury gave him the minimum with his history. The State's attorney was not happy but mr. pro se was so it was a good week.
Janet

New Week new trial

2006-04-02T11:29:00.000-05:00

Does it seem to anyone but me that my life is revolving around trial dates right now. I've got this week one next week and then I get a couple of weeks off before my next one. Jack and Chrissy are about to smack me. I keep telling them the tide will change and then i'll be the one covering for them. My latest client has writting to the Judge asking for a new attorney because i'm not representing him and refuse to share any of the evidence with him. The Judge told him he had three options: hire a private attorney, represent himself, or keep me. Of course the Judge didn't ask for a response from me which would have put on the record that a) he's had his discovery since before his probable cause hearing; b) I've seen him 6 times this month and c) he's gotten to trial within 4 months of arrest. So on Friday when I had a motion hearing before the trial I got my motions granted precluding the district attorney from using five out of six prior felony convictions in the trial. This also allows the sentencing range to be reduced. As soon as the motion hearings were done he requested the Judge to allow him to represent himself. I'm still not representing him. As he was requesting this, he was holding a manilla envelope that held copies of all motions that were going to be filed in his trial. After a short discussion with the Judge he decided with his two year high school education maybe he shouldn't go up against a district attorney. Oh the joys of being appreciated. Yet i'm still here on Sunday making sure everything is ready to rock and roll for his trial.

ON a happy note one of our attorneys found to stray puppies and took them to a local animal saving center. The center named them PD and Con. They sent us an article that was just written where both puppies were featured and adopted by a family. Little does the family know that their puppies true names are public defender and convict. hee heee
Janet

completion

2006-03-28T10:37:00.000-06:00

Well my trial is over, and my client will be going to prison. We have two excellent appeal issues so I may get to try it again. We're having our hearing on my last murder case that we discovered juror misconduct. I hope the hearing goes well for my client's sake.
Janet

Still in trial

2006-03-27T08:10:00.000-06:00

Well I'm going into my sixth day of trial. We will close this morning. Thursday night I was just beat. It had already been a long week and like every trial there were ups and downs. I went home that night to a house with no bread no trash bags in other words in desperate need to be restocked. I said the hell with it and went to the local burger stand. The burger hop came out to bring me my food. She had the biggest smile on and was courteous. Yes it surprised me. In this day and time you don't get service unless you go somewhere and pay for it. She came up and gave my food and told me I look familiar. I told her that she looked familiar just to be nice too. She then she asked if I was her probation officer? I said no, I had never had that position but I was an attorney. She then asked if my name was Janet _____? I said yes, she then informed me she was in a half way house and this was her first job and she had had no write ups and thanked me for always treating her like a human and she really looked up to me. I will never be able to express how much I needed that. I have the receipt taped to my dash just to remind me why I'm doing this.
Janet

Happy St. Patrick's Day!

2006-03-17T11:34:00.000-06:00

Best Weekend Ever in 24 hours

2006-03-16T08:22:00.000-06:00

OH YES! its that time of year again. It's St. Patrick's Day/Birthday weekend. I love my birthday. I'll be 83 one day and as excited about my birthday as I was at 8. What's not to love i've made it another revolution around the sun (great song Jimmy), and i'm healthy and have great friends and family. Chrissy and I went out after work last night to have a few beverages to plan not only friday but to practice our intake methods to prepare for the green beer. The town/city, we live in goes all out when it comes to St. Patrick's Day. The problem is where to begin and where to end. We have some great Irish pubs here that go all out on dancers and bands. It does help that Chrissy and I play up the birthday angle so we get free drinks and stuff. I also appreciate that no planning is required for a birthday celebration. What a better way to spend a weekend before a murder case. Have a great weekend and be safe!!!
Janet

Quest for new trial

2006-03-16T08:16:00.000-06:00

I had a murder trial a while ago that I ended up finding out that juror misconduct occurred. I filed my motion and have turned over the affidavit to the Judge and the district attorney. I have now a date certain for the actual hearing and the Judge did the right thing my passing sentencing so my client still has a chance. Juror misconduct happens a lot and 99 % of the time you don't figure it out or have no proof. My client as all clients deserve a trial based only on the facts in the courtroom not a redneck who thinks he can tell the little lady all about guns. Okay, I'm still trying to get over the bitterness. Knowing my propensities, I've brought on an appellate attorney to handle the motion hearing. When in an office of seasoned veterans why would you not call on the expertise of others who have already traveled down the road?
Janet

passed, grrr

2006-03-13T12:28:00.000-06:00

Well I got passed this week untill the next so no murder for me this week. Although this is good so I can see my other clients and get some motions done. It screws my other client who is set for trial next week. So who knows when he's getting reset. My intern has been offered a position as an Asst. Public Defender out west and although i'm excited for her, I'm also sad. She's been working here for two years now. She's going to jump on a trial for the 3rd of April that way she can see one whole trial before she takes the bar and starts practicing. Janet

Niche Marketing

2006-03-07T15:49:00.000-06:00

The 'Incarcerated' section of your local Hallmark Card store is probably pretty small. Brenda Guiden thought so, too, so she started up her own business, "Prison Expressions" The cards run from the humorous to the lovingly stern to "I miss you."

Am I going to hell for thinking "clip art and cliché"? But then again, 98% of the stuff at Hallmark is both sterile and mawkish at the same time; these cards at least seem to have some feeling behind them. I hope quality comes up as the business gets going.

Jack

Footnotes of the Damned

2006-03-06T14:51:00.000-06:00

From the San Antonio Bankruptcy Court:
"The Court cannot determine the substance, if any, of the Defendant's legal argument, nor can the Court even ascertain the relief that the Defendant is requesting. The Defendant's motion is accordingly denied for being incomprehensible.¹"

¹ Or, in the words of the competition judge to Adam Sandler's title character in the movie "Billy Madison," after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this kind of footnote.

Ouch.
Jack

Legal Ethics Hypothetical

2006-03-06T07:26:00.000-06:00

Fact Pattern: Driver and Shooter come over to Client's house and have an argument with him and threaten him. Client calls their bluff, and tells them they'd better have a gun next time.

Driver and Shooter come back to Client's house, Shooter has a gun. Shooter fires a couple shots at Client's house. The shots miss Client, but one shot strikes and kills Client's brother. There are no other witnesses.

Shooter is charged with Murder 1, Driver is charged with accessory after the fact (he was driving) and Client is picked up on outstanding warrants.

You represent Client on the outstanding warrant cases. The DA wants to talk with Client about the Murder. Client is OK with that and you attend the meeting with him. You and the DA find out that [generally, a) Driver is very strongly inculpated in the Murder and b) Shooter's culpability is strongly mitigated].

Questions:
1. If the DA does not tell counsel for Driver and (particularly) Shooter about the conversation, do you tell/ may you tell Shooter and Driver's counsel about the conversation?
2. Is there a difference if you ask Client if you can talk to Shooter's and Driver's lawyers about the conversation and Client says, "No"?
3. What if the DA's argument at trial directly contradicts what Client said about Shooter?

If there's anyone still reading, I'll update with everyone's + my answers later in the week.
Jack

Klungo promises the next post will be law-related, honest!

2006-03-05T23:25:00.000-06:00

Three days old.

Gordon Bennett!

2006-03-03T18:48:00.000-06:00

Pictures of the new baby cow coming soon...

dark becomes light

2006-03-02T08:41:00.000-06:00

with death comes birth, after winter comes spring. My friend left us last night but at least it was a warm sunny day and the flowers were already smiling from the ground
janet

When it Rains it Pours

2006-03-01T12:49:00.000-06:00

Look what was waiting for me when I got home last night!
This pic is from this morning, at 12 hours old.

Farmer Jack

lightening up a bit

2006-02-28T14:14:00.000-06:00

a palliative for murder, death, and funerals:

baby bunnies.

jack

2 1/2 funerals

2006-02-26T11:53:00.000-06:00

This week has not been a good one. Two members of our staff have lost love ones this past week. Neither one expected, but neither one was in excellent health. We had a funeral two days in a row. A segment of the office was at each, I was at both since I am closer to the two individuals. Both funerals were nice and more of a homecoming than a morning. Over the last two days I have spend over 5 hours in funerals. They were long. I came home on Saturday after missing a wedding because the funeral lasting three house and decided to go check on my neighbor who has been battling cancer to see if they needed anything from the store. I walked in and didn't recognize my neighbor ( who just a week ago was telling my other neighbor that when she felt better she would baby sit). She was laying in pain wth her eyes closed in pain. She could only make a couple of words out that she was in pain. The doctor came back with the test this weekend that the cancer has spread throughout her body. She's no longer eating and they've uped the morphine to try and stop the pain. Neighbors used to have block parties and know everyone on the block. I've never lived in that type of neighborhood, untill I bought this house. My neighbor the day I moved in brought over an angel food cake with strawberries and introduced herself and her husband. She was retired and her husband was a musician. They know everything about my house, I'm only the second owner of a 1947 house. She told me about the whole street who does what, who keeps their yard up, who is quiet. She is also the best alarm system any neighbor could have nothing happens at my house that wasn't reported to me once arriving home. We have spent hours on the front stoops of our houses discussing flowers, the weather, my latest case, my latest love, and she was always up to helping with my latest halloween costume idea from Marilyn Monroe to any other idea that I could come up with. I could barelly keep the tears back as I looked at her, the shell of where my friend had once been. Her husband took her to the bathroom as i went into the kitchen to compose myself determined not to break down. Not there, not then. Her husband is in autopilot. He is still as loving and caring as ever. I stayed for about thirty minutes talking to her but not knowing if she heard anything I said. I left the house to walk back across the street to my home. I didn't hit the street before tears flowed down my face. My heart hurts.
Janet

post trial 2

2006-02-17T16:27:00.000-06:00

my jury was tampered with and juror misconduct occured. I'm so not happy. A request for new trial will follow. Janet