Thursday, October 18, 2007

Yes Yes I am a republican

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.

Thursday, October 11, 2007


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?

Tuesday, June 05, 2007

John Ashcroft: The First and a Quarter Kind of Loyalty

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.


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

Thank God for Understanding Spouses

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.


Dead Man Laughing - Chino's aren't

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:


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

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.


Monday, May 28, 2007

Justice vs. Vengance and Efficiency

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

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

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

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

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

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

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

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

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

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

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

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


Sunday, May 27, 2007

Good Question on the Ethics of Calling Cops Liars

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

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

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

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

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

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

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

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

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


Saturday, May 26, 2007

Two for Two

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

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

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


Wednesday, May 23, 2007

Client Attacks His...

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

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

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

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

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

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

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


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