How many is too many?

It is entirely possible I have a problem. I am running out of places to keep books in this house. I have an entire room dedicated to books, with two giant bookcases. (There's also a treadmill and a comfy chair in there. It occurs to me that if I got rid of those things, I might have more room for bookshelves. But Maddie really likes the chair. And I really like to run.) I have another bookcase in a hallway. And a small stash in the front room. And a bookcase in my bedroom. Most of these bookcases have shelves that are 2, or even 3, books deep. And there's still not enough room. So there's a bookcase in the guest room. And then the overflow shelf on the entertainment unit in the living room where the newest acquisitions go. Most of these books have been read, but oh so many of them are still waiting their turn. I want so desperately to give them each their turns. They all deserve to be read, appreciated, handled. But I still add more. Just tonight, a nice dinner with friends led to a coffee shop which led to browsing at a bookstore which led to yet another new book...

I'm not an addict. It's cool. I can stop anytime I want. Really. No, really...



While we're on the subject of addictions, we should probably talk about the shoes...

All I want

Want is such a tricky concept. It can lead to great things. Like vaccines or medical treatments from ambitious, smart people who want to find cures for the disease they saw destroying family members or friends. Or to the grand experiment of democratic republics from those who saw life under a monarchy and wanted something better.

But it can also be a destructive force. On some simplistic, basic level, isn't addiction a form of wanting? Wanting Helen led to a war. People can bankrupt themselves with wanting. Wanting bigger houses, brighter jewelry, procedures that will keep them young. People can make themselves crazy, break their own hearts every day, with wanting things out of their reach. When applied carelessly, want can be the most painful emotion out there.

What I want most for this new year is, quite simply, to stop wanting. Want has not been my friend of late. I have not felt the good kind of want, the kind that can make a person push herself or leave her comfort zone. No, I've been stuck with the futile wanting of something that is out of my grasp. And the further removed I am, the more desperately I want it. I never knew it was possible to miss a person this much. (And missing a living person is so very much worse than missing a dead one.)

So since I can't be a sensible person and stop wanting what I can't have or find something new, better, to want, all I can hope for and work on now is to stop wanting. Because if I don't want anything, I won't keep feeling so hurt and raw and cut open every damn day when I can't have it.

Pointless

When is sentencing a rapist to prison utterly and completely pointless? When the rapes occurred 30 years ago and the rapist is now a diabetic, blind, wheelchair-bound double amputee who has suffered a stroke.

Now I may be a defense attorney, but I'm not exactly a huge fan of rapists getting a free pass. So ordinarily, I would approve of a man who broke into homes and raped women in their beds doing a little time. But I don't think throwing prison terms at any and all criminals is very sensible crime and punishment policy. If I had my way, a whole lot fewer people would be in prison because I'm just not sold on the idea that it's in society's best interests to incarcerate that many people. And I'm also a pragmatist.

In Mr. Brewer's case, the pragmatist in me wonders what on earth anyone hopes to accomplish by putting this man behind bars. He has now admitted guilt in two rapes from 1981. The man who was originally wrongfully convicted and sentenced to prison has long since been released, exonerated, and financially compensated. That man, Eddie Lowery, actually seems to be doing quite well. He is married and has two children with his current wife. He has also been able to reconnect with the daughter he lost when he was sent to prison when she was 2. So sending Mr. Brewer to prison isn't necessary to make anything up to Mr. Lowery.

MSNBC aired a special about Mr. Lowery's case last Friday. Mr. Brewer was interviewed for that special. He is truly a pathetic specimen at this point in his life. He does not have prosthetic limbs to replace the feet he has lost to diabetes. I'm not sure how much good prosthetic limbs would do  him, anyway, as he is blind and has had a stroke. He quite simply does not pose a threat to anyone.

But he does require a great deal of medical care. In prison, he may well be confined to the infirmary. From a cost standpoint, it seems likely to me that taxpayers will pay for his medical care whether he is in prison or not. But in prison, he will be a drain on limited prison resources. An inmate with such serious medical issues will take up more time from the overworked staff that is already stretched too thin.

And what do we as a society possibly gain from punishing a man like this with prison time? I don't really feel like letting him serve some kind of house arrest or probation would be letting him get away with his crimes. The reality is that the ship sailed on that one a long time ago. I'd say once he got to live over 20 years without facing consequences, he's pretty well gotten away with it. Sometimes, we just need to accept that there's really nothing we can do about a crime that happened so long ago. This is one of those times.

So, yeah. That just happened. Merry Christmas, Chiefs fans!

Sigh

My days can be very depressing sometimes. There is nothing like wrapping up a Friday afternoon by being confronted with the very real human consequences of my clients' interactions with the criminal justice system. Realizing a dad can't go to a child's high school graduation even though he's 30 miles away. Knowing a broken-hearted mother or wife faces a birthday or a Valentine's Day or a Christmas alone. I'm kind of a cryer, so this stuff gets me.*

But I think it's a good thing that my job can still leave me this bummed on a Friday evening. Because it means I still care. Deeply. That I haven't lost sight of the very human component of the work I do. I'm not close to turning into just a cog in the machine.

So I'm glad the plights of my clients and their families still make me so blue. The day I don't feel this bad about it is the day I should think about finding a new line of work.




*It ought to go without saying that I am also keenly aware of the very real human consequences for the victims and their families. I ought not need to express how sad it is to think of children who must graduate from high school without a parent or sibling because that loved one was murdered. But undoubtedly some people think it's outrageous that I care about my clients' parents or children. Or even my clients themselves. I have enough compassion to feel horrible for everyone involved. But since I work with defendants, that side is what I see and am more often touched by.

I know, I know. Where have I been, right? Well, I've been busy. Not socially, mind you, but with other stuff. I've been reading and preparing to host book club. I spent some days sitting by the ocean, celebrating with my closest friends and a baby. (And a toddler. Not fair to leave out the adorable toddler, but I'd met her before. Hadn't met the new baby yet.) But mostly, I've been knitting. I started out so well, long before December. But now here we are, less than two weeks from Christmas, and I'm not done. I feel like I'm not even close to done. I know it will all get finished, and it's not even the end of the world if it doesn't get finished by the 25th as I will see these people again and there is this fascinating thing known as mail. But, still, I feel like I'm back in law school in that awful last week of the semester.

Then there's the fact that I'm just so sick of it all. I'm sick of this endless race for the Republican nomination. They're all awful. And now the guy who is leading is the scariest of the lot because of his delusions of grandeur and visions of doomsday scenarios. I'm sick of things like today's news that Lowe's has pulled its advertising from a show meant to show that it is possible to be a patriotic, "real" American and a Muslim at the same time. I'm sick of the nonsense that passes for politics and governance in my state. (Really, someone in my governor's office cares that a teenager tweeted that he sucks?)

I could go on, but I really must get back to my knitting.

This Newt is not getting better

Newt Gingrich is now running around the country proposing numerous points to his immigration plan. One of those points is that we should make deportation easier, simpler. In a simplistic tone, he says that if you're not a US citizen, you're not entitled to due process, so you should just be sent home without a hearing or due process. Just a plane ticket and possibly a swift kick in the rear.

Now, that sounds clear and easy enough, but can anyone spot the flaw in his logic? (Putting aside the claim that only US citizens are entitled to due process, a claim I vehemently disagree with.)

Without due process and a hearing, how do we know the person facing deportation isn't a US citizen?! As it stands now, hundreds of US citizens are wrongly deported every year. (according to CNN researchers in June 2010. I have seen similar numbers from other sources as well.) A google search yields story after story of how these people get railroaded right out of the country of their birth.

If you are accused of being an illegal immigrant, you are not provided an attorney. It can also be incredibly difficult for people who are in ICE detention to make contact with friends or family members who could either hire an attorney for you or track down your birth certificate to prove your citizenship. I would hate to think how many more mistakes would be made if what minimal protections exist now were stripped away.

So, sure Newt, we should deport all those illegals right away without due process. As long as you'll pay for the first class airfare to bring all the wrongly-deported US citizens back home.


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You're fired!

I am doing the happiest of happy dances right now. The Turner Gill era at Kansas is finally, mercifully, over. It was two years too many with that very nice, but utterly incompetent, guy at the helm. I am not a huge KU football fan. Having gone to high school in Manhattan, I'm more of a K-State football fan. High school is when I really got into football. That was during the time when the turnaround started. And several guys I went to school with were pretty big players for K-State.

But I still root for KU football. And, more importantly, I live and breathe KU basketball. In this recent and ongoing conference realignment frenzy, the constant fear around Lawrence is that since no conference really wants KU football, we could find ourselves on the outside of the power conference world, being relegated to something like the Mountain West Conference. But the idea of the single most storied program in all of college basketball being part of something less than a power conference is enough to induce strokes, heart attacks, etc. Great as it is, even Kansas basketball may not be able to retain its position if it's playing 11 pm games against Colorado State and Wyoming.

So it's been awful having to watch this coach, who is so clearly in over his head and incapable of coaching big-time college football, losing blowout after blowout, leading a team on a 10-game losing streak, and actually seeming to make them worse over the course of the season. This guy should never have been hired. Here's hoping we can now find a coach who isn't just a decent man, but knows a little something about football as well.

For the sake of KU basketball, this had to happen. HAD TO. Now, please KU football, get better! Get better fast!

Rock Chalk

Officially, KU basketball season started last Friday with a lopsided victory over a very out-matched Towson. But in reality, it starts tonight. In Madison Square Garden. As the headliner in ESPN's 24 hour college basketball kick-off marathon and as the top card in the inaugural Champions Classic. First up is Duke against Michigan State. And then comes the game everyone wants to see. Kansas and Kentucky. Two of the nation's most storied programs.

So it is time for a post reminding the world which program is THE most storied. Which program is the granddaddy of all other college basketball programs. It is Kansas. Without the history behind the University of Kansas basketball program, we would not have college basketball as we know it.

The inventor of the game called our town home. Even in death. His grave is within a mile of my house. We play on the court named for him. Which is in a building on a street named for him. And he was our first ever coach.

But that was only the start of Kansas basketball tradition. Because James Naismith was only the second most historically significant coach in our history. The main guy, the first real coach as we know them now, was Forrest Allen. Better known as Phog.

You may think UNC has a legendary program with a legendary coach. Heck, they even named their arena after their coach, Dean Smith. But remember, folks, Dean was a Jayhawk first. He learned his trade at the knee of Phog Allen.

And Kentucky's legendary coach? The guy they named their gym after? Yep. He was a Jayhawk first, too.

All college basketball roads lead back to Lawrence, Kansas. The cradle of college basketball.

Man, I love basketball season!


- Posted using BlogPress from my iPad

I was all set to come home this evening and blog about the outrage of the day. But then it basically resolved itself, so my rant has lost all its oomph. Suffice it to say that buying a degree online from a diploma mill university is not earning a degree. Listing such a degree on one's resume displays a staggering lack of judgment and integrity. And hiring someone who lists such a degree on a resume proves that the employer's process of vetting employment candidates is sorely lacking.

I'm all over Christmas this year. I'm not usually so advanced. I'm often doing the bulk of my Christmas shopping after Decmber 15th. But not this year. I have already acquired my sister's main gift and let me assure you, it is the greatest gift ever. No other gift she has ever received or ever will receive can compete. I win Christmas. Forever. Not that it's a competition...

But let me tell you, I may have taken on too many knitting projects. Sweaters (plural), a scarf, hats, other things that will not be named here because people are reading. I have at least 6 projects decided on for sure and a 7th (big) one that I want to do as well. If I actually were to knit all the things I want to knit, I would a) be broke from buying all the yarn and 2) have no time to do anything but knit for the next 2 months.

We'll see how I do. At least I already have 2 Christmas projects fully completed. And my gift for my sister really is awesome.

Hey, Herman Cain

If you're running for president and you have been accused of sexual harassment in the past, especially if that matter was resolved with a financial payout to your accuser(s), you really have to understand that this information is going to become public at some point during the campaign. You can't blame the media or a political rival for making this information public. It isn't their fault that this happened. Finding stuff like this about presidential candidates is exactly what the media should be doing.

If you really want people to consider voting for you to be the leader of the free world, you don't get to limit what we get to know about you and your past.

This post is not about Rick Perry at all.

The New York Times this week ran an article about Rick Perry and his stances on criminal justice issues. The point of the article was to contrast his tough, even brash, talk and actions on the death penalty against his signing into law numerous criminal justice reforms pushed by the Innocence Project and others not associated with a "tough on crime" stance.

Of course, I read the article and wanted to focus on one nugget out of the article. One key case in Perry's governorship was the case of Kelsey Patterson. Patterson was convicted of two murders and sentenced to death. The circumstances surrounding the murders, though, indeed, the entire circumstances of Patterson's life, demonstrate that he suffers from profound mental illness. The man has a long history of delusions, psychotic behavior, nonsensical ramblings, etc. He was well known in Palestine, Texas, where he had previously been convicted of assault. But while he had lots of dealings with police and even with the court system, he never seemed to have benefited from any mental health treatment, even after being found incompetent to stand trial numerous times. It's a very familiar story to those of us in the criminal justice system where far too many of our cases involve people who should receive treatment, not punishment. Estimates of the number of mentally ill incarcerated range from 20-50%, depending on who you ask.

So Mr. Patterson was a violent, psychotic, delusional individual whose serious mental illness caused very real, permanent harm to his community. Obviously, he needed to be secured in a way that he could no longer cause that harm. When secured and properly medicated, he has been described as downright docile. But since we have no real mental health treatment readily available for men as profoundly ill as Patterson, he was treated as a criminal instead of as a sick man. And he was not just charged with murder so he could live out his life in a secure prison setting. No, he was charged with capital murder and the state pursued the death penalty against him.

Naturally, I have to assume his defense attorneys presented the history of his mental illness to the jury at his trial and did their best to persuade the jury that his illness was a major mitigating factor that should prevent them from returning a verdict of death. But here is my concern. My concern is that there are an awful lot of people who would hear a story like that of Patterson and think that the best course of action is execution. That a man that ill can't ever be fixed and we're all just better off removing him from society entirely. Or even worse, that his mental illness is "no excuse!" Or that he still knows right from wrong. I have encountered these viewpoints far more than I can believe. And the people most likely to express this view are also pretty likely to be death-qualified for a jury in a capital case.

I know I can relate a story like Mr. Patterson's to individuals who share my view and trust that their reaction will be to express sorrow about the state of mental health care in this country. They will perhaps marvel at how awful it must be to live with such an illness as his. They will certainly recognize that the man should not be incarcerated in prison and/or put to death, but treated in a secure medical facility.

But how do I talk to the others? How do I, as an advocate for a client, try to sway someone who thinks that someone who suffers a profound mental illness should be put down like a rabid dog? How do I get to a juror (or heaven help me, a judge) who thinks mental illness is no excuse and does not lessen someone's culpability for a crime? Because I know those people are out there and have the ability to affect my clients' very lives.

Halloween is still growing on me

Remember my Halloween story from last year? It's here, so you can refresh your memory. So this year, I decided to wear my stunning red dress and when people asked me, I would tell them, "I dressed up for Halloween." And let me tell you, I don't think I'm being immodest or egotistical when I say that dress looks pretty good on me. When I tried it on at the department store, random strangers told me it looked like that dress was made for me. It just hugs all the right parts and is such a great color on me. Red truly is my color. (As you might have guessed if you saw the pictures of my house...)

So I went to my friends' house for their chili cook-off. Then we headed to Brookside in Kansas City for some live music. We got to the bar about an hour before the band came on, so we had plenty of time to get to know the people around us, including a half-hearted Dracula, a full-hearted leprechaun (guy) wearing a bright green dress (who knew there were cross-dressing leprechauns?), and a tall, cute, built guy wearing an orange-ish sweater and calling himself a pumpkin. They initially approached the two women we were standing near but were not with. We eventually got pulled in and before we knew it, Pumpkin was the only one left really talking to my two friends and me. He was oh so tall and really quite adorable, but oh so young. He kept making me guess his age. I perked up quite a bit when he said he was 29 because 29 isn't so bad. It's definitely within the divide by half and add 7 rule. But it was a lie. He was really 24. Sigh. 26 is the cut-off for me. (Yes, I'm 38 and I'm not the least bit ashamed.) I told him my age, but I'm not entirely sure he believed me. People often don't.

Then Dracula, the leprechaun, and Pumpkin-boy had to leave. Pumpkin looked bummed, but he was not driving, so had to follow the crowd. He asked for my number before he left. Not my much younger friends or the tutu-wearing sorority girls. Mine. Even knowing I was old enough to be his Teen Mom.  And, oh yeah, I gave it.

Now, he'll probably never call. (They usually don't). And I probably wouldn't answer if he did. (He is 24, after all.) But none of that matters. Because a 24 year-old hottie asked for my number. I call this Halloween a raging success.

Oh, and I get to go to Monday Night Football tomorrow, too.

Where oh where did people get the idea that death penalty defense attorneys are making boatloads of money on death penalty cases? You see it all the time (if you're nutty like me and read comments on online news sites, especially) that members of the general public will complain about these lawyers who intentionally delay death penalty cases so they can stay on the gravy train. Because there is so much money in representing death row inmates.

Let me make something really clear. There's not a whole lot of money in death penalty defense. Yes, the lawyers make a living, but no one's getting rich doing this work. The vast majority of death row inmates don't have millions of dollars lying around to pay private counsel, so the lawyers are public defenders or appointed attorneys paid a pittance per hour by the state or county. Or they are do-gooder non-profit attorneys who get paid by agencies relying on donations. Or they are big firm attorneys doing pro bono work. All of these attorneys could be making a heck of a lot more money in some other area of the law.

There are lots of reasons why people come to do death penalty work, but money is not one of them.

Rant of the day

You know how to make an appellate defender's head explode? Mention that there's a pending motion on the central evidentiary issue to the case that needs to be taken up right now and then go off the record to discuss it! And never again mention that motion for the rest of the trial!

GAH!

Do you see what the problem is for me? If I don't have a recorded argument, I don't have an appellate issue. I have no idea what the arguments were, what specific points of testimony were at issue, and what the court's ruling was. It is absolutely infuriating.

There is no excuse for not having a record of every single thing that is said in court. Every. Single. Word. Here is what my rule would be: If the judge is involved in a conversation, it needs to be recorded. I don't care if it's just a scheduling matter. Those scheduling issues can matter quite a bit. I once had an issue where I very much wanted to know why it was that the particular witness wasn't called because I very possibly could have had an issue if it had been handled one specific way, but because a year later, the parties involved couldn't remember exactly how it went, I couldn't do anything about it.

I also don't care if you think you can have the conversation in chambers off the record and then come back and make the record later. The record made later is never adequate as far as I'm concerned. It's never in the level of detail that the real argument was. Given that a defendant's argument can be procedurally defaulted if the trial level argument didn't include the key word or phrase, it's really troubling for the appellate attorney to get only a recap of the argument rather than the full thing.

So record everything. EVERYTHING! Or my exploded brain matter might just get all over you.

And on a slightly related, but not really, side note: Can we please, please, please abandon the system that allows a court reporter to consider my client's trial record to be his/her intellectual property? It offends me to the core of my being. And paying court reporters by the number of pages they produce is a bad system that needs to go. My most recent transcript was done by a CR who made every sentence its own paragraph.

This made the transcript much longer.
So he could get paid more.
Since he gets paid by the page.
Oh, and it's really tough to read.

It's a good thing I had pumpkin beer and apple cobbler at home this evening, because by the end of the day, I was pretty darn aggravated.

If it's happening in Kansas, it must be nuts, right?

Admit it, you kind of think that, don't you? All anyone in the nation ever hears about Kansas is we're the backwards state who did away with evolution in the state science standards. (No one ever mentions how the population rose up against those loons on the state school board and voted every single one of them out the very next chance we got, replacing them with normal people who restored the standards.) We're the home of that wacky, awful Westboro Baptist Church. (It's a "church" of about 50 people all from one family and the rest of Kansas pretty much hates them. We ignore them; it's the rest of you outside of this state who are giving them attention.)

And now it's all over the national news that Topeka, Kansas has now made it legal to commit domestic battery. According to msnbc, "In cash-strapped Topeka, domestic abuse not  illegal."  Makes for a flashy headline and elicits gasps, but it's not true. Domestic battery is still a crime in Topeka. Did everyone get that? Let me write it again, just in case.

Domestic battery is still a crime in Topeka.

Never stopped being one. The city of Topeka had a redundant municipal ordinance, as they do for many misdemeanors. It's standard practice for cities to have municipal ordinances that mirror state misdemeanor statutes. Where there is a redundant municipal ordinance, the District Attorney can turn over prosecution of those offenses to the city prosecutor's office, which the Shawnee County DA did for all redundant misdemeanors in the city of Topeka, a move the DA said was required by budget cuts. (Outside Topeka city limits, the DA's office retained responsibility for all misdemeanor prosecutions.) The city of Topeka balked, pointing out that having to prosecute all those misdemeanors would surpass their budgetary limits. The city pointed specifically to domestic battery cases because those cases a) constitute the largest single block of misdemeanors involved and b) require treatment resources the city doesn't have. So to force those prosecutions back to the DA's office, the city repealed the redundant municipal ordinance.

The territorial pissing match that is going on between the city of Topeka and Shawnee County is frustrating to watch. Neither the city prosecutor's office nor the DA's office really has the resources they should have to function at optimal levels. When budgets get cut and cut and cut, something has to give. It is highly unfortunate that this city vs. county budget dispute has centered around domestic battery, when it could have been DUI or marijuana possession or shoplifting. Of course the city probably picked domestic battery as the center point of the dispute precisely because it would be the most likely to generate controversy.

But it is more unfortunate that the real issue here is being lost in hyperbole and untrue headlines. It's more fun to rail against a city putting its stamp of approval on beating your spouse. It's more interesting to talk about this being a move in the ongoing "war on women." It's more glamorous to weep and wail and gnash teeth than to focus on the real issue here which is what services do we want to receive from our city, county, state, and federal governments and how much of our money are we willing to pay up to ensure those services are provided. Clearly the people of Topeka and Shawnee County need to have this discussion. They may need to think about finding some new direction for the County Commission and the City Council who sets budgets. The citizens of Kansas may need to think about what sort of money we want our local governments to get from the state budget. We probably all need to really think about how much we want to keep chasing more and more and more cuts. Budget cuts and tax cuts are bleeding this state's vital services dry. But we won't get to any of that discussion if we're all caught up in this red herring complaint that domestic battery is now legal in Topeka. It isn't.

In conclusion, domestic battery is most definitely a crime in Topeka, just as it is in every inch of the state of Kansas. But it can't magically get prosecuted if we don't fund the prosecutors' offices.

Oh, Montel Williams. I never really judged you terribly harshly for your television show. I even rather liked you once you became a vocal advocate for MS (a cause close to my heart). Until you started pitching payday loans on t.v. Having worked at the consumer law clinic in law school, I have seen just how much damage those loans can do. Shame on you for participating in the financial shenanigans.

Update

I don't hate football anymore.

My Chiefs have won 2 straight and are looking much better. (And did y'all see that wicked awesome catch Dwayne Bowe made for a touchdown yesterday?!)

My K-State Wildcats are undefeated and ranked again.

I just might stick with this football thing for a few more weekends.

The Amanda Knox case: it's just not that hard

So the Amanda Knox (and Raffaele Sollecito) case might now, mercifully, be over. The appellate court in Italy today overturned her conviction for murder, as well as her former boyfriend's. You'd have to live under a rock not to have heard about that by now. But let's be clear about what the jury found. The jury found affirmatively that these two did not commit the crimes. The jury didn't just acquit them, the jury absolved them. I feel like that tidbit is getting lost in the news coverage. This wasn't just a finding that the evidence was insufficient.

And yet, sadly, these two will probably have to live with a cloud of suspicion for the rest of their lives. This is evident from the commentary on television and the comments online. So many people are still clinging to the idea that they probably had something to do with it or know something or in some vague, amorphous way are still worthy of suspicion. Legal experts on CNN and Fox News both seem to have missed the significance of the jury designation that they did not commit the act. Bill O'Reilly and his judge were both shamefully unaware of the facts of the case but were both still unabashedly proclaiming their certainty that she was involved somehow.

Even more infuriating, people everywhere are bemoaning the fact that we will never know what happened to Meredith Kercher. Which to me might be the most maddening legacy of this case: that a crime so basic, a case so easily solvable, was turned into this muddled mess. That so many people are now so convinced that there is more to this case than there really is. But there is not. Let me posit a theory, and when reading this, try to put aside the insanity that surrounded the accusations against Amanda and Raffaele.



Young woman comes home after a night at her boyfriend's. Finds a few things amiss, so brings the boyfriend over to share her concerns. There are a few drops of blood in the bathroom. Upon inspection, they find a broken window in a bedroom. But nothing is obviously missing. The one roommate who was supposed to be there overnight is not answering knocks on her door, which is locked, or answering her phone. The boyfriend goes outside to see if he can see into that bedroom through the window. Throughout all of this, the girl and her boyfriend are calling the other roommate, the boyfriend's sister (a cop). Eventually, the reality of the situation sinks in and they call the police.

Once police arrive, the bedroom door is opened and the roommate's body discovered. Police secure the scene and begin the painstaking process of evidence collection. They find footprints, fingerprints, and handprints throughout the murder room and the hallway. They also note money missing from the dead woman's purse.

Eventually, the fingerprints lead to a match of a man known to local police. He has been breaking into houses and offices lately. And he is known to carry a knife. The man is caught in another country through the help of a friend, who gets the man to admit having been at the house when the murder occurred, though he was on the toilet when the real killer came in and killed the victim. He also cryptically tells the friend he can't come back. But he is extradited back and DNA testing reveals that his DNA is all over the crime scene. Sadly, his DNA is also inside the victim. And the shoes he is wearing match the bloody footprints in the hallway.



Honestly, is this case hard? Is there even any question? These are the facts of the Meredith Kercher murder. These are the facts of the crime Amanda and Raffaele were convicted of. These facts, which point so clearly and exclusively at one man, were somehow obscured, distorted, even overlooked, in favor of a fantasy.

Here is what happened. Rudy Guede broke into the girls' apartment through Filomena's bedroom window, using the metal grate on the window below hers as a ladder. He rifled through her room before going to the bathroom. It was a holiday weekend, so he may well have thought the girls would all be gone for the weekend. But while he was on the toilet, Meredith came home. We know Rudy used the toilet because he didn't flush, possibly so as not to create a noise to alert Meredith. Somehow, there was a confrontation. Rudy took out the knife he carried with him (as he had done when another home-owner caught him in a burglary some weeks prior). Perhaps he tried to get his way out of it by trying to seduce her. The fact that his DNA (not semen) was found inside her vagina certainly indicates there was some kind of sexual attack. And then he slit her throat. As many first-time killers do, he covered her with a comforter and then tried to figure out what on earth to do next. He set the knife down on the bed, he found money in her purse, he took her cell phones, picked up the shoe that had come off in the attack, and left her room, locking the door behind him. He went into the bathroom to try to clean up and then fled out the front door. At some point he threw Meredith's cell phones into a yard some blocks away.

This is the scenario supported by the evidence. This is the straight-forward answer that should have been reached by the investigation. But from day one, a prosecutor decided he didn't like the way Amanda looked. She was odd. There was something off about her. So the simple, clear case was turned into a wild, crazy conspiracy, with desperate attempts by the police to create evidence against Amanda and Raffaele, with lots of character assassination being done in the tabloid press just to be safe. The first judge bought it hook, line, and sinker, and brought a jury along with him.

Happily, today, a second jury finally saw through the prosecution's shenanigans. Amanda is on her way home and Raffaele is probably already in his family's home. I can only hope that they will both be able to move forward from this point in their lives, though we know from the DNA exoneration cases that it can be harder than people realize to return to life after exoneration.

As for the rest of us, I hope that we will all do a better job in the future of letting the evidence lead us to the solution rather than picking our solution first and mangling the evidence to fit that solution.

And let there be no mistake about it: Meredith Kercher's killer has been found. He has been convicted and he is serving a 16 year sentence. His name is Rudy Guede. And his guilt is the clear, simple, obvious solution to this very basic, garden-variety burglary/murder case.

I just saw on Rachel Maddow that Gov. Nikki Haley of South Carolina has mandated that ALL state workers must answer their phones, "It's a great day in South Carolina." (She must watch Bravo TV because that sounds like what Jeff Lewis requires his employees to say when they answer the phone.)

Wow. Let me just say right here, right now. I would not, will not, ever, EVER answer calls from my clients on death row by telling them it's a great day in the state that wants to kill them. And if I were a capital public defender in South Carolina, I wouldn't either.

Ladies and gentlemen of the jury...

On the whole, I am glad that my career path led me down the road of appellate work. I like the writing and the focus on the law. I like waxing poetic on grand concepts, which doesn't happen much in the nitty gritty of trial level work. (It probably shouldn't happen so much on the appellate level, either, but it works for me.) I like that I can avoid early morning work as 8 am and I do not get along well. And I have been assured by friends with district court experience that district court judges would drive me crazy with their sometimes more casual approach to applications of case law and statutes. Not to disparage anyone. There is just a certain level of winging it that goes on in district courts (an effect of over-crowded dockets?) that would break this precision-loving lawyer's heart.

I am certainly not sorry I have not ever had to conduct jury selection and I sincerely hope I never have to. But that is a topic for another blog post. (coming soon)

But like any smart-ass lawyer (is there another kind?), I do still fantasize about conducting that awesome cross-examination that catches the complaining witness in a lie fatal to the state's case.

And I have always wanted to give a closing. A killer closing. A closing in a case like that in "Twelve Angry Men" where guilt seems so obvious, where everyone fully expects the defendant to be found guilty, where the media has already sentenced the guy to life in prison, but where one brilliant lawyer (ok, so in the movie it was a persistent juror, but work with me here) piece by piece shreds the state's case so thoroughly that the vote for acquittal takes all of 5 minutes. What defense lawyer doesn't want to give that kind of closing at least once in his or her life? I've given oral arguments that I felt really good about. I've even given one or two where I think I changed a judge's mind. But that closing argument still haunts my dreams.

I've been thinking about that this week as the Amanda Knox appeal trial (where in Italy the appeal is essentially a second trial of fact, unlike our appellate process which only looks at the law) has been in closing argument. Because her trial also involves some civil suits (which hurts my heart because they really need to be separate), there have been 4 different parties giving closing argument since last Friday. Amanda's lawyer has yet to go. As you might recall, I got sucked into the internet craziness that surrounds this case back in June when I wrote what I thought was a fairly innocuous blog post. That post is by far (by a magnitude of at least 4) my most read post. By far the most comments of any of my posts. And it introduced me to the weird, undergound internet world of Amanda Knox Guilters. A cabal, really. They're nuts, as you might have learned if you followed any of those 250+ comments. So because I'm a compulsive researcher, when they started challenging some of my views, I researched so I could respond. Not assuming that I would refute everything they said. I certainly wouldn't have assumed that everything they would spew was nonsense. But it is. And they go around the internet continuing to spew their nonsense.

So now, without really meaning to, I have gotten sucked into this case. I have read 4 books on it. I have corresponded with people. I have come to realize just how much misinformation persists about this case. Even the BBC's online news archives still includes stories that are provably false, with no update, no asterisk, no retraction. So it's become easy to understand why regular, intelligent Americans who aren't as obsessive as I am still think she might have had something to do with it, if for no other reason than that she lied too many times, changed her story too much. (She didn't, but it's become part of the white noise surrounding the case that too many people simply accept that as gospel truth.) And if you know me at all, you know I can't let that stuff go. This case has become my perfect storm this year: a wrongful conviction, misinformation all over the internet, and illogical arguments. You know what all of that means for me, right? I HAVE TO FIX IT!

And so my dream has morphed from not just giving any old closing argument, but giving THIS closing argument. Because I know this case that I have absolutely no connection to, and I now know I would rock this argument. No, I would knock it out of the park. I would knock it so far out of the park, it wouldn't even be able to see the park. It would go all the way around the world and come back into the park. And I wouldn't have to resort to name-calling, like the civil lawyers against her have. I wouldn't need to write a 400 page document like the Judge did in justifying her conviction. (Hint: if you have to work that hard to make your case, you don't have a case.) No, I think I could bang that argument out in half an hour. And I could get a jury to acquit in 20 minutes. (The first 15 minutes would be the jury oohing and awing over my brilliant closing, of course.) Because the "case" against her is so ridiculous and I am in most in my element when I am knocking someone else's totally illogical claims down. You really want to see me go on a tear? Say something really illogical in my presence and I will go all kinds of Julia Sugarbaker on you.

But I won't get to give that closing. Or any other closing any time soon. So it will remain just a dream. But I will have you know that in my dream, I nailed it. Whatever closing I had in my head that day, I freakin' nailed it.




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Location:Ladies and gentlemen of the jury

I really wish Adele's latest song "Someone Like You" weren't so darn good. Because it gets played all the time. On pretty much every radio station. As it should because it's a really good song.

But, damn, that song hits close to home! Way, way too close.

On a side note, I also wish (hope) that someday, I would be able to attend a CLE again. But it's not looking good for the foreseeable future. Sigh.

On a completely unrelated note, I wish I could be 5'6 every day. I was today, thanks to my fabulous new (Target) shoes with the 4 1/2 inch heel.* I like being 5'6. That was always my dream height. Sigh.



*Yes, I can walk in them. I walk in all kinds of ridiculous shoes with ridiculous heels. It's flats that give me trouble.

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Location:Wishes

I'm hardcore, part 2

"Moneyball" may well be a great movie about baseball, but for a real, true, hardcore Royals fan (like this blogger), there's a problem. (Fortunately as far as this movie is concerned, there may not be that many real, true, hardcore Royals fans left.)

See, in this movie, as in most sports movies, there was a key game situation that highlighted the dramatic climax. As a movie-viewer, I was supposed to root for the A's to win this game. (As a person who follows baseball, I knew how it turned out, too.) And, yet, the key game was against my Royals. Turns out, I was right all those times I declared myself not a die-hard Royals fan, but a die-never fan. Because while watching this scene, which was supposed to be nerve-wracking for the movie-viewer who wants the heroes of the movie to prevail, this Royals fan was rooting for the other team. I was rooting for Joe "The Joker" Randa and Raul Ibanez to score. And I cheered when Mike Sweeney hit the big 3-run homer. And in the pivotal, final at-bat, when I was supposed to be rooting for the nice guy we'd been following for 2 hours, Scott Hatteberg, to come up with a big hit, I was rooting for Jason Grimsley to strike that motherfucker out.

They may suck, be incompetent, have terrible pitching, have no power, and regularly lose over 90 games a year, but gosh darn it, I will always, ALWAYS root for my Royals.

Allen Ault, a former prison warden in Georgia who personally participated in executions, just spoke on MSNBC in the aftermath of Troy Davis' murder. The man sounded tired, somber, and sad. He spoke about the toll that participating in executions takes on the corrections staff. He spoke about how  he could see no justification for it. He talked about meeting with victims' families after the fact who did not feel any peace or sense of closure after an execution. He explained how he always had psychologists available to speak to his staff after an execution because they would need therapy for dealing with what they had just done.

So we engage in a punishment that is so morally questionable, the people who carry it out need therapy. And that's not even getting to the attorneys. Or the journalists who have to watch the executions.

There are so, so many reasons I am opposed to the death penalty, but this has always been one of them. Asking our fellow citizens to take part in an intentional, premeditated killing of a human being is far, far more than we have any business asking.

What a waste

I like to see people involved, energized. Not just thinking about what's wrong, but what they can do to fix it. So I hate to criticize when people do get involved, find a cause and pursue it. But...

Parents call for boycott of Ben & Jerry's Schweddy Balls flavor

Seriously?? This is what you're getting up in arms about? Communicating with the media about? Trying to organize a boycott about? Because ice cream with a "vulgar" name is somehow harmful to children, oh you concerned moms?


Here's my suggestion, not that you asked or care what someone who thinks Schweddy Ball ice cream is funny and is downright in favor of Hubby Hubby ice cream (and the gay marriages that flavor is celebrating). I think if you really give a hoot about children, your time, energy, and resources might be better aimed at fighting cuts to education and arts programs. Perhaps creating some after-school activities that could include at-risk children. Maybe organize literacy drives, pairing tutors with children who aren't reading well. Team up with Big Brothers, Big Sisters because mentoring kids is one of the best things we can do to keep at-risk youth from going down a bad path. Buy books for libraries. Form softball leagues to get kids involved in team sports. (The stats for girls involved in teen sports are really encouraging. They go to college and they don't get pregnant at great rates.)


These are just a few ideas I came up with off the top of my head. I'm sure there are other things you could come up with, things that would suit your particular communities and interests. In short, there are lots and lots and lots of great things you can do to help children and show your concern as moms. None of them have anything to do with raising a stink about the name of a flavor of ice cream.

Godspeed, Troy Davis

The Troy Davis case is one we death penalty opponents have pointed to for years. One of my first ever blog posts was about that case, written for a different site but eventually transferred to this blog. I have revisited the case over the years here. You can search through my archives to find those posts. I am frankly too tired and beaten down to do that work for you right now. Because today is the end.

Today is the day I and other abolitionists had hoped would never come. There are no more appeals to be made. There are no more clemency petitions to file. There simply is no more hope. There will not be a last-minute miracle to save Troy Davis from the sentence that a jury imposed on him 20 years ago.

Plenty of courts and attorneys and clemency board members have looked at this case over the years and said, "Well, a jury found him guilty and I don't see any reason not to just go with that." Never mind that members of that jury now disagree. One was quoted recently saying that if she had known then what she knows now, she would never have found him guilty.

The problem with this case, of course, is that a jury did once find him guilty and he cannot now prove his innocence. He can make a very, very compelling case for reasonable doubt. He can point to lots of evidence that another man was the shooter. (A man who is one of only 2 original trial witnesses who have not subsequently said their testimony was the result of police pressure.) But he can't definitively prove this other man was the shooter. And so he loses on review. Because once upon a time a jury convicted him.

And apparently that's good enough for us as a society. We are deciding today, by executing Troy Davis, that we are ok with uncertainty in the process we use to intentionally and with premeditation kill people. So many people want to proclaim that they're only ok with the death penalty in cases where guilt is clear, obvious, 100% certain. But reality doesn't yield those cases very often. And even if it does on occasion, it also quite often yields cases like this. Cases that are filled with uncertainty but which nonetheless resulted in a guilty verdict and a death sentence. Maybe those 12 jurors were once upon a time convinced Davis' guilt was clear, obvious, 100% certain. But they aren't now and our death penalty system, the one that so many people support with this naive notion that we only use it on people who are obviously guilty, offers no way for the jury to now be heard when they say they're no longer certain. In reality, our criminal justice system does not have 100% certainty. So if you support the death penalty, you're supporting this kind of outcome. One where an awful lot of people have an awful lot of reasonable doubt, but once upon a time one random collection of 12 people did not have doubt so we'll carry on with an execution.

Well, I'm not ok with it. This isn't good enough for me. There is nothing that I can do, though. I will wear black today, though I wear black so often no one will realize it signifies anything. And I will continue to fight against the death penalty for all the other Troy Davis' out there with the hope that next time, the ending will be different. But the end is here for Mr. Davis and in this moment I can find nothing more to say than it really, really sucks.


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My head hurts

College sports conference realignment talk is making me crazy. We went through it all last summer and now it's back again. People around these parts can't stop talking about it because our school is in such a tenuous position. Realignment is all about football and our football program quite frankly sucks. I try not to read the stories about it. I shut my friends and family up if they even bring it up. I don't want to talk about it. I don't want to think about it. I just want to stick my fingers in my ears, shut my eyes, and sing, "La la la la la" until it's all over.

I just can't stand to consider the possibility (remote though I'm sure it is) that the greatest tradition in all of college basketball, the tradition from which all other great college traditions sprang, could possibly end up in some crap-ass conference. But I did happily see this evening that the Pac-12 has decided not to expand. I feel better knowing that Texas and Oklahoma need the Big-12 to survive.

It's official

Do you hear that sound? That was the collective sigh of all the good and honorable gay and lesbian service members who have for far too long had to go to work every day and not engage in the normal conversations all their straight co-workers could. Because this morning, when those soldiers and pilots and officers went to work, they could now let some seemingly innocent detail about their home lives slip and not lose their jobs.


The reality of Don't Ask, Don't Tell was that it made people lie to serve their country. It made them live a life of dishonesty, a life without integrity. And all because some jerks are uncomfortable with gays, don't want to be around it or reminded that there are gay people in the world. But let's be clear. Being free to mention the name or gender of your significant other isn't being "in your face" about your sexuality. It isn't asking for special rights. It's just what all normal people do (or should be able to do) every day of their lives.


And I don't really care anymore what the jerks who oppose repeal have to say. The Elaine Donnellys of the world can make their stupid, prejudiced, mean-spirited remarks, and I'm not even going to rant about them. Because we won, they lost, and we're not going back.


Huzzah!

I do believe if I hear Republicans cry out that Democrats and President Obama are engaging in "class warfare" one more time, I will scream. Oh, wait, I have already screamed. Because it is infuriating. Beyond infuriating, really. Stop with the meaningless rhetoric and scare tactics, please.

It is entirely possible that my expectations are too high. But I think I'd rather have expectations set too high than too low. Maybe I should work on having more realistic expectations, though.

In which I shamelessly brag about my angel of a dog

Indulge me, will you, while I take a moment to express how thankful I am that this little girl came into my life. She may just be the best-behaved dog ever. I can leave my $200 shoes lying around without any fear that she will chew them up. She never touches them. (Yes, I have two pair of shoes that cost $200. Don't judge me, they're fabulous and worth every penny.)

I can leave my knitting projects on the coffee table and she won't touch them. I can take her outside in my un-fenced yard without a leash and never worry about her running off. I can take her for a weekend to my friends' house and know she will play gently with their 9 month-old son.

Everyone loves her. No one can resist petting her. I can't take her for a walk without getting comments on how adorable she is. (Once a 20 year-old sorority girl loudly said to her friends, "I want that." Sorry, hon, but you can't have her.)

Of course, she's not perfect. She's kind of a beggar when there's food around. (Not my fault. Someone else created that monster.) And when she wants to play, she can be quite demanding.

But, really, she's the best dog ever. Rough as the last year and a half have been, it would have been a whole lot worse without her.

One of the common responses any death penalty opponent hears often is, "You'd feel differently if it were your family member who'd been killed." I can protest against that until I'm blue in the face, but the death penalty proponent will almost never do me the courtesy of believing that I would hold true to my principles even in the face of a terrible personal tragedy. I can also point out that there are plenty of victims' family members who do not support the death penalty, but that point is usually ignored.

Well, here is a beautiful example of a family, still in the immediate grip of grief, who is standing firm in its conviction that the death penalty is wrong. The family of James Anderson, the black man in Mississippi who was beaten to death by a group of teens for no reason except they wanted to hurt a black guy, has asked prosecutors not to seek the death penalty against his killers. First, the family noted that they, and Mr. Anderson as well, oppose the death penalty. Second, the family expressed the desire for their family member's death not to be used as a chance to somehow even the racial justice scales in Mississippi by finally sentencing white people to death for killing a black person. (In general, people who murder white victims are far more likely to face the death penalty than people who murder non-whites.) The family further expressed the hope that ultimately Mr. Anderson's death and the prosecution of his killers could lead to a larger discussion about whether we want to continue having a death penalty.

This, I submit, is the response I would have if one of my family members were murdered. Nothing could be more insulting to the memory of my mother, for example, than for the state to seek death for her killer. She has been active in the campaign against the death penalty for as long as I can remember, so much so that she produced a daughter who turned that campaign into a career. Knowing what I've dedicated my professional life to, I can't imagine that the people who love me wouldn't make themselves heard all over everywhere if prosecutors ever tried to turn my murder into a capital case. (Indeed, if they didn't, I would haunt them. I can be really scary when I'm pissed off, so add ghost to that and I'd be downright terrifying.)

So I will pass on the message of James Anderson's family and share their hope that a good discussion about whether we really want to continue as a society that perpetuates the cycle of violence and adds to the tally of people intentionally killed can come out of this senseless death. I don't want us to be such a society and now we have clear evidence that people can still feel the way I do even after a family member has been murdered.

Don't Stop Believin'

I'm a mean, horrible person, but I'm rather enjoying the drama surrounding erstwhile DC Housewife and White House crasher Michaele Salahi. First, her husband reported her missing, a story picked up by the news today. The police reported that they had received a phone call from her telling them she was ok, but the husband insisted she was kidnapped and her abductor forced her to make that call.

Surely we can all see where this is going, right? I mean, the only question was who exactly was the wife running away with?

But we didn't know the answer would be this awesome. Because she ran away with the guitarist from Journey! At this moment, she is with him in Memphis where his band is set to perform with Foreigner. In keeping with the nostalgia element of a Journey-Foreigner tour, Michaele and the guitarist reportedly used to date.

(Sadly, the guitarist is also married and has a 7 year-old daughter. But the rest of the story is pretty amusing.)

Every time I think about September 11, and like most of you (I assume), I think of it often, the first thought I always have is how unbelievably fortunate we are that only 3,000 people died in that mess. When you think about how many people worked in and around those buildings and the vast scope of the destruction to that neighborhood, the death toll really should have been so much higher.

My thoughts on NFL Week #1

I hate football.

That is all.

The truest friends are those around whom you always feel like your best self. I am lucky enough to be spending my weekend with such a kindred spirit. May you all also have friends like this available to you.


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Persistence

Can we take a minute to acknowledge the Dutch woman who allegedly called her ex-boyfriend 65,000 times in a year? 65,000 phone calls. One year.

Do the math on that. That breaks down to 178 calls a day. 7 calls an hour. Every hour. For 365 days.

You know what that is? I mean, other than obsessive, deranged, disturbed, creepy, almost incomprehensible to a rational mind? That is dedication to a cause. That, my friends, is persistence.

And you know what they say about persistence. It may not have paid off in the way she wanted (seriously doubt the ex-boyfriend is back to being the boyfriend), but it sure got her some attention!

Not that I expected anything better, but I still reserve the right to be disgusted

I know, I know. I said I shouldn't watch any additional Republican debates. But I just can't help myself. My mom and I have debated whether we're masochists or just involved citizens. We decided it's probably a combination of the two.

So, anyway, I watched the debate tonight. (They mercifully stayed away from the social questions, like abortion and gay rights, that are surest to make my head want to explode.) But Brian Williams had one question just for Rick Perry at the tail end of the debate.

Brian Williams began, "Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. Have you.."

At this point, Williams was interrupted by applause. Fairly loud applause. And I wanted to cry. Or scream. Because being that enthusiastically in support of killing 234 people seems a little off. I'm sugar-coating it there. I think it's despicable. I think it's awful to cheer for the intentional killing of anyone, let alone 234 people.

Williams was finally allowed to finish his question to Perry, "Have you struggled to sleep at night with the idea that any one of those might have been innocent?"


PERRY: No, sir. I've never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which -- when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that's required.

Of course he's not troubled. Of course he never struggles with the thought that he oversaw the execution of anyone who shouldn't have been executed. Oh, they have a great system. As Cameron Todd Willingham will tell you. I'm sure Hank Skinner would have great things to say about the Texas criminal justice system. Or the guy whose defense attorney slept at trial.

And then he spouted off about how anyone comes into HIS state and kills one of HIS STATE'S children, you will be executed. And he gets more applause. Such a sorry, disgusting display. And so very not presidential.

I have a hard and fast rule. I do not blog about my own cases (except the occasional generic anecdote about cases long since resolved). I also do not comment on news articles about my own cases or cases I expect might become mine. But, of course, I'm me, so I still read those news articles and I still have things I want to say. Sometimes things I'm DYING to say. Not about the facts of the case, necessarily. But about some procedural aspect or some quibble with a line in the article, for example.

As you have probably caught on, I have a rather raging case of "Something is wrong on the internet"-itis. Sometimes, I see something that really deserves some blog attention. It's a pretty obnoxious misstatement, even egregious. But I won't blog about it. I'll just whine about not being able to blog about it.

Cases like this really do happen

In case you weren't clear, it is in fact not a crime to walk in Kansas City, Kansas while black. But it took years to reach that conclusion. And 4 judges ruled otherwise before the Kansas Supreme Court finally said so. The case is State v. Johnson.

It all started when members of an FBI Task Force on violent crimes went to look for Shane Thompson. None of the task force members knew the suspect, but they had a description of a short man (5'2") with short hair and facial hair. They went to his mother's house, hoping to find him. But no luck. So there the Task Force was, all dressed up and no one to cuff. They hate it when that happens.

But, then, like manna from heaven, there they were! Two black men! In a predominately black neighborhood. With short hair and facial hair. Five blocks away from the suspect's house. And each was at only 7 or so inches taller than the guy they were looking for! One of them must be their guy! Because what are the odds of black guys who weren't the least bit connected with their guy just walking down the street 5 blocks away? (Umm, pretty good, actually...) So the Task Force circled its multiple cars around the pair and exited their cars. Lights flashing, guns drawn. These two were seized and most definitely not free to leave. In that moment, those two were probably just hoping they weren't going to get shot.

Of course neither of these guys, 5'9 and 5'11, were the guy. But since this is a criminal case, you know our unlucky defendant, Mr. Johnson, must have done something. Poor guy had some pot and coke on him. Drugs police only found because of this blatantly illegal, racist stop. But the District Attorney's office didn't have a problem with the stop because they filed the charges and defended against the motion to suppress. And the District Court judge didn't have a problem with the stop because he denied the motion to suppress and sentenced the unlucky defendant. And the Court of Appeals, remarkably, did not have a problem with the stop because they affirmed the District Court's ruling. One might forgive Mr. Johnson if he was starting to suspect that the Fourth Amendment's prohibition against unreasonable searches and seizures doesn't apply to black men in Kansas City, Kansas.

But then the Kansas Supreme Court stepped in. They didn't have to, but they granted Mr. Johnson's petition for review. And finally, FINALLY, we found some judges willing to say they had a problem with this stop. They said what all the rest of us understand, that looking for a 5'2" black man does not entitle you to seize the first black men you see. In a delightful twist, the Task Force members tried to justify their stop because the  information they had about the man's height may not be reliable. So it was reliable enough to justify stopping someone, but not reliable enough to restrict the police to seizing only men who fit the description. (The Kansas Supreme Court seems to have been the only lawyers, other than the defense attorneys, who noted this logical flaw in the task force's justification of reasonable suspicion.)

There are so many things about this case that are appalling. The brazenness of the Task Force's actions. They just flat stopped the first black guys they saw, with very little pretense at justifying their actions. Then there's the DA who didn't see the police report and immediately think, "I can't prosecute a case built entirely on such  a blatantly unconstitutional seizure!" Or the District Court Judge who didn't laugh the state out of court, granting a motion to suppress before the defense attorney could open his mouth. Or the Court of Appeals who affirmed this travesty.

Obviously, I'm pleased that the Supreme Court did overturn this case, rule the suppression motion should have been granted, and reversed Mr. Johnson's convictions. He already had to serve most of his sentence, of course, but I guess better late than never. But would it have killed the Court to have expressed a little outrage? Because this case is pretty outrageous. And 2 courts had no problem with it. Happily, for Mr. Johnson and, one hopes, other nondescript black black men in Kansas City, Kansas (and Wichita and Topeka) the 3rd Court was the charm.

Missouri, why must you always make it so easy for me to pick on you?

In case you were wondering why I maintain that Missouri is the worst state in the country, I offer you Exhibit B (Exhibit A will always be that 148 years ago, they burned our town down).

Missouri lawmakers seek to end tax break for poor

Poor disabled and elderly folks in Missouri who rent housing are now eligible for a tax break to help cover that rent. But Missouri legislators would rather end that tax break and offer new corporate tax breaks that would lure Chinese cargo planes to St. Louis and other businesses to Missouri. And, really, those disabled and elderly folks have been coddled enough. Those Chinese cargo plane manufacturers need the love now, so the poor renters on fixed incomes need to suck it up and fend for themselves. Mooches.

It's really not fair that a city as awesome as Kansas City is stuck being part of that wretched, wretched state.

She did it once, she's done it again

Remember that Harvard-educated Alabama professor who went nuts and shot up a department meeting? Well, her case is still pending. And after Amy Bishop allegedly went on her shooting rampage, the media naturally started digging into her past. It didn't take long to figure out that over 20 years ago, she had been holding the gun that shot and killed her brother. I say it that way because the conclusion at the time was that it had been a tragic accident, that while she had been holding the gun trying to unload it, it had accidentally discharged, killing the brother.

Of course, hindsight is 20/20, so once she was accused of a murderous gun rampage, authorities in her hometown in Massachusetts decided to reopen the investigation, held an inquest, and got a grand jury to indict her on first degree murder. It's easy to ascribe different motivations to her actions decades ago now that we can see she's a homicidal maniac. Allegedly.

This story came back to my mind the other day when MSNBC had a story about litigation over whether the transcripts and investigatory materials from the inquest are now available to the public. The judge has sealed them because a trial is still pending, but the media is suing for access, arguing that state law makes those records public once an indictment has been handed down. The defense, naturally, is arguing that releasing all of that information now, before trial, will prejudice her right to a fair trial.

The media, though, is arguing that they have a compelling interest in those materials because they want to find out what happened in the allegedly botched investigation 24 years ago. As the Boston Globe's metro editor said, "There was a crime that was committed here, and there were decisions made back then that may have potentially contributed to a tragedy in Alabama. I think the public has the right to know if officials did something wrong and what the mistakes were that were made."

I do not see this ending well for Amy Bishop. By this, I mean only the Massachusetts case. (Does anyone see the Alabama case going well for her?) But I'm troubled by this new investigation into a 24 year-old shooting incident, this new perception that clearly a "crime" occurred back then and we need to find out why the authorities missed it. The thing is, though, that nothing has really changed since that investigation was closed over 20 years ago. Nothing except that Bishop has been accused of shooting some other people in an incident completely and totally unrelated to the death of her brother. So if she intentionally shot these people over here, she must have intentionally shot this other person before. (I, personally, might have gone with, gee, maybe she was really messed up after accidentally killing her brother. But I'm a bleeding heart liberal defense attorney.)

A hot topic in criminal law is always when the prosecution can introduce evidence of other bad acts committed by the defendant. In Kansas, we call this 455 evidence, after the statute governing its admission. Our general rule is that evidence of other bad acts can only come in if it's relevant to a material, disputed fact and it's more probative than prejudicial. 455 evidence is not admissible to prove a defendant's disposition to commit a particular type of crime. This is considered propensity evidence. The idea being that we don't convict people based on what they've done at other times. The fact that a person committed a crime before doesn't actually have any bearing on whether the defendant committed THIS crime at this time. But people tend to think that way, so it is important to keep juries from going down that path by hearing about irrelevant prior criminal activity.

It seems to me that Bishop is falling victim to propensity evidence. No one would ever have reopened the old case if she hadn't been involved in the new one. The investigators and prosecutors are now looking at that old case through the lens of "she intentionally shoots people." They're now saying she has a propensity for this kind of behavior. She did it here, she must have done it there. An editor for the Boston Globe is taking it as a given that a crime occurred in that prior shooting, even before a trial jury has heard any of the evidence at a trial that is meant to decide that very question. And all because we know (allegedly) that Bishop intentionally shoots people.

I hope Bishop can get a fair trial on the Massachusetts case, where the jury and judge consider only the facts surrounding the shooting of her brother instead of making the easy, but flawed, deduction that she intentionally shot those people in Alabama (allegedly), so she must have intentionally shot her brother as well.

My prejudice

Like so many women in the last century and a half, I grew up on Pride and Prejudice. My mother had a glorious old hardback edition that was just this side of falling apart. I love a book that is just this side of falling apart because I know it has been read and read and read.  We watched it, too. When I was a kid.

If you do your math, it should be clear that if I was watching Pride and Prejudice when I was a girl (I'm 38 now and I have nothing to hide), it was before the Colin Firth-Jennifer Ehle version from 1996. I had graduated from college before that version came out.

No, I grew up on the earlier BBC version. The one that we Johnson gals (my mom, my sister, and I) still think of as the definitive version. I grew up on the 1980 BBC tv miniseries. I grew up on a version with a delightful Elizabeth and a truly beautiful Jane and a Darcy whose haughtiness was easily seen as awkwardness once we later realized his inherent goodness. My version had a Mrs. Bennett who was annoying, but in an endearing way such that you could understand why Mr. Bennett fell in love with her when she was younger. And a Lydia who looked just like she was the spitting image of her mother at that age. And a Lady Catherine who was stately and imperious. (Mary and Mr. Collins are pretty consistent from version to version. Those characters are hard to mess up or deviate from.) My version was so true to the book and so true to the characters and so perfectly cast. We watched it over and over again, off of old VHS tapes that my mom had recorded it on. (These days, we all 3 have it on DVD.)

So in 1995-96 when Mom and my sister and I heard the BBC was making a new version of Pride and Prejudice, we all looked blankly at each other and asked, "Why?" Because the BBC had already created the definitive version. The perfect version. A version that would outshine all future versions.

Imagine my consternation, then, when almost all of my friends consider the Colin Firth version to be THE Pride and Prejudice. It aggravates me beyond measure. But none of them have ever heard of my version. They look at me like I'm nuts when I say there was an earlier BBC version. "No," they insist, "This is the only BBC version." Sigh. One by one, I try to show them my version, the better version. But I fear Colin Firth with his "Love Actually" credentials (wretched movie) and the shinier BBC production values of the mid-90s as compared to 1980 has them blinded.

The truth, though, is that the Colin Firth version is so ridiculously inferior to my version, it isn't even funny. Why, the Colin version adds in scenes that never happened in the book. (Seriously, Mr. Darcy never fell into a pond...) And their Jane is not pretty. But the ONLY thing Jane truly has to be is pretty. And their Lady Catherine is dowdy. And here it comes to the heart of it. Their Elizabeth Bennett just isn't right. And their Mr. Darcy... Well, it's time to admit it. Their Mr. Darcy sucks. Yep. Colin Firth as Mr. Darcy sucks. He's a one-note, with no range in his expression and no warmth. And he's not nearly as good looking as my Mr. Darcy. David Rintoul is the only Mr. Darcy for me.

So friends can keep trying to get me to watch and appreciate the atrocity that is the 1996 Colin Firth version. But I will never be swayed from my conviction that the earlier version, MY version, is the one true, definitive production of that greatest of books. So there.

I might just pop it in right now, even though it's midnight. Just to remind myself of how those characters were meant to be portrayed.

Things that everyone (but cops) knows are legal #1

Here's some good news. The First Circuit Court of Appeals has held (acknowledged, really) that it is perfectly legal to record police officers in the performance of their duties. Over the past several years, there have been numerous instances of people on the streets pulling out their smart phones and recording instances of police brutality or excessive force. Or even just regular old police encounters, just to ensure that the encounter didn't go south. With the proliferation of these recordings has come a rise in cases where police arrested the person doing the recording. Charging them with eavesdropping or other violations, alleging that it's not legal to record people without their permission. The linked blog post cites several examples, including one where Illinois prosecutors are still trying to incarcerate an individual for up to 75 years. (For more examples, check out The Agitator, Radley Balko.)

Here's my question to all these cops and prosecutors who try so hard to intimidate the public into not recording police officers on duty: What are you afraid of? What are you doing wrong that you don't want the public to see and have indisputable evidence of? It seems to me that police ought to appreciate having recordings of their encounters so they are protected against false claims of brutality. Since they're all so professional and never violate anyone's constitutional rights, I just can't imagine why they would object to having their job performances recorded for posterity.

If we don't get in trouble for doing it, is it really misconduct?

Of course. Of course Roger Clemens will have to face a second trial even after prosecutors engaged in shenanigans that ended his first trial. (Read my previous post to refresh your memory about the shenanigans.) And it would appear that prosecutors won't have to pick up the extra legal fees he will incur by this case being dragged out because of those shenanigans. The judge says he has no choice. Legal commentators say it's absolutely the correct ruling. That the "mistake" was inadvertent. That it would be a "windfall" for Clemens to have the case dismissed. The judge did apparently express extreme displeasure with the prosecutors, gave them a bit of a tongue-lashing, but then he whipped out his calendar and scheduled the second trial anyway.

And this is why prosecutorial misconduct keeps happening. Because there are no consequences. Because courts and court watchers refuse to question prosecutors when they say, "Oh my golly, we don't know how that happened! We feel just awful about it. Sorry!" So they think they can do these things. They know they can get away with it, so why not try it and see if we just can't sneak something past the defense and the court.

Now whether these particular prosecutors intentionally left the snippet of video in the exhibit they were playing for the jury or just forgot, I can't say for sure. But it doesn't seem terribly likely that these prosecutors, who the court knows to be "highly professional career crime-fighters," just forgot to redact their video. Forgetting to check a major piece of evidence for any possible violations of pre-trial court orders doesn't seem  highly professional to me. The linked legal commentary on ESPN also makes much hay about how experienced these trial lawyers are and how they wouldn't be thrown by last minute discovery. Which also means they shouldn't have been thrown by a pre-trial court order issued only days before trial began. They should have reviewed their evidence and made sure the evidence complied with court orders. We either have to believe these highly professional lawyers just didn't think to do that or that they just didn't do it, taking a calculated gamble that they would get a defense objection, which would of course be sustained, but which would guarantee that the jury heard that piece of evidence and remembered it. (Yes, the judge would have instructed them to disregard, but please, who are we kidding to think juries really can do that?)

Given those choices, courts almost always defer to believing the experienced, professional prosecutors innocently lost all sense of how to prepare for trial. Which makes me nuts because, frankly, I'm not all that convinced it should matter. They screwed up, but Roger Clemens still has to pay for it. He has to pay for more hours of trial prep and trial presence by his lawyers. He has to fret for another several months about his future. And the prosecutors involved in the case face no consequences at all. There won't be any disciplinary complaints for their "mistake." They won't personally bear the financial burden of extending the trial to next year.

I wish I had a dime for every time I have heard a prosecutor say that such and such behavior is not misconduct even though in case after case, the appellate courts have found that behavior to be improper. The appellate courts just decline to find that misconduct to be reversible error. The courts say that while the prosecutor shouldn't have made that comment or asked that question, it didn't actually affect the outcome of the case, so we won't reverse. Which is why prosecutors feel perfectly free to make those comments or ask those questions because they feel so confident that they will get away with it yet again.

The way courts now treat misconduct is about as useful as it is to say "no" to a puppy in a baby-talk voice while scratching the puppy behind its ears. The dog is going to think that doing that thing you're "scolding" it for is something it should do again and again because being scratched behind the ears feels so good. If you really want to stop prosecutors from trying to sneak in the evidence you ruled inadmissible or from making the closing argument you say is improper, you need to impose consequences. Real consequences. Not just words while wagging a finger. And holding prosecutors accountable for their misconduct is not granting the defendant a windfall. It's simply acknowledging that process matters, that the rules matter. If you can't (or just won't) play by the rules, you shouldn't be allowed to keep playing.

Exasperation

A friend asked me recently to blog more. Well, fine, what would you like me to blog about? How sad I can get? How lonely I am most days? How heartbroken I still am? Would you like to read all about how barren the dating landscape is for someone of my age and with my apparently unlikeable personality? Because, trust me, it's depressing. And I really don't think it's just that I'm completely unable to trust anyone after the only person I've ever loved threw me away one morning with absolutely no notice. (And, who are we kidding, I still kinda love the bastard, even though he doesn't deserve it.)

Or you could read all about how frustrated I am at work now. How a job I loved and used to live for has become completely unfulfilling, leaving me feeling stifled and useless. Not to mention that the workplace, which for so long was my main source of friends, has become downright unfriendly of late.

Or we could talk about how I can't afford to do anything proactive to improve my life because of the ridiculous expenses I have incurred due to the hideous roller skating incident. And I have good health insurance! Imagine how overwhelmed I would be otherwise. Which then just ticks me off to think how many people in this country would deny access to affordable health care for all of their fellow humans. Which then just leads me into thinking how hopeless our country is because the mean pro-business, anti-government, anti-compassion jerks seem to be controlling everything.

But, really, what does any of my petty unhappiness matter when the entire human race will die out in another 100 years because the global warming deniers will continue to refuse to do anything to save the planet?

So if you want to know why I haven't been blogging much lately, well, it's probably because I'm too busy trying not to cry.

UPDATE: Ok, so apparently my ability to write firmly tongue-in-cheek, over-the-top nonsense has gone missing. Because the above was not intended to be taken as a reflection of my current mental state. It was a statement of exasperation, at the world, at writer's block, at life block. So, since this space is theoretically my rants and I always feel better after a good rant, I just went nuts, ranting about everything that's been bugging me lately. And while no one seems to get me (a topic for another rant), it did seem to have achieved the desired result of unleashing the creative juices.

Mine is such an odd job. My ultimate goal is to put myself out of work. I don't want to have clients. When a verdict comes that does send a new case my way, I get depressed. When your job is to fight something you hate as much as I hate the death penalty, it's really a victory not to have a job at all. And I really hate the death penalty.

The day so many people have hoped for for so long has come. The West Memphis Three are free. I first saw the rumor last night that the three had left prison for a local jail and that they had packed up all of their belongings. That was a remarkable turn of events. First, it was a surprise that they had a hearing set for today. Second, it is highly unusual for an inmate to pack up his cell before being transferred to a county jail for a routine court appearance. So we knew something big was coming.

Then the first thing I saw this morning when I got up was the news that they had, in fact, been released. They were out, free men. I don't know about the rest of you, but I know I am enjoying today's sunshine, my yummy lunch, pretty much everything just a little bit more today knowing that they are also free to enjoy these simple pleasures of life with their families, wherever they want to be.

I am pleased that this happened for them while they are all still young enough that they have some hope for a normal life. They are 36 and 34, all younger than I am. Damien Echols is already married. There is reason to believe they can still have children, find jobs, live life. Ronald Cotton, who co-wrote a book with the woman who wrongly identified him as her attacker, is the best example of what kind of life is possible after exoneration. I hope that these 3 will be able to follow in his footsteps.

Of course, their story isn't quite that happy right now. They are not going to be fully recognized as among the exonerated. They had to accept the bitter pill of pleading guilty (while maintaining their innocence) to secure their release. This plea is a sham, designed solely to save the state the expense of a wrongful conviction lawsuit and the prosecutors the embarrassment of admitting a mistake. And it's ridiculously unfair because no one in their shoes could have turned the deal down. It wasn't a plea they wanted to enter, but what still young defendant, having spent 18 years in prison facing either life in prison or the death penalty, could possibly have turned down this deal, knowing it came with the promise of release TODAY? I am confident I could not have turned that deal down, no matter how offensive it was to me to technically plead guilty to a crime I had not committed.

So these young men aren't entirely free. They are out of prison, but they're on probation. For 10 years. With the understanding that a probation violation can land them back in prison for another 21 years. I would hope that this will be probation in name only. That they won't truly face many conditions or any real possibility of revocation. But we can't know. I would like to think that many people will recognize them as exonerated, innocent, but we can't know that, either. Undoubtedly, there will still be many, many people who will view them with suspicion at best. Ask Tim Masters of Colorado how easy it is to find work even after full exoneration. There will always be people who cling to belief of guilt. Being on probation might make it more difficult for these men to build new lives if they are required to stay in the state of Arkansas, where it will be harder for them to escape the case's shadow.

But today, I don't want to dwell on the negative, on the bitter aspects of this release and the difficulties they will face. Today, I just want to focus on the fact that they are free, able to sit at a dinner table with each other and their families, able to hug their mothers, eat a steak, go see "Cowboys and Aliens," and sleep tonight on a real bed, in a dark, quiet room, with no one demanding they get up at 4 am tomorrow, and with the knowledge that for the first time in 18 years, they will wake up tomorrow to a world full of possibility.


- Posted using BlogPress from my iPad

Location:What a beautiful day

This makes my day. Seeing as how a judge has already found that Dale Helmig's defense attorneys established his actual innocence and his conviction was only achieved through prosecutorial shenanigans, deciding not to waste taxpayer money prosecuting this guy for the murder of his mother, which he didn't commit, is definitely the right call.

But (you knew I wouldn't offer unreserved praise for a prosecutor, didn't you?), the dang prosecutor just can't quite admit that he really is innocent. She just can't bring herself to admit a fellow prosecutor went after the wrong guy. Even a prosecutor as challenged at going after the right guy as Kenny Hulshof. Nope. She just has to point out that there is no statute of limitations for murder. And she just has to insist that they will refile the charges if new evidence comes to light. All with absolutely no mention that they might have to look at the guy who probably is the real killer. (I'm not sure if that man, the victim's husband, is still alive.)

So, gee, that's that, Mr. Helmig. You've served 14 years in prison, you've been labeled the murderer of your mother, and you've undoubtedly lost pretty much everything you ever had. Job, home, money, basic material possessions (like favorite books or beloved record collections), and any pets you may have had at the time of your wrongful incarceration. And pretty much all because a prosecutor refused to play by the rules. (But, hey, he got a 12 year Congressional career and a sweet big firm job out of the deal, so it's not a total loss.)

But you're free now, so it's all good. You don't need the state to acknowledge your innocence to assist you in any job search or to allow you to live out your remaining years without this shadow of suspicion hanging over you. You should just be thankful the state isn't going to try to send you back to prison.

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Oh good gravy. This woman can't answer a straight-forward question to save her life. She has said that being gay is being part of Satan, is bondage, enslavement. That to life that "lifestyle" is sad, a life full of despair. And that those who are gays or lesbians (or bi or trans) are dysfunctional and suffer from a disorder. But when confronted with those statements, all she will say is "I'm running for the presidency and I'm not judging." As someone who actively fights against anti-gay bigotry, I find her "answers" in this interview profoundly lacking. Not that she would ever have my vote, anyway, but come on. At least try.

How anyone can take this woman seriously as a candidate for the presidency is beyond me.

Rot in peace

It's a little rare for a defense attorney to express glee at a criminal defendant receiving a long sentence. Usually, even if I agree a defendant is guilty and is a danger to society, I still overwhelmingly feel it's a tragedy for someone's life to be finished out in prison. I will make an exception in this case, though. This judge deserves every day of those 28 years, and probably a few more. (I've written about this case numerous times over the past two years, starting here.)

A judge who would screw juvenile defendants out of their rights to counsel and to trial deserves to be stripped of his own rights. (After he has received due process of law, of course.) And a judge who would incarcerate juveniles for his own personal gain deserves to be stripped of his own liberty. For good. I will not spend one second worrying about how difficult it must be for this well-educated man, used to receiving respect and deference, to now have his every move dictated to him by prison guards. I will not shed a tear for his family who now must celebrate birthdays, graduations, weddings, holidays, etc. without him. But I do sincerely hope that he spends every night for the rest of his life haunted by images of the kids whose lives he ruined.

See, I do have the ability to be mean and vindictive. But only with people entrusted with protecting the Constitution and providing due process of law who outrageously violate that trust.