I hate prosecutors

I hate them. I know it's wrong. At least, I know my mother taught me it is wrong to hate. I know that the one time I truly hated a specific person, I felt awful about it. I still feel bad for 23 year-old me about that. My boss was an awful, horrible person, but I was the one wracked with guilt every night because I couldn't get over my hatred for her. I deserved to hate that mean-spirited woman with a clear conscience.

But I don't feel bad about hating prosecutors. They're evil. They don't view criminals (aka our clients) as actual people. They view everybody as guilty from the second the police report hits their desk. They expect us to prove our clients' innocence to them, not the other way around. They think cops are great. They don't see the problem with searching any and all cars stopped for routine traffic infractions. They don't believe there's such a thing as a coerced confession. They think coroners and crime labs work for them and them alone. They don't think any mistakes they make should result in a criminal going free. I'm pretty sure they kick puppies. (Ok, probably not that last one.)

Yes, I know, there are supposedly some good ones. A few. But secretly, I don't really believe that. Even the "good" ones get sucked into the culture sooner or later. And even the "good" ones secretly feel like they're on the good side and we're not.

I hate that every time I walk into the courtroom or write an argument to the court, I know I'm the better lawyer. I know I've thought more about the law, I know more about the facts of my case, and I have better analyzed how the law applies to my facts. And yet, more often than not, the prosecutor comes out on the winning side. Even when he admits he hasn't read the critical transcript. Even when she obviously doesn't get why the court is even considering granting my request. I hate that they are routinely validated as lawyers when I should have won.

I hate that their sloppy, half-assed work is accepted. But if I try to get the court to see something in a new light, I get reamed for not having any authority for my position. I hate that they can misstate the law and the evidence with almost no consequence. I hate that as a result, they hardly even notice how careless they are anymore.

I hate that prosecutors assume even I think I should lose. I will never forget walking out of the courtroom after arguing a suppression motion. I was absolutely dead-bang right on the law. The warrantless police entry into the home was completely unjustified. 9 times out of 10, I win that argument. But this tenth time, the evidence I wanted suppressed happened to be the dead body, the murder weapon, and the crime scene. The prosecutor had been grilled, but ultimately the court let her off the hook. It became clear that she would be the victor. As we walked out, she said she was glad that reason had returned to the courtroom. The thing is, she said it in a conspiratorial tone, as if I would naturally agree with her. I mean, I couldn't possibly actually believe the dead body should be suppressed. Could I? But I did. And to this day, I believe I was right on the law there and absolutely should have won. I hate that she genuinely doesn't get this.

I hate that they seem surprised to learn that I feel human connections to my clients. That it is in fact possible to see the humanity behind the heinous act. I hate that they are unwilling to see the whole person instead of just seeing the snapshot image from the moment of his or her crime.

I could go on, but I've already wasted too much time stewing about prosecutors. I know it's wrong to hate, but they just give me so many reasons.

After March Madness, we have April Awesomeness!

Is this the best time of the year or what? Let's list all the reasons why:

1. The Kansas Jayhawks are in the Final Four. The game may not have been pretty, but can any quartet of guards in the country provide lock-down defense when it counts the most like Rush, Chalmers, Collins, and Robinson? Mark my words: these Jayhawks will go to San Antonio loose and ready to play!

2. Baseball opening day. The Kansas City Royals came from behind to win. As of right now, they are undefeated and in first place. You may tell me they can't stay in first place, but I respond, "Why not?"

3. My season tickets finally arrived! Home opener against the Yankees, here I come!

4. I have the cutest dog ever. Last Friday was our first anniversary or Gotcha Day as I call it.

I really intended for this blog to be more about the law than myself, but between my recent illness and sports, I've let an awful lot of my non-law life and interests seep out. I don't know if that trend will continue.

I can happily report that I made my additional 4 hours without vomiting, so around 6 last night, I was finally able to drink some gatorade. (Sweet SO brought me a 64 ounce bottle of my favorite flavor.) I also drank some of the ginger ale he had brought me that morning. I don't know why bubbly drinks always feel good to an upset stomach.

Then around 8:15, I decided that raspberry sherbet sounded good. My mom always had sherbet in the freezer and I remember it being something she would give us when we didn't feel well. Of course, as soon as I said I wanted raspberry sherbet, SO went to the store and got me some. While it sucks being sick, it's kind of nice to have someone take such good care of me.

I'm still not at work today. I had a raging headache when I woke up this morning, probably related to dehydration. I am actually going to go out, though. My poor pup is almost out of food. She's been very confused the past two days. Mommy's been home, but not playing with her. Everytime I get up, she gets really excited and runs for her ball, thinking that if I'm getting up, I must be better and can play with her now. Well, I really haven't played with her, but I will take her with me to the pet store.

Then maybe I'll get some food for myself, too.

Food poisoning sucks. I think it may actually be the worst thing ever. My doctor reassures me that it's not really a problem until the vomiting lasts over 24 hours. I beg to differ because the last 11 hours have easily been the most unpleasant of my life.

They said not to drink anything for another 4 hours. That kind of makes me want to kill people. After vomiting that much, I am really, really, really, really, really thirsty so pretty much the worst thing you could tell me is not to drink any water.

I think I'm going to cry now.

Here's the scenario: 24 year-old college student out drinking one Saturday night. Makes the very stupid decision to drive home. On the way home, he hits something. Not sure what it was, he keeps going. When he reads about the 22 year-old who died in a hit-and-run accident early in the morning, he realizes what he's done and turns himself in to the police. At a jury trial, the jury cannot find beyond a reasonable doubt that the driver was intoxicated, so found him guilty of the misdemeanor vehicular homicide and fleeing the scene of an accident. Today, he was sentenced to 2 years probation with 90 days in jail. If he gets revoked, he gets another 21 months in jail. While out, he has volunteered to speak publicly about the dangers of drunk driving. The guy has repeatedly expressed deep remorse about the tragedy.

Naturally, the knee-jerk, hard-on-crime-without-any-rational-thought crowd is incensed. How can he only get 3 months in jail for killing someone? We need to write our legislators! We need to repeal our judges and vote out our worthless prosecutors! This is a travesty! I swear I think there are some folks who wouldn't be satisfied with anything less than the death penalty. A life for a life, right?

I am so damn sick of the tough-on-crime mentality that demands ever longer prison sentences. This mentality has given us the largest prison population per capita in the world with absolutely nothing to show for it. If people would think a little bit about what we really can achieve through sentencing, rather than just try to extract every possible ounce of revenge, we would be a lot better off as a society.

See, I happen to think this sentence was just, even ideal. What possible good would come from throwing this guy in prison? Yes, he has a debt to society that he needs to repay. But there are other ways to repay that debt beyond serving time in prison. There are some people who can best repay that debt outside of prison. Really.

This guy's a college student. If he can finish his school, he'll have more earning potential. He'll be able to get a job, maybe buy a house, contribute to the economy and society in general. And he can still speak to groups about the dangers of drinking and driving. This way, the taxpayers don't have to support him, too. You'd think that would have some sway with the all-people-who-make-mistakes-are-evil-criminals-beyond-any-redemption crowd.

What would change if he spent years in prison, even 5? Well, he wouldn't finish his college degree for years, if ever. He would have far fewer job opportunities. He would have to explain to every potential employer the 5 year gap on his resume. His friends would have moved on. All making it that much more difficult for him to reintegrate into a normal life. (And taxpayers would have paid to house and feed him for all that time!) Isn't he far more likely to have contact with the criminal justice system again under this scenario?

And what would we accomplish by sending him to prison for years? Absolutely nothing that anyone does can ever bring back the young man who lost his life. And nothing can ever make it fair. It will never be fair that this guy's alive and the other one's dead, so let's stop trying to use criminal punishments to make things "fair." Ain't gonna happen. So I just don't see the point of ruining another young man's life.

Instead, let's mete out punishments that accomplish a realistic, and worthwhile, goal. Let's use the system to make as many mistake-makers and criminals into productive members of society as possible. We actually can't lock up everyone.

I wrote this last July, when the Georgia Board of Pardons and Parole was considering Troy Davis' request for clemency:


How sure do you want to be?


Tomorrow evening, Georgia is set to execute Troy Davis, convicted of the 1989 murder of a police officer who ran to the aid of a beating victim. Troy Davis was among the crowd of bar patrons who heard the beating take place. He followed behind the scuffle, ahead of the murdered police officer. The man responsible for the beating, Sylvester Coles (who surely should have been the prime suspect for the murder as well), pointed the finger at Troy Davis as the shooter.

A total of 9 witnesses testified at Davis' trial that they saw him beating the homeless man, shoot the officer, or heard him confess later. 7 of those 9 witnesses have since recanted. An eighth was Sylvester Coles. 3 individuals who did not testify at Davis' trial have signed sworn affidavits that Coles confessed to the murder. No murder weapon or physical evidence tied Davis to the shooting.

Whatever your personal feelings on the death penalty may be, this case ought to give us all pause. The fact that anyone can defend executing a man on this evidence is frightening to me. Several jurors who voted to convict Davis and sentence him to death have since expressed their doubts about those votes. At trial, eyewitness identifications can be very powerful evidence. Yet that evidence is notoriously unreliable, especially in cases like Davis' involving strangers in chaotic incidents. In most jurisdictions, though, defense attorneys have been prohibited from putting on expert testimony to explain to juries how fallible eyewitnesses can be. Even more troubling is the reliance on jailhouse snitch testimony. Every jail in the country has a few residents who will say just about anything in a court of law in hopes of getting their own sentences reduced. Note that both sides in Davis' case were able to produce a few witnesses who heard two different people confess to the same shooting.

Some people would like to believe that Davis' case, where recanting witnesses are in abundance while physical evidence is nonexistent, are the exception. They cling to the misguided notion that guilt in most capital cases is crystal clear so they needn't worry themselves about answering the abolitionists' concern that an innocent individual may be put to death. But Davis' case, where guilt is anything but clear at this stage of the game, is all too common.

Maybe Georgia got lucky and got the right guy in spite of the lack of good evidence. I doubt it, but anything's possible. I do know, though, that we cannot continue to execute people while just closing our eyes and hoping we got it right. Hope and luck should have nothing to do with the premeditated decision to use the state's authority to end a life.

To those of you who support the death penalty, I ask how sure do you want to be about a defendant's guilt before you would be willing to pull the trigger? Can you ever be sure enough of a guilty verdict that comes from the same system that put Troy Davis on death row?


I thought this case seemed like a good one to try to reach anyone I knew who supported the death penalty because it is such a typical case where eyewitness testimony is fuzzy and unsure, physical evidence is non-existent, and 18 years doesn't produce any certainty. This week, the Georgia Supreme Court essentially affirmed Mr. Davis' conviction. I guess they're ok with hoping we got it right. (The justices are apparently not within the reach of my internet rants.) The opinion is remarkably succinct, with a lot of pat language and very little substance. I just will never understand how people can be so cavalier about blowing off a case with such serious flaws. They've cut and pasted this guy's life away.

I've been speaking out against the death penalty since I was a kid. My mom raised me to be an abolitionist from a young age. In 4th grade, jean jackets with lots of buttons were all the rage. While I had the standard cartoon characters and slogan buttons, I also had anti-death penalty buttons displayed on my jacket. I've debated and spoken out at rallys and dedicated my career to criminal defense. Days like today make it hard to be hopeful that we can ever win this battle. How are we ever going to win over the public if we can't even get a state supreme court to care? I'm not saying I'm going to quit the fight. I'm just feeling like the fight will be nothing more than me banging my head against a wall for the rest of my life. (Anyone remember the episode of "The Practice" where Bobby Donnell literally banged his head on the wall in the courtroom? That was the truest courtroom scene I've ever seen on t.v. or in a movie!)

The death penalty just makes me sick. The way states impose it, the way people justify it, the way courts create excuses not to look too deeply into these cases. It's crazy to me that death penalty supporters don't see how warped they've become. How can they not be rational enough to see that this case doesn't pass the sniff test. Something is rotten and it should be looked at more closely. The GA Court wouldn't even give Davis a hearing on all his new evidence. Just sick.

I have no idea how to communicate with people who see no problem with the result in this case. Which is kind of a problem since those are the people we need to convince to get this stupid penalty abolished. Have I mentioned that I really, really hate the death penalty?

Random Notes

1. My poor dog just had a terrible night. She got her ears cleaned, she got a bath, and she got brushed. She really hates grooming, so that trifecta is torture for her. She took it like a trooper, though. Or she was so beaten down, she lost the will to fight. The best part, though, is that when it's all done, instead of hating me for doing all that stuff to her, she considers me her hero for uttering the magic words "All done!" And she loves me like crazy for giving her a treat (tonight she earned filet mignon, not just a teeth-cleaning-disguised-as-treat biscuit). You just can't beat the unconditional, all-forgiving love of a dog.

2. The dreaded birthday party encounter with Blah did indeed happen. She broached the why-haven't-you-fulfilled-your-purpose-as-a-woman-by-procreating topic. I said something about not caring to discuss such a personal topic in such a public setting. In spite of all my bluster, I was really going to let it go at that because, after all, she is a good friend of the birthday girl so I didn't want to make a scene. And my mother raised me to always be the bigger person, which I think would probably include not responding to an intrusive question with rudeness. But Blah did get chided nonetheless. SO's other sister (not the birthday girl) was in hearing distance. She gave one of those scoffing, are you nuts laughs and said maybe I didn't want to have kids at all and so what. I then said that career had always been my focus. In a surprising turn of events, Blah (who I might have to start referring to by a more respectful nickname) then expressed actual interest in what I really do and perhaps some understanding of why I haven't been in a hurry to start a family. (I found out later that birthday girl had also bluntly told Blah she was inappropriate in her questioning of me.) Blah expressed genuine remorse for being too forward and offered some insight into her own past that has left her with a stunted understanding of appropriate social boundaries. So the bottom line is that Blah and I may have reached an actual understanding. And without any margaritas being wasted.

3. I like it when prosecutors get called out publicly on their bad behavior. Too often, the public blames activist judges and evil defense lawyers for defendants being acquitted or convictions being overturned on appeal. In reality, prosecutors are the ones who have the most control over the case from charging to trial. If a case gets screwed up, it's usually the prosecutor to blame. I just wish the public was more interested in holding the prosecutors accountable! Reading newspaper articles about a prosecutor being chided by the judge in open court for discovery shenanigans might pique that public interest.

4. Tourney time is upon us. It was fun watching all the little conference teams winning their way into the big dance last week. And good job Georgia! That's a nice, feel-good story of a not so good team winning against incredible odds, probably in defense of their coach's job. But it's now time to get real. Cinderella is dead. A #1 seed is winning this thing. The Kansas Jayhawks are where it's at! This is the year! ROCK CHALK JAYHAWK!