Monday, March 31, 2008

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.

Wednesday, March 26, 2008

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.

Tuesday, March 25, 2008

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.

Monday, March 24, 2008

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.

Tuesday, March 18, 2008

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?

Sunday, March 16, 2008

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!

Friday, March 14, 2008

Why I hate the death penalty, Part 1 (of 764 and counting)

The death penalty brings out the absolute worst in people. Those advocating the execution of someone almost never say it's a necessary evil or express any hesitation about taking the life of another person. No, it's "fry the bastard!" And "don't waste another dime of taxpayer money keeping this pos alive!"

They're practically foaming at the mouth. You can sense the bloodlust boiling under the surface. they just can't wait to kill someone. And they come up with ugly, nasty, albeit creative ways to kill these wastes of oxygen (aka people).

I will never forget the scene outside Ted Bundy's execution. An ugly crowd had gathered to enjoy the festivities. They chanted. They sang. They had signs. The one I remembered was "McBundy Fries." They were gleeful at the death of another human being. My mother and I sat in our living room and cried at the display.

So I know the death penalty is wrong because anything that brings out this much ugliness must be bad. Maybe I wouldn't feel so strongly opposed to it if those in favor of it had the basic human decency to be really conflicted about. If they lost any sleep over it whatsoever. But they don't. They just want to kill, kill, kill. Well, that's nothing but premeditated, cold-blooded murder and I want no part of it.

Wednesday, March 12, 2008

I just saw a commercial that really ticked me off. Didn't catch who paid for it. It was urging Nancy Pelosi to pass the Senate's Terror Surveillance Bill. The crux of the commercial was that evil, almost-terrorist-herself Nancy Pelosi is helping terrorists by not jumping at the first chance to force this bill through and make everyone vote yes, yes, yes! The ominously-voiced narrator claimed that evil, almost-terrorist-herself Nancy Pelosi is making America unsafe from terrorists. She's killing us!

That's the familiar scare tactic that we've been hearing for years now. The evil, almost-terrorist-themselves Democrats are allowing terrorists to run free throughout the country! They must be stopped before we all die. What can they do to stop helping terrorists? Pass any and every piece of legislation related to "national security" that is offered by the administration. Don't read the legislation too closely or ask any questions. Don't offer any changes or additions. And for heaven's sake, don't do any critical thinking about whether the legislation is necessary or antithetical to our core American values! Just pass the damn thing!

But let's think critically about what this ad is suggesting. The ad is suggesting that Nancy Pelosi is making the US unsafe by not passing legislation that authorizes the government to spy on telephone calls and e-mails (including those involving US citizens). By not being quick to allow the FBI to spy on us, Nancy Pelosi is letting the terrorists win!

Seriously? I'm calling Bullshit on that. I don't actually believe that I'm any less safe because this bill hasn't passed. Even if I would be safer, I'm still not convinced that compromising our principles is worth that tiny little extra bit of security. But either way, I'm really sick of this administration's constant drumbeat of anyone who opposes, or even questions, our tactics is against us. Nancy Pelosi is not the enemy for not immediately bowing and scraping to the will of one of the most unpopular presidents ever. I am not the enemy for not wanting my government to think it can spy on my international phone calls and e-mails. The enemies are the guys who fly our planes into our buildings. Nancy Pelosi and I are most definitely not on their side just because we question your methods. So stop airing commercials implying that we're almost terrorists ourselves.
They say you can pick your friends but you can't pick your family. The corollary to that, though, is that you've got no say in your friends' families. Or in your friends' families' friends. In that wider circle are always some people that we would never choose to spend time with, but that one is the sister-in-law of that one's boyfriend's cousin... (Picture Kristy Swanson in Ferris) So we can try our best to surround ourselves with good friends, we will still inevitably occasionally be forced to spend time with the circle of people that come with our friends.

I am gearing up to see one of those people this weekend at my SO's sister's birthday party. The sister has a friend that I don't care for. I can't stand her. She's awful. I've only met her two or three times, but that woman has seriously pissed me off every time. For purposes of this vent, I will call her Blah (in a nod to HIMYM).

Blah and I have nothing in common. She has always lived in a small town. I am a suburban to small city gal. I read a lot of books; I don't think she reads much. I think we also have different ideas about what the ultimate goal of life (especially a woman's life) is. And I'll just be honest here: her personality is really unappealing to me. She's loud and obnoxious and inserts herself into everything. I really hate it when people don't know their place so don't know that they should step back from something rather than trying to be in charge yet again. Oh, and she's like 6 years younger than me but talks down to me like she's the voice of wisdom and experience that I must learn from. So I really don't appreciate getting unsolicited advice from her. But she gives it all the time.

This is all to set up for explaining my big issue with Blah. Last summer, I saw her at another family function. She took it upon herself to ask me (a woman she had only met once before) when my SO and I were going to have a kid. (Never mind that we're not even engaged. Marriage is not the goal. Kids are. They are the only thing that can bring fulfillment to a woman.) She asked this loudly. In front of SO's entire immediate family, his grandparents, and at least two cousins. I think an aunt was there, too. Naturally, I was less than pleased with her. This kind of question requires delicacy and tact when it is asked by a very close friend or family member. It is totally out of line from a virtual stranger. Especially in that circumstance. And since it's a question that everyone in both of our families is secretly dying to ask!

Answering the question the way I wanted to (along the lines of "Step off, bitch! That's none of your damn business.") would probably only have made his family more interested in pursuing the inappropriate topic. So I just tried to make a joke of it. I said something like, "I work too hard on my body to spoil it with a pregnancy." I hoped this would be just outrageous enough that she wouldn't broach that subject with me again.

But she did. Turns out, she took me very seriously. I think she really thinks my life is sad and empty and will remain so until I have a child. It matters not that I have a successful career and own my own home. I must procreate or I will have failed as a woman! (Are you seeing why I don't much care for this woman? Cattiness alert: it's not my fault she has no identity outside of her kids.) So the next time we were at another family function, she pursued the subject with me. She told me I have the body of a goddess. Umm... thank you? I just thought that remark was kind of creepy. But her point was that I should not worry about wrecking my body with a pregnancy. Sigh. Here we go again. I really don't remember how I got out of the conversation that time, but I do think I made SO act as my buffer.

I was really mad at myself both times. I wish I'd just told her to butt out. I don't think it's rude to tell people I think their question is rude, inappropriate, and far too personal. In principle. But I just couldn't seem to put that into practice. My goal for this Saturday is to do a better job of sticking up for myself. If she tries to broach that subject with me again, I'm gonna tell her off! I have to. I don't think I can tolerate any more of these family functions with her until I do. If I'm stuck being in this same extended circle with her, I have to find some way to make that tolerable. Telling her off after I've got a couple of margaritas in me should do it. I just hope I don't dump a margarita on her...

Monday, March 10, 2008

It's the most wonderful time of the year!

San Diego is gonna pull it off. Only once since 1999 has Gonzaga not won the West Coast Conference tournament. So it's pretty exciting for the rest of the conference to see someone, anyone, else win. San Diego clearly needed this win more. Gonzaga is already a lock to get into the big dance.

It's pretty hard for me to rant at this time of the year. I love Championship Week. It is an excellent precursor to the greatest sporting event of them all: the NCAA Tournament. (Well, ask me in August and I'll tell you it's the US Open.) My dog is curled up next to me, I have a glass of wine, and I've got a host of meaningful basketball games to choose from on t.v. What's great about these tournaments is that this is the only experience of winning that these college players get. To them, merely getting to the Big Dance (which we in the power conferences take for granted) is the end. They put up banners in their gym just to commemorate the year they won their little conference's tournament, earning them the right to get trounced by a top-ranked national power.

Oh, there's a rant topic! The supposedly knowledgeable announcers just said that San Diego only had 5 seconds to get the ball over the half-court line after the ball had been knocked out of bounds. I could explain the whole situation in detail, but I won't bore you. Just take me at my word (I am always right, after all) when I say that the announcers were not correct. San Diego had 10 seconds to get the ball into the front court. A lot of basketball watchers do think the announcers were right because this particular scenario is not well understood. But I really think college basketball announcers, paid by ESPN for their expertise and insight into the game, probably ought to know the dang rules. (As I was typing this, San Diego finished the win. They better get their dancing shoes ready!)

That really wasn't that much of a rant, was it? I went to see my parents this weekend and treated them to a fine outburst, with many f-bombs. But I'm just not up to it tonight. It's harder to sustain any fury while typing. And while drinking wine. And while petting a sleeping pup.

There is still injustice in the world (and I don't just mean the way Cal was robbed against UCLA this weekend), but it's harder to focus on once I've been bitten by the Madness. I have to focus on getting all of my team shirts clean, painting my nails in team colors, and keeping track of brackets. Maybe this week I'll be able to write out a better articulated version of the rant my parents heard. But for now, I'm going to enjoy a few rant-free days.

Thursday, March 6, 2008

If loving my rights is wrong...

The Constitution grants me certain rights. I think I'll keep them. And I'll invoke them whenever the heck I want, thank you very much! That's not because I'm up to something or because I have something to hide. It's just because I can. Many, many people fought long and hard so I could have those rights. I would never disrespect those generations of revolutionaries and martyrs by giving my rights away.

So it infuriates me when people suggest that those of us interested in protecting our rights are in the wrong. The 4th Amendment for example. Many people claim that they wouldn't mind if the police searched them, their car, or their home because they have nothing to hide. (I call BS on that because I seriously doubt most people would be happy to have cops poking around their underwear drawer. But that is not the subject of today's rant.) They suggest that I could have no possible complaint to a search if the police won't find any evidence of a crime.

For example I don't think the police should have blanket authority to conduct drug tests on all drivers at all "serious" accidents. I think that would create a series of bodily searches that would be conducted without any probable cause that the subject of the search had committed the crime of driving while impaired.

Why do people insist on responding that it shouldn't be a problem for me if I don't do illegal drugs? Well, I don't do illegal drugs. I doubt I would ever even have an opiate show up as my experience with prescription narcotic pain killers was not good. I hope never to take pain killers like that again. But I still object to having my blood drawn without a warrant. In fact, I strenuously object!

The 4th Amendment tells me my government can't just barge into my car, my house, or my bloodstream. They have to leave me alone unless they can establish that they have a sound basis for believing I've committed a crime. Since I don't like cops and I like to be left alone, I fully embrace this amendment. I think it rocks. I also really like that 5th Amendment right to silence thing. You want to ask me questions, eh Cop? Well, I don't want to answer! This lovely document that really smart men wrote over 200 years ago says I don't have to.

Attributing some nefarious motive to those of us interested in protecting against further encroachments on our 4th Amendment rights is just damn un-American. It's wrong and it's stupid and I'm sick of it. If you want to open up your affairs to the prying eyes of the police, then that's your choice. But I choose differently so stop trying to give my rights away with yours.

Wednesday, March 5, 2008

PR's over. How long until Top Chef?

Christian? Seriously? I just don't get it. I thought his line was dark, repetitive, and way overdone. Only one pair of pants that a normal woman could even hope to wear. Yes, he's talented and exuberant, but he's so young and immature and I have felt all season that his work reflects that. When he refines that talent and exuberance into more edited designs (with maybe a little variation of style and color), then he'll be truly fierce. But for right now, I'll just stick with Jillian's amazing coats and adorable sweaters. I mean, that gray sweater with the holes was fantastic! Where can I buy it right now?
Sometimes, courts just really piss me off. I mean, they can do some awful, result-oriented, intellectually dishonest things. Like today, something unbelievably unjust was done (which the general public thinks was a great justice, adding to my burning rage). But I'm not really allowed to let the world know the full extent of my outrage. I can run around my office yelling, swearing, and gesturing madly in a vain effort to burn off some frustration. But the next time I see the court, I can't tell them off. (Sometimes, they definitely need a good telling off!)

I am expected always to be respectful to all judges in all settings. Even if I see a judge who everyone agrees is discourteous from the bench, lacks any sense of decorum, and blatantly disregards the law, I'm still supposed to keep a smile on my face and say, "Thank you, judge." I could face contempt or even potentially an ethical complaint for snapping, yelling, or doing what I really want (which could involve lots of swear words and thrown objects).

Well, that's just not me. I've never been good at kissing ass. I'm loud and opinionated and I don't defer to anyone else. I'm always right so I'm not good at accepting authority figures who do not do things the way I believe they should. So having to bite my tongue when I'm really fucking angry about a judicial decision is a struggle for me. I desperately want to get up on a rooftop and shout it out everywhere that the court royally fucked up and did a tremendous injustice. But I also kind of want to keep my law license and keep the illusion with judges that I'm a nice, respectful lawyer. So I'll refrain from writing about the situation on message boards and from telling every passing stranger on the street how much the court sucks. I'll just have to be satisfied with my ranting to my choir of co-workers. And the next time I appear in court, I will put on my best docile, respectful smile and say, "Yes, judge. Thank you, judge." But I'll be seething on the inside. And maybe I'll break out the voodoo kit when I get back to my office.

I'm gonna just let this go now and watch the finale of Project Runway. Go Jillian!

Tuesday, March 4, 2008

Sure, give defendants a fair trial. Wait, that means they get to challenge the state's experts?

The more I learn about juries, the more convinced I am that the jury system is hopelessly weighted against defendants. And that the general public thinks it should be this way. The niceties of a trial are just a show we go through before we rubber stamp the prosecutor's charge. Apparently, juries aren't interested in hearing any real challenge to the state's evidence. Especially if it comes in the form of a private expert hired by the defense.

I heard from a juror who had just finished serving on a DUI jury that was unable to reach a verdict. The defense at trial was that the defendant was not under the influence. Defense counsel hired an expert to testify about the effects of certain medications that the defendant was on. These medications would have side effects that would make it difficult for the defendant to pass field sobriety tests. The juror reported that several of his colleagues felt it was not fair that the defendant was allowed to hire an expert. I was not able to speak to the juror in depth to get any sense of why these other jurors felt that way. (But I wonder if those jurors felt it was unfair to pit a fancy, hired expert against the poor lowly police officer who conducted the field sobriety tests?)

Then today, I was reading an article about a murder trial. The state brought in an analyst from the state lab to testify that hairs found at the purported crime scene were "microscopically similar" to the victim's hair. Now, anyone who knows anything about hair analysis knows that the analyst's testimony is meaningless fluff. Any two hairs can appear "microscopically similar." Under a microscope, it can be impossible to tell the difference between a dog's hair and a human hair. But to the general public, "microscopically similar" sounds pretty good. Naturally, the defense brought in an expert to testify that the state's "hair evdence" was irrelevant. The article points out that on cross-examination, the witness acknowledged he was paid $5000 to testify. The prosecutor elicited this testimony in the expectation that this one point would completely discredit this witness in the eyes of the jury.

Sadly, based on the jury experience I related above, the prosecutor is probably right. Juries do seem to think that if defense attorneys pay for the testimony, it's worthless. Ph.D.s and medical doctors have no qualms about testifying however we defense attorneys tell them to as long as we pay them. After all, if they'll testify for criminal defendants, they must not have any code of ethics. Even perjury is nothing to them.

This, of course, is nonsense. Academics and scientists at private companies are not interested in lying to assist criminal defendants. They have no desire to risk their reputations or even careers for a few extra thousand bucks. Yet people around the country (you know, jury pools) continue to think defense witnesses are just lying money whores. (Of course, they'll take the word of the convicted felon who claims the defendant confessed to them in prison and then gets a big ol' sentence reduction from the state, but that's a different rant.)

Shame on prosecutors across this country for perpetuating this myth that defense witnesses who are paid are not to be believed. I've never encountered a defense expert who was not asked on cross-examination exactly how much he or she was paid to testify. As if that should invalidate all of the expert's testimony. But prosecutors know better! They have to. If defendants have a need to provide expert testimony to counter claims put on by the state, they have to hire experts. There is no alternative. And there's nothing wrong with it. Nothing sneaky or underhanded. And nothing dishonest about the resulting testimony.

While a criminal defendant can compel material witnesses to testify, that doesn't apply to an expert. A defendant can subpoena an alibi witness or an eyewitness who described somebody who doesn't match the defendant's description. Those witnesses have specific, personal knowledge that no other person has. When the defense wants an outside expert to re-examine the work of the state crime lab analyst, subpoena power just don't apply. A defendant can't force a person with no previous connection to the case to become a part of it. No court will force an independent forensic analyst to take time away from his or her work to take part in a criminal case. If the defense wants an expert, they have to pay.

Experts are just being fairly compensated for their time. No one works for free. When you go to the doctor, she's not treating you just out of the goodness of her heart. She is paid for her time. The vet, the plumber, the hairstylist are all experts in their field who provide a service and get paid fairly for it. The forensic analyst who testified in today's murder trial was not paid for his opinion - he was paid for his time.

The secret they don't tell the public is the state's experts are also paid. The state's experts come from the state crime lab and the medical examiner's office. They get paid through their salary because testing evidence and reporting on the results is part of their job! Defense attorneys, though, are generally not allowed to point this out to juries. The state has a monopoly on access to the state crime labs and all their experts and they get to make it look like those people aren't paid for their time. The state's experts really do just testify because of their pure spirits and their interest in justice. Or so the state would have the public believe. Much to my horror, it appears that the public falls for it, hook, line, and sinker.

It isn't true and it just isn't fair. The state gets to use the full weight of its resources into putting a defendant in prison. It's only fair that the defendant gets to counter those resources with experts and evidence of his own. Just like the state, the defendant has to pay for the testing and analysis and time of those witnesses. So why should it be held against the defendant that he has paid for his expert? It shouldn't.

And I would submit that if the best rebuttal a prosecutor can come up with to the defense expert's testimony is, "You're getting paid for your time here today, aren't you?." the prosecution doesn't have a rebuttal to that testimony. If that's all the prosecution has, that defense expert must be on to something.

Sunday, March 2, 2008

The other day, I got into one of those conversations that all public defenders get sucked into. This one led off with a non-lawyer asking me, "How many times do you get a client back after you've gotten him off on a technicality?"

Now, having gone to law school, I no longer simply answer questions as they are asked. If I think the question you have asked me would require me to accept an unfair assumption, I will challenge that assumption. If your question involves essential terms, I will clarify what you think those terms mean. There's no sense in my answering your question if we aren't on the same page about what the words we are using mean.

So I asked this Guy, "What do you mean by technicality? Do you mean a violation of a constitutional right?" (I was both clarifying his term "technicality" and challenging the unstated assumption that obviously-guilty people get away with crimes based on minor things that shouldn't matter.)

He said, "You know. When they arrest a guy and know he did it, but the evidence gets thrown out."

"Because it was obtained illegally, in violation of the 4th Amendment?" I asked.

"I don't know what that is." (Good lord, what are we teaching people these days? Don't we care enough about our constitutional rights to know what the hell they are? I really didn't mean to sound like a pretentious, superior bitch. I just assume people know what the 4th Amendment is. If I make college-educated (hell, high school-educated) people feel stupid for not knowing what the 4th Amendment is, well good. They are stupid.)

He was getting a little frustrated with my questions, even though I was just trying to understand what he thought a "technicality" is. He then suggested that it would be a technciality anytime we had a video of the defendant committing the crime but the defendant still couldn't be convicted.

Now, I will admit, I got a little lawyerly. "How do you know the videotape is accurate? Hasn't been tampered with?"

Guy retorted, "I'm a tech guy, so I would know." Well, no you wouldn't because you would never have access to the tape to examine it. But, I digress.

Guy, like a lot of people who express strong opinions, didn't really like being asked to think his opinion through. He believes it is wrong for criminals to get off on "technicalities." He believes it strongly. But don't ask him what he thinks a technicality is. Don't ask him how he knows someone is guilty before that defendant has been convicted at a trial with properly-obtained and tested evidence. Don't ask him how he knows someone is guilty before witnesses' memories and credibility have been tested by cross-examination. If you ask him to think about these things, you're just "lawyering" him.

Is it really too much to ask that people think through their opinions? Is it to much to ask that they be able to state a logical explanation for their opinions? Apparently it is. Because people just want to react emotionally, with much indignation about "criminals getting off" without thinking through the whole process.

So let me spell it out for you. We have a process for a reason. Yes, police investigate crimes and prosecutors charge people so it is safe to assume that those law enforcement officers have some basis for thinking the defendant committed the crime. But nothing the state thinks is true has been tested yet. So we test it by these rules, probably the things Guy and folks like him think are technicalities.

My client confessed, you say? But did he know he didn't have to talk to you Mr. Detective? That he could have a lawyer? Did you police coerce him to confess in some way? If it's no, no, or yes, the court will rule the confession cannot be admitted at trial. You may say that's a technicality. I say, if the confessor was badgered or felt tremendous police pressure to tell them something, then how can we say that confession is reliable?

You found drugs on my client, you say? But you had no legal basis for searching him so that evidence will be thrown out of court. Technicality, you say. I say, if you would search my client illegally, what other laws would you break? Like lying under oath or planting evidence perhaps?

These "technicalities" as you call them are procedural rules (usually based in the Bill of Rights) that help ensure evidence is accurate and reliable. If the state didn't follow the proper rules and procedures to get the evidence, the evidence itself shouldn't be trusted. If you accept the evidence as true before examining the process by which the evidence was obtained, you're putting the cart before the horse.

So that's why we have all these "technicalities" like the 4th Amendment (protecting us against illegal searches), and speedy trial rules, and rights to lawyers, and rights to public trials, and rules of evidence. And if one of those technical rules is broken, then hell yea, the defendant should get off. Because those rules are all necessary to make sure that the guy that at first glance appears to be guilty, really, really is guilty.

Saturday, March 1, 2008

a no rant day?

I don't think I have anything to rant about today. It's 70 degrees and sunny. It's the first day of March, which always feels like the unofficial beginning of spring to me. My dog is really happy to play outside. I'm really happy to sit outside and watch her while "reading my book" (code for daydreaming).

The only thing to mar my day so far is that Duke won. Fucking Duke. They were losing to NC State all game long until the very end when their jack-up-3s-all-game strategy worked because they hit like three in a row. Then they got a horrible call. NC State player was called for a defensive foul. The replay clearly showed that the only contact was a hook arm by the offensive player, which should always be called as an offensive foul. Down by 1, the damn Dukie stepped up and hit both free throws. Duke wins. Fucking Duke.

Guess I could find something to rant about.
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