Wednesday, April 30, 2008

Birth of a defender

In 6th grade, we switched from reading groups to individualized reading. Each week, we had to read one book and report to the teacher on it. Every student was assigned to a day, 5 students per day. So we each got about 12 minutes of face time with the teacher to talk enough about the book to prove that we'd read it. While I read a lot of Newbery winners, I also subjected poor Mr. H to every book in the Anne of Green Gables series (all 8 of them, plus the two Chronicles of Avonlea) and quite a few Louisa May Alcott's. Then I threw in Gone With the Wind (read over a holiday, so I had more than one week to read the 1037 pages).

One day in spring, Mr. H told me he wanted to choose my next book for me. He had a small collection of books in his classroom. He went to the shelf and pulled off a shiny, brand-new book. No stains, no folded pages, and not even a hint of a crease on the spine. "I've had this book in my classroom for a long time," he told me, "but I've never had a student who was ready for it. I think you're ready for it." He told me this was his favorite book.

To an 11 year-old, those words were magic. I wasn't just being given an assignment; I was being trusted with a great responsibility. My beloved teacher wanted to share his favorite book with me, and only me. He thought I would love his favorite book just as he did. Now, I'm sure he made suggestions to all his other students as well, but he had never shared this book with anyone. The proof was in the pristine cover. I was his chosen one. I had to take the responsibility of reading and appreciating this special book seriously, as seriously as I had ever taken anything. I had to justify his faith in me.

I don't know what my parents thought when I came home that evening and started reading "To Kill a Mockingbird." They had let me read "Gone With the Wind" so they really couldn't have thought this new book was too mature for me. Still, I'm not sure it's a book most parents think of for a 6th grader.

It took a while for me to get really into it. Scout annoyed me at first. I much preferred her brother, but she kept getting in the way. It really picked up for me when the criminal case started, naturally. I couldn't believe the way the rest of the town responded to Atticus taking the case. Mom took the opportunity to explain to me a little bit more about how things had been in the 30s, when her own mother was a young woman. I had some knowledge of slavery, of course, but I don't think I had a real comprehension of actual people being cruel to actual other people just because their skin was different. That was a bit of an eye-opener.

I remember like it was yesterday the day I read the trial. Mom interrupted me for dinner. I ran down the stairs to set the table, elated because Atticus Finch had proved his case. He'd just absolutely proved it. Tom didn't rape anyone. Atticus didn't just prove that Tom didn't do it, he proved what really happened. I was so excited that Tom would be freed and was dying to find out what would happen afterwards. Everyone in town who had been mean to the Finches would apologize, right? That mean girl who accused Tom and her meaner dad would be punished, right? Mom gave nothing away, but she had to be dreading what would come next. It can't be easy to send your child back to something, knowing her heart is about to be broken.

You all know what happened. The jury convicted, Tom got shot, and one future public defender was born. "How could they have convicted him when they knew he didn't do it?" I cried to my mother. "Times were just different then," she responded, not really having any better explanation. "Well, I'm not going to let it happen anymore," I told her. You can say things like that when you're 11 without people laughing at you for being a naive fool. Not to your face, anyway. Mom may have chuckled with Dad about it later, but she would never have discouraged me from believing I could save the world from injustice.

When people ask me why I do what I do, I usually start with this story. I probably was going to be a defender-type anyway. I always stuck up for the underdog or the misunderstood one or the one who caused trouble. I always wanted to give people the benefit of the doubt and a chance to explain their side. But this book went a long way to showing me the career path I should take if I really wanted to stick up for people who didn't have anyone else.

I haven't seen Mr. H in well over 20 years. I'm sure he's retired by now. I sometimes wonder if he ever found another student to share his favorite book with. I wonder if he still remembers the first one he gave it to. I know I will always remember him. I wish I could find him somewhere and tell him this story. I would love for him to know that by sharing his favorite book with me, he helped me find the career that makes me feel I have a purpose in life. I would love for him to know that I got the message of the book and I took it to heart. I would love for him to know that his faith in me was justified.

More on prosecutors

There has been some discussion in the pd blog world about that post by a prosecutor. (You know which one I mean... the one that calls defense attorneys liars.) Gideon and Simple Justice both responded with their own posts. I, though, just went to his blog and responded in comments. I may have been a bit harsh (given my tendency to rant and all), but he invited responses and he admitted his post disparaged defense attorneys, so I can't feel too bad about using the word "absurd" more than once.

My biggest problem with his post is that we really shouldn't have to deal with that kind of attitude from prosecutors. I can accept that sometimes the public doesn't get what we do and may think poorly of us for standing beside some of the people we do. But I expect more from a fellow lawyer working in the criminal justice system. I expect better. I expect a prosecutor to understand and not just to accept what we do as necessary, but to respect us for it. I am still shocked when confronted with the opposite reaction. (Surely, one of these days, Nancy Grace will acknowledge the important and noble work that defense attorneys do, right?)

My friend and colleague wanted to give Western Justice the benefit of the doubt and find a way to interpret his post in a less obnoxious, less offensive way. She's optimistic that way. She responds that I'm optimistic in a different way because when I read opinions on the internet that I think are wrong or offensive, I take those opinions on and respond. She says I'm optimistic because I still think I can change hearts and minds. I'd like to think that our differing forms of optimism will keep us both hopeful when it would be easy to sink into cynicism. But despite our mutual optimism, I'm still pretty upset about WJ's labeling us as liars. (Yes, he said "lie promoters," but let's be honest about what that really means.)

His post seems to be based on some pretty basic and wrong assumptions that a criminal lawyer ought not to have. First, he assumes that there are times and cases where he can absolutely know the "truth" of a situation before heading to trial. But isn't that the purpose of the trial: to put all the competing stories out there, test them, and see which one survives? I recognize that prosecutors need to believe that they have the right story heading into trial because otherwise they would be putting an innocent defendant through a ciminal trial. Most people want to believe they're better people than that. But they ought to understand that we have a different story to tell. As is the case whenever two people report on the same incident, the "truth" is usually somewhere in the middle. I really do expect prosecutors to understand this basic truth about humans and as a result be willing to have some of his/her pre-set notions about a case be changed, even a little, during the course of a trial.

WJ's comments also require him (or her, I don't actually know) to assume that there must be times and cases where we just don't believe our clients. This idea was one of the reasons I listed in my post about why I hate prosecutors. I think they overestimate how often we disbelieve our clients, dislike them, or just plain think they should lose on all points. But that's just not the case. I usually like my clients, even when I think they're full of crap, which frankly isn't all that often. Usually, I just think they're basically ok people who got caught in a bad situation or made a (sometimes admittedly huge) mistake. I pointed out to WJ that we actually are entitled to believe our clients. So we're not automatically liars just because we put forward a story that differs from the police version or the complaining witness' testimony. (Just like prosecutors aren't automatically promoting lies by putting cops on the stand at suppression hearings...)

I think it is absolutely fair for us not to have to deal with these kinds of wrong-headed assumptions from prosecutors. We're all part of the same system. We ought to respect each other's roles and understand the important differences between them. I shouldn't have to educate a prosecutor about what my role is and why I don't have some of the same constraints a prosecutor has. And I shouldn't have to remind a prosecutor that just because my role in a trial isn't to get at the "truth," that doesn't mean the same applies to him. A prosecutor should be open to finding the actual, full, and complete "truth" at trial, even when that truth is that my client, the defendant you've decided to prosecute, isn't a total lying piece of shit wasting taxpayer money and your time by contesting his guilt. Hell, sometimes he really isn't that bad. And sometimes, he just really isn't guilty at all. In that case, prosecutor, are you a liar? I didn't think so.

Friday, April 25, 2008

More adult absurdity

They're at it again. An area prosecutor wants to try a 13 year-old as an adult. For murder. It defies all logic. I know I posted this rant a few days ago, but this kind of nonsense just really makes my blood boil. A 13 year-old can't have lawful sexual contact of any kind. A 13 year-old can't enter into a meaningful contract. A 13 year-old can't even choose which parent to live with in a divorce. See, these things all involve adult decisions and in these realms we recognize that even a very mature 13 year-old still just doesn't have the tools and skills necessary to make reliable decisions. The choices the kid makes in these situations are just void as a matter of law.

Yet, when it comes to deciding how to respond to a 13 year-old who does something bad, all of a sudden we forget all the very valid reasons that we have for treating kids who engage in adult activities like kids. We intervene when kids try to engage in adult activities, like sex or signing contracts, because we, the adults, know that no matter how smart and wise the kids think they are, they're simply incapable of understanding all of the possible consequences of their actions. They may understand on the surface that sex can lead to disease or pregnancy. They may understand that firing a gun at someone can kill them. But they generally can't understand the permanence of these things. The enormity and finality of them. Engaging in adult activities doesn't make them adults: it makes them kids in over their heads.

So it really shouldn't matter what crime the 13 year-old is accused of committing. The severity of the crime shouldn't factor into the equation at all. What should matter is the kid's age and individual characteristics. At 13, a kid is just flat too young to be thrown away in the adult criminal justice system. I am unwilling to condemn a kid to life in prison when he is too young to have made a fully developed, rational, knowing decision to commit murder. The mere fact that he committed the murder (speaking hypothetically here; the actual child is, of course, innocent unless proven guilty!) does not even begin to prove that adult decision-making preceded that action.

There are legitimate alternatives to change the path of this kid's development. Pursue the case as a juvenile case, and the state can have custody of him, in correctional and rehabitational facilities, for at least 9 years. If that seems woefully short for murder, keep in mind that that is almost half of his life. Think how much you grew and developed between 13 and 22. Let's just give it a shot and see if by age 22, we can have helped this kid change into a person who can be a solid, respectable, and productive member of society. Or they could pursue it as an extended juvenile jurisdiction case. This would give the state the option to switch him to an adult punishment once he actually reaches adulthood if he violates the terms of his juvenile punishment. It's a happy medium between the juvenile and adult systems.

Aren't those options preferable to saying this kid blew his one and only chance at life with one bad decision at the age of 13? Yes, it was a really, really bad decision with very permanent consequences. But no 13 year-old should ever be sentenced to life in an adult prison (the mandatory prison term for an adult murder conviction). That's just absurd.

UPDATE: The DA proclaims that this kid just cannot be rehabilitated. Despite the fact that we have no evidence this kid has any prior history of criminal activity. What an unbelievably cynical and hopeless attitude from the county's top prosecutor. Another reason why I don't ever want to be a prosecutor: I do not ever want to be able to write off another human being (and a child, no less) that easily.

Wednesday, April 23, 2008

Her mother's keeper?

Scenario: A large pick-up truck speeds through a construction zone on a 2 lane highway, driving recklessly on the shoulder. About 20 minutes later, the truck comes back the other direction, again speeding and not staying in the one open lane. The truck strikes 3 construction workers, killing 2 of them. State troopers find the truck and begin a chase. The passenger in the car, adult daughter of the driver, calls 911. She is scared, not sure what's going on, and concerned that the troopers might shoot her mother. The truck is eventually stopped using stop sticks. Both women are taken to the county jail.

I read all of the major newspapers in the state and they all have pretty robust discussion boards. The day this story broke, I couldn't stop myself from participating in the discussion. The thing that struck me was that all of the commenters expressed horror at what "they" had done. All commenters wanted "them" locked up forever.

I posted that I found it interesting how many people were lumping them together as if the driver and passenger are equally responsible. Some people agreed with me. She was not in control of the car (there was never any dispute or question about who was driving). Furthermore, she did the only thing she really could do: she called 911. Isn't that what we ask of bystanders to crime? You don't need to handle the offender yourself. Report it to the trained professionals and let them take over.

Some people, though, were just sure the passenger was just as guilty as the driver. I was frankly shocked at the level of vitriol aimed at the passenger. She was guilty just for being in the car. She was guilty for being related to the mother. She was guilty based on the comments she made to reporters after she'd been arrested, put in an orange jumpsuit, and handcuffed. She said it was an accident and her mother didn't mean to hit anything. Clearly, she must be just as bad as her mother.

Very few posters were at all willing to put themselves in her shoes. They would not feel any sympathy for a young woman, raised by an unstable mother, who had just seen her mother plow over two men and then been chased by police for 10 miles. They just wanted to blame as many people as they possibly could with no thought.

When I did try to push them to think about some kind of principled way to apply aider and abettor liability, they all resisted, yelling at me for coming up with crazy "what ifs" to distract from the real issue. But I just wanted people to stop and think before assigning criminal liability willy-nilly. See, I think that we should at least try to formulate some principles of liability outside of the facts of a particular case rather than making things up on the fly in response to new incidents.

So I asked some posters what they think the passenger should have done to disclaim liability for the driver's actions. People suggested all kinds of ridiculous things. Pull the keys out of the ignition! (Um, physically impossible to do as the key locks until the car is back in park.) Grab control of the wheel! (Great idea at 70+ miles per hour.) Downshift the gears! (Again, no risk of danger there...) Of course, no one acknowledged the validity of my point that it's fundamentally unfair to require a person to place him or herself in personal danger to avoid being held liable for someone else's crime. People just continued to rail about the daughter's terrible immorality. Her incredible culpability for "sitting back and watching" her mother kill two people and for not stopping it.

So, here's my rant. People are so quick to judge and so utterly unwilling to put thought into it before reaching their snap conclusions. All I ask of people is to think a little bit before reaching your unshakeable conclusion. If your conclusion doesn't stand up to a little testing, acknowledge it and acknowledge that you probably need to rethink your conclusion. And before you judge a person for how she acted in a situation, do your damndest to put yourself in her position and be just a little honest about how you would have acted. I know, that's not as much fun, but try it. Instead of telling everybody that you're a better person than anyone else, you might actually become a better person!

As for the ever-increasing reliance on guilt by association: STOP IT! A daughter should not have to disown her crazy mother to avoid being held responsible for the mother's crimes. Talk about immoral. Let's please, please, please stop holding all people near a crime equally responsible. Yes, sometimes it can be hard work to sift through the facts and figure out who is culpable for what, but that's the prosecutor's job! And ultimately the jury's. We shouldn't just stop doing it at all because it's hard.

A person isn't responsible for the actions of the driver just because she's a passenger in the same car. A guy hanging out with a friend isn't responsible for murder just because his friend pulls out a gun and shoots someone. Aiding and abetting is more than being in the presence of the criminal! It's supposed to be, anyway. Courts have been hideously sliding on this point in recent years, allowing juries to infer the bystander's guilt just from his mere presence. That is just wrong. It's allowing the state to avoid its burden of proving intent. It's allowing juries to find everyone there guilty, which is so much easier than doing the critical thinking necessary to consider each individual defendant's actual culpability. But we really do owe it to all potential defendants to do the hard work. It isn't just or fair to lump everyone in together. Not in a criminal justice system that is supposed to provide due process to each individual.

The good news is that two different county attorneys could have tried to charge the daughter and see if a jury would find her guilty. Neither did. What a concept, eh? Prosecutors actually using their discretion not to charge someone that shouldn't be held criminally liable, but probably would have been by a jury. Of course, people are still complaining bitterly that the daughter got away with it...
I have fleshed out some more coherent ideas about the raid on the famous YFZ ranch in Texas. I am frankly ashamed of myself for not being more clear and more emphatic before that I believe the raid was unconstitutional. You simply cannot authorize a search of how ever many buildings and homes based on one phone call made by an unidentified person. I understand that this is a difficult community to investigate for many reasons: the large, interconnected families that all have the same names; their reticence about talking to the outside world, especially authority figures they may fear will prosecute them for polygamy; who knows what other cultural divides may make communication difficult. But, still, there are birth records. Tax returns, welfare and medicaid applications. There has to be some way to investigate one person's claim of abuse in this community short of searching every single building and removing every person under 18 from the ranch. They do have some contact with the outside world, employers, teachers, the clerks at stores they frequent, etc.

It's really outrageous that there doesn't seem to be more public outrage about the raid. I wonder if the general public is a bit more accepting of searches in a post-911 world. That seems a bit simplistic as an explanation, but I do believe, in general, people are becoming more and more willing to tolerate what I would consider to be unconstitutional searches. (I posted on that topic a few weeks ago.) I also think public distaste for the FLDS makes the public far more tolerant of a raid on the community. They dress weird and talk weird and believe weird things. Stories about the FLDS communiy in Colorado City, Arizona and Hilldale, Utah have been reported on various newscasts over the years. (Most of the people now living at the YFZ ranch came from those twin towns.) Flora Jessop, who escaped from that area years ago, has been interviewed many times, publicizing her stories of abuse. Carolyn Jessop wrote a book about her difficulty in leaving the community. Warren Jeffs, the prophet of the FLDS, has been pursued by several law enforcement agencies and has now been convicted of rape in one state. So perhaps people just think this nutty community needs to be investigated for rampant abuse and don't care too much about the technicalities of how that investigation occurs. After all, we don't live that way, so it's not like the state could investigate us in such a sweeping fashion.

I think public opinion about the raid might swing in the FLDS' favor if more people became aware that the phone call that started it all appears to have been a hoax. Flora Jessop received several phone calls from the alleged "Sarah" but seemed to figure out the caller's story didn't add up. Nonetheless, she reported the call to authorities in case there was some truth. A woman in Colorado has now been charged with a crime of false reporting that seems to support the idea that Flora's caller was making up her story. So a real question now is, if the police who heard from Flora about this caller (and I'm not clear on whether any police or other groups also received calls from "Sarah") had any idea that it could be a hoax. The interview I saw with Flora made me believe she also reported her suspicions about the caller when she reported the call.

Now, if the police who sought out the search warrant knew or had reason to suspect that the caller was a hoax, there would be a HUGE problem with the warrant, even beyond the lack of particularity in identifying which buildings to search. That is an issue that I hope the media really pursues, to figure out if police officers were deceptive in applying for the warrant.

So, to sum up, I have serious concerns that the search was unconstitutional in its breadth and because of a lack of credible evidence to support a finding of probable cause. I am also concerned that the public's distaste for this particular community makes the state's overreaching palatable. The way they've seriously bungled dealing with all the kids adds insult to injury. If you're going to remove that many kids at once, you have some serious obligation to figure out the logistics BEFORE you actually have over 400 kids to house and feed. You have to know you're going to need lawyers for everyone, exhibits for all parties, and enough courtroom space for everyone. Don't just jump right in without some planning!

Beyond the question of the raid itself, there are some greater issues posed by the FLDS that I have been worrying over for several years. (This particular group has been of interest to me for a while.) My previous post on this subject was more related to my conflicting emotional and legal responses to how the greater community should deal with this smaller enclave in general. I have now finished reading Carolyn Jessop's book "Escape" and have finally read some in depth reports about the raid. I will save for a different post my thoughts about more general issues surrounding the FLDS.

Monday, April 21, 2008

I have a lot of thoughts running around my head about the events in Texas involving the FLDS and that darn ranch. I'm deeply conflicted in my own personal feelings about that church (sect? cult?), the women who live in that life, the children who are raised in it, and how a feminist public defender should feel about it. Is the feminist in me supposed to support all women in whatever life choices they make? Or is the feminist in me supposed to support government intervention to help women free themselves from a closed society that subjugates them?

As a public defender, I should certainly oppose such a sweeping search warrant that searches countless homes without any nexus to any alleged criminal activity. Especially when there are questions about the legitimacy of the tip to police that led to the issuance of the original search warrant.

But I have also worked as a juvenile defender and I have worked with teens who had nowhere to go for protection against the abuse they suffered at home. I once had a client who had a black eye when I first met her for her morning detention hearing. She had been taken into custody the previous afternoon after a fight with her parents. Her parents had spent the night comfortably in their home. So why did she have the damn black eye? She was charged with battery. The D.A. refused to dismiss the charge and refused to investigate (at least meaningfully) a child in need of care action. So we, her defense attorneys, had to initiate the CINC case and had to find her a safe relative to live with. That part of me wants to protect any children who really are being abused. But then the adult defender in me reminds me that we have no evidence of any abuse except for one tip caller who has yet to be found.

I am reading Carolyn Jessop's book "Escape." 5 years ago, the 35 year-old woman fled the FLDS community in Colorado City with her 8 children. I might have more concrete thoughts about the situation after I've finished it. For now, if the children at the Texas ranch are raised in the same way that she was raised, then yea, they need to be protected from abuse. And if grown women are not allowed to exercise their free will and leave the lifestyle if they choose, that's criminal. But geez, just because one or two families involved abuse, that doesn't mean every adult in the community should lose their kids.

The bottom line is I still don't quite know what to think. Except I know I think the FLDS is weird. I know I think their lifestyle is nutty. I know I would like to tell all of those women that they don't have to settle for a life of endless baby-making, house-cleaning, and submissiveness. I know I would like to tell all of those children (especially the girls) that they can go to college if they like and become whatever they want. I know I think they all live an incredibly sheltered life, which I don't think is healthy. I just don't know if I think the state is right to force them out of that shelter.

Stacking the Jury

I spent the day reading through jury questionnaires in a capital case. What depressing reading. I still find it stunning every time I am confronted with some of the pro-death penalty opinions out there. Some folks don't think mental retardation is a mitigating factor that should result in a life sentence. After all, if the defendant knew what he did was wrong, there can be no lame excuse like IQ! Just because you have the mental capacity of an 8 year-old, that doesn't mean we shouldn't hold you responsible for your actions to the fullest extent possible. My personal favorite is a juror who answered the question of "could you impose the death penalty" by inquiring when the execution would be, because he would have to check his schedule to see if he was available to inject fatal fluids into the defendant that day.

On the questionnaire, prospective jurors are asked to rank themselves on a scale of 1 to 7: 1 is strongly opposed to the death penalty and 7 is strongly supporting it.

In the end, capital juries are entirely comprised of people who rank themselves a 4 and above. In one of the greatest farces in the whole justice system, someone decided that people who oppose the death penalty need to be disqualified from capital juries. Courts have totally fallen for it. As a result, any prospective jurors who would not impose the death penalty or who have strong moral opposition to it are stricken for cause. Meaning the trial judge removes those people from the jury panel so the state doesn't have to use any of their peremptory strikes. But people who would always impose capital punishment are just fine on juries. Defense attorneys can hardly ever get them struck for cause because all the state has to do is prompt that juror, "But you would consider all the factors before making your decision, right?"

The theory goes that people with moral opposition to the death penalty couldn't follow the law, so allowing them onto juries would allow those few jurors to overcome the will of the majority by not imposing the penalty authorized by law. But even those who totally oppose the death penalty aren't refusing to follow the law. The law requires them to hear all of the evidence relevant to a sentencing decision and then consider whether the aggravating factors proved by the state outweigh the defendant's mitigators. Any juror is also always free to consider his or her own sense of mercy. So an anti-dp juror is not failing to follow the law. The anti-dp juror just places a lot more weight on mercy as a factor in making the sentencing decision. As is completely allowed by law.

The pro-dp juror, a 6 or a 7 for example, often leans strongly towards imposing death on any defendant convicted of capital murder. Indeed, many jurors do not understand how capital trials work. They don't realize that a finding of guilt on capital murder does not end the jury's work. Those prospective jurors would vote for death for anyone, regardless of mitigators because anyone convicted of capital murder should be sentenced to death. Mercy carries no weight with them. Even though the law says they can always show a defendant mercy, no matter how bad the aggravators are. They would impose death in all cases even though the law requires juries to make individualized sentencing decisions about the defendant, which doesn't seem to go along with voting death for any capital defendant.

But those jurors aren't failing to follow the law. Those prospective jurors never get stricken for cause, and no defense attorney has enough peremptory strikes to get them all of the jury. According to courts, it's ok for a prospective juror to go into jury duty with a predisposition to impose death. That wouldn't be subverting the will of the majority. We just don't want any jurors who have serious moral qualms that would keep them from killing defendants.

I am incredibly frustrated about this current state of capital jury selection. Courts get rid of all the 1 jurors without making the state sweat at all, so all the state has to do is use its peremptories to get rid of the few 2s and 3s who get past the cause challenges. I don't think I'm being paranoid when I say that I do believe courts are far more pre-disposed to weed out the anti-dp jurors than they are to get rid of the killers. A killer juror can always be rehabbed just by saying that yes, he or she would listen to and consider the defendant's sentencing evidence. That's kinda like me saying I would consider voting for a Republican for president... I'd consider it for about a nanosecond before filling in the circle next to the Democrat's name. But it's good enough to keep a killer in the jury pool.

In his Baze concurrence, Justice Stevens bemoaned this fact that capital defendants are screwed from the start of their trials. They're denied a jury made up of a fair-cross section of their peers because the roughly 30% of Americans who oppose capital punishment can't get on the juries. Justice Scalia willfully misunderstood Stevens' concern, making it clear that Scalia isn't likely to help correct the imbalance in capital juries anytime soon.

Here's my solution: let's just stop asking prospective jurors their feelings on the death penalty at all. It really can't get any worse for defendants than it is right now. They're already getting stuck with jurors leaning towards death before they've even heard the evidence of guilt. So let's go back to the days when prospective jurors' opinions on the death penalty were irrelevant to their ability to serve on a capital jury. Maybe then a few anti-dp folks can get onto a jury here or there. How refreshing that would be, instead of having a jury filled with people who just can't wait to kill the defendant before they've heard a shred of evidence.

Wednesday, April 16, 2008

I've now read most of the opinions in Baze. This is the US Supreme Court case that came out today, affirming Kentucky's lethal injection protocol. I wish I had something brilliant to write about it, but between reading that and reading the transcript of today's oral argument in Kennedy, the child rape capital case, I'm feeling rather depressed about the state of the death penalty in this country.

My main reaction to Baze was how surreal it was to read this calm, dispassionate discussion about the best way to kill people. I will never understand how people can be so matter-of-fact about killing. Talk about premeditated and calculated killing. How is this not murder?

And, predictably, prosecutors and politicians are already calling for the killing machine to get cranking again. Missouri's Governor and Attorney General just can't wait to stick a needle in someone's arm. I don't want to have to live among such blood-thirsty people anymore.

Monday, April 14, 2008

I haven't ranted in a while. It's hard to rant when your favorite sporting event ends gloriously with your favorite team winning in stunning fashion. I've been on that high for a week now. But I've re-watched the game more than once, and I've purchased all the commemorative magazines and 4 championship shirts. Enough giddiness. I think it's time to get back to my usual, angry self.

On that note, I was standing outside my building this afternoon where everyone waits for their carpools. A co-worker was also waiting. She noticed I had a legal-type document in my hands so asked what I was reading. I told her I was reading the briefs in Kennedy v. Louisiana, the death penalty for child rape case that the Supreme Court is hearing on Wednesday. (Side note: I have a really bad feeling about how that case is going to come out. I pray I'm wrong.)

This odd woman who we see waiting for her ride every afternoon muttered loudly, "Good. Kill the suckers." Well, my co-worker maintains that's what she said. I heard that last word a little differently... She said it with that air of moral superiority that ardent killers always have. How did they get so twisted that they actually believe they're morally superior because they advocate killing people?

I hadn't meant to include this woman in the conversation, so I didn't feel the need to respond too directly. I turned to my co-worker and said, "Never mind that it's wrong to kill." Not my best retort, but said with enough sarcasm to convey my thought that it takes a pretty worthless human being to be that flip about killing people.

She got that I wasn't her biggest fan, so she turned to another regular and said, "You get more time for hurting an animal." Oh, please. We have Jessica's Law and last I checked we're either the only state or one of two that don't have felony animal abuse. (That may have changed recently.) Seriously, get some actual knowledge or keep your mouth shut. People who don't know what they're talking about should not be allowed to have opinions. Ok, fine, have your stupid, worthless opinion, but don't expect me to respect it. Trust that I will have nothing but contempt for your uninformed, mob-mentality opinion.

My co-worker and I both shook our heads and said that wasn't true, but I don't think she got how utterly ridiculous we thought she was. Her ride came just at that moment, so she ran to her car. We thought as she got into the car that she was undoubtedly telling her husband about those two child-rapist lovers on the sidewalk.
Let's review here: Teenagers are not adults. They can't drink, they can't vote (for the most part), they can't sign contracts, many of them cannot lawfully engage in sexual conduct. We place all kinds of limitations and restrictions on them because we know better than they do. We're the grown-ups who set the rules. They're still in high school.

Do you remember yourself in high school? I do. I was an idiot. And I was one of the smart ones. I thought I was so wise and mature, the surest sign of immaturity. Sometimes I would cry at the drop of a hat for no apparent reason. I was developing an entirely new body that I didn't have the first clue what to do with. I also had far more capacity to be mean, petty, and cruel than I ever had before or since. And I would have been far too likely to do things I thought were wrong just to get my friends to like me. (And I was one of the self-assured, confident kids!) Basically, I was a big mess of raging hormones and out-of-control emotions with very little impulse control. As were we all. Some of us make it out unscathed, never having one of our big mistakes blow up in our faces. Some of us aren't so lucky. But we manage to grow up. We get out of high school, we gain maturity as we gain independence, and we pretty much universally look back on our teenage selves and marvel that we somehow made it past those years.

Knowing all this about our own selves, why are so many adults so frickin' eager to treat teenagers who commit crimes like adults?!? Do they really not remember the monumentally stupid things they did when they were teens? Have they forgotten all the times they just got damn lucky that no one got hurt? Do they really want to be judged for the rest of their lives on the acts they committed in high school??

The case that has everyone talking right now, of course, is the pack of Florida teens who videotaped themselves beating up on another girl. The youngest defendant is 14, the oldest 18. All will be tried as adults. I think that is seriously messed up. No question what these kids did is terrible and should be dealt with severely. They obviously planned this thing and wanted to broadcast it. They should absolutely face consequences for their actions, because that's how teenagers learn to become better adults. But some people (Nancy Grace and her rabid viewers) are talking about really long prison terms, even life in prison. For teenagers going nuts with rage? Throw away the lives of 14 and 15 year-olds forever because they did a bad thing now? Talk about nuts.

Under no circumstances should 14 and 15 year-olds face adult criminal prosecution. I will be that bright-line about it. But anymore, anytime a kid commits a serious felony, the public outcry is for the kid not to be coddled but to be treated like the adult s/he is! BUT, DAMMIT, THEY ARE NOT ADULTS! Isn't it our job as adults to help kids when they go down the wrong path? We're supposed to teach them how to get control of those emotions, how to live with the hormone swings, and generally how to make rational, thought-out decisions. When they make really bad, even violent, choices at 15, we aren't supposed to give up on them for life.
Turns out there's medical research to back me up on this. Teenagers really are idiots. Their brains aren't fully developed yet in critical regions, including the areas that cover impulse control and decision-making. You have to get to 20 and older before those regions become fully-developed.

So based on the medical science and what we all ought to know from our own teen years, let's stop pretending that teenagers are adults. We only insist on that fiction in the criminal justice realm. In any other news story about teenagers, we would refer to them as kids. But one of Nancy Grace's guest just tonight insisted on referring to all of these kids (including the 14 year-old) as adults. That's just bullshit. I'd really like for him to think back to his teenage years and remember all of the things he did back then that he might not be so proud of now. Looking back at himself, would he think his 14 or 15 year-old self could possibly be considered an adult? I doubt it.

Tuesday, April 8, 2008


With 2:12 to go in the game, I was well on my way to the depths of despair. I was seriously wondering how I could kindly kick my friends out of my house so I could cry in peace. I wondered if I could just go hide in my bedroom while they all left. Then Sherron stole the inbounds pass and hit the 3. Then Mario hit his free throw but CDR missed the front end of his one-and-one. Darrell got the board and scored at the other end. All of a sudden, the 9 point deficit is down to 2 with a minute to go. Hey, this game's not over! But then the last minute goes back to near despair as we miss multiple chances to tie the game or take the lead. A Memphis missed jumper and we get the rebound, but we can't convert at the other end. Have to foul. And he misses both his free throws! But they get the rebound! So we foul again, down 2 with only 10 seconds to go. If he makes them both, we're toast. And we didn't send one of their iffy free throw shooters to the line. No, we had to foul their phenom freshman. And at precisely 10:30, he goes up for his first free throw and "Your program has stopped recording!" WHAT?!? Damn DVR! It paused just long enough to cause some agony in the room. After a very long second, we realized he missed it. Hit the second one, though. 10 seconds to go, down by 3. Sherron takes the ball down the court. Time ticks off the clock way too fast. Sherron seems to slip or bobble the ball as he dribbles into a mess of defenders and somehow gets the ball to Mario. Mario has a defender too close, but he has to take the shot. Pandemonium breaks out! He hit it! Super Mario hit the clutchest of clutch shots! I ran out of the room because I secretly feared the refs would take a second look and decide Mario's toe was on the line (even though it wasn't) and we would lose. I'm not sure I really believed they were going to let us go to OT until the ball tipped. But then, once overtime started, I knew without a doubt that we would prevail. No way Memphis could recover from that.

We jumped and screamed around my house, scaring my dog a bit. We all did a shot. We furiously sent text messages, checked e-mail, and looked for the first headlines online. We watched while CBS showed our guys being interviewed, wearing their brand new National Champion t-shirts and hats, watched them cut down some nets, watched "One Shining Moment." It was a lovely evening.

In hindsight, I can enjoy that game. The first half was just fine. The last part of the second half was not fun while it was happening live. But now I can rewatch it on DVR and love every second of it.

Rock Chalk Jayhawk!

Monday, April 7, 2008

The last game of the men's college basketball season is being played tonight. I love, love, love it when my team plays in that final game. Win or lose tonight, they went as far as they could. In my experience, though, it's actually more heart-breaking to lose this last game than any other all season. To come so very close to the top but have to watch as a different team reaches the summit, well, it sucks.

In the words of Fezzik the Giant, "I hope we win."

Saturday, April 5, 2008

Interesting Reading

The Saucy Vixen on Life
The Rural Bus Route
The Language Lover's Blog
Simple Justice
Rock Chalk
Ipse Dixit
Indigent Defense News
Analis First Amendment
Accident Prone
A Public Defender
Disgusted Beyond Belief
Grits for Breakfast
I Had No Right
Defending People
inspired by dooce
the things i know
Lovable Liberal

Just under 6 hours to go...

I agreed to host the watch party/grill-out for the Final Four tonight. Partly I did this so I would have solid motivation to clean my house. It has gotten wildly out of control. Partly I did this so I would have prep things to keep me occupied throughout the afternoon before the game. I failed a bit at this second part as it is only 2 and my house is pretty clean, my groceries are purchased, and yet it's too early to start food prep. Guess I'll have to take the pup for a walk. I'm sure she'll mind that.

I hardly know what to do with myself waiting for my team's biggest games to start. Everytime they make the Final Four, I'm a nervous wreck that Saturday waiting for the game to start. Nothing I do ever takes long enough so there is always more time to fill until game time. (If only the Final Four was every other weekend, my house would always be super clean!)

So now, I've still got approximately 5 hours and 40 minutes til tip off. Friends are coming over at 5 at which time the grill will get going. And the first game starts, but really, who cares about UCLA and Memphis? I can legitimately begin food prep around 4. Whatever will I do for the next 2 hours?!


Thursday, April 3, 2008

If the season ended today...

In case you missed it, the Kansas City Royals are undefeated and in sole possession of first place in the A.L. Central. This after sweeping the opening series in Detroit against the team many experts have not only predicted to win the division, but to compete in the World Series. Not a bad little start to the season.

Of course, the season doesn't end anytime soon. 159 games to go. I choose to believe the Royals will continue their winning ways.

Wednesday, April 2, 2008

It's called research.

You've already got a guy charged with some serious crimes, in jail, and with a bond so high he's not getting out. Not to mention it's a high profile case so the judge will never consider a motion to reduce bond. No one is in a hurry for prelim. I'm thinking you can probably take 30 minutes to do some legal research before you file an amended complaint. Just maybe make sure you really can add that other charge you so desperately want to add.

As you by now know, if you had taken those 30 minutes (probably an overestimate of how long the research would have taken), you would have easily found the case wherein our state supreme court said you cannot add that additional charge. It came out months ago. It's directly on point. No way around it. I think we ought to expect our prosecuting attorneys keep themselves somewhat abreast of the law.

I just want to encourage all lawyers to take that extra time. Just research that pleading before you file it.

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