Monday, July 28, 2008

Dear Mommy,

When I see the blue cup, I expect an ice cube. Is that really too much to ask? I don't want to hear excuses about how it's so hot that the ice cubes all melted. I don't want to hear that they're too big for my little pup teeth. I just want an ice cube.

I am sorry for barking at you like that. And I probably shouldn't have pawed you quite so hard. But I wouldn't have had to resort to those tactics if you would have just given me an ice cube when I first noticed the blue cup and put on my best cute face. I am supposed to be rewarded when I put on the cute face. The cute face deserves an ice cube; I should not have to demand receipt of that which I deserve. Please do not let it happen again.

Sincerely, Maddie

Sunday, July 27, 2008

True Case File #1

Lee's comment to my last post made me start thinking back to some of the most outrageous, crazy, or just plain wrong treatments my clients have received in the criminal justice system. Not all situations should be treated as criminal. There are some things that just do not belong.

So perhaps from time to time, I should tell some of these stories of old cases. The first one that springs to mind still sticks in my mind as the best example I've seen of how we mistreat mental illness in this country.

My client suffered from mental illness. His particular illness often manifested in impulsive behavior, including paranoid violent outbursts. He was still pretty young, new to mental illness, and was still working with doctors to find both the medicines and the tools to function with his illness. He lived in a residential treatment center at the time of his "criminal" episode.

He went home to visit his family for a few days at Christmas. While outside the structure of his regular living environment, and with either not enough meds or no nurses making sure he took his meds, he decompensated. He became agitated, angry, and ultimately punched his hand through a window. At this point, his mother called the police because she could not control his behavior and was worried he would hurt himself more severely than the cut hand. The police recognized that this was not a criminal situation but a mental health crisis, so they took my client to the hospital that had the most secure psych ward. The doctors at the psych ward admitted my client. On the admission papers, they noted that his criteria for discharge was to get his violent outbursts under control.

My client was in the psych ward for about 12 hours. During that time, he only saw a doctor briefly at the beginning. He was given medication, but never the proper amount. He in fact noted to a nurse that he was not feeling the effects he should from the sedative. He had been given a pretty low dosage, so it would have been appropriate to give him more, but that never happened. He never quieted down. He was oddly fixated on getting a toothbrush. He wandered through the hall, yelling. All behaviors one sadly can expect to see at the secure psych ward.

Eventually, my client used a mattress and a dresser to barricade himself into his room. Security guards tried to bust in, at which point my client threw dresser drawers at them. One of the walls of his room was damaged. The psych ward called the police, who arrested my client and charged him with aggravated battery and criminal damage to property.

It still infuriates me that a prosecutor, a judge, and 12 jurors viewed this as a proper situation for criminal charges. He was ultimately convicted as charged. My client was not a criminal; he suffered a severe mental illness. He had no more control over his actions than a person in the midst of a seizure would. He certainly did not possess the rationally-formed intent to hurt anyone. He was just scared and confused and trapped inside a personal hell that most of us fortunately cannot imagine.

Even worse than the prosecutor pursuing this as a criminal case, though, is the hospital for asking them to do it. I know that mental health care in this country is woefully underfunded and its needs are woefully misunderstood. But the doctors and nurses who accepted my client into their care took on a duty to him. They said, "We know you're sick and scared and out of control, but we can help. We can stop you from hurting anyone. And we'll keep you here until you are no longer a danger to yourself or anyone else." But after only 12 hours of not much help, they abandoned that duty. Nothing about this case has ever infuriated me more than the fact that the mental health professionals themselves bought into the idea that the manifestations of mental illness should be considered a criminal matter.

It was just flat wrong that this client was ever charged with a crime. He wound up serving several years in prison, where we all have to know he did not receive any meaningful care for his mental illness. And for what? Because he needed help that no one seemed able to give him. He needed proper mental health care. He needed to find the right medications to restore balance to his brain. He needed a doctor, for crying out loud. The last thing he ever should have needed was a lawyer.

Friday, July 25, 2008

It's depressing to be a public defender right now. It's always an ongoing battle to be adequately supported, but it never seems to get any better. Our case loads always remain too high so we can't work on any of our cases as thoroughly as we really should to provide the best representation we can. Which is all just fine since we are underfunded, so we can't afford to do the work we don't have time to do. Finding experts and really challenging the state's forensic evidence takes the two things we don't have: time and money. So it just doesn't get done.

And that makes the job of the appellate attorneys easier because there will be fewer issues to brief since motions weren't filed and objections weren't made. Which saves more money for the taxpayers because then those issues will just never take up the time of any court or any court-appointed attorney since defendants are only entitled to counsel at trial and on direct appeal. If those attorneys don't raise an issue, defendants are just screwed unless they can come up with the resources to at least start an ineffective assistance of counsel (IAC) claim on their own. If they can write a persuasive enough IAC motion, they get more free counsel, but how often does that really happen? Definitely in capital cases, but not so much in the lesser cases.

At times, the monumental obstacles facing public defenders overwhelms me. I can't face it, so I just want to go hide under a pile of coats. I threaten to cry. I threaten to chuck it all and go to Vegas to be a go-go dancer. I can't ever really do it, though, because I just am a public defender. I couldn't change that anymore than I could change my skin color or sexual orientation. The worst part is having to watch as other public defenders simply accept the situation without even caring anymore. Some just sigh, or can't even muster the energy for that sigh. They just continue on processing cases, without noticing or caring that the 6th Amendment is dying. They have to know they aren't being allowed to fulfill their ethical obligations to their clients and they also have to know that they have given up fighting against the inequities.

I see those pds and I think, "Thank goodness I am this depressed!" Being this depressed is no fun, but I'd take it in a heartbeat over not caring anymore. 'Cause I really don't want to move to Vegas.

Wednesday, July 23, 2008

Getting the word out

Many who read this blog are lawyers. Many are not. So I think this is a useful forum to help spread the word to both the defenders and potential jurors out there: DNA is not the infallible wonder evidence we were lead to believe!

When a DNA match is presented in court, invariably the scientist proclaims that the odds of the DNA matching are something astronomical, like 1 in 4 quadrillion. Now, I'm no mathematician, but I do know that there are only about 6-7 billion people in the world. So those odds seem pretty slim. I think, in fact, that there probably have never even been 4 quadrillion people in human history. So the odds seem pretty good that the DNA really does belong to the defendant.

But what if the odds we've been given have been a bunch of bull? The standard for a DNA match has been 13 loci. I can't explain it that well, but every person's DNA has these loci, or locations of chromosomes. There are something like hundreds (or thousands or millions, but way more than 13). But in statistical analysis, the theory has always been that a small sampling size is all you need. That's why you can do valid phone polls with fewer than 1,000 voters. So it was always thought that 13 loci were a sufficient sample size to rule out the possibility of random matches.

A scientist in Arizona's crime lab unwittingly discovered the fallacy of that assumption. The LATimes published this article on the discovery. Out of her database, she found two people who matched at 9 of the 13 loci. Now, they weren't complete matches, of course, but they were remarkably close, closer than we thought was statistically possible. After that first discovery, the analyst combed through the Arizona DNA database and found dozens of other similar matches.

So defense attorneys involved in a DNA-based prosecution in Maryland sought a court order to do a similar search in their database. The judge agreed, at which point the Maryland crime lab folks, in conjunction with the FBI, dug in their heels. They did everything they could, including just flat saying no to a court order, to prevent the defense from looking through the state DNA database to see what kinds of random matches they might find. Now they didn't get away with it in Maryland, but they just might elsewhere. And a lot of defense attorneys around the country probably aren't yet aware of this identified problem. And even if they are, they may not have the means to do much about it.

What does the FBI not want us defenders to find? Are they afraid we'll uncover evidence that their oft-cited statistical analysis for random DNA matches are bunk? Or do they know we will? I'm always suspicious whenever police or crime labs do all they can to keep us from looking into things. If they're so sure of their evidence, I can think of no reason for them to hide it from the defense. I can't find a way around the thought that they know their evidence isn't really as irrefutable as they want the defendant and the jury to believe.

Think of all the kinds of forensic evidence that we now know have credibility problems. Hair evidence is absolute junk without DNA. Anyone who claims that s/he can say the hair found at the scene is a "microscopic match" with the defendant's hair is full of it. By merely looking at two hairs side by side under a microscope, one cannot even tell the difference between a human hair and a dog hair. Fire science is also coming under, well, fire now. I'm not as familiar with that area, but from what I do know, we all ought to be suspicious of the claims made by arson experts. Handwriting analysis has always seemed questionable to me. Should I now be even warier of firearms analysis? We know that the lead analysis they used to do on bullets was just a bunch of bunk. Blood spatter analysis, footprint analysis. Even fingerprint analysis is far more questionable than the general public realizes.

My rapidly growing theory is that the forensic experts at the FBI and around the country just make this stuff up as they go along. They make pretty graphs, use big words, sound authoritative, and hope no one ever gets the resources to delve too deeply into their claims. I think they might even really believe it themselves and I don't think it's necessarily malicious; I think they just really believe they've got the right guy and have to find some scientific way to prove it. They're just not that good at fully accepting, or even realizing in their zeal to nail defendants, all of the limitations of the science they want so desperately to use.

One of the main, ongoing problems with forensic evidence is the defendant's lack of access to independent experts. My clients are all indigent. They can't hire an outside lab to retest the evidence or review the crime lab's testing protocols. They can't hire a statistician to review the crime lab's claimed odds. So the defense attorneys ask for funds. They ask the court to fork over the money or they ask for it from their own over-taxed defender system. Most often, those funds are denied. The response is, "You can use the state crime lab." Well, no we can't. And the efforts to stymie defense investigation into the Maryland DNA database, backed by the FBI for crying out loud, ought to prove that. Those crime lab scientists do not consider themselves equal opportunity employees of the state, working for both sides. No, they consider themselves investigators working for the prosecution. Defendants simply do not have access to those labs and it's way past time for courts to stop hiding behind that excuse.

Prosecutions rely on forensic evidence, especially DNA, and most defendants aren't in a position to fully meet that evidence. But it's the evidence that juries most want to hear, and often the evidence they most rely on. If we can't get the resources to challenge that evidence properly in court, we have to find some way to get the message out to the public that this evidence isn't all we'd thought it was.

So for the defense attorneys out there, if you had not heard about this yet, now you have a new issue to raise in a case involving DNA.

And for those of you who might someday wind up on juries, remember that DNA is not the infallible evidence we thought.

Tuesday, July 22, 2008

I've often joked that somewhere, someone has a file on me: the FBI, the CIA, or some other shadowy initial group we've never even heard of. We liberal, anti-war, anti-Bush, pro-criminal types are such threats to national security, you know. At least, I thought it was a joke.

Turns out, it wasn't such a joke, as the anti-war, anti-death penalty crowd in Maryland found out the hard way. Turns out some undercover state police officers in Maryland "infiltrated" a peace group and the Campaign to End the Death Penalty. They conducted surveillance on these groups for a year. They stealthily joined these groups, attended their meetings, and took meticulous minutes.

To what end? Seriously, what the heck did the Maryland State Police think they were going to uncover? Did they think they would catch the peaceniks not recycling? Serving pre-packaged, non-organic foods at their meetings?

No, the Maryland State Police apparently thought the anti-war, anti-death penalty crowd was likely to cause a disturbance. Their activist events and protests were likely to lead to scuffles, violence, and general mayhem. Ok, say that's true. Did that really necessitate "infiltrating" these groups, posing as members and gathering "intelligence" on the legitimate members? These groups generally advertise their public events, so it shouldn't require undercover surveillance to make sure no riots break out at them. Go to the bookstore and check the bulletin board for flyers. And if the Maryland State Police's true interest was in protecting the people of Maryland from protest activities leading to public disturbances, well then I assume they also infiltrated the pro-life groups and the anti-illegal immigration crowds, right? Because those two hot-button issues are sure to draw big crowds on both sides at public events.

But, no, the Maryland State Police were not investigating all issue-driven organizations: only the subversive, anti-establishment ones. The ones that protest against things the government does, like wage war and kill people. The ones that exercise their constitutional rights to assemble and petition their government. The ones who aren't with us, so they must be against us. Because by opposing policies of their government, these groups posed a threat to the people of Maryland.

It still seems like it has to be a joke.

Monday, July 21, 2008

Don't ask, don't tell: On its way out?

For the first time in 15 years, a Congressional subcommittee will hold a hearing this Wednesday on the infamous "Don't ask, Don't tell" policy on gays in the military. Not a huge victory for gay rights' advocates as no one expects anything to change under the current administration, but maybe it's setting the stage for Congress to be ready for a full repeal under the next administration. Obama has already indicated he will work towards repealing the policy.

I certainly hope the end is near for this ridiculous policy. The bottom line is that able-bodied individuals who want to serve in the military ought to be allowed to. The military resisted racial integration, saying that would ruin troop morale. The military survived. The military resisted putting women into anything close to combat positions because that would be just terrible for reasons I never quite got. Seems like that's not panning out to be quite the problem the naysayers thought. And even if there were some problems with integrating the troops both by race and gender, so what? The military should not be given a free pass to discriminate.

So it's time to open the military all the way. Allow gays to serve openly and proudly. I promise, the U.S. military won't suddenly be overrun by men in drag having orgies in the street and organizing parades. In fact, I doubt much would change at all. Since 1993, over 12,000 men and women have been dishonorably discharged for reasons that have absolutely nothing to do with ability to continue serving or performance of service duties. Which means that those 12,000 plus were serving their country just fine until the wrong person found out too much about their personal lives. What a ridiculous waste, especially now at a time when our military is stretched thin. Who doesn't think we could use those extra 12,000 pairs of hands right about now?

Most of our NATO allies have open armies. Our guys work with those armies all the time with no problem. The only reason to cling to this outdated policy is bigotry. We shouldn't continue to let the military of the United States of America, aka the best country and greatest democracy in the world, be a bastion of discrimination.

Wednesday, July 16, 2008

Recently in our community, a law student was murdered by her ex-boyfriend. It's a pretty basic story. Most women who are murdered are murdered by a significant other, and the most dangerous time for a woman is soon after ending the relationship. That seems to be exactly what happened here.

It just so happens that this current law student was a summer student working as an intern for a program that represents criminal defendants on post-conviction cases.

Tonight, I attended the same work-out group I've been a part of for several years. I assumed that by now, everyone knows what I do. It's certainly a topic of conversation at times. So I don't know if the conversation that occurred tonight was had with that full knowledge.

One of the women, we'll call her Jane, broached the topic of this murder. She said she didn't want to sound callous or unkind because she has nothing but sympathy for the victim and her family, but.... Those buts are usually harbingers of really, really callous and unkind comments. Sure enough, Jane followed that but with the sort of comment that leaves me incredulous.

Jane said, "She worked with convicted murderers who claim innocence." Her tone indicated that all low-life murderers claim innocence and are all full of shit.

I actually am familiar with the case the student was working on and I happen to think it's a highly questionable conviction at best, so I said as much. Jane was undeterred. She went on to say, "Bottom line is she chose to associate herself with those types of people. You lie down with dogs, you're gonna get fleas."

I nearly stopped in my tracks, I was so stunned. If I understood her correctly, she thinks I would deserve to be murdered because I choose to defend murderers. I really want to know if she was aware that I'm a criminal defense attorney who regularly represents people accused or murder. If she is aware, her comment comes from ignorant and offensive to downright malicious. I should have challenged her, made her confront the fact of what I do, and asked her to clarify whether she really thinks I'm just asking to die a violent death. But I didn't.

Instead of taking her on, I said nothing to her. My poor friend, then, had to get treated to an expletive-filled rant.

So many problems with this conversation, I just have to resort to a list:

1) This murder had absolutely nothing to do with the victim's internship. It was a personal relationship gone wrong.

2) No one "deserves" to be murdered. If you really have that kind of cold-hearted thought, it's probably best to keep it to yourself. Such thoughts will probably make other people judge you harshly. I know I think less of you now then I did yesterday.

3) People like you are precisely why it is so important to have people like me and the law student. People like you judge criminal defendants before you have any facts. You start with negative assumptions that rarely, if ever, can be overcome. You view criminal defendants as something less than human, which makes it much easier to convict defendants with not much evidence. So we need dedicated people to represent these guys througout to make sure that their fully story comes out.

4) It's a pretty basic constitutional right to have an attorney during a criminal prosecution. Seems pretty un-American to think those who provide that fundamental right are deserving of violence.

I wish I could write a more eloquent and thoughtful response to Jane's comments, but I'm still reeling from the personal implications of them. Also, I'm still pretty angry with myself for not confronting the comments right in the moment. I thought I was supposed to be ballsy and outspoken. But when I had the chance to make Jane rethink her ideas, I froze. That will bug me for a while, because I really want to know how she would have responded if I had stopped running stairs and said, "I'm a criminal defense attorney. Most of my clients are accused of murder." Would she have been chagrined upon realizing the implications of what she'd said? Or would she have just shrugged, suggesting that maybe she wouldn't feel too sorry for me if I were murdered?

Monday, July 14, 2008


Billy Packer is retiring! Clark Kellogg will be taking over as Jim Nantz' partner for final four play-by-play. Happy, happy, joy, joy.

Although I will enjoy hearing Billy Packer foolishly refer to a bank shot 3-pointer by Derrick Rose as "the shot of the tournament" everytime I rewatch the KU championship game, knowing that Mario Chalmers will make the Packman eat his words, I will probably enjoy that even more knowing that I will never again have to listen to his inane babbling during any future final fours.
I survived the rest of the conference. I even made some connections; perhaps even a friend or two. I just don't understand why I get myself so worked up about the prospect of having to talk to people, especially people who share a common career obsession. It's really never that bad. I am actually capable of basic human communication, often in a way that doesn't make me sound like a completely dull, unfunny idiot.

Nonetheless, by the time I got to the airport in D.C., I was very ready not to talk to anyone else. I just wanted to get on a plane and get back to my house, where I could lock myself away from others. The bus from the conference center got me to National at about 2:30. My flight wasn't until 7:20. I had hopes of trying to get a seat on an earlier flight, but there were no earlier flights. So I just had to sit and wait.

I waited at a bar for about an hour, but after seeing that my one little vodka lemonade cost $11.45, I decided that drinking away the afternoon wasn't such a great idea. I got a sandwich. I sent some text messages. I paced a lot (patience is not one of my virtues). Around 6, I got up to use the bathroom in anticipation of boarding soon, as I refuse to use the plane bathrooms. It was only upon getting up and looking at the monitors that I learned our flight departure had been delayed by an hour and a half. No announcement was ever made.

Eventually, we saw that the departure time moved back another half an hour. Again, no announcement on my particular flight. I did start hearin ominous announcements about other flights, telling of delays and even cancellations due to weather in the Washington area. It did rain heavily for about 20 minutes and I saw some incredibly fast-moving and very dark, scary clouds fly by. But I also saw planes taking off. How bad could it be?

Around 8:30, we got an announcement that we would soon see a plane pulling into our gate, but we shouldn't get our hopes up as that wasn't our plane. It was the poor Columbus flight that had pushed back from the gate about two hours earlier. They had apparently been sitting on the runway all that time and were now giving up on taking off. A plane-load of harried passengers ran off, all hoping to beat the others to the ticket counters to re-book flights after the official decision to cancel the Columbus flight. They didn't know they would all be running back onto that plane in about 2 hours when the Columbus flight was back on.

Around 10, they finally started giving us some actual information about our flight. Our plane had yet to leave Burlington, VT. The concern then became not that our plane would never arrive, but that our crew would not be able to continue on our flight because their service hours would get past the limit. Finally around 10:20, our gate agent told us the plane had left Vermont and should be landing in about an hour. She promised they would get us and our luggage all loaded as quickly as possible, aiming for a departure time of 11:54. Only 4 and a half hours late. Only 11 hours after I got to the airport.

Sure enough, a plane arrived at the gate around 11:20. They had us all on by 11:40. The flight attendants were a little surly. They had no blankets or pillows. But they had us in the air by midnight. My hometown airport had our luggage at baggage claim very quickly. Miraculously, we were not the last flight expected in, even though it was 1:30, well past the airport's bed time. The parking bus guy took me right to my car and put my suitcase in the trunk. I somehow managed to stay fully awake and alert for the 45 minute drive home.

I stumbled into my house, wanting only to take off my shoes and collapse into bed. In the dark, though, I didn't notice at first the little bundle of (very short) fur that had stealthily made its way to my side. She didn't do the usual run-around-the-house, can't-contain-my-excitement dance. But the little pup was obviously overjoyed to see her mommy. I climbed into bed and she followed, curling up as close as she could.

I didn't even sleep that much, but it's amazing how just lying in bed, SO on one side, pup on the other, can make me feel so much better.

And in case you were wondering, hell no, I ain't going to work today!

Friday, July 11, 2008

Who's bright idea was it to send me to a conference, alone, a thousand miles away from home? I know no one and I am not exactly the most extroverted person around. For 3 days, I will get up early and shower as quietly as possible to avoid my roommate in the morning. (This helps her as well as me; I am not a morning person!) I will get to meals early so I can pick a table by myself, therefore forcing people to choose to sit at my table so that I don't have to figure out which people won't object to my presence. I will perhaps go to social hour, but undoubtedly will get a drink, sit by myself, and wait a reasonable amount of time before leaving. More than likely, I will skip social hour all together and go running.

It's not that I'm a shy person with no friends. I really am capable of striking up conversations with total strangers. I can certainly approach people in my hometown and talk to them there. But there is something about going to one of these conferences, where all of the other attendees seem to have known each other for years and don't seem particularly interested in embracing the newbies, that just leaves me feeling like a complete outsider with no one to talk to and no common interests. Even though a conference of people opposed to the death penalty ought to be my ultimate happy place.

Well, day one is down. Only 3 more days of total awkwardness and very little personal, human interaction.

Wednesday, July 9, 2008


It's really big news today. They've discovered NEW EVIDENCE in the murder of JonBenet Ramsey that clears her family from all suspicion! They just got back new DNA test results that show the DNA of an unidentified male, not a Ramsey family member, on a pair of JonBenet's leggings. Those leggings hadn't been tested after her murder in December 1996 because the method of DNA extraction used in this new test did not exist yet.

As a result of this shocking new evidence, the DA of Boulder County has sent an official letter to John Ramsey informing him that no one in his family is any longer under that "umbrella of suspicion." The letter also apologizes to the Ramsey family for contributing to their being under that public umbrella for the last 12 years. Too bad Patsy died years ago, while that umbrella still lingered over her.

Here's the thing, though: back in 1997, the technology did exist to do some DNA testing on JonBenet's body and her underwear. Back in 1997, based on that DNA testing, we already knew that there was DNA of an unidentified male found in the little girl's underwear. Considering that she was sexually assaulted, that's pretty compelling evidence to me. I'd say that's probably reason #1 why no charges were ever filed against the Ramseys. Even the worst trial lawyer ought to be able to convince a jury there's reasonable doubt when there's DNA from an unidentified male inside the girl's underwear!

So the new DNA sample on the leggings matches the DNA sample from inside her underwear. The Boulder authorities are trying to spin this as new evidence. I think that's disingenuous at best. They had this male DNA profile in 1997. They just didn't know who it belonged to. And they really thought something seemed suspicious about this family (maybe because they had a lawyer friend helping them early on?). So they decided that one DNA sample (inside the little girl's underwear) could have just been innocent transfer. Or there could be some other perfectly reasonable explanation for its presence inside JonBenet's underwear. You can bet, though, that if that DNA had been John's or his son's, the police and DA would have heralded that as clear proof of guilt.

DNA evidence is only evidence of guilt if it matches the person the police or prosecutors already think did it. That's certainly the lesson we've learned from all those DNA exoneration cases where the prosecutors fight the defendant's outright release because they insist that the presence of someone else's DNA at the crime scene or (sorry to be crude) inside the victim does not mean the defendant didn't kill the victim. Even if the state relied on that physical evidence in any way, like saying it was the same blood type as the defendant. The fact that we now know the sample didn't come from the defendant is no reason to question the defendant's guilt! But if that DNA sample did match the defendant, well then we would know once and for all that the defendant really was guilty. Because that's how it works: a DNA match proves we were right to suspect the defendant; a DNA mis-match proves nothing.

The Boulder DA is now acknowledging that the same DNA profile on JonBenet's leggings as was found on her underwear really is pretty convincing evidence that this unknown male is responsible for her rape and murder. So now, after more than a decade of books and nasty tabloid headlines and Nancy Grace speculation, all insisting in crazy, hideous ways that John raped his daughter, that Patsy killed her, or even worse, that their young son committed the crimes, well, they have a letter. (John has a letter; I'm sure he'll take a copy to Patsy's grave.) On official letterhead. And it says, "Sorry. Our bad."

It is their bad that for years the Boulder police and DA allowed their pre-conceived notions about JonBenet's case to color their interpretation of the evidence. Instead of following the DNA evidence, they tried to fight it, tried to ignore it, because it didn't fit into their theory of their case. At least they have finally recognized that they can't ignore the obvious anymore: some DNA mis-matches really do exonerate your suspect.

UPDATE: And sure enough, right now on Nancy Grace, Wendy Murphy (another former prosecutor of the same ilk as my dear Nancy) is arguing that this new DNA test still doesn't exonerate the Ramseys! That DNA from her underwear could have gotten there during manufacturing. The DNA on her tights doesn't prove who touched her or when. That's all fine and even has merit to it. Those are definitely arguments I would make as the defense attorney. But don't pretend that you wouldn't claim this same DNA as absolute proof of John Ramsey's guilt if the DNA had matched him.

Thursday, July 3, 2008

Why I don't live in South Dakota

In South Dakota, starting in July, doctors who provide abortions will have to provide their patients with "medical information" provided by the state legislature. The statement begins by informing the patients that "the abortion will terminate the life of a whole, separate, unique, living human being." (Is that a statement of fact? Because I'm pretty sure that's a question of opinion that lies somewhere near the center of the abortion debate. I know I don't think of a fetus as a whole, separate, unique human being.)

Furthermore, doctors must tell their patients that they have "an existing relationship with that unborn human being" that is constitutionally protected. The law also does mandate some actual medical-like information , like about the potential risks and side effects of the procedure, with an emphasis on depression and suicidal ideation. It's not really accurate or full information, but it is arguably medical. But let's be real about the true purpose of this statement doctors are required by law to give: it's a last-ditch effort to guilt women into continuing their unwanted pregnancies. Regardless of their reasons for terminating.

Emily Bazelon at Slate has written a more thought-out response here. I'm too pissed off to be that eloquent. And I'm certainly not in a place to make a logical response progress to a proper conclusion. I'm just sick of this crap. Women are not such fragile creatures that we need to be protected from our own decision-making skills. We really are capable of making the right decisions for ourselves. And we're perfectly capable of living with the consequences of those decisions. By the time we've gotten to the abortion clinic, we've probably thought A LOT about this decision. And the doctors already have ethical obligations to ensure we have all the medical information necessary.

I'm all for patients having as much information as possible before making their decisions. But that's not what this is. Not even close. If the damn legislators who passed this paternalistic crap really cared about informed consent, wouldn't they include information about all of the risks and possible side effects of pregnancy? I think I heard that mortality rates for women in childbirth have actually gone back up in recent years. How about some detailed information about post-partum depression? No, pregnant women don't need to hear about that kind of thing because the legislators of South Dakota don't really give a rat's ass about properly informing you so you can make the best decision for your life. They just want to make sure you make the decision they want you to make.

But I don't really think the legislature of South Dakota is in the best place to make that decision for every single woman who might seek an abortion in that state. Nor do I think they ought to force scripts on doctors, especially when the script states as fact an opinion that reasonable, intelligent people can honestly and passionately disagree about. So how about the legislature sticks to funding schools and rewriting the criminal code, which I'm sure has some duplications, flaws, and loopholes that defense attorneys love to argue about. While you all are doing that, how about the doctors and women in South Dakota go back to having private consultations, free from forced scripts, so each doctor can help each individual woman make the best decision for her life.

Wednesday, July 2, 2008

Paul House update

I first wrote about Paul House back in May here. He has been on death row for 22 years while steadfastly maintaining his innocence. While in prison, he was diagnosed with multiple sclerosis. After years of foot-dragging and fighting in court, Mr. House finally got to do DNA testing that thoroughly discredited the state's theory of the case. The semen turned out to be her husband's, not House's. He also located new evidence that pointed to the woman's husband as the killer. The United States Supreme Court went so far as to write that Mr. House was most likely not guilty. That was in 2006.

As of this morning, Paul House is finally, FINALLY, off death row and out of jail. Even though his conviction had been vacated, the state was still holding him pending a re-trial. Because he was in jail awaiting trial, he was entitled to having a bail amount set. (Keep in mind, the state has graciously agreed not to pursue the death penalty at this new trial.) Originally, his bond was set at $500,000, well beyond his mother's means.

Last week, a judge reduced that bond to $100,000. Subsequently, an anonymous donor contacted the Tennessee Coalition to Abolish State Killing and put up the bond money. So thanks to the kindness of strangers, Paul House was able to roll out of jail this morning. He is still on home monitoring until the trial (if there is a trial), and he can't leave his mother's house, but at least he can sit on a porch and breathe fresh air, go to bed when he wants to, and have privacy and quiet.

I hope his mother and whoever else comprises his support team will be up to the challenge of helping him adjust to life on the outside. I hope he will be able to remain on the outside for the rest of his days. The retrial is scheduled for October. I will be eager to see how this case will play out.

Why I don't live in Texas

In Texas, it is perfectly acceptable, and possibly legal, to shoot two people, intentionally and with premeditation in the back.

Joe Horn called 911 and told the dispatcher he saw two men crawling out a window of his neighbor's house. Then he told the dispatcher he was going to kill them. As promised, he went outside, confronted the two guys, and blew shotgun holes in both of their backs.

Now I'm no gun expert, but if he shot them both in their backs, that suggests to me that they were running away. You know, not facing the crazy man with the shotgun. Not threatening him. Not posing any danger, immediate or otherwise, to Mr. Horn.

A Texas grand jury just decided that under Texas law, Mr. Horn should not be indicted on any criminal charge because Texas law allows the use of deadly force to protect property. As I understand it, deadly force is a-ok if necessary to terminate a trespass/burglary and there is no other reasonable means to regain the property being taken. (Sidenote: Is killing someone really a reasonable means of regaining a laptop? Well, taking a laptop might not qualify under the statute, but I'm not sure I trust juries always to make those technical distinctions.) Regardless of whether Joe Horn really fits that exception under the Texas statute (from what I've read, I'd have to question that), the mere fact that Texas has a statute that values property over a human life shows that Texas really is a foreign land.

I guess in Texas, if you break into someone's house, you've lost the "right" to live. The homeowner has now gained the right to shoot you in cold blood, even if you're just lost, cold, and starving, and have taken a loaf of bread. Once you've eaten part of that loaf of bread, what other option does the homeowner have to retrieve that bread? Obviously an absurd example (and probably not technically fitting under the actual statute), but seriously, if we start allowing mere things to be worth more than the life of a human being, no matter how flawed that human being, what difference does it really make how big or small the thing is? I cannot comprehend the mindset that would allow an entire state to think you taking my t.v. justifies me blowing your head off. I can buy another t.v. No mere thing is worth me having to live with the knowledge that I've ended another human life. Non-homicide crimes are not eligible for the death penalty anywhere in the US, but Texas has worked out a nice little way around that. As long as you get to it before the cops show up, you can execute a burglar!

Let's be clear about one thing, lest anyone wants to be too zealous in defending Mr. Horn: The neighbors were out of town and Mr. Horn knew it. So there's not even an argument that anyone in the neighbor's house was in danger. And since the two guys were leaving the area, Mr. Horn wasn't in any danger, either. The only time anyone's lives appeared in imminent danger was when Mr. Horn went outside and leveled his shotgun at the two fleeing burglars. I also have yet to hear anything about what this property was that Mr. Horn could only protect by lethal force. I worry that this particular jury wasn't all that particular about making sure Mr. Horn really fit the specific nuances of the statute. It seems to me like maybe the immediacy justifying Mr. Horn's killing two people was nothing more than they were two burglars who appeared to be getting away.

What Joe Horn did is premeditated, cold-blooded murder. No ifs, ands, or buts. He said he was going to kill them and he did. But in Texas, where they just can't kill those damned criminals fast enough, the legislature and the general public seem to be ok with Mr. Horn making himself judge, jury, and executioner.

It's a good thing for Joe Horn and others like him that I don't live in Texas because this case would have severely tested my abilities to advocate zealously on behalf of any defendant whose case is put before me. I don't think I'm a good enough actor to convince any jury that Joe Horn was justified in his actions. He wasn't. He committed murder and he should be punished like any other murderer.
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