Saturday, August 30, 2008

Roller coaster

I haven't been blogging much about criminal defense or the law lately. I think it's because I just haven't wanted to think about those topics, which makes working every day a bit difficult. I have been facing a crisis of confidence for a while now. This coming week, I finally have to face head-on the source of that crisis. This week, I have to go back to court with the second go-round of my biggest case ever. This case is my legacy. It is the case that I am known for, the proudest moment of my career. And I am scared to death that I am going to lose it.

This was the first really big case that my bosses entrusted me with. I was still a young lawyer and felt so proud that of all the attorneys in the office, many of whom had far more experience than me, my boss thought I was the best choice to tackle the large, complex case. This was a high publicity case that had really sympathetic victims and a community who wanted the defendant to fry before any evidence was heard in a courtroom. I gave my first ever interview for this case, got my name in the paper for the first time. I heard through the grapevine that the other side was talking about me. I felt like I'd become a big thing. I'm not gonna lie; this case was a huge ego boost for me and I loved it.

And then I won the thing. On several angles. To this day, that remains my best day as a lawyer. That whole year, in fact, was probably the best of my life. Many, many good things happened that year, personally and professionally. This win was one of many that year. But even when we win, well there's often a second time around. Cases don't die, they come back again and again. And now we're here to the second coming. It's never as easy to win the second time. But if I don't win this time, well then it was all for naught. The client won't get another shot at it.

Lest I sound too egomaniacal, the real kicker of this case for me has always been that I don't believe this prosecution was fair. I don't believe the potential result for my client was just. It's great to win cases and make good law, but it's even better when the win really helps someone who shouldn't be where s/he is. That's why this win was such a proud moment for me. I didn't just win a case, I secured justice (or at least another shot at justice) for this client.

And that's why I'm so afraid of this coming week. I don't want to have to look this client, or his mother, in the eye and tell them, "I'm sorry. There's nothing more I can do." I don't want to fail. I can't fail. For him, I just can't. But I'm going to. I feel it in my bones. (If I don't find my confidence before I go to court, I clearly will fail.) And if I do fail, that will be a bleak day.

Crazy how this one case can provide the highest high and the lowest low of my career. I hope I can survive the crash. Wait, I still have to remember to hope I can avoid the crash.

Friday, August 29, 2008

My whiny moment

Well, now John McCain has to lose. He just has to. It wouldn't be fair for him not to. It wouldn't be fair for the first female to take that executive oath of office to be a woman I couldn't vote for. The first woman president or vice president just has to be a woman I got to vote for. She has to be someone I can admire and respect, not just for her accomplishments, but for her positions, for her policies, and her commitments. She needs to be someone I can campaign for so that I can be a part of it all! I need to be able to claim some small part of it. It would be a bitter pill for me to swallow to see a woman attain the highest executive office (or the second highest) if it was a woman whose candidacy I opposed.

Women who refuse to call themselves feminists, who think it's a dirty word, who cling to what I consider outdated gender stereotypes, they just shouldn't get to see their candidate become the first female executive of this country. It should be people like me who get her there. I know it's not fair for me to feel this way. Conservative women who disagree with me on policies and more fundamental issues are just as entitled to their opinions and their candidates. But I'm writing honestly about how I feel. And how I feel is: it just wouldn't be fair.

Wednesday, August 27, 2008

Dear Meryl,

Thank you for teaching Mommy about my love of blueberry pancakes. All I had to do was look longingly as she ate hers. She remembered that you'd given them to me before and she cracked. She made a fresh one just for me. It kind of dries out my eyes to open them that wide for her, but I always get my way when I do. She's such a sucker.

Del Martin has died. I wrote about her here. Thanks to California's recognition of same-sex marriages, Martin's partner of 55 years, Phyllis Lyon, was able to be at her side in the hospital. No one could keep Martin's wife from sitting with her to the end. And even if California voters do the unthinkable and pass that damn anti-same-sex marriage amendment, and even if California courts follow that by declaring all of the marriages that have been certified until that point are thereafter null and void, no on can ever take it away from Del Martin that she was allowed to pass away in peace, with her wife holding her hand. And no one will be able to take away that memory from Phyllis Lyon, even if they subsequently refuse to treat her as a grieving widow.

But if California does go down that road and decide to deny her status as a widow, well it would just be a big lie. Because long before this June, those two women were as married as any heterosexual couple anywhere in this country. And we ought to respect that.

Tuesday, August 26, 2008

The little girl in me is crying right now. The grown woman in me accepts that, in general, women are in a much better position now than ever before. The grown woman in me accepts that a woman coming thisclose to the presidential nomination is a big freakin' deal and is a victory in itself. The grown woman in me knows that for the women I know, all of their professional goals are possible. The grown woman in me KNOWS that other women will follow the path that Hillary blazed and that someday there WILL be a female president.

But the little girl in me just sees the boy coming out ahead yet again. The little girl in me remembers being the only girl on the math team and being made an alternate even though I was the fastest. The little girl in me remembers being told I couldn't play baseball or football, no matter how much I loved those sports. The little girl in me remembers getting funny looks from adults when I said I wanted to be a Supreme Court Justice when I grew up.

The grown adult in me sees how much things have changed in just the last 30 years, since I was a little girl. I see that my daughter is more likely to get an advanced degree than my son. I see that my daughter won't get funny looks if she says she wants to be President someday. I see that the playing field is more equal now than it has ever been.

But for tonight, the little girl in me can't get past the fact that Hillary Clinton's mother wasn't quite right: in the end, she couldn't do anything she set her mind to. She could come thisclose. But she couldn't go all the way.

Monday, August 25, 2008

We defend family values!*

Voters in Arkansas will get to decide this fall whether to pass a measure that would prohibit unmarried couples who live together from fostering or adopting children. The Arkansas Family Council Action Committee thinks Arkansas "needs to affirm the importance of married mothers and fathers." Let's be honest: the measure is really aimed at preventing gay and lesbian couples from adopting children, and if a few straight-but-living-in-sin couples are kept from infecting the next generation, then all the better.

So these people want to pass a state law to define what a family should look like. There are so many kids languishing in foster care, ready for adoption. Kids who aren't perfectly healthy newborns, but who desperately want someone to belong to. And there are good, kind, loving adults who have the means and the desire to open their hearts and homes to those children in need of care. Why on earth would anyone want to stop them? What the hell kind of family values is that?

What a twisted way to look at the world: It is better for kids to have no permanent home than to share a home with two loving adults who happen to be of the same sex (or are of opposite sexes but don't have a piece of paper from the state). What kind of heartless idealogue can deny these kids the opportunity to have real homes, with rooms of their own, and parents who can't wait to hear all about their day at school? I can't imagine looking at the gays and lesbians I am friends with and thinking, "Man, these people are so morally corrupt that any kid would be better off in an overcrowded foster home until reaching 18 when s/he will be sent off on her/his own than being subjected to them."

I continue to be repulsed by the lengths these damn anti-gay folks will go to to impose their view on what a family ought to look like. Love is so much more expansive and has so many more possibilities than they can fathom. The state really shouldn't be in the business of limiting it. Nor should the state prevent its neediest citizens from knowing the safety of unconditional parental love. If the state of Arkansas chooses to define what an acceptable family is in such a way that keeps hundreds or thousands of children in foster care limbo, that would be tragic. And I just couldn't accept that it was done in furtherance of "family values."

*as long as the family has a Dad married to a stay-at-home Mom, 2.3 kids, a minivan, and a dog.

Sunday, August 24, 2008


I have been keeping up my attack on that crazed right-wing nutjob blog I found a few weeks ago. On Friday, I had a major victory. I got her to admit that there really isn't anything to the whole "Obama can't produce a legit birth certificate" nonsense.

Have you all heard about this? Because I hadn't realized it was a thing. But apparently the right-wing blogosphere has been ablaze with this insistence that something is amiss with Obama because he couldn't produce a "legitimate" birth certificate. My blog frenemy chastised me for not being educated about my candidate, but I don't think I should have to be aware of all the crazy conspiracy theories those kooky bloggers can come up with. (Seriously, where do they come up with this stuff?) So upon her urging, I googled "Obama birth certificate." She should have taken her own advice because the first four links were to legit news agency reports debunking the entire thing.

Apparently, the birth certificate that Obama's people had been scanning to e-mail and faxing did not show an embossed seal, so something was clearly fishy. Except that Hawaii, for whatever reason, puts the embossed seal on the back side, so it wouldn't show up on a faxed or scanned copy. A couple of quick calls to Hawaii and checks against original birth certificates from others born in Hawaii verified this was the case.

So I pointed this all out to my frenemy, along with the point that since he had acquired a driver's license, a marriage license, a law license, a passport, and was a sitting US Senator, at least the state of Illinois and the federal government were satisfied by his documentation, so perhaps she should be, too. She then took another look at the online image of the birth certificate and conceded that I was probably right. She even acknowledged that you can kind of see where the seal would be on the back side. Score one for reason!

But there are undoubtedly still others out there who will go to their graves swearing there is something terribly wrong with Obama's birth certificate. And that it matters tremendously. They won't be able to identify exactly why it matters. And they won't ever think about the sheer ludicrousness of the idea that a sitting senator and candidate for president forged a birth certificate without any state of federal agency ever figuring it out. But at least one of them has put down the kool-aid. On that one issue. I'm still working on the "born and raised Mulsim" thing and the "143 days of experience" thing.

We really need to institute a voting test. Anyone who espouses as truth one of these crazy blogosphere conspiracies does not get to vote!

Thursday, August 21, 2008

Racist spankings?

Over 20 states allow corporal punishment in schools. I didn't know that. Frankly, I was shocked to learn that it's allowed anywhere, let alone in 40% of our states. It shouldn't surprise people that I think it's a bad thing to allow school teachers and principals to engage in corporal punishment, but that's not really what most caught my attention in the articles I read on this subject yesterday.

What caught my attention was this: Race plays a big factor in who receives corporal punishment. Black students are disproportionately subjected to paddling. Black girls are twice as likely to be paddled as white girls in 13 of the states in the south. Reading this raised so many questions in my mind about how race still subconsciously affects us all in so many small ways that we don't really realize. We really have to stop pretending that we're all cured from our racist past and start dealing with the serious, deep-seated race issues that pervade perhaps every aspect of our lives.

My first question is about the race of the teachers. Is there a correlation between the race of the teacher and the race of the paddled student? Are white teachers more likely to paddle black students? Are black teachers more likely to paddle black students? The articles I read don't touch on this aspect of the issue at all.

My next thought was: is this like the crack cocaine vs. powder cocaine thing? Are black students really behaving worse? Or are teachers just perceiving it that way? In federal drug sentencing laws, the punishments for possession and sale of crack cocaine were significantly harsher than those for powder cocaine. The disproportionate sentences had a racial impact because, speaking really generally here, crack is more of a black drug and powder cocaine is more of a white drug. Crack probably really isn't any more dangerous of a drug than powder cocaine, but it was perceived as being worse because it was generally associated with guns, inner cities, and lower class criminals (blacks).

So I wonder if that is playing itself out also in school rooms across the South. (I'm not picking on the south, that's where corporal punishment is occurring.) The black girls who are getting paddled: are they really being more disrespectful to teachers, talking back more, etc? Or does it just seem worse? Subconsciously, do teachers feel more disrespected when black girls act up? I think it would be far too simplistic, and dangerous, to brush this off by saying, "It just so happens that more black kids than white kids are paddled." Or perhaps the black kids really are just disproportionately troublesome in school. Shouldn't we deal with why that might be? Maybe the black students expect to get into trouble and so play to type. Either way, our racial history just HAS to have something to do with this disparity.

When I was at that conference in July, we heard from a psychology professor at Stanford. She has done a lot of research on our subconscious attitudes about race. I can't do justice to her entire presentation here, but I will relate this one little bit. She did a study where she had subjects in front of a computer monitor. They were split into thirds: one third was primed with a picture of a black man, one third was primed with a picture of a white man, and the final third was primed with nothing. Priming means that the picture flashed on the screen too fast for their eyes to register. Then the subjects were shown a granulated image that would gradually clear over 40 frames. The images were an ape and a gun. Those who were black-primed identified the ape and the gun several frames faster than those who were not primed. Those who were white-primed were the slowest of all to identify the ape and the gun. That was just one study to show our subconscious race biases. When we think black, we subconsciously think "ape" and "gun." (The race of the subject didn't alter the outcomes, as I recall.)

I can't help but link these studies together: we as a nation still have unaddressed, subconsciously-held attitudes about race that are apparently continuing on in the way we treat the next generation. I don't know how to address this problem. But I know we can't just keep pretending it doesn't exist. We need to be able to have real, honest conversations about race rather than just shut down because no one wants to think they're racist. But it would seem that not wanting to think we're racist doesn't mean we aren't subconsciously perpetuating racist stereotypes. So we should own up to it or we'll never get free from our country's past.

And while we're at it, let's stop paddling our kids in school.

Tuesday, August 19, 2008

Dunk time

Can I dunk the Pizza Hut chocolate dunker woman? If you've been watching the Olympics, you know who I mean. She's on like every commercial break. She is seriously getting on my nerves.

I would really enjoy dunking her. Repeatedly.

Monday, August 18, 2008

I am sick of the way religion has come to dominate politics in this country. All serious presidential candidates have to prove their Christian worth and participate in things like faith forums. Something like 70% of the voting populace say they wouldn't consider voting for someone who didn't believe in God. In fact, Rick Warren just told Larry King couldn't vote for someone who was "so arrogant that he thinks he doesn't need any help from a higher power." He seemed to suggest atheists are all, almost inherently, arrogant.

Well, I'm an atheist. And it's really starting to chap my hide that I'm a non-factor in politics. No politicians feel any need to reach out to my voting block. And I don't get the luxury of refusing to vote for a candidate whose belief system does not match my own. Maybe I'd be a lot more comfortable with a president who wasn't looking to some higher power to help out and take care of things. I'd prefer a president who thinks we here on earth have to take care of things ourselves. But I don't get that choice because no matter what the Constitution says, our presidential candidates feel they need to pass a religious litmus test. They have to attract the religious voters, so God talk has to come up everywhere.

Which is starting to make me feel politically irrelevant. Maybe the Rick Warrens of the world should give a little more thought to what atheists are really about. Because your idea of an atheist isn't anything like me. It's not that I'm arrogant and think we don't need any help. I most definitely think we desperately need some help from someone way better and bigger than us; I just don't think it's coming. Apparently that makes me unfit to be president.

Wednesday, August 13, 2008

A town in Arkansas has imposed a 24-hour curfew. As I understand it, people under 18 can't be on the streets at any time without adult supervision. All adults are subject to being stopped by the police at any time of the day or night. If they don't provide a good enough explanation of why they're walking down the street, they'll get extra attention. The articles I have read on the subject have not explained the policy in any more depth than that, but the article to me suggests that police will literally stop and question any person they encounter on the street. I wish I had more information about the mechanics of this curfew. People have to go to the grocery store, people need to go to the store, people need maintenance workers to fix air conditioning or electricity. So obviously not all people can be cited for violating the curfew. I suspect the curfew policy is really in place to provide cover for police stopping and questioning the usual suspects without having to be bothered with actual reasonable suspicion to stop them.

The policy is a response to random shootings and drug-fueled violence. Some citizens of the town report having their children sleep on the floor to keep them out of the path of stray bullets. The town, especially the most targeted neighborhood, sounds like a bad place to live. If I lived there and lacked the means to move out, I would sure want the police to step up and make it a safer place again. But this just can't be the way to do it.

I just saw a news program where a prosecutor and a police detective were discussing this policy. Both of them expressed the idea that if you weren't doing anything wrong, this shouldn't pose any problem for you. Just like I shouldn't object to having to show an id upon demand. And I shouldn't object to the government listening to all my international phone calls. And I shouldn't object to the government getting a list of what books I've checked out from the public library.

Well, I'm not up to anything. I've done nothing wrong and I'm not carrying drugs or any illegal weapons. But I object. I have a constitutional right to traverse the streets of this country without police interference. As do all of you. And I resent the implication that those of us who are interested in protecting our constitutional rights are doing something wrong.

But people are scared and having their kids sleep on the floor, so that fear leads them to willingly accept this kind of intrusion, even to see it as no intrusion at all. I understand that feeling safe to sleep in our own beds and walk down the street without being shot or robbed is important. But is this really the kind of safety we want?

It's easy for people to think that in this particular situation, the curfew policy is a necessary evil, maybe even a reasonable response to the crime that has taken over the town. But it's always easy to agree with each, individual, seemingly small, and short-lived violation of our civil liberties. Before you know it, those seemingly small violations add up to a pretty big chunk out of our That's why we have to be so vigorous in resisting all proposals that would infringe on any of our rights, no matter how innocuous they seem. We simply have to stop being so willing to cede our rights in the name of security. The security we think we're getting is nothing compared to the absolute security of being able to walk down the street when we want, say what we want, and read what we want without any governmental interference.

And if that doesn't convince you this curfew policy is a bad idea, how about this: just wait until the defense lawyers start filing suppression motions on all those guys who have been arrested with drugs or guns. An awful lot of those cases are going to be tossed for violating the 4th Amendment rights of those defendants. At least, they ought to be by principled courts. Because our courts are supposed to be the last defense against infringements on our individual rights, regardless of how willing the majority is to tolerate those infringements.

Tuesday, August 12, 2008

Sick day

Mommy, I know you don't feel good and you're trying to rest so you won't get that cruddy cough. Believe me, I don't want you to get the cruddy cough, either. It sounds really yucky and it makes you no fun for like a week. That's why I was so good this morning and let you sleep so late. I don't think you appreciate how hard it is for me to stay calm that long when you're home. But I did it because I heard you cough and knew you wanted to sleep.

But, now, I think a little play time would do you some good. I think frisky play with an adorable, irresistible little pup is just what the doctor ordered. So come on down to the floor and throw the orange ball for me. You know you want to. And you know I won't take no for an answer.

Sunday, August 10, 2008


Now that's why the Olympics are awesome: international smack talk, a massive comeback by the underdog, and good sportsmanship in the end. I am talking, of course, about that 4x100 freestyle relay. The French were most definitely the favored team, but their world-record holding anchor probably shouldn't have said it quite the way he did. He promised that they would "smash" the Americans; that smashing the Americans was in fact exactly why they had come to the Olympics. I wonder if that's what Jason Lezak was thinking about when he closed in on the trash-talker himself, Allain Bernard, in that last length of the pool. I know that's what I was thinking about. And I am pretty sure I have never screamed that loudly for any other Olympic swimming race before.

That's how I like my representatives to settle scores: on the field of play. The US swimmers didn't respond in kind to the French comment. Nor did I hear any of them say anything much in after-race interviews. Nope, they did their talking in the pool. And it was some sweet talking!

Thursday, August 7, 2008

Blog war fun!

A few weeks ago, I stumbled upon this blog written by a woman who is, as far as I can tell, a crazy, irrational, right-wing wacko who hates all things liberal, soft-on-crime, and un-Christian. She writes irrational, hate-filled rants aimed at liberals, homosexuals and those who love them, and criminal defense attorneys, among others. Not only are her posts offensive, but they are laughably ignorant and illogical. I actually can respect people who have different opinions from mine, but not if they are so poorly-reasoned and so obviously lacking in any critical thinking. And so filled with such hatred. More than anything, I go crazy when people can't express the simplest of ideas without resorting to nastiness and name-calling. It's so Nancy Grace. Ugh. So she's basically a person that I should never be in the same room with ever unless everyone else is given flak jackets. She would say stupid, offensive things that I wouldn't be able to let go and we would be off.

In the last few days, I've taken to commenting anonymously on her blog. Perhaps cowardly, but really just to protect my own blog from her demented, evil rantings. She has no idea I'm out here, which is probably good for my personal safety, given how much she appears to hate liberals and defense attorneys. And she allows anonymous comments, as do I, so I think it's fair. (And, no, I will not share a link lest any of you leave a comment that allows her to track back to me!)

I think her head is about to explode after some of the comments I've left tonight. To which I say: good! She seriously needs to be made to stop and think before spewing her crap. And I think it's energizing me. All of my comments have been perfectly respectful. I have not resorted to any insults. I haven't even pointed out how her own hate-filled vitriol obscures whatever legitimate points she might have to make. But I feel better. Like maybe in this one small way, I can fight against some of the nastiest perceptions of defense attorneys and those who oppose the death penalty.

It's been fun. But I guess it's not fair to call it a blog war, since it is entirely one-sided. A blog ambush!

Presumed dead

The presumption of innocence is dead. I am sadly, but firmly, convinced that the general public does not presume people accused of crimes to be innocent. This probably isn't news to any of you who practice criminal defense.

How often do people in jury selection indicate that they think the defense should put on evidence? That they would hold it against the defendant if s/he didn't testify? Happens all the time.

The general public thinks it can be used as evidence of guilt if the defendant didn't talk to the police. They think the mere fact that you were arrested means you must have done something. They think defense attorneys are just shady money-whores who would do anything to get their guys off. Or that public defenders are just bad lawyers who couldn't get any other jobs. They think they would rather err on the side of imprisoning an innocent person rather than allowing a guilty person to go free.

These people are our prospective jurors. No matter how much the judge or prosecutor tells them they have to presume the defendant innocent or that they can't consider the defendant's decision not to testify, they're not going to change their deeply-held views. They're just not. They will maintain their biases in the jury room, they will continue to view the non-testifying defendant through their perspective that a truly innocent person would testify to clear his/her name, and they will continue to lean towards conviction before they've heard one word of testimony.

So how do counter this? How do we convince the American public that it really is better to let 10 guilty men go free than to convict one innocent person? How do we convince them that there are legitimate reasons, completely consistent with innocence, for a defendant not to testify in his/her defense? How do we revive the presumption of innocence? We have to find a way, because courts aren't going to let us remove all of these potential jurors for cause.

Wednesday, August 6, 2008

I'm always bothered by those cases where I get the right resolution, but for the wrong reasons. If my client was unjustly charged, my end goal has to be avoiding a conviction, whether that comes because I found conclusive proof of an alibi or because the complaining witness failed to show up at trial. I shouldn't get hung up on the why and just be thrilled that my client got the correct result. Right for the wrong reasons is good enough for the appellate courts; it should be good enough for me.

But there are some cases where it becomes really important to me on a personal level that the client doesn't just get the right result, but gets vindication. Some clients deserve total exoneration and anything less than that feels like a failure to me. It isn't enough for me for the prosecutor to acknowledge he can't prove his case. I want the prosecutor to acknowledge that my client didn't do anything wrong. I want the prosecutor to acknowledge that the "complaining witness" should never have been believed or that my client really wasn't the shooter.

Most often, I walk away from a dismissal of a case feeling like the prosecutor still assumes my client did exactly what the arrest warrant affidavit says he did. And this drives me crazy.


I do not delight in the losses of others. Unless those losses come in primary elections. And are suffered by certain sitting district or county attorneys. I do find those losses quite delightful!

Tuesday, August 5, 2008

All I need...

I need to break out of my funk. I've been in it for way too long. I need to generate a serious, long-term burst of energy that will get me up and moving to do all of the things I have not done in depth for far too long.

1) I need to clean out my fridge, take my recycling to the recycling center, and remove all the clutter from my kitchen.

2) I need to put together the cubby bench I bought for my entryway and hang the coat hook. These things will make my entryway look much, much better. I have these things; there is no excuse for them still being in the packaging.

3) I need to fully move into my library. I painted that room a gorgeous red, my favorite color, but I never use it. In over two years, I've never fully moved into that room.

4) I need to store all my off-season clothes. I need to weed my entire clothing collection and donate to good will those things that I really don't wear anymore. The clutter in my bedroom is just silly. I need to refrain from buying any additional clothes or shoes until I have this task done.

5) I need to run again. I love how I feel when I run. Well, after I run. I feel sluggish and chubby now. I know that running would make me feel better. So I just need to do it already.

6) I need to clean and organize my office. I need to stop being afraid to commit words to paper. I have done enough research. I know the issues. Now I just need to convince the prosecution and the court that my research supports the result I want and is unavoidable. I can do this. I need to remember that I am an awesome lawyer with an excellent track record. Why did I let myself forget that?

Sunday, August 3, 2008

Why not charge?

It's not a small thing to be charged with a crime. Sometimes, I think police, prosecutors, and court personnel need to be reminded of this. All too often, police hear accusations and denials and think, "this is a disputed, he said/she said thing, so I'll just turn the mess over to the prosecuting attorney and let him/her decide what to do with it." Then the prosecutor sees the same muddle and thinks, "I'll just present it to a jury and let them decide." This is deemed an equitable and just way to resolve a dispute. But there are serious, life-altering consequences to being charged with a crime that should not be overlooked before that decision to file the charge and "let a jury decide" is made.

Say you're charged with a low-level felony based on this accusation. Well, an arrest warrant has to be served and you'll be taken to the county jail and booked in, fingerprinted, searched, etc. This could become humiliating quickly if the jail performs strip searches on incoming inmates. Now, where I'm from, if you're arrested on a felony, no matter how minor, you can't just be bailed out of the jail. So your friend or family member can't follow the squad car that takes you in and have you bailed out as quickly as you can be processed in. For a felony, a judge has to set the bond amount, which means you stay in the jail at least until you get your first appearance the next business morning. If your sheriff is like mine, he will likely wait until Saturday to serve that arrest warrant, so you have to spend two nights in jail before a bond can be set. (The jail gets money from various sources based on how many inmates it houses each night so they make money off of your lost liberty.)

A lot of local papers publish a daily list of arrest reports, so your friends, neighbors, and colleagues or employers will all be able to see you were arrested and what the charge is. I hope your job doesn't have a low tolerance for absences, because if you're scheduled to work Sunday or Monday, well, you won't be able to show. And a job that has a low tolerance for any absences probably isn't going to be swayed by your protestations that the accusation against you is false. For a lot of people, it is a very real possibility that having to spend two or three nights in jail could cost them a job.

Even after you get your first appearance, you still have to wait a while to bond out. The judge doesn't just set a bond amount without having any knowledge of your history. The judge orders a bond screen to be completed by court personnel. They are supposed to do some pretty basic checking of your criminal history, including whether you have a history of failing to appear for court. They should check on your known address, employment, and other ties to the community. The purpose of bond, after all, is to insure your appearance at future court appearances. If the court personnel have too many bond screens to do or have other work tasks that need to get done or just have a long lunch or afternoon doctor's appointment, your bond screen just won't get done. They'll still get to go home at 5 whether they finished all the bond screens or not. It won't affect their lives one bit that you have to spend another night in jail just because they didn't do their jobs.

So once the bond finally gets set, you have to hope it's a low enough amount that you can pay the entire thing in cash. If it's low enough, you can pay the entire $500 or $1000 in cash, knowing that you will get that amount back after the case is done if you make all your court appearances. Of course, few people can just fork over that much cash and not feel it. Getting the money back in 3 or 4 months doesn't help you pay the rent this month. Losing that cash now would suck the most if you're one of those lucky folks who lost a job over a few nights spent in jail. If the bond is too high, your family is put in the heart-wrenching position of having to decide whether they will fork over the 10% to a bail bondsman to get you out today, knowing that money will then be lost forever, or whether to wait until the next day when they can appeal to the judge to lower the bond, knowing you'll then have spent yet another night in jail.

When you do make your court appearance, you're in those horrible jail scrubs, slippers, and shackles. You're shuffled into court in this condition for all to see. At these cattle call dockets, there are usually a lot of people in the courtroom to witness your humiliation. It really doesn't matter whether you know anyone in the room or not; at least your family knows you don't belong in shackles, but those strangers will see only another common criminal.

Even if the charge is ultimately dismissed or you are acquitted by a judge or jury, none of the prices you have already paid can be repaid to you. You may get the money you paid out in bail, but that's going to be your only compensation for the nights in jail, money paid to a lawyer, the humiliation of being known in your community as an alleged criminal, and the anxiety of dealing with it all. And the consequences can continue long after the case has been decided in your favor. Potential employers who conduct background checks may find out about your arrest history and not care about the end result of the case. Most papers don't publish a report about your non-conviction. So the damage of being charged with a crime may hang over you long after the prosecutor and court have forgotten about your case, having written your case off as one that proves the system works.

All of the above applies equally to cases of over-charging. Charging a felony for misdemeanor conduct yields many of the same unfair consequences, especially as it relates to bail. Don't think I don't recognize the role defense attorneys can play in this process. We also can contribute to the consequences by delaying a bond hearing a day or by asking for continuances. Sure, we have lots of cases to handle and can't get to everything as quickly as we would like, but we should always keep in mind that our garden variety agg battery case is the most important thing in our client's life. But my focus here today is on the initial decision to charge.

Because of how serious the consequences of simply being charged with a crime can be, police and prosecutors need to be incredibly thoughtful before making the decision to arrest or charge someone. I worry that it's easy for people involved in the court system on a daily basis to forget what a big deal it is for an accused to get sucked into the system. But it is a big deal. A huge deal. For many people we deal with, this charge will be one of the worst things they will ever have to face. Police and prosecutors need to be mindful of this fact, and make sure that they're only commencing criminal prosecution where it really is warranted.
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