Wednesday, January 28, 2009

I want off this train

By the time a case gets to me, the train wreck has already happened. The thing is done, the bodies are cold, and according to Farraday's rules of time travel, even if I could go back in time, there's nothing I can do to change it. I just get to hear about it after the fact.

But my hearing about it or reading about it after the fact feels like watching the train wreck happen in super slow motion from behind a sound-proof, one-way window. I can see all the things that lead up to the wreck and can see all the ways in which the wreck could have been avoided. I can see all the wrong turns and the bad choices and the sheer waste of it all. But the people on the train can't hear my warning and they can't see me frantically waving my arms. They can't see all the alternate tracks the train could have gone down to avoid the wreck. They didn't see the stop light or hear the warning whistle. They can't see the last chance they have to at least jump off the train and avoid the worst of the carnage. And there's not a damn thing I can do about it. So every time the train just barrels on, the wreck occurs, and all I can do is be part of the clean-up crew.

Sometimes I get very frustrated that there's nothing I can do to go back in time and make all the people, my clients, co-defendants, family members, and, yes, even the eventual victims, make the right choices, the ones that won't end in the big train wreck. I get tired of dealing with the carnage.

Can I take a day off and just go do nice, happy, abuse-free, it's-for-the-best-for-everyone open adoptions?

Jessica Alba is smarter than Bill O'Reilly!

Ha! I hadn't heard about this before. Apparently, at some inaugural event, Jessica Alba got into a conversation with a reporter. She asked the reporter what he thought was President Obama's greatest characteristic going into office was. The reporter didn't know how to respond, so Alba made a comment about journalistic neutrality. "Be Neutral! Be Sweden about it."

Much mockery ensued. (Seriously, how did I miss this? I would have loved to catch this immediately.) Celebrity websites mocked her for "confusing" Sweden with Switzerland. Bill O'Reilly said unkind things about her intelligence and knowledge of history. There seems to have been a lot of clucking, head-shaking, and general "those silly celebs are so ditzy" snarking.

But here's the thing. She was right and everyone who mocked, judged, and snarked (and, yes, I mean you, Bill'o) were wrong, wrong, wrong. As many of the commenters to the celebrity websites seem to have known. Sweden was most definitely neutral in World War II. Switzerland may be more famous for it, what with being smack in the middle of Europe and all, but Sweden is not an incorrect choice, either.

I love it when Bill O'Reilly, the smuggest SOB on television, is proven factually wrong about something he states with his characteristic level of certainty, complete with that dismissive, you're-such-an-idiot-if-you-thought-for-one-millisecond-otherwise head toss and hand wave. I remember when Lawrence v. Texas came out, he said in just that tone and with just that head toss and hand wave, that good conservative justices, Scalia and Thomas named specifically, were on the side of the gay men in that case. (This was the case where the US Supreme Court ruled that consensual sodomy could not be criminalized.) Well, Bill'o was most definitely wrong on that, as anyone who had actually read the case should know. Scalia and Thomas were the dissenters on that case, perfectly a-ok with our state legislatures criminalizing private, consensual adult behavior. Strangely, I never got a response to the e-mail I sent correcting him.

I wonder if Jessica Alba will get an apology. If I were her, I wouldn't hold my breath.

Tuesday, January 27, 2009

Prosecutors Packin'

This is the new proposal making the rounds at the Kansas legislature this week. The bill would allow prosecuting attorneys who have concealed carry licenses and who receive supplemental training from the Kansas Law Enforcement Training Center to carry their guns to the same kinds of special locations that only law enforcement officers can take guns now. The bill is specifically intended to allow prosecutors to carry concealed weapons into courtrooms.

At least two prosecutors spoke to the senate committee that passed the bill on to the full Senate. I am unaware of any opponents of the bill who spoke to the committee. I also do not know whether the committee solicited testimony from other court personnel, judges, victim's organizations, or defense attorneys. The bill passed the Senate 39-0. Yikes.

This bill is painfully flawed on many levels. First, I dispute the claims by prosecutors that this measure is necessary to ensure their safety. Armed officers are always available to be in a courtroom. Generally, security of the courtroom is a matter for the sheriff's department. If a particular defendant poses a greater threat than most, the proper response is for the sheriff to increase the security presence in the courtroom accordingly. I do not know what support, if any, the testifying prosecutors offered to the senate committee as explanation for why this measure is necessary. I'm looking for something beyond the basic we get threats and some of our defendants are bad, bad guys. I am unaware of any incident in the state where a defendant posed a physical threat to a prosecutor. (I am aware of a publicized incident in which a prosecutor asked the defendant if he wanted to take the matter outside, but that's a matter for a different blog post.) Whatever threats do exist are best left to law enforcement.

Second, the ability for one side but not the other to carry concealed weapons into a courtroom does much to skew that level playing field the criminal justice system is supposed to strive for. Both prosecutors and defense attorneys are officers of the court. Both are supposed to be equal parties in the eyes of the court. But the reality is that prosecutors possess an air of authority that defenders do not, at least not in the eyes of jurors. The prosecutors represent the state, the government. They're official. They're authority figures. Defenders represent just one lowly schmuck who did something wrong. "Yeah, yeah," prospective jurors say, "presumption of innocence." All the while, they're thinking the defendant must have done SOMETHING wrong to get to the defendant's chair.

Now the state is proposing to create further imbalance by confirming to jurors, witnesses, and the general public that prosecutors are "officials" while defenders are just people in suits. Imagine the prosecutor unbuttons his suit jacket, making his holster visible when he raises his arms. Or that her suit coat is tailored close to the body, making the gun bulge visible. Witnesses may be intimidated into giving answers that are more pleasing to the state, even if they're not as truthful as they could be. Or a witness could be made nervous by the packing prosecutor. That nervousness could lead to stuttering, sweating, or other mannerisms that make a jury think the witness is lying.

The presence of a gun on the person of one attorney, but not the other, has to alter the dynamics of the courtroom. Maybe I'm too pessimistic, but I don't see how those dynamics would be altered in a way that isn't harmful to defendants.

Finally, the presence of additional guns in a courtroom will not make the room safer. Quite the contrary. Courtrooms are volatile places. Emotions often boil over in courtrooms. The families in criminal courtrooms are, in most cases, dealing with the worst thing that will ever happen to them. They're scared, sad, confused, angry, grief-stricken, helpless, out of control. Some defendants are scared to the point of desperation. Many members of the public respond to a heinous crime by swearing, "If anyone did that to my family member, I'd kill him." Mostly, people may feel that way, but would never actually act on it. But it's not so hard to imagine that the parent of a raped, murdered teenage girl might go a little nuts one day and take a wild lunge for that prosecutor's gun. Or that a desperate defendant (Brian Nichols anyone) would grab for the gun. That enraged, grief-stricken parent wouldn't just pose a threat to the prosecutor or to the defendant; s/he would pose a threat to the defense attorney sitting right next to the defendant (sorry if that sounds a little self-absorbed of me, but I really don't want to get shot) or to the court reporter and to all the other bystanders in the room. Brian Nichols did shoot a court reporter and a judge.

This bill (which, sadly, looks like it will become law without much thought) is a solution looking for a problem. I can see no real purpose, no real benefit, and no upside to this bill.

Monday, January 26, 2009

Cop Talk

Why can't cops talk like normal people? My least favorite part of every case is trying to decipher the cop talk. In cop talk, no one ever just does something. Cops say:

"He did go to her apartment." Because "He went to her apartment" doesn't sound official enough?

"She did admit to being at the scene." Because "she admitted she was there" doesn't properly emphasize the significance of the admission?

There are no cars or automobiles in cop talk, only vehicles.

And cops don't do anything without proceeding. "I proceeded to take his statement." "I proceeded to run the vehicle tag." "I did proceed to inform her of her Miranda rights."

When cops testify, they speak in this odd, stilted language that sounds like the foreign exchange student who knows formal construction, but doesn't know idioms and the standard usages of native-speakers. I think this odd, stilted cop talk is a major reason why I tend to distrust the testimony of cops. Maybe if they talked like normal people, I'd be more inclined to believe their testimony. But cop talk just sounds so studied and practiced, it makes it hard to take the testimony at face value. It makes me wonder what they're working so hard to avoid saying.

Can't squeeze blood from a turnip, and you can't eliminate services the Constitution requires you provide.

The Republican leaders in the state legislature have proposed a 3.4% across-the-board budget cut. Nothing would be exempt as far as I can tell. Not education, even though our state constitution requires education be funded. Not agencies that are already operating as efficiently as they can and have already cut wasteful spending. And not indigent defense.

How we're going to cut 3.4% is beyond me. We've already lost our water cooler. We get no CLEs or outside training paid for. We didn't get calendars this year. We only get new furniture when the state banking commission buys new stuff and we get to scavenge their old stuff. Venue studies aren't funded. I don't know what else there is to cut but salary.

Here's what I'm not sure many legislators get: if we cut salary by eliminating an attorney position or two, that doesn't really save the state any money. Because the clients that that attorney would have represented still have to be represented by somebody and the state still has to foot the bill. An across-the-board cut doesn't recognize the difference between indigent defense and other important, but not constitutionally-required, services provided by the state. Cutting our funding doesn't do anything to alter the demand for our services. And as long as there are defendants who need our services, the state is obligated to provide those services. If the state doesn't provide public defenders, defendants are going to walk. I know legislators don't want that to happen.

I worry the next year and a half could get very ugly for us (and, of course, our clients) if the legislature doesn't figure out that they can't just eliminate indigent defense.
Is there any other doctor-patient conversation that garners as much legislative attention as the conversation that occurs before a woman is allowed to exercise her right to an abortion? Our resident builder of legislative roadblocks is proposing the sonogram bill, requiring doctors to offer women one last chance to see a sonogram and hear a fetal heart monitor. He calls it "the woman's right to know and see" bill. Details here.

I know I've complained about these kinds of paternalistic bills before, but this one is being proposed in my state. I don't want it. And the women of the state don't need it. We're actually quite capable of making decisions for ourselves, even extremely difficult, emotionally-draining decisions. We're also quite capable of asking our doctors for whatever information we want or need prior to making our decisions. And, believe it or not, we're more than capable of living with the consequences of our decisions once we've made them.

I'm pretty sure the legislators of my state have more pressing matters to deal with, like a $2-300 million budget shortfall. They should probably focus on that instead of micro-managing doctor-patient communications. The doctors (professionals) and the women (grown-ups) can take care of themselves.

Rod, if that's the best you've got, SHUT UP!

Blagojevich has compared himself to Gandhi and Nelson Mandela. Is he serious? He left out Jesus.

This media blitz really isn't helping his cause. Maybe I'm just pre-disposed to think he's slimy because of that hair. But his words aren't giving me any reason to re-think that opinion. To paraphrase a quote from Robert Guillaume on "Sports Night", no rich white guy ever got anywhere with me by comparing himself to Nelson Mandela. There's a tiny bit of a difference between a man being imprisoned for 27 years for daring to oppose apartheid and the subjugation of an entire race and a man being investigated for being a corrupt SOB.

Sunday, January 25, 2009

I think the huge knitting project I've been frantically working on for weeks now is actually excellent cover for my usual January depression. At times I can get overwhelmed by thoughts of all the things I am not doing: all the books I haven't read, the movies I haven't watched, the runs I haven't gone on, the recipes I haven't cooked, the dishes I haven't washed, the laundry I haven't done. This depression most commonly strikes in January, partly because of all the new books, dvds, and other gifts I got for Christmas and partly because it's always cold and dark when I'm at my house. I have a hard time doing house chores when it's dark outside. I've never quite understood why that is. It's especially hard for me to make myself do chores when it's cold, which seems not to require much explanation.

So for the past few weeks, I have felt like I've accomplished nothing. I haven't touched a book. Most of my clothes are in the hamper. (Well, and a large pile by the hamper. And, yes, a smaller pile by the washing machine.) I think I've forgotten how to run. I have lots of other knitting projects I'd like to get started on. But I'm not doing any of it. At least I can pretend the only reason for my total inertia is this huge project. I'm now over half-way done and getting faster at it every day. I really think I can have it done in two more weeks.

Once I'm done with this project, I'll have to come up with a new excuse for doing nothing. Looking on the bright side, coming up with a good excuse will be hard work. That ought to count for something.
"Paul Blart, Mall Cop" is the #1 movie in America. For the second week in a row.

I fear for my country.

Saturday, January 24, 2009

I'm so proud of my alma mater right now

This is what college students should do. From MSNBC:

Ready to rumble: Dorms prepare for snow fight
Police, medical crews on standby in Wis. as students aim to set world record

Make me proud, my fellow Badgers.

Tuesday, January 20, 2009


25 hours and 25 minutes to go! Until the season premiere of the greatest television show ever (well, other than Sports Night). That's right, tomorrow it's time to get LOST! I bought myself a late Christmas present this weekend, so I can now watch my show on my flat panel HD television. And don't think I haven't gotten around to getting my HD box from the cable company. When right in on Monday morning.

Don't read any further if you haven't yet watched Season 4 (and if you are a regular visitor to my actual physical world, you can borrow my DVDs of season 4).

In just over 25 hours, we'll get to see Jack and Hurley and Sayid and Kate. Maybe we'll get to learn something about where the heck the island went. I'm hoping it won't take long for us to learn whether Jin lived or died. (He has to be alive, right?) I don't think we'll get any quick answers about Claire, but we can perhaps see Desmond living with his Penny. And we'll start down the path of finding out how on earth John wound up in that coffin. I can hardly contain myself. Would it be wrong for me to call in sick to work tomorrow so I can watch a LOST!marathon? Probably would be, especially now that I've publicly stated that as a possibility.

Today, President Barack Obama inaugurated. Tomorrow, the season premiere of LOST. What a great week.

On a side note, I know the posts on this blog cover an eclectic variety of topics, from the law to politics to the news to my dog to television. My best friend tells me she appreciates that aspect of my blog because it's so very me. I think she would tell you that I really can be equally intense about all of these topics.

Simple Gifts

Tis the gift to be simple, tis the gift to be free
Tis the gift to come down where you ought to be
I have always loved that beautiful and simple Shaker hymn, so I was delighted to hear it performed so thrillingly at the inauguration. (How brilliant was John Williams' arrangement? The man who wrote the Star Wars theme can do no wrong in my eyes.) I have found myself humming the hymn all afternoon.
It occurred to me when I got home that I have special reason to appreciate the lyrics: I have come down where I ought to be. Just last night, I was chatting with a friend of mine who has been going through a transition period in her professional life. She is trying something new, but still isn't quite sure that she's hit the right thing for herself. Then I reflexively said, "I don't know what else I would do. I just AM a lawyer." She responded she could see that about me.
A few years ago, my parents and I met up with my dad's cousin and his wife for dinner. The couple has been an aunt and uncle to me. Mrs. Cousin told me that she had not been surprised at all when my parents told her that I was going to law school. She remembered thinking when I was just 9 that I would be a lawyer someday. I could argue anything, she said. "But not in an annoying way," she assured me. When I was younger, my dad nicknamed me "Split Hair Sarah" in recognition of my ability to find the loophole or seize on a careless turn of phrase.
So really, no other profession could be right for me. I may not always have had a law degree, but I've always been a lawyer-in-waiting. And I really don't know what other application of that legal training would be right for me. Defending people is just what I was born to do. Perhaps those who have urged me to try prosecution for a little while have a point, that I would have a better appreciation for the entire criminal justice system, but I just can't do it. I would be a fraud as a prosecutor and everyone would know it.
On this day of hope, I have realized how very lucky I am to have found myself in the place just right. It is not a small thing and I do not take it for granted. I hope that all of you have, or will soon, come down where you ought to be.

There's no place like home

When we were children, my sister and I went on lots of road trips with my parents. We drove all throughout the Great Lakes region, all the way to San Francisco, and to D.C. We also took lots of day trips to the Kansas City area, including many visits to what was then called Royals Stadium. Most of our trips, though, were to our grandparents' house in Iowa.

Whenever we drove across the state line from Kansas into Missouri, my drama queen sister and I (also a bit given to dramatics) would wail and moan and gnash our teeth. My parents would hear hideous cries of pain from the backseat. They never asked what we were carrying on about, because they knew -- we were in misery! (Get it? If you're not a Kansan or a Missourian, you may not understand the unmitigated hatred that exists between our two states. It goes back to the civil war and the time those evil Missouri thugs came to Lawrence and burned our town down, killing most of the men. They'll claim we started it, but we so did not!) And every time we crossed that state line back into our beloved home state, we would let out huge, contented sighs of relief. We had made it. Survived. We'd been saved from the clutches of misery.

Well, that's rather how I feel today. Like I've been stuck in Missouri for 8 years. And today I am finally crossing that state line back into my beloved home state. I can let out that tremendous sigh of relief I've been waiting to exhale. I made it. I'm out of misery.

Monday, January 19, 2009

We respect your rights, but we reserve the right to violate them

The United States Supreme Court will hear an interesting case on Wednesday. I don't think I find it interesting just because I know the people arguing it, either. Though it is more fun to read the oral argument transcript when you know the people interacting with the justices.

The case is Kansas v. Ventris. As Mr. Ventris waited in jail for his trial, after he'd been charged and was represented by counsel, the prosecution decided to put a snitch near Ventris to try to get an incriminating statement out of the defendant. After Mr. Ventris testified at trial and denied his involvement in the crime, the state put on this snitch as a rebuttal witness because the snitch claimed that Ventris made incriminating statements in the jail. The Kansas Supreme Court ruled that the statements should not have come in, even as rebuttal evidence, because statements obtained in violation of the 6th Amendment right to counsel can never be admitted at trial. I guess we'll find out on Wednesday a little something about how the US Supreme Court feels about this.

Now, the state does not dispute that they violated Ventris' 6th Amendment right to counsel by using an agent of the state to solicit statements from him after he was represented by counsel. The state says it would never seek to introduce these statements in its case in chief because that would be bad, unfair, and a violation of Mr. Ventris' rights. But, they say, they must be allowed to offer these statements in rebuttal to protect the criminal justice system against perjury. Because if a defendant gets on the stand and denies culpability, s/he must be lying and that lying must be addressed.

The state's argument seems to require the assumption that the defendant who denies involvement is committing perjury while the snitch who claims the defendant confessed in jail is entirely truthful. The snitch in this case was related to the prosecutor or the sheriff (I can't remember which) and got some tremendous benefit for his testimony. It seems pretty obvious to me that the snitch would have known going in as an agent for the state that he might receive a big benefit if he could get Ventris to talk. Given what a big benefit was available to him if he could get Ventris to talk, it seems likely to me that the snitch would at least have incentive to seriously misconstrue any of Ventris' words if not flat-out make them up. But the state doesn't see it that way. They don't see any need to question the honesty of the snitch's testimony. They accept on faith that the snitch is telling the truth and the defendant is lying. Therefore, they say, it's essential that they be allowed to use evidence, even evidence obtained in violation of a constitutional right, to protect the integrity of the criminal justice system.

Does that seem odd to anyone else? That the state can protect the integrity of the system by violating a defendant's constitutional right? If the state really wants to protect the integrity of the system, shouldn't they start by respecting as inviolate the right of an accused to the effective assistance of representation? If they aren't willing to respect that most basic right, why should I trust that they're doing anything else by the book?

I remember in my first year of law school when we first studied Mapp v. Ohio. (For you non-lawyers, that's the case that established the states were bound by the exclusionary rule, which prohibits the use of evidence obtained in an illegal search.) I was stunned to learn that the exclusionary rule was at all controversial. I still have a hard time comprehending how anyone can think the exclusionary rule is wrong. It seems so basic to me, so clear. Evidence obtained in violation of the constitution should not be admitted at trial. No, the 4th, 5th, and 6th Amendments don't explicitly say that, but they shouldn't have to. It just naturally follows. There has to be a remedy, and that remedy most logically should be that the state can't use whatever evidence they obtain through the rights violation. After all, what good is a right if the state can violate it at will?

I've always believed that evidence obtained in violation of a constitutional right is inherently suspect. If you'll break the rules to get the evidence, why should I trust that the evidence was found where you say it was found or that the defendant said what you claim he said? The state of Kansas freely admits they violated Mr. Ventris' 6th Amendment right. But I'm supposed to take their word for it that the snitch testimony itself is reliable?

If the state of Kansas gets its way, prosecutors throughout the country would be empowered to violate defendants' 6th Amendment rights whenever they want. They could arrange willing inmates near big target defendants and hope they got good testimony from those willing inmates. Maybe they could even go so far as to record conversations between attorneys and their clients, with nothing but their discretion to guide them in deciding when the defense had opened the door to use of those conversations at trial.

I sincerely hope the US Supreme Court doesn't fall for this line. They can't protect the integrity of the criminal justice system by allowing for wholesale violations of the rules of that system. I hope the Court knows it shouldn't trust the prosecutor who tells them otherwise.

Goodbye to You

As I was driving around town today, enjoying my holiday, the ultimate '80s break-up song came on the radio: Scandal's "Goodbye to You." This song captures the sense of what can only be called relief when a couple finally acknowledges that the relationship is beyond repair. I think it's a down-right upbeat song. And it perfectly captures my mood right now. Goodbye to you, indeed, President Bush. All I can feel as we live through the last few hours of this failed presidency is a tremendous sense of relief that it's almost over and we all survived. At the end of the song the DJ announced that's the same feeling that led her to play the song.

I have a fabulous new Calvin Klein dress that arrived via UPS today. It's all ready for me to wear tomorrow with my adorable gray boots. Tomorrow feels like an occasion worth dressing up for. And I have my colossal cookie to bring to work. For every work party, I bring the colossal cookie, so I had to get one with red, white, and blue frosting for tomorrow. And for the next 20 hours, I will be singing "Goodbye to You" in my head.

I know that Bush really isn't the devil. He probably even did a thing or two that I approve of. And I definitely know that Barack Obama isn't a savior who will magically and instantly fix every problem facing us. In fact, I fully expect him to screw up (as any new president will) and I even expect him to do a thing or two that will thoroughly piss me off. But I also feel we desperately need a change: a change in attitude, in expectations, in leadership. So I am unabashedly excited for tomorrow.

Saturday, January 17, 2009

Teens will be teens

I mentioned briefly the story of several teenagers, all under 18, who were charged with possession and distribution of child pornography for photos the girls took of themselves and texted to the boys. Here is the link to that story.

Maybe there's a lot more to this situation than is being reported, but I kind of doubt it. Based on what we do know, can anyone please explain to me how such a prosecution is warranted? Who benefits? I don't know specific sex offender registration laws in Pennsylvania, but I would guess that these kids, if convicted, would need to register as sex offenders, at least for 10 years. None of those kids will be served by having to endure the next 10 years of their lives with that spectre hanging over them.

I have a hard time seeing this case as anything but a complete waste of time and judicial resources. Not to mention that each one of these kids will need to have lawyers, so there are 6 separate defense attorneys who have to put time into this nonsense. This would be a prime example of that prioritizing I wrote about a poor decisions and save the criminal justice system for people who are actually doing harm to others.

Consider that a warning, CNN

As I said before, you don't report on a streak!

You dodged a bullet with that crash into the Hudson this week. Fortunately, Captain Sully and his crew were too cool under pressure to be affected by your jinx. And really, kudos also to all the passengers who did not allow panic to create a catastrophe.

But I do hope that the reporting powers that be will not ignore the lesson of this incident: you don't report on a streak! If we never, ever mention that particular streak again, maybe we can keep that streak going forever.

Wednesday, January 14, 2009

Ask a simple question

and sometimes, even from a politician, you can get a simple answer. But Obama spokesman Robert Gibbs gave about the simplest answer possible the other day. A Michigan resident asked if the Obama administration did in fact plan to do away with the military's don't ask, don't tell policy. Gibbs' answer: Yes.

No hemming and hawing, no pussy-footing around. Just a one-word answer. To which I respond, "Yes!"

It's a policy that needs to end. No hemming and hawing, no pussy-footing around. Just end it.


1) Death-faker dude is in custody. Well, he's in the hospital. They found him with a slashed wrist, estimating that if they had found him even an hour later, he would have died from blood loss. He's now been charged with financial crimes in Indiana, he's probably facing charges somewhere for the plane ditch (some kind of reckless endangerment?), and his wife has filed for divorce. This has not been his best week. I find it interesting that he was apparently well-supplied to stay on the run for a while, but once feeling the pressure of actually being on the run, he didn't last very long.

2) The former BART officer who shot and killed the unarmed man in the back has been charged with murder. I don't know enough about California murder statutes to make a good guess about what the exact charge is, but from what little is in this story, it sounds like perhaps it's what we in Kansas would call 2nd degree murder: an intentional murder. (First degree is an intentional murder done with premeditation). Of course I will keep track of this case to see how it all pans out.

Lest you think I'm overjoyed about this charge and will gleefully root for this cop to be prosecuted to the fullest extent of the law because all cops are evil, let me assure you my defender hat is firmly in place as I read the article. The defendant has invoked his right to silence and so has not met with officers or prosecutors. Of course he has because he's already represented by counsel and any defense attorney worth his/her salt will tell you no defendant ever did him/herself any good by talking to the police. The Alameda County District Attorney seems to lament the fact that the officer received sound legal advice. "In terms of an interview at this point in time, our hands are tied," he said. Gee, I'm so sorry a defendant's invocation of his Constitutional right makes your job so tough.

Prioritizing is hard, but somebody's got to do it

State budgets everywhere are taking a huge hit. We're all aware of hiring freezes, denial of paid CLEs, cuts in supply budgets. I'm sure most PDs have also been urged (instructed?) not to seek experts or evaluations or anything else that costs money. (The budget folks and legislatures don't seem too concerned with helping us figure out how we continue to provide our clients effective assistance of representation if we can't do anything that costs money...)

Now the spectre of the "L" word has been raised. Not that anyone has said there will be layoffs or that they're likely in the future, or even a possibility that has been discussed. Of course, it's totally illogical to lay off PDs because those indigent defendants still have to be represented somehow and the state still has to foot the bill so the state wouldn't save any money. In fact, appointed counsel arguably costs more than salaried PDs, but I'm not sure legislatures and state budget gurus get that. Maybe it's just paranoia to think about layoffs, but it's not so easy to laugh off that paranoia these days.

But here's the thing: there's really only one way to cut back on defender services. Prosecutors have to file fewer cases. Charge more things as low-level misdemeanors that don't require the appointment of counsel. Or decline to charge more cases. And, of course, there's that big ticket item: the death penalty. We'd see an immediate cut in defense spending if defender systems didn't have to pay for the experts and the records and investigation necessary to defend a capital case. If you want to pay less money for indigent defense, you just have to have fewer defendants. But as long as there are indigent defendants, the state will have to shell out money for their defense attorneys.

And there are definitely ways for prosecutors to cut back without letting violent criminals who pose a danger to the rest of us off the hook. There are lots of cases that really don't need to be criminal cases. Earlier this week, I read a story about teenagers who were charged with child pornography. Two girls and (I think) three boys, all under 18, were charged because the two girls took pictures of themselves and sent them via text message to the boys. Technically, this may fit the statutory elements of creation and/or possession of child porn. But how on earth is such a prosecution necessary? The purpose of statutes banning child pornography is to prevent children from being harmed and exploited by adults, predators. Prosecuting these teens does nothing to meet those ends. Teenage boys aren't usually predators; they're just horndogs who aren't terribly likely to voluntarily delete suggestive pictures of their girlfriends off their phones. This is a situation that should be handled by parents and maybe a school guidance counselor, but the criminal justice system doesn't need to be expending any of its precious resources on this matter.

Then there are the drug cases where someone just has to spend some time in jail for possession, even when the prosecutor believes the defendant's sympathetic story for how he came to be in possession. If you believe the defendant got stuck with the bag that his buddy foisted on him when the cops showed up or that got left in the buddy's jacket pocket, why pursue a case against the defendant? How does society benefit from that guy doing jail time, probably losing his job as a result (and being more unemployable when he gets back out)? Prosecutors need to be willing to let those cases go. The police got those drugs off the street, so call it a victory and move on to people who really should spend some time in jail.

If PD budgets everywhere are facing legislative slash and burns, the burden goes on the state to respond accordingly. Prosecutors have to make smarter choices about who to prosecute and who not to. They alone have that discretion. Just because a criminal case can be made doesn't mean it has to.

Earlier this week, the US Supreme Court heard argument in a speedy trial case. At issue was whether delays attributable to state-appointed defense attorneys should ultimately count against the state for purposes of deciding whether the defendant's constitutional right to a speedy trial has been violated. This particular case had bad facts, but I think the basic argument has merit. If a defendant has to wait 3 years for his trial date to come around because the state's PD office is so backed up, they can't turn their attention to it, shouldn't the ultimate fault lie with the state that is not adequately funding indigent defense? The state has failed to provide the defendant a speedy trial if the state creates the conditions that prevent the defendant's case from proceeding to trial.

PDs nationwide are drowning and no state legislature is willing to throw us any lifelines. So it really does fall to the prosecutors of the country to recognize the reality that they simply have to change their charging decisions. Let a few bar fights go without charging felony battery. Maybe don't press novel theories of criminal liability right now (like charging the bartender who served one or two drinks for manslaughter when a customer dies from alcohol poisoning). Investigate some cases before you file charges based on the police report. If you meet with the complaining witness before filing the felony charge, you might learn a lot faster that the cw is full of crap and won't ever be believed by a jury. Not only have you spared the court and defender some time (and therefore money), but you've also saved yourself the embarrassment of filing bogus charges based on the word of a liar. Certainly a more cost-effective result than waiting three months to dismiss the charges, after a defense attorney has made four court appearances and filed three motions.

It's when defense attorneys are stretched beyond the breaking point, can't hire experts, and have such crushing workloads that cases languish for years that innocent people get screwed or that people get much harsher sentences than their conduct really merits. Issues don't get spotted, so objections are missed or pre-trial motions don't get filed. But ultimately, control over the PD caseload falls on the prosecutors who decide which, and how many, cases to file. If PDs have to tighten our belts, so does the state. I'd hate to see the results otherwise.

Tuesday, January 13, 2009

Well, crap

As I was driving home from work today, I did my usual run through of all my programmed radio stations. I got to one that calls itself a "quality" rock station, Boulevard 99.7. It's fairly new. I wasn't immediately sold on it, but it's been growing on me in recent weeks. I'm still mourning the loss of "world class rock" when The Planet 97.3 went off the air (the best radio station ever; it was basically my cd collection), so perhaps I wasn't fair to the Boulevard when it first launched. There's certainly a dearth of decent radio stations on the basic airwaves, so I should just take whatever good stuff I can get. This morning, I heard Paul Simon among others. Tonight, though, when I pushed button 6, I got some pop ballad with hip-hop undertones. That's fine if you like it, but it is so not my cup of tea. I did a double-take. In fact, I'm pretty sure I did the confused-dog-head-cock thing. I checked the button number. I pushed it again, just to make sure. Still the icky ballad.

That's when that feeling of dread takes over. Format Change. Are there any two more feared words in the radio world? I listened to the rest of the song, just so I could be sure. Immediately after the song ended, I heard confirmation. "You're listening to the new Kiss FM." Ugh. Of all the radio chains out there, Kiss was the one I was happiest not to have around here. Then it got worse. "With Kit Craddick in the morning and Ryan Seacrest in the afternoons."

Guess Kansas City doesn't need any more quality rock. Just awful morning shows and mindless pop for us.

Monday, January 12, 2009

Worst death-faker ever

Here's a little tip, from me to all of you:

If you're planning on faking your death, don't show police your driver's license AFTER the plane that you are supposed to be in has crashed.

Did missing pilot fake his death? Police were searching on Monday for an Indiana man who may have parachuted from his small plane after calling in an emergency and left the aircraft on autopilot until it crashed in Florida.

The man's plane crashed last night. The plane has been found, with no sign of the pilot, who police suspect parachuted out over Alabama. His marriage is falling apart and he's facing a criminal investigation. So investigators began to suspect he staged the plane crash in a fairly lame attempt to fake his death. Especially lame given what happened in Alabama today. Earlier today, some guy in Alabama was found by police. He said he'd been in a canoe accident, so they helped him out by taking him to a nearby motel. He showed those police this missing pilot's driver's license! Surprisingly, he was gone by the time the police learned about the plane crash and came back to talk to him.

I'm sure there are a lot of details to keep straight when carrying out a staged death. A lot of contingencies need to be accounted for. It's a tricky business and I can't help but admire anyone who has the nerve to try it.

But not showing your true id to police officers after you're supposed to be dead seems like a pretty obvious no-no.

Gee, thanks CNN

Now you've jinxed us all! As soon as they report that there have been no U.S. airline fatalities for two years, you know there's gonna be a plane crash. You don't report on streaks!

Baseball announcers don't ever mention the "p" word, even though by about the 5th inning, everyone in the park and watching at home has realized that the pitcher hasn't allowed anyone to get on base.

When the basketball player steps to the foul line, the announcers say nothing about the fact she's hit her last 20 free throws until AFTER she puts up her shot(s)!

You don't report on a good streak because as soon as you do, the streak inevitably ends. Well, if you're on the other team's side, you report on it because you hope the streak ends.

So, CNN, are you just on death's side?

Saturday, January 10, 2009

It is distressing to learn that people think far less of you than you realized.
Who's got the roughest time of it behind bars? People always claim that inmates are tough on the petite guys, beat up or rape the kiddie diddlers, and do horrible things to the child killers. But I'm guessing this guy didn't much enjoy his time in jail.

Apparently in Alabama, county sheriffs get to pocket whatever budgeted money is left over after they buy food for the inmates. Not that any sheriffs would consider that as any incentive to provide smaller portions or cheaper food to inmates. Certainly not that sheriff, who reportedly only served fruit 3 or 4 times a year, and instead bought nothing but hot dogs, bologna, and peanut butter for sandwiches. He's not the first Alabama sheriff to be accused of severely underfeeding his county's inmates, either. Maybe Alabama wants to rethink that law.

The sheriff only spent one night behind bars, for now, and not at the same facility he's responsible for feeding. It would have seemed a better punishment for him to be made to eat the way he's been making his inmates eat while he's been padding his bank account.

Wednesday, January 7, 2009

Is there too much "force" in our police force?

In case you missed this story, an officer for Bay Area Rapid Transit (BART) shot an unarmed man in the back after midnight on New Year's Day. The man died about 7 hours later. The officer has now resigned from the police force. An attorney representing the dead man's family or estate has filed a $25 million claim with BART. A criminal investigation is also underway.

Then I saw this story: Survey: ER doctors suspect excessive police force -

I have to ask: Is it time for us to rethink the way we train our nation's police officers? Do they shoot too quickly, too lethally? I have lots of opinions and ideas on the subject of how we want our police forces to act and what mentality we should want them to take into the job each day. The police work for all of us, after all, so I think we all ought to be able to demand changes if we don't like the way they're conducting themselves. I'd like to take more time and do more thorough research before I publish my thoughts.

But what do any of you think? Are either of these stories reason for concern? Should the BART officer face criminal charges? Or are our police doing the best they can at a difficult and dangerous job?

That 8 year-old's "confession"

You didn't think I was done yet, did you?

Yesterday, the prosecutor in the case of the 8 year-old (now 9) murder defendant in Arizona graciously agreed not to use the statement the boy gave to police in court -- unless the statement is necessary to rebut the boy's testimony in court. The prosecution was responding in writing to a defense motion to suppress the boy's "confession."

Well, that's great, state, but the thing that stuck out to me was that the prosecution was not in any way acknowledging that the statement was obtained illegally. I'm not really buying that. They don't think there's any legal bar to them using the statement in court but are choosing not to use it out of the goodness of their hearts? I don't know too many prosecutors who would willingly not introduce a confession during the trial. They pretty much have to know the confession won't be allowed because the judge will think it was obtained illegally no matter how much the prosecution protests. Or they have to know that the confession is ridiculously unreliable to a degree that would actually hurt the state's case rather than help it.

So, if it's bad evidence or obtained illegally (which necessarily makes it bad and unreliable), why not just admit it? It seems to me prosecutors would have more credibility when pursuing problematic cases if they would admit the mistakes that have been made. Everyone I have spoken to about this case has expressed concerns with the case. And everyone is very hesitant about that alleged confession. Wouldn't the prosecution seem more reasonable if they, too, would acknowledge concerns about the confession? I would find that a far more satisfying, and believable, response from the state rather than this, "Well, we could use it if we wanted to, we just don't want to" nonsense.

It really only seems like we're living longer

Lots of interesting things to post about today.

I saw this article on Yahoo news. The article highlights four reasons why this nation's live expectancy numbers have stalled in the last five years. Obviously, the nation's obesity problem is highlighted as a factor. As is the fact that 46 million of our fellow citizens are uninsured and thus don't have much access to basic preventive care and medical information. Those are factors I could have identified.

One I wasn't aware of is a decline in medical research in the US. It's hard to find medical breakthroughs if nobody's looking for them. I hadn't realized that was a problem. I've heard the occasional grumbling that the Bush administration has been totally disinterested in pursuing science free from its agenda, which is no science at all. It's no secret that our schools are falling far behind other nations in the teaching of science. So is the slowdown in medical research at all related to that lack of scientific interest by the current administration? Maybe there's just less federal money available for research. I hope Obama's administration will address our nation's general lack of emphasis on research and development in all areas of science, including medical research.

The final factor is the most horrifying one, and one I had been aware of before but still can't help being shocked by. There is a ridiculously high infant mortality rate in the US. We rank 29th in the world in that statistic. Cuba is ahead of us. Let's be clear: this rate is due to the fact that some regions of this country, particularly inner city and depressed rural regions, that have downright primitive levels of prenatal and infant care. I'm guessing there's a lot of overlap here with the uninsured segment of our population. It's pretty appalling that we haven't figured out a way to improve our ranking on this particular statistic. We're supposed to be one of the richest nations in the world. We really ought to do better by our most vulnerable (and cutest) citizens.

Our life expectancy hasn't declined yet. But we as a nation might want to address some of these factors before it does.

More on eyewitness identifications

I wanted to share this blog post I found today. I'd never read this blog before, but this post is on one of my main pet issues - eyewitness identifications. Faulty eyewitness ids are one of the biggest contributors to wrongful convictions. Read the post from the blog Criminal Jurisdiction:


The post explains some of the flawed techniques involved in eyewitness identifications, especially in the way police can coerce eyewitnesses to pick the person they suspect. As the authors point out, courts continue to cling to outdated ideas in dealing with eyewitness identifications. Courts, police, and prosecutors all keep doing things the old way - the wrong way. I don't understand how something that calls itself the criminal justice system can be so resistant to addressing a continuing problem that contributes to so many wrongful convictions.

It really is a thin line

between love and hate. A man in New York state has filed suit against his estranged wife, seeking $1.5 million in compensation for the kidney he gave her in happier times. I'm not making this up. The kidney transplant was in 2001; she filed for divorce in 2005. It appears the divorce is not final. I'd say it just got a whole lot more acrimonious. The couple does have three children.

My first reaction to this headline was, "What a douchebag!" Who thinks he can get money for an organ donation? And who begrudges that organ, once donated? Especially to the mother of his children? For his kids' sake, isn't he glad their mother is alive and well?

But then I thought there's probably just a lot of hurt going on there. Who knows what led these two people to this point. Maybe he was always a controlling, vindictive SOB. Maybe she cheated or just lost interest in him once she got healthy. At any rate, it's always interesting to me to think that a couple like this once loved each other enough to commit to each other for life and to have three children together. And now they're tearing each other apart in court. (Digression: but gay marriage is the real threat to traditional marriage?)

Then the lawyer in me thought there's no way this is a viable legal claim. Surely no court wants to set a legal precedent for putting a monetary value on a human organ. My recollection from law school (several years ago) is that no state allows any financial compensation for an organ donation. Medical expenses can be paid, of course, but nothing else. I'd really like to see this pleading so I can try to understand what the good doctor's lawyer's theory is. It's got to involve some kind of fraud, right?

Tuesday, January 6, 2009

Dear Hollywood:

We all know why the movies that come out in January come out in January: 'cause they're crap. Since you're not going to fix this by making movies that aren't crap, allow me to provide some constructive criticism.

I understand that with a movie about innocent teenagers using a vacant hotel to house homeless dogs, you don't expect to attract a broad audience. Your audience is pretty much established by your content and are likely to see your movie no matter the effort you put into making it a quality movie or even putting together a decent marketing strategy. But maybe if you put a little effort into it, you could fool a few people outside your base audience into seeing the movie. You miss that opportunity, though, when you name your movie "Hotel for Dogs." Seriously? That's the best you could come up with?

"Hotel for Dogs"? You're not even trying.


Potential movie-goer who won't cough up $8 to see the movie you couldn't bother to come up with a decent name for

Driver's Ed

I haven't decided if this story is a little funny or just sad. The headline made me chuckle, but the more I think about it, the more I think about how he could have been seriously hurt. (I'm trying not to judge anyone, and I certainly don't blame mom for going back to sleep after the kid goes off to school, but wouldn't you want to make sure the kid gets off safely to school before going back to sleep?)

Boy, 6, misses bus so he tries driving to school:
Having missed his bus, a 6-year-old Virginia boy tried to drive to school in his family's sedan - and crashed.

The main thing that sticks out to me is this: this kid could have had the whole day off. He could have snuck back home and played in his room for a while (as he obviously got into the house without waking up his mother). He could have gone to some fun place. But, no, he wanted to go to school. He was desperate to go to school.

Any kid with that much drive to go to school should go far in life.

Sunday, January 4, 2009

Actual headline on CNN's website right now: "Travolta, Preston heartbroken over son's death." Really? I think this wins my obvious headline of the day award. 'Cause I didn't actually need CNN to confirm this fact for me.

Friday, January 2, 2009

My ultimate fantasy

You know that commercial where it rains shoes? And the woman gets out of her obnoxiously large SUV and just starts cramming shoes into it? It's too fantastic and marvelous to be true. It would never really rain shoes.

But it did! Sort of. A big pile of shoes just showed up on a Miami expressway Friday morning with no obvious source. No crashed truck. No one coming back to claim the shoes. They really did just magically appear out of nowhere. The pictures are a dream come true (well until they start clearing the shoes with a front-loader, which is no way to treat good footwear).

I wish it would rain shoes where I live. I would treat them like manna from heaven.
By now, you may have read about the family of 8 who were kicked off a flight to Orlando yesterday after arousing the suspicions of a couple of other passengers who overhead some snippets of the family's conversation. The shocking, attention-gaining topic was one I know I've had, even on planes before, and one I think most of us have engaged in at some time or another: what's the safest place to be sitting on the plane in case of an accident.

Read more about the incident here and here.

For having the nerve to engage in conversation on a plane, the family was removed from the plane, interviewed by the FBI, and unable to fly on the airline (AirTran) even after being cleared of any wrong-doing. I've been reading a lot of comments and blog posts suggesting that the family should have known better than to discuss airplane safety on an airplane. Of course they would get kicked off for talking that way, they say. (Digression: wouldn't actual terrorists intent on destroying an airplane NOT engage in this kind of conversation so as not to draw attention to themselves? But logic didn't really enter into this incident.) I've even read some comments suggesting that the family was looking to draw attention to themselves, was hoping for their 15 minutes of fame and a basis for a law suit. Let's be honest, though. This conversation wouldn't have drawn any attention had the family not had dark skin and worn Muslim garb (I believe the women were wearing head scarves). My mother and I could have this exact conversation and no one would even notice.

In the past few months, I have heard many people say one thing we have to acknowledge about the Bush presidency is that it has kept us safe from terrorist attack. I disagree with that premise and I think this case highlights what the real legacy of the Bush administration will be on terrorism. The administration has succeeded in fostering a culture of fear that leads to neighbors eavesdropping on neighbors and to innocent American citizens being pulled off planes. This is not safety. Not if every Muslim American or American of middle-eastern descent has to monitor public conversations so as not to risk being misconstrued and reported to the FBI.

Thursday, January 1, 2009

Bah humbug

Do not ask me what my new years resolutions are. I do not make resolutions. I do not do introspection and self-evaluation. I prefer to avoid any serious or deep thought about the realities of my life, the things I may not be happy with, or things I may want to change. It's like a mistake in knitting: don't look at it too closely because you may unintentionally pick at the wrong loop and before you know it the entire thing (a blanket, say) has unraveled in a flash, becoming a useless pile of thread with no discernible loops or stitches remaining. What was an identifiable, seemingly substantial, tangible item has simply vanished, ceased to exist at all.

So I will not pick at, discuss, or even think about any loose threads. I will not make any resolutions. I have learned my lesson.
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