Saturday, October 31, 2009

Indecision 2009

My Blackberry is failing me.  The much-beloved Crackberry and I have been together since July 2008.  It's been a wonderful, fulfilling relationship.  My Crackberry keeps me connected to my e-mail, to my facebook, to my google reader.  I can comment on my local newspaper's website (a sad addiction on my part, I know).  I can play BrickBreaker.  I can text and Blackberry Message at will.  It's shiny and red.  It's the Pearl, so it's small, the perfect size for my oddly-small hands.  And it has a track ball.  There's just something so pleasing about running my thumb along that track ball.

But now my Crackberry is sick.  It started a few weeks ago when I first noticed that all of my text messages and my call log had deleted themselves.  Odd and annoying, but I thought it was a one-time glitch.  Until it happened again.  And again.  And by yesterday, it was a daily occurrence.  I came back to my office after a meeting yesterday and saw that I had a missed call.  I went to view that call, but the call log had already deleted itself.  Later in the day I sent a text message.  7 minutes later, that text was gone.  How many texts have I been sent but disappeared before I ever saw my phone?  (Let me pretend that I am so popular and in demand that I have missed countless such messages.)  Obviously a phone that does not work as a means for people to leave me messages is failing at its central job.

After some playing around last night, I uncovered the root of the problem: a memory problem.  But a long-term fix to that problem seems beyond my ability.  And I am due for an upgrade.  Getting a new phone just seems like the simplest solution.  And it's always fun to get a new toy, play with new ring tones and apps.

So now the dilemma: Do I get another Blackberry, knowing that I have loved my current phone and that a new one will do all that I want it to?  Or do I make the iPhone switch?  Blogging would be easier on an iPhone.  But texting and e-mailing are easier on a Blackberry.  I wouldn't have to learn a new keyboard if I stayed with a Pearl.  But they make way more apps for the iPhone.  The calculator on iPhone is better.  But the Blackberry has BrickBreaker. 

I can't decide.  Votes?  Thoughts?  Opinions?  Help me, oh internet.  I am waiting for a sign.

Thursday, October 29, 2009

A Godless Huzzah to the Pennsylvania Supreme Court!

They did it!  With one stroke of the pen.  The Pennsylvania Supreme Court vacated thousands of juvenile convictions entered by that corrupt judge who was taking kickbacks for sending kids to juvenile detention.  As a quick refresher, the judge was railroading kids, denying them access to counsel, and sending them to detention at a rate more than double the rest of the state.  Vacating all of those convictions is one giant good deed. 

Rather than waste everyone's time by taking the injustice one case at a time, leaving it to the individual juveniles to figure out they were wronged and find attorneys to pursue each individual case, they just fixed every single one.  The Court's opinion, a mere 9 pages, vacated every conviction in every case heard by former Judge Mark Ciavarella 2003 and 2008.  "[T]his Court simply cannot have confidence that any juvenile matter adjudicated by Ciavarella during this period was tried in a fair and impartial manner."  The vast, vast majority of these will not be able to be re-tried, but there are fewer than 100 juvenile defendants who remain under court supervision and may be re-tried.

The Court had previously overturned hundreds of cases and at the time I declared it a good start.  But then in July, the Court seemed poised to destroy all of the records of all juveniles who may have been involved.  I worried then that maybe the Court wasn't all that eager to probe too deeply into just how much corruption had occurred on their watch.  I'm thrilled to see I was right on the first point and wrong on the second.

At the risk of sounding too much like a perky pediatric surgeon (think Grey's Anatomy), I think this is awesome.  It is the fairest, most just thing to do.  It is also the best possible way to show defendants in Pennsylvania that the court system takes protecting their rights seriously.  Anything less than this response would have been an insult.

On a side note, Ciavarella is a defendant in a civil suit stemming from his kickback scheme.  He's representing himself, lending further proof to that old adage that an attorney who represents himself has a fool for a client.

Wednesday, October 28, 2009

You can't believe everything you read on the internet

Yesterday, I read a report claiming that at a public event in Arizona, Justice Scalia had declared he would have dissented from the unanimous ruling in Brown v. Board of Education.  I'm fairly certain that my head exploded when I read that.  How could that be?  How could any rational jurist think that Brown, which declared segregation in the public schools to be unconstitutional, was wrong?

This alleged statement by Scalia was part of a larger complaint about other justices with very different ideas of constitutional interpretation who, in Scalia's mind, "invent" rights.  Was Scalia suggesting that individuals in this country did not have a right under the 14th Amendment not to be segregated by race?  Because that would be an outrageous proposition.  And if he did say that, boy, would I have something to rant about on this blog.  But it also didn't sound quite right, knowing what I know of Scalia's fairly bizarre style of constitutional interpretation.  As a self-proclaimed "originalist", he would have looked to the history of that amendment's passing and most likely would have concluded that the amendment was understood by its passers to address racial inequalities. 

So, I checked it out before writing this blog post.  And, sure enough, that's not what he said.  He said he would have joined Justice Harlan in dissenting in the earlier case Plessy v. Ferguson, the case Brown overruled.  In that earlier case, the majority of the court came up with that famous line of bs, "Separate but equal."  Scalia is clear in his opinion that the 14th Amendment's equal protection clause is all about racial equality and, as such, Plessy was dead wrong.  Phew, he's not such a bad justice.  And that's why I always check into things before I go off on rants.  Because you really can't believe everything you read.

Scalia is all about the equal protection clause protecting racial equality.  He just thinks the Court shouldn't go around "inventing rights" by extending the equal protection clause to include other groups like gays and women.  Because same-sex marriage and equal pay for equal work weren't in the minds of those guys who passed the 14th Amendment over 100 years ago.  The reasonable person living in 1868 wouldn't have thought the phrase "equal protection under the law" meant that women should be treated equally with men.  Hell, women didn't even have the right to vote yet.  In many states, women couldn't enter into contracts on their own or even own their own property.  (They always could in Kansas because, once upon a time, Kansas was a really progressive place.  Sigh.)  So, clearly, the equal protection clause can't apply to equality between the sexes.  And I would guess he could make a pretty good case that the reasonable person in 1868 sure didn't think gays should be treated as equals to straight folks.

Well, he may not think that women have a right to equal pay for equal work, but at least he would probably say that a black woman and a white woman employed by the government to do the exact same work should be equally underpaid.  Because that racial equality might be within the "original meaning" of the 14th Amendment.

Tuesday, October 27, 2009

What I do when I'm not lawyering

My knitting skills have come a long way since that first blanket I made in February.  In the past few weeks, I have completed several projects.  I think I can officially consider myself a real knitter now.

First came my second baby blanket.  Being a Jayhawk starts at birth.  So a blanket like this seems perfect for a new baby Jay.

If you remember the last (and first ever) baby blanket I made, you might notice how much simpler this pattern was.  Stripes.  Straight stockinette.  This blanket took no time and made me feel like I was really accomplishing something because I could see the results so quickly.  I can't wait to see the little baby Jay covered in her crimson and blue blankie.

Then via facebook, P asked someone to help make a Halloween costume.  Feeling all crafty and capable with knitting needles, I jumped at the chance.  (Sorry I beat you to it, Harley.)  The task was to replicate a very homemade-looking hat that a favorite character on "Firefly" wore.  His mama made him a warm hat complete with pompom and earflaps. 
Upon seeing this hat, one friend proclaimed, "It's candy corn!"  Well, yes, I guess I can see that.  But I also think it's a pretty good replica of Jayne's hat.  I hope N & P think so, too.


Monday, October 26, 2009

Umm, Missouri, that hasn't been a chargeable offense for 20 years

Apparently, at least one prosecutor in Missouri is behind the times.  About 20 years behind the times.  Last Friday, a man in Cape Girardeau was charged with desecrating a flag.  Apparently the prosecutor was unaware of the 1989 United States Supreme Court decision in Texas v. Johnson that declared flag-burning to be protected activity under the First Amendment.  Presumably over the weekend, someone pointed out the famous case to the prosecutor because he has since dismissed the charge.  The Missouri charge was a misdemeanor, so I hope that means the charged defendant was not held in jail for any length of time.  If somebody did spend any jail time on a charge like this, well, he would have a pretty good claim that he was being held unconstitutionally.

It troubles me when prosecutors don't know the Constitutional limits to their charging ability.  I don't think the fact that the statute prohibiting flag desecration technically remains on the books in Missouri is really a good excuse for the prosecutor not realizing he couldn't file this charge.  To me, this seems like the sort of charge that any lawyer ought to know is invalid, or at least needs to be researched first.  I expect lawyers to stay abreast of case law that directly affects their practice.  I wonder how many other defendants nation-wide have been wrongly charged with some form of flag desecration (or consensual sodomy post Lawrence v. Texas) by a prosecutor who either didn't know those charges won't fly or just didn't care.  If it's the former, well, it's incompetent, and if it's the latter, it's an abuse of power.  Either way, I think it's very likely an ethical violation.

Thursday, October 22, 2009

There is no escape from the darkness

My kitchen will never be lit again.  I stopped at a store on my way home from work tonight to buy light bulbs.  The grocery store did not have the special tube fluorescent 4-pin things I needed.  The hardware store had 2-pin tubes, but not 4-pin.  So I hiked down to Home Depot because Home Depot has everything, right?  Well, they had the 4-pins, of course.  But they didn't have 18W, so I got the wattage they did have because they have the same base, so they should work, right?

Wrong!  Because the 26W tubes have a notch on the base that's on the right side while the 18W tubes have the notch on the left side!  And apparently that notch is important because just cutting off the notch does not make the bulb work.  I might have screamed a little and threatened to throw things.  Then I opened a bottle of wine and hit the internet.  I could not find this particular light bulb on Home Depot's website.  Or Lowe's.  Or Amazon.  I had to go to the Light Bulb Market.  Where I could get free shipping if I bought over $100.  But I only need two $6 bulbs.  So I have to pay $9.50 in shipping.  And I should finally have light again in 2 business days and a week.

Do you suppose the previous owner who installed this light fixture had any idea how much trouble he would be causing me by picking this fixture that requires the world's most obscure light bulbs?

On the bright side, SO fixed the hall light, and since he's a foot taller than I am, there wasn't much precarious balancing required.  Maddie bounded down the stairs this morning in appreciation.

Wednesday, October 21, 2009

The problem won't go away just because no one wants to pay for the solution

Remember the 8 year-old boy accused of shooting his father and another man in Arizona last fall?  I blogged about it multiple times.  Well, sadly, his case is back in the news today.  He was supposed to be sentenced on Thursday, but it appears now that won't happen because the prosecutor and defense attorney have not been able to find any place willing to foot the bill for his care .  The plea agreement calls for intensive, and costly, psychiatric treatment, which no state or county agency is willing to pay for.

The state department of juvenile corrections can't afford it and doesn't know how to deal with a child that young.  The county's juvenile probation office would blow its entire annual budget if it took charge of the boy.  Here's my favorite passing the buck quote in the story:  "Even the county mental health consortium in the region refused to take on the case, calling it a behavioral issue and not a mental health issue."  How is this not a mental health issue?  Of course a 9 year-old boy who killed his father needs serious help from a mental health professional.

This situation is unacceptable.  Somebody, somewhere has to take charge here.  This boy has to go somewhere, be supervised and treated by someone.  And it's got to come out of someone's budget.  It's not a real live game of hot potato.  It's a little boy.  Ignoring the problem he presents is not an option. 

What a shock!*

The makers of the Taser made a stunning announcement last week.  (Horrible pun, I know, but I just couldn't stop myself.)  They are now advising police agencies across the country that their stun gun should not be aimed at chests because there is a slight, tiny, minuscule, eensy-weensy risk of an "adverse cardiac event." 

Thank you so much, Taser International, for finally admitting what all the rest of us figured out a long time ago: jolting people with electricity can screw with their hearts!  (But did you have to wait until there was a big enough pile of dead bodies before you would put a warning in your training materials?)

I'm not really opposed to police forces using the taser, as long as they're using it the way it was intended: to replace the gun in situations where lethal force is justified.  It was originally pitched as something that would cut down on deaths.  Obviously, shooting people with a stun gun instead of a real gun is preferable to me.  But the taser has been used in far too many non-lethal situations, to command obedience or to short-cut a situation that is testing the officer's patience. Police have let themselves feel a little too free to use the taser. 

Maybe if Taser International had been more upfront about the possible risks involved with the product, instead of doggedly claiming it was totally safe with no risk of death, police agencies wouldn't have gotten quite so casual in their uses of the taser.  I now optimistically, but probably naively, choose to believe that the switch in Taser's training materials might cause some police agencies to rethink their willingness to break out the stun gun.  So maybe we won't have to hear as many stories about the taser being used on grandmas during traffic stops or epileptics having seizures or men having cardiac events

*Again, please excuse the pun.  It's really rich territory.

Doomed to darkness

I am mired in darkness, from which there appears to be no escape.  The light in my staircase burnt out a few weeks ago.  It's a narrow, steep staircase with no other sources of light.  Going up the stairs without the light on seems like inviting a horror-movie ending at the top.  Going down the stairs without the light is even scarier.  Each morning, my eager, happy-to-be-alive-and-awake pup pecks her way down those stairs in the dark.  Back when I had light, she zoomed.

You might think that I would have replaced that light bulb by now, but the light's in a very bad place.  It will require precarious balancing.  I don't do well with precarious balancing.  And so the light remains out.

Then the kitchen light burnt out about a week ago.  And, again, I have taken no steps to fix it because, well, I still had the light over the stove, and I haven't been home much, and, let's be honest, I'm a little lax when it comes to basic household chores.  I did think about stopping at the store on my way home tonight to buy light bulbs, but it's gray and I'm tired, so going straight home sounded better.

Then this evening, the stove light died on me.  So finally, I went to the store.  I bought light bulbs.  See, I can take a hint.

Except when I came home and removed the globe to what I had assumed was my standard kitchen light fixture, I found some odd form of halogen light bulb that I've never seen before.  And the staircase light remains in an unreachable spot.  So the standard light bulbs I bought remain sitting impotently in their bag and I remain stuck in the dark.  Well, not completely.  The stove light is back on.

Tuesday, October 20, 2009

DUI is different

The Supreme Court denied cert in a case today.  That's not usually something that gets much attention, but in this case, Justice Roberts issued a dissent, which always piques my interest.  He really, really thought the Court should have taken the case, so I wanted to know why.

The case was Virginia v. Harris.  Joseph Harris was convicted of DUI, but the Virginia Supreme Court overturned the conviction finding the initial stop violated Harris' 4th Amendment rights.  Police stopped Harris based solely on an anonymous tip.  The tipster described Harris, his car, and the direction he was traveling.  An officer found the car, but did not personally observe any traffic violations.  With nothing but an anonymous tip to go on, the Virginia Supreme Court said, the cop had no justification for stopping Harris.

This seemed to me like a pretty unremarkable decision.  Nine years ago, the U.S. Supreme Court itself said that an anonymous tip, without any corroboration, couldn't justify stopping a guy on a sidewalk.  Doesn't seem such a stretch to say that if a cop doesn't see any obvious signs of drunk driving, they can't justify stopping a driver based on an anonymous tip.  The Court's original decision was based on sound reasoning.  Anonymous tips can be problematic because they're particularly susceptible to people who just want to make trouble for enemies or exes.  No one is suggesting police aren't free to investigate based on an anonymous tip, but they should get some kind of corroboration of the alleged illegal activity before detaining someone.  I think the Virginia court would have been perfectly fine with an arrest in Harris' case if the cop had just corroborated the tip by seeing a swerve. 

Justice Roberts evidently felt strongly that the Court should have granted cert, presumably with an eye towards approving stops based on nothing more than anonymous tips.  Because, see, as Roberts reminds us at the beginning of his dissent, lots of people die in drunk-driving accidents.  And states encourage people to call in tips to things like "Drunkbusters Hotline."  We need police to have every legitimate tool at their disposal so they can get those damn drunk drivers off the road.  The stakes are just too high.  So, Roberts opines, we might rule differently about anonymous tipsters if we were presented with such a case again, "at least in the special context of anonymous tips reporting drunk driving."

Hmm, I guess I should re-read the Fourth Amendment, because I don't remember the language about the special context of drunk driving.  Hang on.  I'm back.  Just re-read the Fourth and, just as I thought, there is no mention of drunk driving.  No indication at all that the Fourth Amendment rules that apply to all other types of crimes don't apply to drunk driving.  So we won't search or detain people based solely on anonymous tips if the tips are only about guns or murders or rape, because that would violate the Fourth Amendment.  And I guess the stakes aren't that high when guns or death threats are involved.  But we just have to stop those drunk drivers, even if it means ignoring the standards we've set for every other crime. 

Criminal defense lawyers have been saying for years that the Bill of Rights doesn't apply to drunk driving.  I just never expected a justice of the United States Supreme Court to admit it so openly.

The cost of killing

Headline this morning on CNN: Study: States can't afford death penalty. Well, duh. Don't we all know this, deep down? That we're spending entirely too much money on a system that isn't very effective and doesn't leave us feeling all that satisfied? On a system that's arbitrary and very race and class-conscious. And on a system that we just can't seem to get right but we can't afford to get wrong. The death penalty proponents complain that the cost is inflated because we allow too many appeals, we let those damn defense attorneys file too many briefs. If we just cut off the appeals, the system would be streamlined, efficient, and so much cheaper, they argue. But, if we cut off the appeals, we run the much higher risk of getting it truly, irrevocably wrong.

That's really what this study is revealing: that we would rather not execute people than be wrong. And all too often, we just can't be sure. Five years after his murder, we're still arguing about Todd Willingham's guilt or innocence. Troy Davis has been on death row for 20 years and it's still just as consistent with the evidence that another man pulled the trigger. You're familiar with the list of all those cases where we got it wrong or we just can't be sure. We've let so many of them go home from the row, and often after 15 or 20 years.

So we listen to appeals because if we didn't, we might not have caught Paul House or some of the others. And most of us can't live with the idea of not catching the mistakes. Most of us can't accept the idea of getting it wrong. Because at heart, most of us are good and decent and really, really don't want to kill innocent people. We want to make sure we get it right, but once we do the deed, there's no way to correct it. As long as people remain squeamish about the prospect of executing innocent people (and I hope we remain that way forever), I don't see the death penalty truly becoming more efficient or cheaper.

Instead, I would suggest we can save ourselves a lot of money, as well as anxiety and worry about getting it wrong, by just abandoning the death penalty altogether. It's really the only way we can be sure we haven't killed an innocent person.

Monday, October 19, 2009

Why do we need a statute of limitations when we have DNA?

Sometimes I wonder whether the advent of DNA testing has been such a great thing for criminal defendants. Sure, it's been great for all those exonerated defendants. And in newer cases, it has undoubtedly prevented many suspects from being wrongly charged. But those cases in which the presence of DNA clearly points to a person's guilt (or innocence where there isn't a match) are only a percentage of the cases involving DNA.

Prosecutors always bemoan the "CSI effect", whining that juries expect them to provide physical evidence and won't convict without it. But I think there's another side to the CSI effect, which is that juries accept physical evidence, especially DNA, as absolute proof of guilt regardless of the circumstances. The presence of DNA often isn't very probative of guilt. We leave our DNA all over the place. And DNA comparison isn't quite the exact science CSI makes it out to be. But you wouldn't know any of that from the way we bow down to DNA as the gold standard of proof. If we have your DNA, we have you.

(See the Amanda Knox trial in Italy: her DNA is on a knife we think was used in the crime, so she must be guilty. But, the knife was in a kitchen that she had cooked in, so isn't there a perfectly innocent explanation for the presence of her DNA on that knife?)

Now, prosecutors want to be able to charge a DNA profile, even when they have no idea who the profile belongs to. The idea is that with some kinds of crimes, we know that we want to charge whoever left that DNA behind at the crime scene, but we don't know that individual's name. So, we charge "John Doe" and attach the DNA information. Otherwise, if the DNA profile can't be charged, the statute of limitations will expire and the perpetrator will never be able to be prosecuted. (The statute of limitations is satisfied as long as the charge is filed before the time expires.) But this way, we can file the charges in time and then pursue the trial if we ever locate the guy.

I know Kansas has tried this in the past, but the charging documents were not sufficient, though our Supreme Court left open the possibility that a DNA profile could be charged if it were done better. According to this NY Times article, several states explicitly allow these types of John Doe charges. Kansas now has a different way to extend the statute of limitations in cases where a DNA match is made much later. We have a statute that authorizes charging an individual with certain sex offenses within a year of matching the DNA profile to a specific suspect.

Last week, we learned that a man had finally been charged in a 1990 attack on a young girl in Texas. Miraculously, the girl had survived, so the top charge is attempted capital murder. While the rest of the internet rejoiced that the man who left that poor girl for dead had been caught, my lawyer brain kept wondering about the statute of limitations. (Well, that and the presumption of innocence, but reminding people that he is still entitled to that presumption usually proves futile.) Of course this was a case where the DNA left behind on the girl's body was finally matched to a name. I have yet to find any explanation of what allows for such an untimely prosecution in the Texas case.

I know it feels really good to find the guy who hurt that Texas girl or the women mentioned in the New York Times article. But I'm still troubled by these very late prosecutions. We have statutes of limitations for a reason. It's really hard to defend yourself against a charge when everything happened 20 years ago. Good luck trying to remember where you were or who you were with on that Tuesday. Good luck trying to find witnesses who might actually remember something that doesn't jibe with the state's theory of your guilt. What difference could that make, though, when there's DNA, right? You can't possibly have been somewhere else or done anything else that day because we have your DNA.

But DNA evidence, like any other evidence, is still only as good as the people testifying about it: the people who collected it, transported it, stored it, cut it, and tested it. And there still is a human element to declaring a DNA match. If we're trying people 20 years later, we've most likely lost any meaningful opportunity to probe the methodology used by those people who handled the evidence because memories fade, computer systems crash and scramble data, paper files get lost or damaged. If we try people so long after the crime, it becomes very difficult to uncover any problems with the evidence or the methodology used and we're left, then, with the result being almost uncontestable. We say we have your DNA and you have no good way to show that we are wrong, so you must be guilty. Ultimately, I think that's a dangerous attitude to take about DNA evidence, especially given the National Academy of Science's recent findings about the state of forensic crime labs.

I'm all for prosecuting rapists and other violent criminals, but I'm not sold on the idea that we should make statute of limitations exceptions for DNA evidence. Statutes of limitations exist for a reason: because evidence goes bad. DNA evidence really isn't all that different. It isn't infallible. Like any other kind of evidence, the witnesses presenting it need to be questioned and cross-examined and put to the test. And like with any other kind of evidence, that's a lot harder to do 20 years after the fact.

Dear Chiefs

Thank you for winning. It wasn't pretty. The offense still can't finish anything, leaving us to settle for field goals far too often. Dwayne Bowe caught for over 100 yards, but his most memorable plays were still the drops and the clock-stopping step out on his last catch. LJ finally had a respectable day. And the defense looked ok. Hard to know how much of that was the Redskins being dreadful on offense, but I'll take it. Especially that safety on the last drive.

And thanks to that safety, we wound up with 14 points. Anyone seeing that score might think we'd actually scored 2 touchdowns.

Now let's not wait 6 more weeks before we win another game, ok?
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Friday, October 16, 2009

If you can't say anything nice...

Just this evening, the topic came up with my family of what, if anything, I would say about a case long after my representation of a client was over. I was asked to declare whether I believed a particular client had been guilty or innocent. With my own family, I was extremely cagey on some questions and flat-out refused to answer others. My obligation to hold my client's confidences goes to the grave. My grave, not his. And my continuing duty of loyalty, as we call it here in Kansas, goes just as far. I don't think I am prohibited from talking about cases in sort of general ways. But even long after a case is over, I am always mindful that I am that client's advocate above all else.

Then I saw this video. (Hat tip to Mark Bennett at Defending People for posting it first.)

This is the lawyer who represented Cameron Todd Willingham at trial and he's getting a little annoyed that we're all still talking about the doubt that has been cast on Willingham's guilt 5 years after he was executed. David Martin thinks it's "absurd" that we're wasting our time on this obviously guilty guy.

Clearly, David Martin does not come from the same school of criminal defense that I do. I don't care how much I disliked my client, how much I firmly believed in his guilt, or how much my representation was being attacked. I would never, NEVER talk about any of my former clients in this fashion. I would never talk about the (ridiculously simplistic) experiments I had conducted that helped convince me my client was guilty. I would never call efforts to exonerate my client after the fact absurd. I would never let anyone know what little respect I had for my client and our relationship. I would also never think that my job as a trial defense attorney was ONLY to challenge the state's evidence through vigorous cross-examination.

I have nothing nice to say about David Martin after watching this appalling performance, so perhaps I should not say anything at all. Except, I have no duty of loyalty to David Martin. But I do feel a duty of loyalty to my profession. I happen to think that defending people is one of the most noble things you can do. I can go on quite a tear about how we defenders of the constitution are the true patriots and the most noble actors of all in the criminal justice system. I take my job seriously. Very seriously. My clients trust me with their lives, just as Todd Willingham had to trust David Martin. As much as I rail against prosecutors and cops who bend the rules or cut corners, no one offends me more than the defense attorney who does not live up to my high ideals for the profession. From what I've seen in this video, David Martin is the kind of defense attorney I don't ever want to be.

Oh, and I don't think he helped persuade me that Willingham got such a fair trial. If that was the attitude of the guy assigned to defend Willingham, I have to wonder whether Willingham really got the sort of trial advocacy he deserved. Maybe a defense attorney who wasn't so sure the guy was guilty might have gone looking to find some experts who would counter the bad arson evidence that was produced by the state.

Thursday, October 15, 2009

Really, guys? I really, really want to believe this is not true. In Great Britain, anyway, this study showed that 68% of men don't use soap after going to the bathroom. This is based on 32 days of observation in "motorway service stations". (Are those like highway rest areas?) Here's the real question, though: how many of the 68% who don't use soap just skip the sink altogether? I'm sure I don't actually want to know the answer to that question.

Best and worst

Keith Olbermann declares his best and worst persons of the world every day. Surely the rest of us are equally entitled to make such proclamations once in a while. Last night I saw so clearly who the most awesomest person of all is about the same time I decided someone else was as awful as he could be.

First the good news. Jon Stewart is the greatest thing ever. On last night's show, he took on the 30 senators who voted against Al Franken's anti-rape amendment. Both of my senators are among that group of bastards, so I was especially offended by the vote and the justifications offered by those who oppose opposing rape. Stewart, as is usually the case, nailed the criticism of those senators perfectly.
Now for the bad news. Gov. Rick Perry of Texas has spoken out in defense of the execution of Cameron Todd Willingham, claiming that Willingham was a "monster" so we really shouldn't worry about whether he truly started the fire for which he was executed. As a criminal defense attorney interested in doing everything possible to prevent wrongful convictions, I am frustrated by the governor's refusal to discuss the flaws in the Willingham case. He would much rather denigrate Willingham's character and turn a blind eye to the junk that has passed for science in Texas courtrooms. Of course, it really doesn't matter whether Willingham was or was not a monster. What matters is whether we convicted him on nothing more than folklore and the feeling that he was a monster. If the Governor really doesn't get that, no good change is going to occur in Texas courts.
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Tuesday, October 13, 2009

Love that Wicket

I saw a personalized license plate today that had me cheering out loud:


You don't often see someone so openly supporting those much-maligned Star Wars characters. I like it. And I salute you, my fellow Ewok fan. They really have gotten a terribly unfair rap.

Sure, I can understand how some people could think those little furballs were a tad annoying. But I never did. It's a big galaxy, after all. Not every alien can be cool or slimy or scaly. They can't all talk with tinny voices through snouts like Greedo. They can't all have big bug eyes like those band guys in Mos Eisley. They can't all be bad guys like the Sand People. Just like we have cuddly little things like puppy dogs, the Star Wars galaxy has to have some furry and cute creatures. Admiral Ackbar gets to be part of the rebellion, so why can't the cute little guys get their share of the fight?

And don't forget, without those cuddly little teddy bears, Wedge and Lando would never have gotten inside the Death Star to blow it up. They put their lives on the line to help Han and Leia. We should all respect the Ewoks who sacrificed so much to get that shield down.

Way to show that respect, license plate guy.

Monday, October 12, 2009


When you spend most of your day alone in the car, you can't help but observe lots of interesting things.

First, when that time in the car is in the middle of Kansas, there's not much in the way of radio choices. It's classic country and Christian talk. I heard one of the (unintentionally) funniest things I've ever heard on the Christian talk show: general counsel for some fringe gun rights group sounding the alarm that "Obamacare" is a thinly-veiled attack on gun rights. I would explain it if I could, but it was such paranoid, speculative nonsense, there really isn't any substance to relate. It was very amusing, except that the show's host, and presumably a lot of listeners, was falling all over himself to proclaim how serious and outrageous this attack on gun rights is.

I also saw some interesting things on my drive. I saw two people sitting on a couch. On a median. This wasn't on the interstate, but it was on a 4 lane divided road. It was one of those striped, poufy couches that are sold for cheap at the discount furniture stores. And it was just sitting on a median, on the outskirts of two. Two people were hanging out on the couch, despite today's chilly, drizzly weather. They didn't have any signs or any obvious purpose. They were just sitting on the couch. I laughed for the next 15 blocks.

Until I saw my favorite sight of the day: an elderly man with a walker, moving slowly down the sidewalk with his black lab at his side. Picture the walker man in the opening sequence of the movie "Office Space." This dog looked like it should be out running. It looked like it had lots of energy for running at the dog park, chasing squirrels, or playing fetch. But that dog was the most contented dog in the world, ambling patiently alongside its beloved human. That dog wasn't in any hurry to walk faster. It was just walking at his human's slow pace, acting like its life was the best life any dog could hope for because nothing could be better than having a human who would take it for a walk.

I think the perfect end to my long day of driving is sitting on my own couch (indoors) with my own loyal pooch (even though she always seems to think I could walk a little faster). I draw the line at listening to Christian political talk in my home, though. I'll stick to Rachel Maddow here.

Saturday, October 10, 2009

I'm Sarah and I'm a procrastinator

In case you were wondering, no I haven't learned anything. The big project that is due every April has a little sub-part that's due every October. And, yes, once again, I am spending this last weekend before it is due finishing it. To be fair to me, a lot of what needs to be done only became available yesterday, so some amount of weekend work was inevitable. But you ought not to let me take that excuse too far because an awful lot of this stuff could have been done long ago.

So feel free to shake your heads at me. Feel free to frown disapprovingly and sigh as you tell me, "Really, Sarah, you will never learn."

No, I don't think I will ever learn. I have been this way since, well, forever. In high school, I dubbed myself The Master Procrastinator. (No, now is not the time to point out how uncool it is to give oneself a nickname.) I always pushed my homework to the last possible moment, but I always got it done. In AP history, we had to do a large-for-high-school research paper. One guy in my class spent the last week before the papers were due bragging to all the rest of us that his was done. I only began writing mine the weekend before it was due. His paper came back to him with a big red "C" and the comment "this is what happens when you procrastinate." I got an "A". (Although I've never really felt I deserved that grade; that teacher was a little weirdly fond of me.) But that incident certainly didn't teach me the dangers of procrastination.

My college roommate couldn't sleep the night before my senior thesis was due because she was so worried I wouldn't get it finished in time. At my college, every senior has to do what we call a comprehensive exercise, aka comps. I just call it a senior thesis because it's easier. If you don't pass your comps, you don't graduate. But, of course I turned my comps in on time. And I got praise from my professors. I was never as worried as my roomie was.

I'll never learn because I always seem to get away with it. I guess I've just never pushed my procrastination to the breaking point. Even now, with this project, I must do an ok job with it because the people in charge of it keep asking me to do it again next year. Maybe some day I will finally get burned for it, but until then, I probably just need to accept that this is who I am. I am a procrastinator.

But, man, my Sunday would be a whole lot better if I weren't.

Fourth time still was not the charm

When Kimberly Hudson's boyfriend called police, I'm sure he had no idea what he had started. In April 2007, Hudson was drunk and despondent, threatening to kill herself with a knife. The police who responded to her boyfriend's call found Hudson asleep in her bed, still clutching the knife. By the end of the encounter, Hudson was shot in the chest and arm and charged with assaulting a police officer.

In that above paragraph, alone, there is plenty of fodder for me to rant about. This story certainly doesn't do much to encourage people dealing with suicidal loved ones to hope that the police might actually help diffuse the situation. Once again, we have police seemingly reacting to any and all perceived threats by shooting first. I have complained before that our nation's police forces are resorting to the use of deadly force (and yes, I'm including tasers) far too quickly. I would prefer to have a police force that is well-trained to be patient, to handle difficult situations. I could also spend a few paragraphs on the need for prosecutorial discretion at the initial charging stage. Is there really any need to file assault on a LEO charges against a suicidal woman who was shot twice? I would assume the hospital that treats her physical wounds might also spend a few minutes on her psychological needs, which really seem to be the root cause of any problem here.

But the office that prosecuted Hudson never reached that conclusion. Instead, they took her to trial. Four times. Three trials ended in hung juries. One jury did convict her, but the trial judge granted her a new trial finding that prosecution errors had prejudiced the jury. (And I could write an entire post about my frustration that the prosecution gets a second chance when their own errors are the reason the trial verdict can't stand.)

The dispute in this case is over where Hudson was when police shot her. They maintain she had gotten off the bed and was coming towards them with the knife. She swears she never got off the bed. The state's expert witness says it's not possible to determine where she was when she was shot. The defense expert witness says it's clear she was still on the bed. If she was standing on the floor, I can't help but wonder why there wasn't any blood spatter on the carpet. Oh, and one of the officers testified Hudson was told she would be shot if she took another step, but the cop's microphone (on her belt) didn't hear it.

So there are serious evidentiary flaws in the state's case. And we have a suicidal woman who was shot twice. She certainly doesn't seem to have posed any threat to anyone since this incident. There are also no indications that her mental health is still a concern. One would think that after three hung juries and an overturned verdict, the prosecution team might start to question the wisdom of asking the court to pick jury #5. But, no. The state didn't really want to dismiss the charges. The state may not know when to say when, but at least the judge finally reached the conclusion that another trial wasn't justified. On Friday, the court entered a judgment of acquittal, meaning the state will not be able to pursue the charge against Hudson. Nor can the state appeal the judgment of acquittal. The prosecutor stated only that he is "disappointed" by the decision.

Well, I'm disappointed that the district attorney doesn't have the sense to allocate his resources better than this. Hudson's father spent $140,000 on her legal fees for the four trials. One must assume the DA's office also put a lot of staff time into trying this case four times. Each trial occupied the judge and his courtroom. Each trial required selection of a new jury, along with the payment of juror stipends (not big, but they do add up). And those cops and responding paramedics had to testify at each trial, taking them away from their regular duties each time. Not to mention the other witnesses. And, of course, there's the stress Hudson and her family endured for two and a half years waiting for this case to be resolved. How many hung juries would it take to clue this prosecution team into the fact that they really didn't have a viable case? What a giant waste of resources, all for a charge that probably didn't need to be filed in the first place.

Wednesday, October 7, 2009

Fighting terrorism the Tom Cruise way

Why mess with things like metal detectors at airports? Why bother with real investigations into possible wrong-doers? Let's just read the body language of all passengers and pick out the ones with criminal intent. Doesn't that sound like the best way for the Department of Homeland Security to keep us all safe?

Apparently, Homeland Security is funding a project called Future Attribute Screening Technology. The purpose is to monitor certain psychological signs of travelers to discern which travelers, if any, have the desire or intent to do harm. Certain physical signals can indicate such intent, according to the experts at HS, including heart rate, body temperature, fidgeting, breathing, and eye movement. The general idea is that screening for these body signals will alert security to people whose measurements add up to possible trouble. Those few picked out by the system could then be subjected to secondary screening by actual security personnel.

They're also talking about using this system at places like sports stadiums and other areas posing higher security concerns.

This sounds about as realistic as that Tom Cruise flick "Minority Report". Or polygraph testing. I just don't buy that we can somehow divine a person's intent or read her mind by monitoring basic vital signs. I would guess that fidgety behavior and increased breath and heart rates would also be associated with nervousness. So at an airport, the system could pick out an awful lot of fearful flyers or job-seekers traveling for interviews or college students leaving for a semester abroad. And at a ball park, maybe they'd inadvertently snare the guy planning to propose on the jumbotron after the 3rd inning. Or maybe it just might find a guy who had a few too many brats while tailgating. Basically, like polygraph testing, even if the system can accurately identify people undergoing some sort of stress or nervous reaction, but there's no way for the system to identify the cause of that reaction.

Seems like an awful waste of resources to research this kind of fantastical law enforcement pipe dream.

Tuesday, October 6, 2009

Maryland and the death penalty

The state of Maryland took a very interesting step today regarding its death penalty. The state passed a law restricting the death penalty only to cases in which there is a videotaped confession or biological, DNA, or videotape evidence "conclusively" linking the defendant to the murder. I am incredibly curious to see how this will play out.

I think the general public might soon see just how few cases involve things as clear and easy as a videotape of the crime. I have never seen a case that involves one of these mythical videotapes that conclusively shows the crime and clearly reveals the perpetrator. There may be surveillance video tapes that show a car or a person in the area of the crime, but those are usually grainy and from downward angles that make identification of the person less than crystal clear. DNA evidence that conclusively proves the defendant's guilt is also not a very frequent occurrence. Over half of my murder cases don't involve DNA.

But what I'm really curious to see is how will courts, prosecutors, and juries define "conclusively." Say there's a convenience store killing where there is surveillance video, but the video is grainy. The guy on that video could be the defendant, but it's pretty tough to say that it couldn't also be the defendant's brother or 20 other guys. How clear does that video have to be for it to be "conclusive" evidence? And DNA evidence. Even in cases where DNA evidence is present, it's not often "conclusive" proof that the defendant is the murderer. Say the defendant's DNA is on the weapon, but we knew that the weapon belonged to the defendant. Well, then the presence of the defendant's DNA on that weapon isn't very unexpected, is it? Or perhaps the defendant's DNA isn't the only DNA present at the scene or is entirely consistent with the defendant's innocent explanation. There really are very few cases in which DNA evidence proves a defendant's guilt. More often than not, it proves nothing beyond what we already knew from witness statements or that the defendant was at a place we knew he would be.

So I applaud Maryland for severely restricting application of its death penalty, as I would applaud any limitation on state-sanctioned murder. But I hope this particular restriction will show the public that it's a myth to think we really can find cases where there is some magical video or DNA evidence that "conclusively" shows the defendant's guilt.

Sunday, October 4, 2009

It's been a rough, rough couple of years for sports fans in Kansas City. We haven't won an NFL play-off game in a long, long time. (And this clearly won't be the year that streak ends.) Not counting the strike-shortened 1994 MLB season, we've only had one winning baseball season in about 20 years. Both the Chiefs and the Royals as organizations appear to be nearly unmitigated disasters. At this point, it's pretty hard to be optimistic that any "rebuilding" efforts will ever be successful.

Thank the sports gods for college basketball! At least when the Kansas Jayhawks have a "rebuilding" year, they still win their conference and make the Sweet Sixteen. Only two weeks until Late Night and the beginning of the season that reminds me it's actually possible to enjoy being a sports fan.

Saturday, October 3, 2009

Follow-up on John Couey

I have now done the research on whether John Evander Couey's appeal will continue past his death. As I mentioned, in Kansas appeals do continue. Kansas seems to be in the distinct minority in its approach to the appeals of deceased defendants. Wisconsin and Pennsylvania agree with us, but no one else appears to. (Interesting that the two states I have practiced criminal law in are on that short list.) In most other jurisdictions, the split is between abating (putting an end to) the appeal or abating the entire prosecution from the beginning (which vacates the conviction).

In the majority of federal jurisdictions, at least, the principle of abatement ab initio applies to nullify the conviction. The rule is premised on the idea that we can't allow a conviction to stand forever when the defendant was not in a position to contest the conviction through the appellate review process. If you followed the Ken Lay case at all, you encountered this rule when Mr. Lay died before he could appeal his conviction. As a result of Mr. Lay's death, he is in the eyes of the law an innocent man never convicted of anything.

As of 1997, at least, the majority of states also followed this rule. Alaska, Arizona, California, Colorado, Idaho, Iowa, Louisiana, Maine, Massachusetts, Missouri, Nebraska, New Mexico, New York, North Carolina, Oklahoma, Rhode Island, South Dakota, Tennessee, and Wyoming. This list was compiled in a South Dakota case from 1997. (That appellate court said the rule doesn't apply to defendants who plead guilty, but the state does apply the rule to defendants who were found guilty at trial.) I don't promise this list is exhaustive or entirely accurate 12 years later, though I can verify that I checked the Missouri case and it is still the law in Missouri.

Another chunk of states simply abate the appeal, meaning the appeal is dismissed but the conviction stands. Florida is in this category that isn't comfortable with vacating a conviction absent some showing of error. So in Florida, the defendant's attorneys do have the opportunity to ask that the appeal continue, but must show that there's a really big error in the case that would likely lead the appellate court to overturn the conviction. See State v. Clements, 668 So2d 980 (Fl 1996) (will abate the appeal unless good cause can be shown why the appeal should proceed).

I don't see a whole lot of practical difference between allowing the appeal to continue and allowing the appeal to continue if the defendant can show good cause. Either way, defense counsel gets to present the defendant's issues to the court. And either way, the court will judge the merits of those issues. The only real difference is in the form of the court's ruling. Basically, whether the appeal automatically continues or only continues if defense counsel can show good cause, defense counsel has to convince the appellate court that the conviction is so tainted by trial error that the conviction must be overturned.

So that is where John Evander Couey's direct appeal is now. A check of the docket this morning shows that nothing has been filed and no orders issued since his death.

Is this stuff interesting only to a criminal law geek?

Thursday, October 1, 2009

Rorschach crime scene analysis?

I read something like this and I don't know whether to laugh or cry. An FBI agent claiming the title of Intelligence Analyst thinks that the stain in the trunk of Casey Anthony's car clearly reveals the shape of a small child in a fetal position. Ok. Another FBI agent responded in e-mail that it would be too speculative of them to make conclusions; they would just let others draw their own conclusions.

If you use CNN as a news source, you've probably encountered the Casey Anthony case. She's the young woman who is facing capital murder charges in Florida in connection with the death of her 3 year-old daughter Caylee. For some reason, Nancy Grace has been obsessed with the case from day one, reporting on the "desperate" search for little Caylee. I am sure that Nancy is falling all overself to report on this "stain outline analysis" by an FBI Intelligence Analyst. I'm sure she and others think that if an FBI Intelligence Analyst sees the outline of a child in a trunk stain, it must mean that a murdered child was in that trunk.

Seriously? To me, this claim sounds more like wishful thinking than any real thoughtful analysis of a crime scene photo. Not to get too graphic, but if the stain is from decomposition fluid (which I believe is what the state is alleging), I don't think decomposition fluid from a dead body would ooze into the carpet of a trunk in the exact shape of the body. Blood certainly doesn't seep into floors like that. Doesn't liquid usually just ooze into rather generic blobs? But this FBI agent believes Caylee's dead body was in that trunk and so wants to see evidence of that.

I don't believe there is any scientific basis for this claim, as the second FBI agent's response demonstrated. But as both FBI agents' e-mails show, even FBI Intelligence Analysts can lose sight of the limits of science when they really think they've got a child killer and want to prove it.

Does this claim seem as silly to others as it does to me?
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