Monday, November 30, 2009


I've often commented that as a public defender, I have great job security.  Bad economic times and high crime rates mean there won't be any shortage of work for those of us who represent the indigent.  I really appreciate feeling secure that my paycheck will keep coming, so I hate to sound ungrateful. 

But sometimes I wish that my job security didn't have to come with a body count.

Friday, November 27, 2009

Double jeopardy lives

What kind of story makes a public defender feel all warm and fuzzy on Thanksgiving?  Why, a story about a man accused of murder having his case dismissed with prejudice, of course.  I want to give thanks to a Judge who holds the police and prosecution accountable for their actions, even if the end result is unpopular with the general public.

In this case, the defendant was on trial for murder.  During his testimony, the police officer dropped four little words, "I knew him prior."  The article isn't clear on this point, but I would imagine that the parties had already litigated the question of whether any of this defendant's prior contacts with police would be admissible at trial.  Upon hearing those words from, the defense attorney moved for a mistrial, which was granted.

After the mistrial, the defense filed a motion asking that the charge be dismissed with prejudice, meaning the charges are dismissed forever and can never be pursued by the state again.  This can happen sometimes when the Judge finds that the state goaded the mistrial through its actions.  The trial had not been going well for the state up to that point, so the defense felt that the state secretly wanted a mistrial so they could start fresh and present things better.  If the state does that, though, the Judge should refuse to allow the state to re-try the case, finding that jeopardy has attached and a second attempt at a trial would violate the defendant's right against double jeopardy.  The state doesn't get mulligans like that.

The trick, though, is finding a judge who will call the state on it.  Too often, judges insist on giving the state the benefit of the doubt.  They insist on ignoring the willfulness of the police officer's "slip" in testimony.  But these slips happen frequently, too frequently for me to presume they're not intentional.  Police officers who know they aren't allowed to mention the defendant's prior arrests love to mention that they know the defendant.  They seem to think that's ok as long as they don't explain how they know him, but of course they're hoping the jury will understand how.  And secretly, these cops think they know better than the judge what the jury should hear and what they shouldn't.  They think it's ridiculous that the judge has ruled the jury can't hear about how many times this guy has been arrested and charged in the past because if the jury  heard that, they would definitely convict the guy this time.  So they do their damnedest to get around the judge's ruling ecause the judge's ruling is wrong.  They think it's ok to bend the rules as far as they can without technically breaking them.

I once had a case in which it was made clear to the detective that he could not mention that his interview with the defendant occurred in prison.  But, boy, that cop went out of his way to describe the scene as occurring in a visiting room that they were allowed to use by the officials in charge of the facility.  Does it really require much imagination to figure out he's describing a jail or prison? 

This good judge in Kansas City didn't think it would require much imagination for the jurors to figure out just how the officer knew the defendant prior.  He even asked the jurors, who confirmed that they took that to mean the defendant had prior arrests.  Oh, and those jurors also confirmed that at the time of the mistrial, they would have voted 12-0 for acquittal.  So, yeah, the state's fear that the trial was not going well was confirmed.  And since the police officer is part of the state, the judge just couldn't let the police officer tank the trial to get the prosecutors a do-over.

So I'm thankful to this Judge for not letting the state manipulate this trial, for not letting the state create a second chance for itself when it was blowing the first chance, and for holding this police detective accountable.  Too many judges would have looked the other way and let the state have its second chance. 

Thursday, November 26, 2009

Maddie gives thanks

I don't really understand what this whole "Thanksgiving" thing is about, but I'm pretty sure I approve!  Mommy and Grandma spent a lot of time today in the kitchen, making lots of yummy smells. 

I had to check it out to see if I could be helpful (and to figure out what smelled so good!).

Grandma tried to tell me she didn't need my help, but I knew better.

Grandma had lots of pots on the stove and both ovens were full.  She definitely needed someone to keep an eye on things so she could take a break.

And I was just the dog to do it.  I barely left the kitchen all day.  I am a very good watch dog.

It turned out I was needed because Grandpa got a little messy when he was cutting the turkey.  Luckily, I was there to clean up his mess every time he dropped a little bit on the floor.  I sat on watchful duty while they all ate at the table, too, but no one was messy in the dining room.  Darn. 

Then they all went into the kitchen to clean up.  I knew I could be very helpful here.

I cleaned the floor while Grandma put food away.  I think she was very glad to have my help.

A-ha!  There's a spot on the floor that needs my attention!

In the end, my vigilance and helpfulness were rewarded.  Mommy put some turkey and gravy in my bowl.  It tasted as good as it smelled!  And then Grandpa came to cut the rest of the turkey.  He really needs a lot of my help because he dropped several little bits this time, too. 

I think I understand a little better why they call it "Thanksgiving" now because I feel very thankful to Grandma for making the whole house smell so lovely today and to Mommy for giving me yummy food and to Grandpa for saying, "Oops!" so many times when he cut the turkey.

But it was a long day for a watchful guard dog, so I am very tired now.  I think it is time for me to go to sleep.

I think I should sleep close to the kitchen, though.  Just in case.

Tuesday, November 24, 2009

Rounding up the usual suspects

This is why I oppose laws that allow police to collect DNA from people who are merely suspected of crimes.  In the UK, we're now learning that their "vital crime-fighting tool" that is the largest DNA database (in terms of percentage of the population included) in the world is largely a database of suspects.  The Human Rights Commission calls it "function creep" that has led police to arrest people just for the DNA.

Just guess what demographic is best represented in the database?  Black men between 18 and 35, of course.  According to one officer, it is now "the norm" to arrest everyone for everything so they can get that DNA sample.  I wonder if that really applies across the board or if maybe they're a little more willing to arrest those young black men than say a nice Susan Boyle-type.

This is why we can't allow collection of DNA samples from everyone arrested.  Because police WILL abuse it.  They will arrest people for infractions they would normally only ticket for.  They will follow suspects until they observe something arrestable and then they'll be able to get that DNA sample without ever having to get one of those pesky search warrants. 

I'm sure having a database like that is helpful in solving crimes.  But it is most definitely not worth the price we would all pay in erosion to our 4th Amendment rights.

Monday, November 23, 2009

Bleeding Kansas

Today the governor announced another $260 million of budget cuts.  Every state agency suffered, though nothing suffered as much as public education, but the governor did not urge furloughs or pay cuts for state employees.  Individual agencies may still furlough, but ours is committed to avoiding that option.  So I'm breathing a little sigh of relief.  I really like giving gifts at Christmas, but I was preparing to be pretty miserly this year.  I might not have to be quite as severe as I was thinking.

People who work for state courts, though, aren't so lucky.  It's been looking pretty dire for them for a while now and they are all very concerned about the real possibility of a total of 6 unpaid weeks.  So while I'm relaxing a little bit right now,  I am mindful that there are lots of other state employees who have to plan for weeks without paychecks.

Which actually puts me in a very good frame of mind for ranting.  Because there are other solutions to this state's budget woes, which are not solely the result of the tanking economy.  No, our problems go back over a decade and are the result of a legislature which rolled back or repealed pretty much every tax they could find.  They went a little nuts with sales tax exemptions.  Seriously, the numbers in business tax cuts going back to 1995 are a little staggering.  And going all the way back to 1995, people tried to warn those tax-cut-happy legislators that they were setting the state up to fail, that we couldn't absorb that much lost revenue, but the Republican-dominated legislature just didn't care.

And now that the doomsday scenario presented by silly Democrats has materialized, the Republican-dominated legislature still doesn't care.  They still don't want to hear it.  And they still flat-out refuse to address our massive budget shortfall, which has now led to 4 separate rounds of budget cuts, each more painful than the last, by even considering the revenue side of things.  They just will not consider increasing revenue.  They won't talk about rolling back any of those tax cuts.  They won't think about ending any sales tax exemptions.  Any option that would add money to the state budget is a non-starter. 

That's just bad management.  Trying to balance a budget without even considering one side of the ledger is irresponsible, stupid, short-sighted, and lots of other adjectives.  It's a little childish, too.  I hold out no hope, though, that the idiots controlling the House Appropriations Committee will wise up.  They'll just doggedly continue down this path of gutting every state agency (like those wasteful, unnecessary courts and schools) until the entire state collapses and our executive and judicial branches go bankrupt.  I think that must be exactly what they want.  Bastards.

Friday, November 20, 2009

If you really want to depress yourself, spend a few days reading comments on articles about a 15 year-old girl charged with murdering a 9 year-old girl.  The state alleges that the suspect dug two graves in anticipation of killing someone.  She allegedly didn't target her victim for anything in particular beyond opportunity.  According to the police, the girl just wanted to know what it felt like to kill someone.  A judge has now ruled she will be tried for 1st degree murder as an adult because the state of Missouri lacks any facilities to handle a juvenile defendant like her. 

Apparently I like to torture myself, because I have been unable to keep myself from finding articles about this story and reading the comments.  Reading how heartless, cold-blooded, and vengeful grown adults can be towards an obviously very troubled teenager makes me want to bury myself in my bed and hide in despair.  Numerous commenters are ready to "stick a needle" in her arm (or hang her or put a $.50 bullet in her, etc.) without hearing  or reading anything more than the information available in the first week after the murder.  These folks aren't deterred no matter how many point out that a 15 year-old can't be executed.

One kind-hearted commenter dared to write that it was unfortunate this girl would be placed in an adult facility because she would be used and abused by the adult inmates.  In response, another asked what the problem with that was, with a tone suggesting that the responder was somewhat eagerly anticipating this girl's hellish life at the hands of fellow inmates.  Most posters had no sympathy whatsoever for the suspect, no thought that it's at least a little tragic that someone so young could have her life so horribly, and probably permanently, interrupted.  And they had no interest in trying to get to the root of her problems or trying to fix her.  They're just ready to throw this girl away while calling her vicious names.  And they might not mind getting a good kick, or at least a solid spit, in at her on her way.

It makes me want to cry.  I don't ever want to get to the point of losing hope that any and every troubled child can be reached.  I don't ever want to get to the point of thinking it's not even worth trying.  I admit from the initial reports, if they are to be believed (and we all know we probably shouldn't believe the initial reports, don't we?), sound very troubling.  Maybe there truly are children who are just bad seeds and need to be locked away forever, but that thought is just too depressing to give in to.  I sincerely hope that the people actually handling this girl's case won't be quite so willing just to throw her away, though from the early actions of the prosecution and the judge's ruling on adult certification the signs aren't that good. 

Thursday, November 19, 2009

My happy place is now open

11 years ago, I arrived in Madison for law school.  I only knew one other person in town, as luckily a good college friend was beginning grad school at the same time.  Law school itself wasn't particularly stressful for me (I actually really enjoyed it), but living in a town I didn't know and the whole working 3 jobs and still being broke while wracking up tens of thousands of dollars in debt thing was a bit overwhelming at times.  So I needed a happy place, and preferably one that didn't cost a lot.

And what did I find?  Noodles & Company.*  Noodles: good.  Pasta is my go-to food in pretty much all situations.  Big bowls of food for $5: good.  I could still go out to dinner with friends without breaking the bank.  Or after a long, stressful day of visiting clients in prison, I could just stop on the way home and pick up an order without feeling like I was wasting money because I could make that one bowl into two meals.

And it could suit any mood.  Tired, cold, or in some other way needing comfort food, there's Mac and Cheese.  Feeling nihilistic and hopeless, aka like a Russian, there's mushroom stroganoff.  Wanting something simple, light, and uncomplicated, there's buttered noodles and parmesan, always with bright, happy carrots and broccoli added in.  Or there was my old stand-by for good days, the sesame seared lo mein (sadly no longer on the Noodles & Co menu). 

Not to overstate matters, Noodles & Company got me through those law school years.

Then, I moved down to Kansas, to the land of no noodles.  Every visit up north, I worked in a trip to a Noodles when I could.  Until the happy day about 5 years ago when two Noodles finally hit the KC area.  Then I found myself somewhat frequently in need of a trip to that Olathe shopping area.  I developed the bad habit of ordering two bowls: one for now and one to go, because I couldn't waste a trip to Noodles. 

A year and a half ago,  I heard the first rumor that Noodles would finally hit Lawrence, but nothing came of it.  Until this spring, we once again heard that a downtown store would be closing and the most likely replacement would be Noodles & Company.  Most people around here were sad to see the store close, but I was just happy.  Noodles & Company just blocks from my house?  Could it really be?  I soon discovered another Noodle-holic, my friend J, who also went to law school in a Noodle zone.

For months now, we've been watching the development.  Official store closing signs.  Official confirmation that Noodles would be the new tenant.  Then the work inside the store.  New awnings.  A "coming soon" sign.  Then an actual sign.  Then booths and tables and big menu boards inside the store.  I stalked the website, waiting for a press release announcing the new store.  And two happy weeks ago, we finally saw the date: Opening 11/20.  J and I immediately made plans to meet for dinner on that Friday.  Then the press release informed us there would be a special event tonight, a fundraiser for the local high school.  Our date moved up one night.

And now in just one short hour, I will be entering my happy place, just blocks from my house.  The only question left is what my first order will be.  If I were a betting woman, I'd put my money on my ultimate comfort food: Wisconsin Mac & Cheese.

*Noodles & Company has paid me nothing for this post.  I don't think they even know I exist.  I really am just the biggest Noodles addict ever.  But I will happily take a free bowl of noodles if they want to offer it to me.

Tuesday, November 17, 2009

Reason #657 why it's good to be Kansas

When ESPN gets the crazy idea to show 24 straight hours of live basketball games, necessitating some games be played at 4 and 6 a.m., there is no danger of my team getting one of those awful start times.  Northern Colorado, Monmouth, and St. Peter's drew those awesome times.  (Hawaii did, too, but 4 a.m. e.t. is only 11 p.m. in Hawaii.) 

Kansas fans won't be asked to get up before the sun or miss any of the work day.  No, we get the prime time slot. 

Being the cradle of college basketball has its privileges.

Zack's the Man

We may be one of the worst baseball franchises ever (well, over the last 20 years), but we have the best pitcher in baseball!  Zack Greinke has finished his sweep of all the major pitching awards by winning the Cy Young.  It was a landslide, too, with Zack receiving 25 of 28 first place votes.  Such a well-deserved honor for a guy who for most of the season was as dominant as any pitcher I can recall.  He may have only won 16 games, but come on, as a team, the Royals didn't have that many more wins.

Congratulations, Zack.  And thank you for signing a long-term contract with the Royals! 

Monday, November 16, 2009

A young man show's fidelity to the ideals of the Pledge by refusing to say it

Meet my new hero: a 10 year-old boy from Arkansas.  He has made headlines, earning himself an interview on CNN, for refusing to recite the Pledge of Allegiance in school each morning.  In his own words, he spent some time one weekend thinking about the actual words of the Pledge.  Like most school children across the country, he is asked (expected) to recite those words every morning.  But as a wannabe future lawyer, he felt he needed to think about the words and decide if he really could swear to them every morning.  (So cute!)  After considering the line "with liberty and justice for all," he concluded that he could not swear that his nation truly upheld those values.  He first cited a lack of equality for gays and lesbians, specifically marriage equality, but also mentioned what he views as still fairly wide-spread racism and sexism (and I won't pretend I disagree with him).  His teacher and his classmates did not let his stand (in the form of a refusal to stand) go unnoticed.  Other kids in his class called him names, suggesting that he must be gay.  I'm not sure exactly what the teacher said, but I get the gist that the teacher thought the boy was just trying to cause trouble.  After a few days, the boy had gotten a little fed up with his teacher and told her, "With all due respect, you can go jump off a bridge."  This landed him in the principal's office and, ultimately, in the headlines.

There are so many ways to run with this story. 

I have always had a problem with the Pledge of Allegiance.  I have never, ever uttered the part "Under God."  My mother taught it to me without those words because that's the way it was originally written.  Those two words were only added by Congress in the 1950s in response to McCarthyism and the red scare.  That alone would be reason enough for me not to say those words because it would be in some small way condoning the efforts of the Committee on un-American Activities.  And, of course, as an atheist, I'm not going to pledge allegiance to some fictional character I don't believe exists. 

But far beyond those objections, I have always been troubled by the way we thoughtlessly expect children to recite this pledge every day by rote.  Pictures of rows of little kids standing at attention, hands over heart, pledging allegiance because their teacher told them to kinda give me the creeps.  As an adult, I'm always uncomfortable when I find myself in a place where someone suggests we should all recite the Pledge.  I usually stand because it's easier than refusing, which always results in nasty looks and mumbled comments, but I don't recite it.  It just feels too wrong to be expected to recite the pledge to an audience.  My oath of loyalty to my country is private.  But if I feel so much public pressure to conform as a strong-willed adult, just think how kids feel. 

Pledging allegiance to a nation should never be something done so automatically, without any thought or meaning behind it, or done to avoid being called names on the playground.  It should only be a freely-made choice, like entering a marriage or choosing a faith.  It's like baptizing babies: the babies don't know what's going on, so how can the baptism itself mean anything?  We should encourage children to learn the pledge, think about it, and claim it only if and when they really feel it.  We shouldn't use peer pressure or a teacher's authority to coerce kids into reciting the pledge.  We certainly shouldn't harass students who exercise their rights and choose not to say the pledge. 

The teacher's role in this story shouldn't be overlooked.  During the interview, the father seemed embarrassed by the fact that his son talked back to the teacher, but no one seemed eager to chastise the teacher for giving a student a hard time.  Sure, the kid probably shouldn't have told his teacher to jump off a bridge, but I'm not sure how a 10 year-old is supposed to respond to an adult who isn't respecting that kid's rights.  To me, the shame in that situation is on the adult in the position of authority who harassed the kid, putting him on the spot to defend himself.

So I applaud this young man for thinking about the pledge, deciding what it means for himself, and asserting his unwillingness to go along with the crowd.  If he were 11 years older, I would totally buy him a beer.

Thursday, November 12, 2009

No, confessing to a reporter during an interview is not the same as pleading guilty in a court of law.  Even after the reporter writes a story reprinted in dozens of papers, the defendant still gets to insist on a trial.  Really.  I don't know why so many people in the general public have a hard time with that concept.  A confession like that may make the state's case pretty easy.  It may make a trial something with a foregone conclusion.  But it doesn't get the state off the hook for presenting evidence in court.  And, heck, even those guys who are "obviously" guilty still get to put the state through its paces at trial.  Sorry if that frustrates you all, but that's just how it goes.

Wednesday, November 11, 2009

How I spent my day off

I don't think there is any chore less satisfying than raking leaves.  My legs are sore.  My hands are cramping and I have blisters on my thumbs (despite wearing gloves).  We filled 3 bags with leaves and put a garbage-can's worth on the compost pile.  But we still had about 6 shovel-fulls of leaves left that had to be burned in my fire bowl.  So my hair smells like smoke, too.

And after all that, I could still probably rake up that many leaves again.  What's the point of putting myself through that much work if I don't see any result in the end? 

Tuesday, November 10, 2009

A monthly reminder

This is just a reminder that Don't Ask, Don't Tell remains an awful, pointless, discriminatory, asinine policy.  Darren Manzella spent his last two years in the military being pretty darn open about his homosexuality.  Everyone in his unit knew.  No one cared.  For 15 months in Iraq, he spoke openly about his boyfriend, displayed photos of him, and talked on the phone with him.  Unit morale evidently didn't suffer.  Huh.  In a professional military, the military members in Manzella's unit acted like professionals.  In other words, there was absolutely no reason whatsoever to discharge this honorable, respected soldier who earned respect and promotions in his 6 years of service. 

I will never understand why anyone thinks homosexuality is immoral or evil or wrong.  (And, no, I do not accept Leviticus as an answer.)  I will never understand why anyone thinks they shouldn't have to be exposed to that "lifestyle."  I will never understand why anyone cares.  It's just so ridiculous.  I'm not going to give up arguing in favor of marriage equality and the abolition of don't ask, don't tell and the abolition of laws barring gay adoption until those arguments are won.  And they will be won.

Monday, November 9, 2009

I could get used to this

Public defenders don't usually get very fancy digs.  Our offices aren't in very swanky buildings.  We never get to order new furniture.  Usually, we get the battered, bruised left-overs from the state's surplus warehouse of used furniture.  When we get really lucky, the banking commission buys new furniture and let us pick from their cast-offs.  Once, we were actually allowed to buy a brand new conference table, but I'm pretty sure that is the only piece of new furniture purchased for us by the state.  If we have comfy chairs in our offices, we brought them in ourselves.  Nothing matches, drawers don't always work well, and file cabinets have rust spots.  We don't have an office coffee maker, we bought our own fridge, and we pay for our own water cooler.  We are the red-headed stepchild of state agencies. 

So none of us quite knew how to react today when we learned we would each get to select new paint colors for our offices.  We have had our walls painted once since I have worked here (over 8 years).  But we all just got an ugly industrial beige.  I wouldn't have thought the building management would offer to paint our offices again for several more years.  But they have decided we are due for a new coat of paint.  And each and every one of us gets to pick out our own, individual color.  It feels kind of like our own Sally Field "Norma Rae" moment.  Someone likes us!

We can't handle such VIP treatment.  We are overwhelmed by choices.  We weren't just given a list of 10 choices.  We were given the entire Sherwin Williams catalog.  You know those paint color rolodex-things interior designers have.  We got one of those.  There are over 100 cards in there.  And each card has 7 colors on it.  And I can choose whatever I want.  I think my head might explode.

One attorney has already declared he doesn't want to choose.  Another just picked up the paint thing, closed his eyes, and pointed.  He landed on a decent shade of blue, but most of us want to be much more careful with our choices.  Public defenders don't get opportunities like this very often.  We want to make it count.  Plus, they might not re-paint for 5 years, so we have to live with whatever we choose.

I'm leaning towards Quixotic Plum.  It's a good name and a good color.  A deep, but not too vibrant, plum.  Some look at it and think it's too dark for my cave-like office, but I like dark colors on walls.  Evergreens is the leading contender if I decide to go green.  I thought about red (naturally), but I'm not sure I trust our building management to take the time necessary to paint the red the way it needs to be done.  My mom suggested Bateau Brown, because it's got plum undertones, but I'm not sure I can live with that much brown.  But there are so many more I haven't even looked at yet.

Whatever color I pick, it has to be better than the nasty beige I've got now.  And I will necessarily like it simply because no one else forced it on me.  Our entire office will be a pretty collection of unique color choices because I'm sure no two people in the office will select the same color.  I just hope we don't all get big heads and thing that we're entitled to such treatment on a recurring basis.  I'd hate to see us get greedy and think that we should get bookshelves that aren't dented or chairs with functioning height-adjusters.

Sunday, November 8, 2009

I did not get to be the mean judge today.  Today's mock trial was much better than the one we judged yesterday.  There wasn't anything for me to be mean about.  They didn't object just to hear themselves argue law.  I only recall one or two speculation objections and those were appropriate (overruled, but appropriate).

But now I want a day off before I have to go back to work.  Both yesterday and today, I got up only a few minutes later than I do on a regular work day.  Mondays are tough enough when you're going into them after a restful weekend.  I do have two things going for me, though: 1) I remembered to buy coffee for the office and 2) Wednesday is a holiday.  So it's only like a 2 day week.  I can get through a 2 day week.  Right?

Saturday, November 7, 2009

This morning I got up bright and early to judge mock trial. Well, I
was not all that bright as it was way too early. But I managed to get
there on time with coffee. I am friends with many of my fellow judges
and we had some bonding moments grumbling about the guy who roped us
all into this.

But truth be told, I have always enjoyed judging mock trial and moot
court. There's a bit of an ego trip in the way these college or high
school kids hang on my every word. I'm a real lawyer so I'm like a
demigod to them. I also get a kick out of these kids who take
conducting a fake mini trial so very seriously. This isn't just a
hobby to them; it's an obsession. As an evidence nerd, I love watching
them argue intricate details about qualifying experts and which out of
court statements truly are offered for the truth of the matter asserted.

This morning, SO and I judged together because our friend set the
judge pairings. SO took the role of presiding judge who rules on
objections because he hadn't judged before. It quickly became apparent
to me that he would be the nice judge to my mean judge. He scored
higher and gave nice comments while I gave lower numbers and commented
on things they could do better. I never thought of myself as the bad
cop before. I hope the kids I judged harshly today understand that I
was judging them as if they were real lawyers instead of just treating
them like kids playing. I don't let any lawyers off the hook for
mistakes, even if they are just pretend lawyers play-acting on a
Saturday morning.

Tomorrow morning, we'll go back for round 2. This time, though, I'll
be presiding. Ha. They thought SO was just nicer in his comments. They
have no idea how ruthless I can be when I rule on objections! (here's
a tip: don't object that a question calls for speculation if the
witness personally observed something.) If I have to get up early on a
weekend morning, at least I can be a little mean to make myself feel
better. :)

Sent from my iPhone

Friday, November 6, 2009

It's a family thing

When we leave prison at the end of an afternoon of visits, we always need an escort.  There's usually some idle chit-chat on the walk back to the main entrance.  Some days, it's about the weather.  Every once in a while, we actually hear some insightful comments about prison life.  Some days we don't talk at all.

And then there's today.  As we walked out, the escort guard pleasantly asked how our client meeting had gone and we'd responded that it had been fine.  Then, he said, in that knowing, sarcastic tone, "Of course, they're all innocent, right?"  He thought we would join right in with the joking.  Boy, was he wrong.  You, prison guard, do not get to make broad-brush, negative generalizations about all of my clients and get me to play along.  Making such a comment will awaken my ranting public defender.

My co-counsel is as hard-core as I am, so she wasn't inclined to make pleasantries along this line, either.  We both waited a beat before figuring out how to deal with such an out-of-line comment.  Finally my co-counsel hit on some harmless, generic, but not agreeing response.  "Well, that's what I hear," he insisted on soldiering on.  "Most of 'em are innocent.  I've only ever heard two guys admit responsibility."

I'd found my tongue by now, so I blurted out, "Well, of course they're not going to confess to you."  I think by now he'd finally figured out that he'd stepped in it, so he offered a conciliatory, "I'm sure some of them actually are."  But now I was in full rant mode, quickly following his comment with a very stern, "There are more of them than we care to admit."  Thus ended his attempt to knowingly joke with us about our clients.

I am still surprised when people make comments like this to me, expecting me to just agree and laugh along.  These are my clients you're joking about.  I can't join in that joke.  I'm supposed to zealously advocate for my guys.  That call to advocate doesn't end when the appointment does.  My duty of loyalty isn't confined to the courtroom.  I am always on duty. 

Now, I may speak about clients with my fellow defenders, my brothers and sisters, but family can always do that.  When we say anything about our "guys," it's always said with love and understanding, even when we're expressing frustration.  It's safe because we all know what we do and why we do it.  Just like anyone within the family feels free to talk about Aunt Jane's drinking, but anyone outside that circle calls her a lush and they'll get a tongue-lashing. 

So, see, prison guard, here's the thing: you're not part of the family.  And as an outsider, I can't just let you stereotype all defendants.  I can't let you keep thinking that they're all irresponsible liars.  I'm just a defender by nature, so I'm going to fight those assumptions by the general public.  If you don't want to deal with the ranting public defender, maybe we should just stick with the weather.

Wednesday, November 4, 2009

Supreme Court Bizarro World

I just read one of the most surreal oral argument transcripts I have ever seen.  Wednesday at the U.S. Supreme Court, the justices heard the case of Pottawatamie County, Iowa et al vs. Curtis McGhee et al.  The case started back in 1977 when McGhee and Terry Harrington were prosecuted for murder.  But the prosecution was flawed from the start as the prosecutors failed to turn over evidence of another suspect and coached the witness who proved to be the key witness against the two.  In short, the prosecutors told that witness what to say to frame these two defendants.

Cut to 2003 when the convictions unraveled.  Once exonerated, the two defendants sued a bunch of people, including the two prosecutors.  The prosecutors responded that they were protected by the absolute immunity courts have previously afforded to prosecutors engaged in their trial duties.  Wednesday's oral argument centered around this question of whether prosecutors who fabricate evidence in the investigation stage should be immune from civil suit if they then use that fabricated evidence at trial.  Of course, the prosecutor's attorney also argued there wouldn't have been any Due Process violation if the prosecutors had fabricated evidence and then it had NOT led to convictions.   Basically, prosecutors can truly do no wrong.  Well, they can never be sued for it, at least.  Either they're immune or there's no liability.

The transcript of this argument was oddly seductive, even as a part of my brain screamed about how ludicrous this all is.  The Court spent a lot of time arguing about when, or if, a Due Process violation occurs if a prosecutor fabricates evidence and whether a prosecutor who fabricates evidence can protect himself from subsequent suit by actually using that evidence at trial (because then the absolute immunity at trial would kick in).  As I read it, I kept screaming in the back of my head, "We're talking about prosecutors fabricating a witness' testimony that was used to convict two innocent boys of murder!"  It was easier than you might think to get sucked in to the prosecutors' argument about why absolute immunity should prevail.  They use big, shiny words and innocuous phrases that make it all seem so reasonable to declare prosecutors have immunity for their activities.  I could see that these prosecutors truly believe it would have a chilling effect on prosecutors if they are able to be sued for misconduct during pre-trial investigations.  Prosecutors will be afraid to do their jobs if they think they might be sued later!  While that sounds good, the rational part of my brain kept muttering, "Umm, is fabricating evidence really a part of their jobs?"  I could see justices were also quite willing to buy into this idea that it would be a terrible policy idea to allow wronged defendants to sue their prosecutors, overlooking the idea that it's terrible policy to allow prosecutors to fabricate evidence and use that evidence at trial without fear of reprisal.

But as soon as you step away from the world of sterile legal concepts and legalese, stop reading the transcript and put down the briefs and case law, there's really only one rational answer: OF COURSE defendants should be able to sue prosecutors who fabricate evidence against them to secure convictions.  OF COURSE that behavior should not be protected in any way, shape, or form.  OF COURSE such a ruling should (we hope) have a chilling effect on prosecutors: they might think twice before coaching a witness in exactly what to say to implicate an innocent defendant! 

Sure, like any case, it may lead to some non-meritorious law suits, but shouldn't we be able to trust our trial system to weed out the frivolous suits?  That seems like a small price to pay so that the truly wronged defendants, like Curtis McGhee and Terry Harrington can sue the crap out of the prosecutors who stole over 20 years of their lives.  After reading that oral argument transcript, though, I'm not all that optimistic that such a clear, obvious, rational answer will prevail. 

He did not just do that!

Oh, but he did.  Here's the video that's making the rounds in the criminal defense world today.  It's about 10 minutes long, so if you don't want to watch the whole thing, I'll recap it.  But it's worth watching if you haven't seen it yet just because it's so unbelievable.

Here's the short version: While the defense attorney is standing at the podium with her client, presenting her case for sentencing to the judge, the sheriff's deputy who is in the courtroom comes to stand right behind the defendant, between counsel tables.  From there, he looks down at the defense attorney's file, which is on the corner of her counsel table, right behind the attorney.  The deputy sees the bottom of a piece of paper in the middle of the file, so he pulls it out.  He then motions to another deputy in the room who comes over, takes the paper, and leaves the courtroom.  It's only then that the defendant alerts his defense counsel that something is amiss.

There are several reactions to this situation.  First, this all happened in the judge's direct line of sight.  There's no way she couldn't see the deputy's actions.  How did she  not react to this happening right in front of her?  As a defense attorney, I need to be able to trust that any judge I practice in front of would have my back, or rather my client's back, in a situation like this.  For a deputy to be looking at defense counsel's file is a gross violation of attorney-client privilege and the judge ought to make sure any deputy working security in her courtroom would never do such a thing. 

Then you have to wonder about the prosecutors who had to have been able to see this deputy.  Not one of them thought to pull the deputy aside and quietly order him to put the paper back?  Not one of them thought to stop the other deputy from leaving the courtroom with whatever was stolen from the confidential file?

Next, I can't let the defense attorney herself off the hook.  She probably shouldn't have turned her back on her confidential file, although, like her, I want to believe that I can trust grown professionals in a courtroom to respect my privileged materials without my having to watch those materials like a hawk for every second.  Also, I wouldn't have been so agreeable to holding a hearing at some later date in some less private location.  I would have probably gone a little nuts (ok, a lot nuts) and demanded that we get an explanation from the deputy right then, before he could have time to create a plausible excuse for his behavior. 

A judge who heard evidence on this issue last week has so far bungled the thing hideously by finding that the pilfered document was privileged, but he couldn't find the deputies in contempt unless the defendant would waive his privilege so they could discuss the contents of the document in an attempt to defend their actions.  Yes, that is as ridiculous as it reads.  Because if the document was privileged, there is no defense.  If the document was privileged, the deputy had no business taking it.  And, of course, regardless of the contents of the actual document, the deputy had no business sidling over to the table and peeking through the file to find that document.

Lots of other blog posts and articles have already been written expressing the outrage about this situation.  Here and here for a start.  I am sure you all can guess that I think it's utterly outrageous that a sheriff's deputy feels entirely free to walk up to defense counsel's confidential file, rifle through it, and remove a document for copying.  I would raise holy hell if this happened to me and my client.

But the thing that I really want to say is this: There's a school of thought out there that we don't need the exclusionary rule.  We don't need to exclude evidence that was obtained in violation of the 4th Amendment because we have sufficient other means of deterring bad police behavior.  And, most notably, we no longer need the exclusionary rule because of "the increasing professionalism of police forces, including a new emphasis on internal police discipline."  This isn't just an argument being pushed by prosecutors or law professors.  This idea of the "new professionalism of police" comes straight from the top: Justice Scalia himself wrote it in Hudson v. Michigan in 2006, openly questioning whether the exclusionary rule should remain the law.  As Scalia wrote, "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously."

Well, your honor, is this sheriff's deputy brazenly taking privileged documents from a confidential defense file the sort of new professionalism you wrote about?  Is this more evidence that law enforcement across this country takes constitutional rights (like the right to counsel) seriously?  I would submit this incident is Exhibit A for why we most definitely need an exclusionary rule: because sheriff's deputies feel no compunction about rifling through the defendant's confidential materials in open court. 
Badly done, Maine.

Tuesday, November 3, 2009

Yes, John Couey's appeal is dead

It occurred to me this morning that oral arguments were supposed to be
heard today in the direct appeal of the man who committed the crime
that spawned Jessica's Law. (Yes, my memory is that freaky.) When
Couey died, I questioned whether that would be the end of his appeal.
So I checked the Florida Supreme Court's website today and learned
that Couey's attorneys had voluntarily dismissed the appeal.

So there you go. I have no idea whether this appeal had any
meritorious issues or how motions to keep appeals going after a
defendant's death are usually received by Florida courts. I do know
I'm glad I practice in a state that simply proceeds with the appeal so
I would never have to be in the position of giving up on one of my

Sent from my iPhone

Big day, Maine

Today, the voters in Maine will vote on Question 1: "Do you want to
reject the new law that let's same-sex couples marry and allow
individuals and religious groups to refuse to perform these marriages?"

The legislature in Maine has already passed a law allowing same-sex
marriage, making this ballot question unique in the history of the gay
marriage debate. The polling has been close and this is an off-year
election, so I have no idea what to expect from this vote. Plus, it's
an oddly worded question. It reads to me as a compound question that
can't necessarily be answered with just a yes or no. I hope the voters
in Maine understand exactly what the question is asking. And I hope
the answer by the majority is a great big "no!"

Today's vote could be a huge step forward towards marriage equality.
But if the vote does come out the other way, I still won't lose faith.
I believe this war for equality will be won. It is only a matter of

Sent from my iPhone

Monday, November 2, 2009

Please don't touch my pens

I am very finicky about my pens.  My pen thing perhaps borders on the OCD.  Seriously, if you ever ask to borrow my pen, I will let you borrow it, of course, but I will not let that pen out of my sight.  I am VERY attached to my pens.  In college and law school, my backpack looked like an office supply store.  Because when I sat down to do my homework, I couldn't have just one pen and one notebook.  I needed a pen to take notes with.  That pen had to be a particular kind of Pilot pen, black ink, fine point.  (No, Pilot did not pay me for this post, but if they want to send me a box of my particular style of ball points, I would accept it.)  It had to be the Pilot ball points because they were the best at producing a fine point that wasn't scratchy.  I can't stand a scratchy pen. 

But that pen was only for taking the notes in my notebook.  Then I needed a particular type of gel ink pen for underlining in the book itself.  Black, of course.  (Always black.  I can't stand a blue pen.)  And fine point, of course, so nothing like those old felt-tip pens our teachers always had.  (I can't stand a thick-writing pen.)  This pen had to be very, very smooth, to produce the perfect, straight, unbroken line underneath the text.  But not everything in the book got underlined; some things need to be highlighted.  And there was a color-coding system to the highlighting.  (In the interest of full disclosure, I also had a system of little post-it notes and index cards that were also color-coded.)

And, always, whether it was ball point, gel ink, or highlighter, all of my writing implements had to be thin.  None of those thick highlighters for me.  My small hands like thin pens.  (And the thin pens were easier to do that debater-spin thing.)

I was in crazy-pen-lady heaven the year I found thin pens that had highlighters on one end and perfect underlining pens on the other.

I was always a procrastinator.  I would invent all sorts of reasons to delay my studying just one more minute.  I'd get all settled and then realize I needed a blanket or a drink or a different piece of paper before I could really get going.  I'm pretty sure my pen thing was just a way for me to set up roadblocks to my own studying.  Everything had to be just right before I could study, so the more pens I needed to have, the more things that could get me off the hook for studying.  I mean, I couldn't be expected to read my civil procedure readings if I didn't have my underlining pen handy! 

Now that I'm no longer a student, I might have hoped that the crazy pen thing would lighten up a bit.  But, no.  I still need just the right pen before I can get my work done.  I won't sign a motion or a brief or a letter with just any pen.  It's got to be the smooth, gel pens.  I can't read transcripts without my hand Pilot pen for note-taking, just like back in school.  And I can't sit down to start writing ideas for a brief unless I have a really good, exceptionally smooth gel pen.  As a lowly public defender in the midst of a budget crunch, I have finally come to the realization that I just have to provide my own pens, or I will never get any work done.  I have provided all of my own Pilot pens up til now, but I've usually been ok with the gel pens the office provides.  But the last batch has been decidedly inferior.  Scratchy.  Uneven.  Half the time, the cheap pens won't even write on my normal-looking legal pad.  I spent very little time today actually working.  Instead, I spent my time in a futile search for a decent pen.

I'm sure if I just could have found the right pen today, I would have written a brilliant issue.  I'm sure I'm not suffering writer's block at all.  Nope.  I'm not putting off writing my brief at all.  I was definitely  not procrastinating.  I would totally pound out that brief if I could find the right pen.  It's just a pen thing. 

Sunday, November 1, 2009

Like most lawyers I know, I take my ethical duties pretty seriously.  Yes, lawyers have ethics.  Go ahead and get your lawyer jokes out of your systems now before you resume reading.  We have a whole big list of rules we have to follow.  We have to take a class on those rules to graduate from law school.  And aside from the bar exam, we also have to take a special test just on those ethical rules.

(Happily, as a public defender, I don't have to worry about all the rules that deal with clients' money because those seem to be the ones most likely to get your ticket punched.)

In this state, one of the rules states that we are required to report when we observe ethical violations by our fellow attorneys.  Failing to report another attorney's misdeeds is in itself an ethical violation.  In theory, I appreciate this rule.  We should all be tasked with keeping our profession honest and ethical.  But in the real world, it's the hardest ethical rule to live with.  Because it's not always that easy to know when you've witnessed an ethical violation.  Some are obvious, but they aren't all so clear. 

Especially since Rule 1.1 is "Competence."  So I'm ethically obligated to report the attorneys that I think are incompetent.  Oy.  Obviously, not all lawyers are the same.  Some are really good at research.  Some are great in front of juries or argue well.  Some are better writers.  The best lawyers combine all of those skills.  But even the best lawyers can have an off day.  They might fail to catch a relevant case or leave some embarrassing typos in a brief.  Not every oral argument can be memorable oratory.  And there are some mediocre lawyers, too.  But there's a difference between mediocrity and incompetence.  So if I see a performance that I think is particularly poor, does that truly mean that particular lawyer has violated Rule 1.1?  In short, how bad does a lawyer have to be to be considered "incompetent?"

I struggle with this because on the one hand, I want to protect those clients who have placed their trust in someone who did not deserve it, but on the other hand, judging a colleague to be incompetent is not something I want to take lightly.  It's a very uncomfortable position to be in.  Going to the disciplinary board with an accusation that a fellow lawyer is incompetent is a pretty big step.  It's especially big to report someone for that rule.  That label of "incompetent" is so, so harsh.  No lawyer wants to get that letter.  Knowing how much anxiety I would feel upon getting that letter, I don't want to subject any other lawyer to that.  But, back on that first hand, some lawyers really are incompetent and shouldn't be allowed to take money from people.

So how do you decide which lawyers are the incompetent ones who really should be reported to the disciplinary folks?  I have yet to figure that out.
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