Wednesday, August 31, 2011


A friend asked me recently to blog more. Well, fine, what would you like me to blog about? How sad I can get? How lonely I am most days? How heartbroken I still am? Would you like to read all about how barren the dating landscape is for someone of my age and with my apparently unlikeable personality? Because, trust me, it's depressing. And I really don't think it's just that I'm completely unable to trust anyone after the only person I've ever loved threw me away one morning with absolutely no notice. (And, who are we kidding, I still kinda love the bastard, even though he doesn't deserve it.)

Or you could read all about how frustrated I am at work now. How a job I loved and used to live for has become completely unfulfilling, leaving me feeling stifled and useless. Not to mention that the workplace, which for so long was my main source of friends, has become downright unfriendly of late.

Or we could talk about how I can't afford to do anything proactive to improve my life because of the ridiculous expenses I have incurred due to the hideous roller skating incident. And I have good health insurance! Imagine how overwhelmed I would be otherwise. Which then just ticks me off to think how many people in this country would deny access to affordable health care for all of their fellow humans. Which then just leads me into thinking how hopeless our country is because the mean pro-business, anti-government, anti-compassion jerks seem to be controlling everything.

But, really, what does any of my petty unhappiness matter when the entire human race will die out in another 100 years because the global warming deniers will continue to refuse to do anything to save the planet?

So if you want to know why I haven't been blogging much lately, well, it's probably because I'm too busy trying not to cry.

UPDATE: Ok, so apparently my ability to write firmly tongue-in-cheek, over-the-top nonsense has gone missing. Because the above was not intended to be taken as a reflection of my current mental state. It was a statement of exasperation, at the world, at writer's block, at life block. So, since this space is theoretically my rants and I always feel better after a good rant, I just went nuts, ranting about everything that's been bugging me lately. And while no one seems to get me (a topic for another rant), it did seem to have achieved the desired result of unleashing the creative juices.

Monday, August 29, 2011

Mine is such an odd job. My ultimate goal is to put myself out of work. I don't want to have clients. When a verdict comes that does send a new case my way, I get depressed. When your job is to fight something you hate as much as I hate the death penalty, it's really a victory not to have a job at all. And I really hate the death penalty.

Friday, August 19, 2011

The day so many people have hoped for for so long has come. The West Memphis Three are free. I first saw the rumor last night that the three had left prison for a local jail and that they had packed up all of their belongings. That was a remarkable turn of events. First, it was a surprise that they had a hearing set for today. Second, it is highly unusual for an inmate to pack up his cell before being transferred to a county jail for a routine court appearance. So we knew something big was coming.

Then the first thing I saw this morning when I got up was the news that they had, in fact, been released. They were out, free men. I don't know about the rest of you, but I know I am enjoying today's sunshine, my yummy lunch, pretty much everything just a little bit more today knowing that they are also free to enjoy these simple pleasures of life with their families, wherever they want to be.

I am pleased that this happened for them while they are all still young enough that they have some hope for a normal life. They are 36 and 34, all younger than I am. Damien Echols is already married. There is reason to believe they can still have children, find jobs, live life. Ronald Cotton, who co-wrote a book with the woman who wrongly identified him as her attacker, is the best example of what kind of life is possible after exoneration. I hope that these 3 will be able to follow in his footsteps.

Of course, their story isn't quite that happy right now. They are not going to be fully recognized as among the exonerated. They had to accept the bitter pill of pleading guilty (while maintaining their innocence) to secure their release. This plea is a sham, designed solely to save the state the expense of a wrongful conviction lawsuit and the prosecutors the embarrassment of admitting a mistake. And it's ridiculously unfair because no one in their shoes could have turned the deal down. It wasn't a plea they wanted to enter, but what still young defendant, having spent 18 years in prison facing either life in prison or the death penalty, could possibly have turned down this deal, knowing it came with the promise of release TODAY? I am confident I could not have turned that deal down, no matter how offensive it was to me to technically plead guilty to a crime I had not committed.

So these young men aren't entirely free. They are out of prison, but they're on probation. For 10 years. With the understanding that a probation violation can land them back in prison for another 21 years. I would hope that this will be probation in name only. That they won't truly face many conditions or any real possibility of revocation. But we can't know. I would like to think that many people will recognize them as exonerated, innocent, but we can't know that, either. Undoubtedly, there will still be many, many people who will view them with suspicion at best. Ask Tim Masters of Colorado how easy it is to find work even after full exoneration. There will always be people who cling to belief of guilt. Being on probation might make it more difficult for these men to build new lives if they are required to stay in the state of Arkansas, where it will be harder for them to escape the case's shadow.

But today, I don't want to dwell on the negative, on the bitter aspects of this release and the difficulties they will face. Today, I just want to focus on the fact that they are free, able to sit at a dinner table with each other and their families, able to hug their mothers, eat a steak, go see "Cowboys and Aliens," and sleep tonight on a real bed, in a dark, quiet room, with no one demanding they get up at 4 am tomorrow, and with the knowledge that for the first time in 18 years, they will wake up tomorrow to a world full of possibility.

- Posted using BlogPress from my iPad

Location:What a beautiful day

Sunday, August 14, 2011

This makes my day. Seeing as how a judge has already found that Dale Helmig's defense attorneys established his actual innocence and his conviction was only achieved through prosecutorial shenanigans, deciding not to waste taxpayer money prosecuting this guy for the murder of his mother, which he didn't commit, is definitely the right call.

But (you knew I wouldn't offer unreserved praise for a prosecutor, didn't you?), the dang prosecutor just can't quite admit that he really is innocent. She just can't bring herself to admit a fellow prosecutor went after the wrong guy. Even a prosecutor as challenged at going after the right guy as Kenny Hulshof. Nope. She just has to point out that there is no statute of limitations for murder. And she just has to insist that they will refile the charges if new evidence comes to light. All with absolutely no mention that they might have to look at the guy who probably is the real killer. (I'm not sure if that man, the victim's husband, is still alive.)

So, gee, that's that, Mr. Helmig. You've served 14 years in prison, you've been labeled the murderer of your mother, and you've undoubtedly lost pretty much everything you ever had. Job, home, money, basic material possessions (like favorite books or beloved record collections), and any pets you may have had at the time of your wrongful incarceration. And pretty much all because a prosecutor refused to play by the rules. (But, hey, he got a 12 year Congressional career and a sweet big firm job out of the deal, so it's not a total loss.)

But you're free now, so it's all good. You don't need the state to acknowledge your innocence to assist you in any job search or to allow you to live out your remaining years without this shadow of suspicion hanging over you. You should just be thankful the state isn't going to try to send you back to prison.

Oh good gravy. This woman can't answer a straight-forward question to save her life. She has said that being gay is being part of Satan, is bondage, enslavement. That to life that "lifestyle" is sad, a life full of despair. And that those who are gays or lesbians (or bi or trans) are dysfunctional and suffer from a disorder. But when confronted with those statements, all she will say is "I'm running for the presidency and I'm not judging." As someone who actively fights against anti-gay bigotry, I find her "answers" in this interview profoundly lacking. Not that she would ever have my vote, anyway, but come on. At least try.

How anyone can take this woman seriously as a candidate for the presidency is beyond me.

Thursday, August 11, 2011

Rot in peace

It's a little rare for a defense attorney to express glee at a criminal defendant receiving a long sentence. Usually, even if I agree a defendant is guilty and is a danger to society, I still overwhelmingly feel it's a tragedy for someone's life to be finished out in prison. I will make an exception in this case, though. This judge deserves every day of those 28 years, and probably a few more. (I've written about this case numerous times over the past two years, starting here.)

A judge who would screw juvenile defendants out of their rights to counsel and to trial deserves to be stripped of his own rights. (After he has received due process of law, of course.) And a judge who would incarcerate juveniles for his own personal gain deserves to be stripped of his own liberty. For good. I will not spend one second worrying about how difficult it must be for this well-educated man, used to receiving respect and deference, to now have his every move dictated to him by prison guards. I will not shed a tear for his family who now must celebrate birthdays, graduations, weddings, holidays, etc. without him. But I do sincerely hope that he spends every night for the rest of his life haunted by images of the kids whose lives he ruined.

See, I do have the ability to be mean and vindictive. But only with people entrusted with protecting the Constitution and providing due process of law who outrageously violate that trust.

I miss my mom

No, she's not dead or sick or anything like that. She's just unavailable via text. And it's driving me nuts. Some people might think I don't have all that much contact with her because we don't talk on the phone much and we don't e-mail regularly. But, we text. A lot.

Back in high school, the tradition developed of the rant of the day. There was always something that happened at school that I just had to rant about when I got home. My English teacher said something homophobic. The Fellowship of Christian Athletes girls put up more "Jesus will save you" posters. The principal was threatening to censure the student newspaper. I was a socially and politically aware teenager, so I found things to be outraged about without even trying.

Naturally, this has continued over the years, though I no longer deliver my rants sitting at the kitchen table while she cooks dinner. (And, yes, I helped.) For example, when Law & Order had the awful, horrible, no good, very bad episode in which a defense attorney was sentenced to 20 years in prison for refusing to violate attorney-client privilege, my mom knew I was calling before her phone even rang. (FYI, I have never watched L&O since.)

Since we got cell phones, I have been able to give free reign to my rants, even if they are only 100 characters long. Anytime I have a random thought or gripe or interesting moment, I can just whip off a text to Mom. I always feel better after I rant to my mom. And in the case of a good tidbit, it feels more real after I have told Mom. There are a lot of things in life that no one can ever quite understand the import of more than your mother, having experienced almost every moment of your personal history.

But for the last week and a half, she has been out of text range. And so many, many things have happened in the past week that I couldn't tell her about!

I finally tracked down my childhood best friend on Facebook today and all I wanted to do was text my mom, "I found Susie Smith [not her real name]!" I went to tell Meryl and, try though she did, she just couldn't match the level of excitement my mom would have felt. Understandable as Meryl had never heard of Susie Smith before while Mom would know this was the girl I always coordinated my Halloween costumes with.

I couldn't get my garbage disposal to work. I was so frustrated, I wanted to cry. It would have been such a relief to be able to blast off a short text about it to Mom. I got it fixed, btw. All by myself. So the nice co-worker who dropped by this evening to help got 2 beers, 45 minutes of football on cable tv, and didn't have to get his hands dirty. Not that I could tell Mom about any of this.

The main thing we text our annoyances about, though, is politics. And there have been a lot of things to rant about lately! My governor turning down a $31.5 mil federal grant that will now just go to another state. The whole debt ceiling thing. And tonight, the Republican debate. I really can't listen to those candidates talk about taxes or gay marriage or abortion without steam coming out of my ears. Usually, I deal with this with a flurry of texts with Mom. But no such luck tonight.

Over the past week, I fear I have posted way too many links and status updates on Facebook and tonight I finally figured out why. I need my mom back! I need to be able to text her with whatever occurs to me whenever it occurs to me! I am undoubtedly annoying all of my friends. I am totally off-kilter. Because my #1 outlet is not available.

So Mom, please get back to your cell phone soon. And, so I don't lose any friends over my compulsive need to share ranty tidbits, please don't ever be separated from your cell phone again. Thanks.

UPDATE: She's back! I spoke to her for about 10 minutes today and told her all about my grade school friend and complained about the Republican debate and bragged about my garbage disposal triumph. All is now right with the world.

Tuesday, August 9, 2011

Every dog has its court

It's been all over the news this week, this story of a man convicted of rape appealing his conviction, citing as one of the trial errors the fact that his 15 year-old accuser had a therapy dog with her while she was on the stand testifying. Naturally, being an appellate lawyer, I pay attention. And as you might guess, I have some thoughts about the propriety of this sort of thing.

In some ways, a therapy dog isn't all that different from the legal ground we have already covered. We have argued about child witnesses (especially victims) holding a teddy bear or some other "comfort" item while testifying. We have argued about child witnesses having their parents in the courtroom while they testify or having an advocate sitting with them at the witness stand. There have also been other issues relating to making children as comfortable as possible when testifying: placing a screen between the witness and the defendant or having the child testify via closed circuit television from another room. So a dog is really just the next wave.

Those cases should provide the necessary legal framework for litigating this issue in the current New York case. Presumably, as in those other situations, the judge should make a pre-trial finding that the presence of the dog is necessary, taking into consideration multiple factors (age of the victim, stated fear at testifying, possibly an evaluation from a psychologist, etc.), and weighing all of the pro-factors against the danger of prejudice to the defendant.

So that's the way a court will look at it. But here's some of the main things I worry about. First, I hope that even if dogs are allowed, courts would be extremely cautious about getting the dogs in and out of the courtroom. Measures should be taken, wherever and however possible, to keep the jury from seeing the dog. Have the jury enter the courtroom only after the witness has taken the stand with the dog sitting in such a way that the jury can't see it. (In courtrooms I have seen, the witness stand is like a desk and is completely surrounded by a wood cubicle-type thing. So have the dog sit under the desk where it can rest its head on the witness' lap and yet not be seen.) If these dogs are as well-trained as they are supposed to be, I would expect barking not to be a problem. I know my heart melts a little every time I see a dog, so I think not letting the jury see the dog is important. (Unless the jury is entirely composed of cat people.)

My bigger concern, though, is that courts be mindful of what kind of allegations the defendant is facing. In some cases, it is entirely clear that a crime occurred, the victim was in fact victimized, and the only question is who did it. The Central Park jogger, for example. It's quite clear that she was attacked, brutalized, but she did not know by whom. Her testimony did not provide any meaningful evidence to identify her attacker(s). In that kind of case, perhaps a therapy dog would be somewhat less prejudicial. Regardless of who attacked her, we would expect reliving that evening would be traumatic for her.

The real prejudice comes in the cases where the question is did this crime occur at all? In so many sex cases, both adult rape cases and allegations of child molestation, it comes down to a he said/she said situation. The man claims the sex was consensual and suggests reasons for why the complaining witness would now allege otherwise. The father/uncle/family friend claims no impropriety while the child says he touched her. These cases don't usually involve much probative physical evidence. They come down to a credibility contest. Does the jury believe the accuser beyond a reasonable doubt? In these cases, allowing a witness to have a therapy dog (or a teddy bear or an advocate sitting behind her) can be devastating to the defense. Here we have the state and the court making it clear to the jury that this person is a victim. But that is for the jury to decide. No matter how much the court instructs the jury to disregard the dog, not allow sympathy to affect the verdict, or not read anything in to the court's rulings, the reality is that juries are going to be affected. One of the biggest blind spots in the criminal justice system is courts' refusal to acknowledge how juries actually work. So I fear no amount of instructing will stop a jury from being swayed by the subtle implication that the court has already determined the accuser is a victim in cases where that is precisely the question the jury must answer.

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