Friday, September 26, 2014


My first conscious sports memory was George Brett hitting a homer off Goose Gossage in the 1980 ALCS. For 4 of the previous 5 years, the ALCS had been the Kansas City Royals against the New York Yankees. Those damn Yankees won every time. Until George Brett, the greatest 3rd baseman of all time (and, no, don't bother arguing with me on that one), stepped up to the plate that fateful October night. I was 7. I knew it was a big moment. I knew the Royals winning was big. But it was my dad's reaction that really stuck with me, because he understood. He told me, "That was a man deciding his team was going to win and making it happen. Not many players can do that."

The Royals finally broke through the Yankees' chokehold that year and got to the World Series in 1980, though they never threatened to win the series that year. 5 years later, my Royals made the World Series again and they won it, as dramatically as anyone had ever won it. Prior to 1985, no team had ever come back from a 3-1 deficit in a 7-game series, but the Royals did it twice. First against the Blue Jays in the ALCS and then against the Cardinals. And the Don Denkinger out call in game 6 of the WS wasn't that big a deal, folks. It would only have been the first out of the inning. We still only needed 1 run to tie that game. And the Cardinals didn't have to fall apart so spectacularly in game 7 anyway. I've always believed 1985 was destined to be the Royals' year and it would have happened no matter what.

But then the very next year, our beloved manager was diagnosed with a brain tumor. And all hell broke lose. The team started losing. George Brett and Frank White retired. The devoted and beloved owners died. For 29 long years, the Royals were mired in misery. Losing year after losing year. 100 loss year after 100 loss year. We became the laughing stock of MLB. A punchline in "Pitch Fever." The team other team's fans don't bother to show up for. We sort of contended in 1994 until a strike ended that season. We definitely contended in 2003 until August. Then last year, we finally ended with a winning record, but still we ended on game 162. Every year, for 29 damn years, we ended on game 162, the last game of the regular season. Every other team in every professional sports league in the US has had at least one playoff appearance in those 29 years. Except for the lovably hapless Kansas City Royals.

It's been a rough 29 years to be a Royals fan.

Until this year. Until tonight. Until we beat the Chicago White Sox 3-1, thus clinching a playoff spot, even if it's only in the WildCard game.

In 2014, the Kansas City Royals will play a game 163. And it feels amazing.

Let's go, Royals.

Wednesday, August 20, 2014

If a cop commits a crime on video and in front of dozens of witnesses, is it still a crime?

Imagine you were walking down a street with a weapon, say a scary-looking assault rifle of some type. Imagine you turned to a person walking down the street near you and said, "I will fucking kill you," while pointing said scary-looking assault rifle at said person. Now imagine it was all caught on video tape with lots and lots of cops around. Just imagine what would happen to you.

I'll tell you: you'd be arrested and charged with aggravated assault. That's one of those crimes cops won't wait to present to a DA for formal charging and an arrest warrant. Cops can actually just arrest you if they see you commit a crime.

Now let's change the hypothetical a tad: imagine the person you pointed your scary-looking assault rifle at while threatening murder was a cop. What do you think would happen to you then? Personally, I think you might be lucky to avoid seeing a few new holes in your body next time you looked in a mirror (not that you'd really be able to look in a mirror because the number of new holes in your body would be incompatible with life). At the least, you'd be surrounded, tackled to the ground, probably roughed up a bit.

But, if you're a cop, well you'd just keep going about your merry business of crowd dispersal and intimidation. Sure, one of your colleagues would pull you away from the guy you were threatening to kill. Probably that colleague would suggest you should cool your heels a bit.

It wouldn't be until the next day after the bystander who caught the incident on video uploaded it before people really noted your out-of-control, criminal conduct.

Of course, this really did happen last night in, where else, Ferguson, MO. That video went viral. Thanks to that, the cop was identified. None of the witnesses could have identified him last night because cops in Ferguson are still refusing to wear badges or anything else with identifying information. He was asked his name and responded colorfully.

Now that the video has gone viral and the cop has been identified, he has at least been suspended.

I could go off on a tangent now about why so many legislators are so infuriated by teacher tenure because it means experienced teachers who have proven their classroom abilities can't just be fired for any reason. Teachers are worried about being fired for things like political reasons or as punishment for speaking up for particular students. Teachers are not trying to keep jobs they're bad at; nor does tenure protect bad teachers. But still, we put an end to teacher tenure in my state.

Meanwhile, just try to fire a cop. A bad cop, a dirty cop, a rogue cop, a murdering cop. They're impossible to fire. Even when you have video of them brazenly threatening someone. They get suspended, usually with pay. They get thorough investigations, hearings with representation, the backing of the police union. Heaven forbid a cop caught on tape threatening a pedestrian should just be summarily dismissed. Can't have that!

But suspending this cop isn't enough. He should be charged with a crime. Aggravated assault is, with a deadly weapon, putting someone in fear of harm. What this cop did fits the bill in my book. I would accept a plea down to criminal threat because I'd be a very reasonable prosecutor. But I wouldn't accept letting it go without criminal prosecution. Any non-cop who pulled that crap would be under arrest already. This guy should be, too.

Think of what that might do to calm tensions in St. Louis County if this cop were immediately charged with a crime. How many images have we seen in the past week of cops acting like thugs? Pointing their weapon muzzles at citizens instead of holding them in a downward position. A cop calling protesters "fucking animals." Snipers atop armored vehicles. Tear gas being thrown, journalists being arrested. And throughout it all, I've seen so much evidence of cops who don't see the people on the streets of Ferguson as the community they volunteered to protect and serve, but as underlings who are to do exactly as they are told, regardless of the rightness or lawfulness of the order. I've seen contempt, not compassion. I've seen disgust, not desire to bridge gaps.

Forcefully letting the community know that cops in St. Louis County do not have a license to threaten, do not have authority to make citizens fear for their lives would be a strong first step to improving relations between the residents of this county and their police force. Charging this cop with a crime we have video of him committing would let the people of Ferguson (and the rest of the US) know cops are accountable in a very real way for their very bad behavior. Oh, and charging him with a crime when we have video of him committing that crime would also just flat be the right thing to do.

Saturday, August 9, 2014

No, John Hinckley Jr. must not be charged with murder

Is the coroner who declared James Brady's death a homicide trying to make a political point? Was s/he subjected to pressure from any prosecutors or police? Or is this coroner just a stickler who says that because the health issues that led to Brady's death can be directly traced back to a gun shot wound he suffered 33 years ago, the death was the result of another human's actions and was thus a homicide?

I really don't know what the medical examiner's office was thinking when it labeled this death a homicide. But what I do know is that trying now to prosecute John Hinckley Jr. for murder would be a stupid, pointless waste of time and resources. It shouldn't even be considered.

I've seen it happen too often that prosecutors file charges without doing research about whether there are bars to those charges only to realize weeks or months later that the charges aren't prosecutable. No one benefits from this kind of react first, research later prosecution. It's not fair to a rape victim whose attacker has finally been identified after decades to let her think the man will be prosecuted because you didn't bother to research the statute of limitations first. Or to tell a grieving parent her son's death will be treated as a murder when the murder laws of your state don't allow that.

In articles I've seen today about this homicide finding, I've seen some rumblings that the case is being "investigated," that prosecutors are "reviewing the ruling." I hope they will actually carefully review the law and think about the case before filing anything because there should not, cannot, be a new trial.

30 years ago, a jury found John Hinckley Jr. was not guilty of charges related to the shooting by reason of insanity. That legal finding ought to be binding on the state. You can't undo that jury finding, can't ignore it, can't say it doesn't matter now. It does. It's law of the case. Eugene Volokh agrees with me on this, and also explains some other legal bars to prosecuting Hinckley now.

So for legal reasons, no one should seriously think trying to prosecute Hinckley for murder now is a worthwhile idea. And prosecutors should think through all of these legal obstacles before they file any charges, not after.

But there's a non-legal reason for letting this go, too, even if he could be prosecuted. John Hinckley was insane when he decided shooting President Reagan was just the thing to impress a woman he didn't know. A jury had no trouble making that finding. As a result, Hinckley has lived in mental health facilities since. Yes, he's now allowed passes so he can spend time at his mother's house, around 2 weeks a month. But he's been supervised and treated for decades. For over 30 years, he has been prevented from hurting anyone again.

Preventing him from hurting anyone is precisely what the criminal justice system's goal for this case was. We have already achieved all we could hope to achieve with Hinckley. He is still within a court's jurisdiction. He is still required to accept supervision and treatment for his mental illness. If his mental health deteriorates, there are already procedures in place to restrict the freedoms he has earned. Nothing more would be gained by trying now to put him in prison (where, by the way, it's almost guaranteed his mental illness would not be nearly as well treated).

The Hinckley case was a watershed moment in the criminal justice system. The outrage that a man who was insane at the time of his crime was found to be insane at the time of his crime was enormous (even if utterly unjustified). There was a false but very strong sense that he "got away with it" by being housed all these years in a mental institution instead of a prison. As a direct result of this case, states across the country altered their laws on mental illness as a defense to crimes. These new laws made it much harder for defendants to rely on mental illness as a defense at trial. The intent of these changes was to make sure the Hinckleys of the world would go to prison, not some "cushy" mental hospital because there was somehow something unjust about treating a person with profound mental illness as a person with profound mental illness.

Trying to prosecute him now would demonstrate that we've learned nothing about how wrong those knee-jerk reactions to his original verdict were. Our prisons are overrun with mentally ill inmates because we've criminalized mental illness. People like John Hinckley Jr. should be in mental hospitals, not prisons. As a society, we're better off when we treat mental illness and show compassion to those who suffer from it instead of throwing them away in prison as people too damaged to bother with.

The justice system's treatment of John Hinckley Jr. has been exactly what it should have been. There is nothing to correct, no reason to pursue new responses to his 33 year-old crimes. There is no reason to reopen that case. Here's hoping the powers that be know that.

Thursday, July 31, 2014

Forensic sciences in the criminal justice system: still a complete mess

Remember 5 years ago, when the National Academy of Sciences published a comprehensive report about the state of forensic crime labs and their impact on the criminal justice system?

Among the systemic failures noted by the NAS (and others, notably defense attorneys):

  • that crime labs are too inextricably linked with the prosecution and investigators, thus infusing bias into the testing process
  • that no national standards existed for many testing disciplines
  • that results are overstated in court
  • that junk science is passed off as conclusive evidence

Well, this might surprise you, but nothing much has changed. Why? Well, I'd suggest it's because the institutions that are currently in charge of the crime labs and the types of testing done don't want things to change. Because admitting things need to change is tantamount to admitting past mistakes. And we know prosecutors, the FBI, and pretty much everyone else involved in prosecuting people don't much care to admit past mistakes.

Now we learn that

Nearly every criminal case reviewed by the FBI and the Justice Department as part of a massive investigation started in 2012 of problems at the FBI lab has included flawed forensic testimony from the agency, government officials said. Washington Post
And the FBI's initial response was to stop the review. A see no evil kind of response, perhaps? If we stop digging, we'll stop seeing all the bad things we've done in the name not of science but of convicting people.

Some of the stuff that was reviewed for that 2012 investigation, and that still needs to be reviewed, includes "hair matching" which I put in quotes because it's such bunk. Tip if you're ever on a jury: if a lab analyst gets on the stand at your trial and starts talking about "hair matching," know said lab analyst is full of it. Unless a hair left at a crime scene has a follicle from which DNA can be extracted, there's no way for a person to use any scientific method to claim to match that hair to the hair of a particular person.

At yet, the FBI did it all the time. The first questions about the conduct of some FBI examiners were raised in 1997. And yet, we still don't have a thorough review of all the cases those examiners touched. People are on death row. People have been executed. But still, to this day, the FBI is dragging its feet about honestly assessing the scope of the problem. With that, I will presume, they're not being as insistent and urgent about making changes as I would like to see. (As I would hope anyone interested in justice and good science would like to see.)

No one benefits when the FBI, or its state and local counterparts, play fast and loose with science in the name of nailing the perp. That kind of mentality leads to wrong results. The evidence, when properly and neutrally examined, should lead investigators to suspects. Too often, though, crime labs that have any connection to, and thus a vested interest in, the investigation look at the evidence with the hope of using it to convict the pre-determined suspect. When crime labs and investigators work for the same team, investigators can get a little too tempted to tell the lab analysts what result they need to see. All forensic sciences are capable of having the results cajoled, massaged, overstated, or just flat manipulated. Yes, even DNA isn't exempt from this because there is always a human element of interpretation to any test result. This is a large part of what the FBI uncovered when it was conducting this review, finding that analysts in court were grossly overstating results, indicating far more confidence in matches than science called for. Heck, in many situations, declaring a match at all isn't supported by the science. But when your colleague is really sure this suspect is the guy and there are no protocols telling you you can't declare a match...

This is why national standards matter and were recommended 5 years ago. So we can't have an overzealous fingerprint analyst in Oklahoma be willing to declare a match based on 3 points of similarity instead of 8 or 9. So we can do away with scientists with all their sciencey credentials coming into court and telling jurors they did "microscopic hair analysis" and the crime scene hair matched the defendant's hair.

This is why the NAS recommended crime labs be made independent of police and prosecutors offices 5 years ago. So that crime lab analysts wouldn't be part of the prosecution team, but would be free to analyze the evidence free of that bias. Scientists left to their own science devices and purposes would never have come up with that microscopic hair analysis nonsense. Instead, it was thought up by FBI employees who were part of the team trying to catch the bad guys.

It is disheartening to see the FBI is still dragging its feet about acknowledging problems with bad evidence, overstated testimony from its analysts, and the bias that comes from working for the agency that's charged with arresting the bad guys. It is horrifying to realize how many people have been executed or incarcerated for decades based on this type of evidence.

There has been far too much delay already. We desperately need to clean up our approach to forensic sciences in the criminal justice system. One more day of delay is inexcusable.

Tuesday, July 29, 2014

Sometimes defending can be fun

Oh my, I so would love to be the lawyer who gets to present this defense to a court:

Former Gov. Bob McDonnell of Virginia and his wife, Maureen, on trial for conspiring to use his office for personal enrichment, outlined an unexpected defense on Tuesday: Their marriage was so broken that they did not communicate enough to conspire about anything.
 It really doesn't get better than a fun, novel, delightfully devilish, slightly snarky argument.

Too often, we're stuck with nothing. We're stuck with the cigarette butts at the crime scene with my guy's DNA were planted there by the real culprit. Or the scratches all over the defendant's neck that just happen to match what the victim said she did to the perp really came from climbing through bushes to find that sad, stray kitten. Or I just happened to be in the bathroom when the real perp came in, killed the victim, and then left without a trace after which I then went and tried to revive the victim, thus explaining why my bloody footprints and fingerprints and DNA are all over the crime scene.

In short, we often don't have a whole lot to work with.

But this, yeah I could work with this.

Q: Now Mr. and Mrs. McDonnell couldn't stand each other, could they?
A: No.
Q: They never voluntarily stayed in the same room together?
A: Never.
Q: Mr. McDonnell called his wife "The noose around my neck?"
A: More than once.
Q: And Mrs. McDonnell joked about spiking his food with cyanide?
A: Daily.
Q: So the prospect of the two of them working jointly on a plan to use his office to enrich themselves?
A: Slim to none. And slim just left town.

It would be fun to ask these kinds of questions of all the witnesses. Just how much did these two hate each other? How acrimonious was the relationship? And how did it manifest? Affairs? Broken dishes? Cold, dead silence?

There could be a lot of shared smiles with the jurors, maybe a few titters. It's stressful as hell to have someone's life in your hands. Being able to bring a little levity to the courtroom helps. And having an argument you can really sink your teeth into is the dream.

So enjoy, McDonnell defense attorneys. I know I would.

Wednesday, July 23, 2014


Tonight, I am angry.

Legitimately, thoroughly, heart-breakingly angry.

I am angry for my colleagues in Arizona. For days, weeks, months, the intrepid defenders representing Joseph Wood, who was executed today, have been fighting to get information about the lethal injection process. They, like any good defenders, wanted to know what the procedure would look like, what drugs would be used, where the drugs came from, what kind of training the people administering the drugs had. They argued to court after court that we couldn't assess whether executing Joseph Wood would violate the Eighth Amendment prohibition on cruel and unusual punishment without that information. Not only were they shot down by every court, they were vilified by the public, criticized in online comments sections, accused of filing frivolous motions, grasping at straws, doing whatever they could to eek a little more money out of the taxpayers. And in the end, they had to watch someone they cared about (because it is possible to care about people even after they've done horrible, terrible, heinous things) suffer through a prolonged death. (In a way that proved they were right all along to want the information they had sought, but small comfort that is to them tonight.)

I am angry for the portion of the American populace that wants no part of the death penalty. We think it's ugly, dirty, beneath the dignity of this great nation. We think intentional killing is wrong no matter who does it or why. Tonight, we feel guilty, we feel sorrow, we even feel dirty because we haven't been able to stop things like what happened to Joseph Wood in Arizona tonight. Our failure to win the day on abolition of the death penalty makes us complicit in your murder and that makes me angry.

I am angry for the reporters who had to watch Joseph Wood's prolonged death, that included him gasping and struggling for breath for nearly two hours. I am angry for the prison guards and other staff who were charged with trying in vain to do this thing they had no business doing. These are people trying to do their work, trying to be honest and lawful and genuine. And yet, they will now be forced to remember forever the sounds of Joseph Wood gasping for breath, the sights of him struggling as his execution went against plan. Actual people are tasked with carrying out the acts that will end human lives and with documenting those acts for the public. Those people pay a price and I am angry on their behalf.

I am angry for all of the men and women on death row throughout the nation who have to live in purgatory on earth, wondering if that could be the fate that awaits them next week, next year, or 10 years from now. No matter what you've been or done, no one should have to live with that kind of mental torture. We none of us think what their victims endured was ok because human beings shouldn't treat each other with such carelessness, such disdain. True adherence to that ideal means we shouldn't be ok with treating any human beings that way, no matter how much some humans might "deserve" it on some cosmic score card of pain.

I am angry as hell at the people who insist on keeping the death penalty alive in this country. It should be a relic, something we discarded along with lynchings, Jim Crow laws, denial of women's suffrage, and any number of other things civilized, enlightened societies are better without. I am furious that they insist some people waive their rights to live, deserve whatever manner of torture we can think of, etc., without recognizing the cost the rest of us pay when harmless, defenseless people are intentionally killed. We will be a better society when those people are finally defeated. I am angry that they keep us from being our best selves.

I am angry for Joseph Wood. He suffered a terrible, painful death. He gasped for breath, snorted, struggled for almost 2 hours. He will never now be able to tell us what it felt like. And while, yes, his victims also undoubtedly suffered in ways we will never be able to imagine, that doesn't make it wrong for me to condemn his suffering on top. We are supposed to be better than common criminals. If I could speak to Joseph Wood, I would tell him how righteously angry I am on behalf of his victims. That anger towards his actions does not in any way limit my ability to look Joseph Wood's torturers in the eyes and express the same righteous anger about Wood's subsequent suffering. Any time a human being suffers at the hands of another human, anger is justified.

There is no good way to kill a human being. Death is ugly. When left to run its own natural course, death can also be beautiful, transcendent even. But the ugliness is always there. When it comes as the result of the intentional act of human hands, there's no hiding the ugly. The ugly will always reveal itself. There is no method human beings can devise of intentionally killing each other that won't eventually reveal the ugly underbelly. Firing squad, hanging, drawing and quartering, lethal injection, electrocution, even Madame La Guilllotine herself. Every single method has been botched. Every single method has resulted in human suffering. Every single method is beneath us.

There is no good way to kill a human being. So for the love of all that is good, stop freaking trying.

There will never be a good way to kill a human being.

Wednesday, July 16, 2014

Listen to the smart judge, California

I've long known that California, of all states, had by far the most dysfunctional death penalty system. At last count, they had 748 defendants on death row. In total, over 900 individuals have been sentenced to death since California reinstated the death penalty in the post Furman-era of the mid-70s. Yet since 1976, only 13 people have been executed. If you take the total amount the state has spent on death penalty cases since 1976 and divide it by those 13 executions, it's a staggering number (as in several hundred million dollars). Since 2006, there haven't been any executions and there's no reason to think there will be one any time soon because the state has no execution protocols in place. Meanwhile, new death sentences are being imposed every year, so the death row population is ever-increasing.

I knew that the average length of time defendants spent on California's death row dwarfed the national average, that death row inmates in Cali were more likely to die from natural causes than execution, etc. I knew that one of the main problems was a lack of resources. Not enough lawyers, to start, because there's not enough money to fully-staff public defender offices and way not enough money to entice private attorneys to take on these cases. Then, of course, there's no money for the additional resources a defense attorney needs to handle post-conviction procedures correctly, like to hire investigators and experts, track down witnesses, etc. I knew that the death penalty in California was a pointless exercise in futility.

But even with all that knowledge, I was still  not quite prepared for the depth and breadth of the dysfunction in California as it was laid bare today in a federal district court opinion finding the California death penalty system to be unconstitutional. The defendant, Ernest D. Jones, through his lawyers at the Habeas Corpus Resource Center (HCRC) argued that the systemic dysfunction and delay that permeates every level of post-conviction review in California rendered his death sentence arbitrary in violation of the Eighth Amendment. Arbitrariness is a key word in death penalty case law; it's the thing we've been striving to pretend doesn't exist in our death penalty schemes. In this context, the arbitrariness argued by the defense and agreed to by the federal court was in how few death sentences will actually be carried out and that there's just no telling which few inmates it will be carried out on. There's really no rhyme or reason to why those 13 guys were the ones who were executed. No will there be any sensible distinction between the say 5-10 guys now on death row who are executed and the other 740 who will avoid that fate.

Because of the ridiculous delays and the sheer randomness of which cases finally make it through the system, this federal district court judge found California's death penalty unconstitutional. It's what people in the know have been saying for years. It's beyond refreshing to see a judge own it.

The thing that most floored me as I read this decision was how long it really takes to get attorneys appointed on direct appeal. In a normal state where the process is working as it should, the appointment of appellate counsel* should happen at roughly the same time as the pronouncement of sentence. A defendant is formally sentenced, the trial attorney files the notice of appeal (often on that day, but definitely within about 10 business days), and appellate counsel is appointed. It's not at all uncommon for all of that to be done on the day of sentencing. It's pretty easy to write a name on a form and then send a copy of that form on to appellate counsel. Then appellate counsel gets the appeal rolling, filing the necessary documents at the appellate court, requesting transcripts, etc.

But in California, it's not that simple. In California, as I learned in today's decision, it takes 3-5 years for appellate counsel to be appointed. 3-5 years. That is 3-5 years that a person newly convicted of murder and sentenced to death must wait around in prison without an attorney, without anyone to ask about the process, without anyone on his side. Maybe to some of you, that doesn't inspire a whole lot of sympathy. But to me, being in prison and facing a death sentence without one single person to turn to for guidance is unimaginable. One thing I wonder about is whether the transcripts are being prepared in those intervening years or whether that process waits until there is an attorney appointed? It's bad enough that defendants have to wait 3-5 years before an attorney begins working on the case, but it would be even worse if "working" on the case involves all that preliminary, time-consuming stuff like compiling the record and ordering transcripts.

California's death penalty quagmire doesn't get better after the direct appeal, either. There are lengthy delays in the appointment of the attorneys who handle state and federal habeas review. This is the part of the process that frustrates the crap out of kill-happy politicians and a public who doesn't understand why there are so many appeals. But it's an essential part of the process. Generally, it's only in habeas proceedings that defendants can raise issues related to the performance of trial counsel. Since effective assistance of counsel is a constitutionally-guaranteed right, it's kind of a big deal to make sure that right wasn't denied. And yet, in California, again, we're talking an average of years before habeas counsel is appointed.

The delays inherent in California's death penalty system aren't because defendants are pulling tricks and being difficult. It isn't because attorneys are filing frivolous motions and meritless appeals. It's because for literally years, there is no one doing anything on these cases. There is, in fact, no one to do anything on these cases.

That the California system has been irretrievably broken for years is not news. Back in 2008, a commission offered numerous suggestions for clearing up the quagmire. But in 2014, nothing has changed. The courts are more backlogged than ever.

Really, this judge just had the courage to say what so many people have been thinking for years. California, your death penalty is a joke. No, worse. It's a disaster. You've hopelessly, irrevocably mucked it up. It cannot be fixed. You will never execute the defendants you have already sentenced to death; you will definitely not get to any new death sentences. You're throwing bad money after good into this thing and getting absolutely nothing out of it. So stop. Just stop. Take this decision as your opportunity to once and for all get out of the death penalty business while you still have some dignity.

The only way for California to fix its death penalty is to abandon it.

*It really needs to be different counsel for a couple of reasons. Trial work and appellate work are very different beasts, for starters. But you also want fresh eyes on the case and counsel who will be free to identify if prior counsel made mistakes.

Tuesday, June 17, 2014

And we'll never be judges

I don't want to be a legislator or a political appointee heading some bureaucracy. I don't want to be a city or county commissioner or a school board member. I don't even want to be a judge.

But it really chaps my hide to know (not think, not guess, but know) that even if I wanted to pursue any of those jobs, the job I've dedicated myself to thus far would disqualify me. Once a public defender, never an anything else in public life.

We, the public defender community, have long known that we were not going to be able to stay in this role if we someday want to be judges. Fortunately for me, I'm an advocate through and through, so that was never a problem for me. But I have colleagues who would have loved to be judges, and who would have been marvelous judges, who get overlooked at every opportunity. Part of that is the networking angle. We're not attending the right meetings (because we can't afford it and our offices can't afford to cover us), we're not meeting the right people, becoming known in the right circles. Of course, prosecutors get to be judges, but public defenders don't.

It's more than just the financial aspect, though, because even those who do much private criminal defense work don't get to the bench.

It really shouldn't come as a surprise, then, to learn that being a public defender is a bar to all kinds of other jobs. We saw earlier this year how representing a particularly disliked death row defendant, no matter how tangentially and no matter how meritorious the issue, disqualified an attorney from joining the Justice Department. And now we see that the ratio of former prosecutors and judges to former public defenders in Congress isn't a fair fight, either. The key comparison: right now, the House has 32 former prosecutors; since 2000, only 5 former public defenders. I'd be curious to see the resumes of those former PDs, too, because I'd guess they had work between being public defenders and running for office. Prosecutors can run for office; public defenders have to have transition jobs before they can run.

The Washington Post story has examples of attack ads that have run against those defenders who do try to run for public office. Defend one accused murderer or child rapist and that'll be the first thing your opponent points out about you. I know exactly which case of mine would be the first mentioned in the attack ad against me if I ever tried to run for office. I think I can guess which would be second. After that, though, there's a whole slew of stuff to choose from. They'd need to buy a full half hour ad to properly rake me across the coals for all the bad guys I've tried to help.

What is this about? Why is public defender work so disrespected? Except it goes beyond disrespect. Public defender work is downright despised. I can't even work up a whole lot of anger about it, anymore. The public defender hate just leaves me feeling so defeated.

We're good people. We're good lawyers. We're not idiots who just couldn't get better jobs. We actually do this work because we believe in it. It's work you should believe in, too, if you like the Bill of Rights. It doesn't just stop at the Second Amendment, you know. There are, in fact, 4 Amendments that focus on the rights of those suspected of and charged with crimes. One of them even guarantees every criminal defendant the right to the assistance of counsel. So you could even say we're true patriots, doing a job specifically outlined in the Constitution. You're welcome, by the way, for all that security in your person and effects against unlawful searches.

But instead of getting thanks, we get crapped on. We're laughed at, derisively called "public pretenders." (Yeah, that's really original and we've never, ever heard it before.) We're confronted at parties with outraged queries of how on earth we can sleep at night. We're vilified on comment forums. We're the red-headed step-children of state agencies, being asked to do more and more work with half the resources of other state lawyers (I'm looking at you, prosecutors). Then when we still manage to do good things with those limited resources, we're just more hated. And to top it all off, we're not allowed to have any role in public policy discussions because there's always someone there to point out that the work we do is somehow "incompatible with justice."

It's a sin and a shame that the perspectives that we have aren't valued, that our experiences aren't represented in state houses or Congress, that we aren't desired contributors to policy discussions. We would actually have something worthwhile to contribute, if you'd all stop insulting us and hating us long enough to listen.

But you won't and I'm too tired to fight. So, go on. Keep hating and disrespecting me, my colleagues, and the work that we do. Just know, though, that if any of you anti-public defender folks ever get arrested for DUI or accused of rape or murder, one of us will be there to stand beside you in court, no matter what sort of mud and disrespect you've flung at us. We don't pick and choose who is worthy of a defense. We stand on the principle that everyone has Constitutional rights that should be respected. Even you jerks who wouldn't vote for one of us because of our principles. We're just that damn principled.

Tuesday, June 10, 2014

Gitmo: The elephant in the Bergdahl room

The President struck a deal to get an American soldier held by the Taliban in Afghanistan back and the world went crazy. By the world, I really mean tv pundits and Republicans who knee-jerk oppose anything and everything this President does. People who just weeks ago were criticizing him for not getting Bowe Bergdahl back were all of a sudden incensed that he struck a deal with the Taliban to do just that. (And don't even get me started on Andrew Napolitano's ridiculous "he could be charge with giving aid to terrorists for releasing these guys" nonsense.) It's been fascinating to watch from a political standpoint.

But there's a really important legal, criminal defense even, point that must be emphasized. What we should learn from the Bergdahl incident is this: Gitmo is now and has always been a terrible, horrible, no good, very bad idea and we have got to end it. We are running out of time to find a graceful way to end it and denial about the need to end it isn't helping.

For centuries, the world has recognized certain rules about how to handle captured enemy soldiers during war. Countries were allowed to keep those soldiers, rather than release them so they could wind up back on a battlefield killing again, but within accepted parameters. And when the war was over, everybody sent the captured soldiers back home. The more amorphous war on terror, where we weren't really fighting a defined foreign power made things a tad more complicated. We weren't at war with Afghanistan itself, just the nasty elements that were allowed to grow in the more lawless regions of that country.

When the prison/detention camp thingy in Cuba was first created, it was a creative extension of normal international prisoner of war standards. We called the Taliban and Al Qaeda fighters we captured "enemy combatants" so we could detain them under international prisoner of war standards rather than trying to put them all through criminal court. It was definitely uncharted territory, which made it so tricky.

But that was over a decade ago. At some point, we had to know we couldn't just hold these guys for the rest of their lives. Some who had provable ties to actual terrorist acts, like Khalid Sheikh Muhammad, we could try in criminal court, where presumably they will be convicted and we can then hold them forever. Because due process and international law both allow people convicted of murder in criminal court to be incarcerated for life. Combatants captured on a battlefield, not so much. We were never going to be able to make criminal charges stick against most of them, the vast majority of them, even. At some point, we were always going to have to start sending them home, even the really bad, high-ranking Taliban guys. It doesn't matter how much they hate us or how much harm they might hope to do to us. The French and the British didn't stop hating each other the moment a war ended, but they still sent each other's men home. Even if that meant they'd face off in battle again some day. We just don't get to keep them forever.

So since we have to accept that reality that eventually we will have to close Gitmo and release most of its inmates, we might as well get something for them when we can.

In the wake of the Bergdahl swap, it would be nice if we could have a serious discussion, then, about what we are going to do with all the rest of them. When and how will we release them (there is no "whether"), to which nations, and with what, if any, conditions. It would be lovely if we could calmly and rationally face this reality head on, if we could think about what other things we might negotiate about as we release more detainees. Instead of speciously whining that we made America less safe on behalf of the son of a man who looks too Muslim.

Tuesday, June 3, 2014

Q: When is a 12-year-old an adult? A: NEVER!

Way back in my law school days, I interned at a public defender office in Wisconsin, working on juvenile cases. I saw a wide range of cases, from Pokémon card theft to vandalism to battery. There was arson and some plain old runaway stuff. I saw a case involving a teen girl subjected to a search of her bra that wasn't too different from a US Supreme Court case. I saw kids from all different kinds of families, different socioeconomic backgrounds. And I saw kids of all kinds of ages, as young as 8, as old as 17.

Know what I didn't see? I didn't see one single juvenile I might have mistaken for an adult. Didn't matter what they were charged with or how old they were. They were universally just scared kids. (And I knew from scared kids as I was a 26 year-old broke law student.) The 14 and 15-year-olds I saw would have gotten crushed in the adult criminal system.

So I come with that perspective when I say I cannot fathom what on earth the prosecutors in Waukesha County are thinking by charging two 12 year-old girls as adults. It boggles the mind.
 As I've ranted before, Teenagers really aren't adults, so we shouldn't treat them as if they are when it comes to crime and punishment. But these girls aren't even there yet. They're still looking ahead to their teenage years! Go to any 7th grade classroom anywhere and try to find me even one kid who you would feel comfortable putting in adult court. I'm telling you now, that kid does not exist.

I can't believe I have to write this. I don't want to have to keep beating this very sad drum. But there is no justification for charging and trying a 12 year-old child as an adult. None. Doesn't matter what the crime is, what the child's IQ is, or what the child says about why it happened. All 12 year-old kids are kids and need to be treated as such.

Please, prosecutors of the nation, stop making me have to rant about this. Just stop doing it. We have a juvenile justice system for a reason. It's to deal with the 12-year-olds who commit crimes, yes even very serious crimes. Trust it. It actually can work if you let it.

Did you hear the one about the judge beating up the defense attorney?

I don't know what's going on in Brevard County Court. I don't know if their courts are hopelessly back logged with defendants waiting for court dates. I don't know if the prosecutor's office there is charging too many cases, refusing to negotiate deals, if the public defender's office is stretched too thin due to understaffing, or some combination of all of the above. But there is clearly something happening, leading to some simmering tension.

That tension boiled over yesterday when Judge John Murphy asked assistant public defender Andrew Weinstock what he wanted to do with a case and the PD doggedly said more than once that he wasn't waiving. The conversation was about whether Weinstock's client would get a speedy trial. It sure seems the judge was determined to get a waiver of that constitutional right. The judge was certainly annoyed at the PD's refusal to cooperate. It can be very inconvenient for courts when defense attorneys actually insist on protecting their clients' rights. The judge told the PD he was pissing him off, told the PD to sit down. The PD said he had a right to be there and to stand up for his client.

What happened at first isn't all that odd. It's the kind of exchange that most judges and PDs will have at some point. "Please waive your client's constitutional speedy trial right because my docket is a mess and I don't know how we'll fit it in," says the Judge. "Not our problem," replies the PD.

It's what happened next that sets this one apart. The Judge said he would throw a rock at the PD if he had one. Then he suggests the two should go outside. And the PD does. The video doesn't follow the pair into the hallway, but an altercation can be heard, some thumps, and I thought I heard some profanity. This article includes the video.

The PD says as soon as they got into the hallway, the judge started punching him. No discussion, no attempts to work out their personal differences, just punching. After a minute or so, the judge comes back into the courtroom (to some applause, yikes) and takes a minute to gather his breath. Doesn't seem like the PD returned fire at all. For all the bravado he exhibited leaving the courtroom at the judge's invitation, he surely knew a lawyer punching a judge is a career-ending move sure to land that lawyer in jail for at least a night.

Now, I can get plenty ranty about what this judge did to the PD. The PD was absolutely wrong to leave the courtroom as he did, though, of course, one rarely exhibits the best judgment in the heat of the moment. Ideally, the PD would have stuck to his guns on the waiver issue and then asked for recusal after the threat of physical violence. But the judge is totally at fault here. You don't get to punch people! You definitely don't get to punch defense lawyers for having the gall to defend their clients' rights!

This judge should be removed from the bench. I'd be ok with him not facing criminal charges if he suffers that consequence. He does not belong on the bench, with people's lives at stake, if that's how he handles conflict, especially when the conflict is purely because a defense lawyer refuses to bend to his will. What defense attorney would feel comfortable appearing before this judge now? I wouldn't. Even if he wouldn't hit me, the real physical intimidation that occurred in this case with this attorney will linger in his courtroom. So far, the only statement has been that this judge will not sit on any of this attorney's cases, but I don't think that begins to address the problem. This may have been the only attorney to have suffered actual physical injury at this judge's hand, but it won't be the only attorney affected.

But there's much, much more to this than has been covered in any of the articles I've read about the incident. The judge went on to do something else that should get him removed and that sheds more light on what his real motivations were.

The entire time this incident was occurring, the poor defendant stood quietly and respectfully at the podium. He was still there when the judge, and the judge alone, returned to the courtroom. He stood there quietly as the judge composed himself and regained his breath. And then, the judge addressed him.

The judge asked the defendant what he wanted to do. Not about sticking with that attorney or being reassigned, not about sticking around to see if another PD could show up to continue the scheduling hearing. Nope, he asked the defendant a substantive question about setting a trial date. Did the defendant want a trial date or did he want to waive his speedy trial right? That's right, the judge went back to a defendant who was represented by counsel but whose counsel was not in the courtroom because said counsel had just been beaten up by the judge and asked the defendant to waive the very constitutional right his counsel just got beat up for refusing to waive! Of everything that happened, that to me is the most outrageous. The judge couldn't get that damned public defender to cave, but maybe not that he's out of the way, the defendant will.

A judge doesn't get to interact that way with a defendant who is represented by counsel. He certainly doesn't get to create a conflict with the attorney so the attorney can't come back in the courtroom and then treat the defendant as an unrepresented defendant. What is a defendant supposed to think at that moment? If I don't waive my right, what will this judge do to me? A defendant shouldn't have to worry that he will suffer consequences for invoking a constitutional right.

Fortunately, this defendant stood firm and refused to waive his right. Had he waived it, that should have been a slam-dunk win for the defense because no way would that waiver have been valid. But none of that takes away from how unacceptable it was that the judge asked the question in the first place. He had no business conducting any business with that defendant while he stood in court without his appointed attorney. I wonder if any other defense attorneys (or prosecutors, for that matter) were in the courtroom when the judge addressed the defendant. I would hope one would have stood up and suggested no hearing should proceed in that fashion. But what lawyer would want to challenge that judge after what had just happened?

What this judge did is despicable and it is behavior that has no place on any bench in any courtroom.

Friday, May 30, 2014

Public defenders don't get to pick our clients. We don't get to pick what kind of cases we get. I take whatever client and whatever conviction comes through my door. I believe that's the only principled way for me to do my job. The presumption of innocence applies to all defendants, no matter how obnoxious or unpleasant. And the constitutional guarantees of due process, etc., apply to all charges. I wouldn't be honoring what I say I believe in if I would turn a client or a type of case away.*

This doesn't mean, though, that you don't sometimes read the details of a case that fell to someone else and think, "I'm glad that one didn't land on my desk."

*unless, of course, a personal conflict develops, in which case the client is better off if I pass the case off to someone else. But I do all I can to avoid those conflicts from developing.

Wednesday, May 28, 2014

#Yesallwomen includes this woman

Every time we have a mass shooting/murder incident, there is the inevitable discussion about what will we do, with some insisting the real issue is gun control and only control, others it's all mental health care. People will often deflect or even ignore the part of the discussion about the topic they don't want to address, insisting this one topic is a distraction from the real issue and those who would talk about it are therefore part of the problem.

A funny thing happened after this most recent shooting in Santa Barbara, then. Besides the usual gun control and mental health discussions, a third topic made its way to the forefront: misogyny and violence against women. Based on the alleged shooter's video rants and written manifesto in which he refers to women as mentally ill, wicked, the source of all evil in the world, and the predominant source of his misery, it seems a fair topic to bring in. So someone started a hashtag movement on twitter, #Yesallwomen. Women started sharing tweets that for many of us hit very, very close to home. Things like "because we teach girls not to get raped instead of teaching boys not to rape," "because we hold our keys in our hands like a weapon when we walk alone at night," "because if a guy buys my daughter a meal, it does not mean he gets to sleep with her."

Of course, predictably, a backlash then started, with hashtags like #notallmen, as if tweeters sharing these experiences hate all men, think they're all equally responsible for all the bad things a few men do. And that it was a distraction to the real issue, was someone co-opting this tragedy for political gain, etc. It's easier to react defensively, to knee-jerk reject a topic out of hand, than to listen and be thoughtful.

Maybe this hashtag trend has not a whole lot to do with this one mass shooting, but that doesn't make the comments being made any less valid. It doesn't mean the conversation women are trying to get started isn't an important one that men should hear, whether it's entirely comfortable or not. Because the cold, hard truth is I don't know one woman who doesn't have in mind what her offering to #Yesall women would be.

Since the #Yesallwomen trend began, I've had lots of tweets in my head, things I would contribute.

But I haven't and I'm not entirely sure why. Nothing I would post on twitter is anything I would be ashamed of or wouldn't defend. I say it's largely because my twitter feed is dedicated to sports and it's somehow not socially acceptable to foray too far into other topics. But that's never stopped me from tweeting about the death penalty or other controversial topics. Maybe it's just because I have too much to say, too many stories that can't be contained in 140 characters, and couldn't settle on just one or two.

Because there are so very, very many reasons to post to #Yesallwomen.

Because we equate female genitalia with weakness and male genitalia with strength.

Because a powerful woman must have a pair of brass ones.

Because a baseball player with a bad arm throws like a girl.

Because when a guy who kept trying to go out with me and wouldn't take no or silence for an answer finally drove me to send him an aggressive email telling him to leave me alone, the response was that I needed to up my meds.

Because when I didn't respond to another guy on his time table and explained I had been busy at my regular Thursday martini night with my besties, he responded that the image of a bunch of "sexy ladies" at martini night intrigued him and that he was sure we would eat him alive. Because, obviously, my friends and I regularly get together for cheap drinks to provide random men with fantasy material and we are all maneaters.

Because as this hashtag is trending all over social media, a male friend who I thought of as pretty aware and a feminist liked a stupid Internet post about how much men love see-through yoga pants, complete with pictures and obnoxious captions. And because what I want to do is share that post with a comment about how yes, even this kind of thing, is what the hashtag is all about, but I'm afraid it will come across as scolding this friend. (even though he probably deserves it.)

Because just this spring, there was a huge discussion amongst legal bloggers about what women should wear in court.

Because I have driven past my own house when I thought a car might be following me. And because when I told this to a male friend, he was totally stunned. It had never occurred to him to worry he was being followed.

Because people say that boys are easier to raise than girls, that teenage girls are a nightmare, that girls are horrible, to each other, to their mothers, etc.

Because even some women say things like "women are awful to each other," perpetuating the idea that women are catty, gossipy, unworthy of friendship.

Because people still think boys should be taught "don't hit girls" instead of just "don't hit."

Because no one asks men if they're going to go back to work after the arrival of a child. No one asks men if they're going to stop working after the wedding. No one asks men if they're going to change their names after the wedding. And if a man decides not to take his wife's name after the wedding, no one is going to passively-aggressively insist on addressing letters, invitations, etc. to him using his wife's last name anyway.

And because if you comment on any of these piddly little things, if you point to any of these specific incidents or comments as a minor piece of evidence about a much larger issue, you're told to lighten up, have a sense of humor, or not be so sensitive.

These are just the things I came up with off the top of my head in the space of 10 minutes. I haven't even touched on the birth control and abortion debates (which so often boil down to women needing to keep their legs closed, pay for their own promiscuity, and suffer the consequences of her slutty, slutty actions while the responsibility of men is ignored). Or the school dress codes that tell girls not to be distractions to boys. Or the studies that show that lots of today's 11-14 yo boys still somehow have the idea that girls should put out if boys spend money on them.

And I still have more. So many more.

Because medical research is still disproportionately geared toward men, leaving women more vulnerable.

Because women are still more likely to die from heart attack related incidents in hospitals because women's symptoms are still overlooked, downplayed, and thus treatment is delayed.

Because some people still persist in thinking of rape as somehow a "worse" crime than murder. This ones even worse because it's tied to a false claim of focusing on a woman's agency and bodily autonomy. But it's not. Both crimes deny a person agency and bodily autonomy. Duh. One denies it permanently and irrevocably for all time. Being raped sucks, no doubt. But no woman or man should think a woman might have been better off to have been murdered rather than raped. No woman's sexual purity or autonomy is more important, more valuable than her life. It sickens me that I even have to say that.

Because prison rape jokes are made constantly. Some even actively wish prison rape on particular defendants. All sexual violence is unacceptable.

Because the word that means "believing men and women are equal and deserving of equal rights" is considered a dirty word and something many women refuse to be associated with.

Because the fact that I am single, especially at my age, is somehow "my fault" and everyone feels free to offer an opinion on just what I'm doing wrong and how I should change to fix it.

Sure, women in this country today have far more opportunities than the woman of my grandmother's generation, or even my mother's. While my grandmother had to forgo college because the family's money had to be saved for her four younger brothers' educations, my mother and her daughters knew from early on a college education was non-negotiable. Women are all over higher education now. There are fewer and fewer work barriers, as well. The ranks of women in my profession are nothing like what my grandmother might have expected. Last I checked, more women are now graduating from law school than men. (Though it's not all rosy in the workforce. Women are underrepresented in the ranks of corporate CEOs and there's still that pesky pay issue, for example.)

Equal access to education and the workforce are the big things that are frankly easier to address. You can pass a law about discriminating against women in the workplace. Equal access to education can be the topic of a lawsuit. But you can't write a law to stop certain men from feeling entitled to grope the first women they find on dance floors. You can't sue men who think "make me a sandwich" jokes are funny or who feel threatened by women who earn more money than they do. So that "little" stuff is what lingers, long after the law technically recognizes equality.

That's what #Yesallwomen is about. This piddly little crap, all the hundreds (thousands?) of insidious little ways women are still somehow a little less than men. Even if some men and women don't want to acknowledge these things are true or a problem, it's been downright cathartic to write them out and stop pretending this crap doesn't get to me.

So there. Think my rants are all just the ramblings of a hormonal bitch (ooh, because while men's hormones also cycle regularly, you never hear anyone write off a man's comments with a derisive reference to his time of the month) if you want. Think I'm overblowing little things that don't matter. Each of the above is something I have personally encountered, heard, dealt with, and been negatively affected by. Feels pretty good to air all those grievances for once.

Tuesday, May 27, 2014


I have a pithy saying hanging on the wall of my office. It's something along the lines of, "Sometimes you have to admit there's no authority for your position because no judge has ever been that stupid before." Only it's phrased a tad more, umm, colorfully.

It's true, though. Every once in a while, an appellate attorney finds herself desperately looking for an actual case law cite for some legal proposition that is so obvious, it has never needed to be stated before. It's like the legal equivalent of having to find a reference to cite for the fact that the sky is blue or up is up. There aren't any cases to cite for some basic propositions because no one has ever thought it was any other way and thus there's never been a need for an appellate court to spell it out.

For example, I would never have thought anyone would question that if a trial were held,a jury selected and sworn in, and then the prosecution just declined to participate in any way, as in they put on no evidence, the only option would be for the district court to enter a directed verdict of not guilty and the state would not be allowed to appeal it. Seems pretty obvious, like one of the lowest level proofs 9th graders learn on the first day of geometry. The state has the burden of proof. Putting on no evidence at all does not meet that burden of proof. Only choice is an acquittal. Acquittals are not appealable. Simpler than simple. A + B = C.

But I guess it's not that simple to everyone, thus once again proving that my wall quote is sadly true. Because as of today, there is now written authority from the United States Supreme Court on this point, made necessary by the Illinois Supreme Court's total bungling of this simple issue.

First, let me explain one type of "decision" SCOTUS issues. It's called a "GVR." Grant, vacate, and remand. To get SCOTUS to consider your case, you have to file a petition for certiorari. The vast majority of those are denied. About 70-80 are granted each year. Those are the cases the court hears argument on and issues long written opinions on. It's quite common, though, that for each cert petition that is granted and argued, there are several others involving the same issue. Those petitions won't always be denied, but can be held. Then when the main opinion is issued, the court will "GVR" the other petitions, with instructions that the lower court should reconsider the issue in light of that newly-announced decision. Those cases will show up on the generic weekly order list, with only a short paragraph heralding that the petitioner has technically just "won" her case at the Supreme Court.

Today's order list had a more unusual "order" on it in the form of a short "Per Curiam" decision. A per curiam decision is one that isn't attributed to one particular justice as an author. In some cases, it might mean no one justice wants to take the heat, but more often (and in this case) it means they're all just really in agreement and it's not worth their time to worry about who will get the credit. In this case, the written decision/order was necessary because what the Illinois court did couldn't go uncorrected, but not worth SCOTUS' time as a full grant-with-argument because, duh, there was just no question about what the result had to be. It all leads to the oddest little thing I've ever seen from SCOTUS.

Now, maybe this is the kind of thing that's really only interesting to a total legal nerd like myself. But it sure made me giggle this afternoon.

In short, here's what happened. The state had trouble finding its two critical witnesses. So they got a trial continuance. And another one. And I think at least one more. It was a little unclear how much work they were really putting in to tracking these two down. Finally, about 4 years after the incident leading to the charges, the state ran out of patience from the trial court and got no more continuances. The state participated in jury selection and sat back as a jury was sworn in. Now, for constitutional double jeopardy purposes, the most basic tenet of law is that jeopardy attaches when a jury is sworn. It has been that way for far longer than I've been practicing law. The state declined to dismiss the charges without prejudice, which would have allowed it to refile the charges at a later date. They instead insisted that only another continuance would suffice, but the trial court was pretty much done waiting for these witnesses to be found and the state did have other witnesses on its witness list, after all.

The state informed the judge that it would not be participating in the trial. The judge replied, "We'll see how that works." The judge then, in front of the now-sworn jury, asked the state if it had an opening statement. The prosecutor said, "Respectfully, the state is not participating in this case." Ok, then. So the judge invited the state to call its first witness. "Respectfully, your honor, the state is not participating in this case."

Any law student who'd taken two days of criminal procedure should know what to do if representing the defendant at that point. "Your honor, the defense moves for a directed verdict of not guilty. Respectfully, of course." And any person who'd taken zero days of law school should know the only choice the judge would have at that point would be to grant that motion, declare the defendant not guilty, and end the case. Which is exactly what the district court judge here did.

The state appealed. Odd as most lay persons know the state can't appeal an acquittal. But odder still, the Illinois Supreme Court found the acquittal to be inappropriate because jeopardy had never attached because the defendant never faced the "threat" of conviction. Can't be convicted if the state doesn't even try... An inexplicable ruling. Indefensible. Totally wrong because the clear authority has long, long been that jeopardy attaches when a jury is sworn. Period. Moreover, from a practical standpoint, this ruling would have been a disaster. It would have allowed any prosecutor anywhere in Illinois to unilaterally force a continuance by just refusing to participate when the trial court wouldn't agree to said continuance. No matter how much any court wants a particular defendant not to get off, that should be an unacceptable possibility. It would be chaos. So the US Supreme Court rightly issued a short, sweet little decision saying, "Duh, no." They said it a lot more kindly than I would have were I Justice Per Curiam. (A colleague and I were wondering who actually did write it. She theorized Scalia, but I said there's no way Scalia would have been that gentle.)

I'm not sure how many prosecutors the nation over would have thought to try this. I can't imagine how many appellate courts nation-wide would have given prosecutors the green light to pull such a stunt. What the Illinois Supreme Court did was really pretty stupid. At least now, if another court anywhere in the country decides to be that stupid, there will be authority for the poor defense attorney dealing with said stupidity to cite. Because in the end, it seems, there is always one court who will eventually be that stupid.

Monday, May 5, 2014

Good news

Sometimes, people do the right thing and it's a beautiful sight. Remember Mike Anderson? The guy who never went to prison after his robbery conviction, but spent those 13 years building a business, a good family, and generally living a good, worthwhile life? They let him go. The state of Missouri, of all states, did a good thing and let him go. Who knew Missouri even knew good things existed? (I kid, I kid. Sort of. No self-respecting Kansan won't take pot-shots at Missouri every chance she gets. Doesn't actually mean we think every single person who lives in Missouri is evil. My friend Ali is pretty cool.)

Anyway, it's nice to see a judge take a rational approach to sentencing. It's good to see the Missouri Attorney General's office seems to agree with the result. We shouldn't send people to prison just for the sake of it. I knew when I first read about this case that all my fellow defenders would agree sending a guy to prison at this late date after he's built such a successful life for himself would be a ludicrous waste of resources. I'm glad to see the non-defenders see it that way, too.

Enjoy your family, Mike Anderson.

Saturday, May 3, 2014

Yep, I'm still ranting about Shaken Baby Syndrome (because it's not a real thing)

I've ranted about the problems with the should-have-already-been-abandoned nonsense called Shaken Baby Syndrome before. And before that. And before that. So perhaps you could accuse me of harping on it (though I don't think that's a fair characterization of 4 blog posts over 3 years). But it's important to keep educating the public about it because the public includes prosecutors and judges and defenders and prospective jurors. The more we all know about the bad science that has permeated these prosecutions so we can get correct results in every case.

In short, the idea behind SBS is that there exists a triad of injuries (subdural hemorrhage, retinal hemorrhage, and encephalopathy) that can only occur after some kind of abusive trauma (like shaking) and that onset of symptoms can be used to identify the perpetrator.

Here's a story about yet another person accused of shaking a baby to death based on the flawed theories behind the SBS diagnosis. Because make no mistake about it, the SBS claim is bunk. Fortunately, the flaw in Jennifer Del Petre's conviction has finally been recognized (though, unfortunately, not until she'd spent 10 years in prison). The noteworthy and encouraging point in this case is the skepticism the judge behind Jennifer Del Petre's release expressed about not just this case but the SBS diagnosis in general. Finally. We're finally getting through to courts. We may also be getting through to prosecutors as there are innocence review projects in numerous big jurisdictions and at least one SBS case was dismissed by prosecutors rather than being retried.

May we all continue to express more and more skepticism about the idea that a person's guilt can be established merely because a triad of symptoms were identified in an infant and that person was the last one around the infant. If you hear a prosecutor or doctor say that, you should question those assumptions. If you're a juror, you should be unwilling to convict if that's the state's case. And don't be fooled by experts or prosecutors who don't refer to SBS but instead call it Abusive Head Trauma. It's still the same turd of a theory, just dressed up differently.

The triad of injuries can result from so many different causes: serious trauma, accidental bumps or falls, organic diseases. And the triad can take minutes, hours, even days to appear.

It's important to identify child abusers. That should go without saying. But it's equally important not to mislabel innocent parents or childcare providers as abusers because we can't get past the flawed thinking behind SBS (and its replacement diagnosis, Abusive Head Trauma). So expect me to keep harping on (I mean blogging about) this topic from time to time until we eradicate the SBS diagnosis entirely.

Tuesday, April 29, 2014

Umm, Egypt, you might want to rethink that...

In the United States, we have a pretty robust set of rules and practices we have to follow before we can execute someone. (In theory, anyway.) As we are basically the only major free nation with a democratically-elected government left who executes people as often as we do, it stands to reason that we'd at least have a better process than pretty much any other death penalty nation.

One of our (alleged) cornerstone principles is that each defendant is entitled to individualized consideration at sentencing. Furthermore, the key word in all death penalty cases is reliability. In theory, at least, we put a lot of stock in the notion that every piece that goes into reaching that ultimate sentence has to be reliable. It's cumbersome, expensive, time-consuming, and still yields mistaken verdicts.

But at least it's a whole lot better than this. In a trial that lasted minutes (yes, you read that right: minutes), an Egyptian court sentenced 683 people to death. This is the second such mass death verdict in recent weeks in Egypt, both by the same court. In a sign of its total reasonableness, the court in the first case later commuted many of those death sentences, so just under 500 defendants are now facing only life in prison while 37 had their death sentences upheld. So perhaps in another week or two, the court will also commute 600 or so of these death sentences to life in prison, thus leaving a much more reasonable 80 or so death sentences. Because that would make it ok.

Note also that all of the defendants are part of the Muslim Brotherhood or its supporters and that the political motivation appears to be to suppress this segment of the electorate before a May 26-27 election.

So, yes, the US does the death penalty a whole hell of a lot better than Egypt. Go us! We're better than a chaotic country currently ruled by the military, after a coup of an elected president, who is now trying to crack down on a particular portion of the electorate in advance of the next presidential election!

(But we still do it pretty poorly and should stop doing it all together.)

Wednesday, April 23, 2014

In which Justice Scalia temporarily turned my world upside down (but restored order 24 hours later)

I'm always weirded out when I find myself agreeing with Justice Scalia. (Same with George Will, who once in a while doesn't piss me off.) There are just some people whose world views are so diametrically opposed to my own, it doesn't seem possible there could be any overlap. Scalia thinks actual innocence isn't a basis for not executing someone. (Really, he more rejects the idea that innocent people are ever convicted in the first place.) Scalia hints that he thinks the idea of suppressing evidence from unconstitutional searches and seizures has no basis in the 4th Amendment.

So it kinda throws me for a loop when I read a 4th Amendment case in which Scalia writes the opinion I wholeheartedly agree with. Like yesterday, when the majority of the Supreme Court approved a traffic stop, but Scalia joined the three women and even wrote the dissent, pointing out how awful the majority opinion is.

In a nutshell, here's what happened. 911 call was made by someone (a woman, apparently) telling the operator that she was run off the road by another driver. The caller described the truck, including the license plate, and the location. Within about 20 minutes, a state trooper was behind the truck, about the right distance away from where the incident allegedly originally happened. Through the trooper followed the pick-up truck for 5 minutes or so without witnessing any traffic infractions (a feat in and of itself, really), the trooper pulled over the truck. The trooper smelled marijuana (as they tend to) and found a large quantity in the bed of the truck.

Cue the suppression motion. The defense, naturally, argued the stop itself was unjustified, thus rendering all of the evidence subsequently found fruits of the poisonous tree that are inadmissible in court. Now, the most important thing for you to know about a suppression motion is that the defense bears no burden. Instead, the state bears the burden of proving that the stop and/or search did not violate the Constitution. Remember that. The state has to produce evidence, has to convince the court. So say the state wants to argue that the contraband on the defendant's person would have been found anyway because the defendant was arrested pursuant to a valid arrest warrant and upon check-in at the jail, the defendant's possessions would have been logged in. In that case, the prosecuting attorney can't just make that argument. Rather, the prosecutor has to put on evidence at a hearing of the jail's practices of inventorying an arrestee's possessions.

In the context of our case, the state bore the burden of proving that the information the trooper possessed at the time he pulled over the defendant's truck was sufficient to establish reasonable suspicion that a crime had been committed. It's so critical that the trooper himself didn't claim to have seen anything, not a single swerve, a crossing into the shoulder or over the center line, no un-signaled turns or lane changes, no speeding, nothing. The only reason the trooper pulled the truck over was that 911 call.

Now, I don't know about the rest of you, but the times when I have called 911, I have been asked for my name and given it. In other situations, I have come to realize the local police definitely identify my cell phone number with my address, and all with my name. Most of us don't get burner phones, change our numbers all the time, and have phone numbers that aren't connected to our names. Most of us are on the grid because most of us aren't Ron Swanson. Even if I were to call 911 in California, my phone number should show up on the 911 system and would ultimately be traceable back to me, even if I didn't give my name.

In this case, though, the official court position is that the 911 caller's identity is unknown. In defending the stop of the truck, the prosecution never identified the caller. The prosecution didn't call the 911 dispatcher to the stand at the suppression hearing, either, so the 911 phone call wasn't admissible in court. For purposes of this case, then, the caller is anonymous. This matters.

Historically, an anonymous tipster has been viewed in courts with less reliability than an identified accuser. This is true for a number of reasons that all stem from one basis point: an identified accuser can be checked out while an anonymous tipster has no such accountability. If the tipster identifies herself as Emily Starr of New Moon, well then the police can go to New Moon farm and talk to Emily later. They can suss out if Emily has some grudge against the defendant that might make her claims against him less credible. Now, there are valid reasons for a tipster not to identify herself, to feel safer remaining anonymous. But it does present a credibility problem for investigators, so courts have required independent corroboration before an anonymous tipster can justify a stop.

For example, the actual Supreme Court case on a corroborated anonymous tip involved a detailed phone tip wherein the caller identified the car and driver, detailed where the car would be going at a certain time, and said what drugs would be found in the car. At the appointed time, police saw the car as described, driving the described route. The caller's ability to predict future behavior was corroboration.

In this case, we neither had a name of the caller nor any corroboration or prediction of future behavior. It seems possible the prosecution might have had a name for the caller, but the prosecution didn't present that at the suppression hearing. Remember that the prosecution has the burden of proof, so it was up to the prosecution and the prosecution alone to produce the tipster's identity. They chose not to, thus we are stuck in the legal posture of treating the tipster as anonymous. Then there's the responding trooper, who followed the truck for 5 minutes without seeing any traffic violations, so we are stuck in the legal posture of that anonymous tipster's tip being the only justification for the stop.

But a majority of the Supreme Court still found a way to declare this stop was legal. They were wrong and we should all feel a little less free. All for reasons that Scalia ably set forth in his dissenting opinion. The tipster could have been someone with a grudge against the driver. The tipster could have made the entire incident up. The tipster alone shouldn't be enough for any government actor to detain free citizens. Duh. Scalia totally got it while Kennedy and Breyer, justices I'm more used to agreeing with, totally whiffed. I don't quite know what to do with that.

Fortunately for me, the world was restored to its proper order today as Scalia wrote a majority opinion that probably destroyed most criminal defendants' access to real federal court review of their convictions and sentences. Maybe I'm being too pessimistic, but it kinda feels like federal habeas corpus died today.* That's much more what I expect from Scalia.

*If you practice in the world of federal habeas and can talk me down from my Woodall ledge, please feel free.

Monday, April 21, 2014

Apparently, there is one district court that does NOT know what a Constitutional speedy trial violation looks like


Things that make Sarah's head explode


How to keep a guy in prison for 30+ years without convicting him of anything


Oh For F***'s Sake!!

Ok, first, go read this post from January, 2013.

Jerry Hatfield is still in prison. A year plus later from that previous rant. He has been there since the 1970s. As of 1980, there has been no conviction. That didn't stop the Governor from commuting his (non-existent) sentence from death to life in 1983. And it didn't stop the Department of Corrections from holding him. And holding him. And holding him.

Finally, around 2006, another inmate pointed out to Mr. Hartfield that he should have received a new trial long ago. So Mr. Hartfield, having long-since been abandoned by his defense counsel (who thought the commutation ended it, even though there was no conviction and thus no sentence to be commuted), filed a pro se motion saying, "Hey, remember me."

Eight years ago, it was brought to the attention of DOC, the prosecution, and the court that Mr. Hartfield has been held in prison since 1980 even though there was no conviction. Eight freakin' years ago! And in all that time, Mr. Hartfield has not had one moment of freedom.

Unbelievably, the most recent court ruling was in the news last week and it was essentially this: Mr. Hartfield himself is responsible for the delay in retrying him. Because he didn't assert his right.

Let's refresh the law: there are four factors for a district court to consider in deciding whether a constitutional speedy trial violation has occurred (listed in my previous post). In this case, 3 of the 4 weigh against the state. Heavily. More heavily than anything I could have possibly imagined. Weight of the world heavily. The state has no excuse for the delay of decades. There go factors 1 and 2. And factor 4 is a no-brainer, that a decades-long delay between crime and trial puts a serious crimp in a defendant's ability to defend himself.  But because this one factor is a wee bit problematic, according to this judge, free pass for the state's complete and total failure to prosecute its case for decades. DECADES! (Man, this case makes me ranty.)

Never mind that apparently no one ever told this defendant that he had a right to a new trial, that even his defense attorney (incompetent fool that he is) thought the 1983 commutation of a sentence that didn't exist for a conviction that had been overturned was a good result. Never mind evidence of the defendant's diminished mental capacity. Never mind that since 1980, the state made not one single attempt to bring Mr. Hartfield to trial. Never mind that the state and the state alone bears responsibility for bringing any case to trial.

Nope. All that matters is that he didn't speak up until 2006. So the state can keep him behind bars without a conviction and can try to re-try him despite decades having now passed, meaning evidence is gone, witnesses dead, etc.

In all my years of doing this work, in all my decades of activism on the death penalty and other issues, in all my reading on wrongful convictions and criminal justice flaws, I have never seen anything more infuriating, more outrageous than this ruling. I'm so infuriated, I can't even rant about it anymore.

There is no excuse for any court anywhere getting this case in front of it and ruling in any other way than that Mr. Hartfield is to be released immediately with no further prosecution. Period. End of story. Anything else is unacceptable. Utterly and totally unacceptable on every level, in every way. And if I actually have to explain why to anyone, I will probably curl up in a ball in the corner of my closet and cry.

Let Jerry Hartfield go already!

Wednesday, April 16, 2014

Let Mike Anderson go

I always feel so much lighter on April 15. Not because of taxes (though I did put those off to the last possible moment this year), but because of that other dreaded project I do every year. It's done now, so forgive me as I look back through interesting news stories a week (or two).

I actually first became aware of this story at least a month or two ago. It's important enough to mention because this case challenges us to stop and think about what we hope to achieve when we prosecute offenders.What is the real goal of a prison sentence? Who benefits when particular offenders are incarcerated? For crimes that involve victims, what do we hope to provide to those victims? And isn't it entirely possible that there are some instances when a prison sentence will actually do more harm than good?

Mike Anderson committed armed robbery in 1999. He was convicted soon thereafter and sentenced to 13 years in prison. His appeals denied by 2002. He had apparently been out on bond throughout the entire process (not unheard of). When his appeal was denied, he should have either been picked up. Some things fall through the cracks, though. Mike Anderson fell through the Missouri Department of Corrections' cracks. They didn't realize they didn't already have him, so they never went looking for him.

In the meantime, Anderson just kept going on with life. Got married, had a kid, started a business, and generally lived an upstanding life. There is no indication of him having any run-ins with the police, any brushes with the law in any way. He by all accounts seems to have done exactly what society should most want from him: he has turned his life around and made a positive contribution to society.

Now, if the DOC hadn't dropped the ball, he would be nearly done with his sentence by now, most likely just released and so just starting the rebuilding process. He wouldn't have started a business, become a football coach, a father. He'd be looking at life now from a very different perspective, and one with a cynical view of our prison culture might wonder if there was really any likelihood of him becoming such a productive citizen. We haven't made it all that easy for inmates with long sentences (13 years is pretty long for these purposes) to take classes, learn skills, and generally be ready to make positive life changes upon release. So maybe the odds of him achieving the things he has if he'd served a decade-long prison term first aren't so great.

In short, not going to prison for all this time probably rehabilitated Anderson far more than any prison term could have done. And yet, the Missouri DOC finally noticed the problem and corrected it. So now, he is about 9 months into this long prison term. His family must survive without him. Who knows what will become of his business. At this stage, people will suffer actual harm from now imposing this sentence, notably his kid, his wife, his employees, the kids he coaches.

Naturally, Anderson's attorneys have filed a motion (though not being versed in Missouri law, I have no idea how likely it is to be successful, or what legal grounds they have, if any). They say even the man who was robbed doesn't see the point of the prison sentence being served at this late date. But the prosecutor seems reluctant to make an exception.

The question here really is, what are we achieving by putting Mike Anderson in prison for 13 years now? Are we just getting some kind of retribution/justice on behalf of the victim? Because the victim doesn't seem to think it's necessary. As a crime victim, this seems like what my reaction would be. If 10 years from now, I learned that the person who broke into my home had spent the last decade building a respectable, law-abiding life, I would take much more satisfaction from that than any prison term. I don't want to "get even" with my burglar in some way; I just want him/her to see the error, to recognize what a deep and personal violation it was, to not do it again.

Are we achieving anything by punishing him just to punish? I guess I don't understand the point of punishment that doesn't have a goal, whether it be to keep society safe (unnecessary based on the life he's led since 1999) or to help that individual learn better ways to live (already done) or just get him to learn that staying out of trouble is better than being in prison (again, already done). 

As for the prosecution's concerns about making exceptions, well, some cases really are exceptional. That's why we have exceptions. Not every case is black and white. Some times weird, crazy, exceptional things happen and we should have the flexibility to deal with them.

Think about all the things Mike Anderson could have done with all this extra time, waiting for his bond to be revoked. (Understand, he did absolutely nothing wrong. He was on release from the court; he was under no obligation to do anything about ending that release.) He could have fled the state, making it difficult for anyone to find him when they were ready to pick him up to start his sentence. He could have committed new crimes, worked out his nerves over the unresolved situation by turning to drugs or alcohol. He could have decided not to seek gainful employment, not to engage in his community. He could have continued on the path he'd been before, making terrible choices that hurt people.

By now putting him in prison to serve 13 years this long after the fact, the state of Missouri is the one making a bad choice. Other young people who commit armed robbery aren't going to get it into their heads that they can "get away with it" if we let Anderson go. The victim isn't going to be put in any danger. There's no bad message sent if Missouri looks at the way Anderson has turned his life around and says, "the prison sentence we ordered over a decade ago isn't what we'd order for the man before us now." This is a fluke situation that should be recognized as such. No one benefits from making him serve this sentence now, but lots of people will be hurt.

Thursday, April 10, 2014

In which I admit how very, very much I suck at all things

My entire life, I have always believed I am a fraud. No, I've always known it. I'm not smart. Not competent. Not likeable. Not worthy of being around. I've just been faking it (not very well, at that), all the while waiting for people to catch on. It wouldn't even take that many people, just one well-placed person who could make the house of cards that is my sham of a life come falling down.

I didn't deserve to be admitted to the college I got into. I definitely was not worthy of a decent law school. I should never have been allowed to pass the bar. What fools gave me loans with which to buy cars or a house? Why did any idiot ever trust me with a paying job? (Or a non-paying job, for that matter?) And it's never just that I should get scolded or written up in some toothless way. I always believe I should be expelled, fired, cast out of my profession, nay cast out of civilized society entirely.

I remember the day I was sure I would be fired from my summer job as a camp counselor at a YMCA day camp. Didn't sleep a wink all night, I was so worried about my horrible failure, a failure that had most likely resulted in the death of a child. Of course, I'd really just made a perfectly reasonable decision that no one thought about twice, that never even registered as an incident to anyone else. Because, duh, it wasn't. (And, no, no child was ever in any danger.)

Then there was the time my ATM card wouldn't work, first at one machine, then at the next (both from the same bank...). The error message was odd, unlike anything I'd seen before. A normal person probably would assume there was something wrong with the bank's cash machines. But not me! Nope, I was convinced my accounts had been frozen, that I was on the verge of losing everything, for some massive failure on my part I couldn't even identify. Fortunately, that insanity didn't last long as I realized there was still a branch open, so I went there where I a) got the cash I needed from my (duh) not-frozen account and b) learned that the bank was switching over to new software for their ATMs and the switch wasn't going smoothly.

It must be nice to go through life unplagued with this occasionally debilitating level of self-doubt. It'd probably be a good thing if I could figure out how to make a mistake without going straight to "I deserve to be strung up by my thumbs and upheld as an object of scorn, contempt, and derision for all eternity." Maybe someday, I'll get there. But it doesn't seem like today will be that day. Because I'm a big, big failure and a fraud and I deserve to be cast out of civilized society, probably strung up by my thumbs, and undoubtedly upheld as an object of scorn, contempt, and derision for all eternity.

It's really no wonder I have ulcers.
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