Thursday, August 20, 2015

In which I am feeling utterly and totally defeated because of a man I will never meet

It is because of cases like this that so many criminal defense attorneys burn out, run for the hills or the beaches or the forest. It is so hard to be part of a system that allows this to happen, that considers this an acceptable result.

Jerry Hartfield has been in prison for over 35 years. Even though since 1980, he has not had a conviction.  He hasn't been sitting in a county jail waiting for trial with the attorneys working on things that lead to the trial being delayed. He's been in the state prison system, being treated like he was convicted of rape and murder. For decades.

His own lawyer didn't seem to understand that having his conviction overturned meant the state didn't get to continue to hold Hartfield. It was that very lawyer who worked to get the governor to commute Hartfield's non-existent death sentence to life. And then that was it. Hartfield sat in prison. He sat and sat and sat. With no conviction, no sentence, no authority to hold him at all.

All until finally some other inmate looked through his paperwork and discovered the blatantly obvious error. So Hartfield began raising the very logical and thoroughly undebatable argument that his right to a speedy trial had been denied.

That's a constitutional right, you know. It's one that matters. We don't allow states to hold on to defendants, imprison them indefinitely without requiring those states to present evidence in court, to prove their cases. Why we don't allow defendants to be held indefinitely without a conviction shouldn't require explanation. Evidence disappears, memories fade, witnesses die. It becomes more and more difficult for defendants to counter claims against them the longer the gap between the alleged crime and the trial.

As I wrote before, that Jerry Hartfield's constitutional right to a speedy trial has been violated is not something any rational person can deny. But, sadly, as I also wrote before, the person charged with deciding that issue was woefully irrational and refused to release Hartfield. Even in part blamed him for his plight, for the prosecution's utter and total failure to do anything after his original convictions were reversed, for the state's prison system's utter and total failure to release him.

And now a jury has reconvicted him of that 1976 crime. 125 people on the state's witness list are now dead. The murder weapon is missing. Other pieces of physical evidence are long gone. But, gee, his ability to defend against the state's accusations couldn't have been too prejudiced because a jury found him guilty beyond a reasonable doubt. So, I guess we're all good now. Those 30+ years of the state of Texas ignoring Jerry Hartfield is just wiped off the slate.

I am so disheartened by this result, I have no more words.

In all honesty, with no hyperbole, I have to say I do not know how to continue working in a system that considers this outcome justice.

Monday, July 27, 2015

In which Donald Trump's lawyer doesn't know the law

We already knew that Donald Trump is not in any way, shape, or form qualified to be President of the United States. Reality tv show host, he can handle. But leader of the free world is way, way above his skill level. While many of us might think that Putin is a loser and Kim Jong Un is a dummy, diplomacy requires not saying those things out loud. The Donald doesn't know how to do anything in any other way than as loudly as possible.

But today we further learned that Donald Trump's lawyer is, well, I guess I'm gonna do it. In terms The Donald himself would approve, Donald Trump's lawyer is a loser and a dummy.

Many decades ago, The Donald's first wife, Ivana, made an accusation about a sexual encounter with her then-husband. To all English speakers, the description she gave sure sounded like a rape. A she said no, he did it anyway, there was force involved rape.

This allegation has been known for decades, was in fact covered in a book published in 1993. But The Donald is running for president now, so it came back to light today. The Donald's attorney responded to the questions with an epically incorrect legal answer. According to The Donald's attorney, "And, of course, understand that by the very definition, you can’t rape your spouse...You cannot rape your spouse. And there’s very clear case law.”

I'll give you a minute to facepalm. Let me know when you're ready to resume reading.

You're ready now? No, yeah, he really said that. Need a little more facepalm time? I get it.

Ok. Let's just be clear about one thing. In every state in this country, having sex with a person who has said no, who has not consented, is rape. Period. End of story. Ring, vows, certificates, none of it matters. No means no regardless of marital status and no state in this country has said otherwise since 1993.

It's true that (shamefully), there used to be laws in these United States that said that it was a defense to a rape charge that the defendant is married to the victim. These laws stemmed from the gross, patriarchal, despicable idea that sex was a marital right due to men that women couldn't deny them. Fortunately, our society eventually said that was a big load of hooey and all of those laws have been changed. All of them, in all 50 states. There are still some states that distinguish situations of intoxication or other incapacitation, but let's not make ourselves angry dwelling on that stuff right now. Instead, let's focus on the fact that any time a conscious person says no or otherwise does not consent to sex but is made to engage in sex against her (or his) will, it is rape under the law. And no state will claim the defendant has a defense by virtue of being married to the victim. The last such law was repealed in 1993. Phew.

The Donald's lawyer doesn't know this. He doesn't seem to understand any of the law as it relates to rape and consent and marriage. Now, the lawyer might now claim he was referring to the law at the time of this alleged incident, which I understand to be around 1989. But sadly for the lawyer, the law in New York (which I believe would have been the relevant jurisdiction) stopped recognizing marriage as a defense to rape in 1984. So that doesn't even save this guy.

This lawyer's answer today was that you can't rape your wife. That hasn't been the law anywhere for over 20 years and in New York for over 30 years. So, yeah, this lawyer is a dummy who gives horrible legal advice. Which kinda makes him a loser. It certainly makes him someone none of us should feel comfortable being so close to a top-of-the-polls presidential candidate.

So we actually did learn some good stuff today. We learned that The Donald's lawyer badly needs to attend some Continuing Legal Education courses. We learned that The Donald doesn't surround himself with the best and the brightest as his chief lawyer is at least 30 years out of date on some key points of law. We didn't really learn that The Donald is a megalomaniac who thinks he can do what he wants with people he controls (like his wives) because this allegation has been public for over 20 years.

As for the lawyer, I hope the one thing he learns is this: You're fired.

Thursday, July 16, 2015

We're terrible at treating mental illness in this country. We ignore it, we discourage people from talking about it, we don't pay for treating it. People bemoan the lack of mental health treatment in this country, the fact that our standard way of dealing with mental health issues is to imprison folks. In the abstract, when talking about the big picture, a lot of people seem to get it. They get that we don't treat mental illness, we criminalize it, and that this is tragic.

This is a common refrain I hear from people in all walks of life. But most of you who say this, who bemoan the lack of mental health care in this country, are full of crap. Because when push comes to shove, most people faced with a particular individual refuse to accept mental illness as an "excuse." Which is how we get to James Homes, the Aurora theater shooter, being convicted of murder instead of properly being found not guilty by reason of mental disease or defect.

The guy is nuts. He dyed his hair orange. He booby-trapped his apartment. His parents tried and tried to get him help. People at his school were alarmed by his increasingly erratic behavior. The guy's brain just isn't right. Don't tell me he premeditated, he planned, so that proves he wasn't mentally ill. You're just proving you don't understand mental illness at all if you think planning and total psychosis are mutually exclusive. They most definitely are not.

In Colorado, once a defendant meets the threshold for a defense on the basis of insanity (or mental disease or defect), the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant is not suffering from mental illness. In theory, that's quite a burden. From everything I have anecdotally seen about James Holmes, it's almost impossible to think the state could do this. Knowing what I know about death-qualified juries (they're predisposed to convict) and the way Americans refuse to accept mental illness as an "excuse" for behavior (even though that's exactly what it is), I don't trust this jury's verdict. Not for one second.

Instead, I think this verdict is proof that the reason mental illness doesn't get the treatment it deserves in this country is because deep down, most Americans don't really believe mental illness is a real thing. Most Americans think James Holmes, Andrea Yates, John Hinckley, Jr., or other psychotic people knew exactly what they were doing, knew it was wrong, and could have stopped themselves if they'd wanted to. Never mind that the illness is in the brain itself, so expecting ordered thought to overcome the disorder is kinda like expecting a color-blind person to know the thing she's seeing is red even though her brain sees it as green.

I'm losing hope that we as a nation will ever take mental illness seriously.

Tuesday, June 16, 2015

So I've been really quiet lately. I know that. I feel like a little bit I've lost my voice.

In a way, I feel like my life has turned into a Wile E Coyote cartoon. Like I've run off a cliff and the drop is coming, but it just won't quite happen. Family health issues. Financial issues. Dog issues. Work issues. The hits just keep coming and yet somehow, I haven't fallen yet.

I don't feel I'm able to keep up with everything (or anything) I want to do out of life, that I can't continue to be the truest me I can be because I'm still just churning my legs so madly, hoping the inevitable fall might miraculously not happen.

There's a huge part of me that just wants the damn fall to happen already. If I could just fall, then I could start picking up the pieces, maybe move on. But so far, I've managed to prevent the fall. I haven't come close to making it back to solid ground, but I've kept my legs churning enough that I've avoided the abyss.

It's exhausting. I just want resolution. I want to fall already. Fully, completely, irrevocably. This endless holding on needs to be done.

And I really need to get back to being me.

Monday, April 20, 2015

In praise of Kansas. On Felony Murder, anyway.

An amazing thing happened today. I read a news story and it made my beloved state of Kansas seem better by comparison. I didn't know that could happen any more.

When it comes to felony murder, though, Kansas actually does do it better than some other states, Indiana in this specific instance.

Most people have a general sense that of what felony murder is. The simplest definition is that it's a killing in the course of an inherently dangerous crime. You break into a home and kill the surprised homeowner, you can be found guilty of felony murder. The death doesn't have to be premeditated or intentional. So if you're fleeing the crime scene in your car, police in pursuit, and you cause a car accident that kills someone: felony murder.

Felony murder as a concept was designed to ensure people who committed violent felonies that lead to someone's death wouldn't avoid punishment for murder because the state couldn't prove critical elements, like premeditation and intent. First degree murder varies a little from state to state, but that is generally the top level offense that requires both premeditation and the intent to kill. In Kansas, second degree murder simply removes that element of premeditation. A second degree murder is an intentional killing. Then there are the reckless murders, the voluntary manslaughters (think heat of passion killings), and the involuntary manslaughters. Felony murder was designed to make a prosecutor's job easier by allowing them to get a first degree, top level murder conviction, without all that pesky proof of intent to kill.

As a concept, it's not a terrible idea to say if you're going to break into a person's home with a gun and that homeowner ends up dead, we don't much care if you didn't go in intending to kill anyone. If you decide to commit a dangerous crime, especially if you bring a deadly weapon, and you kill someone, you really ought to suffer some serious consequences.

But the way felony murder works in practice, it covers non-triggerpersons. It covers getaway car drivers, even people who had no idea anyone was bringing a gun. Say you're part of a deal to buy $50 of pot and something goes sideways, leaving the buddy you went to the deal with dead, killed by the dealer. Well, selling drugs is an inherently dangerous felony, so you could find yourself grieving your friend from a jail cell as you face a felony murder charge.

Or even worse. You could be a stupid teen and decide to break into a home with 4 of your friends. You could all think the house was empty, you could all be totally unarmed. Then when the homeowner, who was home after all, confronted the intruders with a gun, killing one of them, you could be facing a felony murder charge. In Indiana, anyway.

That is what happened to 4 teens from Elkhart, Indiana. Four young men who were teens when the break-in happened are now all serving sentences in the five-decade range when not one of them nor their dead companion were armed. The only person who had a gun was the homeowner, the only shots fired a lawful act of self-defense. We've come a long way from making sure an armed criminal who kills someone doesn't convince a jury to convict him of some lesser crime.

And this is what brings me to how Kansas does it better. While a lot of odd scenarios can lead to felony murder charges in this state (that small-time pot deal is a real case), the Elkhart case is one that could not happen in Kansas. Here (and in many other states), we have recognized one limitation on the felony murder doctrine. When the act is the result of the lawful act of a third party, there is no felony murder.

When a homeowner or other crime victim kills an assailant, that is a lawful act of self-defense. When a police officer kills the criminal (assuming it's a proper police kill), it's a lawful act of defense of self and/or others. The Kansas rule is that no criminal liability can attach for that intervening, lawful act. Kansas is not alone in limiting felony murder this way. The last time I researched this question, the no felony murder for a lawful act rule was the rule in the majority of felony murder states.

Evidently, Indiana is not in that camp. Instead, Indiana wants to incarcerate these 4 young men for decades. The oldest of these guys is now 20; the break-in happened in 2012. So we're talking about dumb guys who were 15, 16, 17 years-old when they stupidly, criminally broke into a house they thought was empty. No doubt they committed a serious crime, one that undoubtedly traumatized the homeowner. No doubt the homeowner's life has been altered forever by the events of that day, through no fault of his own. And it's no doubt a tragedy that one of these foolish young men lost his life. But I don't see how society is made better by having the other four young men lose most of their lives, either.

In Kansas, these guys would have been convicted of aggravated burglary. Depending on their criminal histories, many of them might have been eligible for probation. To me, that seems a far more appropriate outcome. Our prisons are full enough without locking away for life teenagers who didn't kill anyone. We've gotten so far away from what felony murder was originally meant to be. It's past time to rein this out of control theory of murder back in. The Indiana Supreme Court heard arguments on the Elkhart case in February. I would guess the decision should come later this year. This would be an excellent chance for Indiana to restore a little sanity to its felony murder rule. Really, Indiana, it'll be ok to be like Kansas here. Just this once.

Sunday, February 8, 2015

Alabama's Supreme Court Chief Justice Roy Moore is on the verge of proving that those who do not learn from history are doomed to repeat it.

On a personal level, Justice Moore has already been removed from Alabama's high court once for openly defying federal court orders. He didn't want to give up his view that his god's law was supreme, even after a federal court told him to. But the ethics boards that govern judges weren't moved because they actually follow the laws of this land. And in this land, when a federal court orders a state court to do something and bases that order in the United States Constitution, the state courts have to follow that order. It's not a matter of choice, it's not open for debate. A federal court order is not a suggestion.

Evidently, Justice Moore hasn't learned that lesson because he got himself voted back to the role of Chief Justice of the Alabama Supreme Court and has now "ordered" all the probate judges throughout the state not to issue same-sex marriage licenses tomorrow, in defiance of a federal court ruling. Justice Moore doesn't think that a federal court has any authority to declare the state's same-sex marriage ban to be unconstitutional, so he is telling state judges they can't follow that ruling. He still doesn't seem to understand that the Supremacy Clause of the US Constitution exists and applies to Alabama laws such that when an Alabama law (the same-sex marriage ban) conflicts with federal law (here the Equal Protection Clause of the 14th Amendment), the federal law is supreme. Neither Roy Moore nor any other Alabama state court judge gets to ignore a federal court order. This round will not end any differently for Justice Moore than the first round did.

But there's a greater lesson from history that Justice Moore doesn't seem to have learned from, either. Alabama (and a whole bunch of other states) picked a fight with the federal government a century and a half ago. When you really think about it, what Alabama was fighting against back then boils down to the same stupid crap Justice Moore is fighting against now. I'll assume Justice Moore is one of these history revisionists who will wax poetic for hours on end about how the Civil War (or the war of northern aggression?) was all about state's rights, the nature of our federalist system, yada, yada, yada. I'd guess that he would be the type who would never, ever, ever admit that what it really came down to was slavery. No matter how anyone tries to spin it, though, slavery was absolutely the thing at the center of the fight. Alabama and its sister states of the confederacy wanted to maintain the right to own and keep slaves, to treat a class of people as something less than full citizens (or even citizens at all) deserving of all human and civil rights. You can talk about how that conflict manifested in various ways, but all roads lead back to this. Sure it was about states' rights: the states' right to allow slavery.

So here we are 150+ years ago, and this justice in Alabama once again, in open defiance of federal supremacy, is asserting Alabama's right to treat some people as less than equal, less than fully deserving of recognition, just less. Because that's really what this same-sex marriage fight boils down to. The Justice Moores of the world don't want to be told that they have to accept these families. They don't want to have to recognize couples and families that they think aren't worthy of recognition. The Justice Moores of the world are clinging to their old ways, not open to change. They definitely don't want to have to confront that they might have been wrong in those old ways. The states have the right to discriminate. (Never mind that the 14th Amendment was written in direct response to the Civil War.)

Well, Alabama was wrong about slavery and they're wrong about discriminating against gays and lesbians. Just like Justice Moore was wrong to defy federal court orders years ago as he is to "order" state judges to defy them now. Of course, it's no surprise that people want to pretend that the Civil War was about something more principled than slavery because everyone today recognizes how indefensible slavery is. I similarly hope 150 years from now, people will have as hard a time justifying this anti-gay bigotry.

I feel pretty confident in saying that the only way history will repeat here is that Justice Moore will once again get into trouble for not following the laws of the land, the laws he's sworn to uphold. I certainly don't think one lone once-removed judge is likely to spark another civil war. Instead, I'm going to hold out hope that the next wave of Alabama residents, and possible judges, will learn that defying federal courts in order to maintain a social order that oppresses unpopular minorities is a bad choice to make.
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