It's the most wonderful time of the year!

San Diego is gonna pull it off. Only once since 1999 has Gonzaga not won the West Coast Conference tournament. So it's pretty exciting for the rest of the conference to see someone, anyone, else win. San Diego clearly needed this win more. Gonzaga is already a lock to get into the big dance.

It's pretty hard for me to rant at this time of the year. I love Championship Week. It is an excellent precursor to the greatest sporting event of them all: the NCAA Tournament. (Well, ask me in August and I'll tell you it's the US Open.) My dog is curled up next to me, I have a glass of wine, and I've got a host of meaningful basketball games to choose from on t.v. What's great about these tournaments is that this is the only experience of winning that these college players get. To them, merely getting to the Big Dance (which we in the power conferences take for granted) is the end. They put up banners in their gym just to commemorate the year they won their little conference's tournament, earning them the right to get trounced by a top-ranked national power.

Oh, there's a rant topic! The supposedly knowledgeable announcers just said that San Diego only had 5 seconds to get the ball over the half-court line after the ball had been knocked out of bounds. I could explain the whole situation in detail, but I won't bore you. Just take me at my word (I am always right, after all) when I say that the announcers were not correct. San Diego had 10 seconds to get the ball into the front court. A lot of basketball watchers do think the announcers were right because this particular scenario is not well understood. But I really think college basketball announcers, paid by ESPN for their expertise and insight into the game, probably ought to know the dang rules. (As I was typing this, San Diego finished the win. They better get their dancing shoes ready!)

That really wasn't that much of a rant, was it? I went to see my parents this weekend and treated them to a fine outburst, with many f-bombs. But I'm just not up to it tonight. It's harder to sustain any fury while typing. And while drinking wine. And while petting a sleeping pup.

There is still injustice in the world (and I don't just mean the way Cal was robbed against UCLA this weekend), but it's harder to focus on once I've been bitten by the Madness. I have to focus on getting all of my team shirts clean, painting my nails in team colors, and keeping track of brackets. Maybe this week I'll be able to write out a better articulated version of the rant my parents heard. But for now, I'm going to enjoy a few rant-free days.

If loving my rights is wrong...

The Constitution grants me certain rights. I think I'll keep them. And I'll invoke them whenever the heck I want, thank you very much! That's not because I'm up to something or because I have something to hide. It's just because I can. Many, many people fought long and hard so I could have those rights. I would never disrespect those generations of revolutionaries and martyrs by giving my rights away.

So it infuriates me when people suggest that those of us interested in protecting our rights are in the wrong. The 4th Amendment for example. Many people claim that they wouldn't mind if the police searched them, their car, or their home because they have nothing to hide. (I call BS on that because I seriously doubt most people would be happy to have cops poking around their underwear drawer. But that is not the subject of today's rant.) They suggest that I could have no possible complaint to a search if the police won't find any evidence of a crime.

For example I don't think the police should have blanket authority to conduct drug tests on all drivers at all "serious" accidents. I think that would create a series of bodily searches that would be conducted without any probable cause that the subject of the search had committed the crime of driving while impaired.

Why do people insist on responding that it shouldn't be a problem for me if I don't do illegal drugs? Well, I don't do illegal drugs. I doubt I would ever even have an opiate show up as my experience with prescription narcotic pain killers was not good. I hope never to take pain killers like that again. But I still object to having my blood drawn without a warrant. In fact, I strenuously object!

The 4th Amendment tells me my government can't just barge into my car, my house, or my bloodstream. They have to leave me alone unless they can establish that they have a sound basis for believing I've committed a crime. Since I don't like cops and I like to be left alone, I fully embrace this amendment. I think it rocks. I also really like that 5th Amendment right to silence thing. You want to ask me questions, eh Cop? Well, I don't want to answer! This lovely document that really smart men wrote over 200 years ago says I don't have to.

Attributing some nefarious motive to those of us interested in protecting against further encroachments on our 4th Amendment rights is just damn un-American. It's wrong and it's stupid and I'm sick of it. If you want to open up your affairs to the prying eyes of the police, then that's your choice. But I choose differently so stop trying to give my rights away with yours.

PR's over. How long until Top Chef?

Christian? Seriously? I just don't get it. I thought his line was dark, repetitive, and way overdone. Only one pair of pants that a normal woman could even hope to wear. Yes, he's talented and exuberant, but he's so young and immature and I have felt all season that his work reflects that. When he refines that talent and exuberance into more edited designs (with maybe a little variation of style and color), then he'll be truly fierce. But for right now, I'll just stick with Jillian's amazing coats and adorable sweaters. I mean, that gray sweater with the holes was fantastic! Where can I buy it right now?

Sometimes, courts just really piss me off. I mean, they can do some awful, result-oriented, intellectually dishonest things. Like today, something unbelievably unjust was done (which the general public thinks was a great justice, adding to my burning rage). But I'm not really allowed to let the world know the full extent of my outrage. I can run around my office yelling, swearing, and gesturing madly in a vain effort to burn off some frustration. But the next time I see the court, I can't tell them off. (Sometimes, they definitely need a good telling off!)

I am expected always to be respectful to all judges in all settings. Even if I see a judge who everyone agrees is discourteous from the bench, lacks any sense of decorum, and blatantly disregards the law, I'm still supposed to keep a smile on my face and say, "Thank you, judge." I could face contempt or even potentially an ethical complaint for snapping, yelling, or doing what I really want (which could involve lots of swear words and thrown objects).

Well, that's just not me. I've never been good at kissing ass. I'm loud and opinionated and I don't defer to anyone else. I'm always right so I'm not good at accepting authority figures who do not do things the way I believe they should. So having to bite my tongue when I'm really fucking angry about a judicial decision is a struggle for me. I desperately want to get up on a rooftop and shout it out everywhere that the court royally fucked up and did a tremendous injustice. But I also kind of want to keep my law license and keep the illusion with judges that I'm a nice, respectful lawyer. So I'll refrain from writing about the situation on message boards and from telling every passing stranger on the street how much the court sucks. I'll just have to be satisfied with my ranting to my choir of co-workers. And the next time I appear in court, I will put on my best docile, respectful smile and say, "Yes, judge. Thank you, judge." But I'll be seething on the inside. And maybe I'll break out the voodoo kit when I get back to my office.

I'm gonna just let this go now and watch the finale of Project Runway. Go Jillian!

Sure, give defendants a fair trial. Wait, that means they get to challenge the state's experts?

The more I learn about juries, the more convinced I am that the jury system is hopelessly weighted against defendants. And that the general public thinks it should be this way. The niceties of a trial are just a show we go through before we rubber stamp the prosecutor's charge. Apparently, juries aren't interested in hearing any real challenge to the state's evidence. Especially if it comes in the form of a private expert hired by the defense.

I heard from a juror who had just finished serving on a DUI jury that was unable to reach a verdict. The defense at trial was that the defendant was not under the influence. Defense counsel hired an expert to testify about the effects of certain medications that the defendant was on. These medications would have side effects that would make it difficult for the defendant to pass field sobriety tests. The juror reported that several of his colleagues felt it was not fair that the defendant was allowed to hire an expert. I was not able to speak to the juror in depth to get any sense of why these other jurors felt that way. (But I wonder if those jurors felt it was unfair to pit a fancy, hired expert against the poor lowly police officer who conducted the field sobriety tests?)

Then today, I was reading an article about a murder trial. The state brought in an analyst from the state lab to testify that hairs found at the purported crime scene were "microscopically similar" to the victim's hair. Now, anyone who knows anything about hair analysis knows that the analyst's testimony is meaningless fluff. Any two hairs can appear "microscopically similar." Under a microscope, it can be impossible to tell the difference between a dog's hair and a human hair. But to the general public, "microscopically similar" sounds pretty good. Naturally, the defense brought in an expert to testify that the state's "hair evdence" was irrelevant. The article points out that on cross-examination, the witness acknowledged he was paid $5000 to testify. The prosecutor elicited this testimony in the expectation that this one point would completely discredit this witness in the eyes of the jury.

Sadly, based on the jury experience I related above, the prosecutor is probably right. Juries do seem to think that if defense attorneys pay for the testimony, it's worthless. Ph.D.s and medical doctors have no qualms about testifying however we defense attorneys tell them to as long as we pay them. After all, if they'll testify for criminal defendants, they must not have any code of ethics. Even perjury is nothing to them.

This, of course, is nonsense. Academics and scientists at private companies are not interested in lying to assist criminal defendants. They have no desire to risk their reputations or even careers for a few extra thousand bucks. Yet people around the country (you know, jury pools) continue to think defense witnesses are just lying money whores. (Of course, they'll take the word of the convicted felon who claims the defendant confessed to them in prison and then gets a big ol' sentence reduction from the state, but that's a different rant.)

Shame on prosecutors across this country for perpetuating this myth that defense witnesses who are paid are not to be believed. I've never encountered a defense expert who was not asked on cross-examination exactly how much he or she was paid to testify. As if that should invalidate all of the expert's testimony. But prosecutors know better! They have to. If defendants have a need to provide expert testimony to counter claims put on by the state, they have to hire experts. There is no alternative. And there's nothing wrong with it. Nothing sneaky or underhanded. And nothing dishonest about the resulting testimony.

While a criminal defendant can compel material witnesses to testify, that doesn't apply to an expert. A defendant can subpoena an alibi witness or an eyewitness who described somebody who doesn't match the defendant's description. Those witnesses have specific, personal knowledge that no other person has. When the defense wants an outside expert to re-examine the work of the state crime lab analyst, subpoena power just don't apply. A defendant can't force a person with no previous connection to the case to become a part of it. No court will force an independent forensic analyst to take time away from his or her work to take part in a criminal case. If the defense wants an expert, they have to pay.

Experts are just being fairly compensated for their time. No one works for free. When you go to the doctor, she's not treating you just out of the goodness of her heart. She is paid for her time. The vet, the plumber, the hairstylist are all experts in their field who provide a service and get paid fairly for it. The forensic analyst who testified in today's murder trial was not paid for his opinion - he was paid for his time.

The secret they don't tell the public is the state's experts are also paid. The state's experts come from the state crime lab and the medical examiner's office. They get paid through their salary because testing evidence and reporting on the results is part of their job! Defense attorneys, though, are generally not allowed to point this out to juries. The state has a monopoly on access to the state crime labs and all their experts and they get to make it look like those people aren't paid for their time. The state's experts really do just testify because of their pure spirits and their interest in justice. Or so the state would have the public believe. Much to my horror, it appears that the public falls for it, hook, line, and sinker.

It isn't true and it just isn't fair. The state gets to use the full weight of its resources into putting a defendant in prison. It's only fair that the defendant gets to counter those resources with experts and evidence of his own. Just like the state, the defendant has to pay for the testing and analysis and time of those witnesses. So why should it be held against the defendant that he has paid for his expert? It shouldn't.

And I would submit that if the best rebuttal a prosecutor can come up with to the defense expert's testimony is, "You're getting paid for your time here today, aren't you?." the prosecution doesn't have a rebuttal to that testimony. If that's all the prosecution has, that defense expert must be on to something.

The other day, I got into one of those conversations that all public defenders get sucked into. This one led off with a non-lawyer asking me, "How many times do you get a client back after you've gotten him off on a technicality?"



Now, having gone to law school, I no longer simply answer questions as they are asked. If I think the question you have asked me would require me to accept an unfair assumption, I will challenge that assumption. If your question involves essential terms, I will clarify what you think those terms mean. There's no sense in my answering your question if we aren't on the same page about what the words we are using mean.



So I asked this Guy, "What do you mean by technicality? Do you mean a violation of a constitutional right?" (I was both clarifying his term "technicality" and challenging the unstated assumption that obviously-guilty people get away with crimes based on minor things that shouldn't matter.)



He said, "You know. When they arrest a guy and know he did it, but the evidence gets thrown out."



"Because it was obtained illegally, in violation of the 4th Amendment?" I asked.



"I don't know what that is." (Good lord, what are we teaching people these days? Don't we care enough about our constitutional rights to know what the hell they are? I really didn't mean to sound like a pretentious, superior bitch. I just assume people know what the 4th Amendment is. If I make college-educated (hell, high school-educated) people feel stupid for not knowing what the 4th Amendment is, well good. They are stupid.)



He was getting a little frustrated with my questions, even though I was just trying to understand what he thought a "technicality" is. He then suggested that it would be a technciality anytime we had a video of the defendant committing the crime but the defendant still couldn't be convicted.



Now, I will admit, I got a little lawyerly. "How do you know the videotape is accurate? Hasn't been tampered with?"



Guy retorted, "I'm a tech guy, so I would know." Well, no you wouldn't because you would never have access to the tape to examine it. But, I digress.



Guy, like a lot of people who express strong opinions, didn't really like being asked to think his opinion through. He believes it is wrong for criminals to get off on "technicalities." He believes it strongly. But don't ask him what he thinks a technicality is. Don't ask him how he knows someone is guilty before that defendant has been convicted at a trial with properly-obtained and tested evidence. Don't ask him how he knows someone is guilty before witnesses' memories and credibility have been tested by cross-examination. If you ask him to think about these things, you're just "lawyering" him.

Is it really too much to ask that people think through their opinions? Is it to much to ask that they be able to state a logical explanation for their opinions? Apparently it is. Because people just want to react emotionally, with much indignation about "criminals getting off" without thinking through the whole process.

So let me spell it out for you. We have a process for a reason. Yes, police investigate crimes and prosecutors charge people so it is safe to assume that those law enforcement officers have some basis for thinking the defendant committed the crime. But nothing the state thinks is true has been tested yet. So we test it by these rules, probably the things Guy and folks like him think are technicalities.

My client confessed, you say? But did he know he didn't have to talk to you Mr. Detective? That he could have a lawyer? Did you police coerce him to confess in some way? If it's no, no, or yes, the court will rule the confession cannot be admitted at trial. You may say that's a technicality. I say, if the confessor was badgered or felt tremendous police pressure to tell them something, then how can we say that confession is reliable?

You found drugs on my client, you say? But you had no legal basis for searching him so that evidence will be thrown out of court. Technicality, you say. I say, if you would search my client illegally, what other laws would you break? Like lying under oath or planting evidence perhaps?

These "technicalities" as you call them are procedural rules (usually based in the Bill of Rights) that help ensure evidence is accurate and reliable. If the state didn't follow the proper rules and procedures to get the evidence, the evidence itself shouldn't be trusted. If you accept the evidence as true before examining the process by which the evidence was obtained, you're putting the cart before the horse.

So that's why we have all these "technicalities" like the 4th Amendment (protecting us against illegal searches), and speedy trial rules, and rights to lawyers, and rights to public trials, and rules of evidence. And if one of those technical rules is broken, then hell yea, the defendant should get off. Because those rules are all necessary to make sure that the guy that at first glance appears to be guilty, really, really is guilty.

a no rant day?

I don't think I have anything to rant about today. It's 70 degrees and sunny. It's the first day of March, which always feels like the unofficial beginning of spring to me. My dog is really happy to play outside. I'm really happy to sit outside and watch her while "reading my book" (code for daydreaming).

The only thing to mar my day so far is that Duke won. Fucking Duke. They were losing to NC State all game long until the very end when their jack-up-3s-all-game strategy worked because they hit like three in a row. Then they got a horrible call. NC State player was called for a defensive foul. The replay clearly showed that the only contact was a hook arm by the offensive player, which should always be called as an offensive foul. Down by 1, the damn Dukie stepped up and hit both free throws. Duke wins. Fucking Duke.

Guess I could find something to rant about.