You remember in Return of the Jedi, when Luke defeats the Rancor, smashing the gate down on him to kill him? Jabba is outraged at Luke, so the guards all rush in to get him. But one guard has eyes only for the Rancor. He pushes past Luke and the other guards, crying, desperate to get to his beloved beast.

In his review, Roger Ebert singled out that moment as one of his favorites. He wrote that everybody has somebody. Even the nasty, human-eating Rancor.

I know that most people see my clients as human Rancors. Maybe not-quite-human Rancors. Who deserve to be caged and for whom nobody should waste any tears.

But you and they should all know that my clients all have that one guard who will cry for them. Because Roger Ebert was right. Everybody really should have somebody.

Could Colorado be #7?

Just last week, Maryland's legislature voted to repeal the death penalty, making it the sixth state in the last few years to do so. Today, I have spent the past 8 hours listening to testimony from the Colorado House Judiciary Committee on a repeal bill in that state. The last time Colorado considered repeal, just a few years ago, it failed by a single vote. Those in the know think this could have a shot this year.

I think it demonstrates the true depth of my junkie-ness that I have been listening to this all day, except for the hour or so I was driving home and stopping at the grocery store. And don't forget, this isn't even my state. Proponents of repeal testified first and spoke for hours. Their speakers ranged from clergy members to exonerated former death row inmates to corrections officials to defense attorneys to prosecutors to victims and their families. They spoke of the cost, they spoke of the emotional toll (a point eloquently made by the corrections official, who lamented that it's quite a thing to ask of prison guards that they put people to death), they spoke of the arbitrariness, the racial disparities.

On a depressing day (why is it snowing? during March Madness??), these speakers made me feel better about the world by standing up against state-sponsored murder. I especially appreciated the comments by victims who begged not to be put through the emotional roller coaster of a death penalty trial because I've long thought it wasn't fair to victims' families, but that isn't always taken well when uttered by a defense attorney. I even wanted to drive to Colorado and kiss one of those DAs who spoke against the death penalty.

And for the past three hours or so, we've been into the opponents, mostly prosecutors. And now I'm mad. (Other than feeling the first thrill of March Madness as Robert Morris beat Kentucky. Yay March upsets! As long as my Jayhawks aren't the upset ones.) The first prosecutor decried those proponents who had "casually" complained about the racism that plays into the death penalty. Everyone on death row in Colorado is black, so I'm not sure his righteous indignation on that point was justified. (Nor did a couple of the committee members.)

One prosecutor insisted we would never get a defendant to plead to murder again if the death penalty were repealed. (One wonders, then, how the 18 states without a death penalty manage to get guilty pleas to murder charges...)

A prosecutor insisted that these super dangerous criminals who we won't be able to kill will get out into general population because we can't, we CAN'T, keep them in solitary confinement forever. (One wonders, then, who all those specially-designed supermax prisons around the nation, including Colorado, house...)

Prosecutors are mindlessly repeating the facts of their most horrific cases, as if they didn't hear any of the earlier testimony by families who were so embittered upon being told that their loved ones' murders weren't that heinous. They argue against the death penalty because they don't think the idea of deciding who the worst of the worst are is fair to those people whose killers are deemed to be not that bad. But when the law and reason isn't on your side, you always argue the facts, so that seems to be what a few of these prosecutors are doing.

And as I'm typing, this prosecutor just said, "The Ring decision was a real technicality." Umm, the Ring case, Ring v. Arizona, was based on the Sixth Amendment right to a jury trial. Is the Sixth Amendment right to a jury trial a technicality?

These prosecutors are insisting that they have the most narrow, stringent death penalty statute anywhere in the nation, which is a laughably false statement. Almost every single intentional murder in Colorado is death-eligible. Living in a state with a truly narrow statute, I can assure these prosecutors that their statute would encompass every single first-degree murder case I've ever worked on, the vast majority of which could not be capital in Kansas.

They're insisting that abolitionists grossly overstate the number of exonerations. They insist that the last appellate court to consider the Troy Davis case reaffirmed his clear guilt, rather than finding he couldn't prove innocence. They insist that we get plenty of appeals without acknowledging that they fight us every step of the way. Then they insist that the fact that some guys get out after 15-20 years of those appeals (that they've fought every step of the way) shows that our system works! They don't dare to mention Cameron Todd Willingham or Carlos DeLuna. One of them even cited as compelling authority the concurrence Justice Scalia wrote in Kansas v. Marsh wherein he went on a wholly irrelevant tangent lambasting the abolitionists who cry  out about the risks of executing the innocents. Never mind that the math in Scalia's concurrence has been widely lambasted by anyone who can do math.

The opponents of repeal have to resort to lies, or at least gross exaggerations, to make arguments. While I was feeling kindly toward those two prosecutors who testified in favor of repeal, this last string of guys has restored order.

I hope that this really does have a chance in Colorado this year. The mere fact that they've accepted this much testimony makes me think it does. Colorado should be better than this, better than conflating vengeance and justice. The state should use its resources better. The state should stop tinkering with the machinery of death. And I should really stop listening to these opponents before I have an aneurysm.

Debra Milke and the death penalty

On Friday, the Maryland house voted to repeal the state's death penalty, which means it will become law as it had already passed the state Senate and the Governor proposed the bill in the first place. In comments online, those who support the premeditated killing of people by the state bemoaned the fact that the death penalty has become too unwieldy, too expensive. There were the predictable calls for swift execution of those who were surely guilty. Complaints about the outrageous number of appeals death penalty defendants are allowed. And, of course, rants about the evil defense attorneys who keep these cases going so they can rake in money hand over fist with each new filing.

News also broke late last week about an Arizona woman who has been on death row for 22 years having her conviction and sentence overturned. The action came from a federal appellate court, so it would have been the 3rd round of litigation at least. Debra Milke was convicted in the 1989 high-profile killing of her 4 year-old son. Her conviction was based solely on the testimony of one detective who swore she confessed. Not that he'd recorded that confession or allowed any other witness to hear the confession. He hadn't even kept any notes from the confession. So it really came down to him coming into court and swearing that she'd confessed. That was news to her, though. She swore she was innocent and always said so and that she'd asked the detective for an attorney. She maintained the detective's version of their conversation was completely made-up.

Since the case against her so entirely rested on the credibility of that detective, her defense counsel had subpoenaed his personnel files. The prosecution fought that subpoena. They never turned over anything about the detective's history. To this day, even after courts have ordered them to turn stuff over, they have still not handed over everything. But what they have turned over was a gold mine for the defense. No wonder they didn't want Milke's trial attorneys to have this stuff so they could cross-examine the detective. They would have discredited him thoroughly in 20 minutes. The personnel files revealed case after case in which a court had found the detective had lied under oath and/or had violated a defendant's Miranda rights. Indeed, it seems the detective learned to stop telling courts when a defendant had asked for a lawyer as it only got the confessions he extracted thrown out. It seems hard to believe that anyone who had to convict a woman and sentence her to death on nothing but the word of this detective would convict if they had any inkling of his long history of misconduct.

What's really amazing in Milke's story is that once the defense finally, after years and years of trying, got their hands on the detective's files and were able to present them to a court, they still didn't prevail at first. Remarkably, a district court judge ruled all these files didn't raise any serious concern about Milke's conviction and sentence. The federal appellate court did this judge the honor of presuming the judge simply didn't read the files rather than presuming the judge read them and didn't care. And now despite their conviction resting solely on the testimony of perhaps the dirtiest cop in all of Arizona, the prosecutors still insist they're going to appeal this decision. And we still don't know what else the prosecutors are hiding about the cop's history as there are still gaps in his personnel files.

This is why I get so furious when people insist we should cut off the appeals for death penalty defendants. And it's why I got a little crazy when people rail against obstructionist defense attorneys who drag out the appeals process. Who dragged out the Milke case? Her defense attorneys who sought this incredibly relevant, probative material from day one? Or the prosecution who fought every step of the way and still haven't fully complied with court orders? Whose fault is it that she didn't get relief until 22 years later? The defense attorneys who presented compelling evidence of the detective's constant misconduct? Or the prosecutors and judges who refused to acknowledge that misconduct casts a serious doubt on Milke's conviction?

The vast, vast majority of the exoneration cases weren't found out to involve wrongful convictions until a decade or two of litigation and appeals. If we really only gave people one appeal and then a bullet, most of those innocent individuals would have been killed. Most people in Arizona were pretty darn convinced that Debra Milke was unquestionably guilty, so that standard line of fast-track executions for the "obviously guilty" would have worked against her and she'd have been killed with no one ever realizing how shady her conviction was.

So it seems only fair that the price the rabid, bloodthirsty pro-death penalty folks must pay is that we get to have round after round of appeals. Or you could demand better practices of your prosecutors. Demand that they not withhold evidence. Demand that they not fight for years to avoid testing DNA from old evidence. You really don't get to have it both ways, though. You don't get to have the permanent solution punishment and  truncated appeals. And you don't get to blame the defense bar for dragging things out. Believe me, the Debra Milkes of the country would give anything not to have to fight for 22 years to get their convictions overturned. But if we only gave them one appeal, we'd have an awful lot of innocent blood on our hands. 

The upside of waking up on Saturday morning with beginnings of a hideous cold that only gets worse as the day progresses is getting to watch a) lots of basketball and b) a marathon of those true crime shows when the basketball gets uninteresting. So after watching my beloved Jayhawks wrap up yet another conference tournament title and assure themselves an invite to the Big Dance (I was worried...), I flipped to TLC.

The story I watched was a case from Florida involving a distraught husband whose 33 year-old and seemingly healthy wife dropped dead one night. But police and prosecutors decided it was murder and so charged the husband. The oh-so-compelling evidence against him was stuff like "he was calm one minute and hysterical the next." He said he found her slumped on the toilet. No, he said he found her on the floor. No, she might have been over the magazine rack by the toilet. Then there was the Miami beat cop who swore that the hood of the car was warm to the touch... There was also some fun stuff like some of the first responders (who took 23 minutes to get to the house, btw) swore the husband was fully dressed, including shoes, at 4 am when he said he'd been in bed.

Ok, so maybe the dressed when he supposedly had been in bed thing sounds bad. Except the very first responder says the husband was in boxers and a t-shirt. And here's the big one: the husband has an identical twin brother, who the husband called while he was waiting for an ambulance. So, yeah, all those first responders who saw a guy fully dressed were seeing the brother.

As for the other stuff, it terrifies me when police and prosecutors decide someone has committed murder before there's even any evidence that there is a murder based on the person they suspect not behaving the way they think he or she should. The calm/hysterical thing, for example. Well, for crying out loud. Do these police and prosecutors know human beings at all? What 35 year-old man with two small children whose 33 year-old perfectly healthy wife just apparently dropped dead with no warning wouldn't ricochet wildly between calm and hysterical? That's downright textbook human reaction. Moments of odd calm because this is too bizarre to be real and moments of the reality breaking through. Sheesh, if you're going to judge people as murderers based on their behavior, at least understand human behavior!

The vague inconsistencies (if they can even be called that) about whether she was on the floor or slumped over the toilet (wouldn't someone who is slumped over the toilet also quite possibly be on the floor?), well, a guy who is ricocheting wildly between hysterical and calm in the immediate aftermath of his seemingly-healthy wife's sudden death most likely wouldn't say the same thing every time. I thought they taught that in detective school, that minor inconsistencies are the hallmark of a truthful statement because someone who is innocent isn't trying to memorize a story. Whereas if your details remain too consistent, it's because you've rehearsed a particular story. Except when it's the exact opposite because the cops have already decided you committed murder, so then it's highly suspicious that you can't keep your details straight.

The end to this Dateline was happy, thankfully. After 5 years of suspicion and accusations (with all the accompanying cost), the poor widower was found not guilty by a jury. But not before the prosecutors in their closing argument accused his mother-in-law of lying on the stand (she was called as a defense witness and the prosecution alleged she was only sticking by the murdering sob so she could see her grandchildren). I'm thinking calling the alleged victim's mother a liar doesn't endear a prosecutor to a jury. The jury foreman spoke to Dateline for the rest of the jury and made it very clear that this jury didn't just find the man not guilty, they found him 100% completely innocent. They heard his frantic 911 call and heard a man who was desperate and had no idea what was happening. The jury was angry that the murder charge had ever been filed. As am I.

(I have to say, I was mildly surprised by the verdict. My mom and I always bemoan these shows that involve deaths that aren't clearly murders to begin with because it seems the juries always go with the prosecution and convict on the flimsiest supposition.)

The prosecutor was unapologetic, of course. After all, he couldn't keep it straight whether he found his wife dying on the floor or slumped over the toilet! He was calm one minute and crazed the next! The hood of his car in an un-air-conditioned garage in Miami was warm!

Oy. If I had my way, this kind of prosecution, based on pop (or should I call it cop) psychology and hunches would never happen. I would institute a rule that says if your case relies on "he didn't act the way I think he should have," you can't pursue that charge in court unless you find evidence. This deciding that a guy seems suspicious and so I'm going to suspect him and build a case for murder thing just isn't cutting it. Don't build a case against a person. Don't build a murder case. Just build the case as it exists. Leave the hunches and the armchair psychology to the people who watch Criminal Minds. Or at the very least, develop some sympathy and understanding for the fact that grief is an incredibly complex thing and people probably shouldn't be judged for how they deal with it.

But I don't get my way, so there will continue to be nonsense cases like this. Here's hoping there will likewise be more juries like this one.

I'm not that kind of lawyer

People always have the idea that if you're a lawyer, you must know the law. All of it. That you can answer questions on all kinds of legal topics, no matter how far removed from your own area of practice. So friends ask me to comment on any news story that has a legal angle to it. Family members bring me their tickets, their fights with utility charges or credit card companies. Child custody disputes, divorces, estate issues. Sometimes I want to respond to these questions with a reminder that I'm just a criminal lawyer.

They're not exactly wrong to ask me. I did go to law school, after all. I do know a little about administrative law, family law. I know a thing or two about bioethics and the law. I did pretty well at Contracts, Property, and Trusts and Estates (actually, 3 of my 4  highest grades in law school, oddly. Evidence was #4, which makes more sense). I took classes in all of these things and I've even retained some of it.

And if it's a constitutional law question, I really can answer that. But for the most part, I can't give the kind of answer I feel like people deserve. I can state some general principles and probably refer the asker to an attorney in that field, but I can't write a two page essay. It's a tad frustrating to feel like I'm letting people down by not having all the legal answers.

But on the other hand, I would probably hate it more if any of my family or friends came to me with a legal situation I was equipped to handle. I'd just as soon not have to help any of them face a major felony charge.

Sure, you're probably innocent, but a jury once said you're guilty, so we don't care.

It never ceases to amaze me how much effort prosecutors will put into convictions that should be overturned and how easily some courts will turn a blind eye to obviously flawed convictions. Sometimes they do the right thing, lose those blinders. But it seems like the cases wherein both the prosecutors and judges just don't see the likely innocence of the defendant are far more common.

Take this story from Texas. In 1988, Ben Spencer was convicted of a murder he almost certainly didn't commit, a fact a district court judge acknowledged at a hearing in 2008. The eyewitnesses couldn't have seen what they said, perhaps even believed, they saw. The jailhouse snitch recanted. The defendant had a corroborated alibi. The actual perpetrator of the crimes has been identified. Hearing all of that evidence in 2008, a district court judge declared Spencer innocent and granted him a new trial.

But the Court of Criminal Appeals has to review findings in a situation like that hearing. Shouldn't be a problem, though, as appellate courts are highly differential to the fact findings of trial courts. The trial court judge gets to see the witnesses, hear all of the evidence, and so is in a much better position to rule on credibility. In an issue that comes down to disagreeing with the trial court's fact-findings, the trial court's ruling is almost always affirmed. Almost always. After dithering for 3 years, the Court of Criminal Appeals rejected the trial court's findings. (Funny how standards of review never seem to count as much when they fall on the side of the defendant.)

Even more upsetting is the fact that the case is out of Dallas County, an office headed by one of the most respected District Attorneys around. At least respected by defense attorneys because he has lead one of the broadest Conviction Integrity Units as exists in any DA of County Attorney office in the nation. The Dallas County DA's office has been involved in the release of more DNA exonerees than any other prosecution office. They typically haven't fought exonerations. So it's puzzling that they won't pursue this case, that they seem unconcerned about Ben Spencer's wrongful incarceration. Or the fact that the likely killer has escaped justice (though he is in prison for life on another case).

I don't understand it. I don't understand why the appellate court would step in and preserve a conviction after a trial court has expressed such a lack of confidence in the guilty verdict. (I think declaring the guy innocent can be safely considered a lack of confidence in the guilty verdict.)  I don't understand why the prosecutors wouldn't just concede the fact that the conviction is problematic, at least. I really don't understand why they don't care if they have the wrong guy because that means they don't care if they don't have the right guy. You don't have to be a bleeding heart liberal defense attorney to be bothered by the idea that the DA's office doesn't care about getting the right guy.

This is the kind of stuff that drives me to drink. Makes me wonder how I can keep being a part of a system that tolerates this kind of injustice. It's what makes me feel so disheartened, some days I don't know why I keep bothering. But I can only imagine how much more disheartening it is for the Mr. Spencers of the world. Men whose lives have been ruined beyond repair. I only wish the prosecutors and judges responsible for keeping men like Mr. Spencer in prison felt as disheartened as I did. But if they did, they would do something about it already. So they must not. Not that it would do Ben Spencer any good if the people responsible for his continued incarceration had difficulty sleeping at night. Still wouldn't get him out on the streets, the free man he deserves to be.

No, IAC is not sound trial strategy

People always have this weird, stupid, ridiculous idea that defense attorneys and/or their clients intentionally sabotage cases so they can someday make a claim of ineffective assistance of counsel (IAC). That attorney is trying to suck, they think. That defendant is trying to proceed to trial with an unprepared attorney so he can win on appeal! 'Cause that makes soooo much sense.

Honestly, folks, no defense attorney goes into a trial intending to screw it up so badly that the defendant will have a sure-fire claim for a new trial after he's convicted. I mean, really, who even thinks that would be a logical course of action at all? Why would you try to get your client convicted so you could get him a new trial instead of just trying to win the trial? I don't understand how anyone can think this makes sense enough to actually believe a defense attorney is doing it.

If you read as many online crime articles and their comment sections as I do, you'll see more than a few people insist that the defense attorney is setting up an appeal on IAC. The stupidity makes me crazy. Especially in places like Kansas where an IAC claim can't even be brought on direct appeal, so a Kansas defendant would have to sit in prison for the duration of a direct appeal before he could even bring this brilliant IAC plan to fruition. And even then, even if the defendant won on the IAC claim, he'd still have to go through appeals on that issue and even then wouldn't be released, but would just get a new trial. Yep, that sure would be some swell strategery.

Defense attorneys don't intentionally mess up so that years from now the defendant can get relief while the defense attorney is found by a judge (or judges) to have been deficient. If any defense attorney actually thought that was a good idea, that defense attorney should have his/her head examined.