Defending Those People

Why Fight for Those People?

2009-08-06T00:25:00.002-04:00

I haven't written forever, but have been busy. One thing is on my mind about the job and that is the motivation behind the job now that I'm well into it. Sometimes one would wonder, is the job worth it? Will I do this forever? I am sure this is not a unique thing for indigent criminal defenders. Of course many people have to question their jobs, heck, especially when in this economy people are laid off. It is good to keep things in perspective, how bad things could be.

I wonder when or if it will get easier for me to see children sent off to adult prison. Even my adult clients, it is so sad. With many of them, I can see the young person they once were before life jaded them, if the show me. So far, it is still a terrible tragedy for everybody that has gone to prison, even after all these years. These people are never evil people with nothing redeemable in them. I can see that but for the grace of god, any of us could have gone that way. The people that don't see that are too full of hubris and lack empathy.

Even if the judge's decision makes sense in a way (if you see it from the prosecutor's perspective), when a kid goes to prison it is sad. Heck, even when I've won trials and people tell me to celebrate or that I should celebrate, we're not talking about winning a game. If it is a game, it is a game about somebody's life. Somebody who has loved ones, or even more tragically, has nobody.

I don't know what's more pathetic, for a supportive family to come and see their son or daughter head off to prison, or when the only person who is there to support this young person is me, somebody paid by the government to represent them.

And of course if a person was hurt, the case is very tough. Just because there is a person hurt, perhaps a person that I can sympathize with, this doesn't allow me to ignore my duty to represent my client. But it makes it even more sad, even if it makes it easier to accept the prison sentence when the state has a victim other than themselves.

So the heartrending emotional work is draining. Begging a judge to care for my client and see them as a person who has made bad choices instead of seeing them only as those bad choices, as if they cannot change, is painful. It is very rarely that the child heading off to prison was given the chances most of us take for granted. Instead, they have typically been abused and neglected in ways that should themselves be criminal. Many of them have mental or developmental disabilities, and often they resort to substance abuse to ameliorate the pain they feel.

And often nobody provides respect. Typically, the clients are most respectful. Not all of them, some of them are so unused to attention that they don't trust me, but many of them appreciate it, see that I am trying to help and are thankful. But overburdened prosecutors bite my head off. Judges often get so focused on moving cases they don't care about what must have motivated them to seek the bench in the first place.

But so many people don't understand why I would represent criminals. How weird? If you have to represent bad people, why not rich people who can pay you lots, people think. Heck, I don't know if I could handle that aspect, I feel the draw to me is in representing the truly needy, there is no such great necessity to help fill the need in representing the rich, they are pretty well covered. And I doubt that I would like that sense of entitlement from wealthy criminals, particularly if they are seeking to further their societal advantages using my skills. And it would be tough to represent average people, or feel bad I had to turn away poor people if I didn't work for the government.

The people I represent now are mostly the worst of the worst in terms of skilled criminals. They are not skilled, very few of them are what could be called savvy criminals. They do really stupid things. Even if I win a particular trial for them, they will likely continue to have problems in their life. Perhaps I can only delay the inevitable problems that come from the problems that they have that led them to my door.

So why would I want to represent so many hopeless cases? At such a low wage when I owe so much, may never have enough for what many consider are necessities for the upwardly mobile. And what about having children, maybe supporting a spouse and children? Forget about it in this career.

But I think about it and I still do. I make enough to be comfortable. I should pay off my student loans before I am 50. And like they say, more money more problems. People kill over money. I am not only countlessly more wealthy than my clients, what about most of the rest of the world?

Despite the tragedy, the hopelessness, I think I savor the role of representing the underdog. Maybe I have a masochistic streak running through me? And not that I'm perfect, but I am good at what I do. I help people try to make better decisions. I make fewer mistakes than most, or at least feel that I do. I feel that I make a difference. Even if the difference is simply to help people understand what is going on and helping them choose from the limited decisions now available for them, that is good.

Plus I put a check on the government. I am a constitutional attorney, protecting the civil rights of the poor. I save and have saved many poor people from many, many years in prison. I have gotten thank you notes from my clients, telling me about what they have done positive with the years I have saved them. People keep offering to pay me for help, despite the fact that I know they have so little. That's way better to me than getting a large retainer from a person who thinks that is nothing, right? And I don't get accused of not being a real lawyer that often anymore ;-)

That's why I must do what I do. Please, I hope that my feelings are never blunted. I don't want the job to change me, I don't want to lose my capacity for empathy, despite the difficulty that can cause. I hope I can look back consistently and feel the same way. Maybe I won't do this forever. But I can see that I might want to. Who knows what the future will hold, until it is gone? I doubt that at the end of my life (hopefully not soon, maybe in 70 years or so) I will say 'geez, I really regret that time I worked as a PD.'

The Challenging nature of PD work

2009-05-07T00:11:00.003-04:00

I've been far too busy lawyering to post anything coherent, but I love using my own site to contain all the other sites I like to read, so I'll keep this up, even if I post rarely.

One thing to post: it is extremely expensive for our society to scrimp on providing effective counsel for poor people facing prison. Why? I save hundreds of thousands every month in unnecessary prison costs by saving clients, but when I fail it is often because I have far less time than I need to be as effective as I would like. But I can't spend that time.

Sure, if I did what I did in a private firms at market prices for my talents, I would make a cool quarter million a year, but money doesn't interest me beyond being comfortable, which I am, despite mucho loans that I hope to pay before I die (and suddenly my mortgage seems a worse deal than my law debt).

I see that people have to be more and more committed to turn down the draw of so much more money and so much more admiration for so much less work that it will get much harder to do my job for a long time before it gets better. Luckily, I am the type of person who the harder it gets, the more I relish it (up to my breaking point of course). After all, if it was as intellectually non-challenging to be a defense attorney as it was to be a prosecutor, I couldn't do it.

I'm not saying prosecutors don't have difficult decisions. Say when deciding when to exercise their discretion (or not being able to and dealing with that moral dilemma if they want to keep their jobs and must follow the party line). But if my job was like it is but involved proving the drug addict had cocaine that police found on them (which is as easy as many state cases), I would have left ages ago. So I'm hoping the work continues to be intellectually stimulating, but not continue to be so dramatically unfair I feel I've become part of an unfair system and make no difference and then move on.

Vote for Barak Obama November 4th

2008-10-11T01:14:00.002-04:00

The choice couldn't be more clear. McCain is such a liar:

Evaluating McCain's misleading ads

Obama brings hope for change. McCain is hoping to win because he can confuse people into accepting the big lie that Obama is Muslim, Arab, a terrorist, or Iraq was connected to 9/11.

There's no doubt that there will be problems even with Obama. Things have been too messed up for too long to be quickly fixed. But an Obama administration has a much better chance to improve our country and return us to the right track faster than McCain. And God help us if McCain dies in office and we get Palin.

What attitude should PDs have towards victims/opposing counsel?

2007-06-11T23:34:00.000-04:00

Skelly has a great post that raises a good question. How should a defense attorney for the poor feel towards and treat a victim, their family, or opposing counsel? One view confrontational view is:

“When I’m on trial and we’re in a truly adversarial proceeding, I hate the mother of the victim. I hate the father of the victim, I hate the children of the victim. I hate every part of it. It’s actually a terrible thing, but I can literally hate them when I’m fighting. I have to.”

I have one source for an asnwer. The oath sworn by Florida bar members states in pertinent part:

"I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;"

There are times where a defense lawyer must be offensive to be effective, but there are also many instances where a lawyer is simply offensive and thus becomes less effective. Guess what, no matter how fantastic a lawyer you are, as a public defender, most of your clients are going to be guilty. Thus, being an arse during pretrial hearings or depositions (yes, we get automatic depositions here, another great reason to be a defense lawyer in Florida state court) can make it far more difficult to get the plea that you want and your client deserves.

Trials are different. There are fewer opportunities to compromise. But first, I'll admit that I'm always looking for a way to get what my client wants. If a client is more interested in a settlement and a safe plea, then this could happen at any time up to and even after the jury verdict has come back! I mean, if you create some great appellate issues, you may want to approach the state and suggest an amenable resolution that will save the need for an appeal and the uncertainty that brings to both sides. This includes the recognition that the state may be very interested in closure for their victim or the victim's family, something a defense attorney can often be instrumental in bringing about. If obstructionism and closure is the only tool in our arsenal, why fritter away this opportunity to serve the client's needs by being unduly unpleasant?

When is it time to treat a victim or their family offensively? Well, when they come into court and lie on your client they become fair game. Same for any cops who do the same. Gently taking them downa notch is always an effective way to get a jury to reasonable doubt. If the key witnesses are incredible, you've got some great arguments.

A problem comes when a defense lawyer demonstrates excessive vitriol. Put forth enough energy to demonstrate your displeasure, but why hate? Hate is an evil word. Hate and revenge are natural feelings that people have but they are quite often what you want the jurors to suppress and ignore. My view is that if you get in a hate-off with the government and a wronged victim and/or the victim's family, your client loses. Our clients are rarely sympathetic. Sure, when I get an ex-military or otherwise really sympathetic client, I use that, but more often our clients are pretty down on the food chain. Jurors will far more easily sympathize with, say the person whose home or car was burglarized than a drug addict who needed a fix.

I love this quote from Skelly:

"Everyone, even the guilty criminal--especially the guilty criminal!--needs a companion, a friend, someone to stand with him and for him..." The defense lawyer's job is to force the system to acknowledge that the defendant is not just a social misfit, or a statistic, or a criminal, but a human being with hopes and dreams and fears. A human being who, like any of us, stands in need of repentance and redemption.. The question for the Christian lawyer is not, 'How can you work to get a guilty person off?' The real question is, 'Will you stand by this person, this flawed and sinful human being, and speak a word on his behalf?'" - Joseph G. Allegretti,The Lawyer's Calling

How can one show the humanity of a client and ask for the benefit of the doubt by denying the humanity of a person who was victimized by crime? Certainly liars do not deserve any sympathy from us, but treating liars with respect in exposing their lies is a good idea, I'd say, except and until the witness requires a forceful reaction.

I have no problem shedding a witness, but you usually do it with gentle questions and save the strong arguments for closing (after setting these issues up by getting them from the juror's mouths during voir dire and reminding them of what they'll see in opening statements). People who think that an attorney's consistently angry demeanor or clear dislike of the victim will win cases has obviously watched too much Law and Order and taken the wrong lessons. The lesson is that if you are perceived as the slimy defense lawyer with no concern for the humanity of the victim or their family, why should the jurors care about your client? To be persuasive, you want to be the most reasonable person in the room. A reasonable person recognizes the anger a person would feel from having their family member murdered, for example.

The point about focusing your sympathy on the client is well-taken. One can never focus on the sadness everyone can feel for sympathetic victims. Everyone should be able to feel sorry for families of murder victims, people who've been sexually abused, or people who've had things stolen or been physically attacked. But that feeling cannot dominate. One must feel most sympathetic for the client and their situation.

Too many defense lawyers for the poor get burned out. Then the lawyer gets fixated on how horrible their clients are for the things they do. And then instead of wanting to take responsiblity, the clients have the terminity to demand things like meeting with their lawyer! My attitude there is that, when necessary, a lawyer needs to gain the trust of the client and help them take responsiblity.

If the client doesn't want to take responsiblity after you've fully educated them, then fight along with them as much as you ethically can! Many clients just want someone to say that they believe in them, then all they want is a plea and the least jail time. If that's what they want, that's what you need to try and get for them. A client is a person whose view is to be respected, not a tool to use against the state or the judge to try and clog up the system. If the client wants to take that role and fight, good for them, but not at my behest.

After listening enough, the client will understand when you explain why, for example, they are likely to lose (if they are). If they still trust your advice and insist that they didn't do it or can't take this plea for X or Y reason, then you've got that red light to go to trial. Then break out the war paint. But you should always remember the teachings of Sun Tzu: "One hundred victories in one hundred battles is not the most skillful. Seizing the enemy without fighting is the most skillful." Don't fight unless you have to, and if you do fight, fight in a way that the enemy (the victim, victim's family, the government) will not be angry at your scorched earth tactics, unless they are absolutely necessary.

Low point for any PD: Telling your client to lie or lying about doing so

2007-01-21T00:43:00.000-05:00

I agree with Rumpy on his take on the whole Art Koch:

The attorney for the man sent to Death Row for raping and killing 9-year-old Jimmy Ryce more than a decade ago is expected to testify next week that he told his client to lie on the stand because he was on medication and ''disoriented'' during the trial.

There are few things more reprehensible than when someone from such a necessary but disrespected and trod upon profession go and act like the cliche. I find Koch's actions as offensive as cops should find when other cops go and break the laws and violate people's rights. It goes against all that we stand for and breeds contempt for the justice process.

This could all be a ploy. Maybe Koch is just trying to get Chavez a new trial. Given that I have no expectation that what a person says is true, especially someone like Koch whose basically saying that he's a liar and thus is instantly suspect (I don't buy the whole 'but I'm coming clean so you must believe me BS). But even if you philosophically disagree with the death penalty, it is hard to fathom how deep a person must be committed to its abolition to try and win Chavez a new trial, only prolonging the inevitable. They found the decedent's backpack in his home and he led police to where the boy was living. Either the police illegally obtained that confession or he's going to die (unless the jury can be convinced of mitigating factors)! What court wants to suppress that (we all know about that 'Christian Burial Speech' case with the facade of inevitable discovery being given the official imprimatuer by the Supremes)?

I don't doubt that another person could have killed the decedent and Chavez could have been framed or set-up, but still, two wrongs (or three, the killing was first, then the framing was second) don't make lying as a lawyer or getting your client to lie right!

Giving advice to clients

2006-11-26T10:59:00.000-05:00

I hear from lots of attorneys about the difficulty in getting clients to make the right decisions. I hear that. Sometimes, especially when I'm taking over for other lawyer's clients, it can be hard to make them understand that sometimes admitting to something you didn't do is the right thing. I mean, they can take the chance and I'll go to trial any day on any case, but actual innocence gets you nowhere if you look guilty. Losing that gamble can mean years in prison.

And I hate trying to explain to people with unduly pessimistic or optimistic views of their case what reality is. I have to say 'Yes, you can lose and go to prison' or 'no, there is really no way that we can lose so you should consider take the risk and going to trial.' When I do the former, people often think I'm working for the prosecutor when I'm just trying to make them understand the drawbacks so they aren't later all surprised.

The hardest case for me are the arguable cases where there is no clear advice to give. I seem to have too many of these and thus too many clients looking to me. I didn't become a lawyer because I had a God complex. I don't want to make these decisions about people's lives, I came here to help people decide by providing them all the options and telling them that I'd fight hard for them whatever they choose.

But people's choice far too often is to say 'whatever you think.' What? Whatever I think? Geez, that's hard. Often I don't know enough to make a decision for them. Are they risk takers? How old are they? Have then done a long prison bid? Would losing totally change their life or are they doing life in prison on the installment plan anyways?

This certainly gives me something to give thanks about: at least I don't need to make these kind of horrible decisions on my own behalf.

Dealing with: "Are you a real lawyer?" question

2006-10-22T11:37:00.000-04:00

As PDs well versed in the ways of the court, we know that there are plenty of great lawyers out there, not all of whom work for the PDs office (depending on your area - some areas, it might be all PD until you get upwards of paying $20K a case). Also, we all know that many PDs are overworked, so they don't have the time for hand holding that private attorneys can do. Heck, if I got $250 an hour for whatever, I'd do a lot more sympathetic listening and explaining too! I think I do a good enough job as it is, but some clients and their mothers who call every day would probably rather have a little more hand holding.

On the other hand, who wants to pay lots of extra money to get your hand held by some dude who is so bad that they're always asking the PDs in the courtroom not just how the judge is but how to do simple procedures?

Bottom line is that although I wish to avoid generalizations, I have noticed that a few of the PDs most offended at being called a public pretender or not a real lawyer are also the ones who perhaps most deserve criticism for not exuding confident professionalism.

Perhaps I'm just lucky, but after the hundreds and hundreds of clients (maybe I'm up to a thousand), nobody has gotten past the initial 'are you a real lawyer? ' thing. Maybe it has something to do with confidence. Guess what, if you are a real lawyer, you're not going to argue with your poor client about what they call you!

Let me set the scene. A client sees you and makes a comment demonstrating how they are unsure if you, a PD can help them.

Bad PDs think: 'why do I want to help this a-hole, who committed a crime and now wants to give me flack for trying to help his poor ass?'

Good PDs think: 'hmm, this would be a tad offensive to a lesser lawyer, but no more than the crime that this person committed. I have a thick skin because I am confident enough in my constitutional role to stand up and defend people who have often done things that I personally disagree with. In order for me to help this person, I need to succinctly explain to them my role.'

I spend less than a minute explaining my role, if necessary, and then demonstrate my comptency with my actions, not with fighting words. I'd say 'yes Mr. X, I am a lawyer. I decided to become a public defender because I believe that the amount of justice that a person receives should not be determined by the amount of money that the person has. Now, what is going on with your case?'

C'mon, the client who asks this question is often scared or worried and lacks the social skills to adequately ask about or even evaluate the level of service and effort that they are receiving. I bet that most clients are thinking that, perhaps because of the many bad PDs that we know of that they may have experienced. They are basically asking 'are you lazy and going to screw me because of it?'

Isn't that a natural question? I am a little more worried about the clients who don't ask because I know that they are placing their trust in me. Do I deserve their trust? I try. I have to appear confident.

Was I a great attorney when I first started? Well, I won my first few jury trials. But then I lost. Would I lose this trial now? Probably not. I might have planned it and done better or I probably would have convinced the client to plea.

Why do I think that is the best reaction to a person who questions you? Showing that you care about listening to the client, work hard for them, prove that you do a good job is the best answer.

Geez, this little comment turned into a rant. I think I'll post this on my site now!

Ode to good prosecutors

2006-10-18T22:42:00.000-04:00

I must admit that I'm stealing this idea from somebody else (I can't remember who), but I wanted to put this out there. Wait, I remember it was Rumpole, who just posted another good thought about a life examined. So what is my view?

I love fair prosecutors. Those who know how to wield the enormous power that they have. It is so refreshing to see justice being offered. Plus it is so much easier to help your clients when the prosecutors are fair.

Sure, I can win some of cases. I at least know that I can make it much more difficult for them to get a conviction by at least dragging it out for a long time and raising many issues for appeal. But good prosecutors don't make me do that. They see a bad case as a bad case. Recognizing that they have the power to seriously screw someone, they know how to focus on the really bad guys and ignore the weaker criminals who've made some bad decisions but aren't violent or sociopaths. It is such a risk to take a case to trial with lots of prison on the line for most people, so allowing people who don't deserve being forced to prove their not guiltyness before judges liable to hand out prison time if they lose is the most heartening part of my job.

The guidelines are harsh and don't distinguish from people who just got out of prison and those who had some serious crimes 20 years ago. The drug laws are insane with the mandatory miniumums. You can't actually sell cocaine in south florida without being within 1,000 feet of a church, school, store. If the state wanted to, they could triple our prison population quickly. They could basically bust our budget by hammering everyone. But they don't. I thank them for it. And I am thankful for prosecutors who will listen to me when I say, hey, this is what this case is about, or those that will pay attention to what comes out in depos.

Books lawyers should read

2006-09-04T13:01:00.000-04:00

From the ABA's recently e-mailed newsletter. Besides the books by Dickens, Harper Lee and Anthonly Lewis, I've read the Dali Lama's book. I highly recommend them and look forward to making time to read some of these:

Nasty People: How to Stop Being Hurt by Them Without Becoming One of
Them by Jay Carter. Every new attorney should be armed with some defenses
for dealing with nasty partners, co-workers, support staff, clients,
court personnel and the general public.

Sonia Larson
Sioux Falls, S.D.

The Likeability Factor by Tim Sanders. This book provides excellent
tips to improve your ability to communicate professionally and thereby
significantly enhance success. For lawyers who rely on communication for
their success, this book is a must! I have found this one of the most
helpful and successful tools to improve my work.

Jenny Hedderman
Boston

For all new women attorneys, particularly those going into larger law
firms, I recommend Nice Girls Don’t Get the Corner Office: 101
Unconscious Mistakes Women Make that Sabotage Their Careers by Lois P. Frankel.
The book covers topics ranging from the dangers of sharing too much
personal information at the office to effective verbal and e-mail
communication to professional image*all in short chapters arranged by "mistake"
(great for the time-starved new attorney).

Rebecca Kuehn
Washington, D.C.

Mark Herrmann’s The Curmudgeon’s Guide to Practicing Law. Although it’s
geared toward litigators, the practical advice about interacting with
partners, assistants and clients is invaluable. It’s small and portable,
too!

Gregory Schwab
Philadelphia

The one book that has been the greatest gift to me in this trying first
year has been the Dalai Lama’s The Art of Happiness. What has this book
taught me? Whether I win or lose, whether my clients pay me or stiff
me, whether they think I’m brilliant or worthless at the close of a case,
I can define my happiness and job satisfaction by other measures than
my win-loss record, income or referrals from past clients or other
attorneys. Some things are just more important.

Richard Laws
Clarkston, Wash.

I would give Transforming Practices: Finding Joy and Satisfaction in
the Legal Life by [ABA Journal assistant managing editor] Steven Keeva. I
am a relatively new attorney (transformed from my prior life as a
registered nurse) but found this book helpful as I started out. I recommend
rereading it every few years to keep the joy in the practice of law. I
gave the book as a gift to several of my fellow students upon
graduation from law school. Never miss an opportunity to find joy in what you
do.

Kathleen Martin
Pottstown, Pa.

If one of my boys were graduating from law school, I’d give him a copy
of George Kaufman’s book, The Lawyer’s Guide to Balancing Life and
Work: Taking the Stress Out of Success. Kaufman helps his readers figure
out what is important in life, so this book can be very helpful for all
new lawyers.

Stephen Gallagher
Narberth, Pa.

Without question, I would recommend How to Start And Build A Law
Practice by Jay G. Foonberg. This wonderful book has more practical
information for a beginning (and also for an experienced) lawyer than any other
I have seen in 49 years of law practice. It does a lawyer no good to
know how to write in elegant style without a client whose objectives will
be advanced by the writing.

Put another way, in order to make a rabbit stew, it is first necessary
to catch the rabbit.

Jimmy Brill
Houston

Gideon’s Trumpet by Anthony Lewis; reading this book will show anyone
that lawyers make a difference in peoples’ lives for the better. Given
all of the bad news about lawyers, any new lawyer needs to know about
the good lawyers do in society.

Jonathan Dingus
Panama City, Fla.

Harper Lee set a high standard for all lawyers in To Kill a
Mockingbird. Her memorable characterization of country lawyer Atticus Finch
reminds us all that we are the guardians of the weak and disenfranchised, as
well as of a noble but imperfect system.

Melanie Dunajeski
Hammond, Ind.

The perfect choice would be The Law by Frederic Bastiat. His analysis
of the proper role of the rule of law, coupled with his daring
identification and indictment of the hows and whys of the improper usage of the
law is as timely today as it was when it was first published in 1850.

Charles Brower
Riverside, Calif.

It would have to be Bleak House by Charles Dickens. It shows the human
side of the law and the pitfalls of litigation for the parties
involved.

Jennifer Kislia
Le Claire, Iowa

For attorneys entering the criminal world, A Question of Evidence: The
Casebook of Great Forensic Controversies, from Napoleon to O.J. by
Colin Evans. This fascinating book analyzes the forensics used in
high-profile cases from the Shroud of Turin in the 1350s to the O.J. Simpson
case in the mid-90s. The book provides examples of the ability of
correctly interpreted forensic evidence to tell the true story for the victim,
and the ability of incorrectly interpreted (by mistake or on purpose)
forensic evidence to lie for the actual criminal and to mislead the
judge and jury.

For lawyers entering the civil law world, Difficult People at Work: How
to Cope, How to Win by Arthur Bell and Dayle Smith. This helpful book
analyzes various personality types and provides advice for dealing with
all types of people.

Kristin Vidovich
Alexandria, Va.

I’d recommend a pair of wonderfully insightful books whose content I’ve
worked to incorporate into my litigation practice. They are Courting
Justice by David Boies and Writing to Win: The Legal Writer by Steven
Stark. I’ve gifted copies because they’ve proven so useful.

Lars Hagen
Austin, Texas

As you embark on your voyage as a lawyer, The Successful Lawyer by
Gerald A. Riskin makes a great navigator. First and foremost, it important
that new lawyers create their own definitions of success and figure out
which roads they want to travel to get there, all the while juggling
the demands of trying to preserve their personal lives and time to render
service to their communities. A day spent with this book is a great
investment.

Sharon Nelson
Fairfax, Va.

I would suggest On Bulls--t, written by Harry G. Frankfurt, a
philosophy professor at Princeton University. This treatise deconstructs BS and
looks at it from a philosophical, linguistic and conceptual
perspective. As I enter my last year of law school, this book’s subject matter
becomes more and more relevant with every passing day.

Oren Geshuri
Los Angeles

Law Enforcement Against Prohibition

2006-08-23T21:47:00.000-04:00

Gotta love Radley Balko, and especially this wonderful posting on L.E.A.P.. You've seriously got to watch the video. It is astounding.

Slate Article Describes My Daily Struggle

2006-06-05T23:32:00.000-04:00

Gotta check this article out:

Gideon's Silence

Whatever happened to the right to counsel?

By Alexandra Natapoff
Posted Wednesday, May 31, 2006, at 5:35 PM ET

Judge Arthur L. Hunter Jr. is fed up. The complete destruction of the public-defender system has left more than 1,000 people sitting in soggy New Orleans jails without access to lawyers. So, Judge Hunter, a former police officer, is suspending prosecutions and setting defendants free. In the words of last week's New York Times, "alone among a dozen criminal court judges, he has granted a petition to free a prisoner facing serious charges without counsel, and is considering others."

Judge Hunter is responding to a hidden reality of the American criminal-justice system as a whole: Without defense counsel it grinds to a screeching halt. Suspects who lack lawyers may languish in jail without any sort of hearing for months, with no way to prove their innocence or even plead guilty. Once again, post-Katrina New Orleans reveals a national state of affairs, this one affecting courthouses across the country.

So, how bad is the post-Katrina state of criminal defense? "Indigent clients … remain in pretrial detention for up to five or six months without a single contact from an attorney." One woman "was in jail eleven months before a lawyer was appointed," while another person "spent thirteen months in jail without seeing a lawyer or a judge.

Wait a minute. These quotes are not from New Orleans, post-Katrina. They are from a 2004 American Bar Association report. And they describe, respectively, what's happening in Montana, Mississippi, and Georgia. The same report reveals what typically occurs when indigent defendants finally get a lawyer: Within hours or even minutes, they plead guilty. "At nine o'clock in the morning [in Crisp County, Ga.] they would be calling the calendar and no one … would have a lawyer. By twelve noon everybody will have pled guilty and been sentenced." In Quitman County, Miss., "42% of the indigent defense cases were resolved by guilty plea on … the first day the part-time contract defender met the client." One Alabama witness testified that "contract defenders in that state basically do nothing but process defendants to a guilty plea in as expeditious a manner as possible."

Whatever happened to "innocent until proven guilty"? This lack of meaningful defense is a nationwide phenomenon, and it's attributable in part to massive caseloads. Public defenders in states as diverse as New York and Nebraska carry caseloads of hundreds or even thousands of clients, and they may meet literally for minutes with them before that client pleads guilty or (only rarely) goes to trial. Even before Katrina, Louisiana indigent defense practices were described in the ABA report as follows: "What happens … is that on the morning of the trial, the public defender will introduce himself to his client, tell him the 'deal' that has been negotiated, and ask him to 'sign here.' "

Some states do not use public-defender systems at all but rely instead on low-bid contracts in which private lawyers compete to represent all the indigent defendants in a jurisdiction for one lump sum. This lump sum pays not only for the lawyer's time but for any investigation, experts, and other expenses. In its 2000 special report "Contracting for Indigent Defense Services," the U.S. Department of Justice documented the breakdown of this arrangement in numerous states, in which lawyers acquire hundreds of new clients with whom they may spend only minutes and whom they cannot properly represent. In one California example, the contract attorney was responsible for "more than 5,000 cases each year. … In order to make a profit, the contractor had to spend as little time as possible on each case." As the DOJ report points out, such low-bid contracts contain an inherent conflict of interest when every penny spent investigating the case, hiring experts, or going to trial comes out of the lawyer's pocket. Although a few courts have declared such low-bid, conflicted arrangements unconstitutional, numerous states and counties rely on them.

The ABA report concludes as follows:

[T]housands of persons are processed in America's courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation. All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume applies to everyone accused of criminal conduct effectively does not exists in practice for countless people across the United States.

Unfortunately, our criminal system has become so immense and informal that we've lost sight of the constitutional guarantee of a meaningful defense. Approximately 80 percent of criminal defendants cannot afford counsel and must rely on publicly provided defense. While some public-defender offices still manage to provide excellent representation, they do so against
the odds. Suspects around the country routinely fill jails and wait weeks or months for a lawyer and a hearing. When they do finally get a lawyer, that person is typically so overworked that they have little time to talk to their client, investigate the case, research the law, or otherwise provide meaningful representation.

And so people plead guilty, at a rate of 90 percent to 95 percent. The criminal trial is nearly extinct. Most defendants never get the benefits of the constitutional protections contained in the Bill of Rights. To be charged with a crime means, in practice, that you will most likely plead guilty to a crime, not because you are guilty, but because the system offers no other realistic options.

This state of affairs has eroded our collective bedrock intuition that people are innocent until proven guilty. The New York Times tells us breathlessly that Judge Hunter actually released a person facing a serious charge and is even considering doing it again. As if it might be appropriate to keep people accused of "serious" crimes locked up without lawyers, just in case. But the right to decent counsel does not diminish when a person is accused of a really serious offense. If anything, the Constitution becomes more important the more serious the charge, and the more intrusive the government wants to be. After all, what were Hamdi and Padilla but cases in which the government alleged that the terrorism accusations were so "serious" that we should dispense with the usual constitutional protections? The Supreme Court, in its Hamdi opinion, rebuked the government for that stance, holding that even enemy combatants and terrorists cannot be detained indefinitely without due process and access to legal representation.

Ironically, poor U.S. citizens with no connections to al-Qaida have long languished in jails without counsel, or at least without counsel who can spend more than a few minutes showing them where to sign the guilty-plea papers.

So, back to Judge Hunter. Although he was galvanized by disaster, his response is actually quite modest: He is trying to enforce the Sixth Amendment of the U.S. Constitution, which reads: "In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense." The U.S. Supreme Court has made it clear for decades that if the government wants to prosecute and incarcerate an individual, it can only do so if that person has a competent lawyer. In its landmark case Gideon v. Wainwright the court invalidated Clarence Gideon's conviction because he wasn't represented. Threw the conviction out. Overturned it. Told the government: "You can't do that. No lawyer, no prosecution." Today, Judge Hunter is saying no less.

This is yet another one of those "Katrina moments" in which we realize that post-Katrina New Orleans is a high-definition example of how this nation routinely treats the poor and people of color. Right after the hurricane, the Brookings Institution issued a report on national poverty saying that, "Hurricane Katrina's assault on New Orleans' most vulnerable residents and neighborhoods has reinvigorated the dialogue on race and class in America." Well, today, Judge Hunter re-reinvigorates that dialogue, this time over the right to counsel for those same poor, vulnerable individuals. Just as important, he reminds us all that it shouldn't take a hurricane to uphold the Constitution.

Lock People Up Only When It Would Help

2006-05-28T13:29:00.000-04:00

This article in the New York Times makes some good points about solving problems:

Taking his cues from family therapy as well as from social ecology, which emphasizes that behavior is shaped by multiple aspects of the environment, Henggeler studies the ecosystem composed by family, neighborhood, schools, peer groups and the broader community. Instead of removing children from that ecosystem, he tries to change it: solve the drug problems and the legal problems, get kids away from delinquent peers and encourage academic success.
A central idea is to focus on the parents. "We want the therapist to build the competency of the parents, because the parents are going to be there after the therapist leaves," he says. If the parents can't handle the job, he might ask an uncle, aunt or grandparent to fill in.

This is a much better approach than breaking up families, locking various members up for their obvious failures, and then hoping that things get better. It is no surprise that the traditional lock-em-up tactics fail. The chronically criminal have lives rife with lack of support, motivation, and good role models. The solution is to help, not to punish those who lack the skills to learn what to do better. And sadly, when home life is really bad, jail is rarely a deterrent. I mean, if home is in an awful situation with nothing to do, no food, dangerous streets, angry parents who can't maintain themselves, jail isn't that bad.

Not that I want to promote jail, but can you think where a jail term might serve a better motivation to stop criminal behavior? How about Ken Lay, maybe Karl Rove, and even our president, if it comes to that.

Impeachment is not enough if George W. Bush or Dick Cheney are found to have violated the laws in his singleminded pursuit of power. Regardless if his good intentions, I have clients all the time who violate the law with the intention that what they did was OK. I don't think he needs to spend much time in jail, but after Bush or Cheney are impeached and removed from office, they shouldn't get off like Nixon with just disbarrment. Clinton got that for his equivocations alone, Bush/Cheney would be impeached because of his lies and/or willfull blindness that has led to countless deaths and squandered our nation's reputation in the world as a force for good. If either of our leaders are found to be complicit, they deserve to serve at least a few months in jail. It should be good for them. They might even change their stripes. After all, I read somewhere recently that if a conservative is a liberal who has been mugged, a liberal is a conservative that has been arrested.

To end on a lighter note, Ken had some funny videos on his site. Also, is it just me that thinks that Ne-Yo's "When You're Mad" kinda glorifies domestic violence? Now, maybe he gets all hot when his girl puts his hands on him, but here in domestic violence court, she's looking at jail time if he complains, and he's looking at the same if he puts his hands on her back! Maybe I'm getting too old, and I don't want to denigrate the good work of Talib Kweli, Common, The Roots, etc., but what happened to lyrics from Marvin like What's Going On hitting the top of the charts? Even Sexual Healing and Let's Get it On aren't misogynistic, and are a lot more subtle than the Thong Song, for example.

Props to Ken at Crim Law Blog : How can you defend those people?

2006-05-22T23:49:00.000-04:00

A while ago I came back across this good post by Ken Lammers at Crim Law. I am sure that I've heard the term before, but Mr. Lammers motivated or inspired this blog's title. He's got a great post and a great response to the question, how can you defend those people?

But I want to disagree with him in part. There is nothing wrong with trying to defend the guilty. That's what Jesus did. Many people respect him for that. Our job, in many ways, is as an attorney to atone. I once heard that attorney comes from atone, we atone for our client's sins. We allow them to understand the perspective of others, to try and make amends many times, take responsiblity. That is what victims of crime often want. And we try and protect our clients to prevent crime from doubly victimizing by punishment for the innocent, or punishment beyond what is required.

In terms of zeal, what if a person had nobody to advocate for her? Then those who looked guilty but actually weren't would be screwed! But nobody actually knows if a person is guilty, what with all these false confessions and planted evidence. I have to help anyone who needs help. What if I was in that position, looking guilty but being innocent? And if there isn't a good attorney who fights for people, how can the convicted ever accept their punishment? Without good defense attorneys, criminals would just say (and it be true) that they didn't get a fair shot at proving their innocence.

In the end, I agree with Ken on the most important part. Defense attorneys seek to curb the thirst for vengence in society. Such violence is not healthy, and I am proud to try and be the caretaker of positivity in my community as well as speak for underrepresented minorities, the poor, the mentally ill, and those visiting my country from elsewhere. Even if they may be guilty when I am finished working with them, they deserve assistance to understand what is happening and get help to prove it if they may be innocent and to avoid improper punishment.

Police Misconduct Solution: Black Boxes in Police Cars Recording Everything

2006-05-20T15:18:00.000-04:00

Some police routinely lie, and prosecutors and judges buy it. These police are only caught when they get greedy and screw up. Competent lying cops ones can lie for a career and never get caught. Sure, a few judges will wise up and say "I don't believe a thing out of this cops mouth," but too often that doesn't happen. The attitude is that the arrested are mostly brown criminals, so who cares? Why waste my time fighting for this scumbag drug dealer, who cares what the police did?

I thought we all swore the same oath to uphold the constitution. I'm just trying to do my job. If we make exceptions in the constitution for drug dealers or child molestors or gang members, the exception will swallow the rule.

I understand the anti-crime sentiment from law enforcement. Heck,I might do the same thing if I was in that position. That doesn't make it right to lie under oath. No matter how tempting, it is wrong. The slope is too steep and slipperly. Police may start to lie to protect themselves, putting felony charges on people for resisting because the cops adrenaline was up, they beat the person up, and need to cover themselves. But then it gets too hard to stop.

Its natural for an officer to start lying because all humans lie. After seeing success with lies, it can snowball. That's why all interogations and any interactions with police should be recorded, as should all police communications. If the government wants to tap us and say why should we worry if we're doing nothing wrong, why can't we listen in on the government agents when they are acting to 'protect' us? Law and order people should agree. These crooked cops themselves taint cases on people who really are guilty or get the innocent and let the guilty go free. We need a black box in all police cars, recording what happens inside and out. This will keep the bad cops honest. If we can monitor telemarketers, why not those sworn to protect and serve? Sure, that's intrusive, but we want the best protecting us. I support giving good cops raises to put up with that intrusion, but shouldn't we all strive to act such that our parents could hear what we say, how we treat that subject, how we treat people who ask for directions?

Look at what happens with this attitude of police infallibility in Baltimore, as Radley noted. If these weren't two, articulate white people with cops for parents and media savvy, would this story gotten out?

Like Skelly pointed out, PD's are overworked, used to having to hurry, and many defendants rightfully don't respect offices who have, for exampe, pled out hundreds of felonies with no trials in five years! It is hard for some defendants to see PDs in these types of non-confrontational offices as advocates for their rights.

Prosecutorial discretion

2006-04-10T23:05:00.000-04:00

Mr. Steven Wells just posted a good article pointing out the structural bias of appeals, one reason why the state is always full of good case law. This can be a problem, particularly when judges (AKA former prosecutors) won't do anything to protect your client's rights unless you can point out a case on point an all four facts. Ruling by analogy to suppress a stop? Nope, hey, that case occurred near a river, and this case was near the ocean ... BIG difference!

Did you hear what happened in Duke? No matter how heinous the crime, police make mistakes, witnesses may lie. I never assume someone is lying, but my experience has led me to not jump to a hanging because in many instances, all the facts are not in. Yes, I'm talking about prejudging thrice admonished (by the most conservative appeals court in the land) Nancy Grace, who said recently: You know what, Kevin? I`m so glad they didn`t miss a lacrosse game over a little thing like gang rape! Go ahead..

I'm glad that Grace didn't live in Durham, after all, I don't think that she should go to jail for arson, she added during her show:

GRACE: To clinical psychologist Dr. Patricia Saunders, Dr. Saunders, in an earlier sound bite, we heard one of the administrators say -- or it may have been the defense attorney -- say, "What if these boys were your sons?"

What if this girl -- I mean, of course, I wouldn`t be happy if she was a stripper if I was her mother, but forget about that. What if this girl was your girl? You know, I`d burn the place down, for Pete`s sake.

Cops behaving badly

2006-04-06T23:15:00.000-04:00

Good thing David Feige is following this horrible situation where some cops in South Florida are simply out of control. It looks pretty widespread too.

These ugly activities by these cops are a disgrace to not only all the other cops who aren't dirty, but to the citizens that they are sworn to serve. Unfortunately, those of us who work with cops know that some of them routinely lie, making us wonder if any of them are ever telling the truth. It is really disheartening, but it reminds me why I need to do my job.

Who can police the police? Well, the public defenders of course!

Mentally ill in prison

2006-04-01T09:07:00.000-05:00

I just watched the Frontline episode "The New Asylums" looked inside Ohio's prison mental health treatment. I had seen it before, it is always an eye-opening program, even to me, and I have fairly extensive experience with the mentally ill in several different criminal justice systems.

Jail is becoming the place to hold the mentally ill. Judges know that, there are no alternatives, so although they may not like it, they feel like they have no option. But many jails, even if they are the 'best' of the worst options, they are not suitable at all. Many corrections officers are not trained or suitable to handle these sorts of inmates, nor are the police that must see them on the streets.

It is ridiculous that, as in Ohio, even when people get stabilized through aggressive treatment, when they get out in the community they have to be hyper aggressive and vigalent to get and maintain treatment. These are people who have serious mental health problems, yet they are not supported in the community, meaning that many of the 500,000 mentally ill people in the nations prisons will be coming right back.

What about Florida, according to Frontline:

14.9 percent of Florida's 71,616 inmates in custody were in counseling, and 10.8 percent were receiving psychotropic medications as of 2000. Among the state's 106 correctional facilities, 88 provided counseling, 88 distributed psychotropic medications, and one provided 24-hour mental health care.

That means 18 facilities do not provide counseling or distribute meds. The ideal answer would be not lock up people who need treatment. But if we aren't going to do that, then we must improve treatment in prison.

Good news in Washington State

2006-03-28T23:50:00.000-05:00

A judge listened to the ACLU and struck down a modern day poll tax for those who have previously been in the justice system and have outstanding fines and court costs.

Value of death penalty

2006-03-28T21:56:00.000-05:00

Does it really provide closure:

Criminal trials and the promise of an execution offer a seemingly appealing mechanism to assign blame and channel rage. But many crime victims have reported that the endless repetition of their stories, the formal legal rules, and the years lost between appeals only serve to increase stress and delay healing.

Another thing that doesn't provide closure, when the "government has had four years to get their charges together against Hamdan," but still can't do it, and have no timeline in sight. That provides about as much closure as allowing the so-called 20th hijacker make a martyr of himself.

Then from The Agitator, look at what cops are writing about in private. They are often just as bad over the radio and wherever else they are recorded. Methinks if anyone needs constant monitoring (miking all cars, putting video cameras in), it is the police before citizens.

Fixing societal problems, standing with the accused

2006-03-21T01:20:00.000-05:00

According to the Times:

[T]he huge pool of poorly educated black men are becoming ever more disconnected from the mainstream society, and to a far greater degree than comparable white or Hispanic men.
Especially in the country's inner cities, the studies show, finishing high school is the exception, legal work is scarcer than ever and prison is almost routine, with incarceration rates climbing for blacks even as urban crime rates have declined.
...
According to census data, there are about five million black men ages 20 to 39 in the United States.
Terrible schools, absent parents, racism, the decline in blue collar jobs and a subculture that glorifies swagger over work have all been cited as causes of the deepening ruin of black youths. Scholars — and the young men themselves — agree that all of these issues must be addressed.
...
In a society where higher education is vital to economic success, Mr. Mincy of Columbia said, programs to help more men enter and succeed in college may hold promise. But he lamented the dearth of policies and resources to aid single men.
"We spent $50 billion in efforts that produced the turnaround for poor women," Mr. Mincy said. "We are not even beginning to think about the men's problem on similar orders of magnitude."

Well, here's something that's not going to help:

Facing threats of litigation and pressure from Washington, colleges and universities nationwide are opening to white students hundreds of thousands of dollars in fellowships, scholarships and other programs previously created for minorities.

I work with criminal offenders every day. Many of them feel trapped, hopeless. The solution is not more punishment (especially those awful boot camps), it is more opportunity. Job Corp., encouraging mentors (not locking them all up).

What a tragic waste of time to continue the failed drug war and other attempts that do not empower communities but instead terrorize them by failing to address the root causes of criminality. Simply throwing money at stop-gap measures that fail to make any true changes must end.

I hope to always fight for hope, always stand for those who society claims are worthless, even if simply by association (e.g. black male or someone with a prior record = bad or irredeemable). Why? I am a public defender, that's my job. Nobody is without any redeeming value.

Police complaint process

2006-03-05T19:34:00.000-05:00

What's the deal with police who discourage reporting complaints that everyone (like Rumpole and David Feige) is talking about. The news reports:

[O]n occasion, a police officer and a member of the public they serve don't see eye to eye, and the citizen feels a need to complain. In many departments around the country, the process starts out simply: a person just requests a complaint form.

Police departments around the country, like here in Tallahassee, give citizens police complaint forms all the time, no questions asked. But walk into a police station in South Florida, trying to find out how to file a complaint, and watch what happens.

CBS4 News found that, in police departments across Miami-Dade and Broward Counties, large and small, it was virtually impossible to walk in the door, and walk out with a complaint form.

The I-Team conducted an extensive hidden camera test, carried out by a police abuse watchdog group called the Police Complaint Center. Remarkably, of 38 different police stations tested around South Florida, all but three had no police complaint forms.

The transcripts of these encounters are crazy!

Lauderhill P.D.
tester: Yeah, I wanted to find out how to file a complaint against an officer. I just want to find out how you do it. Do you guys have a form or something that I could take with me.
officer: Well, you got to tell me first, and then I got to hear what's going on. You've got to tell me what the complaint is.
tester: Do you have a complaint form that I can, like, fill out or something like that?
officer: Might not be a legitimate complaint.
tester: Who decides that?
officer: I'm trying to help you.
tester: Like, if there's a form, why can't I just take it and leave, right?
officer: No, you don't leave with forms. You tell me what happened, and then I help you from there. Do you have I-D on?
tester: Why?
officer: You know what? You need to leave.
tester: Why?
officer: I'm going to tell you one more time, because I can't do this anymore with you, okay. You're refusing to tell me what you want to do, okay. You're refusing to tell me who's involved, where it happened, what transpired. You'e not cooperating iwth me one bit.
tester: I was just asking if you guys have a complaint form, like if there's some way for me --
officer: Out of my way.
tester: To contact Internal Affairs.
officer: You can do whatever the hell you want. It's a free country.
man" You're cursing at me.
officer: Where do you live? Where do you live? You have to tell me where you live, what your name is, or anything like that.
tester: For a complaint? I mean, like, if I have --
officer: Are you on medications?
tester: Why would you ask me something like that?
officer: Because you're not answering any of my questions.
tester: Am I on medications?
officer: I asked you. It's a free country. I can ask you that.
tester: Okay, you're right.
officer: So you're not going to tell me who you are, you're not going to tell me what the problem is.You're not going to identify yourself.
tester: All I asked you was, like, how do I contact --
officer: You said you have a complaint. You say my officers are acting in an inappropriate manner.
officer: So leave now. Leave now. Leave now.
tester: I'm not doing anything wrong.
officer: Neither am I. It's a free country.
officer: I'm not in your face. I'm standing on the sidewalk. It's a free country. One more step forward, and you'll see what happens. Take one more step forward.

Apparently, the officer had his hand on his gun when he makes that last statement. What did the officer do when he realized that his apparent threats would air? He sued the station, as Feige noted. Check out the video. Sergeant Peter Schumanich, of the Lauderhill Police Department, follows the entirely polite guy out of the station. He berates him, tries to intimidate him, and puts his hand on a gun. All the tester was doing was trying to do was get a form!

I am outraged that there have not been massive comments from other officers deriding this guy. How can such behavior be tolerated in a free society? The officer keeps trying to couch the encounter in terms of his 'right' to follow the guy into a sidewalk, his right to say what he wants, and his right to be free from an invasion of his privacy by the newsmedia. That doesn't sound right to me. The officer's rights cannot infringe on other citizen's rights to petition the government for a redress of grievances.

What do you tell a client?

2006-03-05T15:46:00.000-05:00

I really enjoyed Skelly's not too old posting about advice to give to clients.

It made me come up with advice for prosecutors, given my experience dealing with good and bad ones.

Return calls. Seriously, I know you're busy, but so am I! I return all my calls as soon as I can, even for slow/no returners.
Return faxes/e-mails (see above).
Don't be insulting. Get back, you don't know me like that. Who thinks that insults are the way to go.
Ask, don't demand. You wouldn't respond well if I told you what to do, so please learn the importance of politeness.
Fulfill promises. If you promise to look over a file so we can talk about a plea, do it! I don't blow you off, so don't blow me off.
Apologize when you mess up. If you made a mistake and have to, say, change a plea we've already talked to a client about, don't go implying that its my fault you made a mistake! I apologize for my errors, so you should too.
Don't get personal. Remember, I'm not my client. I didn't hit that person, steal that, possess that drug. I won't get personal with you unless you go there.
Read my motions. Seriously, is that too much to ask?
Respond to my motions. Appearing in court and quoting cases to the judge that you never gave me is bad form. I don't do it, why should you?
Most importantly, remember that we're talking about the Constitution. It is not some technicality that I'm arguing about, it is the basic freedoms that define us as a people. For example, I know you'd be clamboring for due process if/when you were charged with a crime, so keep that in mind when dealing with me and my clients. Heck, the fact that I am even appointed is a part of the Constitution. I police the police. Even if most people charged are guilty, that doesn't mean everyone is guilty. Everyone deserves respect for their rights. If the state is allowed to ignore the rule of law to collar so-called criminals, then the state is nothing better than criminals, particularly when they convict the innocent due to slipshod, unethical corner-cutting like prepping state witnesses what they need to say to fit within an exception to the warrant requirement that doesn't actually exist.

Keeping a positive outlook

2006-03-05T15:10:00.000-05:00

As a public defender, my job is to be a constant optimist. "C'mon, my client deserves another chance!" is the chant. I really enjoy that part of work. It helps me stay idealistic. Perhaps PDs,are African at heart? It seems as if hope springs eternal on that continent:

Where does such relentless optimism in the face of unyielding misery come from? One glance at the statistical profile of the continent's 900 million people will tell you that Africans can expect to live the shortest lives, earn the lowest incomes and suffer some of the worst misrule on the planet. They are more likely than anyone on earth to bury their children before the age of 5, to become infected with H.I.V., to die from malaria and tuberculosis, to require food aid.
Yet a recent survey by Gallup International Association of 50,000 people across the world found that Africans are the most optimistic people. Asked whether 2006 would be better than 2005, 57 percent said yes. Asked if they would be more prosperous this year than last, 55 percent said yes.
These data bear out what I see all the time as I travel across sub-Saharan Africa as a correspondent: that every single day lived here, each birth, wedding, graduation, sunrise and sunset is, in ways large and small, a daily triumph of hope over experience.

It seems that happiness and optimism can occur even in the worst of circumstances. And even when people might be justified as cynical, such as in Africa:

But the survey also reveals that Africa's optimism is not simply the optimism of faith. Africans, the data reveal, are painfully aware of the inadequacy of their leaders: 8 out of 10 said "political leaders are dishonest"; three-quarters "deemed them to have too much power and responsibility"; while 7 out of 10 "think politicians behave unethically."

Man, that's some valuable perspective. Civil war, corrupt governments and none of the freedoms we have here, and they are happy.

I guess that I shouldn't be too disappointed, then, that the Hoyas lost to USF...

Getting around Gideon

2006-02-26T11:17:00.000-05:00

Those of us working in the criminal justice system know of the trend for increasing fees, fines, court costs, supervision reimbursement, paying for probation/house arrest. Every politician can see the benefit of sticking it to criminals. However, the Times notes some problems:

The sums raised by these ever-mounting fees are intended to help offset some of the enormous costs of operating the criminal justice system. But even relatively small fees — $40 per session, say, for a court-ordered anger management class or $15 for a drug test — can have devastating consequences for people who emerge from prison with no money, credit or prospects, and who live in fear of being sent back for failing to pay.

The private companies that run probation threaten my clients repeatedly. I have to warn them that they are not supposed to go to jail simply not for paying. I mean, they will go to jail, but we have a defense if the only violation is not paying court costs. But what happens when the probation officer, whose entire office is paid by these fees, is successful at scaring the probationer so much? The probationer stupidly misses a meeting, then ends up going to jail when they get picked up for months and months. Cost to the taxpayer? Thousands upon thousands of dollars each time it happens. I mean, I am very sure to tell all my clients, emphatically, but I handle just a small percent of all probationers. Unfortunately, some of them don't understand the game, or they are not educated enough to understand even when I have told them.

Besides this insanity, it is clear that many of the fees are simply efforts to circumvent Gideon and its guarantee of free legal counsel.

Judge James R. Thurman of the Magistrate Court in Lee County, Ga., said his state's many fees, known there as add-ons, were a backdoor way to make poor people pay for the free lawyers guaranteed to them by the United States Supreme Court's decision in Gideon v. Wainwright in 1963.

"You're asking the people who can't afford to hire an attorney to pay anyway by making them pay through add-on fees," Judge Thurman said.

I mean, the Times outlines in that article how a man in Louisiana has been billed $127K for his fourth and final trial (the earlier murder convictions of 1961, 1964 and 1970 were all reversed), where he was finally convicted of a lesser and released after serving 44 years on a crime with a
21 year maximum. I don't know if you can put a price on 23 years extra in prison, Angola nonetheless. It is idiotic for Judge David A. Ritchie to rule that Mr. Rideau "was responsible for all of the charges billed by the prosecution" for his fourth trial.

Judge Ritchie apparently uses the but for cause from tort law, forgetting the more important proximate cause test. After all, even if the trials would not have occurred but for Wilbert Rideau's killing a bank teller, the proximate cause of his four trials? How about because the justice system was inept! It seems he spent 23 extra years, wasting both the state's money and his life, because he likely had inept trial counsel. After all, Louisiana's public defender system has long been inept.

Judge Ritchie should be familiar with the facts of this case. I mean, was it Mr. Rideau's fault that in his first trial he only had two appointed civil attorneys with no prior experience with a criminal case. Although they only had six weeks to prepare, among other errors at trial:

The judge refused to disqualify persons who were friends or relatives of the victim or the witnesses. He refused to disqualify a man who had only months before printed campaign literature for the prosecutor. The defense quickly used up its allotted challenges. As a result, the jury included two Calcasieu Parish sheriff's deputies, a relative of the victim, a vice president of the largest bank in the area (who had known the wounded bank manager-a key witness for the state-for twenty-five years), and three persons who admitted they saw Ham Reid "interviewing" Wilbert on television.

The second trial occurred in Baton Rougue, within the range of the television station that had broadcast Rideau's coerced confession, despite the U.S. Supreme Court's ruling that no trial could occur within such an area!.

What happened in the 1970 trial was a travesty, basically just another judicially sanctioned lynching of a black man without adequte legal counsel:

The attorney in charge of Rideau's 1970 defense readily acknowledged as much to Judge Ritchie. Baton Rouge attorney James Wood had only been out of Louisiana State University Law School for two years when he was summoned by the judge in charge of the 1970 trial to handle the defense. When he complained that he did not have the minimum five years legal experience required to represent a capital case, Wood testified recently, the judge told him not to worry because he was appointing as co-counsel a maritime law attorney to meet the criteria. But the understanding was that it was Wood's case. He was provided no compensation for himself and no money for investigation; he was given no resources at all. He defended Rideau out of his own pocket.

These three prior trials clearly involve racial prejudice. The only thing missing were the hoods. though one prosecutor in the second trial admitted his membership in the Citizens Council, the genteel counterpart to the Klu Klux Klan. Given Judge Ritchie's desire to allow transcripts from the 1970 trial to be read at trial, deciding that Rideau's (ineffective!) counsel already had an opportunity for cross, this suggests that the judge is either unaware of the history or none too concerned about the rights of citizens or the rule of law.

Regardless of Judge Ritchie's justification based upon this but for cause rather than proximate cause for costs, the citizens should not tolerate such a blatantly unjust ruling. Rideau played no role in making there be four trials, three of them unfair, or that he spent an extra 23 years in prison. Because Rideau lost so much of his life, if anything, the costs should be a wash and this most rehabilitated prisoner should be allowed to try and make a life outside of Angola.

When Prosecutors Go Bad

2006-02-20T09:27:00.000-05:00

I wonder how often prosecutor's lie and cheat to win, as this lawsuit seeks to uncover in New York. What does the lawsuit claim:

The suit accuses prosecutors in some cases of presenting false testimony by witnesses about their deals for leniency in exchange for cooperation, according to a copy provided by the lawyer filing the suit. It says prosecutors withheld evidence that could be seen as motivating witnesses to give false testimony, and also accuses prosecutors making false or misleading trial presentations to juries.

I'm with Kevin J. Mahoney on this one:

There is, perhaps, no greater threat to the criminal justice system than that posed by the unethical prosecutor. H[er] opportunities to cheat the accused citizen of h[er] right to a fair trial are unlimited. H[er] voracity for victory encourages every abuse imaginable – by the police, by “objective” or “disinterested” witnesses, and by expert witnesses, particularly those at the state crime laboratory. An assistant district attorney, as the Commonwealth’s legal representative, is not only not bound to pursue a conviction at all cost, [s]he is prohibited by the rules of ethics from intentionally undercutting the rights of the accused. The prosecutor is obligated to do right by the accused. Many prosecutors, in their zeal, fail to appreciate their obligations. Some, perhaps a substantial number, are so driven by impulse to punish the accused, they readily disregard their ethical obligations; these individuals, unrestrained by the rules or by conscience, hide exculpatory evidence from defense counsel, coach their witnesses, pressure defense witnesses into disappearing, threaten defense witnesses with prosecution, thereby, intimidating them into refusing to testify or into adopting “recollections” favorable to prosecutor.

Although many prosecutors are great, well-meaning, and cognizant of their ethical duties, sadly some are not. I hope the lawsuit can change attitudes from the modern Nancy Grace clones, those who epitomize Brandeis' warning: "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficial. The greatest dangers to liberty lurk in insidious encroachment by [wo]men of zeal, well meaning but without understanding."

As Skelly Skell pointed out, the leaders of disciplinary action in the bar, Association of Professional Responsibility Lawyers (APRL), have noticed the obvious connection between unethical prosecutors and wrongful convictions. This is particularly dangerous when public defenders are understaffed , as National Organization of Bar Counsel (NOBC) noticed. When such understaffing causes not only an inability to find all the evidence you need, but when it burns you out. I know I've been there, fed up with clients, from my first years of practice, and the lack of sleep doesn't help. It doesn't help that we get so little respect you'd think we were K-Fed's backup singers.

Who are those people?

2006-02-09T22:50:00.000-05:00

In my years of working in criminal courts all over this great nation, what sort of people have I defended? First, aren't they criminals? Well, I never represent a person guilty of the charge they rae facing, well except for sentencing, post-conviction motions, and appeals. After all, they aren't guilty until I help them plea or lose at trial. But I have represented a good number of truly innocent people, caught up by police wrongfully accusing them because the police are lazy and the person looks guilty on a facile examination.

But seriously, most of my clients are criminals (from before), and all of them are poor (or faking because they know how expensive hiring a private is). There are some things common to these people. They are often uneducated. Predominantly minority. Many people from other countries, usually third world. Don't get me wrong, there are sometimes 18 year old white boys from the suburbs who get in trouble and I see them.

Sometimes clients don't want to listen, until I show them that I care. Sometimes they are too deferential and won't make decisions themselves, until I show them what their options are and tell them how I can't decide for them, I can only advise.

Another generalization: Those who break society's rules and get caught are often not too bright. If they were successful, they wouldn't be my clients. On those lines, they are often either below intelligence or they have mental illness. Many have substance abuse problems, often in conjunction with low IQ or mental illness.

On the other hand, plenty of young men, particularly those involved in the drug trade, are quite cunning and street smart. They have no problem understanding things. Even if the language they choose is different, we can converse as equals about many legal concepts. These people, in a different environment, would have flourished.

So, many clients are selfish, they think mainly of themselves. When I have time to delve, I can usually discover that they feel they've been wronged in their lives before, abandoned by others. So they often have a victim mentality, some of them cannot take responsiblity. Others are focused extensively on others and their needs, sometimes to their own detriment.

All I can do for most is make a sad situation a little more clear. I can be there for them. In trying to do this, I have also discovered a great many people who have insight into their problems, and helped them gain some. For example, the drug addict that wants to improve, but lacks the ability to do so. God knows jail isn't going to help.

The best thing about these people is the thanks that they give me. They seem to know that I am not getting much for this, that I work hard for them, and even if they have many other things messed up, they know to say 'good job, I appreciated your help' for my efforts, even as I apologize for not doing more. That's quite rewarding. It movtivates me to do more. Sure, many can't give a flying fig about help I give them, until they get in trouble again, but I am always pleased when I get true, heartfelt praise from my clients. Sometimes it means a lot because I know that nobody has ever really done anything for them, so they are doubly appreciative that I, a complete stranger, care for them. I need to keep that in mind next time I'm overworked and want to snap at a client who is far too slow on the uptake for me.

Law and Order Trial By Jury

2006-01-14T20:38:00.000-05:00

I don't think I should watch court TV shows ever again. LOTBJ is a terrible show regarding legal ethics! From this first episode I watched, the defense attorney contrives a legal defense by treating his clients like idiots to be led around into unethical /perjurious behavior. The defense is all about suborning perjury! The insanity defense he contrives is so half-baked, and anyway, these rarely work. And the perjury that is suborns is not even effective because the attorney cannot properly direct his own hostile witness (the mother of his client, a woman who pays the client's bills).

The prosecutor is just as bad. When the prosecution has gets an expert that gives her the wrong opinion, she tries to hide her and then gets upset when the defense uses the expert. They both ask objectionable questions without any basis in reason at all, simply to make a statement which they then withdraw. Its all about asking impermissible questions and then withdrawing them.

In the second episode I watched, the prosecutor describes how she was going to ignore the ruling by the judge and ask the question anyway, saying that the judge 'favors us, she's just hamstrung by the law.' Man, that's horrible! Then the judge is seen discussing with others how she is so disappointed about having to follow the law.

The judge makes editorial comments regularly during trial, ug! It's not like Judge Judy, but getting there. When the defense attorney objects to the prosecutor making a statement of fact, the judge berates him. What a horrible situation.

The prosecutor asks a witness 'can you tell me if this corrupt detectivewith a common last name spoken about by the defendant is the same person murdered by the defendant?' Geez, sure, if the prosecutor would be able to decide whether a murder occurred, this would be simpler, but they aren't!

Then the defense attorney says 'ethically, I'm supposed to talk you out of risk?' Huh? What is that about? A lawyer is not obligated to talk a client out of taking a risk, but is simply supposed to ensure a client is aware of a risk and makes an informed decision. When a client of mine wants to take a plea, I talk up the best parts of their case to make sure they know there are options. When a client wants to go to trial, I talk to them about the weakest part of the case.

Man, I was watching when the defense attorney says to his client "Oh, you better make it one hell of a story." Are there no defense attorneys who don't suborn perjury? Like all defense attorneys, I demand that candor from my clients and of course I can't put them on if they are not telling the truth. I do believe them, but if they say something fantastic, I try to question them to determine if they are lying and just so they can be aware how crazy what they are saying sounds. Again, the perjury suborning is so stupid, it didn't even take into account that the facts were clearly in contradiction of the facts. So, no duh, the client loses. That's exactly why I demand the truth from my clients. If they lose because they lie, that's understandable.

Admittedly, it is sad when clients lose because state witnesses perjure themselves, but on the other hand, catching the state's witnesses and the prosecution in a lie is usually the best way to win.

Introduction

2006-01-14T09:38:00.000-05:00

Coming from sunny South Florida, this blog will highlight not merely the bad, but also the good things from defending poor people accused of violating the law. Contrary to popular opinion, many heartwarming things occur. For example, everytime I win a trial, I get a hug!

More often than one might imagine, clients tell me I care and they appreciate it. Many clients don't care, yet some take the idea of justice seriously.

There's always the 'you're not a real lawyer' comment directed at public defenders / appointed lawyers. I say, I am a real lawyer. I choose this career because I believe all people deserve the same amount of justice, regardless of the amount of money they have. I would be happy if some of my clients can retain a private attorney. I know plenty of competent ones to refer them to. Clients a lack of defensiveness.

Clients with a bad plea offer might wonder if they can do better with a private attorney. They seek confirmation that I care. I don't take it personally. Some have helped create the reputation of PDs as lazy and uncaring. Because of the heavy caseloads and the stress of the job, PDs often can't do as well as privates.

In sum, when seemingly heartfelt thanks come from those I simply explained a plea in a kind way rather than telling them what to do, it feels great. Some people complain about a lack of pay, but that is priceless. Even representing juveniles, who would often say little, I could tell my representation meant a lot. There is great value in thanks from kids, clients with low IQs, clients with mental health issues, or clients who have suffered greatly in their life.