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Defending Those People

What is it like to defend 'those people'? That's the question PDs get at cocktail parties, if we're even invited. It is not like Law and Order, but how many people know but those who've been there?

Last Build Date: Sat, 24 Sep 2016 13:17:56 +0000


Why Fight for Those People?

Thu, 06 Aug 2009 04:25:00 +0000

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[...]

The Challenging nature of PD work

Thu, 07 May 2009 04:11:00 +0000

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

Sat, 11 Oct 2008 05:14:00 +0000

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?

Tue, 12 Jun 2007 03:34:00 +0000

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 an[...]

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

Sun, 21 Jan 2007 05:43:00 +0000

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

Sun, 26 Nov 2006 15:59:00 +0000

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

Sun, 22 Oct 2006 15:37:00 +0000

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

Thu, 19 Oct 2006 02:42:00 +0000

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

Mon, 04 Sep 2006 17:01:00 +0000

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 LarsonSioux 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 HeddermanBostonFor 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 KuehnWashington, 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 SchwabPhiladelphiaThe 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 LawsClarkston, 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 MartinPottstown, 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 GallagherNarberth, 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 BrillHouston 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 DingusPanama City, Fla. Harper Lee set a high standard for all lawyers in To Kill a Mockingbird. Her memorable characterization of country lawyer Atticus Finch remin[...]

Law Enforcement Against Prohibition

Thu, 24 Aug 2006 01:47:00 +0000

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

Tue, 06 Jun 2006 03:32:00 +0000

Gotta check this article out:Gideon's SilenceWhatever happened to the right to counsel?By Alexandra NatapoffPosted 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-[...]

Lock People Up Only When It Would Help

Sun, 28 May 2006 17:29:00 +0000

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?

Tue, 23 May 2006 03:49:00 +0000

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

Sat, 20 May 2006 19:18:00 +0000

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

Tue, 11 Apr 2006 03:05:00 +0000

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

Fri, 07 Apr 2006 03:15:00 +0000

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

Sat, 01 Apr 2006 14:07:00 +0000

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

Wed, 29 Mar 2006 04:50:00 +0000

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

Wed, 29 Mar 2006 02:56:00 +0000

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

Tue, 21 Mar 2006 06:20:00 +0000

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

Mon, 06 Mar 2006 00:34:00 +0000

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" 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[...]

What do you tell a client?

Sun, 05 Mar 2006 20:46:00 +0000

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.
  1. 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.
  2. Return faxes/e-mails (see above).
  3. Don't be insulting. Get back, you don't know me like that. Who thinks that insults are the way to go.
  4. Ask, don't demand. You wouldn't respond well if I told you what to do, so please learn the importance of politeness.
  5. 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.
  6. 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.
  7. 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.
  8. Read my motions. Seriously, is that too much to ask?
  9. 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?
  10. 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

Sun, 05 Mar 2006 20:10:00 +0000

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

Sun, 26 Feb 2006 16:17:00 +0000

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 a21 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 we[...]

When Prosecutors Go Bad

Mon, 20 Feb 2006 14:27:00 +0000

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.[...]