Unequal Defense, Chapter II

Another shoe has dropped in the contract public defender scandal in Grant County, Washington (just a few miles from Yakima, where I practiced in 1994-97). Previously, the Seattle Times had published a rogues' gallery of bad lawyers and judges up in 'Ephrata/Soap Lake/Moses Lake' (as they say on Northwest Public Radio). The guy who was the low bidder on the public defender contract there made a ton of money for himself through some imaginative caseload management. He had a good thing going even if the clients didn't, and profited mightly, at least until he was disbarred this past May.

Now a second Grant County p.d. has been disbarred, in part for collecting fees from p.d. clients he was supposed to represent for free. Luckily for him, he's found a job that doesn't require a bar license, with the Grant County Prosecutor. In Ephrata, attorneys are being "conscripted" to represent indigent defendants. See how much money the county ultimately saved by contracting out p.d. services instead of taking them in-house?

My county commissioners don't allow me to take private clients, and I love it. Once I spent a hapless seven months in private practice, and I remember the twinge of a dilemna when the secretary paged me to say, there's a public defender client on line one, and a paying client on line two, but it never occurred to me to charge my p.d. clients to do what the county had already paid the firm to do. Good riddance to the bottom-feeders of Moses Lake.

That Shameful Technicality, the Bill of Rights

Vertical Ben won a suppression hearing in Magistrate Court today, bringing comfort to two young men who were minding their business smoking marijuana in one of our local motel rooms when John Law burst in.

The judge shook his head sadly as he granted our side relief, then turned to the now-free young men with a scowl and said,

"You got off because of the Constitution - that's nothing to be proud of!"

Carl Hiaasen writes non-fiction

"Broward County's elected public defender didn't violate state ethics law when he hit up employees to help finance a golf tour for his daughter's boyfriend, a state commission ruled."

Now that we know it's ethical and okay, I'm going to hit up everyone in the office to pay for my kid's swimming lessons, $100 minimum. Not like it's a condition of future employment or anything...

Get this guy to handle your next appeal

Here's the brainiac who won Blakely. Saaaah-lute!

At 33, Seattle attorney has won two Supreme Court cases.

"Unequal Defense: The Series"

A rural contract public defender did a very bad thing, and wouldn't you know it, he graduated from the same law school as me...

Part of an excellent Seattle Times series from earlier this year on how to, and how not to, live up to Gideon.

An Inmate's Perspective on Public Defenders

"The Post's editorial series "Broken Justice" [July 4-7] depicted the lawyers representing the poor in Virginia as inept or unconcerned with their clients' cases. But my experience with the criminal justice system in Loudoun County proves otherwise..."

Always nice to hear from a satisfied customer.

Lawyers ask for it by name

 

Trial antacid.

O wud some power the giftie gie us / to see oursels as others see us

Submitted written closing argument today for a termination trial I did a few weeks ago, and met another CP mom at the office who wanted to hear some good news on her pending termination appeal. Murders will disrupt your sleep patterns, rapes and L&L's will leave you queasy, even if (maybe especially if) you win, but if you really truly want to get your heart broken as a P.D., over and over again, specialize in termination of parental rights cases. Child Protection or Dependency, whatever your state calls them, these cases set you against not just the court system and the prosecutor, but the bureaucracy, the Helping Professionals, and a client's lifetime of bad breaks and bad choices. They come to a bad end, 9 times out of 10.

(deleted)

My poor clients. CP's and terminations are where you really see the injuries that hardscrabble poverty, isolation, and ignorance are inflicting on my neighbors, accelerated for this generation by the methamphetamine that blankets everything out here now. The predominant denomination around here has a saying, "Families are Forever." I hope so, but what the deprivation and the drugs start for my clients, more often than not the helping professionals are finishing off. And the back-of-the mind question for a P.D. working in this area is that, more than once in a while, these poor babies and children are better off for it.

The Very Definition

of arbitrary and capricious (link does not go to any particular judge's website).

A transparent excuse for posting a picture of my son

My big city P.D. friend Dennis has a son, David, who told his class what his dad does for work: "the police catch the bad men, and my dad lets them out."
 

My boy Joe (above) said, "daddy helps the bad guys try to be good."

The 4th Amendment and JWH

Part of the pleasure of fleshing out this fledgling blawg, in addition to learning HTML, is hunting-and-gathering on the Web for good links and cool resources. One is fourthamendment.com, maintained by John Wesley Hall, Jr., one of the true good guys in the profession, who was made famous once in a Dylan song:

John Wesley Hall
Was a friend to the poor,
He trav'led with a gun in ev'ry hand.
All along this countryside,
He opened a many a door,
But he was never known
To hurt an honest man.

Honestly, Mr. Hall helped me out of a very delicate professional situation once (thank you, NACDL!). Maybe I'll tell you about it some day: think law school hypo involving "the murder weapon," come to life. I'm indebted to him, and he's a true guardian of the Fourth, us p.d.'s, and our clients.

In Magistrate Court, man oppresses man - In District Court, it's the opposite.

Touchy-feely or iron-fisted, it still comes down to caging and controlling the usual suspects.

Juvenalia

Brody has taken his place in the firm: a good lawyer and sardonic as hell, who 1) came to Idaho with the rest of the Colorado Mafia hired by my predecessor (Larry David of TV's "Curb Your Enthusiasm"), 2) went over to the other side and was savaged by same predecessor in pleadings attempting to have him barred from prosecuting anywhere within a twenty-mile radius (motions apparently read, "Brody, hereinafter referred to as "The Traitor"...), 3) rose to be our elected prosecutor's right-hand man, 4) left for private practice and won a huge trial establishing the right of local doctors to discharge firearms in defense against collection of their poolhall debts, then 5) decided billing is less fun than litigating, so now 6) I've got him. Triple-cross? Nah, just hiring the best talent.

I'm covering Juvy today until the rest of the cavalry arrives: Susan gets back from the bar exam, and then we're joined next Monday by two new hires, by way of UMinnesota and BYU / J. Reuben Clark. Juvy is fun, because they don't let the Bill of Rights get in the way of treating these poor delinquents. Out there, it's "But how can we help you if we don't convict you first?"

Here's a recent Idaho Supreme Court opinion about "Disrupting the Educational Process," won by my classmate Bill Harrigfeld, Mike Stoy with him on the brief: "The list of applications (of the statute), if the State’s view is accepted, goes on to unending lengths of often ridiculous, sometimes humorous, speculative examples, e.g. criminalization of flatulence in class."

Happy Place # 1

Go ahead, split.

Post conviction, no relief

The office got a copy of the judge's opinion denying relief to the one murder client who's ever been through a murder trial with me (Udell was co-counsel). After trial, after sentencing, and after appeal, our clients get another sliver of a chance through the filing of a petition for post-conviction relief, in which they can raise a number of issues that may not be considered on appeal, such as ineffective assistance of counsel. In this instance, counsel meaning Udell and me.

The murder trial was almost four years ago. Since then, a new attorney helped the client with the PCR, a lawyer duty-bound to raise every questionable call I made, and the same prosecutor who put my client away defended my handling of the case. It's considered due process. In general, I think that most P.D.'s come down on the "do no harm" approach to responding to a PCR. You'd like your client to get another trial, or a lighter sentence, or some kind of a break. Some trial attorneys posture like they're infallible, but most are willing to concede (under penalty of perjury!) where they came up short or made a mistake.

So I'm not all happy and pleased about being exonerated, or having my trial work labeled "reasonable." Where I let my client down was before the trial. Shortly before trial, we were offered manslaughter, fifteen years max. Many of our cases come down to a moment of clarity like that. I share the blame for us leaving the offer on the table and her to her own choices. So it unfolded: the forensic pathologist who didn't stick to the report, the children who didn't recant, the client who couldn't testify, the defense that couldn't be made (if anyone knows how to run a battered woman's defense at trial where the client neither takes the stand nor acknowledges the act, I would truly like to learn). And she's serving life.

We talk a lot about respecting our clients' autonomy, and their ultimate choices, but things get muddled when the client is risking life in the pen. This was a plea bargain that deserved to be backed up with some paternalism, or some bullying. She needed to take it. We went around and around with her, but in the end we honored her choice to go to trial, and she'll never be free to make any choices again. I've been more forceful and much heavier with the two murder clients I've had since, but I still can't take to heart the notion that trading the DP for life without parole for a woman with no priors, or bargaining for 50 years for a 23-year-old man, or getting an attaboy from the system for the way I handled the trial that bought my client life in prison almost four years ago, is any kind of honor or victory.

2006 Update: Ultimately the Idaho Court of Appeals ruled that I was ineffective in failing to request a continuance during the trial to hire my own forensic pathologist, once the state's expert changed his testimony. See Murphy v. State, 2006 Idaho 31154, __ P.3d __ (App. 2006).

An Idaho small-world note: the opinion was written by Judge Gutierrez, who knows me from my first job at Legal Aid - I worked with him, and house-sat for him for part of the summer I studied for the bar. Honestly, the IAC finding stung, but I appreciated his praise for the 'candor' with which I fell on my sword.

The Honorable Udell

A salute to my law partner of the past five years, who's made the transition from Rodeo Club to a club less reputable.


"Before Judge Barry Wood administered the oath of office to Robinson, he issued a semi-formal judiciary warning. 'I'm warning you to go slowly,' Wood advised. 'You know, you started out in Richfield and then rolled down the Little Wood River to Shoshone. And now you've rolled on into Gooding, and if you don't slow down you're going to go off the cliff in Tuttle.'"

The link's here for the next week or so.

Vertical Ben, Vertical Ben...

Other current and former characters in the law shop will be introduced as we go along, but next, a tribute to Vertical Ben, the tallest lawyer in the Fifth Judicial District. I set him up pretty bad yesterday. I had a felony client, in custody, with a piddling little Driving Without Privileges out there, currently assigned to no one, thanks to our little problem with turnover (among them, recent un-retainees, Kim Possible and Dennis Kucinich). I say in passing I'll cover it, and judge sets Ben's trial for the a.m., DWP guy's trial for the p.m. Comes to pass that Ben's guy pleads out that a.m., so judge says, let's start the DWP trial, and as is my wont most mornings, I'm nowhere to be found. Ben introduces himself to the client, picks a jury without a file, tries the thing, and gets a Not Guilty. A true tribute to old-style P.D. winging-it. I know that if I tried the thing, I wouldn't have won it, where my knowledge of the case and my client's version (the Phantom Driver defense, a favorite back in the Albany Street courthouse) would have projected defeat and disbelief all over the box. But this way, Ben was fresh, and it became a fascinating voyage of discovery for the jury and the lawyer alike. A marvelous work and a wonder down in Courtroom 5.

(NLADA Parental Advisory: this is not the way it's supposed to be done, but when we're three p.d.'s covering the work of seven, the old seat-of-the-pants type of practice can come through in the crunch.)

This new learning fascinates me

Okay, so HTML is novel to me, seeing as how I still remember seeing my first Pong machine (North Junior High School cafeteria).
Anyhow, Jay Treaty is in fact not Jay Treaty but is in fact Lifeless Associate, and his blog can be found this way.

This is what starts it

So I'm sitting in front of the telescreen at my small government-funded law office nestled in the heart of the Rockies, when I get two e-mails from two of the recently departed.

One, who we'll call Dennis Kucinich (although his real name is James Traficant), all heart, writes to detail the latest from the Three-C's Highway, and to ask how things are at Juvy and has the prosecutor sent away any more minor kids for having sex with other minor kids? (answers: in flux, and yes)

The other, who we'll call Kim Possible, excellent street-fighting trial lawyer, real natural,writes that she's bailed out of her BigLaw firm in the capital city after three whole weeks, and has gone back to the P.D. side, albeit in the same big city and for bigger bucks than my shop pays. So, naturally, I'm thrilled. While we're always kind of happy and envious here on the yard when one of the inmates makes it over the fence, it is genuinely heart-warming when one straggles back.

Which doesn't lead me to look up blogs listed in my home state, but stumbles me nonetheless on a blogger who tells the story of Kim's departure from inside the same BigLaw firm! Kismet! Of course, I know the guy: I hired him once myself. Goes by Jay Treaty now, though I knew him as Trainspotting Guy then. And reading his blog gives me one more ocassion to say both, "what a brilliant geek!" and "poor bastard!"
Have a look: http://jaytreaty.blogspot.com/
As my kid would say, it's a circle of life all right. Most peculiar, mama.

Entertainment!

An inauspicious start, but at least it gets me out of the house...

Mission Statement: my unprepossesing little kiosk in the blawgosphere

After the Wall came down, and then the USSR, spontaneous markets sprung up in and around the cities of the East, allowing average people to be traders, vendors and entrepreneurs, selling what they chose, free and unhindered, from a kiosk, a tent and table, or the hood of a Lada. Arizona Market, outside Brčko, Bosnia and Herzegovina, was a true Wild West version in its earlier days, complete with log cabins, stolen cars, and transactions of the sort that would put the residents of Deadwood to shame.

Another is Gariunai outside Vilnius, Lithuania. When I was going out there in the spring of 1994, it was an anarchic, Mad Max type of bazaar, with thousands of sellers, but as you'd wander, you'd notice that most every tent, table, and kiosk was selling the same goods from the same traders' bags: the same Snickers bars, the same Polish soda pop, the same Turkish toiletries, the same Chinese clothes with obscure logos ("Resinous of Wood," "LIVE'S," "LEWI'S" (and the same spools of Chinese labels, ready to be sewn in, reading "MADE IN ITALY"). After rows and rows of the same stuff for sale, and usually at the same prices, it was refreshing to come upon one stall, off to the side, that sold dog bowls, cat dishes, dog leashes, and cat toys. And nothing else. That's the one I remember.

Which is a completely meandering and needlessly allegorical way of saying, there are as many political blogs as stars in the sky, and dozens of blawgs that are thoughtful, kicky, and smart. Kerry pictures aside, I hope this blawg will serve a cozy little niche, and serve it in an occasionally entertaining way, without venturing too far into political commentary or legal scholarship. I wasn't much of a law student, and I'm not much of a pundit. On the other hand, if it's public defender angst and foibles you're looking for, I'm your man.