Road therapy

I'm going to take a little road trip before I do something like this. See you later this week.

"Sing me a song of my old Kentucky public defender home..."

Big thanks to Jeff Sherr and his Kentucky Department of Public Advocacy blawg for linking to me today. I've been a fan of DPA and the Ernie Lewis way ever since 1998 and NCDC (National Criminal Defense College - ask your boss to send you), when my partner was Elizabeth from the DPA LaGrange office.

Thanks also for the link to this spat, where the head PD (not from Kentucky) says that his office, not a judge, decides who is or is not represented, and the judge replies, "The public defender's office seems to do everything they can not to represent people. If they want to declare war on me, they've got it."

Uh-oh. Why any PD would get into this kind of pissing match is not immediately apparent.

Oh, so that's why they're called "indigent"

My counterpart in Durham County, NC has taken a unusual position for a PD when it comes to advocating for the clients, at least when it comes to their ability to pay their bills: Lock 'em up! When defendants don't pay court-ordered PD reimbursement, Bob Brown advocates tough love:

"(T)he money 'would start coming out of nowhere' if judges threatened people with an immediate pay-up-or-go-to-jail situation. 'I think we would see the dollar bills rolling out.'"

Brown also professed dismay at the whole Gideon-inspired "if you cannot afford an attorney, one will be provided for you at public expense" racket:

""I think many people actually believe this is a free service.They never see anybody else have to pay. They don't think they have to pay either."

Luckily, the court clerk and judges were on hand to explain that "indigent" can mean, among other things, not having a lot of money.

(So you know, my judges order all but the most destitute (or long-term incarcerated) clients to pay $75 for a misdemeanor case, $500 for a felony case. The county collects about $75,000 in a good year, which goes into the general fund, not into my budget, but is equivalent to a year's salary and fringe for one deputy PD.)

Unequal Defense, Chapter VI: The Gathering

"A lawsuit alleging that Central Washington's Grant County provides inadequate representation to criminal defendants received a crucial boost yesterday when a judge ruled that the plaintiffs can be lumped together into a class-action proceeding."

"In support of their motion for class certification, the attorneys challenging Grant County wrote: 'Hundreds of indigent people face criminal proceedings in Grant County at any given time. They share the same concerns and fears, namely, that they will be left in the lurch by lawyers, who are too overworked, underpaid, under-experienced, or under-supervised to offer effective assistance (or even return phone calls).'"

(In an ultimately related story, more on the current Grant County murder case involving two 12- and 13- year defendants can be found here.)

To the contract PD's of Cincinnati, my apologies

I guess the pay isn't that good after all:

" (Head P.D. Lou) Strigari has about 30 employees in his office -- the same number he's had for a decade -- and a $10 million annual budget. Those employees, though, mostly handle misdemeanor cases. The felony cases are handled by private attorneys who are appointed to the cases by judges and can charge no more than $40 per hour for their work."

What is the deal with managing a public defense system this way?

Cincy civil rights lawyer to PD's: go to jury trial once in a while!

Alert Reader somewhere deep in Ohio sends this link from Cincinnati, where a lawsuit filed Wednesday claims that "(p)oor defendants in Hamilton County suffer unnecessarily harsh punishments because the Public Defender's Office fails to seek jury trials in many criminal cases."

Maybe more to the point would be some lawsuits for judges who dole out unnecessarily harsh punishment because defendants seek jury trials .

Anyway, it's a fair point that you don't want a PD or a whole office of PD's not going to trial because they're not prepared, or don't have the time to prepare. This can be an instance where old-fashioned Western-style winging it is called for. Caseload pressure is one thing; earning a reputation as a dumptruck is another.

The suit is being brought on behalf of all misdemeanor clients of the PD's office by attorney Robert Newman. The article states that this is one of several filed by the same lawyer against the same PD's office.

Hamilton County, Ohio, does seem to have somewhat of a novel system, where misdemeanor cases are handled by the office's staff lawyers, while the more serious felony cases are handed off to private counsel, who are then paid by the county. We kind of like to keep the serious cases in-house out here. However, the Cincinnati model is better if your goal as a public official is to spread the wealth around. There's also a helpful page where, if your lawyer's too busy, you can download your own pleadings.

Not to let the PD's hog the limelight, and perhaps inspired by the example of the PD's office in Billings, Montana, yesterday the county prosecutor in Cincinnati had his own intra-office awkwardness to explain.

In SoCal, Judge Upholds Censure for 2 LA County Prosecutors

For months, Patrick Connolly and Anne Ingalls delayed the release of Thomas Lee Goldstein, a man wrongly convicted of murder. His conviction was overturned by the U.S. 9th Circuit Court of Appeals, and the court ordered Goldstein's release in December, but Goldstein was not released until April.

U.S. District Court Judge Dickran Tevrizian condemned and censured the prosecutors by name for their "cavalier attitude, ethical amnesia and questionable conduct."

Sean K. Kennedy, the deputy federal public defender who represented Goldstein, said the judge's decision made sense. "It was meant as a rebuke of the prosecutors," he said. "It appears that they believe that they have the right to ignore federal orders."

Unequal Defense, Chapter V: Enter the Equalizer

Things are looking way up for one of the young murder defendants in Grant County, Washington:

"A Grant County Superior Court judge appointed Michele Shaw to Jake Eakin's defense, replacing another court-appointed lawyer who had asked out of the case because of slow payment. Shaw represented the Green River Killer, Gary Ridgway, and has handled several high-profile juvenile murder cases, including Barry Loukaitis, a 14-year-old convicted in 1997 of killing his teacher and two classmates at a Moses Lake school."

No joy for the co-defendant, at least not yet. Memo to Randy Smith, his lawyer who's four years out of law school, who asked, 'what does it help to bring in a lawyer from out-of-town?': us small-town practitioners need to buck up and swallow our country pride some times. It can do a lot of good to bring in outside talent, especially if they've done this a few more times than we have and are better at this than we are.

How Can You Not Defend 'Those People'?

From Across the Pond to Blonde Justice, the old question comes up: how can lawyers represent people who they know are guilty?

The quickest reply is usually along the lines of "Who am I to judge?" (which incidentally would not the best slogan for a p.d. seeking judicial office). It's common for criminal defense lawyers to say, "I don't know whether or not my client's guilty, that's the jury's job, not mine." It's also the case that most of us consider asking our client, "so, did you do it?" well, a bit gauche.

The more thorough justification points to our role and our self-understanding as advocates in an adversarial system, checks on government power, and protectors of the Constitution. We hold the state to its proofs, we fight to exclude the bad statements and stuff that the cops have cut corners to obtain, and in trial we flog the hell out of reasonable doubt no matter what our personal opinion may be of our client's guilt. You take it to the extreme, though, and it can be anything goes to get the client off.

Blonde Justice's answer is a good one, sticking up for the underdog, and appreciating the clients' humanity. It draws a lot on the insight that young prosecutors sometimes seem to lack: There but for the grace of God go I.
God's grace, and a source of authority over 1700 years older than the Bill of Rights, is where Crim Law finds his answer, and I suspect it's one that sustains him a great deal when he's in visiting with the hateful client accused of ghastly things. It is an eloquent vision of a lawyer's role in preventing further harm and resisting human vengeance. Even if you aren't a person of religious faith, maybe just someone striving to do criminal defense work with integrity, it will benefit you to give Elder Crimlaw a fair hearing. I'm fairly sure that he would agree with St. Thomas More in A Man for All Seasons: "Yes, I'd give the Devil benefit of law, for my own safety's sake."

Back when I hit a bump on answering this question to myself, I got help, and a new job description, from a section of The Lawyer's Calling by Joseph Alegretti titled "The Lawyer as Companion of the Guilty":

"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?'"

Our recessional hymn is from Say Amen Somebody by the O'Neal Twins, Jesus Dropped the Charges:

I was guilty of all the charges
doomed and disgraced
but Jesus with His special love
forgave me by His grace
He pleaded, He pleaded
He pleaded my case
Jesus dropped the charges (repeat)
Now I'm saved through grace and faith

I was guilty for so long
Lived in sin too long
but Jesus with His special love
reached down with an arm so strong
He picked me up and turned me around
gave me a brand new start
Jesus dropped the charges (repeat)
Now to Him I belong

You may remember, remember
some of the things I've done
but Jesus with His special love
forgave me for every one
He put me on the right road
lifted my heavy load
Jesus dropped the charges (repeat)
Now I'm free down in my soul

He dropped the charges
Jesus dropped the charges
although I was wrong

He dropped the charges
Jesus dropped the charges
showed me right from wrong

He dropped the charges
Jesus dropped the charges
and cast them all away

At Calvary I heard Him say
At Calvary I heard Him say
At Calvary I heard Him say
Case dismissed, case dismissed
saved by grace!

We now resume our regular secular schedule.

Unequal Defense, Chapter IV (in a seemingly never-ending story)

The injustice keeps flowing like a mighty stream in Grant County, Washington. Today the Seattle Times reports on a first-degree murder case with two 12-year-old defendants, in a criminal justice system where "(t)he trial judge has been censured for incompetence, the prosecutor has been convicted of a drug felony, and the county's public-defense system is the subject of a class-action lawsuit." The boys will be the youngest murder defendants tried as adults in Washington state, and trial begins September 14.

It's a well-researched, well-written, truly horrifying read. You ought to click over to the article to get the full sense of disaster unfolding. If you don't, let me at least pass on one bit of advice for the aspiring public defender: if you have been practicing for all of four years, you have 110 felonies in your caseload, you get a murder case involving a 12-year-old, and more experienced colleagues and experts are volunteering to help out you and your client, your best response is not going to be:

"What does that help, getting an attorney in from Portland, or Seattle, or Timbuktu? How does that help? Is there something about my law degree that is somehow less because I have an office in Grant County? I find that a little offensive. Maybe I'm young and cocky, but I think I'm pretty good."

Tool. Get over yourself. It's about the client, not about you.

(Previous posts about The Black Hole of Ephrata are Chapter I, Chapter II, and Chapter III.)

Strong defense from Lithuania (basketball mentioned)

Lithuanians provide quality defense, as well as some fine three-point shooting.

Lithuania 94
USA 90

Mes laimejom!

Where have all the stoners gone? National group declares crisis in Idaho

Alert readers will remember the comments of one of my Idaho colleagues, explaining how the job is becoming less fun as more of our clients make the switch from marijuana to meth. He made the point in a public hearing to his county commissioners. As part of his request to add money for a new half-time attorney position to next year's public defender contract, Doug told his funders,

Methamphetamine users tend to feel invincible and be much less cooperative and more agitated, often making their defense more difficult and time consuming.

That's the story here in Double Drip too. Some days I miss the junkies of my PD youth: they were the mellow fellows, relaxed, some times charming even, with a remarkable insight into their particular back-monkey and never posing much more of a threat to the community than walking out of buildings with other people's merchandise. Stoners, too, were pleasant company, and I never had a marijuana client who injured anybody while under the influence of the gentle herb.

Meth cases are harder because meth clients are harder. Their lives are harder, the monkey on their backs has a harder grip. People on meth deserve a touch of diplomacy and a lot more confidence-building. Even if your client's a beginning tweaker, nobody just waltzes into jail and announces, "I'm your lawyer, trust me." Meth is corrosive to attorney-client relationships as much as to clients. It's a nasty, nasty drug, and it's hell on poor people, no matter what my pro-legalization friends say.

Ah, but the later 80's - that was a simpler time. We practiced out of a windowless, now-demolished office below street level and hopped in our cars like the Battle of Britain to take the fight out to Traffic Court. Mark Stewart and Tim Hansen were our mentors, I shared an office with Doreen, a ratty green couch and a picture of Nelson Mandela, Eric's office sprouted mushrooms, and the cops were just starting to bring in customers caught holding something called crank. So, the clients got called cranksters. You know the rest: it's 2004, and my drug possessions, my burgs and forgeries, my DV's, my child protections, almost all my cases are shot through with the toxic off-white substance, as are most of my hapless clients.

The twist to this is that, with the best of intentions, the NLADA got ahold of the local paper's article on Doug's testimony and request for more funding for p.d.'s, perma-linked it here, and puffed up the original headline from

Public defenders say they need help
to
ID: Indigent Defense Crisis Looming in Idaho; Public Defenders Say They Need Help .

God bless the NLADA! The thought is appreciated, but hold the CARE packages: we're no more or less beleagured than the rest of you in PD-landia. I hope the commissioners in Doug's counties come through with the dollars. In the meantime, if you could spare a few potheads, we'd be much obliged.

Pusherman, Tennessee

"Father of Meth-Burned Child Sentenced: Judge Sentences Father Whose Child Was Burned in a Home Meth Lab to More Than 10 Years in Prison"

Forgive me, PD brothers and sisters. For reasons that are not mysterious, I can't forgive or defend this conduct. Maybe counsel's plea for sympathy would ring true in a simple possession case, but this guy was a cooker. My heart goes out to their child.

Yellow Dog Democrats and Crime-Fighting Cats

Warmest thanks are due Crime and Federalism and Crim Law for showing me how to pass for a conservative at the next Federalist Society Dog Show and Kennel Club. Maybe FedSoc isn't doubleplusungood after all; they do have good taste in canine companions.
 

This is Annie, though it might be better to pronounce her name "Ayn" if we ever get to meet Ted Olson's Australian shepherds. She might not be accepted at many elite functions because she doesn't come from the finest breeding, but her mix of Blue Heeler and German Shepherd qualities means that not only can she herd calves, but she can also get their drivers' license, registration, and proof of insurance. She came from the pound, pre-named Antenna, just as our springer spaniel was pre-named Trevor. The cats I named, after notable judges: Bubba (the fat cat) and Hugo (the Black cat).

Now, can I get partial credit for having a classmate who named his first-born Antonin?

Thanks are also due to Fed84 and CrimLaw for exposing me to this article, although I suspect it made more sense in the original French. Now, I'm always receptive to any political argument that promises to make the U.S. more like Finland, and I'm looking forward to a future of "decarceration" (maybe not as hopefully as my next-door-neighbor who got busted with all the fixin's for a big batch o' meth, but still...).

However, where is the New York Times article that gives the other side? Who's writing about all the good that prisons do? Such as, well... you know... um... give me a minute. Well, what about this: how will "decarceration" affect our dogs and cats? Without prisons, what will become of Puppies Behind Bars? Or Puppies Up For Parole? Will they go the way of the Lorton 500? What do you say, Mr. Egghead? And you, Dahlia Lithwick, if you're so smart, what about the kittens?

Public Defender hero

Ernie Lewis is a PD's PD. He's built a statewide program in Kentucky that's a model for the rest of the country, he's an outstanding lawyer, manager, trainer, and miracle worker, and he does it all while being one of the most courtly and least self-impressed people who you're ever likely to meet in the law.
 

Lewis has been with the Department of Public Advocacy since he graduated from law school in 1977. This month he was re-appointed by the governor for a third term as Public Advocate for the Commonwealth of Kentucky. In 1996, when he was first sworn in, Lewis said, "I ask you to judge me by the vision of the right to counsel." Eight years later, you can see for yourself how the vision's been met, at several DPA webpages.

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 Brcko, 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 Gariuniai 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 jurisprudential 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.

Not wanting to turn this into a political blog, however...

Maybe it was Southern Appeal's leading me to this "excellent opinion piece" that so filled my head with Newspeak and a dull pounding sensation...

If I could've reconciled the thinking behind the statement

"I WILL VOTE FOR GEORGE W. BUSH INSTEAD OF JOHN KERRY because I still believe in the rule of law, and I want to do whatever I can to preserve it"

with a memory of the past three years' DOJ actions and the position of the government in Hamdi, Padilla, and Rasul, my headache probably would have cleared up without a dose of clean high desert air.

As it was, I got some sun and took a couple hours vacation time this afternoon to meet my wife and son out at the airport and help send off John Kerry after his Idaho vacation:
 

 

 

 


Links here to Kerry statements on the right to counsel and public defenders.

Latest episode of "Peyton Place Public Defender's Office"

Former Montana public defender turns self in to begin serving 30-day sentence for contempt.

(Update: Background news stories can be found here and here.)

FLASH! Idaho detectives did not "scrupulously honor" accused's request for a lawyer

The Idaho Court of Appeals gives some guidance to the State as to what a clear and unequivocal request for counsel might sound like:

"Person: Kinda, you guys . . . this is where I want my lawyer.
Detective: Okay.
Person: Okay, this is where I would want my attorney involved.
Detective: Okay uh . . . .
Person: Cause there’s . . . cause you know the rules, I know. (edit)
Detective: Hold on now.
Person: F---, I’m scared guys okay? (edit)
Detective: Okay you told us uh . . . .
Person: Okay.
Detective: . . . you told us you want to talk to your attorney?
Person: I do.
Detective: No, this is a decision you have to make.
Person: Yeah.
Detective: You have to make this decision, and you absolutely want, you want to talk to your attorney?"

"Person thereafter continued to make incriminating statements."

"...At one point one of the detectives queried Person “. . . you told us you want to talk to your attorney?” – to which Person replied “I do.” Instead of then terminating the interrogation, the detective meaningfully interjected “No, this is a decision you have to make.” The detective thus pretended that some clarification or further “decision” from Person was needed even after Person had clearly and unequivocally invoked his right to counsel. Furthermore, after another of Person’s attempts to invoke his right to counsel, the detectives hesitated until Person began to speak again. After another moment during which Person further incriminated himself, he paused and looked down at which point the detective positioned at the left corner of the screen, at Person’s right, signaled the other person in the room to not interrupt Person – making a 'shushing' motion by raising his index finger to his lips..."

State v. Person, ___ Idaho ___, ___ P.3d ___ (App. 2004)

The Planman

It would seem that public TV has blown CrimLaw's cover, and now it's all become so clear:

CrimLaw by day 

CrimLaw by night 


"The Planman finds himself increasingly frustrated by the professional criminals he is called upon to defend and so stumbles upon the idea of devising the perfect crime himself. But when a plan for a theoretical bank raid is carried out to the letter, he finds himself drawn into an exciting and illegal sideline as a criminal mastermind. It's a dangerous double life - and the stakes are even higher than he realises."

And here we have Idaho

You're Idaho!
You're a real meat-n-potatoes kind of person, or more accurately, a potatoes-n-potatoes type. There's little else that captures your attention from sunup to sundown than farming, eating, or simply admiring the splendor of the tater. Sure, you stop to see the butterflies once in a while, or to look at rocks, but mostly you just wish they were potatoes too. Secretly, you hold a stash of potatoes in the cellar for the time when the government comes to round them up and take them for their nefarious purposes. You will stop them!

Take the State Quiz
at the Blue Pyramid.

Where are they now?

The following listing will be of interest to people who have worked in this little p.d. outpost; as for you other 3 regular readers, check back later.

Alumni list:

Casey
Charles
Teri
Christa
L. Scott
Sandra
Jack
Wells
Robin C.
Bryan
Brett
Julia
Denise
Robert W.
Tony
Paul
Jon O.
Mike

Udell on the Bench

This morning was prelims and a reduced-to-a-misdemeanor plea and sentence, and my first appearance in front of my former chief deputy, the (now) Honorable Udell. He carried the cowboy way up to the bench, was pretty fair to all concerned, and turned out to be a judge of few words (which is much better than the alternative, believe me). I think I saw a glint of glee, though, when The Honorable bound over a case defended by his old tormentor, my predecessor Larry David of HBO's "Curb Your Enthusiasm."

I think the judge and I will reach a fairly workable modus vivendi: he doesn't comment on my gentleman-of-leisure approach to courtroom punctuality, and I don't mention the times I've seen him do the "wax on, wax off" routine from The Karate Kid.

Inspiration from PD Dude: "Why Criminal Law is So Much Better than Civil Law"

This marks the first week of work at capital city's P.D. office for my colleague Kim Possible. I recruited her out of the Legal Aid Clinic of our fine state law school, where she'd been going around the dorms explaining the Fourth Amendment. A couple of months ago, she left my shop and accepted an offer at a capital city Big Law firm, Hell Verily. To her credit, she realized where her heart truly was, and bailed in less than a month. Good for her, and good for all the accused.

In her honor, and to prevent any other young PD's from making a similar mistake, here's a link to a classic from "Public Defender Dude" (before it turned into a politics blog): "Why Criminal Law is so much better than Civil Law."

Montana P.D. system "at the larval phase"; beautiful butterfly phase still a ways off

The ACLU has been fighting the state government in Helena over the quality of public defense in Montana for several years. A lawsuit was set for trial last May, but postponed to give the sides a chance to work out a legislative solution. They seem to be making some some significant progress.

When I read the assessment of indigent defense services in Montana prepared by the ACLU and the NLADA, I felt a lot of empathy for my colleagues up north. I mean, the report says,

"The defining trait of indigent defense services in Montana is a “rugged individualism” in which attorneys “go it alone,” without the funding, resources, training, supervision and oversight that other indigent defense providers and criminal defense attorneys consider essential to the provision of constitutionally adequate legal representation."

like it's a bad thing.

I'm happy that the report is paving the way for Montana p.d.'s to get all the funding, resources, training, supervision, and oversight that they need, and I also hear that there'll be pie in the sky when we die. In the meantime, it's got to be discouraging to be toiling away in the trenches without the tools you need to do the job right, making do as best you can in a bad system, and then to get slagged in public by your allies. (You know, like the way appellate p.d.'s talk about trial p.d.'s)

On the other hand, all the criticisms in the report of judges and county attorneys sound accurate and fair! "For example, one defender stated that, on at least two occasions, a Butte-Silver Bow District Court judge cautioned him, out of court, about his representation in individual cases. In both instances, according to the defender, the judge implied that he had already decided the client’s guilt and/or sentence based on evidence that he had seen ex parte, prior to any type of hearing or trial." Yep, been there.

Now, if you want a real story of p.d. staff crack-ups and intrigues, Big Sky style, follow the soap opera that is the Yellowstone County Public Defender Office. With a 2 a.m. DUI, loss of emotional equilibrium while failing to report for jail, credibility sunk into the negative regions, sexual harassment , intra-office lovin' and general managerial ickiness, oh, and a previous p.d. DUI, if this wasn't Montana, someone would've done an intervention years ago.

Local PD asks, "Where are the stoners of yesteryear?"

Here's what's harshing the mellow of today's busy rural public defenders:

"(Doug) Whipple said the prevalence of methamphetamine has changed the complexion of cases as well. 'With marijuana cases, clients were much more mellow and cooperative,' Whipple said. 'With people on meth, it's a whole different ball game.' Methamphetamine users tend to feel invincible and be much less cooperative and more agitated, Whipple said, often making their defense more difficult and time consuming."

For the next week, link will be here.

Spent the Night in Utah

Esteemed colleague Federalist No. 84 had a Bill of Rights drama in real life a few hours south of here, and I think he handled it as any decent dog-lover would. He's absolutely right, unfortunately, about how these days, standing on a Constitutional right can turn your own traffic stop into Anything Can Happen Day. It shouldn't be so hard to just say no to consent searches, but it is, and in Fed 84's case, it doesn't even seem that consent entered into the officer's checklist at all.

I talk to the local alternative high school's Street Law class every once in a while, and always stress correct answers to give when the patrolman asks, "you wouldn't mind if I have a look inside, would you?" At the same time, the kids also remember that the goal of any law enforcement contact for them is to finish it quickly and make it home safely. On the other side of the class divide, I'm on a panel once a year at the junior chamber of commerce, and discuss pretext stops and faux-consent searches, and hit on how we have no way of measuring how much time is taken out of the lives of people who are stopped, searched, and aren't found to be holding. Maybe it'd be better if law enforcement handed out free ice cream coupons (maybe not).

Thinking of such quick calculations we're forced to make about our rights and our freedom, I'm tempted to get all show-offy and Foucaultian about 'micropractices of power,' but I think it was E.M. Forster who said it best: "If I had to choose between betraying my right against unreasonable search and seizure and betraying my dog, I hope I should have the guts to betray my right against unreasonable search and seizure."

p.s.: Fed 84 is also right about how much more problematic the traffic stop gets when the officer adds DWB to the mix. I like to think that I struck my own little blow for happy motoring in Idaho with this case that I handled at the motion hearing and the remand, SAPD on the appeal. It will live on in Gem State jurisprudence for Judge Schwartzman's immortal footnote:

"I seriously doubt that the Clark W. Griswold family, on their way from Illinois to Walley-World in the borrowed family truckster (a reference to the hit comedy movie NATIONAL LAMPOON’S VACATION, with Chevy Chase, Warner Bros. 1983), would face such an array of police interest and interdiction, including “Gunnar” the drug dog."

Pusherman II

The local paper's story about it is here for the next week.

God damn the Pusherman

The preliminary hearing calendar today had a particularly personal interest for me: while carrying my own files, I watched my next-door-neighbor, dressed in orange, while police and probation officers testified about the night they found the makings of a meth lab approximately ten to fifteen feet from my son's bedroom.

When he moved in this past winter, I was willing to give the guy a break. I'm a PD, it's what I do. I knew about his record, and his wife's, but she was exceptionally kind to my kid, and he fixed my sprinklers and my lawnmower. To a less compassionate soul, the lawnmower would have been a dead tip-off; by the time my neighbor was done with it, you could've raced it at Talladega, and what was the deal with all those custom "solvents?"

You can see where this is heading. May 4th, I came home from work to find cops standing on my lawn. This is actually not so unusual an occurence for some of my legal brethren and sistern. However, I thought I left such things behind once I gave up the idealism of living VISTA-Volunteer style after my first year out of school, when the towers of crushed cars in the junkyard behind my back fence threatened to tip over in a good breeze and crush my house, and after more than one low-income client asked, 'if you're any good as a lawyer, why do you live here?'

Anyway, back to May 4 on my tree-lined Neighborhood-Watched street. Through the evening my front yard fills with p.o.'s, more cops, and firefighters. As one benefit of doing law in a small town is that most people in law enforcement are decent, and don't bite unless the criminal defense lawyer bites them first, one of the cops comes up to the screen window and tells me that my neighbor was busted by his parole officer for using a prosthesis of suspicious origin to cheat the UA, and they'd since swept down on his residence.

Note to clients on probation or parole: p.o.'s got Internet. They know all about the Whizzinator.

I got home at 6:00 p.m. It was fascinating to watch the Hazmat guys suit up right outside our bedroom window, and the IED/pipebomb that my neighbor left in his garage gave us all a chance to see a bomb-squad robot up close. I was a bit put out when I had to stop watching cute little Number 5 creep across the grass, because another cop came to our door to urge us to leave home, or at least move our blankets and pillows to the other end of the house. Then, "fire in the hole!" We finally got to sleep at 2:00 a.m. The last of law enforcement didn't leave next door until 6:00 a.m.

Simple felony possession of a controlled substance (methamphetamine), possession with intent, manufacturing, evidence tampering, and definitely not getting invited to next year's block party. I'll surely represent the next would-be cookers who get the p.d. appointed, and they'll surely have their own neighbors who've been endangered, for me to keep in mind. But for this one, a man's got to know his limitations: I conflicted the guy out, and with his new lawyer in my usual chair, today I watched with no particular regret as he got bound over.

Unequal Defense, Chapter III

A disgraced contract public defender in central Washington may not get to keep his new job as victim-witness coordinator with the Grant County prosecuting attorney after all. According to an opinion letter from the state bar, Guillermo Romero cannot work in a law office in any capacity after having being disbarred on July 22.

"If he has to go, it would be a shame, because he's done a great job for us," the county prosecutor said.

Full-Up

Our little high desert p.d. office is back up to staff, with the debut on Monday of two newly-minted lawyers. Robin is a mom of two, ages 3 and 1, which during law school would have made her, um... let me get my calculator... very very tired. Chris is an ex-Marine, whose bearing I just know is going to shame me into better posture in the courtroom. Both seem quite bright, and I'm grateful and relieved that they've arrived.

Susan's back from the bar exam too. This afternoon I followed the three young associates over to misdemeanor pre-trials. Ever been in a Turkish bazaar? Or remember the scenes in "Titanic" that take place in steerage? Okay, you're got the mental picture: about sixty souls packed into a one-hour docket, packed into a small windowless courtroom made of concrete blocks painted brown, a few guys in orange, but mostly out-of-custody folks, half of whom haven't made their office appointments, and throw in a half-dozen pro se wild cards, whom the young p.d.'s are being ordered by the judge to meet, greet, and deal, no discovery,without so much as a how-do-you-do.

So plea bargains are being hashed out, lawyers are gesturing like commodities traders, numerous city tickets are getting dismissed, some cases are left on the trial calendar, a degree of rough justice is done (like watching sausage being made), and things are going real smooth-like. That is, until one of the pro se guys, without benefit of counsel, stands up and addresses the judge man-to-man:

Self-Representing Guy (to judge): "They don't have any evidence, they don't have their witnesses, you should dismiss this."

Judge (to guy): "Well, this is a pre-trial conference, so the state isn't required to bring its witnesses to court until the morning of your jury trial..."

Self-Representing Guy (to judge): "Are you sure about that?"

God bless the unrepresented. I hope the guy wins.

A Public Defender Hero

 


If you can't read the caption on the cover article, it's "Public Defender No. 1." If you don't know Bob Boruchowitz, you really should. If you're dragging and you're thinking of hanging it up, read this article and reflect on the man's stamina. If your office manager is harassing you about the piles of files on your desk, look at the article's pictures and reflect on the man's housekeeping. He's inspiring.

Better days ahead for Las Vegas P.D.'s Office

Las Vegas newspapers report on new Clark County Public Defender Phil Kohn's recent move to put the brakes on the prosecution's former practice of offering take-it-or-leave-it offers at initial appearances to defendants with charges as serious as felonies, and the resulting pressure on p.d's to plead mere minutes after meeting the client. At least one judge has come up with an improved system he calls the early offer calendar, which still looks like a cattle call from the outside, but sounds like a step in the right direction:

More to the point, Phil Kohn sounds like he's moving Vegas indigent defense in the right direction all around. It's a huge turnaround since the bad old days when management ran Nevada's biggest criminal defense firm as Nevada's biggest dumptruck lot. You'll recall the debacle surrounding the old chief's dereliction, reported to have included fighting harder for Anglo than Latino clients as a virtual office policy, and using in-house polygraphs to decide which murder clients deserved a vigorous defense and which didn't. This summer Clark County paid out $5 million to a poor murder defendant, now exonerated, who was up on the row for 14 years thanks to prior management. Here's wishing new management and all the colleagues in LV best wishes for the battles ahead.