September 30, 2004

500 yard stare, prison for life

Two stone-cold killers have given my Idaho p.d. friends tsuris this week. Across the canyon, on the witness stand or out in the courthouse hallway, my chief deputy has been reliving a bad experience, second-chairing the death penalty trial of Jimmie Vurel Thomas. His latest post-conviction relief hearing has been going all week.

In 1999, a jury found that Thomas entered the house of his ex-wife, Anna Marie Thomas, chased his victim Steve Louder into a back bedroom and killed him with four shots from a large-caliber revolver, including one shot to the head. Thomas got the death penalty. He escaped it once before, when a California jury trying him for murder deadlocked 20 years ago. Between the time of the Idaho murder and his arrest in Las Vegas, Thomas was supected of shooting big game hunter Willem Wittmaekers, whose body was found stuffed into a freezer in South Africa. Mr. Thomas now finds himself waiting to be executed.

My chief deputy and her first chair of course are now blamed for Mr. Thomas' predicament. Sadly, PCR's and ineffective claims are how the game is played.

In Canyon County, my colleagues Scott Fouser and Klaus Wiebe took me in during my unsuccessful 7-month stab at private practice, then came to my aid when I got my first death penalty client. They were with me when I saw that client go away for life without parole, which broke my heart but perversely counted in this trade as a "win." Today they "won" another one, Abel Leon. The prosecutors admitted that they mistakenly let the guy out of jail shortly before he murdered his wife, even though he was facing prison time on another case and had previously stalked and beaten her. Even through sentencing, Leon maintained that he wasn't even there when his wife was dragged from a car in front of her children and shot three times last spring.

Remorseless MF's = LWOP. Or worse. If you looked into these guys' eyes, it'd be hard to wish them a better fate.

September 29, 2004

"Cranking up the caseload"

Meth is messing with the court system in western Kentucky, along with its attendant thefts and forged checks charges. Public defender caseloads are estimated to hit an average 500 new cases per attorney by the end of this year.

The article reports that the commonwealth attorney and the p.d. are vying for the title of "Most Overworked Public Servant."

Ernie Lewis, head of the Kentucky Department of Public Advocacy admired by me (but not apparently by a disgruntled DPA insider) is quoted:

For Ernie Lewis, it means accepting a different, but equally harsh reality, the possibility that defendants under the counsel of his office may plead guilty to crimes they didn't commit.

Plea deals are a healthy part of the legal process, Lewis says, but "the caseload problem encourages plea negotiations." Some cases, he says, end up in a plea deal when a trial is justified. But the hours involved for both the public defender and the prosecutor may make a jury trial virtually impossible. That leads Lewis to his "greatest fear" as head of the public defender system, "people are ending up entering a guilty plea when they are in fact not guilty of what they're charged with."

Towering caseloads for both sides, he says, creates "an immense incentive to resolve the case with a guilty plea."

This is the home-brewed poison that corrodes everything it touches: the cops, the clients, their kids, and the Fourth, Fifth and Sixth Amendments.

September 26, 2004

Something positive about ex-cons (for a change)

Since shortly after Dustin Hoffman was in "Straight Time", it's been unfashionable to show much empathy in public for probationers and parolees, so I was pleased to see my George W.-embracing local paper recognizing that it makes fiscal and business sense for private enterprise (with a few incentives) to take a chance on ex-cons. The Times-News printed this article, Sunday edition, page 1, above the fold:

"A chance for change ... Business owners give felons new skills, new direction"

It's the story of Robert and RoxAnn Glasson, of Glasson Construction in Twin Falls, Idaho. "They began hiring ex-offenders last year 'to give them a boost,' Robert said. 'It's me giving them a career,' he explained. 'Instead of them going out and flippin' burgers they can say, "Hey, I've got something to do in life. I don't have to go do drugs."'"

Glasson wants to steer people to a more productive path, and his reasons are personal.

"'Back in 1996 I got caught up in the wrong crowd,' he said. 'I went to pre-release ... I did 15 months, then was on probation.' Glasson found someone who was willing to take a chance with him and teach him a new skill. Glasson is looking for grants or federal assistance, not as a hand-out to build his business, he said, but as a way to keep other offenders from slipping back into crime."

("The Workforce Investment Act -- funded by Congress and allocated to states by the Department of Labor -- provides assistance for job training to adults, youth and dislocated workers. Money for ex-offenders falls under the adult category.")

A former Twin Falls County criminal defendant says of the chance he's been given:

"I think this program he wants to get going is great, just from what it's done for me. Take these people and, 'Here's an option. You don't have to go out and steal to make money.' Good carpenters make a lot of money. I can see it benefiting a lot of people.It's nice to come back and see what you've done, It's good. It keeps me out of trouble. I don't have enough energy to do anything else."

(Extensive quotes are here because a) I want to lead you to read the whole article, and b) after seven days, you won't find it in the Times-News' free archive.)

September 24, 2004

September 23, 2004

New blawg: Yeoman Lawyer

A colleague in the Midwest says what many mid-career attorneys feel:
"I'm a lawyer who would rather be a farmer."

(Joe at the Jerome County Fair) Posted by Hello

Welcome, counselor. May we both find what we're looking for.


The Salt Lake Tribune columnist who referred to public defenders as "rumpled" takes it back:

"In the past week, I've come to believe a good public defender is to the world of jurisprudence what a Jack Russell terrier is to the dog world: Driven, single-minded, yappy. You want to make a federal case of something? Toss off a careless remark about a legal defender. I did, and I'm still paying for it."

After all, it was that famous p.d. Zorro who said,

"My friends, there is no shame in being poor! Only in dressing poorly!"

P.D.'s: thin-skinned maybe, but not always schlubs.

September 22, 2004

Meth: hell on kids and cowboys

This latest article on methamphetamine is from Minnesota, but it could just as well be from any rural town in Iowa, Indiana, or Idaho. Or my own neighborhood.

"(R)ural counties, where incomes are lower and meth is easier to make without being noticed, have seen sharp increases in cases where children need protective services because their parents are addicted or are cooking the drug at home to sell."

"Meth was a factor in 31 percent to 81 percent of child-protection cases reported in a recent survey of counties." My own meth parents CP caseload runs far closer to 81% than to 31%.

(Here's an old-but-good link to a photo-essay from a few years back, depicting meth's hold on a young mom in North Idaho, part of a top-notch series on methamphetamine from the Spokane Spokesman-Review.)

(Of course, here in southern Idaho, meth is hell on vaqueros and horses.)

Idaho headlines

- In McGriff v. McGriff, a child custody case of some national notoriety, the Idaho Supreme Court yesterday ruled that while "sexual orientation, in and of itself, cannot be the basis for awarding or removing custody," the state Supremes took the trial judge's word for it that the father Theron's homosexuality had nothing, absolutely nothing, to do with his decision regarding custody and visitation, and upheld the award of physical and legal custody to the mother, Shawn.

Kidwell, J., dissented:
A review of the record, the pleadings and oral argument before this Court make it clear that Theron’s sexual orientation was wrongfully taken into consideration by the lower court and now the majority opinion. This should not be the law of Idaho and is undesirable public policy...(I)t is unusual and cause for legal concern, that the magistrate reached for reasons to help Shawn succeed in her claim when the primary reason stated in her petition to modify custody, homosexuality, is not a legally permissible consideration.

- Meanwhile, the Twin Falls Times-News reports on a Jerome County murder case with a headline guaranteed to increase local appreciation of defendants' constitutional and procedural safeguards: Suspect in murder case walks. "This is not the first time the case against (Iovany) Vazquez has been dismissed. On Sept. 8, the case against Vazquez was dismissed but prosecutors refiled almost immediately and Vazquez was not released from jail. A lack of physical evidence was cited in the Sept. 8 court minutes as the reason for that dismissal." Attorneys Ray Pena and Keith Roark represent Vasquez.

- In Idaho Falls, a public defender struggled to get a kidnapping defendant out of the courtroom while the client announced,
"Why do you care about the things that built me into who I am? Read my profile as I turn blue in the hands 'cause these cuffs are cutting off my circulation. I'm hurting, I'm facing a life sentence."

- Two Seattle men have been charged with the murder of starting cornerback for the U of I Vandals, Eric McMillan, 19. McMillan was shot dead in Moscow on Sunday. Two suspects were arrested after a police chase halfway across the State of Washington.

- Oh, and Brody and his client got a verdict today: guilty.

September 21, 2004

Whites of their eyes

Was all suited up to do battle on a meth possession case this morning. Introductions were made, introductory venire panel instructions were read, and the judge got through his portion of voir dire, after which my client stated, "This jury looks bad."

He changed his plea in exchange for 3 years probation, 2-5 years suspended.

Meanwhile, Brody's still in trial down the hall on a sex crime case. One of the state's witnesses testified that they didn't do DNA testing in this case because "we thought we had enough evidence."

Night of the Lepus, CLE of the Jackalope

My fellow Idahoan Steve Nipper of The Invent Blog is teaching a CLE this week about using the Internet to increase your law firm's business, something my p.d. pals and I probably don't need.

He states: If you have a blog and want to really mess with me (and my CLE), add a post mentioning "Idaho rabid jackalope bite attorney" to skew my rankings." And he throws a good jackalope picture into the bargain.

Thus do I oblige him.


You know, not all public defenders wear rumpled suits.

Occasionally some of us wear jail orange.

Update: Blonde Justice on the dangers of letting your orange suit drop.

September 17, 2004

Ach, ein Wortspiel! Optimal!

 Posted by Hello

This blawg makes less sense, yet is somehow more compelling, in German.

(If that doesn't link to a page in German, try clipping and pasting or a site of your choice into the Google translation tool here or here.)

Today I saw that some deeply confused Googler in Germany, trying to learn more about our arbitrary and capricious American legal tradition, stumbled onto my site instead. The translation engine wasn't up to the task. The word "Capricious" defeated it, but "Willkürlich und Willkürlicheim" isn't exactly euphonious either. Sounds like a Milwaukee law firm; I'd go with "Willkürlich und Erratisch" or "Willkürlich und Unvorhersehbar" perhaps.

German science and rationality also show themselves in turning the phrase, "I'm a P.D." to "ich sind ein Palladium!", resolving once and for all where public defenders fit on the periodic table of the elements.

The best part of ersatz translation is seeing favorite old links in severe and angular new clothes:
Allgemeiner Verteidigergeck,
Gesetz Crim,
Verbrechen U. Federalism(us), und natürlich,
Blonde Gerechtigkeit.

To close the lesson, a quote from Kurt Tucholsky, someone else who spent a lot of time going around saying "I object":

Nichts ist schwerer und nichts erfordert mehr Charakter, als sich in offenem Gegensatz zu seiner Zeit zu befinden und laut zu sagen: Nein!

(Nothing is harder and nothing requires more character than to find oneself in open opposition to one’s time and to say loudly: No!)

September 16, 2004

Hey Johnny, Hey Joey, Hey Tommy, Hey Dee Dee

In a sweet-and-sour moment, the Seattle Times runs a digest of news items captioned, "Death penalties seen falling as doubts grow" , but illustrated with a photo of Johnny Ramone, who died last night.

"Danny says we gotta go
Gotta go to Idaho
But we can't go surfin'
'Cause it's 20 below"

For playing the 121 Club January 7, 1979 in Garden City, Idaho, pounding on my 17-year-old ears and letting some air in, thank you.


Public Defender Dude links to a new blog, "Catastrophic Victory."

September 15, 2004

Great news for the defendant who likes hiking and backpacking

In Montana,

"Mouthy Con Gets A New Trail"

(it's just fun to link to any paper called The Hungry Horse News)

September 14, 2004

Local hero

Idaho criminal defense lawyer David Nevin was guest speaker at ISU in Pocatello last night. He represented Sami Al-Hussayen, a Saudi Arabian grad student accused by the government of links to terrorism. Al-Hussayen was acquitted by a federal jury in Boise last June 10th.

Nevin said the case illustrated the best and worst of the American judicial system:

"'In one sense, the system worked because a jury saw through the hype and acquitted him in one of the nation's most conservative states,' Nevin said. 'But it resonated another way too, in that a guy who didn't do anything wrong spent 511 days in jail.'"

"Unfortunately, the case isn't an isolated incident, Nevin said. 'They picked the wrong guy, but how many 'right' guys have they done this to? This is going on all over the country.'"

September 13, 2004

More proof that methamphetamine impairs judgment and cognitive functioning

At sentencings in court today, the judge said that he disapproved of my client's answer to this item on the questionnaire:

Hobbies / Activities? "Getting high and chasing the bag."

No points for honesty.

(Link depicts drug use, and is safe viewing for most p.d.'s and prosecutors, but otherwise may not be for the faint of heart)

("Addicts call it 'chasing the bag': shooting up, feeling the high, and planning the next hit before withdrawal." - Loconte, Joe: "Killing Them Softly," Heritage Foundation Policy Review Online)

September 12, 2004

Things I wish my clients' families knew

Last week Blonde Justice presented "Things I Wish My Clients Knew (Part 1), which could stand to be distributed in holding cells and p.d. office lobbies nationwide.

I've been trying to think of the equivalent for our clients' friends and families, more so now that the common complaint of "my public defender didn't return my phone calls" has been raised to the level of anarcho- syndicalist critique.

Fortunately, and predictably, it's already been said earlier and better at Prison Talk Online by one inmate's loved one:

"The Big Dog Theory....of the practice of defense of a caseload. Maybe it'll make a difference to how people 'react' to the prospect of not having the undivided attention of a PD or any other attorney. Give it some thought.

When it's the week of your trial YOU are the Big Dog. At any point in time prior to that, in the eyes of any attorney with any sort of caseload-- you are not the Big Dog.

Court dates, as we know, have vast expanses of time between them ... During that time, if your loved one is in jail, they get plenty of meals on plastic trays and ceaseless noise from neighbors and time to think, worry and wonder. During that time, if you are the loved one outside with a phone, you are compelled to want to grill the attorney, or get some sort of information to help or sooth or inform or placate the person who's got 395 more plastic trays to stare down before he lays eyes on this attorney again in court.

It's natural to be anxious and be concerned... The Client is his/her own best advocate because they are going to see more of this attorney than you are. Given that a pd's client may appear a lot like just another client/case, it's up to the client to inspire that attorney, and participate.

The attorney is going to see more of the client than you.
The attorney is going to have other clients to tend to.

There will come a Big Dog day or week for your person and you'll be better prepared for it if the client and you both understand what to expect. The one thing you can expect is that it's fortunate that the Big Dog theory exists, or that attorney would be taking calls in his pocket or missing the Court date entirely because he's fielding calls and having meetings with wives and girlfriends asking questions about bond reductions and probation and pleas for people who got arrested just last week.

They manage the cases they have, the time they have and the need they have to work hard. Plea negotiation and trial preparation are things that they don't need help with, and if they did, they'd ask. The direction they get comes from the client,.... if you can be of any help at all it would be in helping that client TO participate.

Thank you and bless you, Retired-1, whoever you are.

(The men and women of groups like Prison Talk Online do more to build jail solidarity and sustain inmates and their families year-in, year-out than a thousand indymedia posts. By contrast, saying, "Don’t be afraid. We are with you. We love all of you who were arrested," in the same article that slags the folks working for those same arrestees comes off as a new version of a scathing old parody: "Pull the triggers, _____,we're with you all the way/Just across the Bay.")

September 10, 2004

Eastern Idaho idyll

I had a fine trip today over to the part of the state where Napoleon Dynamite is a documentary.

Crossing the desert gave me time to re-think yesterday's topic: there will be p.d. clients who view their experience in jail or in the system as a form of witness, political or otherwise. Most p.d.s' default switches are stuck in the "maximise freedom / extract client from the belly of the beast" position, I imagine. Once in a while we may be called upon by a client to shift gears, to engage more fully with the client who desires to make a principled stand in a dingy out-of the-way courtroom, or whose idea of fighting the power includes fighting assigned counsel too.

I've done at least one of what could be termed an overtly political trial. (yes, I know the discussion about how so many p.d. cases are truly political - no, I'm not getting into it here). My client wanted a trial, not probation, and that's what she got. Trial. And not probation. No, we didn't win, and my client lost years of her freedom, but she made her choice, and got to make her case in the face of Idaho law and Idaho jurors. Plead or go to trial, it's always the client's call.

Trials against the odds aren't just for anarchists or hemp promoters. I also thought about a misdemeanor trial I watched years ago when I was a p.d. in Boise. Some local Operation Rescue members, about 27 of them I think, were on trial for trespassing, for blocking the entrance to Planned Parenthood. They were being defended by an attorney I knew who shared his clients' worldview, but didn't have much experience in criminal defense. The state's witnesses from Planned Parenthood couldn't positively identify the trespassers by individual. A proper objection or half-time motion from an amoral, experienced criminal trial lawyer could have sprung those defendants, but then the jury might not have heard the lawyer's impassioned speech before they duly convicted each of his clients.

Oh well, any defendant in a jury trial can feel "like a Mouseketeer trapped in an endless anything-can-happen day" at the best of times. Maybe the idea for the activist client should be to retain two lawyers, one on the client's comfort level, the other who knows what to do inside a courtroom.

September 09, 2004

Sympathy for His Honor

Not a bad article from the trenches about the emotional toll that the system can take on a judge (a former public defender), though it never did talk much about the toll it takes on the clients, several of whom have fainted in the judge's courtroom.

No enemies on the left...oh, uh, never mind

Kirsten Anderberg "went to law school 1) to protect myself from cops who were hassling me as a street performer, and 2) to help the poor." Now she shares this insight that there's no difference between prosecutors and public defenders, just like there's no difference between the Republicans and the Democrats. And if that seems so 2000 to you, know that if she voted, it wouldn't be for "another white elitist male attorney named Nader," so there.

Anderberg advises, "At this point, the way the prosecutors and public defenders treat clients, it is very hard to distinguish *who actually is* on the side of the client." This is brilliant advice for the would-be activist planning on getting busted between now and election day: you might as well talk to the prosecutor as the public defender. Better yet, don't talk to your public defender at all, the statist rat.

She concludes, "And there are no safe alternatives in our criminal injustice system either. Either way the *state* controls it all. The *state* controls the prosecutors and the public defenders. And the victims have little to no say, or recourse, to that two party, state paid, criminal injustice system."

Great. Stop the presses - Criminal Justice System Sucks. Well, until that glorious day when all of America is like Barcelona under the POUM, if people are going to engage in political actions that carry the risk of arrest, that's exactly the belly of the criminal injustice beast they're going to find themselves in. While they're in it, they might want to listen to what their public defender/trail guide has to say about finding an exit, before dismissing everything the PD says. Either that, or don't such be a lump: arrange your own lawyer or resolve to represent yourself before you get in trouble.

I have lots of p.d. comrades on "The Left" (if there is such a creature), good Movement veterans and Guild members among them, who bust their hearts and brains out for their clients. They've got to get tired of every new news item about the venality and corruption of public defenders. But when an activist or a client comes up with the system-shattering revelation that "the public defender gets his paycheck from the same government who pays the prosecutor, AH-HA!," I just want to quote one of my heroes: "Be quiet, and let me do my work in peace."

Oh, and "public pretender?" Hey, I've never heard that one before. Now excuse me please, I've got to go get tomorrow's marching orders from my statist paymasters.

(P.S.: for extra credit, go to one of her other essays, and see if you can catch 1. where she gives legal advice after pointedly writing, "I'm not giving legal advice", 2. where she gives advice on how to generate conflict with your p.d., and 3. where she assumes that Clarence Gideon was African-American.) (also scroll down the comments section there to some heart-felt, well-written rebuttals by a New York City "PD who cares more")

Update: In the wake of the Republican National Convention, the People's Law Collective and National Lawyers Guild earlier advised: "If you have already been arraigned you should have either been arraigned by an NLG attorney or by a public defender. If the public defender was a Legal Aid lawyer, then the National Lawyer’s Guild is asking that you stay with your Legal Aid attorney, because there aren’t enough NLG attorneys to take all of the cases. PLC, NLG and the Association of Legal Aid Attorneys have been working together and we trust Legal Aid and think they will do a good job."

September 08, 2004

Sometimes law enforcement forgets to ask, "may I come in, please?"

This helpful reminder from the Idaho Supreme Court: "A Terry stop may not be effectuated by a warrantless, nonconsensual entry into a residence or place of business without probable cause for a felony and exigent circumstances."

It's also bad manners once a person attempts to terminate a conversation by closing the door, to insert one's foot through the threshold to keep him from closing the door, especially if one has a badge and a gun.

The opinion helpfully summarizes the facts in Terry in a paragraph, then states, "Compare this with today’s case, where law enforcement go to a home for a loud noise, hear no loud noise, continue to the defendant’s door and when they become suspicious in talking with him -- about what we’re not sure -- enter his home."

Good to know that not even in Idaho is this okay.

( To think I knew them when: the judge who signed the opinion was a district judge in my county, and is that rarest of things - an appellate judge who's actually watched a few trials - while the trial level p.d. on the case, Julia T., started out way back here on the high desert at my office.)

September 07, 2004

The Undiscovered Country: Idaho juries to decide who lives or dies

I had the pleasure of seeing a couple of my brother and sister PD's in the Ada County Public Defenders Office yesterday, and catching up on the rest of them.

I hope they've caught up on their rest, because Boise and Ada County are about to embark on the first death penalty trials in the state since Ring invalidated our previous sentencing scheme. The Boise Idaho Statesman has a decent-by-Gannett-Paper-standards article today about the 5 cases in which the Ada County prosecutor is seeking the DP because "it's important to the community."

Coincidentally, Ada County has the biggest population and biggest tax base in Idaho. A prosecutor from a less well-endowed county weighs in, too, which may clue in potential Ada County murderers to take their business just across the county line; geography has made a difference in past Boise-area murder sentences. Holy Equal Protection, your chances of facing the death penalty varying with the solvency of your host county? Who possibly could have predicted that? (scroll down to "Death Penalty (In)Flux")

My good old boss Al gets in a thoughtful allusion to Hamlet (or at least Star Trek VI), while the head state Appellate Public Defender explains the cap fund (which my county opted into), but sounds a bit less than abolitionist about capital punishment:

"Really, when you look at the death penalty cases, they should be for the worst of the worst."

Clumsy me: I thought the death penalty shouldn't be for anybody.

(I'm an abolitionist agnostic myself: I have no doubt that some murderers deserve to die for what they've done, but I don't trust anybody in this existence to decide who to kill. This approach seems about right.)

September 05, 2004

Happy Labor Day!

Back from Washington State, and a visit with some colleagues there. Time now to take my kid to the Labor Day picnic in Boise. Being a man of heft and size, at one picnic one year I was designated Teamster-for-a-day, when they needed an anchor in the tug-of-war contest with the Pipefitters. I should be so honored these days.

I belonged to SEIU once. Officially now, I'm management. Nevertheless, this is a fine day to salute the labor movement, particularly its sometimes turbulent confluence with the public defender movement:

- in a sign that things can only be looking up for the surviving members of the Yellowstone County (Montana) PD's Office, the attorneys there have voted to re-join the Teamsters.

- public defenders in various parts of the country are represented by AFSCME (local 3315), SEIU (locals 925 and 535, unit 31) and the previously mentioned Teamsters (local 320).

- on the flipside, unorganized PD's can thank right-to-work for providing them with virtually guaranteed employment.

Enjoying Labor Day? No sweat!