June 30, 2005
June 29, 2005
I posted about this remarkable public defender before.
It's grand to see her back on the trail:
For the first time in a year, Jane Kelly is running on this trail. A very private person, Kelly says she is doing this because she does not want others to be afraid. After the attack, many people quit using the trails.
Easy to say, don't live in fear; p.d. sister Kelly goes out and does it.
- 11:38 PM
Went to jury trial today on one count residential burglary and multiple counts of felon with a firearm. Verdict some time tomorrow. My guy left 5 years on the table, and knows he's facing some significant years more than that if he's gambled wrong.
So I'm pondering again just how to find the right balance in advising clients, whether it's to plead or go to trial, or to testify or not. A lot of my clients know what they're doing, and can collaborate pretty well in their defense. Other times, some clients and I spend less time talking about the case and more time playing ping-pong:
"The law says X." "No, the law says Y." "No, you're wrong, the law says X." "No, the law says Y, and here's this copy of it that I printed out for you off the supreme court website." "No, you're wrong, it says X ..."
It's a tape loop. It gets frustrating. After repeated go-rounds of this with the same individual, I'm afraid that my legal advice starts walking a thin line between, "I respect your autonomy and your choices as an adult" and "it's your funeral, bub."
Got me thinking of how they do things in San Francisco. Apparently, if you're an intern at the public defender office there and you get a not guilty, it's customary for your client to send you orchids.
Update: Guilty on all counts. Sentencing next week. The prosecutor has made a cunning offer: waive objection to the state's calculation of the offender score and waive appeal, and all remaining charges either will be dismissed or declined (not filed). It's a hateful game.
- 8:27 PM
June 28, 2005
June 27, 2005
Sadly, I can't name the anonymous blogger who wrote this, but I can share his insight with a wider world:
Finally - I was so on the fence about whether or not meth was a problem, but finally some enlightened reporter at the L.A. Times has finally concluded that meth is, in fact, "epidemic" in rural areas.
Maybe that reporter, and the reporter that penned the article "The Internet Transforms Modern Life," can team up and do some awesome follow-up to their hard-hitting, illuminating journalism.
Something like, "The Sun Is Too Hot To Walk On."
...and maybe I can bill him for cleaning spewed diet cola off my monitor.
- 5:39 PM
"Our clients are more likely than others to act in ways contrary to their best interests. That is how they have become our clients and that is why they often lose their cases, and come to a bitter end.
...(T)he first corollary to Borenstein’s Law is that our clients do not fear the adverse consequences of their actions; they either do not believe such consequences will occur or they crave the danger. The risk of punishment for bad behavior does not outweigh the rush."
- 7:52 AM
June 24, 2005
It's been far too long since I've been able to pass along a story of law out in the Channeled Scablands. Here's the latest from Moses Lake:
Legal eagles find moral support in new partnership
I would tell you my initial reaction to this photo, but then I'd lose my coveted "Nice Blogger" award. Lord knows that indigent defense in Grant County can use an integrity infusion after the last guys. I will pass on this comment from the lawyer-head on the right:
"Over the years, there have been a lot of folks, I'm convinced, and I think it's amply documented, who have even pled guilty to or been convicted of crimes they may not have committed, have been sent to prison for longer than they should be there, and I think that there are old cases like that that should be relooked at," Ahrend said, adding that he does not want to target or criticize hardworking public defenders.
- 10:30 PM
Inspired by Alaskablawg, here is my National Criminal Defense College group, Section D, from July 1998:
Instructor Steve Rench, me, Elizabeth, Susan, Luther, Horatio, Bonita, Mel, Donna
A fine band of brothers and sisters for a fine boot camp.
- 7:47 AM
June 23, 2005
Even though Alaskablawg has been in Macon, GA, you can still get your dose of Last Frontier legal practice courtesy of Stephen thomas russell martin:
That second client's driving, road-side alcohol test, and arrest were all videotaped... there was this audio tape of an interrogation, during which the cop takes a break from questioning, goes to the bathroom... and the mic he's wearing captures the event, everything. You can't do that on television!
- 10:36 PM
This site is displaying oddly on Firefox, though not it seems on Internet Explorer, a reversal of the usual order of things.
Perhaps you've noticed the big empty space at the end of the most recent post on any page here - this page or any archive page. The byline and comments line that should appear immediately underneath instead is lollygagging until all the items on the side bar have scrolled by.
Any blog technicians out there?
- 9:51 PM
Let's go round about Ken's neck of the woods - Warrenton, VA, to be exact - to watch justice in action:
Mr. Ashwell pointed at the lawyers one by one.
He told public defender Amanda Shulz he would drop her client's drug charge.
"And you're just going to kick that other charge because it was a bad stop, right?" the public defender asked.
"It wasn't a bad stop," Mr. Ashwell fired back, adding that he planned to prosecute Ms. Shulz' client for assaulting a police officer. "He can't assault my officer."
"Are you bringing (the heroin charge) back on Term Day?"
"Maybe I will, maybe I won't," Mr. Ashwell winked.
Here's the article: Criminal matters - County prosecutors try cases and cut deals with defense attorneys
(which is also Virginia's entry in this month's "Most Pedestrian Headline" competition)
June 22, 2005
Much thanks to "Anonymous Author" for giving me permission to reprint this blawg commentary on my speciality - ineffective representation - and more particularly, Rompilla v. Beard:
In a nutshell, the Court held that a couple of p.d.s were ineffective in their representation of a capital defendant, as they failed to review a case file that the prosecutor had noticed his intent to use at the time of sentencing. Souter wrote the majority opinion, and Kennedy wrote the dissent - 5-4 decision.
I'm not going to completely beat this case to death, because it's going to be done more thoroughly and better elsewhere. But I'm a little annoyed at the unworkable requirements the Court is thrusting on criminal defense attorneys - esp. public defenders (p.d.).
I think the clarifying point (and the point that should have been made) is that *capital* defenders should be held to a different standard with respect to ineffective assistance - that is, with so much at stake, you have to be thorough. Souter, however, uses incredibly broad language that can be read to apply to *all* criminal defense cases.
My first day on my misdemeanor rotation in the p.d.'s office, my boss took me to my office, and on my desk were two stacks of files - he said, "That first stack of 40 are your pre-trial conferences; that second set of 40 is your sentencings. Sentencings are at 9, pre-trials at 1." And that was every week. Now, I can tell you, without revealing any client confidences, that I didn't pull all 40 of my sentencings' 9th grade records that day so I could present mitigating evidence. Do all 40 (actually, for my 6 month rotation, give or take, all 1,000) get thrown out on ineffective assistance grounds because I didn't review every page of every file of all of their prior convictions (including some guys with 3 pages of convictions), AND review all prior mental health records, AND review their education records? It's absurd. The opinion could have only been written by someone who never did p.d. work (or criminal defense work, for that matter).
Now, on the actual facts themselves, yes - the case should be bumped back. The p.d.s should have reviewed the old case transcript, especially with two warnings from the State that they'd be used in the sentencing. But my gripe with Souter beyond that goes to several case-specific points:
1) He calls them "unprofessional" - yet they reviewed 3 mental health experts' reports, interviewed 5 family members, and attempted to get additional information from a very uncooperative client (again, something Souter has never had to deal with) - I can tell you, that's a LOT of work for p.d.'s to do. To do that work, you basically have to neglect the rest of your caseload . . .
2) Souter essentially demands that the p.d.s review the *entire* prior conviction file, when the State actually only gave notice of intent to use a single testimony transcript.
3) Souter assumes, errantly, that files of all prior convictions are down the hall, and that you can just pick them up at lunch. Wrong - prior convictions will be in different cities, different counties, and different states. Let me tell you - even getting a copy of an old criminal file in the county just one over is a NIGHTMARE.
4) Souter sounds shocked at the contents of the one assessment, about being beaten, sleeping in the attic, etc. - well, I can tell you, you're going to get that assessment almost every time you do one - I've read stuff similar to that too many times to count. Judges aren't impressed by it, nor are juries.
5) And, more importantly, the disparaging tone that Souter casts on these attorneys is sickening, esp. given that they're p.d.s. It's pretty clear that they busted their asses trying to fight off the death penalty, and Souter all but equates them to that attorney that slept through his client's trial. Again, it's the hallmark of someone who's never done the biz.
Of course, mind you, I'm not entirely jazzed about Kennedy's dissent, which basically just plays the "this guy is a bad guy" card (duh - he was up for the death penalty), but at least he recognizes, correctly, that: "[t]oday the Court brands two committed criminal defense attorneys as ineffective -- 'outside the wide range of professionally competent counsel,' . . . --because they did not look in an old case file and stumble upon something they had not set out to find."
So, to summarize - yes, the case should have been thrown back (if the guy is, after all, retarded, he's not subject to the death penalty) BUT Souter creates, essentially, a new, unworkable rule for every p.d. in the country, and simultaneously disparages them if they're unable to do the impossible. I'm really disappointed in Souter on this one.
Anonymous Author: doing the legal heavy lifting so I don't have to. We now return you to lightweight stories of lawyer angst and foibles.
My Shingle - Why You Just Can't Take Your Client's Word For It
Mark Graber - Death Trials as Games
- 6:49 PM
June 21, 2005
Here is an excellent post about TXpublicdefender's first murder trial, just completed.
What I wouldn't give for that much exhilaration post-trial. I lost another one today, and nothing so intense as a murder, but a Burg 2. I really thought we had a misdemeanor trespassing there. Unfortunately, it seems that the jury noticed that the bicyclist headlight, which had been around my client's neck when he came through the hole in the fence on the surveillance video, had migrated to his forehead by the time the cops found him amongst some opened boxes and scattered goods.
That, and the gloves he put on after clearing the fence. Facts beyond dispute.
The jury having finished their county-provided lunch and duly returned a verdict of guilty, I had the afternoon to get a couple of in-custody clients sentenced, and then a few hours to go over my next trial notebook and talk to my next client in jail before my next trial starts up tomorrow morning. It's a residential burg and four counts felon with a firearm, much more pen time exposure.
All this, and still time in my merry rounds today to attend a a six-month performance review held by my boss in my honor. It's been a bad day, please don't take a picture.
But honestly, nothing so bad as today for Indiana and her client. She has my sympathy and regards.
- 10:43 PM
June 20, 2005
Okay, you can find individual public defenders who suck, but the system is to blame:
50 minutes÷113 people = 26.55 seconds per case
I try to image the late and great Johnnie Cochran as a public defender. I wonder if this building would have beaten him down.
Three guesses; first two don't count.
- 7:17 AM
The quote is from Hinds County MS public defender Tom Fortner, who is leaving Mississippi in a better state than he found it:
Public defender Fortner leaving - Legal champion for area's indigent moving to Arizona with family
Fortner is praised in legal circles for ensuring poor defendants receive fair trials throughout his 25-year career... "He knows more about public defense in Mississippi than anyone," said Andre de Gruy, director of the state Office of Capital Defense and former assistant attorney in Fortner's office. "He's the person that we've all been following for so long." Fortner lasted in a legal specialty that sees high turnover. Public defenders usually face the public's ire for representing their clients, who often are sent to prison.
Always looking to the ones who last; maybe they could give CLE's on how they do it.
- 7:00 AM
June 18, 2005
A fun Miami trial story, with a long digression about the Marlins and a Ramones simile no less:
This case involved exotic locales, courtroom chaos — and baseball, too. Pretty much a trifecta of glory for this reporter.
Here's the punchline:
"You have to give me a couple minutes, Dave," the lead defender said. "We have statement here for a guilty verdict. We didn’t even write one for not guilty."
Read the whole story here.
- 10:29 AM
June 17, 2005
June 15, 2005
Gideon and David Feige are both commenting on positive changes in the works for the indigent defense system in Louisiana.
Apparently, if Feige's post is to be taken at face value, some of the reforms involve hiring British cops and driving on the left side of the road.
- 7:59 AM
June 14, 2005
Say a child support enforcement agency has hauled someone into court for lagging behind on child support payments when, in fact, the person was up to date or even ahead of his payment schedule. That might be a fact that an independent fact-finder might want to know. It might be reasonable for that someone's lawyer to try to ferret out that information from the accusing agency.
Maybe so. Maybe not in North Carolina.
Dept. Of Social Services Sues Durham Public Defender For $10,000
Rather than expecting the government to respond to discovery requests, Social Services says that the public defender should have acquired much of the information himself:
"If DSS had to gather all the data, it might slow the urgent collection of child support for deserving mothers."
Having worked in both camps, I think that arguments that expecting the IV-D bureaucracy to play by the court's rules will impede the urgent collection of child support are usually followed by the sound of a loudly-buzzing b.s. detector from the vicinity of the bench.
Perhaps our respectfully dissenting NC colleague can shed some light on this.
Update: and so he has.
Update 06/19/05: The p.d's office will pay $58.00, and child support workers will tunr over the information, and stop practicing law.
- 12:07 AM
June 13, 2005
As you know, I'm always right there on the cutting edge of criminal justice trends, so Friday afternoon I'm covering Mental Health Court, and Sunday morning I'm reading this in the local paper:
Specialty courts help cut costs - Innovations to break criminal cycle add to system's savings.
(This would also explain why that photographer was following Bob around:
Either that, or that '70's orange upholstery is coming back into style.)
It's a good article about the problem-solving court approach, and other changes being adopted by the justice system here in the South Sound. By lumping the changes in the Office of Assigned Counsel together with Drug Court and Mental Health Court, readers could get the impression that public defenders are problem solvers, innovators and dollar savers too. That's not bad publicity:
While hiring more public defenders and running programs such as the county's drug court and mental health court take money from the general fund, officials say the changes are paying for themselves. A $400,000 investment in new attorneys already has been made up in savings at the Office of Assigned Counsel. The office added five attorneys to its seven-attorney staff this winter, along with two new support staffers.
Here's a graph from the Daily O of the shift in indigent defense spending:
"We're spending less money and giving better service," says OAC director Sally Harrison. How bad can that be?
- 12:00 AM
June 10, 2005
I have been looking at what I thought was "meth mouth" for at least seven years now. My old colleague WA probably still remembers looking at the tooth that one of his meth clients deftly
extracted broke off in mid-interview and placed on his desk, and that was in 1999. Imagine then how validating it was to learn that all this time we weren't imagining things. As of June 11, 2005, "meth mouth" officially exists; it's been recognized by the NY Times:
...(M)ethamphetamine seems to be taking a unique, and horrific, toll inside its users' mouths.... a perfectly healthy set of teeth can turn a grayish-brown, twist and begin to fall out...
The condition, known to some as meth mouth, has been studied little in dentistry's academic circles and is unknown to many dentists... But other dentists, especially those in the open, empty swaths of land where methamphetamine is being manufactured in homemade laboratories, say they are seeing a growing number of such cases.
Wait, Times readers, it gets even worse:
Mountain Dew... has become the preferred drink of methamphetamine users.
Huzzah! Those of us who've lived and practiced in those "open, empty swaths of land" can only say, "Thank you for noticing, New York Times, now we know the problem is real!"
From the molars
to the cuspids
flecked with foam...
God bless dentistry in America (my home sweet home).
- Toothless in Zion: Some Utahns are really pretty, 'til they open their mouths - a good article with icky meth teeth pictures from the Desperate News.
- Thank you for the work you do, psychoBOB. Don't give up the fight.
- Seems that the student newpaper at the University of Idaho scooped the New York Times on meth teeth over two years ago.
- 10:28 PM
Seth Abramson has returned from the NLADA training in Dayton with some fresh insights about public defense in the USA:
What I learned is that the sort of caseloads we see here in New England (55 to 80 distinct clients at any one time) are in no way representative of public defense in America. In fact, it's far more typical for a public defender to have 200 to 250 clients at a time. Perhaps it's no surprise, then, that I met, in Dayton, a multitude of honest, hard-working, well-intentioned folks who were absolutely and irretrievably in over their heads.
My only quibble is, he needed to go to an out-of-state CLE to realize this?
- 10:00 PM
June 09, 2005
Christian County public defender Thomas R. Snider died... Tuesday morning after being involved in a car accident last week. Snider, 26... was on his way back to Hopkinsville... after visiting a client at the Caldwell County Jail around 1:40 p.m. June 2 when the accident occurred.
"Tom was loved and respected by all of his colleges and all of his clients... He'll be sadly missed in the justice system."
Public Defender Investigator brought the news and has information on how one might send condolences.
- 8:06 PM
This is a really interesting - while occasionally unappetizing - legal travelogue from our colleague at Alaskablawg.
Years and years ago, I was looking at a job announcement with Alaska Legal Services. The opening was in Kotzebue I think, but possibly it was Bethel. Anyway, the kindly person I talked to said, "Have you ever been here? You really should see it before you apply."
I never had, and never did. I still never have, but thanks to our man in Napaskiak, I can imagine bush practice a bit better today. Thanks, man. Keep the pictures coming.
- 5:45 PM
Thanks to Mike of Crime and Federalism and Ken at CrimLaw for this cautionary tale from the Darwin Awards, on how not to transport meth precursors; trousers usually make a bad containment vessel for volatile chemical reactions.
Reminds me of a hung jury I got once on a defense of unwitting possession of meth. In closing argument, the prosecutor drew himself up to his full height and declared, "I know what's in my pants."
- 12:15 PM
June 08, 2005
CrimProf Hodnicki of CrimProf Blog today features the Clarence Darrow Death Penalty Defense College and its director, Andrea Lyon, who forthrightly says that the college is
"not about innocence. It’s about saving people’s lives."
I can vouch for both the college and the director.
June 07, 2005
Frontier justice is still alive back home in Idaho:
Sixth District Judge Peter McDermott ordered Kimberly Stutzman to serve two years probation and told her public defender, John Souza, to get her "a one way, non-refundable bus ticket" to California.
No word whether he ordered the deputies to pack her a sandwich.
- 5:48 PM
June 06, 2005
Following up on that "rat out your client" revision to RPC 3.3, and reviewing the coming changes to my new state's rules of professional conduct in general, I clicked on the "Suggested Rules of Professional Conduct as submitted to the Supreme Court (showing additions and deletions in accordance with GR 9(e))" (a Word document, sadly), and noticed that some excess verbiage had been stricken:
(g) Constitutional law defining the right to assistance in criminal cases may supersede the obligations stated in this rule
Sort of captures the spirit of the revision, don't you think?
- 5:47 PM
Did this trial the second time around today. The cop testified that my client admitted to him knowing that the items were stolen. My client testified that he never said that; he said that the cop wanted him to make a taped statement implicating the guy who sold him the items and to do a controlled buy from the guy. My client refused both, to the cop's displeasure.
(the order in limine was that 1. the cop could testify as to the seller's drug dealing, and that based on his training and experience (and whatever else might help get a conviction), drug dealers are known to trade in stolen merchandise, but that 2. the cop could not testify as to my client's involvement with drugs, if such there be.)
The pisser is, it's more than likely that my client was telling the truth. In my training and experience. I couldn't get the jury to go there with me. Verdict: - second place. I'm sensing that there must be a position opening up at Juvy, 'cause I'm feeling like I'm about to get sent down to the minors.
- 5:21 PM
June 05, 2005
Public defender's job is to protect individual rights.
It's a profile of Orangeburg County (SC) public defender Andrew Brown.
"At all times, you're dealing with people who have rights," Brown said. "You're dealing with people, regardless of the circumstances, who need your help. I think we are doing the public a service," he said.
And don't forget,
...of those who are proven to be guilty? Brown said he falls back on the motto, "But for the Grace of God, there go I."
- 6:09 PM
I have a hard time imagining that anyone who actually, you know, represents people accused of crimes could have voted for this:
Good sense or bad counsel? Rule would make lawyers reveal clients' lies in court
A big change proposed to one of Washington's lawyer-ethics rules has criminal defense attorneys worried that they will have an even tougher time earning their clients' trust -- and worse, be forced to rat them out.
What exactly was wrong with the current rule?
...in Washington, lawyers can't knowingly offer false information in court, and they can't put their client on the witness stand if they know the client will lie. An attorney who later realizes a client has lied and can't fix it -- by persuading the person to tell the truth, for example -- usually asks to be removed from the case to avoid becoming part of the deceit.
What about the new rule?
It means lawyers who find out that their client has lied in court could be required to tell the judge. "It really destroys that sense of trust that clients need to have in their attorney... There's no reason to create this rift."
- 1:58 PM
June 03, 2005
Follow Portland, Oregon public defender Chris O'Connor on the assembly line at the Multnomah County Courthouse:
O’Connor, 29, has been a public defender for about a year and a half... Idealism flows out of him only in a measured way, but it is there. “Sometimes yours is the only voice these people are going to have in the whole process,” he said.
Decent guy; cut-rate system
Some other good work that this young p.d. has done.
Stumptown Confidential - PDX past in postcards and photos.
- 12:37 PM
June 02, 2005
Here's some news from that big law school in the U-District in Seattle, about the Innocence Project Northwest (IPNW). To me at least, the moral of this story isn't exactly clear:
Law students defend convicted felon
Innocence Project: last resort for many
It's about a three-strikes guy whose lawyers' oral advocacy at the trial level did not inspire confidence:
"I mean, I will start preparing, but sometimes -- I don't know -- a little sleep might help or something," Samuel told the court.
"You'll have to excuse [my notes]; my kids got a hold of it last night and wrinkled it all up," Gant told the jury.
We old dogs are taught an eternal verity from one of the law student pups:
"In general, if you are poor, you get bad representation"
Finally, the interns on white horses arrive:
The IPW took his case and, two days after Independence Day 2004, he got a second chance at life.
But what's this?
The 9th U.S. Circuit Court of Appeals decided his fate last week and upheld his conviction. He had been represented by public defenders in all his other cases, but this time was different.
He was represented in one of the highest courts in the country by two law students from the Innocence Project Northwest (IPNW) at the UW School of Law.
The court's decision is the culmination of a year's worth of preparation for the students.
And that has made all the difference.
(I couldn't find this on the Ninth Circuit's opinions search page, so I'm left to taking the student newspaper's word for it.)
Update: Trial Ad Notes from U-Dub found it:
The 9th Circuit affirmed the district court's denial of habeas corpus relief, rejecting a claim of ineffective assistance of counsel... Easter v. Fleming, 2005 WL 1189611 (9th Cir. May 20, 2005)...
That blog is a good resource, particularly for Washington State practice. Unfortunately, no me Westlaw I.
In one of those curious follow-ups, Trial Ad Notes' next post takes off from a positive profile in the "Washington Law and Politics" of a p.d, who turns out to be the same sleepy lawyer (Samuel) who represented Virgil Easter.
Bad Dawgs? Unleash the lawyer!
(and for balance) Go Cougs! And keep going! To jail!
(sadly they've got nothing on Boise State's Cam Hall.)
- 12:48 PM
June 01, 2005
John Wesley Hall, Jr. is a good man. He may or may not remember talking me through an ethical minefield years back in Twin Falls; I imagine he's helped hundreds of us criminal defense types out of similar jams. Thank you, NACDL, and thank you, Professor.
So let me recommend Law of Criminal Defense.com, the website supporting his book, Professional Responsibility in Criminal Defense Practice (2005). 34 chapters, some 5000 footnotes, and he still finds it in himself to link to my silly blog! Check out the book too if you get the chance.
On the website, scroll down to The Rules:
§ 1:1. The Rules [from the book, without footnotes or citations]
Rule No. 1:
Your word is your bond. Always live by this rule...
Rule No. 2:
Listen to your gut...
Rule No. 3:
Always be loyal to the client...
Rule No. 4:
Never trust the client, his or her friends, witnesses, or relatives. Trust only yourself...
Rule No. 5:
Say nothing or do nothing that you would be afraid to read about in the newspaper or in a transcript or hear in a courtroom some day...
Rule No. 6:
Properly handle the fee like your career and livelihood depend upon it, because they do... (okay this one doesn't apply to me, but it may to you)
Rule No. 7:
The lawyer should not be the one to go to jail...
Rule No. 8:
Be the best lawyer and person you can be...
I will try, Mr. Hall. Have a safe trip to Sierra Leone; I owe you.
- 9:12 PM