January 31, 2005

An honest judge

Monday in court, one of my clients was told from the bench:

"Your next court hearing will be February ___ at 9:00 a.m. Please come back to court prepared to be found guilty at that time."

The worst attorney in the world

I found this kind and funny eulogy for a criminal defense colleague on the Livejournal blog of a Midwestern public defender:

Tom was a public defense attorney for many years before he went into private practice... It was visiting day at the prison and Tom had to see his client in the big cafeteria, surrounded other prisoners and their families. The room was crowded. And the client was pissed. Tom tried to explain that he'd done all he can, but that the prosecutor was being stubborn. The client insisted (unreasonably) that he was innocent and a good attorney would have been able to get the case dismissed. Tom explained that the prosecutor simply did not believe the client's wife or the alibi she provided. The client was incensed. He stood up. "Everyone! Hey everyone!" he shouted, his voice booming around the large cafeteria, "This (and here he pointed to Tom) is the worst attorney in the world! You better pray you never have him representing you."

Now for the rrrrrrest of the story...

Maybe some of us need to take the refresher course on "The Case - Against - Auschwitz" first

Hello? Unfortunately-Named Continuing Legal Education Classes Department? Is there still time to sign up for "The Case For Auschwitz"?

Friday, February 4, 2005, 8:30-11:45 a.m. (Registration: 8:00-8:30 a.m.), Seattle University School of Law, 3.00 CLE Credits

Honestly, it looks to be really interesting, and especially timely, but the title makes it sound like it's 10% off with your Aryan Nations club card. Puts me in mind of the complaint (Gilbert Gottfried's I think) about "The Sound of Music": "How come the Nazis didn't get any good songs?"

(Bonus link goes to a promo for the 2005 Sundance Audience Award world documentary about a hero of our times, "Shake Hands With The Devil: The Journey of Roméo Dallaire", showing tonight on CBC.)

Update: For another documentary about Dallaire and the Rwandan genocide, tape or TiVo "The Last Just Man," on the Sundance Channel February 2 at 6:05/5:05 a.m.

January 30, 2005

Poor kitty

Remember, ladies and gentlemen, we don't choose our clients:

"This week's Clarence Darrow Award goes to Riv(ersid) Co(unty) Deputy Public Defender Addison Steele, representing Tiger Rescue's John Weinhart in the animal cruelty trial. Weinhart and Marla Jean Smith, who pleaded guilty, were also charged with child endangerment for reportedly letting their child near the backyard alligators and tigers. PD Steele explained that the 8-year-old boy knew how to handle the animals -- and use tranquilizer darts."

It could happen. (I don't know how I missed this story earlier.)

January 28, 2005

Never again

I'm veering far away here from the usual public defender angst and foibles; next time I promise I'll write about something I know about. For now, though, my heart is full, as they say. Yesterday CBC carried live coverage of the Auschwitz observance, and last night showed a musical memorial film filmed within the concentration camp.

Here is a playlist.

Without phony uplift or sentimentality, it broke my heart. Have you ever heard, or heard of, the music of Viktor Ullmann? The bastards murdered him in Auschwitz. Before that, the U.S. government denied him a visa as he tried to escape. The program featured excerpts from his opera, The Emperor of Atlantis, written in the Terezin camp. In the opera, Emperor Überall has declared a total and unending war of all against all, so Death has decided to go on strike. I'd never heard this before, so wrenching, sorrowful, troubling and gorgeous at once:

Come, Death, our worthy, honoured guest, into our hearts descending.
Lift all life's burdens from our breast; lead us to rest, our sorrows ending.
Make us prize all human worth; to other lives awaken.
Let this commandment be our truth;
The great and sovereign name of Death must not be lightly taken!

Words fail. Other pieces I'd heard before, but never in such context. The soprano solo from the second movement of the Gorecki Third Symphony poured the grief and hope of the "Zdrowas Mario" into the snow falling outside a barracks door. The "Europe" section of Steve Reich's Different Trains gained gravity and urgency from the players' surroundings and the images of rails leading into the camp.

I've never been to Oświęcim. I have been to Salaspils and Ponary (Paneriai), and heard the trains and train whistles still passing right nearby, shades and echoes of other trains, to the camps and the killing fields, or to Siberia and the Gulag. And of course I've been in Bosnia and Herzegovina, long after we all congratulated ourselves and proclaimed, Never Again. "Never again is what you swore the time before," as the song says.

Steve Reich began Different Trains by recalling journeys he took by train as a kid in America during the 1940s. The second movement imagines the very different trains he might have found himself on had he been living in Europe at that time. I think of my roots: had my people not left generations ago, would my family have been among the tormenters and murderers? Had I lived then and there, can I be so sure that I would have acted justly? Or is it just as easy to imagine myself not objecting, or even participating, proclaiming my client's guilt in a show trial perhaps, or writing banal, evil little memoranda justifying the torture of my country's enemies? As Mark Mazower lays out in Dark Continent: Europe's Twentieth Century, at the beginning of the war it was by no means clear that good was going to triumph, so why not be on the side that's winning?

So thank G d our side liberated Auschwitz, even if it was the Red Army that did it. It was a sad and haunting commemoration, and I truly hope that the dignitaries were paying attention, even if one couldn't be bothered to dress respectfully for the occasion:

(I shouldn't be surprised that the man chose personal coziness over moral obligation; it wouldn't've been the first time.)

Sadly, the fight against the devil doesn't transform us into angels. Taking or claiming to take the side of good in the fight against evil doesn't excuse indifference to the suffering of others. Respect must be paid, to the living and dead. I need, we need, I think, to remain attentive to our own fallen-ness and our own capacity for making the same mistakes and choices that "good Germans" made, and for doing evil while telling ourselves we're doing good.

In the words of functionaries and yes-men so cavalierly justifying torture in the name of heimat- oder staat- sicherheit - homeland- or state- security, it's not so very hard to envision the beginnings of the Lucifer-like conceit that lead to the Wannsee conference, to the Stasi, to the Gulag, to Auschwitz. They must not be lightly taken.

Favorable dicta

You ought to read the latest installment of Will Work for Favorable Dicta for one of the most heart-felt, personally revealing law student posts in a long while. Bless you, E. Spat.

January 26, 2005

Cabela's good, Caballes bad, Caballes+Whren very, very bad

From Alaska, where the right to be left alone is sacred, Alaskablawg spells out just how bad the prognosis is for the Fourth Amendment once you read Caballes in light of earlier precedent:

What I have not seen anybody say yet... is how chilling this decision is when combined with Whren. ...(I)n Whren v. US, the Supreme Court held that the subjective intent of a police officer is irrelevant in determining the legality of a traffic stop. So, if a cop wants to stop you because you fit a 'drug courier profile', the cop just has to follow you long enough to make a minor traffic stop and then pull you over. With Cabellas, that cop can have a drug dog in his car and there is nothing you can do about it constitutionally.

This essentially has been SOP for patrol officers who've happened to have a canine companion riding along when they've made a pretext stop. When you already have a dog on board, it doesn't take much more time during the traffic stop to walk the K-9 around the outside of the car you've pulled over. Once the dog indicates, you order the occupants out and let the dog in. In the past I'd been successful (PDF file) arguing against the delay in bringing a drug dog to the scene, but that'll be remedied easily enough, I imagine, by assigning K-9's to all patrol vehicles. In a few years' time, it'll be hard to remember when it wasn't perfectly routine for a speeding ticket to come with a thorough canine sniffing of your car.

In such subtle and undramatic ways does our freedom erode. Now, can somebody tell me why after reading our northern colleague's post, I feel a such powerful subliminal urge to stock up on outdoor gear at ?

January 24, 2005

Unleash the hounds

Illinois v. Caballes, the drug dog case, has been decided. "(A) police officer does not need reasonable suspicion to have a drug-detection dog circle a vehicle properly stopped for a routine traffic stop." Orrin Kerr has analysis.

PDF slip opinion here.

Remember, don't blame the drug dogs; they're natural libertarians.

(lv CrimProf Blog)

Update: there's a full-throated howl of protest over at Grits for Breakfast. Check it out.

January 21, 2005

Lawyering becomes eclectic

Welcome, visitors from E-dicta and the Charleston School of Law. Thank you, Professor Russell for the link. "Eclectic" is a fine word to describe the array of people and situations you find as a practicing p.d. Let me demonstrate through some of my more eclectic old posts:

- A meth trial with a snarky narc

- How can you not defend those people?

- Vertical Ben

- God damn the pusherman

- Tats that

- Not gonna let them catch the midnight rider

Browse around the archives, have a pleasant visit, and when you're done, check out my cool colleagues in the blogroll to your right.

(Bonus link goes to "Morning Becomes Eclectic," a fine show on KCRW.)

Alma mater murder

A student at my old school, The College of Idaho, aka Albertson College, was killed off-campus this week in what law enforcement says looks like drug dealing gone bad. Shot four times, meth, marijuana, and $3000 cash found in his house; the alleged shooter is being arraigned today.

I nostalgize quite a bit about college life, probably a bit more than is supported by the record. We took a fairly libertarian or libertine view of controlled substances back then, pre-Nancy Reagan and pre-crank, before the advent of the cold cook method. All-organic, nothing but benign yerba buena, shrooms for the hippies, and cocaine for the rich kids. It was a simpler time, eh? Now that meth is big man on campus, the thought of going to school with agitated tweakers and violence-prone dealers scares me. Now that I'm a dad, the thought of my kid going to such a school scares me utterly.

Poor bastard. Poor C of I. Poor Caldwell.

Update: Dying declaration - law enforcement says that the victim identified his killer to 911 and first responder

January 20, 2005

Why-o, why-o, why-o (one reason I left Idaho)

I was back in Twin all of 36 hours this past weekend, and standing in the 10-items-or-less checkout line at Albertson's, when I couldn't help but admire the fine tats on the back of the neck of the customer in front of me. In Gothic script, the letters spelled out the surname of one of the prominent families of the Magic Valley underworld. Then I recognized the guy: my chief deputy represented him shortly after his brother was shot, and very shortly after, toward the alleged killer in open court, he had made comments and gestures that could be taken the wrong way (e.g., a pointed index finger and a cocked thumb).

I figured I needed to shop for a few more items.

January 19, 2005

"How many of you want to be on jury duty every day until you die?"

Good old Grant Loebs. The elected prosecutor back home met with the local chapter of Court Watch, a group "(f)rustrated at what they perceive to be inadequate criminal sentences and a high number of plea negotiations."

The group would like to see more cases go to trial instead of being plea-bargained. "They could up their percentage," one said.

"How many of you want to be on jury duty every day until you die?" Grant replied. "You can't have 700 weeks of trials in Twin Falls, Idaho."

"Twin Falls County has only two district judges, two courtrooms, five prosecutors, four public defenders and about 700 felony cases to deal with each year. Trial time averages about one week. When the police officer involved in the case has to testify, he or she has to be in court, sometimes waiting to be called upon, which leaves less protection on the streets, Loebs said. He added that Twin Falls County is no different from anywhere else, with about 95 percent of cases being plead."

January 14, 2005

Difficult clients ar lietuviskai / на русском

Three years after several Los Angeles-area business owners were kidnapped, suffocated and thrown into a reservoir, their alleged killers remain in custody awaiting trial (The case had a tangential connection to Twin Falls, Idaho, through one ex-USSR resident of Twin who's now doing federal time). Federal prosecutors say it could be a year before the death penalty trials of Iouri Mikhel, Jurijus Kadamovas and Petro Krylov, fine specimens of Homo Sovieticus all.

It's been a pretty interesting case of intrigue and very bad acts featuring some very scary bad guys. The Russian emigre community in L.A. has blamed the "Baltic Mafia". I'm just guessing here, but I imagine that the Baltic emigre community has blamed the "Russian Mafia."

I don't know Iouri Mikhel's national origin - I'd wager Moldova or the Moldavian SSR - though I read somewhere that he's very industrious.

Dale Rubin, a court-appointed attorney representing Mikhel, said he has not asked his client if he is guilty or innocent.

Well, would you?

(p.s.: liquidating your enemies worked up your thirst? Time for Leninade!)
(lv JD at Southern Appeal)

January 13, 2005

How criminal law is like opera

I was futzing around on Google and found a quote from Hildegard Behrens, kick-ass soprano and former lawyer:

"In criminal law, you have to find out if a person is responsible or has special circumstances. If he drives and kills somebody and he's drunk, you take that into account. You go step by step in law, and that's what you do in opera, too - finding motivations, reasons, cause and effect, emotions, guilt, responsibility. The intellectual training and discipline that it takes to solve a juridical case are very good for the approaches to a role."

When I was a 3L, I took an extended road trip in the middle of the semester. I never do think about the C- in Remedies I got back then, but I can still feel the tremble from hearing La Behrens singing the "Ruhe ruhe du Gott" from Walküre that night at the Met.

An A1 tribute to a K9 officer

The Twin Falls paper has a glowing obituary for Ukas, a truly exemplary police dog.

Ukas was a German Shepherd, and really a creampuff at heart. His handler, Matt Eden, said, "I think his biggest claim to fame was the number of bites he did not give." He was the first pointy-eared dog my son ever met, way back when he was a stroller baby, and he helped my wife overcome her unease with the breed, both paving the way for adoption of a pointy-eared shepherd cross pound puppy of our own, Antenna.

Eden said, "He wasn't vicious by any means." Good-bye, Ukas.

Back in the saddle again

Last night in the jail attorney-client visiting booth:

"Hi, I'm John and I'll be your public defender this evening."

"Oh, didn't they tell you? My family hired me a real lawyer."

YAY! Now I really feel like I'm back in business!

January 12, 2005

How can we miss you if you won't leave?

"There is some confusion" as to who is the public defender of Greene County, New York.

Greg Lubow declared Monday that he is still the county public defender, claiming the county illegally appointed an interim successor. County Attorney Carol Stevens, however, said Lubow should "cease and desist" calling himself the public defender.

She added that despite threats from Lubow, Assistant Public Defender Jon Kosich took the interim position and by doing so prevented a fiasco when the courts came back into session after the New Year. Depending on who you ask, Lubow's term either expired on December 31, or is still going strong.

Things are no less confused over in the Venango County, PA, public defenders office. The local paper reports cryptically that "(t)here are indications that chief public defender John C. Lackatos and assistant public defender Paul Yessler have resigned from their positions."

"Officials are mum regarding the status of Lackatos, who has served as chief public defender for about two years.... State police have charged Lackatos in connection with a hit-and-run crash Dec. 18 in Sandy Creek Township."

The poor dumb p.d. has been charged with accident involving damage to an attended vehicle or property, accident involving personal injury, driving on a roadway laned for traffic, reckless driving, duty to give information or render aid, period for required lighting, notice of change of address and two counts of failure to give immediate notice of an accident to police. One can imagine the glee of local authorities as they piled on the charges.

Sharkey's day in court

Update to a previous post: A court commissioner issued a gag order in the case of three adolescent boys charged with killing three poor fishes at the Aquarium of the Pacific in Long Beach, CA.

The order prevents attorneys in the case from talking to the media, and came during a hearing to decide whether Deputy District Attorney Sheila Callaghan should be recused from the case. A motion by a deputy public defender representing one of the boys accused Callaghan of bias, largely because of comments she made to the local news early in the case. The recusal motion was denied this past Tuesday.

The case centers on three middle school students accused of torturing and killing two sharks and a ray after breaking into the Shark Lagoon exhibit November 8.

January 10, 2005

A salute to the contract public defenders

There are 2600 private attorneys in Massachusetts who accept court appointments to represent indigent clients. Meet one of them:

Sometimes court is like Monty Python and the Holy Grail. I'm the Black Knight in the scene where King Arthur and his companion, Patsy, are riding imaginary horses, clopping coconuts to imitate the sound of hoofs. They encounter the knight at a bridge, and he says, "None shall pass." A fight starts, and the Black Knight gets one arm chopped off, then the other. "Just a flesh wound," he insists. There is more fighting, and, one by one, his legs are cut off. Finally, there's nothing left but a stump of a knight. Arthur starts to cross the bridge, but the knight says, "Running away, eh? You yellow bastard. Come back here and take what's coming to you. I'll bite your legs off!"

That's an appointed criminal-defense attorney. That's what we do.

(In Minidoka County, Idaho, the p.d. contractor calls himself a "clean up batter" - different time zone, same pummelage.)

Update: Alaskablawg has an extended post inspired by the story about the Massachusetts private attorney here, saying, "The article is a fairly accurate reflection of the daily life of most public defenders/court-appointed attorneys." He's right; it is. Read it here.

January 09, 2005

Damn shame

In a step backwards, Yazoo County, Mississippi is closing its public defender office, and returning to the time-honored system of judges picking a lawyer to represent a defendant instead of assigning the defendant to the public defender's office.

That will cut down on inefficiency, corruption and favoritism for darn sure.

Supervisor Herman Leach said he led an effort to eliminate the public defender's office because he has gotten five letters and numerous complaints throughout almost two years from defendants, their families and potential witnesses.

Five? In two years?

In some complaints, defendants claimed they waited months in jail without seeing their public defender, Leach said. And nearly all have said they were advised to take plea bargains rather than go to trial to try to get a not-guilty verdict.

Well, then, the solution is to have no public defender's office, of course.

"I don't know if they did the crime or not, but there are people serving seven or eight years in prison on plea deals who say they're innocent," Leach said.

The supervisor surely is on the hunt for the real killers as we speak. I'd love to know the real reason why they're shutting it down, as would our colleague, deposed p.d. Peyton Taylor.

She was hard done by, and never notified of the grievances, she said:

"I've asked myself why they were so adamant about eliminating the system," she said. "It made me wonder if it's political."

(Bonus link: free legal download of "Damn Shame" by Jay Farrar)

Public defender versus shark lover

Does a prosecutor have to withdraw from a cruelty to animals case because she's a known animal lover? No more, I think, than a prosecutor has to withdraw from a domestic violence case because she's active with the local battered women's shelter.

Two colleagues in Long Beach, California think otherwise and have filed to get her off the case. Their clients maybe should be glad that the animal victims didn't take out alternative sanctions on their little juvy *sses.

Now, if it had been the prosecutor's pet shark...

January 07, 2005

January 05, 2005

Tip for attorney-client jail visits: try to stay on each other's good side

My new county jail has face-to-face attorney visiting, a great improvement over my previous venue. Back in Twin, defense lawyers and bondsmen got along for years with the relative luxury of a wire grid to talk through, and a narrow pass-through, lockable and unlockable by a deputy, for sliding discovery or pleadings to sign to the client. There was a big window behind your client through which jailers, inmates, and whoever else was on the floor could watch you, but otherwise you could conduct your attorney-client affairs in relatively hushed and confidential tones. Then a big contraband scare rolled through, and we were reduced to a sheet of plexiglass and one of those small slotted portholes to talk through. At times you had to put your mouth right up to the damned thing, or everybody next door in public visiting could eavesdrop if you weren't careful. It got tiresome.

My experience has been that building rapport with a jailed client goes much smoother if the two of us can actually sit down and have the semblance of a normal conversation. However, I'm a "big, husky" p.d. In at least one county in Wyoming, the p.d.'s are thinking that when it comes to some belligerent clients, good fences make good neighbors.

January 04, 2005

All is well, all is well

I'm emerging earlier than planned, largely to avoid Ken's dreaded 30 day policy, but also to acknowledge Marilyn's handling of the sentencing back in Idaho, as the fall-out of me losing my final trial there, then leaving for Washington. Client didn't get 7 fixed, as the headline suggests; it could have been a lot worse.

There still will be significantly fewer posts here for the time being as I acclimate professionally. Here on the South Puget Sound, it's been gorgeous, with crisp and cold blue skies, the Olympic Mountains visible in one direction, The Mountain (Rainier) in another. I've spent some time shadowing the other felony attorneys and learning the local folkways and customs of the courthouse, which do seem unduly lenient and even liberal to an Idaho guy. Ah well, I suppose I can adjust...