Off-topic: unbreak my heart

I've always been conceited about having a bigger heart than other peoples'. Last month I got proof from a cardiologist that it's true. In the morning, I'm going in for lap-band surgery to ease the strain a bit. After that, I'll be taking a load off. This silly blog will recommence sometime next week.

In the meantime, please enjoy this dog and cat photo.


Bonus link goes to "The 400-Pound CEO" by George Saunders (you can hear a reading by the author at "This American Life", beginning at 10:48 into the show).

Cause and effect

When I was going through some old posts addding new tags (or "labels" in Blogger Beta - speak), the updating caused this old post about "Should I Hire the Public Defender?" to pop up again on Bloglines, which caused Shelley and Gideon to write their own posts, which caused ACS of Defending Those People to write an extended comment which turned into a post of his own, which caused Scoplaw to make hilarious comments of his own.

I guess that it's lucky they didn't see this.

Bonus links go to a counterpoint - Criminal Defense: Public Defender Or Private Criminal Defense Attorney?

Any warm body with a law degree can hang out a shingle and call himself a criminal defense attorney. In fact, many of those who can’t get a job at the public defender do just that... With a private attorney, you get your choice of lawyers, but will you choose wisely?

and an explainer - Why Rapists and Murderers (and Pillagers) are Defended

Gideon is on

After an absence, Connecticut's Gideon of "a Public Defender" is back, better than ever.

He's just done a fisking of "Should I Hire the Public Defender? Don't Gamble on Your Freedom", by noted legal expert K.A. Ray:

...Unless of course, the PDs office makes it a habit to hire the WORST attorneys, thereby leaving the cream of the crop for private practice. I've seen no proof of that, though. Maybe someone can provide me with administrative manuals that show this...

(The Menagerie is also duly impressed by K.A. Ray's credentials).

AS: prisoners in paradise

A report on doing time fa'a Samoa, from fellow Idahoan Sean at Potatoes to Papayas:

Another interesting part of American Samoa is the jail... Our neighbors down the street are both public defenders. They inform us that the front gate of the jail is never locked. Nice. Apparently, the rule has been that if a prisoner is not back to the jail by curfew, the police go to their house and take them back. It's a simple system...

Another attorney friend... told us that before one of the hurricanes that hit the island, the prison guards, afraid they were unable to take care of the prisoners, sent them all home. On one condition. They all must come back after the hurricane. And they all did...

WA: in Grant County, novel "effective assistance of counsel" concept causing havoc for prosecutor

The latest from Ephrata, by permission of a couple of informed sources:

On Tuesday, a Grant County Deputy Prosecutor complained in open court - on the record - that the new group of public defenders were "interviewing virtually every witness in every case" and that this... conduct was "making it difficult" for police officers to get their work done.

The prosecutor complained... that the new group of public defenders were interviewing every witness, victim, and cop, causing the system to be overburdened. The implication was "why are they wasting everyone's time and money?" The prosecutor truly believed what he was saying.

In response, the judge simply asked, "Wasn't that the point to the ACLU lawsuit?"

From the land of sky blue waters

One of my jobs in college was a bit unusual. It was minimum wage, but it had good benefits. Officially it got listed on my resumé as "promotional character actor;" unofficially it involved hanging out in bars and getting my belly rubbed by Wrangler-wearing divorcées. While in disguise, of course:Now with Craigslist and an extra 500 bucks, I could suit up and relive those days.

p.s.: the drinking age was lower back then.

He's a rebel

Interesting insights into the indefensible Feige, one from the realm of law, one from left field.

From Law and More: You Gotta Lawyer For You

David Feige put together a book about loving what you do, even if that passion doesn't make sense to others or earn a king's ransom... (T)he legal system, as fascinating as it is, is just a prop for Feige to give his take on everything...

But Feige does learn something. It happens early in his career. He is craving atta boys from everyone be they clients or superiors. The hard-bitten Paula Deutsch, the rare public defender who doesn't burn out, gives it to him between the eyes. "You gotta lawyer for you," she tells the kid. And that probably is the theme of the book...

From Jane Genova Speechwriter - Ghostwriter: Our Defiant Streak - Marketing It For Big Bucks

David Feige, former Public Defender in the Bronx, has joined the growing number of us... who are able to market our defiant streak for success, on our terms. He tells us all about it in his recent book "Indefensible..."

But, of course, we have to position and package our defiant streak so that the pockets which can pay for it will buy it. Face it, the business media (WIRED, FORBES, FORTUNE) can champion the New Barbarians but the business-media folks aren't the gatekeepers we gotta reassure to let us in...

"Branding"? For public defender types (even if they're honorary p.d.'s)? What a world (and what are these 'big bucks' of which you speak?).

Bonus link goes to "Commodify Your Dissent" by Tom Frank.

WA: Okanogan County v. $507,070

From the Seattle Weekly:

Jack-Pot - Federal law lets the cops pocket anything seized in a drug bust—cars, boats, cash—and use it to fund the war on drugs. But when Jane Gerth found a half-million dollars in the Okanogan woods, the rules got more complicated.

Jane Gerth was taking a walk along the woody edge of a Highway 97 turnout near her home south of Oroville... A black and gold bag poking up in the weeds was something that instantly caught her eye.

Gerth, then 52, stepped through the weeds and tugged on the backpack. She couldn't lift it. She untied some straps, and then unzipped the main compartment. She stood back in amazement as bundles of $20 bills oozed out.

There she stood, alone with her dogs and, clearly, hundreds of thousands of dollars. Now what?

I seem to remember that the movie version starred Billy Bob Thornton.

Weekend Point Defiance Zoo blogging

If you're searching Public Defender Stuff's PD Blog Guide (or suggesting additions and updates), I'm listed there under "really really likes animals."

"it makes my head hurt. it makes my heart hurt."

Here are Throckmorton's latest adventures in public defense, with a sad - but - true epiphany about the Sixth Amendment:
while the constitution guarantees a right to counsel, nowhere does the law guarantee that a criminal defendant gets to have unlimited access to his/her attorney and have his/her hand held throughout the process...

if i'm truly going to do this work, i'd better build up a thicker skin. what i fear in that process, though, is crossing the line from thick-skinned to calloused... it's going to be a real struggle to compartmentalize how available i'll be able to be versus how emotionally involved i can become.

Stick with it, Emily. Most of us in the ranks are still trying to figure this out too.

WA: prosecutor - "age doesn't mitigate anything"

From The Olympian:

Drug dealer, 81, faces prison sentence

An 81-year-old man will spend at least 3 2/3 years in prison after he was convicted of four felonies Friday, including selling methamphetamine... and crack cocaine... Calvin D. Ott, 81, wore headphones hooked up to a microphone in Thurston County Superior Court so he could better hear the jury's verdict. Sheriff's deputies placed Ott in handcuffs after Judge Thomas McPhee ordered him taken into custody...

One commenter on the paper's website said: "Just because you're old doesn't mean you're not gonna commit a crime." I posted news of Ott's arrest last year.

Skelly Wright: now more than ever

"Secret arrests (are) a concept odious to a democratic society."

J. Skelly Wright, writing in Morrow v. District of Columbia, 417 F.2d 728, 741-742 (D.C.Cir.1969), and cited from left to right in our own time of crisis.

ID: public reprimand for prison's lawyer

From the Spokesman-Review's "Eye on Boise" (also noted in this month's Idaho state bar magazine):

Deputy Idaho AG sanctioned for reading inmate legal mail in ‘97

A deputy Idaho attorney general, Stephanie Altig, has been reprimanded by the Idaho State Bar in a case stretching clear back to 1997, for reading privileged letters between Idaho prison inmates and their attorneys – who at the time were suing the state over retaliating against prisoners for trying to access courts...

The 9th Circuit Court of Appeals... held that “department counsel’s actions in this case do not pass even the most lenient ethical ‘smell test.’”

"Why it took so long I don’t know," said Jack van Valkenburgh, head of the Idaho ACLU. Former Idaho Attorney General Tony Park, who serves on the ACLU of Idaho legal committee, said, "It has taken far too long, over five years since Judge Boyle made his findings and the court of appeals expressed its disgust with the deputy attorney general’s conduct."

How nice of you to say so

New blog:

"I ♥ Public Defense"
.

"If you have to throw up then throw up in my file folder"

Roxie at High Heels, Low Law on what it was like to be a 'public offender':

There isn't a training program or some type of mentoring so you learn how to practice criminal law on your feet. How many professions are there that require you to learn your job in front of a judge, in a crowded courtroom all the while trying to keep your indigent client out of jail and not get disbarred for doing something unethical?

WA: "an 11-year old girl running the investigation"

From KING - 5, here's a news item spreading a reminder throughout the Seattle viewing area of how damaging it is when cops target the wrong man:

Man tries to salvage reputation after wrong arrest

An Issaquah man is trying to salvage his reputation after being arrested earlier this year and accused of luring young girls. But prosecutors now say someone else was responsible for the incidents for which Robert Powell was arrested.

"I'm bitter. I'm mad. I'm angry. I've relieved ... I'm relieved," said Powell. But Powell blames Issaquah and Bellevue Police for shoddy detective work. "You know, you had an 11-year old girl running the investigation and some not-so-trustworthy cops," he said...

And the lagniappe - the real suspect turns out to be a lawyer:

That suspect, Jeb Burgess... allegedly exposed himself to... younger girls who would talk with him but that since he just became an attorney less than a year ago, he made sure the conversations did not turn sexual in nature...

And he really is one, though maybe not for very much longer.

Life is better with animals

My parking spot at Juvy is out at the edge of the lot where the landscaping meets the wetlands. Usually I'll see finches, juncos and bluejays there, and hear a frog or two. After this morning's court session I went out to the pick-up, rolled down the window, and sat behind the wheel for a while, shuffling paper and watching birds. After a few minutes I turned on the ignition, and a small raccoon jumped out of the arborvitae not five feet away.

He ambled a few feet further with that half-crouching walk that reminds me of my crabby old cat, but he was a young thing and brash. I half expected him to flash me the West Side gang sign. Instead, he stood up, looked me in the eyes and sniffed a moment, then sauntered into the cattails.

This afternoon, it was a rabbit that spooked and ran as I was passing the corner of the courthouse. I'd just had a client go away for two years, who'd PV'ed and come up short 22 months into a 24 month probation. I was glad for a wild animal companion, even if it was just a glimpse of a fluffy bunny butt and four lucky rabbit's feet heading away from me fast.

Caine Mutiny defense lawyer

Today I caught the last part of "The Caine Mutiny", a movie that you don't watch for the accuracy of the criminal procedure, but for the performances. Everyone remembers Bogart's Captain Queeg, rightly so. Particularly if you do the criminal defense thing, though, don't overlook the great job that José Ferrer does with the role of defense counsel Lieutenant Greenwald, a court-appointed lawyer who doesn't care much for his client.

Some quotes:

Greenwald: I don't want to upset you too much, but at the moment you have an excellent chance of being hanged.

Maryk: Lt. Geenwald, will you take our case?
Greenwald: I'd much rather prosecute.

Greenwald: I'm going to be frank with you two. I've read the preliminary investigation very carefully and I think that what you've done stinks.

Greenwald: If you wanna do anything about it, I'll be outside. I'm a lot drunker than you are - so it'll be a fair fight.

A caveat: these lines probably won't work as well in real life practice.

Bonus link goes to The Caine Mutiny: Not Just One but Many Legal Dramas by Norman Rosenberg.

Duty and honor

From the Seattle Times:

Guantánamo defense lawyer forced out of Navy

The Navy lawyer who took the Guantánamo case of Osama bin Laden's driver to the U.S. Supreme Court — and won — has been passed over for promotion by the Pentagon and must soon leave the military.

Lt. Cmdr. Charles Swift, 44, said last week he received word he had been denied a promotion to full-blown commander this summer, "about two weeks after" the Supreme Court sided against the White House and with his client, a Yemeni captive (Salim Hamdan)...

Bonus link: from Balkinization, here is a good (and long) contemplation by Scott Horton titled "When Lawyers Are War Criminals". It's dedicated to one moral officer and lawyer, Helmuth James Graf von Moltke, and in the comments brought this wish for the future job prospects of another:

A just outcome would be for the next administration to employ Lt. (Cmdr.) Charles Swift in the AG's office for the specific purpose of prosecuting administration officials for their war crimes. What a beautiful ending that would be...

Comment: Blogger Beta is blocking me from commenting, but I'd respond to the Swift-boating in the comments to say, it's true that I get some of my views from second-hand experience. My dad was a naval aviator in WWII and got in his 20 in the reserves. His first-hand opinion of military bureaucracy (occasionally shared with me on runs to the NEX at NAS Whidbey) probably wouldn't be changed by the way today's Navy handled an LCDR who can win at the U.S. Supreme Court. Another WWII vet, Paul Fussell, might refer to it as "chickensh*t."

NC: more live advice for prospective p.d.s

From the law school in Chapel Hill:

The UNC Public Defender Mentor Project and the Career Services Office are co-sponsoring this panel discussion with several of North Carolina's leading public defenders at noon on Monday, October 16th, in Room #5048... They will speak about their backgrounds and experiences and will consider the following questions as well as questions from the audience:

·What sustains you in your work? How do you deal with "losing" all the time? What qualities do you think are needed to be a public defender for the long-term?

·How do you avoid over-identification with your clients? How do you handle the fact that the criminal case may be one small aspect of your clients' already complicated lives?

I hope that current as well as future p.d.s are invited; they're gonna need more than an hour for this discussion.

"Sometimes your lawyer will have to tell you unpleasant things"

Here's reasonable, respectful advice to clients from Wandering Bell. Bell's a civil guy, but his words apply to people in the criminal system as well:

It's not that the lawyer does not believe you, rather it's that he is unable to prove what you are saying...

I'm using that next time. After my court trial this week, that one in particular is something I wish that my client and his family had realized.

Write heartfelt words, mentor future p.d.s

From U - Dub:

The Gates Public Service Law Scholarship program at the University Of Washington School Of Law is looking for guest authors for their brand new Public Service Voices Series. The Voices series will be bi-weekly columns on their website featuring a wide range of "voices" and a number of perspectives relating to advocates' experience in public service.

Whatever heartfelt words you have to share with students (the primary readership) will be of value. Students are always interested in knowing people's experiences and the reasons why they do what they do. The pieces can be short and sweet (700-1500 words is fine). Please contact Michele Storms at gatespsl at u.washington.edu or (206) 897-1836 if you are interested in writing for Voices.

I'm looking at you, Feige. Anyone else?

(You know, they say, "Each Gates PSL scholarship award will cover tuition, books, other normal fees imposed for University and UW School of Law enrollment, costs of room and board and incidental expenses. Acceptance of a Gates PSL scholarship represents a commitment on the part of each recipient (“Scholar”) to work in public service for five years following graduation." Doesn't suck.)

"Overruled for no reason whatsoever"

From Onion Radio News:

Rookie Defense Attorney Takes Overruled Objection Personally

"It's not fair - I didn't see that judge overrule the D.A. when he objected to my line of questioning..."

WA: Washington, my Washington

Now then, some things about my adopted state that I love unreservedly:

- my new U.S. senators, Murray and Cantwell, both voted against torture (my old U.S. senators, Crapo and Craig, both voted for it)

- someone went out and lovingly took present-day pictures of the location shots from Twin Peaks ("Twin Peaks, WA", link via Metroblogging Seattle)

- in some ways, Twin Peaks is a Washington State documentary (and some days, some of my clients and their families could be from there)

WA: indymedia on Oly port protesters

At least one A&C reader (thanks, Sancho!) was happy for the update from the local paper on the Port of Olympia protesters, who are now looking at a November 13th trial date in Thurston County district court.

(13 of the "Olympia 22." One of the flags is in black and red, the colors of anarchy and communism (and / or the FSLN); the other appears to be of the Palestinian Authority. One sign on the house reads, "Israel Out of Lebanon and Gaza." Being peaceful and nonviolent people, perhaps they're just blocking the other sign on the house which reads, "Hizbullah rockets out of Israel.")

There are other perspectives of course beside The Olympian's, or mine for that matter. One of the cool aspects of Olympia life is the numerosity of independent media for a city so small, bracing for a southern Idaho transplant. Local indymedia deliver a point of view much closer to the protesters' own, mostly saying "hooray for our side."

From Olyblog: Prosecution of Port Protesters

The prosecutor should drop charges or she's gonna lose big because she was almost laughed out of court yesterday!

From Works in Progress: Port and County Prosecutor team up to perpetrate political farce and attempted extortion

Again, it just illustrates that the prosecution is left to clean up the mess that sloppy [political] policing gives them. We should remember that the Prosecution is willingly complicit in that farce -- they could simply drop the charges...

The article suggests that if only the protesters had been successful, they might have saved the life of Fort Lewis SGT Gabriel DeRoo. It's heartwarming that their motives were pure - surely the DeRoo family feels their condolences.

Or it's obscene to suggest so, take your pick. Comrades: yes, I'm against the war, and I would defend you in court with all my cleverness and skill if I were appointed to represent you. However, you would not want me on your jury.

Oh, and p.s.: lines like this -

Most of the protesters are represented by an attorney or public defender...

- always piss me off.

WA: necessity defense okayed for Olywa port protesters

By Christian Hill of the Olympian, photo by Toni Bailey:

Port protesters win right to prove acts were justifiable


Seventeen people who will stand trial next month for allegedly trespassing on secured Port of Olympia property during a raucous May 30 protest got an early victory Tuesday. Thurston County District Court Judge Susan Dubuisson ruled that she'll allow them to use a "necessity" defense in attempting to justify their actions in trying to stop a military shipment from leaving the Port of Olympia...

I especially like this photo from inside the courtroom, a good tableau of life and law in Oly. The guy in the scarf is happy, the seated prosecutor is not. That's my OAC colleague Dave on the far left (of the photo, not the spectrum).

People who need people (are not necessarily the luckiest people in the world)

Another colleague fields the "how can you represent Those People?" question:

I'm a public defender because people need people. Because people are better than the worst thing they've ever done. Because I still believe there's some inherent goodness in almost everyone. Because without me people are just a docket number in the court system...

Yesterday at juvy

Dissatisfying: my performance at the detention hearing is so uninspiring, the parents of one of my kids hire a private lawyer.

Altruistically satisfying: they hire a good one.

Cynically satisfying: there's one less kid in my caseload.

Where do you summer?

Oh, if only I'd gone to HLS and got myself a gig teaching crimlaw at the finest law school in San Diego County, then I could dash off lines such as this:

...reminds me of the time I summered with the Public Defender's Office..

while tossing off sneers such as this:

He then takes the not-terribly-daunting Idaho Bar examination...

On the front page of Gonzaga Law School's web page, it prominently highlights the school's mantra. Which is: "Expect Excellence". Hilarious.

Tool.

The Honorable Harrigfeld

I want to recognize a fine man, my law school friend Bill Harrigfeld, who was sworn in today as a magistrate judge for Ada County, Idaho.

Of all the people who sat at my table for the summer 1987 Idaho bar exam, 66.67% now have been elevated to judgeships. I'm the 33.33%.

Types you meet in practice: the YMAL

The Menagerie conducts a little field anthropology:

There is a type of young, male lawyer that keeps popping up as opposing counsel in my practice... They haven't figured out that different people require different approaches, so they use the only one they've got: both guns blazing right out of the gate...

I find this really amusing. Unfortunately, YMALs do not appear to have a sense of humor... Their act makes me laugh, and the longer I talk to them, the more amusing I find them. This seems to increase their annoyance and the chest beating behavior escalates, which, in turn, makes me want to laugh, so I end up sounding even more bemused...

They also get jobs as interns in prosecutors' offices. Judging from our recent discussion, apparently some p.d. interviewers favor this sort of young lawyer too.

Weekend aircraft blogging

Joe and I used our free museum day ticket at the Museum of Flight in Seattle.





Look, says I, there's the Stearman PT-17 biplane, that's the plane Grandpa Joe learned to fly in. Look, says Joe, let's go build some paper airplanes.

"Shovel brigade"

Judging Crimes has some good reflections prompted by the recent NY Times series on small-town justice:

There's a disillusioning moment in every young lawyer's life. It happens when she stands at the podium, and clinches her argument with an unanswerable point, and looks up at the imposing figure in the black robe, and there's no light in the judge's eyes, just the blank impassive stare of the diplomat waiting for the translation through his headphones...

In my experience, the worst appellate judges tend to be highly successful lawyers who retire into a prestigious judgeship as the capstone of a career...

When those lawyers become appellate judges at an advanced age, and are asked to decide their first criminal cases, they begin with the assumption that any field so dominated by sub-optimal lawyers needs the touch of a high-class professional to set things right. So you get ignorant, sweeping decisions intended to tidy things up...

In my experience, you can find this at the trial court level too.