A meth trial, with a snarky narc

Spent a day in jury trial, my last as an Idaho p.d. Does your state have these, one day felony jury trials? Picked a jury early in the a.m. Out here we do voir dire Donahue style, as a group, rather than the old-fashioned one venire-person at a time. Judge started jury selection, taking most of my good questions, then the prosecutor did her prosecutor thing. One standard fair and balanced prosecution question - "well, do any of you think that if we just legalized all drugs, then all of our problems with drugs would disappear?" - and a brave hand raised up. An older working guy, G d bless him, stated, "well, yes, I've seen too many families broken up when someone goes to prison, and mostly it's a victimless crime, and we need more treatment and less jail..." and on and on. This prompted a second hand up: "They should decriminalize marijuana." (this was a meth trial, but the thought's appreciated) Heads were starting to nod in agreement. Of course, none of the friendlies made it onto the jury, but while it lasted it was beautiful.

First state's witness was a state narc. Just happens that he was off-duty and at a garage sale when my client and his friend drove past very, very slowly, setting off the narc's Spidey Sense. My clients have all the luck, right? Narc turns out to be a classic running witness, and I'm spending half my time going, "objection, non-responsive, move to strike, I say whoa there", til he comes up with this gem of this-will-really-help-the-state's-case provocation: "The Defendant wasn't behaving in the way a member of the innocent motoring public would..." At that I'm off to the races, and once the jury's escorted out, six years' worth of appreciation for state narcs and their methods come pouring out. Hope they'll order the transcript when I'm gone. Mistrial denied, but it was liberating, that and knowing I will never have to face this guy in court again.

My client and his friend had the bad luck of stopping to meet another friend two doors down from where the narc was buying knick-knacks. That friend has the bad luck of coming out of his house and leaning into my client's car "in what based on my training and experience I observed to be a drug deal," speculated the narc. ("Overruled!") He climbed in, while the narc phoned dispatch for some uniformed assistance.

(We broke for lunch after the narc's testimony. During the break, I was told that the narc supposedly was overheard saying, "I hope I can get out to the desert today and shoot some coyotes." Made me glad that after he finished testifying, when the judge asked if he was excused, I said "subject to call." Somehow he didn't get recalled all day. Oh well. As the song says, "true men don't kill coyotes". Neither do men who haven't been released from their subpoenas.)

By contrast, after Detective Svengali comes the good cop, who certainly knows his shepherd from his malinois. I've always enjoyed K-9 cops and gotten along with them; something about working with dogs seems to keep them decent. This officer takes his non-human partner everywhere, so when the call came, man and dog were on the trail. My client then made some bad choices, like driving around the narc who was standing in the street badging him empathically, and driving away from the K-9 police cruiser with its overheads and sirens going. Furtive movements by my client were observed, a digging in the pants motion here, a hand moving toward the dash there. A previous bad choice had lost my client his driver's license, and here he was behind the wheel, so once he came to rest, the K-9 officer testified helpfully that he was identified "with his Idaho Department of Correction ID card." Jury's escorted out one more time, "mistrial!," "denied." And then comes the part where the German Shepherd finds the meth in the hole where the radio used to go, in the dashboard between the driver and the passenger...

If it was just a matter of equidistant meth, this would have been a fine constructive possession case. As it was, the trial took six and 1/2 hours. Jury deliberations took four: second place. Damn.

Post conviction, no relief

The office got a copy of the judge's opinion denying relief to the one murder client who's ever been through a murder trial with me (Udell was co-counsel). After trial, after sentencing, and after appeal, our clients get another sliver of a chance through the filing of a petition for post-conviction relief, in which they can raise a number of issues that may not be considered on appeal, such as ineffective assistance of counsel. In this instance, counsel meaning Udell and me.

The murder trial was almost four years ago. Since then, a new attorney helped the client with the PCR, a lawyer duty-bound to raise every questionable call I made, and the same prosecutor who put my client away defended my handling of the case. It's considered due process. In general, I think that most P.D.'s come down on the "do no harm" approach to responding to a PCR. You'd like your client to get another trial, or a lighter sentence, or some kind of a break. Some trial attorneys posture like they're infallible, but most are willing to concede (under penalty of perjury!) where they came up short or made a mistake.

So I'm not all happy and pleased about being exonerated, or having my trial work labeled "reasonable." Where I let my client down was before the trial. Shortly before trial, we were offered manslaughter, fifteen years max. Many of our cases come down to a moment of clarity like that. I share the blame for us leaving the offer on the table and her to her own choices. So it unfolded: the forensic pathologist who didn't stick to the report, the children who didn't recant, the client who couldn't testify, the defense that couldn't be made (if anyone knows how to run a battered woman's defense at trial where the client neither takes the stand nor acknowledges the act, I would truly like to learn). And she's serving life.

We talk a lot about respecting our clients' autonomy, and their ultimate choices, but things get muddled when the client is risking life in the pen. This was a plea bargain that deserved to be backed up with some paternalism, or some bullying. She needed to take it. We went around and around with her, but in the end we honored her choice to go to trial, and she'll never be free to make any choices again. I've been more forceful and much heavier with the two murder clients I've had since, but I still can't take to heart the notion that trading the DP for life without parole for a woman with no priors, or bargaining for 50 years for a 23-year-old man, or getting an attaboy from the system for the way I handled the trial that bought my client life in prison almost four years ago, is any kind of honor or victory.

2006 Update: Ultimately the Idaho Court of Appeals ruled that I was ineffective in failing to request a continuance during the trial to hire my own forensic pathologist, once the state's expert changed his testimony. See Murphy v. State, 2006 Idaho 31154, __ P.3d __ (App. 2006).

An Idaho small-world note: the opinion was written by Judge Gutierrez, who knows me from my first job at Legal Aid - I worked with him, and house-sat for him for part of the summer I studied for the bar. Honestly, the IAC finding stung, but I appreciated his praise for the 'candor' with which I fell on my sword.

Attorney-client relationships

* The other day I met with a client who was extremely frustrated and pissed off: at the world, at the system, at me, at the railroad job of the former offer of two months transmuting into nine months, just for getting another drug charge and a bail jumping charge (strenuously denied in the teeth of the court minutes).

In our previous discussions, my client had been on the outs and in civilian clothes. This time in jail orange, I saw something I hadn't noticed before. Inked on the right side of my client's neck were the words

TRUST
NO
ONE

* Today in attorney visiting I finally got to see an actual issue of the "Presumed Innocent" publication that's been going around the jails. My client brought it to our meeting. Rather than a newspaper, it's a glossy magazine with lawyer ads (out-of county ones) and pages labeled "Bails and Bonds," "Legal Research," "So You Want to Generate Conflict with Your Court-Appointed Lawyer?" and so on (okay, so I didn't see that last page, I inferred it). I was dying to leaf through my client's magazine, but I had to stay on task and review discovery. Instead of getting my own copy, I got a long list of cases and statutes to copy off for my client. I left the lock-up with a new confidence-building task of sorts, and a new appreciation of "Presumed Innocent" magazine's target audience.

Plead or go to trial

I am in trial. It certainly is not going the way my client predicted to me that it would. A wise federal p.d. once told me, "each jury trial is really three trials: the trial you prepare to do, the trial you do, and the trial you wish you'd done."

Before the next time I am in this situation, I am going to re-read Alaskablawg's latest post about persuading clients to plead. As he puts it,

"how much is it appropriate for defense lawyers to 'lean' on their clients to plead?"

Excellent question. I have been doing a spate of trials lately. Each case has had one or more serious vulnerabilties from a defense standpoint. For instance, I would count a Miranda'ed, admissible confession as a bad thing to deal with in trial, wouldn't you? And each case has had a determined, autonomous individual at the wheel behind it, exercising his absolute right to go to trial. So we go to trial, my client and me.

I wish I knew the answer to Alaskablawg's question, and I worry that I need to re-calibrate just how much I 'lean.' His post has me thinking back to the very worst thing I've done professionally: I had a murder client, and I didn't lean hard enough. Close to trial, the state offered my client manslaughter, maximum of 15 years, and I didn't lean hard enough on my client to accept it. We went to trial instead, and my client's predictions about how the trial would unfold didn't come true. This client is doing life now.

I'm tired. Back to the latest trial in the morning. Crimlaw's thoughts on Alaskablawg's experience, and tangentially, mine, are here .

My game needs work

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.

Hypocrite lecteur, mon semblable, mon frere

Yesterday Ken lead me to a decent "how-to" essay about blawgs by our colleague Fed 84. It would seem that I've been going about this blawg business all wrong.

I've noticed looking back that I haven't been telling as many war stories as perhaps I should, on this site and in Real Life. In its short time, the blawg has migrated from personal disclosure more often to a collection of news clips about public defenders behaving badly, of which I suppose Fed 84 would say snarkily, "The point is that we can read news stories and check news.google.com ourselves. What we want in a blawg is you." Sorry, but some days you won't get me - the clients have already gotten me first.

It may be age setting in, or it may be a peculiarity of this corner of the law, but I find that I don't tell war stories as I did as a young pup p.d. The thing is, unlike most divisions of The Law, as you move up the ranks of public defender-hood, the work gets worse, not better. Still fresh out of law school, I could have regaled you with the tale of Hamburger Man, the client who was arrested driving down State Street in Boise late one night clad only in a jockstrap, with several pounds of morally - affronted ground round beside him in the passenger seat. Or the story of my unfortunately - surnamed indecent exposure client, Mr. Dick, or our sweet-natured cross-dressing Nez Perce client, Melvin. Or of the mistaken identity defense in a jury trial on a gas-n-go, where I published a certified copy of an Idaho driver's license issued to my client's "brother," "Guido Bini," looking astonishingly identical to my guy, and asked my client on direct and in all young p.d. naivete, "where's Guido now?," to be answered, "he's shootin' smack in Tampa!" (Yes, we lost, and Judge Hamilton flipped me sh*t about it for years, even at her retirement party)

Somewheres along the way, though, probably during the move up from misdemeanors to felonies, Lost in the Funhouse gave way to The Tragic Sense of Life. Coming home, the potential responses to "what did you do at work today?" became darker and scarier until it seemed more considerate to respond with, "oh, the usual," or with nothing at all. The charming liar, "Guido's" brother, became the lying jailhouse snitch in the Kuzmichev murder trial. The gentle Native American client stepped in front of a speeding semi. And as we got older and had kids, the endlessly amusing weenie-waggers turned out to be perping on children not so different from our own.

Everybody hurts. By the third murder case or so, unless you've become a cynical armor-plated bastard (which is not the worst coping strategy for the job), you're moved and more than a little shaken by the harm humans can endure, and can inflict on others. We still produce and consume plenty of in-house black humor at Public Defender Incorporated; it helps clear out the emotional space for dealing with the next client. But keep it amongst us. Most days, it feels unseemly to be broadcasting a client's f*ck-ups and Stupid Human Tricks to the wider blawgosphere, no matter how hillarious. I'd probably broadcast prosecutors' and judges' Stupid Human Tricks if I didn't know that they were in the audience of this blawg's microcast and would take it out on me and the next 20 clients, so if I'm reticent about telling tales, it's not from a noble impulse. Besides, telling it the way it really is could tend to scare off the few idealistic young things in law school who I'm counting on to relieve us middle-age p.d. plodders.

Ultimately, when I talk here about being a public defender and how it makes me feel, the talk necessarily is about my relationships with real individual humans, my clients. Can't have one without the other. A few months ago, I wrote about how I felt about a child protection client, who came all the way back from the brink, and decompensated in a spectacular way on the very day she was to get her daughter back. I went back to the post shortly after and deleted most of it. It was too personal for both of us. As it happened, I deleted the thing a week before I applied for the job which I just accepted, a job which has no child protection or dependency duties. This week I saw two of those clients I wrote about, one in the holding cell firing me from her termination of parental rights trial as it was about to start, the other expressing her disbelief and grief that her parental rights had been taken away. Their stories will not entertain or edify, and they aren't mine to tell. Sometimes empathy is better expressed by silence.

Of two minds on "holistic" lawyering

An article from Tucson law professor David Wexler:

Therapeutic Jurisprudence and the Rehabilitative Role of the Criminal Defense Lawyer

In this article, I will identify the potential rehabilitative role of the attorney from the beginning stages -- possible diversion, for example -- through sentencing and even beyond -- through conditional or unconditional release, and possible efforts to expunge the criminal record.

Or perhaps "habilitative" for the percentage of clients who were never habilitated the first time.

In the area of criminal law, the practical side of therapeutic jurisprudence has, to date, been reflected more in judicial activity than among the practicing bar... Since judges are in an enviable position to influence local legal culture and climate, it is likely that courts will encourage the development of a criminal law bar attuned to these concerns. Indeed, even without a push from the judiciary, some lawyers have begun to practice criminal law in a specifically therapeutic key. Mostly, interested lawyers will likely augment a traditional criminal law practice with the more holistic approach suggested by therapeutic jurisprudence, and the present article seeks to point interested practitioners in that direction.

I'm of two minds about this, most decidedly. One side is the therapeutic lawyer, getting my client probation and some programs, suggesting some ways to lift that monkey off his back. Tempermentally, and as for wanting the best outcomes for my clients, that side suits me very well. The other mind, though, belongs to the lawyer sworn to be a zealous advocate, standing in the breach and poking holes in the government's case, finding ways to get the client off, jurisprudentially speaking.

Particularly when it comes to beating substance abuse, I'm almost ready to say, by any means necessary. Ever seen how your clients look healthier when they've been off the street a few days? I've been in the position at the meetings before Drug Court, knowing that it could do a strung-out or spun individual client some good to stay in jail a bit longer, yet advocating my client's desire to get out and be free. I know, possibly free to use again - talk about your "negative freedom."

But it's a problem when the Drug Court offer comes before discovery comes, before the lab test comes, before any meaningful chance to vet the case for defenses and suppression issues, and when the price of admission is a guilty plea. The client has to roll the dice, and if he opts out or washes out of Drug Court, it's case closed.

When the therapeutic authorities come to push, some times clients shove back. Some clients reject Drug Court, which is stickier for them after they've signed up for the program. That's when the iron hand of coercive rehabilitation comes into view, with "graduated sanctions." I'm always going to be skeptical of government officials saying, "we've punishing you for your own good." Paradoxically, though, in the case of problem-solving courts, and with substance abuse, there's some scholarly support for the claim that it works. I want my clients to be free of cops and addiction. What's a criminal defense lawyer to do?

Reminds me of the time the juvenile prosecutor told my juvenile deputy, "you don't get it: we have to convict your client before we can help her!"

(The historian and critical theorist Christopher Lasch had more than a few interesting things to say about the ways that the therapeutic state can override liberty interests and clients' freedom.)

Link via CrimProf Blog.

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.

International afternoon at juvy

* It was good to get a deferred disposition for a client who's just turned 18. It's been supremely important to him to keep a felony off his record, as he explained to the court commissioner, so he can travel and do military service. Until today, I always assumed whose military he meant: today he came into court wearing this:My client's a mensch.

* I set a trial for another client accused of being a minor in possession or consumption of "intoxicating liquor." This is what he's said to have possessed:Rakija! Balkan firewater! What on earth is slivovitz doing in a suburban South Sound high school? I've tried the stuff a few times, and when my client tells his principal he had to take the bottle away from a drunken kid to protect the kid, I'm giving my client the benefit of the doubt.

Hard civics lessons

Can I tell you how discouraging it can be to bring bad plea bargain news to a client? Particularly to the client who pleads with me, "why doesn't that prosecutor want to help me?" What can I tell my client about how rare that kind of prosecutor really is, and that how by luck of the draw, he didn't draw one like that?

Abitrary. Capricious. Not typical of most of my dealings with the local D.A.'s, but the hard edge gets exposed often enough to notice, like the time a prosecutor blew off my version of how my client's witnesses would testify by saying, "any scumbag can get any other scumbags to say whatever he wants them to." "They're right here, would you like to repeat that to their face?" said I.

I feel bad for the clients, but it's worse I think for the family members who haven't done anything - even by such a prosecutor's moral calculus - to deserve this treatment. They sit in court hearing their loved one villified on the record, and joked and laughed about by the lawyers and cops when the judge is off the bench. Worse probably is the social trust that's broken when it's the family who've set this awful machine in motion, calling law enforcement to get sons or daughters "the help they need," and getting nothing but warehousing in return. Worst yet, in my home town, such a call got a beloved child killed by the police.

Bonus links:

Indefensible may be on to something: too much Law and Order, not enough Perry Mason.

Jay Farrar could be singing about half the addicted and homeless clients in my caseload:
"where's the crime in a streak of bad luck?"

Mistrial

Second trial in the new jurisdiction today. Again, a disagreement over a client of mine and somebody else's property. In my clients' eyes and mine, the State would have a time of it getting past reasonable doubt, and we could show the jury a decent guy made into an unwitting trafficker in goods that he didn't know were stolen.

Things were going pleasantly, with an above-board prosecutor. He and I had a few laughs with the jury panel, and then a helpful in-court clerk guided me through the color code for the local three-highlighter method of peremptory challenges. My client was in a good mood, and I was looking forward to putting on his testimony. The first two civilian witnesses were fine, inflicting no devastating blows.

Then came the turn of the Overly Helpful Detective, ten year veteran of the force, who volunteered a bit of information that was so important that he just had to share it with the jury. Strangely, the same information had not been important enough to include in any police report or any page of discovery. I'd done several interviews with my client, and it was news to me. To be fair, perhaps the detective didn't consider the info unusual enough to burden the prosecutor with it until today, and only comprehended what a shame it would be not to speak up until he was on re-direct:

Pros Q: "What was the relationship between Mr. Client and Mr. Other-Guy?" (who sold him the goods)

Cop A: "Mr. Other-Guy was a drug dealer who sold methamphetamine to Mr. Client..." (approximately: I didn't write down the exact quote because I was too busy picking up my jaw from where it dropped)

Bless her heart, Her Honor granted a mistrial. Thanks for playing the game, Mr. Detective! See you at the re-trial! Enjoy your conversation with the prosecutor on the way out the door!

Bonus link:
(review)

Rompilla-room

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.

Updates:
My Shingle - Why You Just Can't Take Your Client's Word For It
Mark Graber - Death Trials as Games

How Can You Not Defend 'Those People'?

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

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

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

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

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

"Everyone, even the guilty criminal--especially the guilty criminal!--needs a companion, a friend, someone to stand with him and for him."

"The defense lawyer's job is to force the system to acknowledge that the defendant is not just a social misfit, or a statistic, or a criminal, but a human being with hopes and dreams and fears. A human being who, like any of us, stands in need of repentance and redemption."

"The question for the Christian lawyer is not, 'How can you work to get a guilty person off?' The real question is, 'Will you stand by this person, this flawed and sinful human being, and speak a word on his behalf?'"

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

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

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

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

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

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

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

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

We now resume our regular secular schedule.

Gracias a Dios y a DOSA

Today I am grateful for the Drug Offender Sentencing Alternative (DOSA), which will give my client half the incarceration time he was facing after trial, with the second half to be served in the community and in recovery. A wonderful outcome if he can stay clean and motivated.

Even if my client's PRP (personal restraint petition) is coming, and I know it is, because we discussed how to file it, today I am relieved and happy.

And I confess (to you, my brothers and sisters): I didn't think that my client would get it, but the judge thought otherwise.

All our trials, Lord

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.

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.")

God damn the Pusherman

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

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

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

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

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

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

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

FL: "not much... I don't already know"

The endless problem of big caseloads getting in the way of maintaining individual attorney-client relations, from Florida Today:

Cliatt denied a new attorney

For the second time this year, Judge Tonya Rainwater denied child molestation suspect Daniel Cliatt's motion to dismiss his public defender -- unless he wants to hire his own attorney...

... Cliatt... told Rainwater on Tuesday that he has spoken to his court-appointed public defender only four or five times in the past year. "It's not effective for my case, and I'm not taking part in my defense," he said. "I have asked him to file several motions and they haven't been filed yet. I haven't been kept abreast of anything."

Public Defender Michael Dwyer defended his work on the case but admitted he is besieged by cases. "My client is correct in that I have seen him only four or five times in the past year, but there is not much he can lend to his case that I don't already know," he said. "It's not lack of diligence or lack of vigilance on my part. I've had nine trials in the past three and a half months..."

Dwyer added that attorneys in his office are not clamoring to represent Cliatt. "Not many people are willing to take on a quick case in which there's 1,200 years in the balance for my client," he said...

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

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

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

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

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

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

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

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

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

Playing possum

"Other peoples' problems, they overwhelm my mind.
They say compassion is a virtue, but I don't have the time."

Yes, I've seen this. Yes, I see that you have too. Other weeks I'd leave it at, damn that's funny and yes, that's true, but this week I'm adding, whoa, somebody's having trouble with the whole sublimating-rage-against-the-clients thing. Where do other p.d.'s and I come by being so angry? The public-pretender thing, it just rolls off by now. And it's not my freedom that's being taken. Of the two of us in the jail visiting booth, at the end of the conversation I'm the one who gets to leave and go home. But there it it is, a raft of negativity from attorney-client relationships. I still don't have a handle on the emotions this job conjures up. Still, I've got to give the Craigslist writer some solidarity. It can be a healthy form of venting, converting frustration into black humor. It's better than watching our clients compound their mistakes and feeling nothing at all; "the more you suffer, the more it shows you really care, right? Yeah, yeah, yeah."

Well, I care, but I'm feeling a bit overwhelmed and immobilized. Here am I in my new p.d. office going on four months now. This is the chapter in travel books which falls between the time after the euphoria of arrival has faded, and before the traveller has acquired any sense of competence in his new surroundings. Since arriving I've been laying low when I can, hanging back and observing, and trying to figure out as much as I can before commenting, for as the "Dances with Clams" commercial put it, "he is a newcomer, and unfamiliar with our ways - soon he will be eating at Ivar's" (though really, Spud has better fish-n-chips).

Somehow, in the past weeks I haven't felt much like writing. This post by AmbImb, about whether or not to blog about a summer p.d. internship, and the general sussing and scolding tone of most of the comments in response, have set me to thinking about this blog and the ways that it ebbs and flows. Lately it's been ebbing more than flowing. Consciously or not, I've been posting less personal material, or at least less material directly connected to my dealings with my clients in and out of court. In its place, more and more links to stories of p.d. and client foibles, like this one:

An Arizona couple is in the Ada County Jail accused of taking a $37 cashiers check, forging a new figure of $317,000 and attempting to use it to buy a new $300,000 Meridian home... Kathy Lynn Jean, 42, and Robby Joe Jean, 39, moved furniture into the home... over the weekend before they were arrested at the home Tuesday..., Boise police detective Wade Spain said. "I don't really have a clue how they thought they could get away with it," Spain said. "It's just totally odd. I guess they thought they were smooth talkers and could get away with it."

Objectively speaking, and I think polling data would bear me out on this, this sort of human-foibles post has more entertainment value than the alternative:

Damn, I am tired of condescension and superiority from prosecutors, particularly from the sort who would accidentally hit a button on his laptop, turning on his PowerPoint presentation during a private defense lawyer's closing argument, and splashing the word GUILTY on the big screen (literally) behind the lawyer's back. Damn, I am tired of second-guessing and distrust from clients, particularly from the sort who commit offenses in the double digits putting themselves in danger of doing 120 months or more, who reject an offer of 90 months to serve and instruct me to go back and ask for one year, who end up getting a stipulated exceptional sentence, below the standard range, of 60 months, and who are convinced that their lawyer screwed them over.

I hope that I get the hang of this new jurisdiction soon. Some aspects of criminal defense are not universal after all, and I have a new respect for lawyers who can move easily between two alien worlds: Washington and Idaho, say, or state and federal court, I imagine. It's like struggling to come up with the Spanish word for something, and remembering only the French word. It's like that recurring dream from old times where I sat down to take the bar exam and it was printed in Arabic. I misunderestimated this challenge. When I watch some of the private contract lawyers in court rattling off mid-ranges and acronyms like they've memorized the entire sentencing guidelines manual and two volumes of the Revised Code, I wonder exactly what sociology experiment my new boss was conducting to hire me over them.

"Whereof one cannot speak, thereof one must be silent."

So you see my conundrum, especially in this town where harshing another's mellow is a gross misdemeanor. Any reason why this blog should reflect my discouragement, except by omission? Perhaps some things are better left unblogged. AmbImb is right to be concerned, as are others, about how many work-day details to put on-line. Just one example: I blogged my last trial before I moved, and without intending to, I alienated the one district judge who treated me with respect, and who I never would have considered disrespecting. Why do that? At the same time, if the law job is important as it is to me, then I'm going to blog about it, else what's a blawg for? I'm not quite inclined to adopt the advice to avoid blogging about work, which is kind of a hard discipline to maintain in a blog that is primarily about work.

Consequently, I think I may just have to suck up my ambivalence about blogging the job and muddle forward. And there is that sweet colorable suppression issue that popped right out in a client interview this morning that I'll get to work on (car passenger, driver's arrested on a warrant, no warrants on my guy, gets handed a citation for no seatbelt, not arrested, asks if he can cross the street to make a phone call, cop tells him words to the effect of, 'no, you can't leave, I haven't searched you yet').

I need to get back on this horse - just don't snicker too loud as I haul my big ass up on the saddle.

Bonus link: Bah! If you've gotten this far, this from Injustice Anywhere will restore your spirits.