December 30, 2004

Should auld acquaintance be forgot?

old courthouse

The U-Haul is packed, more or less, the DI truck has left, and in an hour or so, I'll be off on the next installment of the adventure. I'll be back in a week for cats, in two weeks for wife, son, and dogs. I'm leaving this place where I married, where  my wife and sonPosted by Hello

were born, where my father-in-law, rest him, died in harness two hours after a pre-trial, and where somehow I came to rest and stayed put for the longest stretch of time since high school.

I first set foot in the old courthouse back in 1995, the day before my wedding. Months before, I'd applied for a job with the federal defenders, the first in a series of fool's errands to that august body.
(typical state court p.d. (center) interviews with federal p.d. (right) to bemusement of man of action (left))

They rejected me, and not for the last time, but sent my CV on to various Idaho chief p.d.'s who might have lower standards, including the chief in Twin, who invited me to interview. I'd found a job I liked in Washington State by then, as a prosecutor alas, but a civil prosecutor at least, but I figured, I'll be in town for a wedding, so what the heck, it'll be good juju for the future. What an odd day. I got the marriage license, met with the guy (who maybe didn't have the best people skills and surely would've fired my *ss within a year), ducked my ex-girlfriend the criminal defense lawyer in the parking lot, and drove around town buying mixed nuts and mints for the reception and listening to Kurdt Cobain yowling, "married...buried...yeah, yeah, yeah, yeah." The wedding was much more fun.

Somehow I must have intuited that I'd be back, and since April 1998, here I've been. My boy Joe arrived in 1999, in time to meet his grandfather. My practice became exceedingly interesting: I befriended a few murderers, I saw others recover, I made a few stands and won a few trials though I let down a few other defendants, but in general felt I could hold my head up when running into old clients at the grocery outlet. I'm proud that want ads under my by-line said "Class standing is less important than commitment and a sense of humor." I had some remarkable colleagues with smarts and heart at the Twin Falls County Public Defenders Office. You know who you are. If you don't know who you are, thank you Jon O., Paulie, Tony, Casey, Denise, Wells, Robert, Julia, Brett, Robin C., Bryan, Christa, Jack, L. Scott, Sandra, Charles, Teri, Ben, Susan, Robin W., Chris, Brody, and Marilyn. I leave an orphaned placeholder of a website to whoever can figure out how to update it. I haven't exactly finished my course, but I am taking it on the road now.

Consequently, this site will be going radio silent for a couple of weeks or so while I learn the ropes of my new posting. So it's farewell, Idaho, my old antagonist and friend, until we meet again.

Justice and honor

One of my heroes, Sister Helen Prejean has a timely and astrigent reminder in the New York Review of Books about George W. Bush, Alberto Gonzales, the death penalty, and the quality of mercy:

I already knew the substance of Bush's position toward Karla Faye, but I had never heard the last sentence of his press statement: "May God bless Karla Faye Tucker and may God bless her victims and their families."

Immediately after the statement, King turned to me for a response. When I heard Bush say, "God bless Karla Faye Tucker," I had to struggle to keep a vow I made to reverence every person, even those with whom I disagree most vehemently. Inside my soul I raged at Bush's hypocrisy, but the broadcast was live and global. With not much time to rein myself in, I took a quick breath, said a fierce prayer, looked into the camera, and said, "It's interesting to see that Governor Bush is now invoking God, asking God to bless Karla Faye Tucker, when he certainly didn't use the power in his own hands to bless her. He just had her killed."

I've never comprehended how the man can just mouth the words "Lord, Lord," and millions of good people will think he's godly. From Ricky Ray Rector to Karla Faye Tucker, W is no more moral than Clinton. I prize my autographed copy of "Dead Man Walking, and you can't just dismiss Sister Helen as a "liberal." Read her article.

In Idaho, by contrast, at the time the current president was living in Texas, we had a Republican governor with integrity and honor. In 1996, Phil Batt, to his eternal credit, and over the objections of the prosecutors and A.G., commuted the death sentence of Donald Paradis, a man who'd been wrongly convicted in 1981. But then, Phil was never seeking higher office.

(Bonus links to guitarist Bill Frisell and "Justice and Honor.")

December 29, 2004

U of I football murder defendant pleads not guilty

James J. Wells, one of two Seattle brothers accused of fatally shooting University of Idaho football player Eric McMillan, has pleaded not guilty in District Court up in Moscow.

Six other people — most of them Wells family members — also made initial appearances in magistrate court Monday on charges of lying to a grand jury.

Private attorney Tom Whitney of Moscow, who was appointed Monday to represent James Wells, said after the arraignment that he hasn't made a decision about whether to seek a separate trial or change of venue.

Moscow attorneys Greg Dickison and Charles Kovis have been appointed to two of the co-defendants. Kovis represents Matthew Wells.

McMillan, a starting freshman cornerback, was shot September 19 when he opened the door to his apartment. He managed to seek help from a neighbor and was driven to the hospital, but died about 11 hours later.

December 28, 2004

I swear I'm a lawyer! Why do you ask?

Not only has Professor Chin of Crim Prof Blog sent lots of first-time visitors to my fourth-tier blawg over P. D. Wannabe's epic saga, he's listed many other examples of non-lawyers playing make-believe. High good fun.

And just to keep everything on the up-and-up, my bar numbers are 3711 (Idaho) and 23936 (Washington State). You could look it up.

December 27, 2004

Left and right unite to fight Patriot Act

Gotta love Congressman C.L. "Butch" Otter, upholder of the small-government tradition of the Republican Party and an Idahoan's Idahoan, who's credited with co-authoring an upcoming law review article critical of the Patriot Act.

Good old Butch has done freedom a service by opposing the Patriot Act from the right and from the beginning. In the upcoming article, he is joined by U of I law professor and former ACLU board member Elizabeth Brandt to focus on the expansion of "sneak and peek" searches under the Patriot Act. Both authors argue that allowing such searches in any widespread way violates the Fourth Amendment.

The article will appear in the spring 2005 edition of the Notre Dame Journal of Law, Ethics and Public Policy.

(Bonus link to our other congressman, Mike Simpson)

December 26, 2004

SLTrib column: "freedom's heroes" for 2004

Tribune Media Services columnist Robyn Blumner offers "those individuals deserving of special praise for protecting our nation's liberty" in 2004. Among them:

* "Army Spc. Joseph Darby, a reservist in the 372nd Military Police Co...the soldier who sparked the formal investigations into the abuses at the Abu Ghraib prison in Iraq";

* "Frank Dunham Jr...federal public defender for the Eastern District of Virginia, who has spent years vigorously defending terror suspects Yaser Hamdi and Zacarias Moussaoui from efforts by the Justice Department to strip his clients of many if not all of their constitutional rights"; and

* "the group of military attorneys who objected in the U.S. Supreme Court to the lack of fairness and legitimacy of the military tribunal system established by President Bush... These uniformed officers stood forcefully against the administration's claims that the Guantanamo prisoners should be denied the ability to challenge the legality of their imprisonment in federal court."

Vancouver USA homeless court

For Boxing Day, a positive story about poor people and the system from southwestern Washington State, down the road from Olympia and just across the big river from Portland:

A Fresh Start for the Homeless

"The homeless court provides a place for those living on the streets to clear up the legal issues that hold them back from finding housing or employment. That can include outstanding fines that drain their resources or outstanding warrants that impede their ability to get a job... (t)he ideal end result is, 'paying their debt to society but not destroying their lives.'"

December 24, 2004

Check your local listings

In the spirit of "Nestor the Long-Eared Christmas Donkey", Blonde Justice (the one pictured on the right) presents a new holiday tradition, "A Defense Attorney at Christmas."

December 23, 2004

CrimProf Blog ♥ Idaho

In another sign of Professor Godsey's regard for the great Gem State, CrimProf Blog has linked to another Idaho Supreme Court case, State v. LaMay. The court declined to extend the "recent occupant" rule of Belton to a search inside a defendant's home, and determined that the area within an arrestee's "immediate control" is where he is arrested, not where he is first approached by law enforcement.

The whole opinion in PDF format may be viewed here.

December 22, 2004

Those who count the votes decide everything

They play for keeps in my adopted state of Washington:

It seems that Christine Gregoire's unwillingness to play the Al Gore nice guy (or gal) role by rolling over and conceding, and instead choosing to fight the post-election legal challenge every bit as craftily and nastily as Karl Rove, has the R's in WA sputtering. It also seems that she'll be the next governor of Washington State.

Dino Rossi appears to be a nice enough guy for a winger, while Governor-elect Gregoire usually strikes me as the smart and not nice type of person you'd prefer to have as an ally than an enemy. It'll be interesting to hear the echoes of Florida and Bush v. Gore when the R's attack the legitimacy of her governorship; R's like Rove and GWB might yet regret having awakened the ghosts of LBJ and Richard J. Daley on the D's side. This time around, D's like Gregoire are going to give as bad as they get, so it's gonna be a bumpy ride. I don't have the stomach to participate in this game, but it will be highly entertaining to have a ring-side seat when I move to Olympia next week.

December 21, 2004

For the want of a nail

Last Friday, the Idaho Supreme Court granted post-conviction relief in an ineffective assistance of counsel case, McKeeth v. State, all for the omission of one letter of the alphabet.

McKeeth was facing six counts. Defense counsel drafted a conditional plea agreement and the State agreed. It provided that “[i]f the defendant prevails on appeal, he will be allowed to withdraw his guilty plea to the charge.”

So on his first appeal, McKeeth gets three counts dismissed and three affirmed. But then, the Court of Appeals doesn't let him withdraw his guilty plea to the remaining three counts, reasoning that the language of the plea agreement provided for McKeeth to withdraw his plea to only those counts he was able to prevail upon in his appeal. Understandably, McKeeth filed for post-conviction relief.

At the evidentiary hearing, McKeeth's first lawyer testified that 'out of haste' he mistakenly left off an “s” at the end of the word “charge” on the plea agreement. Not only did McKeeth and his original attorney testify they intended to reserve the right to withdraw the guilty pleas on all counts if McKeeth prevailed on appeal regarding any one of them, a prosecutor testified “that although they did not realize it at the time, they now believed McKeeth and his attorney did intend to reserve such a right.”

It took the Supreme Court (Burdick, J.) to deliver the result which everyone intended in the first place:

McKeeth’s plea was not voluntarily made because it was based on the incorrect advice and understanding of counsel resulting from counsel’s clerical error. Counsel’s deficiency in drafting a plea agreement that did not contain the protections counsel and McKeeth intended to preserve constitutes ineffective assistance of counsel. But for his counsel’s errors, McKeeth would not have pleaded guilty and would have proceeded to trial. This Court therefore reverses the district court and vacates McKeeth’s guilty pleas to the remaining counts of the charges against him.

All avoidable from the get with ten seconds' worth of proofreading.

December 19, 2004

The Wire: twilight of the gods

"Look, I mean, it don't matter who started it with who. I mean, we at war and once you in it, you in it. I mean, even if it is a lie, then we post on a lie, but we gotta' post."

Farewell to The Wire, from Marlo appearing at Avon's arraignment to tattered fliers for Frank Sobotka to Bubbles surveying the ruins, a decent season finale, and a fair place to end it if this truly was a series finale. I'll miss it, but I'll save by no longer having to subscribe to HBO.

December 18, 2004

In Boise, all your parking sins forgiven (offer not available in Twin Falls)

In my hometown of Boise, in place of the old-fashioned giving to the poor and needy at Christmas time, some local pastors have decided to pay off miscreants' parking tickets. Some see it as a teaching moment and a chance for evangelization. This did not sit well with some Idahoans.

We here in the Double Drip are made of sterner stuff. Thanks to the miracle of new legislation and a public-private partnership with collection agencies, no excuse if you've already paid your tickets, even a decade ago - we will hound you until you pay again:

She was just 13 years old when she was arrested for smoking a cigarette... Her sentence was a $51.50 fine, six months' probation and a round of smoking cessation classes. Now, 10 years later, the county is telling Jenette Worthington she never paid that $51.50 fine and, if she doesn't pay up now, a warrant will be issued for her arrest and the bill will be turned over to a collection agency.

Worthington's bill is the result of a new initiative to collect fines that were supposedly never paid. In some cases, the letters come with the threat of an arrest warrant for citations that are more than 10 years old... But each person who has received the notices and spoken with The Times-News has something interesting in common: they distinctly remember paying the fine.

Even the IRS says you only need to hold on to records for seven years. So why does Twin Falls County assume people would keep receipts from more than a decade ago?... Public defenders only keep records for 10 years...How can they expect us to?"

(Link here - story will be in free archive for the next 7 days.)

In this blessed season, from all of us in Twin Falls, a very heart-felt "Bah, Humbug!"

Kirsten Anderberg watch

In the midst of a call for a public defender general strike, Kirsten Anderberg has written about an instance of bad p.d. behavior from the point of view of a client. It's helpful to see her perspective; she sheds a little light on how the personal becomes political, as personal dealings with some harried and rude p.d. staff at SCRAP in Seattle lead eventually to her condemnation of all p.d.s everywhere.

Multiply that by 100 or 200, and you have baggage on both sides that leads to the beginnings of mutually suspicious attorney-client relationships with many people in your caseload. Once clients have been burned before, you singing "one bad apple don't spoil the whole bunch, girl" isn't really going to heal the damage, no matter how good you sound. It's part of the prior experience that clients bring in. When the objective stats show just the opposite, many clients will continue to believe that it's "quite standard knowledge that if you use a public defender, you have a much, much greater chance of going to jail than if you use a private attorney," a misperception that keeps the private-sector dumptrucks and bottom-feeders in business.

I suppose you just do your best within the strictures you face with whoever G d puts in your path. What you don't do is abandon your client. Anderberg doesn't talk about the duty of zealous representation, and I imagine that she wouldn't believe that it exists anyhow. She does seem to believe that no representation is better than representation by a p.d., and again, I think she must have been really screwed over by a p.d. or two in the past to reach that conclusion. The vast majority of my p.d. brothers and sisters are committed to doing better by our clients than that, and Anderberg's experience reminds me that while neither of us asked to be in this relationship, clients and p.d.'s need to start by building some trust.

I would hope I would do a better job than "Sam," even if overloaded. I'm obliged to stand with the one client beside me, even if there are 65 more waiting in the queue. When it's their time, I'll stand by each one of them. I'm not quite clear on how us going on strike leads to fewer people going to jail, or more people getting out of jail sooner. As for clients' moms, I'll have to refer to the Big Dog theory.

I've been unkind to Anderberg's essays in the past and I don't share her opinions, but I need to acknowledge her meeting us p.d.'s halfway with her support for lower caseloads and better funding. She's quoted some good authority out of King County. Finally, I do agree with her on one point: "it is time they quit blaming others." This could go equally for p.d.'s, and for individuals charged with crimes.

Update: Alaskablawg puts it better than I did.

December 17, 2004

News: ethics actually discussed at ethics CLE

Glad to say I've met my needs for a rental in the Olympia school district for the pets and us, found the new office with a 15-minute commute that avoids I-5, and picked up 4 (pending) Washington ethics credits.

Compliments to presenter Mike Gaffney of the Division of Governmental Studies & Services at Wazzu. The class was arranged for us public defenders and prosecutors by the local county extension agent; I liked that a land grant school sees its teaching mission extending beyond farmers and stockmen. Then our instructor got up and started talking about Aristotle of all things. This was going to be interesting.

Just about every other ethics CLE I've attended has been an uninspired slog through the Model Rules of Professional Responsibility. The format has been something like, "okay, let's hypothetically that say you do X; Model Rule X.XX says that you can't do that; everybody got that? okay, let's move on to Model Rule X.XY." If they really wanted to spice things up, they'd add, "but let's compare that to what the ABA proposed revisions to the Model Rules say." Riveting, what?

By contrast, the CLE this week was about, well, ethics. Imagine that, morality and right conduct being addressed in a room full of lawyers. Not the minimum we can get away with to avoid a Bar complaint, but what we ought to aspire to. Talk about the public trust and our own inner compasses. Those words "moral" and "morals" being bandied about, and John Stuart Mill thrown in for good measure. All this on the taxpayers' nickel, in a Blue state no less. Felt like I was back in undergrad - it was great.

December 11, 2004

Hierarchy of needs

I have a job in green and pleasant Olympia; now I'm off to Oly for a few days to find shelter and a few CLE's. Talk to you Thursday or so.

Nicest blogger and others

Fed #84 is this brainiac young attorney with a growing national reputation, who can deftly parse, dismantle, and explain 10 Supreme Court opinions in the time it takes me to say, "ummm, Whren sucks."

So I'm pleased as punched to be listed in such company. I'm also glad my blog name starts with the letter "A". Check out the list; I'm not worthy! I feel like I stumbled into the smart lawyers pageant and was just named Miss Congeniality. Thank you, Mike.

December 10, 2004

P.D. a go-go

Well, apparently Broward County's p.d. problems go beyond naked dancing public defenders:

Conflict deepens between incoming and outgoing public defenders.

Some details:

- the incoming chief p.d. displays his people skills by sending an e-mail to all attorneys stating that he will "no longer use the criteria of young, good-looking, rich or trial numbers alone" in picking future staffers;

- the outgoing chief p.d. defends his political graft and patronage machine by stating that "using the office staff as volunteers and donors in campaigns (his campaigns for re-election - ed.) gives us clout in the courtroom";

- politics, old guys with ponytails, past cocaine addiction, a lawyer crashing into a patrol car, lawyers with beautiful blue eyes, secret budgets, sexual harassment allegations, rescinded raises, recriminations, and the aforesaid nude dancing;

it's all great reading, with nary a mention of how (or when) the office represents actual clients. Is it any wonder that this story comes from Florida?

December 09, 2004

Your Terry stop ends where my front door begins

CrimProf Blog shines the spotlight of academe on the Idaho Supreme Court and Twin Falls' own Judge Burdick for the opinion in State v. Maland, holding that "police may not make a warrantless, nonconsensual entry into a residence in order to effectuate a Terry stop." John Adams, Coeur d'Alene ├╝ber-p.d., gets the win.

CrimProf's comment section says, "It's sad that such a common sense case is...big news." For the next 90 days, here's a place that you can read the opinion for free. While you're there, check out State v. LaMay, a search incident to arrest case. Looks like I'm leaving just as Idaho's developing some common sense search-and-seizure caselaw.

December 08, 2004

We accept you! One of us!

Whew! That was close! We nearly lost Public Defender Dude!


I'm even more grateful that I was able to find a p.d. job on Puget Sound in light of this:

King County (Metro Seattle) whacks the public-defenders budget by $1 million

"...(T)he Metropolitan King County Council approved ...increases for both the prosecuting attorney's office and the sheriff's department. But it also included almost $1 million in cuts from the county's public-defense system..."

"The 2005 budget situation is so bad that Northwest Defenders, one of four nonprofit public-defense firms that are under contract to the county, will be run at a deficit and might have to close its doors."

"We're the least favored in human services," says Eileen Farley, director of the Northwest Defenders Association... "I don't have anyone left to lay off."

December 07, 2004

December seventh

Thinking today about the historical event of the day, one which relates to me and this site only in the most tangential way: as one of the unforeseen consequences of Imperial Japan's attack on Pearl Harbor sixty-three years ago, here I am. Let me walk through this:

I called my mom tonight. In December 1941, she was a student at Lowell High School in San Francisco. The news broke in to the sunday Philharmonic broadcast. The next day, December 8th, high school boys were talking about enlisting. By spring, many high school classmates had gone, but not all to war. The Japanese-American kids were being sent to way stations and camps. My mom remembers driving down Geary Street seeing piles of furniture and belongings outside people's houses, seeing soldiers with rifles, and not being able to speak to friends as they were leaving.

Meanwhile up the coast, my dad already had joined up and was off to become a naval aviator by the time Western Washington's Issei and other Japanese-Americans were being rounded up. Many people from Seattle, Tacoma, Bainbridge Island, and even Olympia wound up here, not twenty miles from my Idaho desert home:
 Posted by Hello

It's the Minidoka Relocation Center, or Hunt, Idaho, in its time one of the biggest cities in Idaho. Nearly ten percent of the camp’s population – about 1,000 internees - were in U.S. military service. Of the ten relocation centers, Minidoka had the most volunteers. 73 soldiers from Minidoka died while fighting for the United States.

The camp ran from August 1942 until October 1945. The site is now the Minidoka Internment National Monument. There's not much left out there, but for me the ruins and the outlines of the tarpaper shacks where people spent the Idaho winters and summers are still a fine rebuke to anyone who wants to speak up in defense of internment.

As for the personal story, the Navy trained my dad to fly multi-engine transport planes, R4D's and R5D's, everywhere from New Guinea to Oakland, which, being one bridge away from The City, is how he met my mom. I arrived 16 years and five kids after V-J Day.

We now resume our regular public-defender-related rambling.

Immediate opening for p.d. - must keep clothes on, hands to self

As a public service, this blog brings you this item of compelling human interest:

Assistant public defender quits amid allegations about harassment, nude dancing

In Montana, this sort of behavior used to get you promoted.

December 04, 2004

Absolute beginner

Remember Jeffrey Fisher, the 33-year-old unreal criminal defense appellate god who won both Crawford and Blakely? Remember when I told you to watch out for this guy? The Seattle Times knew he would be huge.

Now thanks to David Feige's piece in the L.A. Times, everybody else does too:

"(W)hen Fisher stepped to the podium in the fall of 2003 to argue the Crawford case, he had been eligible to practice before the high court for less than six months. Crawford and Blakely were the first criminal cases he had ever argued."

"Two wins in the Supreme Court in a single term — "That's nothing short of extraordinary," says Drew S. Days III, U.S. solicitor general during the Clinton administration. That sentiment is shared by U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt, for whom Fisher clerked: "I doubt anyone has ever, at this early stage in his career, argued and won two cases like these.""


Fall on your sword

There is a really interesting exchange between Fed #84 and Professor Yin touching on the proper role of trial counsel in the post-conviction relief process.

Yin's approach seems premised on the assumption that the greater problem is all these criminal defense attorneys lying and readily willing to lie to help clients after they lose. After setting up some straw men (such as, a criminal defense lawyer forges a document post-trial to get his client off) then knocking them down, Yin concludes that "it's in the long term interest of the system to have defense attorneys not fall on their sword unless warranted". He doesn't quite tell us how and when it would be warranted.

Fed #84 states that, "... offering self-critical but subjective sentiments are what I consider falling on one's sword. After all, the person saying those things is insulting himself." This is actually what the profession could use more of. I think that Fed #84 gets the better part of this discussion from the point of view of the trenches.

In my experience, the bigger problem than criminal defense lawyers telling lies about their deficient performance has been to get criminal defense lawyers to tell the truth about their deficient performance. When an old client files a PCR petition, too many trial attorneys have too much ego invested in their Spence-like self-image to come forward and concede that they might just possibly have made at least one mistake in the handling of the case. Each one of us likely can think of at least one attorney whose work objectively isn't up to Strickland standards - and the sooner that lawyer owns up to it, the better! (hey, it's not me! I have been on the stand and have signed affidavits in PCR proceedings. Where I've done a good job, I've said so; where I didn't, I've said so too.)

We all make mistakes, even our President. And like our President, fessing up to them doesn't come easy. But fessing up not just good for the soul, it's good for the system. The integrity of the criminal courts is troubled less often I think by attorneys lying that they performed poorly, than by attorneys fighting ineffective assistance claims tooth and nail when the old client has a valid point. "When warranted" is not much of a bright line rule for responding to an old client's PCR claims, even IAC claims. It seems that a continuing duty of loyalty to the client, combined with a continuous duty of candor to the courts, requires us criminal defense attorneys to fall on our swords every time it's the truth, not just when we decide it's warranted.

December 03, 2004

Friday cat warming device picture

 Posted by Hello

What cats did before the invention of personal computers.

December 02, 2004

A train wreck disguised as a murder trial

From the northernmost courtroom in Idaho, a vivid picture from the Kootenai Valley Press of the justice system, steaming and screeching, going off the rails: a recent Idaho Court of Appeals opinion, State v. Manley

"...raises a litany of procedural errors that plagued the trial from the outset, including the failure of the defense, state-appointed counsel Roger Williams, to provide written discovery until one week before the date the trial had been set and that then-prosecutor Mark Jones didn’t reveal one of his expert witnesses until four days before the trial was to begin."

"A statement testified to by arresting officer Pete Atkins that would have proven that Joseph knew of his brother’s death before deputies arrived was thrown out as the statement, “I didn’t kill my own brother,” allegedly made immediately after Joseph was confronted that night, appeared no where but in Atkin’s testimony; it wasn’t on the recording made the night of the arrest nor in the report Atkins subsequently wrote."

"Next, questions were raised over blood spatter evidence, which the defense contended hadn’t been disclosed prior to trial. “The objection was made and overruled,” the court wrote."

"The case didn’t turn truly odd until it was in its fourth day, when Williams attempted to enter five exhibits, most to refute testimony on the blood spatter evidence and none of which had been disclosed to the state."

"After Judge James Michaud, now retired, excluded three of those exhibits for lack of disclosure but ruled the remaining two might be introduced later if proper foundation was laid, there ensued an argument between Williams and Michaud that ended with the court declaring a mistrial."

"Williams contended that Michaud’s ruling was made not on legal grounds, but because the judge knew that Williams supported Michaud’s opponent in an upcoming election. After telling the judge he resented the way he was being treated, Williams grabbed his chest and told the judge, “God help me if I don’t have a heart attack over it.”"

Williams didn't have that heart attack, but he did retire shortly after the trial. I can't tell you how proud I am to have shared the profession with such a kook.

Update: for visitors from Crim Law, many lawyers and other Idahoans, and FedSoc itself, agreed with Ken about this judge, but you see, until the judge resigned just before the election, saying so could get an Idaho lawyer in trouble with the Bar. See In re Topp, 129 Idaho 414, 925 P.2d 1113 (1996), cert.denied, 117 S.Ct. 1334 (1997).

Judge DQ'ed in U of I football player murder

Here in Idaho, District Judge John Stegner has stepped aside from the first-degree murder case of University of Idaho football player Eric McMillan, who was shot September 19 in Moscow. A new DJ has been assigned.

Defendant Matthew Wells II, through his appointed counsel, moved to disqualify the judge. Two other co-defendants are waiting to be extradited from just across the border in Washington State.

December 01, 2004

Mrs. Paul, you have the con

The Twin Falls (Idaho) County Commissioners have appointed former Navy lieutenant Marilyn Paul to the position of Chief Public Defender. Best wishes for smooth sailing are pouring in from all quarters, and an extra ration of grog has been ordered for all hands.

Update: Short blurb from the local paper here (scroll down after "Freak accident destroys family's home" to "New public defender")

November 30, 2004

When the job's good, it's very, very good

Public Defender Dude returns with a couple of new posts (fans to Dude: write more often!). One is an almost lyrical portrayal of a moment when everything that's pleasurable and noble about being a p.d. "clicks," and you help one individual get some justice in this world. The Dude abides...

The other is a philosophical disquisition in the form of a plug for "The Wire". Excellent show! I suspicion that there are tons of p.d.'s and d.a.'s who watch it. Brody saw his first episode and immediately bought the whole first season on DVD - me, I'm waiting for season 2, that and for our household to actually own a DVD player. Too bad the jail doesn't have HBO; instead of re-reading Louis Lamour novels, our clients could be picking up some fresh moves and dialogue.

An honest prosecutor

One of the best aspects of work these past six years, seven months and three days was working opposite an elected county prosecutor who could be depended on to do the right thing:

"In any given case, it's the prosecutor's duty to investigate the case beyond what the police reports say ," said Twin Falls County Prosecutor Grant Loebs.

"The culmination of all the evidence and non-evidence is enough to convince us we don't have enough to prosecute him. The evidence we got from the FBI ... none of that points to him," he said.

"There's never a time when you are committed to prosecuting," Loebs added. "You dismiss the charge if the evidence shows you should."

Do criminal defense long enough in jurisdictions where the prosecutor is not just, and you truly appreciate finding a prosecutor who is.

P.D.'s don't need more $ - the D.A. said so!

The Kentucky brothers and sisters are pulling out all the stops. I admire the dedication, but really, when the going gets this tough, the tough get caller ID:

- "Allen Graf, a public defender in Bowling Green, said he's given up trying to talk to clients during the day and instead allows them to call him — collect — at his home in the evening."

- "Public defender Harolyn Howard said the caseload in Pikeville is so high she sometimes sleeps on a couch on her office when she works late at night preparing for a trial. She doesn't have time to get ready for trials during the day because she's either in court on other cases or meeting with clients, she said."

- "One recent morning, public defender Krsna Tibbs ran from courtroom to courtroom, representing about a half-dozen people in Jefferson District Court. With clients waiting, Tibbs had yet another case, a man charged with multiple domestic violence offenses, theft and traffic violations. But the judge wanted a trial within the hour. The client spoke only Spanish, and Tibbs couldn't find an interpreter."

Meanwhile in Baton Rouge, one brave prosecutor speaks out against the Sixth Amendment: Taxpayers shouldn't pay to defend poor people accused of crimes, he says. Out of touch with the mainstream? They report, you decide.

November 28, 2004

Happy trials to you

Not going into the office in the morning, or the morning after that, or any office any morning until Olympia five weeks from now. Feeling guilty and relieved in equal parts, my clients having tapped me pretty near to the last full measure of exasperation, tomorrow I'll be recharging by packing the basement at home while three of my colleagues alternate between covering each others' and my appearances down in Courtrooms 1 and 2, and interviewing upstairs for my old chief p.d. job.
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For the occasion, here are a few lines from my classmate Diane Raptosh, published poet and Akhmatova look-alike:

...Do I regret
having left Idaho?

Rest assured, I love this place.
Foxes walk on water here

and the weather changes faster
than two fluent trains of thought.

Can you tell me what to hold out for?
Some miracle of spring if I decide

to backtrack home? Or will I find
hoarfrost for a homecoming bed?

- from "Weather Watch," Just West of Now, Montreal, Guernica Editions, 1992

November 26, 2004

Checks and balances: Patriot Act meets Red State jury

We talked a few months ago about the case of Sami Al-Hussayen, a Saudi Arabian grad student at the University of Idaho accused of Internet links to terrorism. Al-Hussayen was acquitted by a federal jury in Boise last June 10th.

Fort Boise has linked to a Seattle Times piece from earlier this week which may be the most thorough article about the case, the stakes for the government and the defense, and the 12 average Idahoans who called b.s. on the whole production.

November 23, 2004

Another Boise jury votes to kill another man

Just before noon today, Azad Abdullah was sentenced to die by an Ada County jury for the October 2002 death of his wife Angie. Reports from Boise TV stations are here and here.

This looks like the second stage of a bad new trend. Insh'allah, the appellate lawyers will go to work now and get some relief for Mr. Hall and Mr. Abdullah.

November 22, 2004

Gutting it out

I Respectfully Dissent sets and Crim Law spikes the infalibility of your local law enforcement officer's gut instincts.

Bryan Gates quotes a North Carolina cop - “You can talk to most detectives. They can sit right in front of a suspect. They have a gut feeling. ‘This is the man. Now how am I going to prove it?’” - and observes, "The only flaw in the "trust your gut" credo is that a gut can be wrong...What hope is there for someone when an officer's gut says he is guilty and the suspect has no alibi?"

Ken Lammers does a fine job of portraying the legal world where our clients live, where "(a) 15 minute stop and search is just not all that uncommon... The violations of the rights of several citizens based upon "gut feelings" lead to the arrest of one." And at least in my jurisdiction, there's no way of tracking the inconvenience or indignity visited on the several citizens who were stopped, sniffed, searched, and told they were "free to go." In all my years talking to the Junior Chamber about pretext stops, this is a point I haven't got across. Maybe Ken could come out here and take my place on the panel next year:

"Of course, they are miles outside of the meaning of the constitution but they are the good guys so we'll let them get away with technicalities."

We might be just a few years from the time when the Supremes let cops tell juries their gut instinct as to the Defendant's guilt or innocence...

November 21, 2004

Local reviews

Blonde Justice ponders a blogging lawyer's dilemna:

"I've thought about whether or not I would want a client or D.A. to find my blog. (The answer is no, and that's why I try to keep my blog a little vague.) But I've never given any thought to finding a client's or D.A.'s blog. Well, tonight, it happened."

Well, that's something I might have contemplated before I typed up the story of losing my last trial in Idaho. Perhaps I should have contemplated it earlier still, before I began hiding in plain sight with this little blog. Writing an hour after the verdict did have its therapeutic benefits. However, I might have paused to remember that courthouse personnel can be a force for good or for mischief. Late last week, my hits from the domain increased exponentially, and first time visitors from Idaho's courts and law enforcement spiked too. My investigator coming in on Friday and chortling, "you're in trouble! you're in trouble!" was also a clue: the jig was up.

So now I'll spend my last week on the job making amends and excuses. For instance, I'll need to explain that "Donahue" was an old Ada County way of referring to a style of jury questioning en masse as opposed to one at a time; it does not mean that anyone in the courtroom was being compared to Phil Donahue. On the other hand, in Friday's inter-office mail I got a print-out of the infamous story with a post-it saying, "Can I have this autographed? - Snarky." The one individual to whom I meant to give offense appears to be the one who didn't take offense. I suppose being a narcotics detective means not expecting to feel the love from everybody, in that respect, not too different from being a public defender.

November 20, 2004

Azad Abdullah death penalty case: guilty

Yesterday a Boise jury found Azad Abdullah guilty of first-degree murder in the October 2003 death of his wife Angie. Abdullah was also convicted on five other counts of attempted murder, felony child endangerment and arson. Soon the jury will decide whether or not he gets the death penalty. It's the second capital punishment case to go to trial under Idaho's new law. Erick Virgil Hall was sentenced to death by an Ada County jury last month.

I've got to believe that the defense took this to trial because Ada County prosecutor Greg Bower wasn't offering anything short of a death sentence.

Fed 84: he's bad, he's nation-wide

This weekend, life is good for Federalist No. 84 of Crime and Federalism. His wife passed the bar, not the easiest thing to do in California. What's more, he's been raised to the pantheon of blawgers by He's in impressive company as a member of Blog Network, a showcase for seven attorneys who blog. As always, with great power comes great responsibility, so Fed 84's true identity has been revealed. Congratulations, Michael! Promise you'll still be posting dog and cat pictures from way up there, okay?

November 18, 2004

Justice delayed not necessarily justice denied

Last night a fine thing happen: an innocent man walked out of our county jail. A truly, indisputably, factually innocent man. This man was accused of robbery and spent the last four months in jail. Brody, Chris and Gwen of my office believed in him and stood by him, and prodded and pestered the other side to get the forensics done that would prove that the man was telling the truth. He Didn't Do It. Handwriting analysis - not a match. Fingerprint analysis - not a match. That cool FBI analysis that triangulates measurements of the suspect in the surveillance photos and compares them to those of the defendant - not a match, in fact, off by over four inches in height.

So, a toast to the persistence of my co-workers. And a toast to my honorable adversary, who saw the handwriting (and the other test results) and did justice by dropping the charges.

November 17, 2004

"I have never met a client that I didn't find something redeeming about"

Here's a p.d. who's a better person than me. No, not because she's a federal p.d. After what she's been through, if she can still say, "I have never met a client that I didn't find something redeeming about," she's truly amazing:

Five months ago, on a sun-soaked June morning, attorney Jane Kelly was jogging on a bike trail in Cedar Rapids when a stranger attacked her from behind. He dragged her to a creek and split her face open, leaving her semiconscious in a pool of blood, to be found 20 minutes later by passersby.

(F)ar from retreating from her often thankless, underpaid line of work, she's getting ready to return to it.

(T)he Iowa Association of Criminal Defense Lawyers and Drake Law School recognize someone who shows a commitment to the constitutional right to criminal defense. Kelly was this year's unanimous choice. Accepting the award, Kelly quipped that she can't remember a time when she didn't know how to make meth. And she's spent so much time in jail, she said, she should have enough time served for a couple of simple misdemeanors. "It's challenging, frustrating, infuriating and heartbreaking," she told the gathered lawyers about her work. "It's voyeuristic, but in the end it's real."

Coincidentally, out in San Diego it's alleged that another criminal defense attorney can't remember a time when he didn't know how to make meth, but I don't think he'll be getting any awards.

We're all in this together

David Neiwart at Orcinus has another well-written invitation to the Democratic Party and the 40% or so of us rural Red Staters to reconcile and reason together, with some charitable things to say about Idaho, our former governor Cecil Andrus, and the Blaine County D's up the road who raised hundreds of thousands for Kerry in one event without so much as a personal thank-you. He also linked to this line I can use in the future if I ever catch any Seattle attitude: "If you're gonna cop that attitude about people who live in red states, count me among the red staters. That's not just an abstract, Niemollerian stance: I have more in common with them than I do with most of you."

I think both writers would have liked my father-in-law Lloyd Walker, G d rest him, a son of a butcher and grandson of Blaine County hard-rock miners, who chaired the Idaho Democratic Party back in the glory days. Early on, he told our senator Frank Church to remember the average Idahoan and not tie himself too tightly to the Ivy League crowd (and to tweak your assumptions, my father-in-law was a graduate of Harvard College and HLS). A whole history of might-have-beens would be written if the lunch-bucket Democrats, the tree-huggers and the technocrats had held it together against the common foe. If the DLC types are serious about rebuilding the party, maybe they can listen to the West for a change. They could start by reading Orcinus.

November 16, 2004

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.

Law out of order: dog sniffs at large

Check out Ken Lammers for color commentary on the Supreme Court oral argument in the dog sniff-n-search case, Illinois v. Caballes.

Perhaps someone should have appointed a guardian ad litem to speak for the dogs.

November 15, 2004

Law and Order: Dog at Large

In the criminal justice system in the City of Billings, the public defenders represent two separate yet equally important groups: the humans, who are accused of crimes; and the canines, who bark too much.

These are their stories.

Andrea Lyon, public defender hero

If you're ever on trial for your life, Andrea Lyon is a good name to know. She can say proudly that she has saved the life of an innocent man. As a public defender for over thirteen years, she took some 130 homicide cases to trial, including over 30 potential death penalty cases. Now she directs the Center for Justice in Capital Cases at Depaul University.

I've benefited from Andrea Lyon's example and dedication in person two times. She directs the Clarence Darrow Death Penalty Defense College, one in-depth (and cheap!) week of CLE in Ann Arbor. She was also one of the best instructors at National Criminal Defense College, two intense (and cheap!) weeks of p.d. boot camp in Macon. The finest thing she taught me was by example. I'm a lawyer "of size." She is, too, and a confident and prosecutor-crushing one to boot. For a fat cat like me, it's really invigorating to meet a mentor who's large and in charge! She showed me how to stand tall in the courtroom and throw my whole weight into forming a bulwark between my clients and their accusers. "If you want to get my client, first you're gonna have to come through me" is not a bad motto for an XXXL p.d. Thank you, Andrea.

November 13, 2004

Smart clients, foolish choices

Tom Lincoln of Macondo Law and The Best Defense has a morality story about a bright client in a bad bind, scrambling to keep one step ahead of the system and digging himself in deeper with every step.

Many, many p.d.s will relate to this debacle: the huge potential sentence if convicted, the client burning through previous attorneys, the unexpectedly lenient offer that the client rejects by saying, shave two more years off that and I'll take it, the client's magical thinking that the state's witnesses suddenly will be filled with love and will refuse to testify against him, the hiring another attorney behind appointed counsel's back on the eve of trial...

Don't need to be a veterano to see how this story turns out.

November 12, 2004

P.D. freed in Florida, plus a quote about Alabama

The Orlando public defender who was jailed for contempt of court has been released after an appellate judge's order.

Thomas Mote said he was simply representing his clients vigorously in several cases. "I stand by my conduct. I feel that my actions were in advocacy of my clients," Mote said. "At no time did I ever intend to be disrespectful." Mote said he was "relieved and extremely thankful" to be free.

To Brother Mote goes the Public Defender Red Badge of Courage, with cluster. Salute!

"And so long as our essential protections are safe, it doesn't bother me if courts in Alabama have the Ten Commandments hanging in the lobby. If I ever find myself in an Alabama courthouse, I suspect the decor will be the least of my problems."

November 11, 2004

Friday cat photo

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The Honorable Bubba, age 15, named after the Honorable John C. "Bubba" Vehlow, magistrate judge.

Don't mess with your p.d.

Remember the guy who slashed his public defender with a razor blade in front of the jury?

He got 110 years to serve, and the State of Louisiana still isn't finished with him.

(Idaho fun fact: if you assault or batter "a justice, judge, magistrate, prosecuting attorney, public defender, peace officer, bailiff, marshal, sheriff, police officer, correctional officer, employee of the department of correction, employee of a private prison contractor while employed at a private correctional facility in the state of Idaho, employees of the department of water resources authorized to enforce the provisions of chapter 38, title 42, Idaho Code, jailer, parole officer, officer of the Idaho state police, fireman, social caseworkers or social work specialists of the department of health and welfare, employee of a state secure confinement facility for juveniles, employee of a juvenile detention facility, a teacher at a detention facility or a juvenile probation officer, emergency medical technician certified by the department of health and welfare, emergency medical technician-ambulance certified by the department of health and welfare, advanced emergency medical technician and EMT-paramedic certified by the state board of medicine, a member, employee or agent of the state tax commission, United States marshal, or federally commissioned law enforcement officer or their deputies or agents and the perpetrator knows or has reason to know of the victim's status," (whew!)

the penalty is doubled. So don't.)

November 10, 2004

One gets kudos, one gets jail

My p.d. brother in Pocatello, Idaho, David Martinez, spoke well for himself and the cause to the local TV station. How can he defend "those people"?:

"I go through the cards and look at some of the cards I've been sent by clients through the years that say, 'You've made a difference in my life' and 'I've turned it around and you're never going to see me in the system again, but I thought I would let you know that what you did meant something to me.'"

On the other end of the country, Thomas Mote, 28, a p.d. who was named public defender of the year last year in Osceola County, Florida is doing 10 days in jail for contempt of court.

I'm duly impressed by both these guys.

Leaving Idaho in the broad daylight

I've left Idaho a few times before, but never have I done it when it looked so right.
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Reflecting on the years since I've been back in Idaho, including the electoral event last Tuesday, and thinking on my long tormented relationship with home, I found this fine older article on Orcinus by David Neiwart, another Idahoan relocated to the Puget Sound. It begins:

"There's one thing about growing up in a place like Idaho: If you can't make friends with conservatives, you won't have many friends..."

As it goes on to make its point, I think, Well, I've made some friends! I told my wife the other night that I have a love-hate relationship with Idaho, and she came back with, "you don't love it!" She and my boy are the Idaho natives of the family; I had the bad fortune not to be brought to Idaho until I was almost 2, after being born in (horrors) Marin County, California, a fact that no true Idahoan will ever let me live down.

So let me go on record: I love my home state. I love the Sawtooths and the foothills. I love the way sagebrush in the desert smells after it rains. I love the horizons, the dirt roads, and the drives that are measured in hours, not miles. I love the stinky geothermal water that fills the hot springs and the radiators of the house where I grew up. I love the miles and miles of open range and public property, and all the critters therein. I love Redfish and the Salmon, so much that I've left instructions to dump my ashes there, so my molecules can make the grand tour from Stanley to the sea.
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Proud enough? Yet I'm moving the family to a Blue state. Loving my home, it makes me more blue, not less, that Idaho and I need to spend some time apart, but I think we might have irreconcilable differences. Doesn't mean I don't love it. I suppose I'm trading colleagues who read Ann Coulter's Treason and look at me funny, for colleagues who learn I'm from Idaho and look at me funny. At the same time as I'll miss Idaho, I'm really excited to be moving to Olympia, where seldom is heard a discouraging word, and the skies are cloudy all day.

I may have been ruined for the current style of play by the old Idaho legislature, of all things. Back when I was a page, and later an intern, I watched the senators address each other as "the gentleman from 12" and "the lady from 32," even if 12 was no gentleman and 32 was no lady. The R's still called my team the "Democrat Party," but otherwise respect was paid, and friendships were maintained across the aisle. I owe my Idaho upbringing the habits of not whining when we lose or gloating when we win, of not expecting everyone to see things my way, of knowing that decent people will disagree, and of not vilifying opponents. I wish I could say that I'm confident my five-year-old would absorb the same lessons by growing up in Idaho as it is now, but I can't. But he will come back to spend lots of time here, and he will learn to appreciate and be proud of where he's from.
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(Bonus shout-out to colleagues in the South: after my wife pointed me to a scurrilous little website called "F*ck the South" (find it yourself), I thought back to the Southern spots that I love: Apalachicola, St. George Island, Panacea and Sopchoppy, Tally and P'cola, N.O., Memphis, Williamsburg, Peachtree City with the goofy golfcarts, Macon where I spent the two most formative weeks of my career. And I thought of my Southern colleagues in the p.d. and crim law realms, white and black, to whom I feel closer than to most East Coast and L.A. lawyers. Like the man said, "I say this to all of you who think it's funny and wise to say "f*ck the South." If you f*ck the South, you're f*cking yourselves." )

November 09, 2004

The kids are all right

Man, filling in at Juvy is a delight! Respect, no brow-beating, well-managed docket. The only downside was that it finished early enough that I had time to come back downtown and do the rest of my afternoon adult felonies.

The helping professionals at Juvy are so very nice, they all just want to help my office's clients, and of course they can't help my office's clients unless they've convicted them first. A regular juvy deputy of mine was told once, "your role is not to go to trial here, your role is to help the kids." And if it's "for the children," why not? Why, today Juvy was so full of loving kindness that they had more than enough to share with a poor little eight-year-old! And naturally, now that he's in the juvy system, they may never want to let him go!

(Sometimes I get such a kick out of my compassionate conservative neighbors. They talk a good game about individual freedom and families first, but when it comes down, the talk extends only about as far as their own kids. Their kids get the benefit of the doubt, and Those People's kids get Juvy and juvy records. Makes me nostalgic for the live-and-let-live Idaho of my youth, when a wayward teen with a twelve-pack might, if caught by a sheriff's deputy, be stood over with a flashlight while pouring out every last can of beer behind the Boise North stake center, then be ordered to go straight home. Or so I've been told.)

E-mail from one of my former juvy deputies!

If I was the quoted individual in your blog, what I remember being told was the absolutely brilliant "Your job is not to win. Your job is to do what is in the best interest of the child, and that is getting him help." When I later had a case dismissed on a technicality, she yelled "*ssh*le! Now she can't get the help she needs". I've always wanted to get the record on that case.

Einigkeit und recht und freiheit

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To the coolest historical event in my lifetime, happy anniversary.

November 08, 2004

How arraignments look from on high

The New York Times and the Times of London both drop in on public defenders doing arraignments in New York City, in Manhattan and the Bronx.

The P.D. in the Bronx observes,"The thing is, if this happened where I grew up, in the suburbs around Boston, then it would get dealt with in the principal’s office."

Which is exactly how I'll feel covering Juvy tomorrow.

November 04, 2004

Running on empty, then an unexpected refill

Thursdays are child protection days. Today it was 24 cases, 9:30 to 5:00 straight through, with 15 minutes for lunch.

The one glimmer of light: a woman got clean, got her kid back and got her case dismissed; the judge asked, "how does it feel?" and she said, "the sky's bluer and the grass is greener." I do the job for moments like that.

One rural Democrat salutes another

Yeomam Lawyer has a prescription for the rest of the party from out here in fly-over country, on abortion, on the Second Amendment, and on generally no longer treating us like we're the cast of Hee Haw. Read the comments too.

November 03, 2004

"Don't waste any time mourning - organize!"

Can I say I'm going to stand and fight when I'm moving from a Red state to a Blue state? Public defenders in particular tend to know a few things about losing a round or two and coming back to fight another day, but I am looking forward come January to living in a state that went for the Democrat:

My current home county voted Bush 71.70%, Kerry 23.54%.
My new home county went Bush 42.63%, Kerry 55.67%.

I'm discouraged, but I'm not despondent. Growing up as a Democrat in Idaho helps, I suppose, as does knowing that people I love - my evangelical sister-in-law, my Knights of Columbus brother, my co-workers and neighbors - voted for the other guy. This job helps, too. Whatever the next four years bring, it's comforting to know that I always have a band of brothers and sisters in the public defender and criminal defense bar - Republican or Democratic, it doesn't matter - who will stand guard for the accused and the Bill of Rights. It's gonna be a bumpy ride, but it's gonna be all right.

November 01, 2004

No court in Idaho today!

Be like Joe! See you at the polls.
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(and yes, that is a Catholic school uniform, and yes, Joe's parents are supporting the man on the sign, and no, no Opus-Dei-linking, General-R.-E.-Lee-sacralizing, silly-bowtie-wearing, Pope-Pius-IX-name-checking, neo-Confederate Federalist Society martinet has been deputized in my diocese to read us out of the Church for the way we vote. Ubi dubium, ibi libertas. Let freedom ring.)

(Had to get that out; Feddie's comments have been irritating me for months! See you at the Electoral College!)

How to get a job like mine

Current opening in the exciting field of public defender management. Meet interesting people, hear interesting stories. Ideal candidate will already possess body armor and helmet. Prior experience in cat herding, groveling, and choas theory desirable. Serious inquiries only.

(PDF file here)

Update: Review the instructional video on herding cats before you apply, here or here.

October 31, 2004

From someplace more rugged than Idaho even

Welcome Alaskablawg, from a criminal defense lawyer with a very long commute.

October 28, 2004

First Idaho DP jury votes for death

Well, they did it. The first jury in Idaho to be given the power of life or death has chosen death. A Boise jury has given Erick Virgil Hall the death penalty for raping and murdering flight attendant Lynn Henneman four years ago.

The jury was the first in Idaho to decide whether a convicted murderer should be executed. Until Ring, Idaho judges decided the sentence in capital murder cases. After the U.S. Supreme Court ruled that juries must determine aggravating factors in a case to justify execution, the Idaho Legislature simply turned over the sentencing decision in capital cases to the jury entirely. Many of my colleagues fear that Idaho will see the death penalty imposed more often as a result.

October 27, 2004

Not gonna let 'em catch the Midnight Rider... well, on second thought...

Duane and Gregg would be proud, up to a point:

Brody drove up to a death penalty CLE in North Idaho last weekend, and came back with a copy of the weekly paper from one of our smaller counties. The front page caught his eye, at first with the name of the guy in the headline, who also has a criminal record in our county, over 200 miles away, and then with the sheer drama of the story:
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"Brian Ivie Busted: The Midnight Rider gets tazed, sprayed, and booked"
. Standing alone, that's got to get some kind of Pulitzer for small-town headlines. The article begins: "Brian Ivie the fellow who led the police on the wild midnight ride from Riggins to Council and back again was finally arrested last week." Sheriff's deputies Martin and Stamper tracked Ivie to a closet in his mom's house. "When no one came out Martin opened the door, Ivie leapt out at the deputy, as if to attack him but then stopped. Ivie was holding a beer in one hand. Martin spent several minutes trying to persuade Ivie to surrender peacefully. Ivie was not convinced it was all that good of an idea. Martin finally warned Ivie he was going to "go hands on" and arrest him."
"At that point Ivie leapt at Martin and Martin shot him with his tazer gun. Two electric wires dangled from Ivie's chest as he fell back onto his bed. Ivie pulled the wires out, bounced back off the bed and shoved Martin backwards over a pile of clothes into the laundry room. Martin's flashlight landed in a mop bucket. As Ivie raced down the hall to freedom Deputy Stamper shot his tazer into Ivie's back. The barbed tazer needles are connected by 21 foot wires to the tazer gun and Stamper shot Ivie from about 20 feet behind him. As Ivie stumbled the needles pulled out. Ivie leapt back up and ran out of the house. Out into the yard Ivie stumbled again and Martin was on him with pepper spray. Ivie stayed down for the count." This is when Ivie's troubles really started:
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I think that the cops charged him with felony alluding after he began explaining his crimes by stating, "My father was a gambler down in Georgia, he wound up on the wrong end of a gun."

I don't know why this paper doesn't feature this reporter's work on its website, so I hope he doesn't mind the lengthy quoting here. He scored on the same front page (below the fold) with this shocker:
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Fortunately the same county, population 3476, is getting $215,000 from the Department of Homeland Security, and not a minute too soon.

"The Dude abides. I don't know about you but I take comfort in that. It's good knowin' he's out there."

Public Defender Dude is back, but perhaps for a limited time only; after a long contemplative spell, it sounds as though he's about to transform into Private Defender Dude. What a world.

October 26, 2004

Good question

The National Legal Aid and Defender Association will be sponsoring a lawyers' retreat immediately preceding its annual conference. The day-long session on December 1 is in collaboration with the International Centre (sic) for Healing and the Law. Participants in the retreat will try to find answers to questions such as:

"* How do I continue to practice with passion and integrity as pressures within in the legal profession build; as dysfunction, poor management or funding cuts plague my organization; and as the external political and socio-economic environment continues to demoralize my clients?

* How do I stay centered on my core values when so much of legal practice is life draining and at times feels compromising?

* How do I reclaim my wholeness and authentically integrate who I am with the profession and the clients and communities that I serve?

* How do I learn to "lead by listening" to my clients and colleagues?

* How do I balance life-giving and life-draining aspects of practicing law?"

If they do come up with some answers, I hope that they'll share them with the rest of the class. As long as we don't go overboard with the drumming circles and psychodrama, it seems that asking these sorts of questions in the context of continuing legal education would be beneficial for all of us. There's a lot of emphasis in criminal defense training on the manly art of dominating the judge and jury, almost none on how to keep your head in the game for the long term without going nuts.

At NCDC, one of my Section D team-mates, a kind woman from Milwaukee, tried to bring up questions like these, of how to cope with losing so often, with so many cases, working through burn-out and discouragement, with clients who mistrust you, many of whom are (major third rail here) of a different race or culture than you. Our famous defense lawyer instructor of the day, who I won't name (but whose name rhymes with Boglevest) ripped her a new one, flamed her for being weak, and made her cry. We studied no more that day. It was a good team-building exercise, though; we rallied around our classmate, and froze out our tormentor.

So if individual poor people's lawyers are asking the questions internally, it strikes me that they need to be aired among ourselves, in relatively safe flame-proof settings, and not be censured or pushed aside by this tough-guy p.d. legal culture. The alternative seems to be to accept the drip-drip-drip of attrition of good people from the ranks, until only the biggest *ssh*les remain to defend the downtrodden.

October 25, 2004

Tats that

Today in the courthouse, with shorts weather drawing to a close in southern Idaho, I saw a woman, not a client of mine. That is, I hope she wasn't anyone's client, or at least not on the criminal docket herself today. For there she stood, with professional - results - not - to - be - expected tatooed letters down her calves. Down the left leg: OUT. Down the right leg: LAW. Look, Your Honor, I'm an (sashay)OUT (sashay)LAW. It could be a trend: CRIM on one side, LAW on the other, perhaps.

All the same, much better than the skinhead I was assigned to years ago in Canyon County, after some White Pride asshats decided to terrorize some people on the north side of Nampa. This guy had a swastika covering the back of his empty shaved skull, and to prove he was a real hard Aryan brother, the symbol part was white, the filled-in area of the circle around it tattooed in solid black. Ow, it had to hurt, but it hurt much worse for my Vietnamese client who was in on some bad check charge, and had to sit next to the skin in the jury box. I moved on shortly after Nazi Boy's prelim, so I never knew if he'd taken sound legal advice and let his hair grow out in time for trial. All the AB wannabee's were happy when they heard the lead p.d. was named Klaus Wiebe, but he wasn't any more hip to their weltangschauung than was our Nigerian-American co-worker Dayo.

One of the pleasures of criminal defense is its anthropological aspect. You learn that people do the darnedest things, sometimes with needles, sometimes with needles and ink. When I got out of law school, I was full of critical legal theory, but I didn't know an XIII from an XIV, let alone an AB or an SWP. Mi vida was a lot less loca back then, but much less interesting. Tattoos have become more mainstream too, to the extent that I unwittingly hired an attorney with one once (it didn't show in go-to-court clothes). I'm no longer safe in the assumption that gettin' ink done is a great way of saying, "I've been to prison." Still, I'm pretty safe in telling the dude with the Hitler portrait on his forearm to wear long sleeves next time he comes to court.

October 22, 2004

But don't get me wrong...

I love my work - it can be deeply gratifying even on days when it's not a laff and a half. For me, being a p.d. imparts meaning to the law. I really don't give a damn what Rehnquist said in footnote 4 of a hot-off-the-press slip. I do care that I never forget to see G-d's likeness in every chimo, rapo and tweaker that He sets in my path, and I'll be damned if I can't make the judge, prosecutor and jury acknowledge it too. Many of us p.d.'s are embarrassed to say it, but this vocation of ours is a calling. This job challenges me every day to do a better job of trying to be a man for others.

Now if I haven't totally scared away the 2L's and 3L's, Blonde Justice has some excellent advice on how to get a p.d. job, or just a law job you love.

October 21, 2004

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 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.