I always carry cards around, and I give them to my clients liberally. Why? It's a sort of funny story, but it goes back to when I first became a PD and was so happy to have a real job that I could put "Attorney at Law" on my cards, that I got them right away. Many PDs I knew never got cards, saying that the last thing they needed was their names getting around the jail.
Well, I got cards, and when I first started out arraigning people ("these are the charges against you, you'll have a prelim/trial in so many days, what happened," etc..., but no real legal work) I would often have clients ask for a card. Knowing that I was not going to represent them any further, I still gave them cards. You wouldn't believe the buzz that went on in lockup after that happened. The client I gave the card to would go back into lockup and show it to someone else and say something to the effect of "look at what I got, my lawyer's a real lawyer, he gave me a card." The others would gather around, and then begin badgering me to represent them too.
Did it make a difference in my representation of them? You bet. As I have mentioned, people frequently (and incorrectly) think that us PDs are crappy lawyers, and that we're trying to dump them. Little things can dispel notions like this. One of those things are cards, it makes us look more professional. It may not help with every client, but it certainly helps a lot. Now, every time I meet a client for the first time, I give him or her a card, as if I was a high priced private lawyer meeting a well-paying client for the first time over a $300 dinner. It makes a huge difference, especially to someone who is suspicious that he is having some loser lawyer thrown at him for the sole purpose of getting him to plead guilty and go to jail for a long time.
The lesson: always look and act as professional as you can. It doesn't mean that you can't be a rebel (for many years I've worn an earring in Court), but it means that you exude confidence and competence, and people will believe it - even juries, all of which really matters.
The rantings of a Public Defender constantly fighting against society's pervasive Police Industrial Complex. Enjoy the unique perspective of one whose life's work is to fight the system through the system.
Friday, August 29, 2003
Saturday, August 23, 2003
Writer Taint makes a very important point that I failed to address on the differences between hiring a PD and a private lawyer, something I'd be remiss not to address in a formal post rather than a private response. He noted that there are things that private lawyers do that PDs don't frequently do. And he is right
When I said that PDs were frequently the best lawyers in the courthouse, I spoke regarding their raw trial and legal skills, but specifically, how they work after they get a case (meaning, after a defendant has been filed on). I also referred only to our criminal law skills, but frequently there are civil and immigration ramifications that can even outstrip the potential criminal penalties for an offense. Private lawyers have the edge on us in these respects, and I am more than willing to admit it (there are probably other crossover areas where private lawyers are better lawyers than PDs, by not mentioning them, it doesn't mean I feel that they don't exist).
There is a lot of legal work that can be done on a case prior to filing, things that PDs never deal with. Frequently, working with the DA and detective on a case can prevent a filing at all, which obviously would be the best thing one could hope for in a case. Because we get cases only after they have been filed (and cases take on a life of their own once filed), we never really have the ability to do work like that, and one would be well advised to get a private lawyer before filing if there is a chance to avoid a filing.
Even when a case is filed, there may be things that can be done to advance the cause of the defense that PDs can't do. For instance, in Drunk Driving cases (or Dueces, as we call them), there exists a mechanism to get someone back their license even though the DMV has an automatic suspension that goes into effect. This is called a DMV hearing, but PDs don't do those because they are civil, not criminal proceedings, and we are only allowed to handle criminal matters. However, a civil lawyer can and frequently does handle those matters, and not only can they get someone their license back, but frequently they find out valuable information for trial that PDs would have.
Restitution is another area where we do not have the same qualifications as civil lawyers. PDs are frequently anxious to avoid jail for a client so they are happy to stipulate to restitution as a civil judgment, which could have long-term ramifications for a defendant long after their case and probation are over. However, since we don't ever handle that area, it is an area we know little about.
There are other civil criminal cross-over areas that as PDs, and having a narrow focus (only criminal law), we do not have the expertise that civil lawyers have and may not be as well suited to handle the work as those lawyers are.
Thank you Taint for pointing out something so obvious that I missed it. I certainly don't want to create the impression that I think of PDs as supermen - we're not. We are great criminal lawyers, but as with anyone who specializes in any narrow area of expertise, other areas sometimes go lacking, and other lawyers are better suited for those areas. If you have a criminal matter that must go to trial and you want a tough, hard fighting, skilled, and intelligent lawyer, my money's still on a PD, though.
When I said that PDs were frequently the best lawyers in the courthouse, I spoke regarding their raw trial and legal skills, but specifically, how they work after they get a case (meaning, after a defendant has been filed on). I also referred only to our criminal law skills, but frequently there are civil and immigration ramifications that can even outstrip the potential criminal penalties for an offense. Private lawyers have the edge on us in these respects, and I am more than willing to admit it (there are probably other crossover areas where private lawyers are better lawyers than PDs, by not mentioning them, it doesn't mean I feel that they don't exist).
There is a lot of legal work that can be done on a case prior to filing, things that PDs never deal with. Frequently, working with the DA and detective on a case can prevent a filing at all, which obviously would be the best thing one could hope for in a case. Because we get cases only after they have been filed (and cases take on a life of their own once filed), we never really have the ability to do work like that, and one would be well advised to get a private lawyer before filing if there is a chance to avoid a filing.
Even when a case is filed, there may be things that can be done to advance the cause of the defense that PDs can't do. For instance, in Drunk Driving cases (or Dueces, as we call them), there exists a mechanism to get someone back their license even though the DMV has an automatic suspension that goes into effect. This is called a DMV hearing, but PDs don't do those because they are civil, not criminal proceedings, and we are only allowed to handle criminal matters. However, a civil lawyer can and frequently does handle those matters, and not only can they get someone their license back, but frequently they find out valuable information for trial that PDs would have.
Restitution is another area where we do not have the same qualifications as civil lawyers. PDs are frequently anxious to avoid jail for a client so they are happy to stipulate to restitution as a civil judgment, which could have long-term ramifications for a defendant long after their case and probation are over. However, since we don't ever handle that area, it is an area we know little about.
There are other civil criminal cross-over areas that as PDs, and having a narrow focus (only criminal law), we do not have the expertise that civil lawyers have and may not be as well suited to handle the work as those lawyers are.
Thank you Taint for pointing out something so obvious that I missed it. I certainly don't want to create the impression that I think of PDs as supermen - we're not. We are great criminal lawyers, but as with anyone who specializes in any narrow area of expertise, other areas sometimes go lacking, and other lawyers are better suited for those areas. If you have a criminal matter that must go to trial and you want a tough, hard fighting, skilled, and intelligent lawyer, my money's still on a PD, though.
Thursday, August 21, 2003
Public or Private, who do you choose?
"I'm going to get myself a real lawyer." That is a comment I hear just about once a week, far more frequently if I'm unlucky. This comes from even the most well-meaning of clients. Don't feel bad for me, it doesn't bother me on an individual level. It does bother me on a grander scale. This is because I know that, for the most part (at least in my jurisdiction), Public Defenders are generally the best lawyers around.
Are they all the best? No, there are clearly some very bad ones who just don't care, and are sticking around collecting undeserved pay and waiting for their pension to kick in. But, on the whole, we are generally the better lawyers in the Courthouse. Are we the best lawyers in the Courthouse? Frequently, but not always.
Consider this. We get a steady diet of cases. We have them foisted on us and we cannot just go and dump a client if we don't like them or don't want to do the work. We are not paid by the hour, or by the case, so we can devote our full resources to the case and not have to concern ourselves with running out of money for the client. More importantly, because we get so many of the really bad cases, we are forced to trial, in general, far more frequently than private lawyers.
When I did misdemeanors, I did about a trial a month, which wasn't too much, but wasn't too bad. At the end of 2 1/2 - 3 years in misdemeanors, I had done over 30 jury trials. I had friends who I went to law school with who struck out on their own right after law school who had done one trial, maybe two in the same time. They didn't know how to cross-examine witnesses (when I started, I started out doing nothing but cross-examination). They had little experience with closing arguments, they didn't really understand the art of jury instructions. Clearly they did far more written work than I did, since that was where they really worked up their cases. But, for the most part, it cost them a lot of money to have to do a trial. For me, I was getting paid regardless, and I really love doing jury trials.
Now, that being said, there are plenty of really good private lawyers, some who have done over a hundred, or even hundreds of cases. But, if you're some poor little schmoe who doesn't know the first thing about the system, doesn't know the lawyers very well, and doesn't know how to find out who's good and who isn't, how are you going to go and pick a good lawyer and discern the difference between that lawyer a public defender and a bad private lawyer. You have to understand that word of mouth in the jail is very fast, and very inaccurate. A while ago there was a very pretty private lawyer who seemed to get a large amount of cases by badmouthing the PDs and flashing leg. Eventually, the bar and courts of appeal found out about how bad a lawyer she was, but several clients subbed me, and even better lawyers, out for her. Nothing like a little flash of her legs to get us off the case. I'd just shake my head sadly and know that my (now ex) client was really screwed now, and not the way he wanted to be.
That kind of thing (clients substituting - or subbing - me out of a case for a worthless private lawyer) has happened many times to me. Some of these lawyers don't know the first thing about trying a complex case like the one they're subbing me out on. The consequences are frequently disasterous for the client. I have a case right now where the client actually asked for me back after conviction and before sentencing because he realized the monumental error that he made.
I'm not going to tell you that all private lawyers suck and all PDs are good. That would be stupid. But, if I had to put this in some kind of a numerical understanding, I would say something like this. The top tier of lawyers is probably equally PDs and private lawyers (especially private lawyers who used to be PDs). The next few tiers are mostly filled with PDs, and the lower tiers would be more dominated by private lawyers. There are, simply put, many very bad private lawyers out there who will take your money and do nothing on a case.
Now, if I had all the money in the world and I needed a criminal lawyer, I'm sure everyone assumes I'd hire a private lawyer, right? Well, sort of. If I was in that kind of trouble, the lawyers that I would want to represent me would be almost all PDs, but I would probably want to hire them out to handle my case exclusively. Why is that? Is is because PDs are, as is spoken in the popular lexicon, overworked, underpaid and uncaring? Of course not. It's because if I had that kind of money where I could get any lawyer I wanted, I would also pay them for exclusivity, so they didn't handle any other cases and could concentrate on my case.
Let me be clear about this: while us PDs may have a lot of cases to handle, we generally do not have any more than your typical private lawyer. But, while private lawyers have to be out trying to get clients, we don't, they come to us whether we like them or not. They have to run offices, pay the bills, go out networking, hold their client's hands far more than we do (with more frequent jail visits that tend not to accomplish much, but do make those paying clients much happier). They have to go to different courthouses, and this is a very big deal. I only work in one courthouse. Most of my collegues do as well. We go into one building, we don't spend all of our time on the road. We don't have to worry about selling one client short while we hurry off to another court, or county, to handle another client's case. And, most importantly, going to trial does not cost us a huge amount of money along with our effort.
Therefore, I would contend that most people are better served with PDs than they are with private lawyers. Yes, there are bad PDs, but they are fewer and further between than bad private lawyers (like I said, private lawyers, don't be pissed off at me, many of you are good. But, plenty of you are not as good as us). And ultimately, mone will not ever cloud our judgment on how your case should be handled.
"I'm going to get myself a real lawyer." That is a comment I hear just about once a week, far more frequently if I'm unlucky. This comes from even the most well-meaning of clients. Don't feel bad for me, it doesn't bother me on an individual level. It does bother me on a grander scale. This is because I know that, for the most part (at least in my jurisdiction), Public Defenders are generally the best lawyers around.
Are they all the best? No, there are clearly some very bad ones who just don't care, and are sticking around collecting undeserved pay and waiting for their pension to kick in. But, on the whole, we are generally the better lawyers in the Courthouse. Are we the best lawyers in the Courthouse? Frequently, but not always.
Consider this. We get a steady diet of cases. We have them foisted on us and we cannot just go and dump a client if we don't like them or don't want to do the work. We are not paid by the hour, or by the case, so we can devote our full resources to the case and not have to concern ourselves with running out of money for the client. More importantly, because we get so many of the really bad cases, we are forced to trial, in general, far more frequently than private lawyers.
When I did misdemeanors, I did about a trial a month, which wasn't too much, but wasn't too bad. At the end of 2 1/2 - 3 years in misdemeanors, I had done over 30 jury trials. I had friends who I went to law school with who struck out on their own right after law school who had done one trial, maybe two in the same time. They didn't know how to cross-examine witnesses (when I started, I started out doing nothing but cross-examination). They had little experience with closing arguments, they didn't really understand the art of jury instructions. Clearly they did far more written work than I did, since that was where they really worked up their cases. But, for the most part, it cost them a lot of money to have to do a trial. For me, I was getting paid regardless, and I really love doing jury trials.
Now, that being said, there are plenty of really good private lawyers, some who have done over a hundred, or even hundreds of cases. But, if you're some poor little schmoe who doesn't know the first thing about the system, doesn't know the lawyers very well, and doesn't know how to find out who's good and who isn't, how are you going to go and pick a good lawyer and discern the difference between that lawyer a public defender and a bad private lawyer. You have to understand that word of mouth in the jail is very fast, and very inaccurate. A while ago there was a very pretty private lawyer who seemed to get a large amount of cases by badmouthing the PDs and flashing leg. Eventually, the bar and courts of appeal found out about how bad a lawyer she was, but several clients subbed me, and even better lawyers, out for her. Nothing like a little flash of her legs to get us off the case. I'd just shake my head sadly and know that my (now ex) client was really screwed now, and not the way he wanted to be.
That kind of thing (clients substituting - or subbing - me out of a case for a worthless private lawyer) has happened many times to me. Some of these lawyers don't know the first thing about trying a complex case like the one they're subbing me out on. The consequences are frequently disasterous for the client. I have a case right now where the client actually asked for me back after conviction and before sentencing because he realized the monumental error that he made.
I'm not going to tell you that all private lawyers suck and all PDs are good. That would be stupid. But, if I had to put this in some kind of a numerical understanding, I would say something like this. The top tier of lawyers is probably equally PDs and private lawyers (especially private lawyers who used to be PDs). The next few tiers are mostly filled with PDs, and the lower tiers would be more dominated by private lawyers. There are, simply put, many very bad private lawyers out there who will take your money and do nothing on a case.
Now, if I had all the money in the world and I needed a criminal lawyer, I'm sure everyone assumes I'd hire a private lawyer, right? Well, sort of. If I was in that kind of trouble, the lawyers that I would want to represent me would be almost all PDs, but I would probably want to hire them out to handle my case exclusively. Why is that? Is is because PDs are, as is spoken in the popular lexicon, overworked, underpaid and uncaring? Of course not. It's because if I had that kind of money where I could get any lawyer I wanted, I would also pay them for exclusivity, so they didn't handle any other cases and could concentrate on my case.
Let me be clear about this: while us PDs may have a lot of cases to handle, we generally do not have any more than your typical private lawyer. But, while private lawyers have to be out trying to get clients, we don't, they come to us whether we like them or not. They have to run offices, pay the bills, go out networking, hold their client's hands far more than we do (with more frequent jail visits that tend not to accomplish much, but do make those paying clients much happier). They have to go to different courthouses, and this is a very big deal. I only work in one courthouse. Most of my collegues do as well. We go into one building, we don't spend all of our time on the road. We don't have to worry about selling one client short while we hurry off to another court, or county, to handle another client's case. And, most importantly, going to trial does not cost us a huge amount of money along with our effort.
Therefore, I would contend that most people are better served with PDs than they are with private lawyers. Yes, there are bad PDs, but they are fewer and further between than bad private lawyers (like I said, private lawyers, don't be pissed off at me, many of you are good. But, plenty of you are not as good as us). And ultimately, mone will not ever cloud our judgment on how your case should be handled.
Tuesday, August 19, 2003
Why are Judges (at least at the trial level) DAs in black?
In California the trend probably began in earnest in 1986, when three Justices on the State Supreme Court had their confirmations voted down by the voters (in California, Appeals Judges and Supreme Court Justices must periodically be confirmed by the electorate in an up or down vote, generally a rubber stamp until that time). While the popular source of anger was aimed at these Justices extremely high rate of overturning death penalty sentences (something like 59 out of 60 sentences overturned for some reason or another), the impetus for the anti-confirmation vote was really from big business interests who didn't like the overly friendly views towards consumers that the Justices exhibited. But, the Bird saga (the Chief Justice was Rose Bird, she and two other justices lost their jobs in the vote) has had strong recriminations in the state.
The governor at the time was a law and order Republican named George Dukemeijian (sorry Duke if I spelled it wrong), who had replaced Jerry Brown in 1982. He served until 1990, when replaced by (formerly moderate) Republican Pete Wilson, who discovered the art of demonization to stay in power (he used to support immigration, but championed proposition 187, denying all benefits to families of illegal immigrants when unpopular and facing reelection. It worked, but also made the Republicans so unpopular that they've only won something like 2 statewide offices here since.). Both governors appointed Judges who knew their place in the system - don't let criminals go no matter how illogical you must be. Consider how extreme Bird and company were on one side, and be even more absurd in the other direction. To this end, the vast majority of people appointed to Judgships came from the DAs office. Those appointees with a defense background tended to be even harsher law and order types than the DAs (talk to most defense lawyers here and most will agree that the former Public Defenders appointed as Judges frequently were the worst PDs before they became Judges, and didn't get much better after they hit the bench).
The result in the last two decades has been dramatic. The interesting characters who make California a fun place to live and work are for the most part gone. People have become Judges only by pandering to the most base political causes, usually mindless law and order (that law and order mentality goes right out the door, though, when the defendants are the sacred class in California politics - law enforcement. In those rare instances, they get justice the way it is actually written in the books, and not the way it is practiced generally for poor minority clients in the courtrooms of the state). Instead of 59 of 60 death sentences overturned, the same number now get upheld, no matter how egregious the errors, how rife with misconduct from the prosecution, how patently incompetent the defense lawyer may have been. Of course, the Federal Courts have begun overturning this legacy of absurd judging in droves, having overturned on the order of a dozen death sentences in the last year or so.
The worst legacy of this period has been the eviceration of California law contorted to ensure death sentences stand up. Therefore, any error, no matter how bad, any rule, no matter how silly, any result, no matter how absurd, stands up in Supreme Court opinions so that the evil of a death sentence being overturned does not happen. The other legacy is what is called harmless error, something that has infected every trial judge in this state.
What is harmless error? Without resorting to legal mumbo jumbo, it means "alright, that was a screw-up, but it didn't affect the game, so don't sweat it, the conviction stands." Imagine a football game where the referee reviews a call, says "bad call, but you know what, the Raiders sucked, are going to lose the game anyways, so why waste our time trying to fix it now, it's too late for them. Anyways, we hate Al Davis and those damn Raider fans, so it's a net gain for society." That, in a nutshell, is harmless error California. While some errors are clearly harmless, one would not consider the bulk of the errors now called harmless to be so harmless if they cropped up in their own trials. Furthermore, the message from the Supreme Court to trial judges has been clear: "here is the rule, you must follow it, since we said it is so. However, if you fail to follow it, don't worry, for the error will be harmless." Since the police and prosecutors will try to end the career of any judge who follows the law in a way that rules against them, which way do you think most of these judges, who are generally ex-prosecutors and frequently ex-cops, will rule?
Since most of the Judges are ex-DAs, who worked closely with cops throughout their careers and depended on them to reach their present positions, they tend to take the side of law enforcement whenever they have to make a choice. While most Judges will do this, not all will. The prosecution has a weapon to make sure they do. This is called 170.6 affidavit (in the code of Civil Procedure), which allows each side to challenge a Judge on a case for no reason at all. Now, each side gets one of these per case. But stop and think about this. The DA's office is generally the only office prosecuting cases, while there are 2 public defender's offices (in many of the big cities in Cal), as well as a multitude of private lawyers who "papering" a Judge can really hurt their business in the future. So, who do you think has the ability to "paper" a Judge into civil?
If you think that the defense can do it well, consider one situation in the main courthouse in a large Californian city. There is one Judge there that both public defender's offices paper regularly, and have been for several years. And yet, he stays there taking private counsel cases, pro pers (people who represent themselves), and overflow cases where other Judges have been papered. If the DA's office papered him, he'd be in civil before he'd had a chance to read up on his civil law (which he'd probably know little about, since he's practiced criminal law most of his life). Yet, papered by the defense, he remains at the main courthouse ready to wreak havoc on any defendant who appears before him, unbothered by the fact that just about every lawyer who knows the first thing about criminal law thinks his abilities fall somewhere below a first year law student's abilities, to say nothing of his fairness.
The message to Judges is clear - your career can be ruined by the police and prosecution, don't mess with them. The higher courts have given them a green light, the other Judges give them a green light, and the people who really control the courts, the prosecution, have given them a green light (in fact, they really hold all of the traffic signs for the judiciary to follow).
Result - California Courts have gone from one of the most respected and cited courts in the nation, to a joke that gets overturned in just about every situation possible by Federal Courts. But, the Federal Courts can only take a very small number of cases, so a very large number of people sit for increasingly long periods of time in prison after having their cases completely bungled by the DAs behind counsel table, and the DAs on the bench, the supposed "check" on the "real" DAs.
In California the trend probably began in earnest in 1986, when three Justices on the State Supreme Court had their confirmations voted down by the voters (in California, Appeals Judges and Supreme Court Justices must periodically be confirmed by the electorate in an up or down vote, generally a rubber stamp until that time). While the popular source of anger was aimed at these Justices extremely high rate of overturning death penalty sentences (something like 59 out of 60 sentences overturned for some reason or another), the impetus for the anti-confirmation vote was really from big business interests who didn't like the overly friendly views towards consumers that the Justices exhibited. But, the Bird saga (the Chief Justice was Rose Bird, she and two other justices lost their jobs in the vote) has had strong recriminations in the state.
The governor at the time was a law and order Republican named George Dukemeijian (sorry Duke if I spelled it wrong), who had replaced Jerry Brown in 1982. He served until 1990, when replaced by (formerly moderate) Republican Pete Wilson, who discovered the art of demonization to stay in power (he used to support immigration, but championed proposition 187, denying all benefits to families of illegal immigrants when unpopular and facing reelection. It worked, but also made the Republicans so unpopular that they've only won something like 2 statewide offices here since.). Both governors appointed Judges who knew their place in the system - don't let criminals go no matter how illogical you must be. Consider how extreme Bird and company were on one side, and be even more absurd in the other direction. To this end, the vast majority of people appointed to Judgships came from the DAs office. Those appointees with a defense background tended to be even harsher law and order types than the DAs (talk to most defense lawyers here and most will agree that the former Public Defenders appointed as Judges frequently were the worst PDs before they became Judges, and didn't get much better after they hit the bench).
The result in the last two decades has been dramatic. The interesting characters who make California a fun place to live and work are for the most part gone. People have become Judges only by pandering to the most base political causes, usually mindless law and order (that law and order mentality goes right out the door, though, when the defendants are the sacred class in California politics - law enforcement. In those rare instances, they get justice the way it is actually written in the books, and not the way it is practiced generally for poor minority clients in the courtrooms of the state). Instead of 59 of 60 death sentences overturned, the same number now get upheld, no matter how egregious the errors, how rife with misconduct from the prosecution, how patently incompetent the defense lawyer may have been. Of course, the Federal Courts have begun overturning this legacy of absurd judging in droves, having overturned on the order of a dozen death sentences in the last year or so.
The worst legacy of this period has been the eviceration of California law contorted to ensure death sentences stand up. Therefore, any error, no matter how bad, any rule, no matter how silly, any result, no matter how absurd, stands up in Supreme Court opinions so that the evil of a death sentence being overturned does not happen. The other legacy is what is called harmless error, something that has infected every trial judge in this state.
What is harmless error? Without resorting to legal mumbo jumbo, it means "alright, that was a screw-up, but it didn't affect the game, so don't sweat it, the conviction stands." Imagine a football game where the referee reviews a call, says "bad call, but you know what, the Raiders sucked, are going to lose the game anyways, so why waste our time trying to fix it now, it's too late for them. Anyways, we hate Al Davis and those damn Raider fans, so it's a net gain for society." That, in a nutshell, is harmless error California. While some errors are clearly harmless, one would not consider the bulk of the errors now called harmless to be so harmless if they cropped up in their own trials. Furthermore, the message from the Supreme Court to trial judges has been clear: "here is the rule, you must follow it, since we said it is so. However, if you fail to follow it, don't worry, for the error will be harmless." Since the police and prosecutors will try to end the career of any judge who follows the law in a way that rules against them, which way do you think most of these judges, who are generally ex-prosecutors and frequently ex-cops, will rule?
Since most of the Judges are ex-DAs, who worked closely with cops throughout their careers and depended on them to reach their present positions, they tend to take the side of law enforcement whenever they have to make a choice. While most Judges will do this, not all will. The prosecution has a weapon to make sure they do. This is called 170.6 affidavit (in the code of Civil Procedure), which allows each side to challenge a Judge on a case for no reason at all. Now, each side gets one of these per case. But stop and think about this. The DA's office is generally the only office prosecuting cases, while there are 2 public defender's offices (in many of the big cities in Cal), as well as a multitude of private lawyers who "papering" a Judge can really hurt their business in the future. So, who do you think has the ability to "paper" a Judge into civil?
If you think that the defense can do it well, consider one situation in the main courthouse in a large Californian city. There is one Judge there that both public defender's offices paper regularly, and have been for several years. And yet, he stays there taking private counsel cases, pro pers (people who represent themselves), and overflow cases where other Judges have been papered. If the DA's office papered him, he'd be in civil before he'd had a chance to read up on his civil law (which he'd probably know little about, since he's practiced criminal law most of his life). Yet, papered by the defense, he remains at the main courthouse ready to wreak havoc on any defendant who appears before him, unbothered by the fact that just about every lawyer who knows the first thing about criminal law thinks his abilities fall somewhere below a first year law student's abilities, to say nothing of his fairness.
The message to Judges is clear - your career can be ruined by the police and prosecution, don't mess with them. The higher courts have given them a green light, the other Judges give them a green light, and the people who really control the courts, the prosecution, have given them a green light (in fact, they really hold all of the traffic signs for the judiciary to follow).
Result - California Courts have gone from one of the most respected and cited courts in the nation, to a joke that gets overturned in just about every situation possible by Federal Courts. But, the Federal Courts can only take a very small number of cases, so a very large number of people sit for increasingly long periods of time in prison after having their cases completely bungled by the DAs behind counsel table, and the DAs on the bench, the supposed "check" on the "real" DAs.
Saturday, August 09, 2003
This blog is not only about the criminal justice system. Us Public Defenders tend to be anti-establishment and have strong views on a variety of subjects, most of these views would be at odds with much of the rest of society, but they would tend to be very logical and well thought out views.
Which leads me to talk a little about the war and its aftermath.
I actually supported the war. My view was that, based on what my government said and history, Hussein was a dangerous meglomaniac who, with the right weapons, could wreak destruction on the rest of the world. In his position, I felt that the world would have to deal with him sooner or later, and sooner certainly beat later if it meant that later he would have the power of Kim Jong Il (which, in my mind, meant that even though Kim had worse weapons, Hussein's possession of some of those weapons, and attempts to get more, meant that he was proper fodder for attack since we did not want to to get to be like Kim).
I began to have some disquiet as the war continued. Essentially, I wondered, if Hussein was as dangerous as our government had told us (the reason I favored the war), and if he was really willing to do all of the evil things he had done in the past, why didn't he do them now? He was fighting his battle to the death, he had nothing left to wait for, nothing to hold out for, why not use all of the weapons at his disposal.
I have come to believe that he did use all of the weapons at his disposal, and they did not include WMD, scuds, nukes, or anything else that our government told us they included. Later we find out that Paul Wolfowitz (one of the architects of the war, and a proponant of this war since 1998) said that WMD were merely a pretext that people could agree on.
Yes, Paul, the reason people could agree on that is because it was the only valid basis for an unprovoked, non-defensive war that ripped apart all of our long-held alliances and caused long-term, perhaps permenant, damage to our international prestige and goodwill. Evidentally those hawks in the administration followed Bush's other big plan when running for office: faith based initiatives. Obviously, this war and it's aftermath are examples of foreign policy by faith based initiative. Just hope that there are WMD, lie to our friends, alienate our allies, and have faith that all will turn out ok. Don't have a plan for occupation, just give all of your friends at Bechtel and Halliburtan a blank check and have faith that all will turn out ok.
Clearly the world is a better place with Hussein living in fear and hiding while his people live with hope. The question is whether we are better off with Freedom fries instead of French fries, Russia and Poland as our biggest allies, crooks like Silvio Burlesconi given invitations to the Crawford ranch, while decades long allies (and true democrats) like Chirac and Schroeder are treated like Josef Stalin?
This administration supposedly runs foreign policy with a religious zeal, promoting values like freedom and democracy. Well, can you count on 2 hands any countries that embody that ideal more than France and Germany, 2 truly pluralistic democratic and free nations that allow their people most of the same choices that our nation allows our people? Shouldn't these nations be held up as an ideal to aspire to, and not be threatened with punishment while quasi-dictatorships like Russia, nascent democracies (and hardly the shining idea of a nation we should all aspire to - yet) like Poland, erstwhile democracies with a history of unstable governments and a crook as its president (read this article by the Economist, no leftist publication, if you don't believe me) like Italy are treated like royalty?
All I'm saying is I wish that the US hadn't set a standard which said, to nations like China, Russia, and even worse places, screw the world community, we're right, they're wrong, and we have the weapons to prove it, so deal with it. I also wish that instead of our troops trying to play tinpot colonialists out there (I say tinpot because we don't have the evil streak to be true colonialists, what with the kill a hundred of their civilians for every one of our soldier's killed, huge detention camps for anyone who speaks out against us, in other words, ruling by fear) I would much prefer to see the blue hats (UN) running the show, with Russian, French, British, Chinese, and other soldiers lives on the line in addition to ours. I think the mission would have far more credibility, there would be less allegations that we are doing this to line the pockets of all of the president's cabinet's old co-workers, and we may still be able to eat French Fries in the Capital cafeteria.
Which leads me to talk a little about the war and its aftermath.
I actually supported the war. My view was that, based on what my government said and history, Hussein was a dangerous meglomaniac who, with the right weapons, could wreak destruction on the rest of the world. In his position, I felt that the world would have to deal with him sooner or later, and sooner certainly beat later if it meant that later he would have the power of Kim Jong Il (which, in my mind, meant that even though Kim had worse weapons, Hussein's possession of some of those weapons, and attempts to get more, meant that he was proper fodder for attack since we did not want to to get to be like Kim).
I began to have some disquiet as the war continued. Essentially, I wondered, if Hussein was as dangerous as our government had told us (the reason I favored the war), and if he was really willing to do all of the evil things he had done in the past, why didn't he do them now? He was fighting his battle to the death, he had nothing left to wait for, nothing to hold out for, why not use all of the weapons at his disposal.
I have come to believe that he did use all of the weapons at his disposal, and they did not include WMD, scuds, nukes, or anything else that our government told us they included. Later we find out that Paul Wolfowitz (one of the architects of the war, and a proponant of this war since 1998) said that WMD were merely a pretext that people could agree on.
Yes, Paul, the reason people could agree on that is because it was the only valid basis for an unprovoked, non-defensive war that ripped apart all of our long-held alliances and caused long-term, perhaps permenant, damage to our international prestige and goodwill. Evidentally those hawks in the administration followed Bush's other big plan when running for office: faith based initiatives. Obviously, this war and it's aftermath are examples of foreign policy by faith based initiative. Just hope that there are WMD, lie to our friends, alienate our allies, and have faith that all will turn out ok. Don't have a plan for occupation, just give all of your friends at Bechtel and Halliburtan a blank check and have faith that all will turn out ok.
Clearly the world is a better place with Hussein living in fear and hiding while his people live with hope. The question is whether we are better off with Freedom fries instead of French fries, Russia and Poland as our biggest allies, crooks like Silvio Burlesconi given invitations to the Crawford ranch, while decades long allies (and true democrats) like Chirac and Schroeder are treated like Josef Stalin?
This administration supposedly runs foreign policy with a religious zeal, promoting values like freedom and democracy. Well, can you count on 2 hands any countries that embody that ideal more than France and Germany, 2 truly pluralistic democratic and free nations that allow their people most of the same choices that our nation allows our people? Shouldn't these nations be held up as an ideal to aspire to, and not be threatened with punishment while quasi-dictatorships like Russia, nascent democracies (and hardly the shining idea of a nation we should all aspire to - yet) like Poland, erstwhile democracies with a history of unstable governments and a crook as its president (read this article by the Economist, no leftist publication, if you don't believe me) like Italy are treated like royalty?
All I'm saying is I wish that the US hadn't set a standard which said, to nations like China, Russia, and even worse places, screw the world community, we're right, they're wrong, and we have the weapons to prove it, so deal with it. I also wish that instead of our troops trying to play tinpot colonialists out there (I say tinpot because we don't have the evil streak to be true colonialists, what with the kill a hundred of their civilians for every one of our soldier's killed, huge detention camps for anyone who speaks out against us, in other words, ruling by fear) I would much prefer to see the blue hats (UN) running the show, with Russian, French, British, Chinese, and other soldiers lives on the line in addition to ours. I think the mission would have far more credibility, there would be less allegations that we are doing this to line the pockets of all of the president's cabinet's old co-workers, and we may still be able to eat French Fries in the Capital cafeteria.
Thursday, August 07, 2003
A bird in hand is better than 2 in the bush.
I'm quite convinced that police frequently fear searching for the truth about suspects when the truth may point to another person. This means that doing more investigation would inculpate another (uncharged) person, while exculpating the charged person. Thus, any work they do undermines the case they have, for the hopes of building a case against someone else. However, if they were to ever file a case against that other person, the person they previously charged looms as reasonable doubt in their case against the new person.
Got it?
What this means is that they would prefer to just go with what they have, since further work may bring up information helpful to the suspect, and they wouldn't want that.
Naahhhh, you say, this couldn't happen in real life. Except for a murder case I have right now, and a murder case I had in the past.
In my past case, the police failed to follow up on a suspect, someone ID'd at the scene by two of his "homies," because that person didn't fit into their theory of the case. They claimed not to know who this person was, so I even gave them information on this person, including a photo. They never even drove by his house. You have no idea how nice it sounded in trial, when I cross-examined the detective on 4 different days during trial: "officer, you have had this person's info for 9 months now, have you bothered to go to his house yet?" "Officer, how far do you work from his house?" "Officer, have you even bothered to call his house?" "Officer, have you even bothered to run him for priors?" "Officer, you work 5 minutes from his house and don't have to pay for parking, you can even park in a red zone in front of his house, have you bothered to do this yet?" "Officer, you could go to his house today after trial and still be home by 6:00, is that right?" "Officer, it's now 3 days since I asked you these last questions, have you bothered to go by his house yet?" "Officer, you've been back to the office now 5 times since we first spoke, have you bothered to go to his house yet?" When that was read back to the jury (at their request), it sounded devestating - Not guilty.
Now I have another one where the police stopped investigating one suspect (someone a witness ID'd as being the shooter, who later lied to the police about his whereabouts that day, and then moved out of his adjacent house 2 days later) when they got another suspect who 2 witnesses ID'd (that would be my client). My client requested that we DNA test any and all evidence that the shooter may have touched (knowing that the DA and police would do so before we could, would get the results, and would use it against him if it came back positive), and VOILA, samples were recovered that excluded my client. So, the simple thing seems to be, get the other person's DNA, right? Oh no, we couldn't do that now, could we. That would only mess up their case against this defendant. So, now I'm going to have to somehow get it. Incredible how many less resources and abilities I have to do this than those with badges and guns.
Just remember this when police and DAs insist that it hurts them just as much as the defense for someone to be wrongfully convicted.
I'm quite convinced that police frequently fear searching for the truth about suspects when the truth may point to another person. This means that doing more investigation would inculpate another (uncharged) person, while exculpating the charged person. Thus, any work they do undermines the case they have, for the hopes of building a case against someone else. However, if they were to ever file a case against that other person, the person they previously charged looms as reasonable doubt in their case against the new person.
Got it?
What this means is that they would prefer to just go with what they have, since further work may bring up information helpful to the suspect, and they wouldn't want that.
Naahhhh, you say, this couldn't happen in real life. Except for a murder case I have right now, and a murder case I had in the past.
In my past case, the police failed to follow up on a suspect, someone ID'd at the scene by two of his "homies," because that person didn't fit into their theory of the case. They claimed not to know who this person was, so I even gave them information on this person, including a photo. They never even drove by his house. You have no idea how nice it sounded in trial, when I cross-examined the detective on 4 different days during trial: "officer, you have had this person's info for 9 months now, have you bothered to go to his house yet?" "Officer, how far do you work from his house?" "Officer, have you even bothered to call his house?" "Officer, have you even bothered to run him for priors?" "Officer, you work 5 minutes from his house and don't have to pay for parking, you can even park in a red zone in front of his house, have you bothered to do this yet?" "Officer, you could go to his house today after trial and still be home by 6:00, is that right?" "Officer, it's now 3 days since I asked you these last questions, have you bothered to go by his house yet?" "Officer, you've been back to the office now 5 times since we first spoke, have you bothered to go to his house yet?" When that was read back to the jury (at their request), it sounded devestating - Not guilty.
Now I have another one where the police stopped investigating one suspect (someone a witness ID'd as being the shooter, who later lied to the police about his whereabouts that day, and then moved out of his adjacent house 2 days later) when they got another suspect who 2 witnesses ID'd (that would be my client). My client requested that we DNA test any and all evidence that the shooter may have touched (knowing that the DA and police would do so before we could, would get the results, and would use it against him if it came back positive), and VOILA, samples were recovered that excluded my client. So, the simple thing seems to be, get the other person's DNA, right? Oh no, we couldn't do that now, could we. That would only mess up their case against this defendant. So, now I'm going to have to somehow get it. Incredible how many less resources and abilities I have to do this than those with badges and guns.
Just remember this when police and DAs insist that it hurts them just as much as the defense for someone to be wrongfully convicted.
Wednesday, August 06, 2003
NOT GUILTY BABY!!!!
Always a pleasure to have a jury come out and say what you've known all along, that you're a kickass lawyer who can try the hell out of a case. Today was no exception, got a not guilty on a pretty serious case. The fact is, though, as much as I would like to take credit for "winning it myself," the facts just weren't there. In fact, my client probably didn't even do this, but was sort of caught up in the case because he was in the wrong place at the wrong time. That being said, I did do a helluva a job getting an innocent (or at least seemingly innocent) man off.
When I say seemingly innocent, I say that because ultimately, I wasn't there, I don't know the true facts, and if my client really was or wasn't one of the persons who did this act. The facts certainly pointed to the reality that there was no evidence against him except for a very weak identification. This ID was unsupported by any other evidence. Therefore, I could only surmise possible innocence by the fact that my client insistent that he was innocent (something that plenty of my guilty clients are), and that he stuck to his story under withering interrogation by the detective, despite the multiple lies the detective told him about mountains of evidence against him. My client even jumped at the opportunity to take a lie detector test when the detective offered him one (no surprise, I guess, that the detective didn't follow up on that one, God fobid he finds the defendant's innocent and has to go out and do some real work).
Because I really don't know what happened on a case, I rarely will say I think anyone's actually innocent. I'll say that the evidence against them is weak, that the case can't be proven, that it looks likely that my client didn't do the offense, but a claim of innocence is very rare for me to make. The only time I really make that kind of a claim is when I have rock solid proof that my client couldn't have done the act (such as he was in jail at the time the offense occurred out on the streets). By this cautious approach, I wouldn't even be able to delcare that I was innocent of killing Nicole Simpson, for instance. After all, I was home alone that night, I have no witnesses to being at home, and I have no proof that I didn't do it. See what I mean? I need actual proof that someone's innocent before I refer to them as innocent, otherwise it's just a claim of innocence. The rest are shades of guilt, or very weak proofs of guilt.
Always a pleasure to have a jury come out and say what you've known all along, that you're a kickass lawyer who can try the hell out of a case. Today was no exception, got a not guilty on a pretty serious case. The fact is, though, as much as I would like to take credit for "winning it myself," the facts just weren't there. In fact, my client probably didn't even do this, but was sort of caught up in the case because he was in the wrong place at the wrong time. That being said, I did do a helluva a job getting an innocent (or at least seemingly innocent) man off.
When I say seemingly innocent, I say that because ultimately, I wasn't there, I don't know the true facts, and if my client really was or wasn't one of the persons who did this act. The facts certainly pointed to the reality that there was no evidence against him except for a very weak identification. This ID was unsupported by any other evidence. Therefore, I could only surmise possible innocence by the fact that my client insistent that he was innocent (something that plenty of my guilty clients are), and that he stuck to his story under withering interrogation by the detective, despite the multiple lies the detective told him about mountains of evidence against him. My client even jumped at the opportunity to take a lie detector test when the detective offered him one (no surprise, I guess, that the detective didn't follow up on that one, God fobid he finds the defendant's innocent and has to go out and do some real work).
Because I really don't know what happened on a case, I rarely will say I think anyone's actually innocent. I'll say that the evidence against them is weak, that the case can't be proven, that it looks likely that my client didn't do the offense, but a claim of innocence is very rare for me to make. The only time I really make that kind of a claim is when I have rock solid proof that my client couldn't have done the act (such as he was in jail at the time the offense occurred out on the streets). By this cautious approach, I wouldn't even be able to delcare that I was innocent of killing Nicole Simpson, for instance. After all, I was home alone that night, I have no witnesses to being at home, and I have no proof that I didn't do it. See what I mean? I need actual proof that someone's innocent before I refer to them as innocent, otherwise it's just a claim of innocence. The rest are shades of guilt, or very weak proofs of guilt.
Hello and welcome to my blog. I'm a public defender in an urban area in California (sounds like the start of a Penthouse forum....."I never thought this would happen to me...."), where I represent people charged with all types of felonies, from minor cases like possession of drugs, to special circumstance murders where the defendants are eligible for the death penalty.
Hopefully this blog will dispel many misimpressions you probably have about PDs, and you'll come to the conclusion that I have, that Public Defenders rock, they're the best lawyers around, and our society is lucky to have a group like us.
I'll make my first post a basic one about what kind of work we do, and how we progress up the chain.
Where I work we start out doing preliminary hearings. Prelims are the probable cause determinations, basically rubber stamps, where the prosecution puts on evidence showing that an accused is likely guilty of the crime they're charged with, and that sufficient evidence exists to hold that person over for trial. I'll discuss more about prelims later, but they're a great way to learn the most important tool in being a trial lawyer: cross examination. By doing prelim after prelim, sometimes for months on end, we become among the best cross examiners around with practice that few can emulate.
After prelims, we go on to begin working in misdemeanors. We begin by just doing arraignments (where someone has the charges presented against them and they enter a plea of either guilty/no contest or not guilty). Later, we go on to start doing trials. Generally, the misdemeanor assignment goes on for anywhere from 1 1/2 - 4 years, depending on how the rotations are working and how well someone is doing.
From there, one frequently works in Juvenile Delinquency Court, representing Juveniles accused of crimes. This is sort of cross between prelims and misdemeanor trials, in that Juvis do not have a right to a jury trial (even though they face extremely severe penalties and lifelong consequences for these crimes), but the offenses are usually felonies, so you get practice with more serious cases and large volume.
Finally, after a year or two of juvi, you go on to felonies. The only step up from there is whether or not you do special circumstance murders (ie - death cases). People become eligible to do death cases (if they choose - many choose not to) after anywhere from 3 years on up of doing felonies (which means you will get many murder cases, just not those where death is a possibility, as well as plenty of other cases where the defendant is looking at life - which really means life here in Cal).
That's the basics, I'll talk more about the different aspects of each job at other times, but hopefully more anecdotally, as this preliminary stuff can be pretty dry.
The best thing about our job is that we get to tilt against windmills. We fight the power. Everyone is against us: DAs, Cops, and DAs with robes (ie - many of the Judges). Even bailiffs, court clerks, court reporters and other court staff don't like us frequently, but few show greater disdain for us than many of our clients. They save some of their best invective for us: public offenders, public pretenders, dump trucks, wanna be DAs, etc.... The fact is, most people don't appreciate something that is given to them for free. Legal services are no exception. I can't tell you how many times I've represented someone on a serious case and they bring in some worthless lawyer to take over the case just because that lawyer is a "paid" lawyer (as if we do this for free). In the end, most of my clients end up regretting their decision.
Right now I represent someone who was convicted at trial of serious charges for which he will probably spend the rest of his life in prison, and if not, at least 15 years. He dumped me before the prelim since he figured any private lawyer was better than a public offender like me. Well, he called me constantly afterwards, regretting his choice (not that he ever told the Judge this), telling me how I did more in a week than his lawyer did the whole time, how I was prepared more before prelim than his lawyer was at trial, etc..... AFTER he was convicted, he decided to fire his private lawyer and ask for me back (which he got). Well, sorry sir, but it's probably too late now, once you've been convicted, you're probably out of luck, but I'll do my best for you nonetheless trying to show all of the things that your previous lawyer should've done but didn't do.
Anyways, that's it for now, it's late, and I have a jury trial to deal with tomorrow. If you have any comments, or want to call me a public offender or some other nice things, go right ahead. Sorry, though, I can't give any of you legal advice (and as I always tell my friends when they call me up with a legal question: "If I can answer your question, you're in bad shape, because there's only one area of law that I really know anything about, and it's bad news if it applies to you").
Hopefully this blog will dispel many misimpressions you probably have about PDs, and you'll come to the conclusion that I have, that Public Defenders rock, they're the best lawyers around, and our society is lucky to have a group like us.
I'll make my first post a basic one about what kind of work we do, and how we progress up the chain.
Where I work we start out doing preliminary hearings. Prelims are the probable cause determinations, basically rubber stamps, where the prosecution puts on evidence showing that an accused is likely guilty of the crime they're charged with, and that sufficient evidence exists to hold that person over for trial. I'll discuss more about prelims later, but they're a great way to learn the most important tool in being a trial lawyer: cross examination. By doing prelim after prelim, sometimes for months on end, we become among the best cross examiners around with practice that few can emulate.
After prelims, we go on to begin working in misdemeanors. We begin by just doing arraignments (where someone has the charges presented against them and they enter a plea of either guilty/no contest or not guilty). Later, we go on to start doing trials. Generally, the misdemeanor assignment goes on for anywhere from 1 1/2 - 4 years, depending on how the rotations are working and how well someone is doing.
From there, one frequently works in Juvenile Delinquency Court, representing Juveniles accused of crimes. This is sort of cross between prelims and misdemeanor trials, in that Juvis do not have a right to a jury trial (even though they face extremely severe penalties and lifelong consequences for these crimes), but the offenses are usually felonies, so you get practice with more serious cases and large volume.
Finally, after a year or two of juvi, you go on to felonies. The only step up from there is whether or not you do special circumstance murders (ie - death cases). People become eligible to do death cases (if they choose - many choose not to) after anywhere from 3 years on up of doing felonies (which means you will get many murder cases, just not those where death is a possibility, as well as plenty of other cases where the defendant is looking at life - which really means life here in Cal).
That's the basics, I'll talk more about the different aspects of each job at other times, but hopefully more anecdotally, as this preliminary stuff can be pretty dry.
The best thing about our job is that we get to tilt against windmills. We fight the power. Everyone is against us: DAs, Cops, and DAs with robes (ie - many of the Judges). Even bailiffs, court clerks, court reporters and other court staff don't like us frequently, but few show greater disdain for us than many of our clients. They save some of their best invective for us: public offenders, public pretenders, dump trucks, wanna be DAs, etc.... The fact is, most people don't appreciate something that is given to them for free. Legal services are no exception. I can't tell you how many times I've represented someone on a serious case and they bring in some worthless lawyer to take over the case just because that lawyer is a "paid" lawyer (as if we do this for free). In the end, most of my clients end up regretting their decision.
Right now I represent someone who was convicted at trial of serious charges for which he will probably spend the rest of his life in prison, and if not, at least 15 years. He dumped me before the prelim since he figured any private lawyer was better than a public offender like me. Well, he called me constantly afterwards, regretting his choice (not that he ever told the Judge this), telling me how I did more in a week than his lawyer did the whole time, how I was prepared more before prelim than his lawyer was at trial, etc..... AFTER he was convicted, he decided to fire his private lawyer and ask for me back (which he got). Well, sorry sir, but it's probably too late now, once you've been convicted, you're probably out of luck, but I'll do my best for you nonetheless trying to show all of the things that your previous lawyer should've done but didn't do.
Anyways, that's it for now, it's late, and I have a jury trial to deal with tomorrow. If you have any comments, or want to call me a public offender or some other nice things, go right ahead. Sorry, though, I can't give any of you legal advice (and as I always tell my friends when they call me up with a legal question: "If I can answer your question, you're in bad shape, because there's only one area of law that I really know anything about, and it's bad news if it applies to you").
Subscribe to:
Posts (Atom)