Thursday, November 20, 2003

High profile Defendants

I have only had a few cases that got any press attention. I have been asked for comments by the press before, but I have rarely given them. On two occasions I spoke to a reporter and gave extensive comments, but after doing so, I recognized how easy it is for your statements to be taken out of context. I try to let my comments in the courtroom do the talking. I have actually had those comments appear in the paper as well.

This is a different beast than high profile defendants, and we have 5 of them right now in or around LA (or related to LA) that are getting international attention. In many respects I envy the lawyers who are doing these cases, in that I would love to handle a case that garnered internation attention. I would love to shine on a world stage. On the other hand, I would not like to live my life under that kind of a microscope.

I have met Mark Geragos a few times in court, he is a nice guy, just like me or any number of other lawyers. He is a good lawyer, also. However, his legal life is totally different than mine with the clients that he represents. Having Scott Peterson and Michael Jackson as clients is a tough thing to have to do. For years to come, he will be tarred with the brush of these clients. Every comment he makes will appear in print, and if he says anything that can be twisted, every talk radio show will villify him for hours about it. Already there is one show in LA who has said for years that if Geragos represents you, you must be guilty. That can't be enjoyable for Mark, nor can it be helpful for his future clients.

Also, many of the things you have to do in court don't translate easily into the airwaves. Talk radio is saying that Geragos may try to "trash" the victim in the Michael Jackson case, and trash his family. Well, I have some news for you. When trying to cast reasonable doubt on a case, you are required to look at the motives and biases of the witnesses against you. Everytime you go to the police you put your credibility at issue. I don't know the facts of the Michael Jackson case well, but I have heard rumors that when Michael Jackson cut off funding for the family, they went to a lawyer to see how they could get back on the gravy train. This may be true, it may not be true. However, exploring this possibility is not a matter of "trashing the victim." It is a legitemate investigation into the background of someone who's statements could put you in prison for the rest of your life.

The same thing has happened in the Kobe Bryant case. Bringing out the fact (if true) that the victim has tried to commit suicide on 2 occasions recently before the alleged rape is highly probative about her state of mind and mental state in general. This is not "trashing" her, but looking into her motivations to potentially lie. Again, Kobe is looking at life in prison on this case, and no one would like to see their family or loved ones put in prison for life when there exists potentially exculpatory evidence about the mental state or prior history of the complaining witness that was not explored for fear of "trashing the victim." The same goes with her possibly having 2 sex partners in the day before or after sex with Kobe. This is necessary to understand her state of mind, and determining where any injuries she suffered may have come from.

Who knows how the recently filed Phil Spector case will go, but I'm sure that issues related to the decedant will come up, and that (especially right wing) talk radio will attempt to portray the defense lawyer as a sleezebag for "trashing the victim."

I had a child molestation case one time with a defendant who had a prior child molestation. The victims in the new case probably knew about his prior, and they used to harass him (calling him molester, vandalizing his car, etc....). From one little tidbit of information, I found out that one of them suffered from hallucinations, and had told his psychologist that he never told the truth, that he liked to lie, that he didn't even trust himself, and things of the like. The other had actually sexually assaulted his teacher, had lied about having sex with her, and had done other assorted unruly activities. Also, the two boys knew eachother, and discussed the defendant at length. Was it trashing the victims to bring this out? If I hadn't, what is the point of cross examination, presenting a defense, questioning the credibility of a witness, etc....? The point is, you must be able to bring out this important information related to the credibility of witnesses in trial in order to show whatever biases they have. Without that, our justice system is a joke.

In high profile cases, it is even harder. You will be personally attacked, your client will be presumed guilty in public, exposing you to ridicule in front of your future jurors. This makes cases like this even harder.

Wednesday, November 12, 2003

I've received a lot of great feedback lately, and I really appreciate it. Keep the comments coming (even if they're critical, which they haven't been of late, I'm used to having people take potshots at me, only usually it happens in court where a DA in robes is abetting it).

Reader/commenter Brett suggested that to get myself up for even the most basic of trials I get angry.

When I first started this job, especially when I worked misdemeanors, I used to get pissed off all the time. At that time, I was frequently defending people charged with things that either I had done, or friends of mine had, or things that just didn't seem to matter. I mean, how can you really be upset at someone who wants to sell their body for $5 (I'm not joking, in the inner city, you'll frequently see $5 as the going rate for sex)? You feel that it's pathetic, and you want to hug the person for having such a pathetic existence that $5 is all they consider their value in life.

When the vice cop gets up on the stand and lies, or exaggerates, or even worse, writes in his report how he tried to negotiate down from $10 to $5, you just want to punch him (he could agree on any price and get a violation of this idiotic law, what kind of human so wants to demean these women that they'd try to negotiate them down to $5 for sex and then arrest them?). It is not difficult to get angry quite frequently.

Under the influence cases are just as bad. I'm not talking about driving under the influence, attacking someone under the influence, being a nuisance under the influence, I'm talking about walking down the street, minding your own business, and having a cop stop you because he thinks your gait is a little off, and suspects you of being under the influence of drugs, and drags you in. They do these stupid little tests (like look at your pupils, gauge your nystagmus, which is your eyes twitching, look at your demeanor), and then they demand a blood or urine test. Refusal is taken as consciousness of guilt at trial.

The mandatory minimum sentence for a conviction of this offense (Health & Safety Code Section 11550 for those who don't believe me) is 90 days in county jail. 2nd, 3rd and subsequent offenses frequently garner a year in jail or more, due to overlapping probation violations.

Did you all get that? Walking around high gets you a long time in jail! Beat the crap out of your wife a few times, you may not see the inside of a cell, drive drunk off your ass and get caught a 2nd time, you may not serve more than 48 hours. I've had many people who committed robberies get less time than these menaces walking down the street minding their own business high on heroin (boy that's a dangerous one, I've yet to see anyone committ an assault while high on heroin).

So, much of my time in misdemeanors was spent pissed off just for the fact of these filings.

That changed in felonies. I'm not saying all cases are serious, the DA frequently enough files bogus cases as felonies. I've yet to understand why anyone should face criminal sanction for pumping their bodies full of those drugs who's makers don't have enough money to lobby their former user George Bush to decriminalize it. That being said, quite a few, probably the majority, involve some action generally more serious than driving drunk or slapping your wife, and I can't get pissed off at the fact of someone being so charged (I've never slapped my wife, and I haven't robbed a bank, so there's very little empathy there from me when I encounter those situations - sympathy, yes, but not empathy).

I can still get plenty pissed off at the manner in which someone is charged, the police tactics in bringing someone down, the extraordinarily high sentences frequently give out for minor violations, police who elicite false confessions, questioning them even though they've invoked Miranda, and finding sly ways to not to even give Miranda. Or, as you can see from my last trial, finding reasons to be pissed off is not important.

That being said, felonies, which has encompassed the vast majority of my career now, are clearly more serious than misdemeanors, and don't elicit the same sympathy on my part towards defendants that misdemeanors did. That's fine, I still do a great job, I still fight hard, and I don't need to empathize with a client to want to get them off, even if I "know" they are guilty. I have a job to do, to competently represent a client. This means that I do everything they would do to defend themselves if they had the legal knowledge to do so, as long as I don't jeopardize my bar card or my career. There's enough injustice going around that I still get my blood boiling, and sentences in this state are so out of control severe that this allows me to brawl on without pause.

This keeps me churning, fighting, and ready for the next day as if it was my very first.

Monday, November 10, 2003

Back to the Grind

I love my job, I always have, and I think it is among the most noble, and enjoyable, professions imaginable.

That being said, after finishing a huge trial, especially one like the one I just did, with pretty favorable results (a client who faced the possibility of never leaving prison has not been convicted despite 2 eyewitnesses testifying he shot them at trial), means that there is an inevitable let down.

While I was slogging away at trial, my co-workers were wonderful to me, standing in on cases, handling them when need be, doing whatever it took to make my life easy (as I do for them when they are in trial). Now that it's over, I'm suddenly back handling the bulk of cases that I used to handle, dealing with some of the same whining clients who are complaining about a few days in jail, when I just did a trial that took 19 months to get to trial and the person faced the rest of his life in prison. How do you get excited about a dope case where the person wants 90 days instead of 180?

Of course, this is just par for the course, probably in all aspects of life, not just my job. I remember the first (and only) time I caught a foul ball. I was stunned for a while, then people kept coming up to me and congratulating me, then a friend of mine saw it on the screen and made his way over to me an inning later to tell me he saw me and how jealous he was. I left the stadium still sort of on a cloud. The next day at work, I had the ball and regaled everyone with the story. Within another day, the event that I had imagined happening to me every ball game I went to for the last 30 years had completely worn off. I barely even remember that I caught the ball now.

It's like that with a huge case. Life goes on, and one of it's challenges is to constantly re-challenge yourself. This means you cannot rest on your laurels, you have to get up, and find interest in the mundane again, the things that are not extremely sexy, the things you deal with every day.

I'm lucky in that I really enjoy my job, the little things have always kept me interested, and the fact that I'm not doing a special circumstance murder case hasn't given me too much of a letdown. I'm able to quickly recall all the things that I love about this job aside from doing heavy murder trials, and thus able to handle the inevitible let down. is hard to get up for that looming dope trial.

Tuesday, November 04, 2003

Kissing Your Sister

Someone once said that ties are like kissing your sister, and today I just laid a huge smooch on my sister. 2 weeks of trial, 3 days of deliberation, and the jury hung, 7-5 for guilty. The bad news was that it was in the DA's favor, the good news is that it was so many for not guilty. I know that there are things that I can and will do differently next time, and things that I will do the same, but emphasize more. Unfortunately, as I said, I think that the advantage swings to the DA in a second trial.

As I mentioned, I thought the detective was a liar. The jury, even those who voted guilty, tended to agree. I think that the DA will have him cleaned up next time so that he will be more agreeable. This will mean that the next jury won't think he's such a liar, and such an advocate rather than an impartial observer. Who knows, ther are a lot of different ways that this can play out. All in all, I wanted a not guilty, but I'm relieved it wasn't guilty. What else can I say?

2 months from now and I get to do this again.

The waiting continues.

Two full days, and now part of a 3rd, with no verdict, no readback, no questions. Yesterday the jury tried to announce themselves hung, but he Judge sent them back in to deliberate more when the foreman indicated that he thought perhaps they could reach a verdict. Whether any of the jurors agree with him, I don't know.

And so the nail biting goes on.


Saturday, November 01, 2003

"The waiting is the hardest part."

Tom Petty (and me)

As I said, I think that a long deliberation on my case is worse than a short deliberation. I imagine that in the jury room, there are a few strong opinions on each side, and a bunch of people in the mushy middle. My view was that if the jury was going to vote Not Guilty (something juries rarely do in murder cases), then I needed them to all feel that instinctively when they began deliberations, and that if they didn't believe it instinctively, then those who wanted to acquit would never convince those who wanted to convict to change their vote.

I've tended to notice that those jurors who try and sway people to acquittal have a tougher time changing minds than those trying to sway towards conviction. The fact is, jurors believe that when is filed, there is something there, and they should not come back with an acquittal unless there is a good reason to do so, regardless of the law.

On Friday, the jury spent the whole day in deliberations, they didn't ask for readback, they didn't ask any questions, they didn't send any notes out. They were back there deliberating the whole day, with just the exhibits to aid them. I think this means that they may be split, and as I mentioned, this generally means that they are pushing towards conviction. All I can do is wait, though, and hope.

Since this case was generally a fact based case, the judge didn't have to make too many rulings. But, I think he made a few that could result in a reversal, but since California Courts have about a 98% affirmance rate, I'm not putting any hope in that. If the case hangs, I think that would be generally bad, as I think the prosecution would be favored the second time around. In all, I think that this long delay is bad news.

But, in the meantime, I just have to wait.......