Evil Prosecutors, Stupid Defendants

Alright, for those of you reading this site for the first time, a recap. Last fall I did a special circumstance trial. I was convinced that the defendant was innocent, and that they were charging the wrong person (this is a conclusion I almost never reach, I'm not a true believer who thinks everyone's innocent, the police always lie, and the system's so screwed up that everyone is getting the short end of the stick by being charged). There were two eyewitnesses who knew my client from before the shooting (they denied knowing him, but there was pretty compelling evidence that they at least knew who he was and discussed him prior to viewing a series of photos and picking him out as the shooter). The eyewitnesses insisted that they had never seen the shooter before. The decedant (who was with 3 of the other eyewitnesses) certainly knew my client, and never said anything during the incident which would indicate he knew who he was. A final eyewitness, a sort bizarre older guy who lived at the location insisted that my client didn't do the shooting, and picked someone out as the shooter, who, as it turns out, lives in the area and had been named in a tip as a suspect.

There was DNA found at the scene, and the prosecution never did anything to try and find out whether the DNA at the scene matched this 3rd person (my client was excluded from the DNA). The police did nothing to investigate this 3rd party until I startd making noises about him, and only then they did a half-assed job of it, and neither the police nor the prosecution ever tried to get his DNA to compare it to the sample at the scene, or ever try to run the sample through the state database.

The case hung, the guilty jurors said that as far as they were concerned, if two people came in and said my client did it, that was all they needed (I'll probably call an ID expert next time who can talk about how their IDs were tainted by discussing my client before making the ID, and how they would naturally pick out the most familiar face). My client was clearly a suspect because he had a prior record, but never for shooting anyone. He did have a few robberies from the early 1990s, though.

After the case hung, the DA has basically gone out to, no, not try and see if he really is the shooter and test that DNA, but to do whatever it takes to nail my client. Now she has filed a new case on him for possessing a shank in the jail. This is where I talk about stupid defendants. I don't know if he really did have the shank in the jail, but if he did, that would be incredibly stupid. You see, as the DA so gleefully pointed out in her message to me (she actually had a little laugh in her voice), my client is now looking at a 3rd strike possession of a shank case. This means he could be acquitted of the murder and freed on that case, and get 25 to life on the possession of the shank case. And let's face it, it's much easier to fight a murder case where the evidence your client did it is scant, than it is to fight the possession of a shank in jail case. I mean, he doesn't live in a mansion where someone could be stowing things around his house without his knowledge, this is a little jail cell (albeit one with 4 cellmates, so that's clearly an issue).

But think about this, last October/November I'm doing this special circumstance murder case, convinced I have an innocent client, it hangs (which is, I guess, a pretty good result), and now the DA may very well dismiss the murder, get 25 to life on him for the shank (and it would really be a life sentence, here in California, at least), and then hold the murder in abeyance over his head for the rest of his life on the off chance that the prison system ever lets him out or his case is reversed. I mean, he may have actually been wrongfully incarcerated for the last 2 years, but may never get out. In fact, they could now test that DNA, find it's not him, and still give him 25 to life on this case.

Absurd. I'm not even angry about this, I'm just exhausted. Give me a break already.

Problem fixed. Turns out it wasn't my problem, but one comment company was taken over by another, and all it took was a little reading of my emails.

Hello Everyone.

I don't know what happened, but somehow I lost all of my comments, and so many of you had made good ones. I'm sorry about that, there was actually some very good discussion going on. I've always thought of myself as somewhat computer savvy, so I'm always astounded by how little I really know when I try to go and decode what's going on when I go through all of this HTML stuff.

If anyone knows how to revive my old comments, or to put the old ones here with the new commenting system, I'm happy to listen. Put the feedback on the comments, or email me.

I'll post something new soon. Something interesting is brewing with that special circumstance murder case I hung last November.

Criminal Law is so much better than Civil Law.

Just about all of the bad reputuation that lawyers have comes as a result of civil lawyers. You see, there are so many lawyers out there that there is a great degree of anonymity in the practice of law. There is only a small chance that, unless you have a specialized area of practice or a certain type of repeating case, that you will have many cases with the same lawyer. Also, so few civil lawyers spend much time in court, and their cases get so little time and attention in court, that they rarely have to go and explain their actions to a judge in open court. The result of this anonymity, and lack of open vetting of their actions, means that civil lawyers have a far greater ability to be, well, uncivil, to eachother in their practice of law. They communicate by letter and fax, or phone, but rarely in person. As a result, they are frequently jerks. Their letters are frequently venemous, the phone calls are worse, and most letters are merely an attempt to recast the previous phone conversations in favorable manner to the letter writer. The end of every letter usually has some kind of statement like "if you disagree with this, I will expect a written disagreement within the next XXX days." Thus, they keep fighting back and forth over increasingly meaningless things.

This contrasts dramatically with the practice of Criminal law. I work in a very large city, one of the country's most populous, nad handle a large amount of cases. That being said, there are probably only about 4,000 lawyers who practice with any degree of regularlity in my area. When you start to break it down, there are even less, because many of them appear only infrequently in court. Many also do not work on felonies, which would be just about the only type of lawyer I deal with. As a result, in any particular courthouse, if you work there for more than a couple of weeks, everyone will know you. Go to another courthouse, and people will get to know you there as well.

But, guess what, they already will know you. This is because the DAs, Public Defenders, court staff, and Judges all have worked in other parts of the county, and they know people from other locations. So, if lawyer X comes into a court and starts causing a ruckus, it will quickly get around that courthouse. Some enterprising soul will quickly call to where that lawyer was last seen (not hard to figure out), and find out more about the person. Soon, people will know not only what kind of stuff that lawyer is known for pulling, but also the fact that his wife left him because he was bad in bed, and that he picks his nose, and that he really can't try a case if his life depended on it. You get my point, there is a far greater incentive to get along.

The Judges tend to know you as well. If you are always jumping up and down screaming the sky is falling, it gets around, and they tend to listen to you less. If you have a good reputation as one who fights hard, but more importantly, is courteous, polite, a good personality, intelligent and reasonable, you will be listened to far more. DAs will respect you when you make representations, and Judges will take you at your word without you having to confirm everything in writing.

The upshot of this is that things are done far more informally in criminal courts than in civil courts. You don't have to write confirming letters, and you almost never ask for santions, or do things of that sort. The stuff comes back to get you. Discovery tends to be resolved easily and informally, so that you don't spend your whole life writing motions to compel. Do we fight? You betcha, but we do it in what I think is the proper forum, Court, in front of a judge and, preferably, a jury.

This is one of the reasons that the practice of criminal law is so much more enjoyable than civil law. This is why, when people ask me "why don't you go private?" I am always skeptical. Sure, private criminal is fine, but then I'd have to do that icky civil stuff, and fight over who broke my pencil at the last deposition, and the fact that lawyer X kicked me under the table durnig a settlement conference, and since he didn't deny it in a letter he responded to my response to his response to my allegation, he must have admitted it. Ugh. Keep me fighting for people's lives rather than their money.