It's About Time - A Fair Legal Talk Show Host

Finally, an antidote to the facists out there like Nancy Grace. You should check out Jami Floyd and her show "Best Defense" on Court TV. She's apparently an ex-Public Defender from the Bay Area (although that appears to be a very small sliver of her bio - she still has it in her bones), but not afraid to say that someone's guilty. She's empathetic to the defense, what they have to go through in presenting their case and fighting the obstacles that get in the way of an effective defense, and she's entertaining.

Check out her webpage on Court TV's website, and check out her show sometime on Court TV. It's apparenlty on different times in different places (and I'm always at work then regardless), but she even has a segment on the show called "The Exonerated," about people who have been convicted, sentenced, served a large amount of time, and later exonerated. Nancy Grace would probably call that section "The Released Murderers," or "The Technicalities" (innocence being a mere technicality to her). Definitely worth a look for those looking for both sides of the story to be told.

Disclaimer - She linked to me while ago, I figured it was only fair to check her out and see what she's about, and talk about her if she and her show were worthy - they certainly are.

Client Blunders

I've been getting hit lately with huge blunders by my clients - that is, blunders my clients make as my clients, not blunders they make that turn them in to my clients. I guess that I'm not down about it, even though it is resulting in much longer sentences for them, which occur on my watch. I hadn't had a client get a life sentence in a long time, and I had only a few of them (less than ten) in my career, somehow I had been lucky and managed to avoid too many.

Then I did a trial a little while ago where the defendants (three of them) were offered 17 years for an attempted murder of 5 people in a shooting. Their maximum exposure was about 5 life sentences and 120 years (meaning, first you do the 120 years - 85% of it, then you do 5 life sentences (minimum time of 7 years each, then you're eligible for parole. Hint for the math impaired - they would never be getting out).

At first, none of the defendants wanted the deal. It was a package deal, meaning all take it or none take it. The DA's perspective is that they were offering the deal to avoid trial, and if one of them wants to go to trial, then they weren't getting their end of the bargain. Since the case was an attempted, premeditated murder, then the judge had no discretion to give them that deal in the absence of the DA's consent.

As we got set to start trial, the other two defendants decided they wanted the deal, but my client didn't. So, they were forced to go through trial. Honestly, my client's case was much better than the co-def's case, but my client was closely associated with the co-defs, and he was arrested at the location, and he was identified as being with them during the shootings (the DA's position was that he shot, but my investigation had revealed that he had probably not, and that his involvement was minimal). Based on my investigation, the Def said he wanted to fight the case, and therefore forced the co-defs to have to fight their case as well.

Trial proceeded, and it went very good for us, just as it was going very badly for the co-defs. However, there was still some evidence of my client's involvement. While arguing over the jury instructions, a light bulb went off in my client's head, and he realized (despite my repeated warnings to him about this) that he could be convicted as an aider and abettor based on his association with the co-defs. He then told me, right before closing arguments, that he wanted the 17 years. Unfortunately, that deal was now off the table (most deals are on the table up until trial only). The DA said no, the judge tried to convince her otherwise, but she stood firm - no deal, even for the co-defs, who were being dragged along against their will and facing a life sentence even though they had wanted to plead guilty.

Eventually, while prevailing on most of the counts, my client was convicted of 2 counts of attempted murder (but hey, they found that he didn't have a gun, so he only aided the 2 co-defs) and criminal threats (this time with a gun). Huge victory for me? Well, he ended up getting 6 years plus 2 life sentences (far less than he faced, but still more than he was offered at 17). Interestingly, he is actually eligible for parole in about 19 years (7 for each life sentence, and about 5 of the 6 years), but realistically, he will never be paroled (very few lifers actually get paroled in California, despite otherwise being eligible - but that's a different story).

Now, I didn't beg the def to take the deal when it was offered. I realized that his case was a shakier case, but based on his close association with the co-defs, coupled with his arrest at that location minutes after the shooting (just like the co-defs), I thought that he could be very easily convicted. I also thought that, technically, the evidence on his involvement in the SHOOTING (he appeared to be involved in some of the lead up to the shooting, if not the actual shooting) was thin, and evidence of his subsequent aiding and abetting was also thin, so I thought that it was close enough that I couldn't push him too hard to take a deal. It's a fine line, but when someone has a colorable claim of innocence, or lack of guilt, I don't feel too comfortable leaning on someone to get them to plead guilty. So, I laid it all out for him in a very clear manner, and let him decide, offering him my advice, but not pushing it on him (pushing your views on your client in a case like this can be a poisonous thing to do, and you have to be very careful about it).

So, a bad decision by my client, and now I have another person doing life.

Oh, that association with the co-defs I was talking about? The 2 co-defs were two of his three younger brothers. By his insistence on going to trial, only to change his mind at the end of trial rather than the start, he got both of his brothers life sentences that they would not have otherwise have received. Obviously, his close association was the fact that they were brothers, and the fact that they lived together, at the location where the shooting took place, of outsiders who were hanging around their neighborhood.

So, as bad as it may have been for me and my client, it was far worse for co-counsel and their clients.

PDs Better than Court Appointed Lawyers?

There's a new study out which compared how defendants did in the federal system over a several year period when represented by federal public defenders and by court appointed (or "Panel") lawyers.

Now, no disrespect to any of my panel brethren here, but the study reached the conclusion that public defenders are better. I have always agreed with that.

A caveat - most panel lawyers are pretty good, and most PDs are pretty good. I just happen to think - where I practice (I can't comment on any other place) - PDs are better. This could obviously be totally different in different parts of California, or of the country.

Here where I work, PDs get paid well, so they tend to stay with the office for a long time without leaving to go private. For this reason, we have a lot of experienced lawyers to learn from. These are people that we can lean on, watch in trial, and talk to daily about our cases. Because we have a bigger office than any private lawyer can have, we always have many to learn from.

Any case that I have, chances are someone else in my office has done something similar and has motions on the subject, strategies for dealing with it, and probably more experience than the prosecutor doing the same case. Furthermore, in dealing the case, we know what these cases have gone for the in past, and have a stronger basis to get that kind of a deal when we go to settle the case in our situation. Knowledge and experience are power.

That being said, there are plenty of great panel lawyers out there. Interestingly, in my experience, most of the best of them came from either the DA or PDs office (more so from the PD's office - no apologies there), where they had the volume of cases and experience to deal with huge numbers of cases.

At a certain point, there is almost no substitute for experience. Obviously, raw talent makes a difference, but, just like in sports, raw talent alone can't do it for you. You ever wonder how professional baseball players can backhand a screaming ground ball and casually throw out a runner from 3rd base like it's nothing? With years of rote practice. This is how us Public Defenders can pick up a murder case, look it over, and have a pretty good idea how they are going to handle it and how it is going to turn out after just a few minutes of reading the file. Baseball players practice for hours a day, every day, to perfect every aspect of their game. PDs do the same thing, handling case after case, and listening to their co-workers talk about cases, until they know these cases backwards and forwards.

Defendants complain that us PDs are in bed with prosecutors because we work with them every day (the first part isn't true, the second part is), these close working relationships appear to make a positive difference according to the study. This is cited as one reason that PDs get better deals for their clients, and have a slightly lower conviction rate at trial.

All in all, it's nice to see study of how us PDs aren't those worthless dump trucks so typically depicted by our clients, but more importantly, in popular culture nationwide. We are good, effective and experienced criminal defense lawyers that any person should be confident in trusting their lives to.

The Libby "Commutation" OUTRAGE

I had vowed that I wasn't going to blog about this one months ago (because I knew it was going to happen as soon as the guilty verdicts came down), and yet, I sit here in such a rage right now about the Libby "commutation" (I write commutation in quotes because if there is a person alive who doesn't believe that this is a precursor to a full pardon after the election, then I have a bridge to sell you - or better yet, a prior promise by the president to let the case "and it's appeals" run it's course). I know that several of you out there complain to me that this blog strays too often from being a public defender blog into a political blog -point well taken, but this cannot be ignored, and this is a public defender issue.

You see, I represent those who commit crimes and actually pay for them, because they are not rich, white and Republican. They go to jail because their crimes are the "bad" crimes, minority crimes, poor person crimes, etc. Maybe I wouldn't be so outraged if I wasn't so convinced that Bush and Cheney told the principles involved in the cover up (Libby & Rove) that they had better cover up the involvement of the top two, and in return, they would get pardoned. In other words, go ahead and commit a crime to cover up our act of treason, and we'll pardon you later. Is there a person alive who believes that Bush really believes the penalty for perjury and obstruction of justice are too harsh? Or is it only applied to Libby (in other words, in contrast to his statement, he really doesn't respect the verdict of the jury)? Has he been going through some introspection concerning the harshness of punishment of late? This, the most retributive of modern presidents, who has utilized the power of pardon and commutation less than any president in a century?

Of course not, there has been been a quid pro quo that has taken place here, which has shown this whole process to be a sham. The investigation into the leak, the special prosecutor, the trial - a joke, one big joke with the outcome predetermined. The only downside for Bush is that he was forced to play his hand before the election, and not after as everyone had been hoping by putting off the sentence until after the appeal (an appeal that never would've finished if it had extended past election day, 2008).

And why is this a proper subject for Public Defender Dude? Well, I'll tell you why Public Defender Dude is so pissed off, rather than me just as a political being. I represent people who commit crimes. They have only one advocate - me. They get convicted based on (sometimes spurious) evidence. They spend very long periods of time in jail for breaking those laws. To hear this president, who has been at the forefront of retributive justice his whole political career, to suddenly be concerned that the punishment is too harsh is sick. What is really going on here, as in the US Attorney scandal, is the utter politicization of crime -Republicans can commit no crimes, only Democrats or groups that ordinarily lean Democratic (ie - poor and minority people, or people out there trying to increase voter participation, or things of the like). Public Defender Dude is utterly seething right now because the fact that we live in a country where there is no equal justice under the law has just been laid bare for the whole world to see in the most blatant, sick, evil, cynical and despotic manner possible.

Think we live in a free, equal, democratic country? Ask my clients how true that is. Or just ask me. I'll tell you to think again.

I sincerely hope the Democratic Congress doesn't let this go. I have no doubt that this had been agreed upon in advance, and that this commutation and pre-pardon are nothing more than a continuing attempt to obstruct justice. Bush's dad did it with Weinberger, North, Poindexter et al. Ford did it with Nixon, and now Bush is doing it with Libby. And to think that Republicans became outraged at the Mark Rich pardon, and now may compare that to this pardon, or blithely ignore that prior outrage to applaud this, just makes me red with anger. They did the same thing with the Lewinsky affair to compare it to Watergate (not really because they meant to say that Lewinsky was that bad, but to attempt to lower the meaning of Watergate by debasing it with comparisons to something as meaningless as the Lewinsky affair). The same thing is set to happen here by the Republican spin machine - this is no different than the Rich pardon - not to make the Rich pardon seem so terrible, but to make this seem so banal.

It is the true banality of evil.

Now that I've got that off my chest, I feel a little bit better.