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.

Sorry for the long delay between posts. I was on vacation for a little while, and just lazy for a little while as well.

Just a little anecdote on the evils of the war on drugs, which is really a war on individuals on our society and on our freeoms.

Today I got a case where my client is charged with possession of drugs. The police stop him walking down the street because, in their words (and I'm not making this up, despite the fact that all my co-workers were sure I was until I showed them the police report), he was smoking a cigar and dropping ashes on the ground (which they deemed a violation of laws prohibiting dumping and littering of burning materials into the street). Of course, once they see a violation, it all proceeds a apace, leading to an arrest. I'm not sure whether what they say is true, but eventually, they get their way into his pockets, finding a tiny little drop of coke.

This client is lucky, he has no priors, and will probably only spend a little while in jail (assuming he pleads guilty, he gets out immediately for drug treatment, if he fights the case, he may have to remain in custody for 3 months). Other clients in this situation have faced life in prison, all over a little drop of drugs.

Now do we feel much safer as a result of this littering bust? And we slouch closer to tyranny.

Do I believe all of my clients are innocent?

No.

Obviously, crimes take place, in far greater numbers than people who are arrested for those crimes. Someone does those crimes, and frequently it is easy to solve those crimes. Some incidents are obviously crimes, and obviously took place. If a person turns up dead by gunshot wound to the head, then someone committed a crime by shooting him. If you go to your car and it is gone, and there is broken glass where it used to be, someone committed a crime by stealing it. If you have property missing from your home and a broken window where someone entered, then someone burglarized your home. The same is easily said of someone who shoplifts, possesses or sells drugs, etc.... (this is not to judge the morality or immorality of possessing drugs, something I think should not be handled in the criminal justice system).

These are easy situations. If I shoot someone in cold blood, I've likely committed a murder, but not necessarily. Perhpas I shot in self-defense, perhaps I shot the person after catching them in bed with my wife, and perhaps I shot him incorrectly thinking that he was going to harm me or my family. Maybe I shot him, but it wasn't premeditated. In other words, if I shoot someone in the head and get charged with premeditated murder, I may not be guilty of that for a number of reasons: perhaps I get a complete pass since I acted in reasonable self-defense, perhaps I am guilty of manslaughter because what I thought was self-defense turns out to have been incorrect (we see this all the time when the police shoot someone with a "gun" in their hands that turns out to be a wallet, only they usually don't get charged). The crime may be manslaughter because I acted in heat of passion, or perhaps I shot them, but I didn't premeditate, so it's only a 2nd degree murder instead of first degree murder. These are all things that, as a lawyer, I take into consideration and try to work for when I represent someone charged with a crime. As you can see, there is often a large gap between guilty and innocent in certain offenses.

Just because a client insists that he acted in self-defense, even if there is plenty of evidence to suggest that, it doesn't mean that the prosecution doesn't file the case, or dismisses it. Most prosecutors get blinders on when it comes to self defense (unless the person claiming self-defense is a police officer). They come up with a million places where the defendant could've done something to avoid the confrontation, and focus on each of those things, forgetting the larger scene where the person killed clearly instigated and caused the incident leading to their death. Furthermore, unpopular defendants rarely get the benefit of self-defense in the police or prosecutor's mind. I have had cases with gang member defendants where the prosecution completely ignores and doesn't care about the fact the person who died started the whole confrontation - they view it as two bad people for the price of one, one in jail, and one dead, a twofor.

These are relatively simple examples. They deal mainly with the principles of an act (ie - the shooter, the robber, the thief, the person who actually has the drugs in their hands). A whole area of law exists for "aiders and abettors." These people did not actually do the act, and the only question is whether they aided in the commission of the crime in some manner. Aiding and abetting does not necessarily mean driving the car for a drive-by shooting, it could also mean being the passenger in a car from which a drive by shooting takes place. In my experience, in gang cases, prosecutors will usually file on just about every person in a car that does a drive by, even if there is no evidence that the person knew a drive-by was going to take place, or that they encouraged it in any manner.

One can aid in an offense in many other ways, often innocuous. I have had numerous drug cases where someone is charged with aiding a drug sale by acting as a "lookout." In other words, the police say that they did a buy from someone, and another person stood nearby looking around to make sure that no police were around. This type of case usually hinges on the testimony of a single police officer who makes observations while doing a buy. The biases of these officers are obvious, aside from the fact that as police they are working with people they generally don't like, but they walk into a situation with the preconceived notion that most of the people "hanging around" are doing so for no good reason. They don't live in these types of areas because they don't like the characters that hang around there, and view all of the people in the vicinity in the same light. The other testimony in a case like that would be the opinion of the officer as an "expert."

As I've mentioned earlier, there is no greater scam in the criminal justice system than so-called expert testimony by police officers on things like gangs and drugs. Their "expertise" comes from going to classes and talking to people they arrest. In other words, they are no greater experts than people who watch Homicide or The Wire regularly. However, officers will give opinions cloaked in a mantle of legitemacy of "expertise" to juries that will state whatever conclusion they wish to reach in that particular case. There is no need for consistency, they don't have resumes, writings that can be compared with, regulations or guidelines for their testimony, in other words, they can say whatever they want every time they take the stand. Sometimes you can catch them, but not always. I happened to nail one "expert" in my last trial, but that was pure serendipity.

As you can see, there is a large area to explore in cases, and these are cases in which it is relatively undisputed that a crime took place. Now think about the other large amount of cases where someone accuses someone else of hitting them, or threatening them, where there is no physical proof that a crime actually took place, it is just based on someone's "say so." We have to take their word for it, and this depends on their credibility, bias, and any other factor that could lead one to make up an allegation against someone else (think - Kobe Bryant).

This leaves me with plenty to do that doesn't suggest that someone is lying every time, but perhaps misinterpreting evidence, looking at things the wrong way, not seeing it correctly, or any other in a string of possibilities why a person may be less guilty, or not guilty, of something they are charged with. It leaves plenty of room for me to argue things in most circumstances depending on what type of a case I have. I have learned that calling too many people liars will ruin my crediblity, so I am careful about branding people as such. But one person can be telling the truth and my client may still be not guilty, or less guilty.

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.

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.

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.

Still................it is hard to get up for that looming dope trial.

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.

Sigh.

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.

Harrrummph!

"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.......