I just found out from Skelly over at Arbitrary & Capricious that I won a Rodney (talk about a lack of respect, I didn't even know I was nominated!). Hey, I'm psyched. I mean, just because I'm a Public Defender doesn't mean I don't like getting recognized for doing a good job.
Check out the PD Stuff website, it's worth a look.
Thanks for the tip Skelly!
Thursday, January 03, 2008
Tuesday, January 01, 2008
NY Times Editorial Says It All
Regulars here know that I've written about our country's shameful human rights record over the last 7 years, as we've raced to the bottom in areas such as torture, privacy, indefinite detentions for people without meaningful rights to be heard, and things of the like. The NY Times has written an editorial that says it all, though, and notes, quite presciently, that our country is quickly becoming unrecognizable.
The reality is, we have not been the leader in support of human rights for the last decade only because it gives us some tactical or propaganda advantage against our enemies, we have done it because we felt that it distinguished us from our enemies. The reason was this was how you could tell good countries from bad - not just by the fact that they lined up on one side of the fence or another, but because of the quality of their character.
Quoth the Times:
As I've noted before, every dictator, every totalitarian, every petty despot, has claimed some national exigency that necessitates the use of extraordinary techniques - just this once - to deal with a vicious enemy. I don't even need to get Nazi with everyone, I can be far more recent and relevant - look at Mobutu in Zimbabwe, or Putin in Russia, or Hussein in Iraq, or any other despot. They all say the same thing, that these are trying times, and we need to take these extreme measures in the interest of national security.
And, for 60 years, since the end of World War II, the west, primarily pushed by the US, has said "No. Extreme times do not allow for measures that are, by all measures, simply wrong, in all instances." That was Nuremburg, that was the Geneva Accords, that was The Helsinki Accords, that was Ronald Reagan standing at the Berlin Wall and saying "Mr. Gorbachev, tear down this wall."
And now, we have small minds and evil people (small being yes-men like Alberto Gonzalez, evil being Cheney and the cabal that surrounded him) saying that these things were fine for everyone else's problems, but now that we have problems, they can't apply to us.
Wrong.
The Times tells us where we have gone, in chillingly clear detail:
In short, our country, which moved the world forward on the cause of freedom and human rights for 60 years by leading by example, has set the world back by backsliding on it. And realize this, the goal of Al Qaeda was not to win a war, it was not to kill every American. They know they are not able to do that. Their goal was to ruin our way of life by making us so overreact to them that we would no longer be the people that we once were.
They have certainly succeeded there.
The reality is, we have not been the leader in support of human rights for the last decade only because it gives us some tactical or propaganda advantage against our enemies, we have done it because we felt that it distinguished us from our enemies. The reason was this was how you could tell good countries from bad - not just by the fact that they lined up on one side of the fence or another, but because of the quality of their character.
Quoth the Times:
Out of panic and ideology, President Bush squandered America’s position of
moral and political leadership, swept aside international institutions and
treaties, sullied America’s global image, and trampled on the constitutional
pillars that have supported our democracy through the most terrifying and
challenging times. These policies have fed the world’s anger and alienation and
have not made any of us safer.
As I've noted before, every dictator, every totalitarian, every petty despot, has claimed some national exigency that necessitates the use of extraordinary techniques - just this once - to deal with a vicious enemy. I don't even need to get Nazi with everyone, I can be far more recent and relevant - look at Mobutu in Zimbabwe, or Putin in Russia, or Hussein in Iraq, or any other despot. They all say the same thing, that these are trying times, and we need to take these extreme measures in the interest of national security.
And, for 60 years, since the end of World War II, the west, primarily pushed by the US, has said "No. Extreme times do not allow for measures that are, by all measures, simply wrong, in all instances." That was Nuremburg, that was the Geneva Accords, that was The Helsinki Accords, that was Ronald Reagan standing at the Berlin Wall and saying "Mr. Gorbachev, tear down this wall."
And now, we have small minds and evil people (small being yes-men like Alberto Gonzalez, evil being Cheney and the cabal that surrounded him) saying that these things were fine for everyone else's problems, but now that we have problems, they can't apply to us.
Wrong.
The Times tells us where we have gone, in chillingly clear detail:
In the years since 9/11, we have seen American soldiers abuse, sexually
humiliate, torment and murder prisoners in Afghanistan and Iraq. A few have been
punished, but their leaders have never been called to account. We have seen
mercenaries gun down Iraqi civilians with no fear of prosecution. We have seen
the president, sworn to defend the Constitution, turn his powers on his own
citizens, authorizing the intelligence agencies to spy on Americans, wiretapping
phones and intercepting international e-mail messages without a warrant.We have read accounts of how the government’s top lawyers huddled in secret after
the attacks in New York and Washington and plotted ways to circumvent the Geneva Conventions — and both American and international law — to hold anyone the president chose indefinitely without charges or judicial review.Those same lawyers then twisted other laws beyond recognition to allow Mr. Bush to turn intelligence agents into torturers, to force doctors to abdicate their
professional oaths and responsibilities to prepare prisoners for abuse, and then
to monitor the torment to make sure it didn’t go just a bit too far and actually
kill them.
In short, our country, which moved the world forward on the cause of freedom and human rights for 60 years by leading by example, has set the world back by backsliding on it. And realize this, the goal of Al Qaeda was not to win a war, it was not to kill every American. They know they are not able to do that. Their goal was to ruin our way of life by making us so overreact to them that we would no longer be the people that we once were.
They have certainly succeeded there.
Thursday, December 20, 2007
LA Area DA seeks to elevate DAs, denigrate defense lawyers - by initiative
This is via the Los Angeles Metropolitan News (a legal newspaper), the head of the LA District Attorney's Association, Steve Ipsen, has proposed one of the most pernicious, insidious and unconstitutional state initiatives that I can ever remember seeing. Evidently, Ipsen wants to prohibit a whole class of people from donating money to the campaigns of elected district and city attorneys. Think about that, a whole class of elected official cannot raise money from a whole class of individuals: lawyers who have even one criminal case in that jurisdiction.
You want to talk about an unconstitutional, and truly disgusting idea, this is it. The theory Ipsen would say is that defense lawyers will donate money to the candidate who would advance their agenda the most, to the detriment of the rest of society.
Well, let's think of this. This would assume that the only intention and desire that criminal defense lawyers have is the unprincipled desire to get less time for their clients as a class of people. In other words, that we are in favor of crime and criminals, rather than a just adjudication of the laws on the books, or a recalibrating of the laws in a manner that is more fair to all types of people. How about this - perhaps many people who go into defense work do so because they want to ensure that all accused get a fair shot, that they are not taken advantage of by the system. They want to make sure that all people get a fair shot, so as to ensure that innocent people do not regularly get victimized by the system. You see, what Ipsen really wants is to limit money coming from political positions that he personally disagrees with. He has faith in a police state that gives all power to police and prosecutors without any check on their authority.
Sure, he will couch his position in the idea that this only applies to defense lawyers who have the potential of actual bias - cases in this actual jurisdiction. But think about it - those are the people most interested in and knowledgeable that race. Why would a defense lawyer in Sonoma County care about the race for DA in Los Angeles, or vice versa? If a lawyer in Los Angeles believes strongly enough that the administration of justice in his county is proceeding in an unfair manner, he will donate money accordingly. And this is what you would expect from locals who regularly practice in that area. It's no surprise that every year around election time my friends and family ask me who they should support for Judicial elections -I work in the field, I am far more knowledgeable than they are, so they want to know my views. Ipsen wants to effectively silence that voice so that only his voice, or those aligned with him, can be heard. To call these views anti-democratic understates how extreme he is.
Ipsen appears to recognize the rank idiocy of his position, because he puts a fall-back position in his initiative - that if the prohibition is found unconstitutional (duh!), then any candidate that accepts money from defense lawyers must make a statement stating so in all public advertising by noting the candidate is “supported and funded by criminal defense attorneys and/or criminal defendants.” Those are the words from the actual initiative! As if there is no difference between criminal defense lawyers and criminal defendants (as there is no distinction in the wording). This lays bare Ipsen's view of the role of a defense lawyer in society - a criminal.
And what does that really mean? It is quite clear what it means. To Ipsen, someone who represents a defendant is morally and legally equivalent to the person he represents. Hundreds of years of legal tradition in western civilization, the basis of all of our laws and system of justice - down the drain according to Ipsen. If you represent someone accused of a crime (rightly or wrongly, it would seem), then you are as despicable as - not the person - but the act they are accused of committing. After all, there is no distinction between the person and the crime they are charged with, because to assert they did not do it, or that they aren't guilty of the actual charges is a meaningless and fruitless activity which equates you morally with the perpetrator, who, incidentally, must be guilty.
Here's a question Ipsen. If the fair administration of justice is so important here, how about preventing ANYONE from giving money to a race in which they have an interest. This, of course, would mean that prison guards, police, sheriffs, DAs, any anti-crime group, any victim's rights group, etc, couldn't give to any race involving not just a prosecutor, but governor as well, as they have just as much influence in the system of justice in which these parties are so intricately involved. Now we're talking. Don't go waiting too long for an answer to this. Unprincipled people like Ipsen will never countenance arguments that they are inconsistent in their views.
Of course, if you read more deeply, you see even more gems here. Of course, Ipsen has to name this initiative after some victim, because without that, it may actually be discussed on it's merits rather than on the emotional plane of "what, you want to re victimize this family, you evil twit?" And why, in this otherwise totalitarian anti-democratic power grab does Ipsen throw in this little tidbit - DAs must get more money and benefits. He wants to ensure that DAs get the same pay, benefits and retirement equivalent to that of law enforcement officers - which is extremely generous. He also seeks to separate the pay and benefits of DAs from Public Defenders, and ensure that only DAs get these new, generous benefits. I've blogged about this before, but I'll say it again: You want to see who faces danger in their work, don't look at DAs, look at PDs. We are the ones who face the daily slings and arrows of our client's lashing out at the system - we are the bearers of bad tidings, we have to sit next to them as their frustration boils over, and we are the ones they eventually hit, slash, or otherwise attack.
So, when you see this further "tough on crime" initiative hit the ballots (if it ever does hit it), remember what an evil anti-democratic force is behind it, and act accordingly. The only thing we can be thankful for is that Ipsen has decided not to run for DA in Los Angeles, because a person with his views running that place would be disastrous for 10 million people unfortunate enough to live in LA County and bearing the results of him going from crazed outsider throwing grenades at the system to actually running the place, and that would be really scary.
You want to talk about an unconstitutional, and truly disgusting idea, this is it. The theory Ipsen would say is that defense lawyers will donate money to the candidate who would advance their agenda the most, to the detriment of the rest of society.
Well, let's think of this. This would assume that the only intention and desire that criminal defense lawyers have is the unprincipled desire to get less time for their clients as a class of people. In other words, that we are in favor of crime and criminals, rather than a just adjudication of the laws on the books, or a recalibrating of the laws in a manner that is more fair to all types of people. How about this - perhaps many people who go into defense work do so because they want to ensure that all accused get a fair shot, that they are not taken advantage of by the system. They want to make sure that all people get a fair shot, so as to ensure that innocent people do not regularly get victimized by the system. You see, what Ipsen really wants is to limit money coming from political positions that he personally disagrees with. He has faith in a police state that gives all power to police and prosecutors without any check on their authority.
Sure, he will couch his position in the idea that this only applies to defense lawyers who have the potential of actual bias - cases in this actual jurisdiction. But think about it - those are the people most interested in and knowledgeable that race. Why would a defense lawyer in Sonoma County care about the race for DA in Los Angeles, or vice versa? If a lawyer in Los Angeles believes strongly enough that the administration of justice in his county is proceeding in an unfair manner, he will donate money accordingly. And this is what you would expect from locals who regularly practice in that area. It's no surprise that every year around election time my friends and family ask me who they should support for Judicial elections -I work in the field, I am far more knowledgeable than they are, so they want to know my views. Ipsen wants to effectively silence that voice so that only his voice, or those aligned with him, can be heard. To call these views anti-democratic understates how extreme he is.
Ipsen appears to recognize the rank idiocy of his position, because he puts a fall-back position in his initiative - that if the prohibition is found unconstitutional (duh!), then any candidate that accepts money from defense lawyers must make a statement stating so in all public advertising by noting the candidate is “supported and funded by criminal defense attorneys and/or criminal defendants.” Those are the words from the actual initiative! As if there is no difference between criminal defense lawyers and criminal defendants (as there is no distinction in the wording). This lays bare Ipsen's view of the role of a defense lawyer in society - a criminal.
And what does that really mean? It is quite clear what it means. To Ipsen, someone who represents a defendant is morally and legally equivalent to the person he represents. Hundreds of years of legal tradition in western civilization, the basis of all of our laws and system of justice - down the drain according to Ipsen. If you represent someone accused of a crime (rightly or wrongly, it would seem), then you are as despicable as - not the person - but the act they are accused of committing. After all, there is no distinction between the person and the crime they are charged with, because to assert they did not do it, or that they aren't guilty of the actual charges is a meaningless and fruitless activity which equates you morally with the perpetrator, who, incidentally, must be guilty.
Here's a question Ipsen. If the fair administration of justice is so important here, how about preventing ANYONE from giving money to a race in which they have an interest. This, of course, would mean that prison guards, police, sheriffs, DAs, any anti-crime group, any victim's rights group, etc, couldn't give to any race involving not just a prosecutor, but governor as well, as they have just as much influence in the system of justice in which these parties are so intricately involved. Now we're talking. Don't go waiting too long for an answer to this. Unprincipled people like Ipsen will never countenance arguments that they are inconsistent in their views.
Of course, if you read more deeply, you see even more gems here. Of course, Ipsen has to name this initiative after some victim, because without that, it may actually be discussed on it's merits rather than on the emotional plane of "what, you want to re victimize this family, you evil twit?" And why, in this otherwise totalitarian anti-democratic power grab does Ipsen throw in this little tidbit - DAs must get more money and benefits. He wants to ensure that DAs get the same pay, benefits and retirement equivalent to that of law enforcement officers - which is extremely generous. He also seeks to separate the pay and benefits of DAs from Public Defenders, and ensure that only DAs get these new, generous benefits. I've blogged about this before, but I'll say it again: You want to see who faces danger in their work, don't look at DAs, look at PDs. We are the ones who face the daily slings and arrows of our client's lashing out at the system - we are the bearers of bad tidings, we have to sit next to them as their frustration boils over, and we are the ones they eventually hit, slash, or otherwise attack.
So, when you see this further "tough on crime" initiative hit the ballots (if it ever does hit it), remember what an evil anti-democratic force is behind it, and act accordingly. The only thing we can be thankful for is that Ipsen has decided not to run for DA in Los Angeles, because a person with his views running that place would be disastrous for 10 million people unfortunate enough to live in LA County and bearing the results of him going from crazed outsider throwing grenades at the system to actually running the place, and that would be really scary.
Saturday, December 15, 2007
Why are ex-Public Defenders so often bad judges
I always get excited when someone from my office makes it to the bench (someone good, that is - if the person's a total political tool, then it's not so exciting). It means that finally, someone with our perspective is sitting on the bench. So, I have to ask myself all of the time this question: Why do ex-PDs make such uniformly bad judges. I mean, there are good judges who were PDs (or private lawyers, for that matter), but so many of the best judges I know were either District Attorneys or worked in the federal system. And I don't know why.
I've heard the theories. One theory is that as a Public Defender, we've heard all of the bullshit that our clients put out and we no longer buy it. But, that would mean that only the most cynical Public Defenders make it to the bench (something that doesn't seem impossible, in light of the political process it takes to make it to the bench). But, it would seem that I would have noticed the cynicism of some of these people before they made it to the bench. Most of the time, I haven't seen it.
Another theory is that only the most politically adept PDs make it to the bench, so that when they get there they have thoroughly sold their soul to make it there, and they can't do what their conscience asks them to do when they hit that spot for fear of a backlash by the people that put them there. I guess that this is possible, but, again, I never noticed this personality trait in so many of the people that I knew beforehand who make it to the bench and completely disappoint when they hit that spot.
Another, along the same vein, is that as ex-PDs they are under a greater microscope looking for perceived pro-defense bias (something that will really get you bounced from the bench, in contrast to overt pro-prosecution bias, which will get you a sweet gig within the judging ranks, unless you go completely overboard and totally piss off every PD in the county, something that's hard to do). This holds more water, and sort of goes in line with the previous thought. By promising this independence from their prior profession to everyone under the sun, they at least feel as if they are being closely scrutinized for possible bias, and want to cover it up.
But, all of these theories work for perhaps some of my colleagues who've made it onto the bench. Do they explain all of them? Is there another reason I'm not considering? In general, I feel defense lawyers are better lawyers than most prosecutors (note the MOST, there are some prosecutors who are stellar lawyers, but the mean PD is better than the mean DA, as far as I've seen). They have spent their lives bucking the system, not playing along to get along, not following strict hierarchical rules that DAs have to follow, thinking independently. Why is it that once these people hit the bench, they do so much worse than these DAs who usually can't hold a candle to them as lawyers?
And with that post, I completely give up the chance to ever become a judge (unless people realize that maybe I'll be just as "bad" as all of those other ex-PDs that have been put on the bench, and they'll put me on as well).
Thoughts, anyone?
I've heard the theories. One theory is that as a Public Defender, we've heard all of the bullshit that our clients put out and we no longer buy it. But, that would mean that only the most cynical Public Defenders make it to the bench (something that doesn't seem impossible, in light of the political process it takes to make it to the bench). But, it would seem that I would have noticed the cynicism of some of these people before they made it to the bench. Most of the time, I haven't seen it.
Another theory is that only the most politically adept PDs make it to the bench, so that when they get there they have thoroughly sold their soul to make it there, and they can't do what their conscience asks them to do when they hit that spot for fear of a backlash by the people that put them there. I guess that this is possible, but, again, I never noticed this personality trait in so many of the people that I knew beforehand who make it to the bench and completely disappoint when they hit that spot.
Another, along the same vein, is that as ex-PDs they are under a greater microscope looking for perceived pro-defense bias (something that will really get you bounced from the bench, in contrast to overt pro-prosecution bias, which will get you a sweet gig within the judging ranks, unless you go completely overboard and totally piss off every PD in the county, something that's hard to do). This holds more water, and sort of goes in line with the previous thought. By promising this independence from their prior profession to everyone under the sun, they at least feel as if they are being closely scrutinized for possible bias, and want to cover it up.
But, all of these theories work for perhaps some of my colleagues who've made it onto the bench. Do they explain all of them? Is there another reason I'm not considering? In general, I feel defense lawyers are better lawyers than most prosecutors (note the MOST, there are some prosecutors who are stellar lawyers, but the mean PD is better than the mean DA, as far as I've seen). They have spent their lives bucking the system, not playing along to get along, not following strict hierarchical rules that DAs have to follow, thinking independently. Why is it that once these people hit the bench, they do so much worse than these DAs who usually can't hold a candle to them as lawyers?
And with that post, I completely give up the chance to ever become a judge (unless people realize that maybe I'll be just as "bad" as all of those other ex-PDs that have been put on the bench, and they'll put me on as well).
Thoughts, anyone?
Wednesday, November 21, 2007
Remembering why I do this work
Alright, it's been a long time since I've posted. To those online and offline friends who've told me "what's going on?" I can only say, thank you for encouraging me. Work has been very busy of late, and management at our office has really become unhinged in a bad way (it's all relative, I guess. I hear enough horror stories that really makes my management pale in comparison). The net result has been that I've been offline too long. Perhaps it's drained all inspiration out of me.
That being said, there are times that things happen that have a cathartic effect on me and makes me realize why I do this, and a video on You Tube has provided that for me.
People have accused me of being obsessed with black/white issues, or rich/poor issues, or things of the like. In reality, I am obsessed with powerful/weak issues. Those who have power, and abuse it, against those who are weak and cannot fight back.
In this video, a Utah Highway Patrolman pulls a guy over for speeding. The guy evidently disagrees, and makes it clear. What is clear from the start is that the officer isn't accepting any disagreement, and goes back to write a ticket. When he returns, the person refuses to sign it. Here's where it gets really bad, and where the cop totally loses it. The person being pulled over probably had no clue that in signing the ticket, he's just agreeing to show up in court, and not admitting to any guilt (his lack of understanding of the system should've been a tip-off to the cop at this point). At this point the cop could've calmly explained "look, I know you disagree with me, but signing this ticket is just a promise to appear in court. You can explain to the judge why I'm wrong, and we can have it decided in court rather than out here, since we obviously disagree. I just have to make sure you're willing to come to court on your own, which this signature affirms. If you don't, I have to take you in cuffs to have you post bail personally. You have your pregnant wife and infant here, and I know you don't want that, so sign the stupid ticket, come to court, and we can argue about it there."
That, of course, would be the reasonable thing to do so as to explain to someone who appears otherwise law-abiding what the system is actually doing here. Instead, the cop orders him out of the car and immediately decides to arrest him, without telling him what he's arrested for. Obviously, the guy is pretty surprised by this and doesn't jump to it with his hands behind his back, and after 6 seconds (which was actually timed in one news report of the event), has his taser out and is threatening to shoot - which he does a second later or so. The victim (I love calling the arrested person that, but he clearly is one) never endangers the officer, never threatens him, and never does anything offensive other than request a sober statement of what happens.
Here's what fascinates me. The officer otherwise seems like a nice guy. He talks with the wife afterwards in a very polite manner, as if he has concern for her (this after just tasing her husband, leaving her hysterical, and threatening her as well, all for nothing). He clearly will never be disciplined for this, he tells his supervisor who comes on scene what happens (only slightly lying in his rendition), and has evidently never been disciplined in the past. In other words, this was standard operating procedure.
And yet, watching it, I felt the pangs of uncontrollable rage in me. I felt the same as I felt watching videos of 60's protesters in the south being set upon with dogs, or sprayed with high powered hoses, or watching protesters in Russia get clubbed, or with any other place where injustice plays itself out in such a blatant fashion and where society at large yawns or (worse) applauds loudly.
I am so honored to be one of those people who stands up for these powerless people. I'm not saying that every client of mine is in this guy's position - of course not, that is absurd. But the chips are stacked so dramatically against the people that I represent, and when something like this happens, there is no one otherwise there to stand up for a victim of police abuse like this and say "enough!" The problem is, society has become so inured to the notion of "lock 'em up and throw away the key" that they are now willing to lock up anyone and everyone, and society at large applauds. Honest, good people get abused now because it has become acceptable. After decades of shitting on poor minorities, the attitude has spread and the practice has followed closely behind it. Anyone can be nailed now, legal protections have become so pro-forma so as to not exist anymore. Perpetrators of these actions are protected far more than the public at large is. Police officers are seen as victims if their actions are called into question and they are investigated for their misdeeds.
The only people out there fighting against this all the time - not just in the case of the highly sympathetic white victim in Utah with a pregnant wife and infant in the car where the case is caught on video - are public defenders and other lawyers like us.
It takes watching a video like this, and feeling once again the frustration in me while watching it, that reminds me why I'm so proud to do this work.
And with that, I'm back.
That being said, there are times that things happen that have a cathartic effect on me and makes me realize why I do this, and a video on You Tube has provided that for me.
People have accused me of being obsessed with black/white issues, or rich/poor issues, or things of the like. In reality, I am obsessed with powerful/weak issues. Those who have power, and abuse it, against those who are weak and cannot fight back.
In this video, a Utah Highway Patrolman pulls a guy over for speeding. The guy evidently disagrees, and makes it clear. What is clear from the start is that the officer isn't accepting any disagreement, and goes back to write a ticket. When he returns, the person refuses to sign it. Here's where it gets really bad, and where the cop totally loses it. The person being pulled over probably had no clue that in signing the ticket, he's just agreeing to show up in court, and not admitting to any guilt (his lack of understanding of the system should've been a tip-off to the cop at this point). At this point the cop could've calmly explained "look, I know you disagree with me, but signing this ticket is just a promise to appear in court. You can explain to the judge why I'm wrong, and we can have it decided in court rather than out here, since we obviously disagree. I just have to make sure you're willing to come to court on your own, which this signature affirms. If you don't, I have to take you in cuffs to have you post bail personally. You have your pregnant wife and infant here, and I know you don't want that, so sign the stupid ticket, come to court, and we can argue about it there."
That, of course, would be the reasonable thing to do so as to explain to someone who appears otherwise law-abiding what the system is actually doing here. Instead, the cop orders him out of the car and immediately decides to arrest him, without telling him what he's arrested for. Obviously, the guy is pretty surprised by this and doesn't jump to it with his hands behind his back, and after 6 seconds (which was actually timed in one news report of the event), has his taser out and is threatening to shoot - which he does a second later or so. The victim (I love calling the arrested person that, but he clearly is one) never endangers the officer, never threatens him, and never does anything offensive other than request a sober statement of what happens.
Here's what fascinates me. The officer otherwise seems like a nice guy. He talks with the wife afterwards in a very polite manner, as if he has concern for her (this after just tasing her husband, leaving her hysterical, and threatening her as well, all for nothing). He clearly will never be disciplined for this, he tells his supervisor who comes on scene what happens (only slightly lying in his rendition), and has evidently never been disciplined in the past. In other words, this was standard operating procedure.
And yet, watching it, I felt the pangs of uncontrollable rage in me. I felt the same as I felt watching videos of 60's protesters in the south being set upon with dogs, or sprayed with high powered hoses, or watching protesters in Russia get clubbed, or with any other place where injustice plays itself out in such a blatant fashion and where society at large yawns or (worse) applauds loudly.
I am so honored to be one of those people who stands up for these powerless people. I'm not saying that every client of mine is in this guy's position - of course not, that is absurd. But the chips are stacked so dramatically against the people that I represent, and when something like this happens, there is no one otherwise there to stand up for a victim of police abuse like this and say "enough!" The problem is, society has become so inured to the notion of "lock 'em up and throw away the key" that they are now willing to lock up anyone and everyone, and society at large applauds. Honest, good people get abused now because it has become acceptable. After decades of shitting on poor minorities, the attitude has spread and the practice has followed closely behind it. Anyone can be nailed now, legal protections have become so pro-forma so as to not exist anymore. Perpetrators of these actions are protected far more than the public at large is. Police officers are seen as victims if their actions are called into question and they are investigated for their misdeeds.
The only people out there fighting against this all the time - not just in the case of the highly sympathetic white victim in Utah with a pregnant wife and infant in the car where the case is caught on video - are public defenders and other lawyers like us.
It takes watching a video like this, and feeling once again the frustration in me while watching it, that reminds me why I'm so proud to do this work.
And with that, I'm back.
Saturday, September 29, 2007
Spector Jury Hangs
I know I'm late on this one, but it certainly deserves a comment. The Phil Spector jury has hung, which wasn't looking like a huge surprise as the jury's questions became more and more pointed. A few thoughts.
First of all, I certainly can understand why Judge Fidler didn't want a hung jury. This case lasted months, it was very costly, and consumed quite a bit of the Court's resources. That being said, the lengths he began going to to try and get a verdict went a little overboard. The notion of giving the jury a lesser of involuntary manslaughter during deliberations defied imagination - of course, he ended up not doing it, but the amount of press that it got clearly swayed some jurors into realizing that the judge wanted them to reach a verdict of guilty as to something.
From what I understand about the jury instruction the judge gave to the jury, and then withdrew, it appeared as if it was not a correct statement of the law. It may have been a correct statement of the law according to the prosecution's theory of the case vs. the defense's theory of the case. The prosecution's clear theory was that Spector shot Clarkson after putting the gun in her mouth - if it went off accidentally or on purpose it didn't matter, since putting it there was "implied malice," and therefore an act so dangerous to human life that the mere act of doing implies the person is acting with malice (as opposed to the gross negligence or recklessness that is required for involuntary manslaughter). The defense theory was that whoever put the gun into her mouth, Spector didn't pull the trigger, and hence, couldn't be held liable for murder. The problem is, in the abstract, one could be liable under implied malice for murder by putting a gun in someone's mouth even if you don't eventually pull the trigger. Such a scenario was never explored in this case, but giving a jury instruction that he must be not guilty if he didn't pull the trigger is an incorrect statement of the law. How a change in that instruction could've made the difference is beyond me, though. I can't imagine that there were guilty jurors out there who believe that she pulled the trigger.
The retrial is going to be as long and tedious as the first one. It's going to be a slog, and it's going to happen. There is no chance that the prosecution is going to offer Spector anything that he will take - it's too politically unpalatable. District Attorney Steve Cooley will look like a fool in public if he gives Spector anything in the single digits, and Spector, at nearly 70 years old, is not going to plead to double digit time. I just can't see this case settling, especially not with a 10-2 for guilty split. If this was one of my cases, we would settle it for about 12 years or so. That's not going to happen in this case.
Spector will probably get new lawyers. From their perspective, they've just done a great job. They hung the case, they got on TV every day, it is a boon to their career. There's almost no uphill from here, unless they win it next time (not too likely to happen, in light of the split and juror comments in this case). Reality speaking - they're gone.
For the rest of us defense lawyers, I think this is a bad thing. This perpetuates the misconception that prosecutors can't win a fair fight, and that laws need to be changed to deal with it. I'm sure that this will fuel another round of pushing for non-unanimous jurors (the "Phil Spector law?"), and also to keep cases off TV. But, more than anything, it makes future jurors think that every defense lawyer has some trick up his sleave to try and get his obviously guilty client off, and that they should not be trusted. The net result of that means that, sure as day turns into night, there will be more innocent people getting convicted by more overly skeptical jurys. And that's a bad thing, especially for us public defenders who represent the most downtrodden in society. But, I survived OJ, I'll survive this.
First of all, I certainly can understand why Judge Fidler didn't want a hung jury. This case lasted months, it was very costly, and consumed quite a bit of the Court's resources. That being said, the lengths he began going to to try and get a verdict went a little overboard. The notion of giving the jury a lesser of involuntary manslaughter during deliberations defied imagination - of course, he ended up not doing it, but the amount of press that it got clearly swayed some jurors into realizing that the judge wanted them to reach a verdict of guilty as to something.
From what I understand about the jury instruction the judge gave to the jury, and then withdrew, it appeared as if it was not a correct statement of the law. It may have been a correct statement of the law according to the prosecution's theory of the case vs. the defense's theory of the case. The prosecution's clear theory was that Spector shot Clarkson after putting the gun in her mouth - if it went off accidentally or on purpose it didn't matter, since putting it there was "implied malice," and therefore an act so dangerous to human life that the mere act of doing implies the person is acting with malice (as opposed to the gross negligence or recklessness that is required for involuntary manslaughter). The defense theory was that whoever put the gun into her mouth, Spector didn't pull the trigger, and hence, couldn't be held liable for murder. The problem is, in the abstract, one could be liable under implied malice for murder by putting a gun in someone's mouth even if you don't eventually pull the trigger. Such a scenario was never explored in this case, but giving a jury instruction that he must be not guilty if he didn't pull the trigger is an incorrect statement of the law. How a change in that instruction could've made the difference is beyond me, though. I can't imagine that there were guilty jurors out there who believe that she pulled the trigger.
The retrial is going to be as long and tedious as the first one. It's going to be a slog, and it's going to happen. There is no chance that the prosecution is going to offer Spector anything that he will take - it's too politically unpalatable. District Attorney Steve Cooley will look like a fool in public if he gives Spector anything in the single digits, and Spector, at nearly 70 years old, is not going to plead to double digit time. I just can't see this case settling, especially not with a 10-2 for guilty split. If this was one of my cases, we would settle it for about 12 years or so. That's not going to happen in this case.
Spector will probably get new lawyers. From their perspective, they've just done a great job. They hung the case, they got on TV every day, it is a boon to their career. There's almost no uphill from here, unless they win it next time (not too likely to happen, in light of the split and juror comments in this case). Reality speaking - they're gone.
For the rest of us defense lawyers, I think this is a bad thing. This perpetuates the misconception that prosecutors can't win a fair fight, and that laws need to be changed to deal with it. I'm sure that this will fuel another round of pushing for non-unanimous jurors (the "Phil Spector law?"), and also to keep cases off TV. But, more than anything, it makes future jurors think that every defense lawyer has some trick up his sleave to try and get his obviously guilty client off, and that they should not be trusted. The net result of that means that, sure as day turns into night, there will be more innocent people getting convicted by more overly skeptical jurys. And that's a bad thing, especially for us public defenders who represent the most downtrodden in society. But, I survived OJ, I'll survive this.
Tuesday, September 04, 2007
Larry Craig and Police Officer Opinion Testimony
One of the areas that has held public fascination in the Larry Craig situation is the vagueness of the charges and allegations against him. Put simply - what did he actually do wrong - tapping a foot and reaching with his hand? He clearly did not break any established and obvious laws by those actions (not unless laws have become so over broad and burdensome that they've even caught me, Public Defender Dude, by surprise). So what he did had to be interpreted by a police officer as being illegal, because it is not illegal on its face.
This brings up an area that I've so often railed against - police officer opinion testimony (or, as I like to put it, "my opinion is that you're guilty."). I think that this opinion testimony, whether in the context of gangs (giving an opinion that any sundry crime was committed for the benefit of a street gang so as to make minor crimes strikes, or average crimes life sentences), or drugs (giving the opinion that whatever amount of drugs that someone possessed was obviously possessed for purposes of sale), or any other area.
Prosecutors love this stuff. It's like 2 closing arguments in their case. They get a police officer who gets to get up on the stand and essentially say "I've investigated thousands of cases, and in my opinion this person is guilty, because his case falls in with all these other ones in this manner." It is highly prejudicial, and in many cases, highly meaningless. Let's face it, any old person in the world could figure out whether a certain crime benefits a gang without having to hear a police officer point his finger at your client and say "he definitely did it for the gang." How about general testimony about how a gang may benefit, or something to that effect?
And the Larry Craig case is just like that. The police officer sees something, and interprets it one way. Larry Craig interprets it the other way. It is so difficult to get a jury to realize that a police officer sees the world in a certain manner, and everything they see falls into line in that manner. When you go out looking for gay people, suddenly everyone is gay and hitting on you. Even the most subtle actions can be taken as hitting on you.
The only way that Larry Craig could have ever been convicted in this case would have been if the officer had gotten on the stand and said "I've investigated thousands of these cases, and what Larry Craig did was hit on me and attempt to have sex with me." How do you refute that? It's very difficult.
That being said, going against that kind of testimony can be very fun, as well. You get to pose hypotheticals to the police, who have to sometimes take ridiculous positions to continue to assert your client is guilty.
I had one gang case where the gang officer's testimony won the case for me. Through cross examination, I was able to put forward a whole different scenario about how the crime took place, and ask if that would be consistent with guilt or innocence, and the officer had to concede that looking at the case in that manner it made my client not guilty (of the whole crime, not just of the gang allegation).
So, I hate these types of cases, and this testimony, but a good lawyer learns how to turn it in their favor, or at least neutralize it as much as possible.
Good luck Larry (and I mean that - they're nothing wrong with being gay!).
This brings up an area that I've so often railed against - police officer opinion testimony (or, as I like to put it, "my opinion is that you're guilty."). I think that this opinion testimony, whether in the context of gangs (giving an opinion that any sundry crime was committed for the benefit of a street gang so as to make minor crimes strikes, or average crimes life sentences), or drugs (giving the opinion that whatever amount of drugs that someone possessed was obviously possessed for purposes of sale), or any other area.
Prosecutors love this stuff. It's like 2 closing arguments in their case. They get a police officer who gets to get up on the stand and essentially say "I've investigated thousands of cases, and in my opinion this person is guilty, because his case falls in with all these other ones in this manner." It is highly prejudicial, and in many cases, highly meaningless. Let's face it, any old person in the world could figure out whether a certain crime benefits a gang without having to hear a police officer point his finger at your client and say "he definitely did it for the gang." How about general testimony about how a gang may benefit, or something to that effect?
And the Larry Craig case is just like that. The police officer sees something, and interprets it one way. Larry Craig interprets it the other way. It is so difficult to get a jury to realize that a police officer sees the world in a certain manner, and everything they see falls into line in that manner. When you go out looking for gay people, suddenly everyone is gay and hitting on you. Even the most subtle actions can be taken as hitting on you.
The only way that Larry Craig could have ever been convicted in this case would have been if the officer had gotten on the stand and said "I've investigated thousands of these cases, and what Larry Craig did was hit on me and attempt to have sex with me." How do you refute that? It's very difficult.
That being said, going against that kind of testimony can be very fun, as well. You get to pose hypotheticals to the police, who have to sometimes take ridiculous positions to continue to assert your client is guilty.
I had one gang case where the gang officer's testimony won the case for me. Through cross examination, I was able to put forward a whole different scenario about how the crime took place, and ask if that would be consistent with guilt or innocence, and the officer had to concede that looking at the case in that manner it made my client not guilty (of the whole crime, not just of the gang allegation).
So, I hate these types of cases, and this testimony, but a good lawyer learns how to turn it in their favor, or at least neutralize it as much as possible.
Good luck Larry (and I mean that - they're nothing wrong with being gay!).
Tuesday, August 28, 2007
The Lewd Conduct of Senator Larry Craig
It takes a juicy arrest like this of a prominent gay bashing Republican to drag me out of my torpor and get me posting again. The arrest and conviction of US Senator Larry Craig, a Republican from conservative South Dakota (didn't they just pass a law criminalizing all abortions?) is one of those crystallizing moments that happens with increasing frequency in society - usually the moments are crystallized by Republicans, because they have gained much of their political power by riding moral crusades and against crime. Of course, I love these cases because what they do is force normally "tough on crime" Republicans, those who have held as a general philosophy "lock 'em up, let God sort them out" to confront real issues of guilt and innocence, the fairness of the system, harshness of punishment, and whether they really live up the codes of morality they seek to impose on others.
The Scooter Libby case was a perfect example of Republicans being forced to admit that a punishment did not fit the crime. In that case, it was perjury and obstruction of justice receiving lengthy prison sentences (they seem to have gotten beyond that whole thing - they just thought this one, solitary prison sentence was too much - if given to minorities, poor people or Democrats, then it would've been too lenient). The fact remained, though, that defense lawyers are now able to present the President's statement about the harshness of prison for a first time offender like Libby in their own cases.
The Larry Craig case brings up a few issues near and dear to my heart. I'll talk about one of them today, and follow up with the others in the next couple of days.
The issues that I see are as follows: 1) absurdly defined crimes that result in criminal convictions for behavior that cannot otherwise be defined as criminal, 2) people pleading guilty to things they didn't do so as to avoid the spectacle or trouble or risk of going to trial, and 3) absolutely ridiculous "opinion" testimony of police officers which generally amounts to "my opinion as a police officer is that he's guilty, so the jury should find him guilty."
Regarding people pleading guilty to things that they may not have done, Larry Craig is a perfect example. He obviously wanted to plead so as to avoid a spectacle in which he would've been held up to major ridicule. The cost of trial such as this would've been enormous for him, and by all signs of the police report I've seen, there's a very good chance that he could've beat the charge (I have to admit, I haven't read the statute, but I'm guessing it's somewhat similar to California's lewd conduct law in Penal Code Section 647(a), of which I did a couple of trials ages ago when I did misdemeanors).
Craig indicates that he was innocent, but pled to take care of it. The fact is that he was given a great sweetheart deal, which is usually given in cases like this, which encourage people to plead to things they may not have done. I don't have an easy solution for this, of course. It sounds easy to ridicule, but I realize that we don't want people getting very harsh punishments small charges that are first offenses just because we want to encourage them to go to trial and assert their rights. On the other hand, criminalizing such minor behavior such as this, and insisting on pushing it to a filing, really stretches what is necessary. I don't know, maybe there really is an epidemic of all of these solicitations taking place in the bathroom in this airport, but I have to think that with conduct like that alleged by Craig, they could use their discretion and not file on it.
The cases that I saw so frequently usually had someone making an unambiguous action indicating intent - usually masturbation and asking the person to do something, not just brushing of a hand or foot. I have to think they could've waited for a little more unambiguous action on Craig's part before arresting him and filing the case (these points obviously bleed over to my other points on the subject).
Back to pleading, though, Craig makes it clear that people actually do take deals when they are not guilty, and, as Craig said, without the assistance of a lawyer (which he said he wished he had taken, but obviously wanted to get it over as quickly and quietly as possible that he didn't avail himself of this option). Other people don't have lawyers for other reasons, though. Some jurisdictions have crappy PDs or appointed lawyers. Some courts encourage people to plead without lawyers, making them wait a long time if they want a lawyer, and getting them out more quickly if they say they'll waive their right to a lawyer. Other courts even suggest that the offer could go up if people insist on a lawyer (believe me, they always manage to say this in a cagey manner that doesn't say it directly, but gives the person in the position of hearing the statement come away with that unmistakable impression).
So, when Craig said that he pled to something that he didn't do, this is an area where tough on crime Republicans would normally scoff and say "yeah, right." But, as Craig shows us, this does happen, and people do have reasons to plead to things that they didn't' do. So, the next time you hear someone say "I took a deal, but I didn't do it," remember that he may actually be telling the truth. Don't accept that guilty plea as the gospel truth.
Update
Boy, did I blow it with calling Craig a senator from South Dakota. As Skelly correctly pointed out, he is from Idaho. I could blame it on some factor that deflects blame from me, but I'll stand up and take this blame.
Also, TPM has more, including the actual tape of the conversation between Craig and the officer who arrested him, as well as his plea agreement and swearing that he has no claim as to innocence.
It certainly makes it look as if he would have a more difficult time withdrawing is plea.
Thank you Skelly for the correction and update.
The Scooter Libby case was a perfect example of Republicans being forced to admit that a punishment did not fit the crime. In that case, it was perjury and obstruction of justice receiving lengthy prison sentences (they seem to have gotten beyond that whole thing - they just thought this one, solitary prison sentence was too much - if given to minorities, poor people or Democrats, then it would've been too lenient). The fact remained, though, that defense lawyers are now able to present the President's statement about the harshness of prison for a first time offender like Libby in their own cases.
The Larry Craig case brings up a few issues near and dear to my heart. I'll talk about one of them today, and follow up with the others in the next couple of days.
The issues that I see are as follows: 1) absurdly defined crimes that result in criminal convictions for behavior that cannot otherwise be defined as criminal, 2) people pleading guilty to things they didn't do so as to avoid the spectacle or trouble or risk of going to trial, and 3) absolutely ridiculous "opinion" testimony of police officers which generally amounts to "my opinion as a police officer is that he's guilty, so the jury should find him guilty."
Regarding people pleading guilty to things that they may not have done, Larry Craig is a perfect example. He obviously wanted to plead so as to avoid a spectacle in which he would've been held up to major ridicule. The cost of trial such as this would've been enormous for him, and by all signs of the police report I've seen, there's a very good chance that he could've beat the charge (I have to admit, I haven't read the statute, but I'm guessing it's somewhat similar to California's lewd conduct law in Penal Code Section 647(a), of which I did a couple of trials ages ago when I did misdemeanors).
Craig indicates that he was innocent, but pled to take care of it. The fact is that he was given a great sweetheart deal, which is usually given in cases like this, which encourage people to plead to things they may not have done. I don't have an easy solution for this, of course. It sounds easy to ridicule, but I realize that we don't want people getting very harsh punishments small charges that are first offenses just because we want to encourage them to go to trial and assert their rights. On the other hand, criminalizing such minor behavior such as this, and insisting on pushing it to a filing, really stretches what is necessary. I don't know, maybe there really is an epidemic of all of these solicitations taking place in the bathroom in this airport, but I have to think that with conduct like that alleged by Craig, they could use their discretion and not file on it.
The cases that I saw so frequently usually had someone making an unambiguous action indicating intent - usually masturbation and asking the person to do something, not just brushing of a hand or foot. I have to think they could've waited for a little more unambiguous action on Craig's part before arresting him and filing the case (these points obviously bleed over to my other points on the subject).
Back to pleading, though, Craig makes it clear that people actually do take deals when they are not guilty, and, as Craig said, without the assistance of a lawyer (which he said he wished he had taken, but obviously wanted to get it over as quickly and quietly as possible that he didn't avail himself of this option). Other people don't have lawyers for other reasons, though. Some jurisdictions have crappy PDs or appointed lawyers. Some courts encourage people to plead without lawyers, making them wait a long time if they want a lawyer, and getting them out more quickly if they say they'll waive their right to a lawyer. Other courts even suggest that the offer could go up if people insist on a lawyer (believe me, they always manage to say this in a cagey manner that doesn't say it directly, but gives the person in the position of hearing the statement come away with that unmistakable impression).
So, when Craig said that he pled to something that he didn't do, this is an area where tough on crime Republicans would normally scoff and say "yeah, right." But, as Craig shows us, this does happen, and people do have reasons to plead to things that they didn't' do. So, the next time you hear someone say "I took a deal, but I didn't do it," remember that he may actually be telling the truth. Don't accept that guilty plea as the gospel truth.
Update
Boy, did I blow it with calling Craig a senator from South Dakota. As Skelly correctly pointed out, he is from Idaho. I could blame it on some factor that deflects blame from me, but I'll stand up and take this blame.
Also, TPM has more, including the actual tape of the conversation between Craig and the officer who arrested him, as well as his plea agreement and swearing that he has no claim as to innocence.
It certainly makes it look as if he would have a more difficult time withdrawing is plea.
Thank you Skelly for the correction and update.
Wednesday, July 25, 2007
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.
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.
Monday, July 16, 2007
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.
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.
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