Monday, December 29, 2003

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.

Tuesday, December 02, 2003

Do I believe all of my clients are innocent?


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.

Thursday, November 20, 2003

High profile Defendants

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

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

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

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

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

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

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

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

Wednesday, November 12, 2003

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

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

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

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

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

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

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

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

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

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

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

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

Monday, November 10, 2003

Back to the Grind

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

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

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

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

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

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

Tuesday, November 04, 2003

Kissing Your Sister

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

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

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

The waiting continues.

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

And so the nail biting goes on.


Saturday, November 01, 2003

"The waiting is the hardest part."

Tom Petty (and me)

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

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

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

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

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

Friday, October 31, 2003

Closing, and then waiting.....

My favorite part of a case is closing. I love getting up there and letting it all hang out. I love breaking a case down, finding little details that the other side has missed out on, that the jury didn't notice, and pointing out how they support my cause. I love pulling together all of the little questions that I asked that seemed to make no sense, and putting them together in a coherent story that breaks down the prosecution's case little by little.

Closing is also great because it is frequently the only time in a case where a client likes me. During cross examination, they wonder why I don't ask other questions, during the prosecution's case, they wonder why I allow witnesses to say bad things about them (like that they shot someone, or beat someone up, or robbed someone). But, after closing, they love me. This is the first time in many of their lives that they've ever had someone stand up in front of a group and defend them, or even say good things about them.

I love doing closing arguments, and I think I'm pretty good at them now. But, the worst part of closing is finishing. You see, after I finish, in California the prosecution has the right to go after me. They get the last word, and that kills me to listen to it. First of all, I remember all of the things that I wanted to say in my closing and forgot to say (you will not find a lawyer in the world who hasn't forgottent things in their closing). Also, I can't respond to some of their specious, or even good, arguments. Finally, I just hate the loss of control. No one wants to let someone else get the last word, and that's what has to happen (except in my previous trial, where, for the first time ever, the prosecution waived their final closing argument) all the time.

Then comes the waiting. I have always been terrible at waiting for results. In school (every school up through law school), I never got nervous for tests, only for the results. In trial I almost never get nervous for triall, but I do get nervous for verdicts. Nothing is more wrenching than watching the foreperson hand the bailiff the verdict forms, who gives them to the judge, who gives them to the clerk to read. That just kills me.

And right now, I'm in the waiting game. Wish me luck. I could win, I could lose, it really could go either way, but I feel, in my gut, that the longer it takes the worse it is. And it has been the whole morning already, so I can only fear for the worst.

Monday, October 27, 2003

Lying Cops

I've said before that the greatest amount of lying, or dishonesty, among police officers occurs in the offering of "opinion" testimony. The opinion is usually something to the effect of "the defendant's guilty," and they have a bunch of fancy little words that they utter to make it somehow fit within the evidence code.

The testimony is a wholesale license to lie. And today, in my trial, an officer did just that. In this case, I actually had some goods on the cop, but this cop, and so many others, are so dishonest that they make their biases completely obvious just by the way they testify. Here, the detective managed to not understand and need clarification on every question I asked. They all made no sense. They were hard to comprehend, whatever reason he could come up with not to give me a straight answer about the most obvious of things. Yet, when the DA asked him the same questions, magically he understood.

The other infuriating thing is that there are no certainties when a cop gives opinion testimony. One time, his opinion is this, another time it's that, if it fits the case. Here, though, I had him as to one of those opinions. And I had a transcript where he stated explicitely that which I wanted him to say in this case (it helped him in the prior testimony and hurt him in this case). Of course, as I expected, he tried to weasel out of it, said he didn't remember the case, said he wasn't sure, but I got him, and the jury got a look at what a liar he was.

Now, I can only hope that they find my way. I see no reason why they should come back with a guilty verdict, but on the other hand, who knows, maybe they trust this officer. Their case sort of sucks aside from the cops testimony, and I caught him shading his testimony consistently against me, so they probably should disregard what he says, but I really can't say.

Well, I put on my case on Wednesday, and then close on Thursday, and then that's that. We'll just have to see.

Wish me luck.

(does any of this make sense? It's just a stream of consciousness right now in that I'm still pissed off about what happened in court, so I'll make more sense in my next post, after the verdict, when I tell you the whole story).

Friday, October 24, 2003


Sometimes, it is invigorating, the most fun I've ever had while working, a joy to behold. Sometimes, it works me to the bone and stresses me out to no end. Usually, it does both at the same time.

The trial that I have been involved in for the last week has done both, in greater amounts than any trial I've ever done before. I wrote earlier about the murder client I represent where DNA evidence that could exonerate him sits untested by the prosecution (they will not attempt to get a sample of a 3rd party who was identified as the shooter by one witness but against whom they chose not to pursue charges, since any evidence gathered against him would only harm the case against my client). Well, believe it or not, despite the fact that my client is very likely not the person who did this shooting (I am convinced, for the first time in any murder case I've ever had, that my client is innocent), the case is now in trial.

People have asked me in the past "how do you sleep representing a guilty person?" My easy answer is "a lot better than I have this last week."

Representing someone who is innocent, where he could easily be convicted due to the presumption of guilt that exists in every case (unless you are a celebrity like Kobe Bryant, you will be presumed guilty in just about every case, that is just the reality despite the law) is very stressful. The prosecution realizes that they have a very weak case, so they are putting up a huge amount of evidence - not evidence that points to guilt or innocence - just evidence, to try and overwhelm the jury with the thought that the DA would never put up this much evidence if the person was innocent. They are hoping that the jury would never believe that they rolled over on doing work on the other suspect due to the fact that they are working so hard right now, so why would they have been lazy before and not investigated a legitimate lead earlier.

I have made many points, but several of her witnesses have come into court and lied. How do I know they have lied? Well, some have contradicted their preliminary hearing testimony, some have contradicted subsequent statements to the police or my investigator, and some have done both. I can only hope that the jury sees through this the way I have and find my client not guilty in the end.

It is always heartening when you have those who are otherwise cynical on your side, and in this case I do. The court clerk and the bailiff, both of whom have seen and heard many cases before, are openly skeptical about the prosecution's case. It will only get weaker when I put my evidence on next week.

I'll update next week with more info, for there are many fireworks that are going to take place next week. There could be some good stuff, and, you never know what may happen. I already have a DA and a homicide detective extremely upset at me, if I don't post anything in the next few weeks, you may find me face down in the desert...... Make sure you send this post to the attorney general.

Only joking.

Out for now, more info later.

Thursday, October 09, 2003

Worthless Public Defenders

Such a concept certainly exists, and it appears to exist to a large extent in Nevada. I won't pretend to know everything about the public defender's offices in Las Vegas, but on the face of it, something is wrong.

It took me over 7 years before I was allowed to handle cases where the defendant was eligible for death, and if I actually got a case where death was a good possibility, I would have a co-counsel, probably one with death penalty experience. Apparently, in Las Vegas, if you fail a lie detector test (ie - the office thinks you are guilty), they assign you a brand new lawyer, reserving their "good lawyers" for "innocent" clients. CNN has a story about this, and the subsequent lawsuit where an exonerated death row inmate has sued the office for assigning a brand new lawyer on his death penalty case because they felt he was guilty.

I say sue, and get yourself a huge amount of money.

It should not matter to a lawyer whether a person is innocent or not. Of course it does, in reality, but such a consideration should not affect the manner of your reprsentation of a client. I will not put my head in the sand and pretend that individuals are not emotionally affected by this realization, but in Las Vegas, the office apparently has a policy of disciminating between cases in this manner.

Where I work, our best lawyers have worked on cases where the defendant was absolutely guilty, in fact, I would venture a guess that if you asked most lawyers (true believers, or those who think everyone is innocent, aside), they will probably admit that they have never had a murder where they absolutely believed that the defendant was innocent. Not guilty, maybe, but absolutely innocent? I have some news for you, it doesn't happen too often. On a death penalty case? Even less frequently. There may not be strong evidence of a person's guilt, there may be justification for the killing, but the absolute wrong person? It just doesn't happen that often. If I had to wait for one of those cases before I started working hard, I would not have anything to do.

Sometimes, your best effort is getting a dead bang guilty murderer life in prison instead of death, or a non-life sentence, or a verdict of guilty to a lesser offense. Fighting a case does not mean your only hope is to have a client walk out of the front door at the end of the proceeding. The Las Vegas PDs office, if the story is to be believed, will only work hard on those few cases.

Such an office, if true, should be disbanded and put back together in a responsible manner, where all defendants have true representation by dedicated lawyers. I certainly hope the allegations are false, because if they are true, they give public defenders everywhere a black eye.

Wednesday, October 01, 2003

There are few things more intense than having a client plead guilty to a large amount of time. In the last year I have had clients plead guilty to 27 years and 25 years. On these charges, my clients will serve 85% of their sentences, meaning that they would get out in about 23 and 21 years, respectively.

Obviously, if one can't do the time, one should not do the crime, and obviously these were people who did very bad things. But, what is interesting about my work is that I get to know some people that most members of "polite" society would never know in any way except to feel menaced by them. I hold real and sometimes deep personal conversations with these people. In other words, I grow to have a certain affinity for some of my clients. Some clients I detest, not only because of the acts they have done, but because of their particularly unpleasant personalities. Others I like, in spite of the things that they have done.

Thus, these last two clients that I pled to long sentences affected me more than other cases in that I actually liked the clients, even though they were clearly bad actors. I didn't want to have them over for dinner, but I understood that they had family who loved them, I met that family, I saw they had children who would miss them, wives or girlfriends who loved them, and people that would feel the void of their departure (I guess I see this also for clients I find extremely unpleasant too).

The real dilemna in cases like this deals with the fact that on one hand, as a purely reasoned calculation, these people should be pleading guilty. There is frequently strong evidence against them, they face sentences which will guarantee that they never exit prison for the rest of their lives, and they wish to mitigate against such a possibility.

On the other hand, I stop and think of myself and what I've done in the last 25 years, and what I will do over the next 25 years. I think about my house which I will have paid off completely, I think about my children who will be out of the house, I think of the fact that I'll be retired then. This gives me an idea of where I will be when they get out, and then I consider all of the things I will do and enjoy in that period of time that they will never have happen to them.

Most people don't have to consider this as an active part of their life, but I remember the movie "The Shawshank Redemption," and the amount of time that the main character and Red were in prison. I remember how worthless Red was upon getting out of prison, how he could barely go to the bathroom without having a crisis of conscience. I wonder to myself what these two clients will look like in 20 years. Was it the best thing that they plead? Should they have just taken their chances at trial, and then hoped for the best on appeal if and when they lost?

One of the tough issues I face when this situation arises is what kind of advice to give. The last thing I want is for a client to think that he was forced by his (appointed) lawyer to plead guilty, or "dumped." As a result, I never try to talk clients into taking deals, I only lay out the issues for them, the pros and cons, the best possibilities, the likely scenarios arising from trial, etc.... I tell them that they can ask my advice if they want it, but I don't force it down their throats. The only thing that I will sometimes do is say something like I said to my latest multi-year plea. My client who just pled to 25 year had told me to make the DA an offer of 16-21 years (I offered 16). The DA came back with 31, so I told her specifically 21, she came back with 25. I told my client that if he was really willing to accept 21, then he should take 25, since the difference between those two was so little compared to what he was facing (never leaving prison). If the difference between the DA's offer and what my client wants is little, but the downside from not accepting is huge, I will tell my client that they should not be excessively proud about this, they should go ahead and take the deal. But, I only do that after they have told me that they want to plead guilty and that they'd take a deal close to what was actually offered.

Finally, for serious cases like these, I find that most of the hard work takes place prior to going to trial. The trial and closing arguments are the fun part, so I tend to have some misgivings feeling that I've done all the hard work without getting any of the fun stuff in return, and that I really should go all the way as a result. Of course, that is only what I feel, not how I act. I act in my client's best interest, whatever way that may be, and however he directs me. He has an absolute right to a trial, and I am prepared to fight hard for him. But, he also has an absolute right to plead guilty, so what I want doesn't really matter anyway.

Wednesday, September 10, 2003

Buy Al Franken's new book, "Lies and The Lying Liars Who Tell Them: A Fair and Balanced Look at the Right." This one outdoes his last one, "Rush Limbaugh is a Big Fat Idiot," which was terrific in its own right.

This book totally debunks the idiotic myths that the right wing echo chambers known as Talk Radio, Fox News, The Washington Times, Wall Street Journal and New York Post, to name a few, have helped to create. You cannot read this without laughing everytime you listen to idiots like Sean Hannity, Bill O'Liarly and Ann Coulter ever again.

Monday, September 08, 2003

Do police face real prosecution for crimes committed in the course of their duty?

I'm sure that many of them do, I just haven't seen much of it. And I pay very close attention, at least in Los Angeles, where an inordinant number of cases seem to take place.

Let's start with the obvious one - Rodney King. To begin with, the state prosecution was inept, and pretty meekly allowed the case to get sent out of LA and to Simi Valley, where a conviction was much harder to get. Then, after putting up an inept case, which saw the defendants acquitted, the Feds stepped in and brought their own prosecution. They won, good job, I'm proud. One would think that federal sentencing guidelines would take over there, and they would spend a good deal of time in the can after that. Oh no, not policemen.

You see, Judges tend to be ex-prosecutors (see previous posts on the subject), or if not ex-prosecutors, they've spent their whole career in the judiciary afraid of incurring the wrath of police and rubber stamping all of their actions. When faced with punishing them, old habits seem to stick with them (and that would not the old habit that defendants must pay a heavy price for exercising their constitutional right to a trial - oh no, that only applies to indigent minority defendants). They revert to the police wannabes that they always act like.

This is why, after over a decade of constantly upholding mandatory minimum sentences, and after a decade of overturning shorter sentences that some judges tried to give college kids caught with an ounce of acid facing a minimum of 20 years in prison, the Supreme Court finally spoke on the issue of mandatory minimums and ruled in favor of the defense. In a very narrowly written opinion, the Supreme Court managed to carve out a minor exception for mandatory minimums in a case called US v. Koon (yes, that would be Stacey Koon, one of the convicted cops in the Rodney King case). One might as well call the exception the "I'm only a cop who beat the hell out of minority defendant" exception to the mandatory minimum rule. Koon and Powell had their sentences halved instead.

Surely that is an exception, right? Wrong!!! In case after case, justice seems to disappear when police officers are in the defendant's chair. Don't get me wrong, all of those "rights" that pro-cop forces call "technicalities" are in full force: search and seizure, right to remain silent, coerced statements, not turning over discovery, and any other issue a good defense attorney could ever think of but would be afraid of bringing up for fear of being laughed out of the courthouse is brought up by police defense attorneys, and to the astonishment of every other defense lawyer in the building, the motions are granted - just this once.

The Rampart defendants had their convictions overturned for jury misconduct (the jurors had the temerity to read an exhibit that was submitted to them by the defense), officers who go on drunken rampages and shoot their guns out of cars get probation and no jail (but they had to write an apology and do community service - speaking to schools), officers who beat suspects and lie about it get probation and 6 months house arrest, shoot someone for no reason, lie about it and send him to prison for 24 years after paralyzing him for life, that's worth about 6 years.

In case after case, when the prosecution actually tries hard and wins a couple of these cases, they ask for next to nothing in sentences, or judges give them next to nothing in sentences.

Now, if you go out and deal drugs as a cop, or rape women, you tend to get a lot of time (especially if they are wealthier white women). But, this is only when caught in the act, or something close to it. Jurors have such a love affair with police unless they're caught on tape doing wrong convincing them to go aganist police can be a herculean task.

Ironically, defense lawyers are among the best at making police look bad when they actually act bad. But, in a deal that smacks of sweetheart treatment, regular old DAs prosecute cops. That's right, people who's job it is to make cops look good all the time once in a while have to do a trial where they say cops are lying. Guess what, they do a pretty bad job.

If society is ever serious about stopping police corruption and misconduct, they'll allow for special prosecutors to prosecute cops. And they'll hire criminal defense lawyers, preferably PDs, to do this.

I can't tell you how much of that Rampart trial I sat there watching feeling disgust. These DAs, who are so good at making the most minor gang member look like Atilla the Hun, couldn't make cops in the most rogue unit in LAPD, with members of the unit caught red-handed committing crimes, look like anything worse than Sgt. Friday. And despite that, and the obvious bias by the judge in favor of the defendants (she was sitting in a trial of defendants exposed by Rafael Perez. She had previously sat in a trial where Perez testified and she sent a letter of commendation for his actions to his superiors. He later admitted he lied in that case, embarassing her, to the extent that she told Perez's lawyer at a public function that she welcomed the lawyer in court anytime, but not Perez, who was to be the star prosecution witness in the Rampart trial. The prosecution decided not to call him afterall.), they were still able to get some convictions on the case, only to have the judge overturn them.

So, the message in society is clear, black and brown crime, bad, white crime, somewhat bad, blue crime? What's that? There is no blue crime, you can't believe those lying PDs and defense lawyers when they say cops lie, and the proof of that is that just about no officers are ever convicted (the DAs make sure of that), or get seriously punished (the judges make sure of that).

Wednesday, September 03, 2003


This is the question my friends most commonly ask me when asking me about cases. The question is actually hard to answer sometimes.

As a PD, I don't get to choose my cases, they are assigned to me randomly (through some matrix system depending on what court I am working in) or, in the more serious cases, assigned to me by a supervisor who looks at my caseload and determines it's time for me to work a little harder. Turning a case down is not an option (at least not more than once. Maybe you can pull a "personal reason" excuse once, but don't try more than that).

But the question of "did he do it" is a complex one. For the most part, my clients did something wrong to get themselves into custody. The only question is what did they do, and does the provable actions conform to the charges against them? Thus, while my client may have possessed drugs, and should be found guilty of that (a truly absurd crime, but that's another post), the client should be found not guilty of possessing them for purposes of sale. This can have a huge distinction in Cal. In some cases it can be the difference between a small fine and life in prison (in the case of pot, the difference between a $100 fine and life in prison can be a cop disliking you and "opining" that you possessed that eighth for purposes of sale). So, did he do it?

Even in more severe cases such a conundrum exists. In a murder case, maybe my client shot the person, but did so in self-defense. So, yes, he did kill the person, but we will argue that it was not murder, and the DA will argue that it was.

Ultimately, I was not there for any of these crimes (if I was, it would be a conflict of interest for me to represent the person since I would also be a witness). I can only rely on what I read in the reports and hear from the witnesses. Sometimes, the overwhelming evidence convinces even me conclusively that my client "did it," despite his consistent denials. Other times, I can only throw up my hands and say "I dunno, we'll have to let the jury decide."

I used to feel in just about every instance that there was at least some truth to what an officer testified about when they say my client committed a crime, or they found evidence on him. Rampart began to change my mind (if you don't know what Rampart is by now, go to the LA Weekly web site, or do a google search, but essentially it was the largest scandal in LA history for corrupt cops planting evidence and falsely testifying against defendants in central LA). I actually had some cases with these cops, and I had no reason to believe that they would just go and plant evidence on completely innocent people. I figured they shaded the truth at times, exaggerated to get someone convicted, but make stuff up wholesale???? I guess even cynical I didn't want to believe that. Well, it happened.

So, if my client says that he didn't have those drugs the police say they found on him, who am I to tell him he's a liar. And who am I to tell someone, when they ask, that he "did it"?

Friday, August 29, 2003

I always carry cards around, and I give them to my clients liberally. Why? It's a sort of funny story, but it goes back to when I first became a PD and was so happy to have a real job that I could put "Attorney at Law" on my cards, that I got them right away. Many PDs I knew never got cards, saying that the last thing they needed was their names getting around the jail.

Well, I got cards, and when I first started out arraigning people ("these are the charges against you, you'll have a prelim/trial in so many days, what happened," etc..., but no real legal work) I would often have clients ask for a card. Knowing that I was not going to represent them any further, I still gave them cards. You wouldn't believe the buzz that went on in lockup after that happened. The client I gave the card to would go back into lockup and show it to someone else and say something to the effect of "look at what I got, my lawyer's a real lawyer, he gave me a card." The others would gather around, and then begin badgering me to represent them too.

Did it make a difference in my representation of them? You bet. As I have mentioned, people frequently (and incorrectly) think that us PDs are crappy lawyers, and that we're trying to dump them. Little things can dispel notions like this. One of those things are cards, it makes us look more professional. It may not help with every client, but it certainly helps a lot. Now, every time I meet a client for the first time, I give him or her a card, as if I was a high priced private lawyer meeting a well-paying client for the first time over a $300 dinner. It makes a huge difference, especially to someone who is suspicious that he is having some loser lawyer thrown at him for the sole purpose of getting him to plead guilty and go to jail for a long time.

The lesson: always look and act as professional as you can. It doesn't mean that you can't be a rebel (for many years I've worn an earring in Court), but it means that you exude confidence and competence, and people will believe it - even juries, all of which really matters.

Saturday, August 23, 2003

Writer Taint makes a very important point that I failed to address on the differences between hiring a PD and a private lawyer, something I'd be remiss not to address in a formal post rather than a private response. He noted that there are things that private lawyers do that PDs don't frequently do. And he is right

When I said that PDs were frequently the best lawyers in the courthouse, I spoke regarding their raw trial and legal skills, but specifically, how they work after they get a case (meaning, after a defendant has been filed on). I also referred only to our criminal law skills, but frequently there are civil and immigration ramifications that can even outstrip the potential criminal penalties for an offense. Private lawyers have the edge on us in these respects, and I am more than willing to admit it (there are probably other crossover areas where private lawyers are better lawyers than PDs, by not mentioning them, it doesn't mean I feel that they don't exist).

There is a lot of legal work that can be done on a case prior to filing, things that PDs never deal with. Frequently, working with the DA and detective on a case can prevent a filing at all, which obviously would be the best thing one could hope for in a case. Because we get cases only after they have been filed (and cases take on a life of their own once filed), we never really have the ability to do work like that, and one would be well advised to get a private lawyer before filing if there is a chance to avoid a filing.

Even when a case is filed, there may be things that can be done to advance the cause of the defense that PDs can't do. For instance, in Drunk Driving cases (or Dueces, as we call them), there exists a mechanism to get someone back their license even though the DMV has an automatic suspension that goes into effect. This is called a DMV hearing, but PDs don't do those because they are civil, not criminal proceedings, and we are only allowed to handle criminal matters. However, a civil lawyer can and frequently does handle those matters, and not only can they get someone their license back, but frequently they find out valuable information for trial that PDs would have.

Restitution is another area where we do not have the same qualifications as civil lawyers. PDs are frequently anxious to avoid jail for a client so they are happy to stipulate to restitution as a civil judgment, which could have long-term ramifications for a defendant long after their case and probation are over. However, since we don't ever handle that area, it is an area we know little about.

There are other civil criminal cross-over areas that as PDs, and having a narrow focus (only criminal law), we do not have the expertise that civil lawyers have and may not be as well suited to handle the work as those lawyers are.

Thank you Taint for pointing out something so obvious that I missed it. I certainly don't want to create the impression that I think of PDs as supermen - we're not. We are great criminal lawyers, but as with anyone who specializes in any narrow area of expertise, other areas sometimes go lacking, and other lawyers are better suited for those areas. If you have a criminal matter that must go to trial and you want a tough, hard fighting, skilled, and intelligent lawyer, my money's still on a PD, though.

Thursday, August 21, 2003

Public or Private, who do you choose?

"I'm going to get myself a real lawyer." That is a comment I hear just about once a week, far more frequently if I'm unlucky. This comes from even the most well-meaning of clients. Don't feel bad for me, it doesn't bother me on an individual level. It does bother me on a grander scale. This is because I know that, for the most part (at least in my jurisdiction), Public Defenders are generally the best lawyers around.

Are they all the best? No, there are clearly some very bad ones who just don't care, and are sticking around collecting undeserved pay and waiting for their pension to kick in. But, on the whole, we are generally the better lawyers in the Courthouse. Are we the best lawyers in the Courthouse? Frequently, but not always.

Consider this. We get a steady diet of cases. We have them foisted on us and we cannot just go and dump a client if we don't like them or don't want to do the work. We are not paid by the hour, or by the case, so we can devote our full resources to the case and not have to concern ourselves with running out of money for the client. More importantly, because we get so many of the really bad cases, we are forced to trial, in general, far more frequently than private lawyers.

When I did misdemeanors, I did about a trial a month, which wasn't too much, but wasn't too bad. At the end of 2 1/2 - 3 years in misdemeanors, I had done over 30 jury trials. I had friends who I went to law school with who struck out on their own right after law school who had done one trial, maybe two in the same time. They didn't know how to cross-examine witnesses (when I started, I started out doing nothing but cross-examination). They had little experience with closing arguments, they didn't really understand the art of jury instructions. Clearly they did far more written work than I did, since that was where they really worked up their cases. But, for the most part, it cost them a lot of money to have to do a trial. For me, I was getting paid regardless, and I really love doing jury trials.

Now, that being said, there are plenty of really good private lawyers, some who have done over a hundred, or even hundreds of cases. But, if you're some poor little schmoe who doesn't know the first thing about the system, doesn't know the lawyers very well, and doesn't know how to find out who's good and who isn't, how are you going to go and pick a good lawyer and discern the difference between that lawyer a public defender and a bad private lawyer. You have to understand that word of mouth in the jail is very fast, and very inaccurate. A while ago there was a very pretty private lawyer who seemed to get a large amount of cases by badmouthing the PDs and flashing leg. Eventually, the bar and courts of appeal found out about how bad a lawyer she was, but several clients subbed me, and even better lawyers, out for her. Nothing like a little flash of her legs to get us off the case. I'd just shake my head sadly and know that my (now ex) client was really screwed now, and not the way he wanted to be.

That kind of thing (clients substituting - or subbing - me out of a case for a worthless private lawyer) has happened many times to me. Some of these lawyers don't know the first thing about trying a complex case like the one they're subbing me out on. The consequences are frequently disasterous for the client. I have a case right now where the client actually asked for me back after conviction and before sentencing because he realized the monumental error that he made.

I'm not going to tell you that all private lawyers suck and all PDs are good. That would be stupid. But, if I had to put this in some kind of a numerical understanding, I would say something like this. The top tier of lawyers is probably equally PDs and private lawyers (especially private lawyers who used to be PDs). The next few tiers are mostly filled with PDs, and the lower tiers would be more dominated by private lawyers. There are, simply put, many very bad private lawyers out there who will take your money and do nothing on a case.

Now, if I had all the money in the world and I needed a criminal lawyer, I'm sure everyone assumes I'd hire a private lawyer, right? Well, sort of. If I was in that kind of trouble, the lawyers that I would want to represent me would be almost all PDs, but I would probably want to hire them out to handle my case exclusively. Why is that? Is is because PDs are, as is spoken in the popular lexicon, overworked, underpaid and uncaring? Of course not. It's because if I had that kind of money where I could get any lawyer I wanted, I would also pay them for exclusivity, so they didn't handle any other cases and could concentrate on my case.

Let me be clear about this: while us PDs may have a lot of cases to handle, we generally do not have any more than your typical private lawyer. But, while private lawyers have to be out trying to get clients, we don't, they come to us whether we like them or not. They have to run offices, pay the bills, go out networking, hold their client's hands far more than we do (with more frequent jail visits that tend not to accomplish much, but do make those paying clients much happier). They have to go to different courthouses, and this is a very big deal. I only work in one courthouse. Most of my collegues do as well. We go into one building, we don't spend all of our time on the road. We don't have to worry about selling one client short while we hurry off to another court, or county, to handle another client's case. And, most importantly, going to trial does not cost us a huge amount of money along with our effort.

Therefore, I would contend that most people are better served with PDs than they are with private lawyers. Yes, there are bad PDs, but they are fewer and further between than bad private lawyers (like I said, private lawyers, don't be pissed off at me, many of you are good. But, plenty of you are not as good as us). And ultimately, mone will not ever cloud our judgment on how your case should be handled.

Tuesday, August 19, 2003

Why are Judges (at least at the trial level) DAs in black?

In California the trend probably began in earnest in 1986, when three Justices on the State Supreme Court had their confirmations voted down by the voters (in California, Appeals Judges and Supreme Court Justices must periodically be confirmed by the electorate in an up or down vote, generally a rubber stamp until that time). While the popular source of anger was aimed at these Justices extremely high rate of overturning death penalty sentences (something like 59 out of 60 sentences overturned for some reason or another), the impetus for the anti-confirmation vote was really from big business interests who didn't like the overly friendly views towards consumers that the Justices exhibited. But, the Bird saga (the Chief Justice was Rose Bird, she and two other justices lost their jobs in the vote) has had strong recriminations in the state.

The governor at the time was a law and order Republican named George Dukemeijian (sorry Duke if I spelled it wrong), who had replaced Jerry Brown in 1982. He served until 1990, when replaced by (formerly moderate) Republican Pete Wilson, who discovered the art of demonization to stay in power (he used to support immigration, but championed proposition 187, denying all benefits to families of illegal immigrants when unpopular and facing reelection. It worked, but also made the Republicans so unpopular that they've only won something like 2 statewide offices here since.). Both governors appointed Judges who knew their place in the system - don't let criminals go no matter how illogical you must be. Consider how extreme Bird and company were on one side, and be even more absurd in the other direction. To this end, the vast majority of people appointed to Judgships came from the DAs office. Those appointees with a defense background tended to be even harsher law and order types than the DAs (talk to most defense lawyers here and most will agree that the former Public Defenders appointed as Judges frequently were the worst PDs before they became Judges, and didn't get much better after they hit the bench).

The result in the last two decades has been dramatic. The interesting characters who make California a fun place to live and work are for the most part gone. People have become Judges only by pandering to the most base political causes, usually mindless law and order (that law and order mentality goes right out the door, though, when the defendants are the sacred class in California politics - law enforcement. In those rare instances, they get justice the way it is actually written in the books, and not the way it is practiced generally for poor minority clients in the courtrooms of the state). Instead of 59 of 60 death sentences overturned, the same number now get upheld, no matter how egregious the errors, how rife with misconduct from the prosecution, how patently incompetent the defense lawyer may have been. Of course, the Federal Courts have begun overturning this legacy of absurd judging in droves, having overturned on the order of a dozen death sentences in the last year or so.

The worst legacy of this period has been the eviceration of California law contorted to ensure death sentences stand up. Therefore, any error, no matter how bad, any rule, no matter how silly, any result, no matter how absurd, stands up in Supreme Court opinions so that the evil of a death sentence being overturned does not happen. The other legacy is what is called harmless error, something that has infected every trial judge in this state.

What is harmless error? Without resorting to legal mumbo jumbo, it means "alright, that was a screw-up, but it didn't affect the game, so don't sweat it, the conviction stands." Imagine a football game where the referee reviews a call, says "bad call, but you know what, the Raiders sucked, are going to lose the game anyways, so why waste our time trying to fix it now, it's too late for them. Anyways, we hate Al Davis and those damn Raider fans, so it's a net gain for society." That, in a nutshell, is harmless error California. While some errors are clearly harmless, one would not consider the bulk of the errors now called harmless to be so harmless if they cropped up in their own trials. Furthermore, the message from the Supreme Court to trial judges has been clear: "here is the rule, you must follow it, since we said it is so. However, if you fail to follow it, don't worry, for the error will be harmless." Since the police and prosecutors will try to end the career of any judge who follows the law in a way that rules against them, which way do you think most of these judges, who are generally ex-prosecutors and frequently ex-cops, will rule?

Since most of the Judges are ex-DAs, who worked closely with cops throughout their careers and depended on them to reach their present positions, they tend to take the side of law enforcement whenever they have to make a choice. While most Judges will do this, not all will. The prosecution has a weapon to make sure they do. This is called 170.6 affidavit (in the code of Civil Procedure), which allows each side to challenge a Judge on a case for no reason at all. Now, each side gets one of these per case. But stop and think about this. The DA's office is generally the only office prosecuting cases, while there are 2 public defender's offices (in many of the big cities in Cal), as well as a multitude of private lawyers who "papering" a Judge can really hurt their business in the future. So, who do you think has the ability to "paper" a Judge into civil?

If you think that the defense can do it well, consider one situation in the main courthouse in a large Californian city. There is one Judge there that both public defender's offices paper regularly, and have been for several years. And yet, he stays there taking private counsel cases, pro pers (people who represent themselves), and overflow cases where other Judges have been papered. If the DA's office papered him, he'd be in civil before he'd had a chance to read up on his civil law (which he'd probably know little about, since he's practiced criminal law most of his life). Yet, papered by the defense, he remains at the main courthouse ready to wreak havoc on any defendant who appears before him, unbothered by the fact that just about every lawyer who knows the first thing about criminal law thinks his abilities fall somewhere below a first year law student's abilities, to say nothing of his fairness.

The message to Judges is clear - your career can be ruined by the police and prosecution, don't mess with them. The higher courts have given them a green light, the other Judges give them a green light, and the people who really control the courts, the prosecution, have given them a green light (in fact, they really hold all of the traffic signs for the judiciary to follow).

Result - California Courts have gone from one of the most respected and cited courts in the nation, to a joke that gets overturned in just about every situation possible by Federal Courts. But, the Federal Courts can only take a very small number of cases, so a very large number of people sit for increasingly long periods of time in prison after having their cases completely bungled by the DAs behind counsel table, and the DAs on the bench, the supposed "check" on the "real" DAs.

Saturday, August 09, 2003

This blog is not only about the criminal justice system. Us Public Defenders tend to be anti-establishment and have strong views on a variety of subjects, most of these views would be at odds with much of the rest of society, but they would tend to be very logical and well thought out views.

Which leads me to talk a little about the war and its aftermath.

I actually supported the war. My view was that, based on what my government said and history, Hussein was a dangerous meglomaniac who, with the right weapons, could wreak destruction on the rest of the world. In his position, I felt that the world would have to deal with him sooner or later, and sooner certainly beat later if it meant that later he would have the power of Kim Jong Il (which, in my mind, meant that even though Kim had worse weapons, Hussein's possession of some of those weapons, and attempts to get more, meant that he was proper fodder for attack since we did not want to to get to be like Kim).

I began to have some disquiet as the war continued. Essentially, I wondered, if Hussein was as dangerous as our government had told us (the reason I favored the war), and if he was really willing to do all of the evil things he had done in the past, why didn't he do them now? He was fighting his battle to the death, he had nothing left to wait for, nothing to hold out for, why not use all of the weapons at his disposal.

I have come to believe that he did use all of the weapons at his disposal, and they did not include WMD, scuds, nukes, or anything else that our government told us they included. Later we find out that Paul Wolfowitz (one of the architects of the war, and a proponant of this war since 1998) said that WMD were merely a pretext that people could agree on.

Yes, Paul, the reason people could agree on that is because it was the only valid basis for an unprovoked, non-defensive war that ripped apart all of our long-held alliances and caused long-term, perhaps permenant, damage to our international prestige and goodwill. Evidentally those hawks in the administration followed Bush's other big plan when running for office: faith based initiatives. Obviously, this war and it's aftermath are examples of foreign policy by faith based initiative. Just hope that there are WMD, lie to our friends, alienate our allies, and have faith that all will turn out ok. Don't have a plan for occupation, just give all of your friends at Bechtel and Halliburtan a blank check and have faith that all will turn out ok.

Clearly the world is a better place with Hussein living in fear and hiding while his people live with hope. The question is whether we are better off with Freedom fries instead of French fries, Russia and Poland as our biggest allies, crooks like Silvio Burlesconi given invitations to the Crawford ranch, while decades long allies (and true democrats) like Chirac and Schroeder are treated like Josef Stalin?

This administration supposedly runs foreign policy with a religious zeal, promoting values like freedom and democracy. Well, can you count on 2 hands any countries that embody that ideal more than France and Germany, 2 truly pluralistic democratic and free nations that allow their people most of the same choices that our nation allows our people? Shouldn't these nations be held up as an ideal to aspire to, and not be threatened with punishment while quasi-dictatorships like Russia, nascent democracies (and hardly the shining idea of a nation we should all aspire to - yet) like Poland, erstwhile democracies with a history of unstable governments and a crook as its president (read this article by the Economist, no leftist publication, if you don't believe me) like Italy are treated like royalty?

All I'm saying is I wish that the US hadn't set a standard which said, to nations like China, Russia, and even worse places, screw the world community, we're right, they're wrong, and we have the weapons to prove it, so deal with it. I also wish that instead of our troops trying to play tinpot colonialists out there (I say tinpot because we don't have the evil streak to be true colonialists, what with the kill a hundred of their civilians for every one of our soldier's killed, huge detention camps for anyone who speaks out against us, in other words, ruling by fear) I would much prefer to see the blue hats (UN) running the show, with Russian, French, British, Chinese, and other soldiers lives on the line in addition to ours. I think the mission would have far more credibility, there would be less allegations that we are doing this to line the pockets of all of the president's cabinet's old co-workers, and we may still be able to eat French Fries in the Capital cafeteria.

Thursday, August 07, 2003

A bird in hand is better than 2 in the bush.

I'm quite convinced that police frequently fear searching for the truth about suspects when the truth may point to another person. This means that doing more investigation would inculpate another (uncharged) person, while exculpating the charged person. Thus, any work they do undermines the case they have, for the hopes of building a case against someone else. However, if they were to ever file a case against that other person, the person they previously charged looms as reasonable doubt in their case against the new person.

Got it?

What this means is that they would prefer to just go with what they have, since further work may bring up information helpful to the suspect, and they wouldn't want that.

Naahhhh, you say, this couldn't happen in real life. Except for a murder case I have right now, and a murder case I had in the past.

In my past case, the police failed to follow up on a suspect, someone ID'd at the scene by two of his "homies," because that person didn't fit into their theory of the case. They claimed not to know who this person was, so I even gave them information on this person, including a photo. They never even drove by his house. You have no idea how nice it sounded in trial, when I cross-examined the detective on 4 different days during trial: "officer, you have had this person's info for 9 months now, have you bothered to go to his house yet?" "Officer, how far do you work from his house?" "Officer, have you even bothered to call his house?" "Officer, have you even bothered to run him for priors?" "Officer, you work 5 minutes from his house and don't have to pay for parking, you can even park in a red zone in front of his house, have you bothered to do this yet?" "Officer, you could go to his house today after trial and still be home by 6:00, is that right?" "Officer, it's now 3 days since I asked you these last questions, have you bothered to go by his house yet?" "Officer, you've been back to the office now 5 times since we first spoke, have you bothered to go to his house yet?" When that was read back to the jury (at their request), it sounded devestating - Not guilty.

Now I have another one where the police stopped investigating one suspect (someone a witness ID'd as being the shooter, who later lied to the police about his whereabouts that day, and then moved out of his adjacent house 2 days later) when they got another suspect who 2 witnesses ID'd (that would be my client). My client requested that we DNA test any and all evidence that the shooter may have touched (knowing that the DA and police would do so before we could, would get the results, and would use it against him if it came back positive), and VOILA, samples were recovered that excluded my client. So, the simple thing seems to be, get the other person's DNA, right? Oh no, we couldn't do that now, could we. That would only mess up their case against this defendant. So, now I'm going to have to somehow get it. Incredible how many less resources and abilities I have to do this than those with badges and guns.

Just remember this when police and DAs insist that it hurts them just as much as the defense for someone to be wrongfully convicted.

Wednesday, August 06, 2003


Always a pleasure to have a jury come out and say what you've known all along, that you're a kickass lawyer who can try the hell out of a case. Today was no exception, got a not guilty on a pretty serious case. The fact is, though, as much as I would like to take credit for "winning it myself," the facts just weren't there. In fact, my client probably didn't even do this, but was sort of caught up in the case because he was in the wrong place at the wrong time. That being said, I did do a helluva a job getting an innocent (or at least seemingly innocent) man off.

When I say seemingly innocent, I say that because ultimately, I wasn't there, I don't know the true facts, and if my client really was or wasn't one of the persons who did this act. The facts certainly pointed to the reality that there was no evidence against him except for a very weak identification. This ID was unsupported by any other evidence. Therefore, I could only surmise possible innocence by the fact that my client insistent that he was innocent (something that plenty of my guilty clients are), and that he stuck to his story under withering interrogation by the detective, despite the multiple lies the detective told him about mountains of evidence against him. My client even jumped at the opportunity to take a lie detector test when the detective offered him one (no surprise, I guess, that the detective didn't follow up on that one, God fobid he finds the defendant's innocent and has to go out and do some real work).

Because I really don't know what happened on a case, I rarely will say I think anyone's actually innocent. I'll say that the evidence against them is weak, that the case can't be proven, that it looks likely that my client didn't do the offense, but a claim of innocence is very rare for me to make. The only time I really make that kind of a claim is when I have rock solid proof that my client couldn't have done the act (such as he was in jail at the time the offense occurred out on the streets). By this cautious approach, I wouldn't even be able to delcare that I was innocent of killing Nicole Simpson, for instance. After all, I was home alone that night, I have no witnesses to being at home, and I have no proof that I didn't do it. See what I mean? I need actual proof that someone's innocent before I refer to them as innocent, otherwise it's just a claim of innocence. The rest are shades of guilt, or very weak proofs of guilt.
Hello and welcome to my blog. I'm a public defender in an urban area in California (sounds like the start of a Penthouse forum....."I never thought this would happen to me...."), where I represent people charged with all types of felonies, from minor cases like possession of drugs, to special circumstance murders where the defendants are eligible for the death penalty.

Hopefully this blog will dispel many misimpressions you probably have about PDs, and you'll come to the conclusion that I have, that Public Defenders rock, they're the best lawyers around, and our society is lucky to have a group like us.

I'll make my first post a basic one about what kind of work we do, and how we progress up the chain.

Where I work we start out doing preliminary hearings. Prelims are the probable cause determinations, basically rubber stamps, where the prosecution puts on evidence showing that an accused is likely guilty of the crime they're charged with, and that sufficient evidence exists to hold that person over for trial. I'll discuss more about prelims later, but they're a great way to learn the most important tool in being a trial lawyer: cross examination. By doing prelim after prelim, sometimes for months on end, we become among the best cross examiners around with practice that few can emulate.

After prelims, we go on to begin working in misdemeanors. We begin by just doing arraignments (where someone has the charges presented against them and they enter a plea of either guilty/no contest or not guilty). Later, we go on to start doing trials. Generally, the misdemeanor assignment goes on for anywhere from 1 1/2 - 4 years, depending on how the rotations are working and how well someone is doing.

From there, one frequently works in Juvenile Delinquency Court, representing Juveniles accused of crimes. This is sort of cross between prelims and misdemeanor trials, in that Juvis do not have a right to a jury trial (even though they face extremely severe penalties and lifelong consequences for these crimes), but the offenses are usually felonies, so you get practice with more serious cases and large volume.

Finally, after a year or two of juvi, you go on to felonies. The only step up from there is whether or not you do special circumstance murders (ie - death cases). People become eligible to do death cases (if they choose - many choose not to) after anywhere from 3 years on up of doing felonies (which means you will get many murder cases, just not those where death is a possibility, as well as plenty of other cases where the defendant is looking at life - which really means life here in Cal).

That's the basics, I'll talk more about the different aspects of each job at other times, but hopefully more anecdotally, as this preliminary stuff can be pretty dry.

The best thing about our job is that we get to tilt against windmills. We fight the power. Everyone is against us: DAs, Cops, and DAs with robes (ie - many of the Judges). Even bailiffs, court clerks, court reporters and other court staff don't like us frequently, but few show greater disdain for us than many of our clients. They save some of their best invective for us: public offenders, public pretenders, dump trucks, wanna be DAs, etc.... The fact is, most people don't appreciate something that is given to them for free. Legal services are no exception. I can't tell you how many times I've represented someone on a serious case and they bring in some worthless lawyer to take over the case just because that lawyer is a "paid" lawyer (as if we do this for free). In the end, most of my clients end up regretting their decision.

Right now I represent someone who was convicted at trial of serious charges for which he will probably spend the rest of his life in prison, and if not, at least 15 years. He dumped me before the prelim since he figured any private lawyer was better than a public offender like me. Well, he called me constantly afterwards, regretting his choice (not that he ever told the Judge this), telling me how I did more in a week than his lawyer did the whole time, how I was prepared more before prelim than his lawyer was at trial, etc..... AFTER he was convicted, he decided to fire his private lawyer and ask for me back (which he got). Well, sorry sir, but it's probably too late now, once you've been convicted, you're probably out of luck, but I'll do my best for you nonetheless trying to show all of the things that your previous lawyer should've done but didn't do.

Anyways, that's it for now, it's late, and I have a jury trial to deal with tomorrow. If you have any comments, or want to call me a public offender or some other nice things, go right ahead. Sorry, though, I can't give any of you legal advice (and as I always tell my friends when they call me up with a legal question: "If I can answer your question, you're in bad shape, because there's only one area of law that I really know anything about, and it's bad news if it applies to you").