Thursday, April 29, 2004

Really, Really Dumb Clients

This blog is not about ripping on clients. That being said, there are a couple of realities here that must be shown:

1) Most non-public defenders do not know about the inner workings of our job, and don't realize the characters we deal with. Sure you can have contacts with the same population of people (either socially, professionally, or, less fortunately as a victim), but likely you will not deal with them in the same manner as we do. This means that if you are friends with people who use public defenders, they will not act the same way to you as they do towards us (for better or worse), the same as if you are a DA or Judge, or a social worker, or a co-worker. We see a side of people that most never see, this is part of what makes our job very fun and interesting.

2) Much of our job entails this personal interaction with fascinating people. As much as writing motions, arguing in court, jury trials, or any other aspect of our job, we spend time talking with these people in terrible positions who react in dramatically different, and often bizarre manners. I'm not just talking about poor minorities, lest anyone think this is where I'm going. I've dealt with wealthier defendants on occasion, and I've certainly read about them. I see little difference between some of my clients and Michael Jackson, Robert Blake, OJ Simpson, Jason Williams, Courtney Love or many other high profile defendants.

Thus, one of the major parts of my job that I love recounting are what David Letterman may call "Stupid Defendant Tricks." Today was a classic one.

Client is charged with various charges that can land him in prison for 30 or more years (serving 85% of that sentence, no "soft" time here). At prelim, the DA tells me that the witnesses to the most serious charges have moved out of state, but they will proceed nonetheless and push it to trial (they do not need the witnesses for prelim, they can proceed using the policeman's recounting of what the victim told him) unless the defendant wishes to plead to a lesser charge right now. Instead of making a 12 year (at 85%) offer to the serious charge (the mandatory minimum), they will offer a plea to the other charge they can easily make for 5 years (serving as little as 50% of the time). If my client was charged only with the less serious charge and not the more serious charge, the offer would be a poor offer, but not out of the question (his max was still 9 as to the lesser charge). However, since he is avoiding 85% time and the serious charges, it is a great deal. I tell him that, he says no, he wants the same offer as the co-defendant (who has no record and is offered probation). I tell him it's not in the cards. We do the prelim, he's held to answer on all charges, the case proceeds towards trial.

I visit him in jail, and he's mad at me for not getting him a 1 year deal, and says he wants to fire me and get another state appointed attorney (in California a "Marsden" motion, something that I have never seen succeed, although frequently tried). We go to court, the DA re-offers the 5 years, in front of my client I counter with 1, she declines. Now my client runs the Marsden motion, which is denied (of course), so he says that he wants to go pro-per (represent himself). The judge grants him pro per status, and I'm taken off the case.

A week later, 2 days before trial is supposed to begin, I'm called by the Court, where my client has asked to withdraw his pro per status and have an attorney appointed, so the Judge re-appoints me. I talk to my client, who tells me that he would like the 5 years. I speak with the DA, and guess what she says?

Sorry, no deal, I subpoenaed the witnesses, they are flying in from out of state, and the offer is now 12 years (at 85%). My client begs, no dice.

So, we'll see what happens. 12 years is the minimum to one count, but if convicted at trial, other enhancements would make the minimum 22 years. I can almost predict what happens from here. My client rejects 12 asking continuously for 5, the DA keeps saying no. We start trial, my client gets really scared and says he'll take the 12, but that offer is now off the table, and the offer is something like 18 or 20. My client says no way, but he'll take 12. We keep going, he says he'll take 18, the DA or Judge says too late in the trial, we're going all the way through. My client is convicted and he gets 30 years.

I can see it now, and it's a pity, but it's reality.

A frequent refrain from clients (including this one) is something to the effect of "I've talked to a lot of guys in here [jail] and they got less time than they're offering," or "I know that they are making a high offer now, and if I push it all the way they'll come up with a better offer than this." After this case is over, if, as expected, my client gets a huge amount more time than he was first offered, I want him to do his time in the local jail instead of in state prison so he can relay his story to all future defendants about the cost of stupidity and not trusting your lawyer. Alas, that won't happen, rather he'll blame it all on me.

How's that for a dose of reality about this job?

Tuesday, April 27, 2004

Enemy Combatants and Guantanamo Bay

Someone asked my thoughts on holding prisoners in the war on terror indefinitely without trial or hearings. My thoughts on this are essentially political, although they frequently mix political and constitutional grounds. This is a very short few thoughts on the subject.

In general, politically, I believe that we should honor the Geneva conventions and treat the people we arrest in the war on terror, when arresting them on the battlefield. Taliban fighters arrested are easier subjects, as they essentially represented a foriegn government. They should probably be kept like prisoners of war. Sure, they may have terrorist ties due to the Taliban's ties to terrorism, but the fact is that Afghanistan is not a nation like we have dealt with in any other war, and expecting them to conform to that model or not give them any rights upon capture is unrealistic in my opinion.

Al Qaeda figures arrested in Afghanistan are more difficult, as they are not necessarily soldiers, and may be there just to participate in terrorist training grounds. That being said, I think that keeping them indefinitely without any right to speak to a lawyer or contest their detention is wrong. Clearly, some people were held there improperly for a couple of years and have been subsequently released. More probably will be, and there was a great incentive on the part of Afghan locals to make up lies about foreigner's ties to terrorism to collect bounties or curry favor with their newest occupiers. There must be a check on this.

There is a practical argument involved here as well. We have many troops in harms way, for better or worse, we lead the world with our attitudes. There is no guarantee that our humane treatment (in accordance with the Geneva Accords) of suspects in the war on terror will ensure humane treatment against our captured troops, but there is a guarantee that our inhumane treatment of captured fighters will lead to inhumane treatment of our troops, and other soldiers captured from around the world (I'm sure that most Italians would concur in this after the recent killings of Italian captives - there is no guaranteee that better treatment of our captives would have changed their fate, but it certainly makes their killings more likely upon capture).

Remember the words of the US government when soldiers such as Jessica Lynch were captured: "We expect Iraq to act in accordance with the Geneva accords" was the mantra coming out of the US Government. We have to lead in that respect. What's telling is the fact that the Iraqis generally treated those captives as humanely as possible (apparently so - from what I read they gave all of the captives immediate medical treatment, there was no reports of extensive abuse, executions of prisoners, rapes, or anything of that sort, although apparently some soldiers captured in the first Gulf War were abused, although I don't know if it reached the level of torture or not).

As to American citizens captured on foreign battlefields, or especially here, I think that there is no doubt that these people, if they are accused of breaking American laws through their actions, should be charged in an American court. Jose Padilla is the most obvious. He was arrested here, accused of plotting to do domestic terrorism. If he can be placed beyond the purview of American courts, then there exists a complete suspension of Constitutional Rights and habeus corpus.

Obviously, balances must be made between strict enforcement of Constitutional rights and allowing government to fight a war. However, a few issues are instructive here: 1) there is no declared war, and the war on terror looks to go on like the war on drugs or the war on poverty - forever; 2) there must be firm guidelines on how different classes of people are treated - foreigners, citizens, arrested here, arrested abroad, captured on battlefields, etc...... Without firm guidelines, this is done haphazardly , which is exactly the type of actions democracies strive to avoid; 3) finally, there has to be provisions when arrested people abroad to contest the fact that they are, in fact, terrorists.

People engaged in a civil war in some far away country may have many issues that motivate them beyond the destruction of America. Clearly, many people went to Afghanistan for the (distasteful) reason of supporting the hideous Taliban regime for religious purity reasons. They saw the Islamic state set up there as a manifestation of a perfect regime that they wanted to protect. I can't fathom that everyone going there to support that regime, however odious it is, can be arrested by America and held indefinitely in Cuba without any rights. That is clearly unAmerican.

Practically speaking, we don't want to expose Americans to the same treatment. Americans have a long history of involvement in local conflicts outside of the United States, and the US would never stand for the prolonged or indefinite detention of these people by 3rd parties not related that action. Many Americans fought against Franco in the Spanish Civil War in the 1930s, if Germany had arrested them and put them in detention camps in a German colony in Africa, we would've gone ballistic. Many American Jews go to Israel and serve in the Israeli military, if the Pakistani government arrested and held them without any rights for years just because they supported their friend's enemies, we would again go ballistic. There have to be standards, and for better or worse, the world looks to us to set them. If we set the bar low, the world will surely follow, only in a much more extreme fashion, and it will hurt us in the end.

Wednesday, April 21, 2004

Why do our clients so frequently dislike us?

I've often wondered why it is that our (public defender and defense lawyers in general) clients dislike us so much. We are, afterall, the only people who ever really stand up for some of these people. So many of my clients have no family support, or people who care. Sure, their families frequently show up when they're in court, but where are they before that, when the client is out selling drugs or gangbanging in the streets? Only when the client is arrested does the family come out in force, challenging me that I'm not fighting for them or doing enough for them.

I think I have an idea. You see, when I first started practicing law, before I had heard every story a dozen times or so, I would repeat my client's statements to the judge when they were coming up with excuses for failing at certain things. Thus, when a client failed to come to court for a few months, or a few years, after they were supposed to, I would argue something like: "Your honor, his mother died, and he had to go to Mexico to take care of the arrangements." The judge would respond: "Well, why didn't he at least call? Why didn't he come back as soon as he returned from Mexico? Why did he have to be arrested in order to come to court?"

Obviously, after a few times of making that argument, and having the judge say the same thing, I realized that it is not an argument worth making to a judge anymore. In fact, I learned that just hearing that argument made the judge think that my client was a weasely little liar who coudln't be trusted, and so I stopped making the argument.

Of course, my client hasn't heard the argument made a few thousand times, he's using it for the first (or maybe only the 10th) time. So, when he tells me "I went to Mexico," and I don't immediately turn to the judge and say those seemingly magic, get out of jail free card words, he gets pissed off. Why won't you tell him my side of the story? "Well," I'll tell my client, "why didn't you at least call, why didn't you walk in voluntarily when you got back from Mexico? Why did you need to be arrested in order to get you into court?" In other words, rather than embaress mysefl and my client with those ridiculous arguments, I just tell the client what the judge is going to say. It is frequently to spare the client the bad results of my using this excuse as his first, best, excuse, but just as frequently it is to spare me the inevitible repartee with the Judge where the conversation will invariably go the way I have heard it go a million times (even though I don't make some of those arguments anymore, I watch many other defense lawyers make them, to the inevitible result that I used to get, further strengthening my resolve never to make some of those idiotic arguments anymore).

Obviously, my client doesn't like to hear his lawyer sound like the judge, so now he accused me of being on the prosecution's side. I have to explain that I'm just trying to spare him from the bad result of having an idiotic reason given to the judge. A judge far more respects a person who says "I messed up, I'm sorry," than someone who tries to lie his way out of it with excuses. I certainly have more respect for such a person. But, when I try to explain this to my client, and that I'm only saying exactly what the judge is saying so that I can try to go a level deeper with him, to explore the real reaons he didn't make it to court, or to prepare him for the let down he's about to get, I don't get a great deal of understanding. All I get is anger.

This type of discussion goes on a million times, over a million things. Why don't you run a motion to suppress (even if there is nothing to suppress, or absolutely no grounds to do so)? Why don't you ask for OR/release without bail (even though he's charged with murder or has failed to appear to just about every case he's ever been charged with)? Why don't you make a motion to dismiss (when there is no basis to file such a motion). Every time, I must explain why it doesn't apply to their case, even though they tell me that their cellie got a far better deal, or a dismissal on the "exact same" facts.

I frequently wish that the DAs would come in to lockup and talk to our clients. Let them try to explain why they are going on a theory of implied malice for murder when a shooting was clearly accidental. Let them explain why they won't offer my client anything less than 5 years in prison on a case. At least this way I don't have to do the explaining, and my clients won't hate me when I tell them the facts of liife.

Remember, in Ancient Greece, they really did kill the messenger if the King didn't like the news he gave Some things never change.

Thursday, April 15, 2004

An anecdote.

No greater meaning here, just a typical day on the job. I represented a client who was charged with violating his probation for coke sales by a variety of sundry actions: being convicted of misdemeanor petty theft, not reporting to probation, not making any real attempts to get a job, using pot. Nothing that big, but enough, considering a prior probation violation where the Judge reinstated probation, for the Judge to announce he wasn't going to reinstate probation again.

Interestingly, while I didn't represent him on his case when he was originally fighting it (that lawyer has been subsequently transferred), I actually stood in for that lawyer for sentencing, where I handed him his terms and conditions of probation and warned him he faced 5 years if he violated, even for something as small as not reporting to probation. How did I remember? Well, I write it down on the file at the time, that's how.

So how does my client react to the news that the Judge won't reinstate probation, but indicates a 3 year prison sentence (instead of the 4 or 5 he could've imposed)? Angrily, of course. He constantly accused "us all" (including me) of trying to send him to the joint for no reason. He got angry at me for not working for him, and said that I just wanted him to go away for nothing. He was loud, surly, complaining to everyone in the area who would listen (few had a choice about whether to listen, they couldn't ignore him). In the end, of course, he took the 3 years rather than have a hearing and face 5 years. But not before accusing me of all sorts of complicity with the cops, DA, courts and a sundry list of other groups trying to send young black men to the joint for no reason at all. Finally, exasperated at one point, I asked the nearby bailiff for her keys so I could release him right now and let him go home, where he obviously deserved to be. Of course, she didn't give them to me. So I asked the client whether I should kick her ass and take them from her?

I don't think he appreciated the humor.

Just another day in the life. Not every case is a romantic murder case.

Monday, April 12, 2004


You know, for someone who has had his collective list of clients sentenced to more time than my whole block has probably been alive, I know remarkably little about jail. Sure, I'm sure I know more than most people who watch CSI or the Practice, or who see those documentaries on A&E or the History Channel. I've seen them too, so I understand that stuff. I've also spoken to people about prison numerous times, so I have a great understanding of some of the mechanics of it. I go to the jail once a week or so to visit clients, where see them coming from somewhere and going somewhere, but really only see them in a sterile interview room. I have even taken a tour of the county jail here, so I've seen some of the bowels of our local jail (one of the largest in the world).

That being said, I still really have no idea what it must be like to be in jail, how the different jails compare to eachother, what goes on day to day, how safe or dangerous they are, how people survive every little thing that goes on in there. I imagine that Oz (the HBO TV show) probably portrayed life behind bars somewhat realistically, but even that is different.

The reason I cannot imagine it is because I have never lived the daily grind of it. Lights on, wake up, get out of your cell, what do you do then? What is feeding time like? How often are you under threat of attack in any particular day? Are the guards really venal assholes? Do they protect you? Do they leave you out there to kill or die on your own? If you are not willing to kill, will you be killed? What does it do to regular folk who do not live in an atmosphere of violence every day in the outside world? How do people survive their time there? What do they need to do to survive? Does time fly in prison, or does it crawl? You hear stories about people being able to watch TV, work out, have a "life," is that true?

I have heard it said that every Public Defender and District Attorney should spend a weekend in jail when they start their job. This will give them a perspective on every situation where they either ask for jail (in the case of DAs), or recommend jail (in the case of PDs).

I have had clients say to me, when I'm telling them that the offer of 3 years is a good offer, "have you ever done 3 years?" Of course, the answer is no, and in some respects I am less able to fully represent them because of it (I'm not saying I want to go to prison for even a day, but I have to tell you that I would probably have a better perspective of what this was all about if I had been to prison). In fact, one of my co-workers years ago, a Public Defender I worked with and knew pretty well, had been to prison. A couple of decades earlier he had been there for dope, even for robbery, I think (I don't actually know exactly why he went to prison, but he had later been pardoned after he changed his life around). He would sometimes say things about prison, or an offer, or talking to a client, that made me realize he really understood what these clients were looking at when looking at prison. He could understand what they were about to go through, how hard or easy it would be, and he would even tell his clients that he had been there, so not to worry, or to worry, whatever the case may be.

He understood what Life in Prison meant.

I sure don't.

I have done this for 9 1/2 years now, and when I think about the fact that I just pled an 18 year old kid a few weeks ago to 12 years in prison, I realize that he will spend as much time in prison as I've been working at my job. In that time I have grown as a lawyer, as a person, I have had 2 children, bought a house, become a much better lawyer, become a better person, traveled the world, gone out to many different restaurants, done millions of little things every day that this client will not do for almost the exact same amount of time that I have been a public defender. When I think about that, I realize how little I know about hard time, and how little of an appreciation I have for it.

He has an exit date. Some of my clients do not. I remember every one of my clients who have been sentenced to life in prison, only four at this point. I have had cases transferred from me to other collegues where the client later received life in prison, but I don't count those because they weren't given life on my watch (not to say I would have received a different result on any of those, luckily, I didn't have to sit next to the person as he was sentenced to life, though). Most of those who have received life deserved it, and I certainly won't lose any sleep over their cases, in that I did everything I could to prevent it, and there probably wouldn't have been a different result regardless of who represented those defendants. But, as long as we all live, those defendants will be in prison, and I know it. And the reality remains that I really have no concept of what they are going through.

Perhaps it is best that I don't. If prison really is the true horror that I think it probably is, it would bother me too much every time I represented someone getting a long prison sentence. Perhaps this is like my wife's giving birth, I want to be there, but I don't need to be so upclose and personal with the baby as he comes out of her. I'm happy sitting next to her head and seeing it from a little distance. I think this is what I need at work as well. I'll never forget the time I pled a woman with no prior record to 5 years in prison for something. I thought the sentence was excessive, but it was clear she was going to get more if she proceeded. When I got back to the office, my secretary had brought in a copy of Oz. I remember I had never been as depressed about my work as I was on that day, watching Oz, and thinking about this client. Perhaps a little bit of ignorance is really best in this situation.

Friday, April 09, 2004

Everyone should check out Air American radio. This is the great liberal response to right wing hate radio. It's about time, with clear analysis of issues, and with clever hosts who are able to discuss without personally villifying, Air America may possible make a huge difference in letting people who are otherwise addicted to right wing radio know that you can be liberal and not the evil person Sean Hannitty or Rush Limbaugh would have everyone believe they are. Check it out in your area, or listen to it live on the web (or on channel 167 on XM Radio).

Wednesday, April 07, 2004

Investigating a Case

Usually, my cases are pretty straightforward: Police say X, my client says Y, there are no witnesses, I run a motion to get the police officer's personnel file for any complaints (denied, or I get nothing, or anything I get is ruled inadmissible by the judge - it must be one of those three, since I have never before been able to present testimony by others who have filed complaints about a cop in trial). I am left to challenge holes in the police testimony, or look for areas of weakness in the prosecution case, or something of the sort. Sometimes I have legal defense to what the person has done, sometimes I admit the facts but deny that a crime has been committed, or any other of a large variety of possibilities may emerge.

What sometimes happens is that I actually uncover a large amount of information through my investigation. This is usually a very satisfying situation. Of course, what sometimes happens is that the information that I uncover completely screws my client. That is not a good thing for them, although it is oddly satisfying, probably both because my client has lied like crazy to me, giving me a powerless feeling that I really do have someone here in custody who has been completely railroaded and can do little about it - only to find out that he's lying like crazy, but at least I'm not dealing with a situation that's going to haunt me for years to come with that innocent man sitting in prison for life due in part to my lack of efforts. Hell, even his own witnesses say he did it. The other satisfying part about that situation is that when I uncover all of this stuff that buries my client, I do not have to turn it over, so as the case proceeds, I realize that I know more about the case than the DA and Detective do, which sometimes allows me to spring things on them in trial that they are completely unprepared for. I don't need to turn over the bad stuff to the DA, and I can bring out the good things that their witnesses may know about without having to let them know any of the bad stuff in my possession.

Once in a great while, though, I actually have the ability to present a full case. And that is what has happened on one of my attempted murder cases. Everything my client has told me has proved to be true, or at least, many different independant witnesses have corroborated his story about him, and about the complaining witness. Since this case is a no-witness stabbing case, and my client was the stabber, any witnesses about my client's propensity for violence, or the victim's propsensity for violence, would be most helpful. This is also a great case because when I first got the case and read it, I said to myself something along the lines of "what an asshole" about my client. Then, after talking to my client, I was completely swayed by him (something that happens only infrequently), to the extent that I felt he had real explanations for all of the bad stuff in the case. The concern I had then was that an innocent man, that I believed, would have no evidence to support his case. However, my crack investigator has managed to find quite a few witnesses, including some who were very hard to find, who corroborate my client's explanations of the circumstances surrounding the case. She has also found several good character witnesses for my client, and some witnesses who say that the victim is a violent, ill-tempered man prone to attacking people for no reason (he was fired from a job for this).

So, now I suddenly have something to argue, and it is due to the investigation I conducted. Quite frequently, my investigations are meant to cover my butt (when, for instance, your client charged with serial rapes says that he was at his girlfriend's house on the night of each rape, or that he was at work, or something of the sort, despite the DNA that came back to him - you still have to follow up on all of his claims, absurd though they may be. It is not for me to decide whether he is telling the truth, I assume he is telling the truth, and fully investigate accordingly), it is nice to have investigations that are actually productive and bring about good results.

These are among the most satisfying achievements one can have. I may still lose this case (probably won't go to trial for another month or so), but I know that the jury will have heard everything, will have seen my very best efforts, and will make their decision with the benefit of all my efforts showing my client's innocence. They may not agree, but at least I can sleep well knowing that their decision was made out of knowledge and not out of ignorance.

Saturday, April 03, 2004


Hey everyone, I can't believe someone likes my stuff this much, but they've made a book about the "Best of the Blogs" entitled "Never Threaten to Eat Your Co-Workers" (click here to see it on Amazon). This book is really cool, it includes a bunch of the best of different bloggers, and they say they've picked out the best bloggers out of something like 30,000 different pages. Now, I can't imagine that I'm in the top 10 out of 30,000, 30 perhaps, but 30,000? Nonetheless, this is what they say, and they've even published a book to prove it. Please go to their website and check it out, and if interested, go to Amazon and buy a copy. If you want, we can arrange it that I sign it for you, if you're interested. Let me know what you think. The editor, Alan Graham, is guest hosting the blog, so if you're interested, you can read there about it as well.

The whole purpose of this book is to act as a "giant slayer" against the big media. Let's do our part. I hope you buy and like the book.

PD Dude

Friday, April 02, 2004

The intersection of Politics and Law

Of course, these are intricately intertwined. However, in this election year, a greater intersection exists. That would be the judiciary. It appears that the next president of the United States may appoint up to 3 Supreme Court Justices (replacements for William Rhenquist, Sandra Day O'Connor and John Paul Stevens). Supreme Court Justices, as one can easily see looking back at the last 50 years of our nation's history, play a very large role in the course of our country. Since they are appointed for life, a justice appointed by even a short-time president can play a huge role for a long time (consider Gerald Ford's 1 1/2 year term as president where he appointed Stevens nearly 30 years ago).

Many societal changes that some hold dear, or that some decry, have taken place at the hands of the Supreme Court. Legalisation of abortion, desegregation, extension of individual privacy and civil liberties, expansion of voting rights for minorities (especially in the South), equality for women, protection of people charged with crimes, and thousands of other issues affecting everyday life in society have been decided by the Supreme Court in the last 50 years.

Major issues were decided before that era as well, including the enshrining of "seperate but equal," rolling back of the New Deal legislation and other legislation protecting worker's rights, as well as plenty of other areas of interest. However, it has been that last 50 years, since the appointemnt of Earl Warren as Chief Justice of the Supreme Court by President Eisenhower in 1954 that the Court rose to it's present prominence.

The choice between competing views on the judiciary is stark and easy to understand. On one hand are those who feel that the Constitution is a document that is to be looked at as the end all be all of what is "Constitutional." Meaning, since the Constitution says "Congress shall make no law" regarding freedom of speech and free exercise of religion, this means that the states are free to pass laws restricting religion or speech (that is, until the 14th amendment, which may have changed things according to some), or even the president could act against people based on their religion or to restrict speech as long as he was acting within his specifically enumerated executive powers. These people have generally opposed everything done by the Supreme Court in the past 50 years, including ending restrictions on privacy such as birth control (Griswold v. Connecticut), abortion (Roe v. Wade), desegregation (Brown v. Board of Ed), free speech (Cohen v. California and plenty of other cases), right to remain silent (Miranda v. Arizona). In general, you see a seminal case in the last 50 years that expands freedom and restricts the rights of government to opress individuals, and you see the opposition of these "strict constructionalists" (I put that in parenthesis because they are generally strict constructionalists only when it comes to things they disagree with, they become very activist when it comes to their own pet issues, such as the activism of the Court in Bush v. Gore).

On the other hand are those who feel that the Constitution is a road map, a guide, but not only word on running our government. Obviously, the framers never anticipated cars, so when they wrote the 4th amendment and spoke of search and seizure and people being secure in their homes, they never anticipated people driving around and practically living out of their cars like they do now. They never could have anticipated the internet when it came to speech, or the power of executive departments like the FCC, FAA, ICC, etc.... Thus, the Constitution must be something of a living document, if it does not address the issue directly on point (for instance, by failure to mention the automobile), does that mean the constitution is silent on the issue?

This is a huge issue for my life and work. My job as a public defender, something we take for granted at this point, comes from the case of Gideon v. Wainwright in which Gideon challenged his conviction and prison sentence on the grounds that he was denied a lawyer because he couldn't afford one. The Court said that everyone is entitled to a lawyer if the government wishes to imprison someone. This only happened in the last half century, for 150 years before that, such a concept did not exist. I believe our society is far better off as a result of it, we are a more moral society. Similarly, for decades, police acted with impunity, breaking into people's houses in search of contraband or to solve crimes. Nothing stopped them from doing this. Finally, the Court said that anything taken in violation of the 4th amendment could not be used against those suspects, and created the exclusionary rule. Obviously, the Constitution never mentions the exclusionary rule, but it does talk about freedom from illegal searches and seizures, the Court had to look at that, and decide how best to enforce it, otherwise it was a right without a remedy, which is no right at all (or at least does not prevent government from acting with impunity in our daily lives, which is the whole point of the Bill of Rights).

At this point, we are poised on the sharp edge of a blade differentiating where this country will go in the next half-century with regards to the Courts. On one hand, if Bush is reelected, we can expect more appointees who could tip the balance for a generation trying to take us back to before the 1950s. If Kerry is elected, we can expect that he will at least appiont justices who are not as bad as Bush's (I can't say anything beyond that, because I don't know. Perhaps he will be visionary like Johnson and Eisenhower, perhaps he will be timid like Clinton, but most likely he will not be like Reagan and Bush I).

The choice is clear in my mind, and hopefully the minds of the majority of this country (although, as Bush v. Gore taught us, majorities don't matter). Please keep this in mind and tell all of your friends.