Wednesday, June 28, 2006


Victory, to a defense attorney, can have varied meanings.  Getting a max misdemeanor sentence to avoid a felony conviction and felony time can be a victory.  Getting a conviction without jail can be a victory.  Not getting deported is a victory.  Sometimes only an acquittal or dismissal is a victory.
This week, I had some victories.  I didn't win.  But in the end, the law prevailed. 

Kansas v. Marsh

Slate is running another dialogue between Dahlia Lithwick and Walter Dellinger regarding the Supreme Court.  They've been discussing Kansas v. Marsh, in which the Supreme Court found that it is not unconstitutional to execute someone if the mitigators equal the aggravators. 
I've had the pleasure of reading this opinion (please refer to previous post) and reading it along with the Breakfast Table discussion on Slate.  It's rather interesting.  Each concurring / dissenting opinion sets forth a different approach by which to examine this question.
One thing that struck me was a footnote in the dissenting opinion of Justice Stevens, in which he mentions that perhaps the Supreme Court should have taken into account WHO was appealing when granting cert.  It was the State of Kansas, not the defendant, who appealed the ruling of the Kansas Supreme Court (striking down the death penalty statute as unconstitutional).  If the 8th and 14th Amendments are designed to protect individuals, is that "interest entirely absent when the State is the petitioner", as Stevens claims?  Interesting way to look at it.  I don't think that avoids the fact that the U.S. Supreme Court, not the Kansas Supreme Court, is the final arbiter of federal Constitutional claims.  Otherwise, states could start claiming that the 4th Amendment requires that all warrants must be executed by clowns...  but aside from clown hypos, I find something compelling about Stevens's argument.  Emotionally or intellectually or legally compelling?  Not sure which.  But compelling nonetheless.

Friday, June 23, 2006

extra crispy.

I'm trying to follow the adage of, "If you don't have something nice to say, don't say anything at all."  No one wants to hear other people whine.  You will note that my blog has been a little quieter over the past two months or so. 
I read a post at Audacity that moved me to share with you how I'm feeling right now. 
I am really, truly, actually, matter-of-factly burnt out.  Not busy; burnt out.  I yell.  I have zero patience.  I am annoyed.  I wake up in the morning and I'm no longer excited about going to work.  My anxiety level goes through the roof when I see that I have voicemails waiting for me in the morning. 
It took me a little bit to figure out that I was burnt out.  Once I accepted that, I started to wonder why.  I think there are several reasons.  First, I took this job because I wanted to advocate for people who would not otherwise have their voices heard.  Second, I thought I was going to be making extensive use of my trial skills.  Third, I thought I was going to be absorbing, receiving, debating, firing off law and criminal procedure from day to day.
The reality of my days? 
- No trials.  No hearings.  I spend every day begging and charming.  There is no law involved in resolving the overwhelming majority of my cases.  I smile, I kiss ass when it needs to be kissed, I beg, I plead, I cajole, I negotiate.  No 4th, 5th, 6th Amendment.  Just smiles and begging.  Please reduce the charge.  Please give him probation.  Please let her do a program instead of jail time.  No caselaw.  No statutory interpretation.  Just... begging.
- Please give me the discovery you didn't give me before.  Please give me the rest of the discovery.  Nope, really, I still want all that discovery that I know you have and aren't handing over.  Please stop pretending like it's ok to hand over that stuff (and still!  not even all of it) the minute before a hearing / trial when the court set a date over a month ago for final discovery.  Judge, please hold the prosecutor accountable for this.  No?  Ok thanks. 
- I am overwhelmed by the number of cases in which I see police misconduct.  The 4th, 5th, 6th Amendments, the exclusionary rule, giving truthful testimony under oath - I'm not so sure I've seen a lot of it in the courthouse or on the streets.  It exists in textbooks, and as far as I can see, nowhere else.
- Plus all the stories that I'd love to share but don't for fear of recognition / retribution.  There are plenty.
I am not fighting the system that crushes the lives of my clients.  I just help it run smoothly.
I feel like every day has become an exercise in futility. 
As a social worker, I felt helpless - like I had the insight and the access to create change, but not the authority to do so.  I left social work and went to law because I believed in the awe-inspiring and benevolent power of the law to create change in people's lives.  I have such great reverence for The Law - for the Bill of Rights, for Constitutional Law and Criminal Procedure.  There's something so powerful about these concepts and their evolution.  It was the intersection of sociology and the law drove me to do indigent defense.  I love my job because I get to work with actual human beings whose lives are real and important, and in theory, through advocacy, I can help protect the importance of their lives and liberty with the powerful tools of law. 
I feel like I've been wholly unsuccessful.  That may not be true, completely.  But right now, I feel like I haven't been able to really humanize my clients.  I haven't been able to really make their individual voice heard.  I really have not been able to use the law the way it should be used to protect the rights of individuals against invasive government intrusion.  I feel helpless and overwhelmed.  What can I do?  What is it that I, as one single, new, underfunded attorney, can do?
I've been so burnt out that I've withdrawn socially as well.  I don't blame my job for my social withdrawal - to be honest, I think it's my dissatisfaction with my social life that is hurting my job, and not vice versa.  But I was so overwhelmed and so distant and distracted.  I was just not present.  And it got so bad that I finally realized I was missing out on a lot of what was going on in other people's lives.  My best friend's wedding.  The pregnancies of two other friends.  Things that I want to be involved in, in which I want to play an active role, and yet I could not scrape up the energy to participate in the way I really want to.  I realized that I couldn't look back with regret on all of these things that I value so much.  So I took a time out.
I don't have the Ultimate Answer, but after a lot of consideration, I have finally identified several things I could try to do in order to reconnect with my life, both personally and professionally:
  • I want to start volunteering with kids again.  I did it for years.  I love children, I love the trappings of childhood, and I have enough free time to dedicate myself to doing something, other than work, that is personally fulfilling to me.  I think I am going to start by reading bedtime stories to children in the hospital.
  • I am going to stop being so stingy with my time.  When my caseload numbers suddenly shot up and when the cases themselves got complex, I started doing a lot of prioritizing, because I had to.  Now, I am going to let the client whose case has already been dismissed, but who keeps insisting on coming in to say hi, come in and say hi.  I will start calling clients I have not spoken to in a while, just to check in.  I will acknowledge that even the small cases are big cases.  I anticipate that a frustrating number of my clients won't have accurate contact information, and won't call me back, but this is my job, I get paid to deal with the frustration of this system, and they don't.  I can at least try. 
  • I will resume reading US Supreme Court cases and state Supreme Court cases regularly, because I like to.
  • I'm going to take more weekend trips to visit people who are near and dear to me. 
  • I'm going to take more weekend trips to be outside and to be present in nature, in the world around me.  I'm going to get out of the city and make my way to the woods and just breathe.

I hope that these things will get me in touch with what's important to me and what brought me here.  I might not get around to reaching all of the goals on this list, but just identifying concrete steps I can take to rejuvenate myself is a good way to stop feeling helpless and hopeless.  I want to give my clients the best attorney that money could never buy.  And I want to make sure that my life, too, is fulfilling and rewarding, and that I am a good friend, sister, daughter, confidante, citizen, community member to others.

Monday, June 12, 2006

does it come with a pay raise and a fancy chair?

Over the past two months or so, I've developed a truly unbelievable caseload.  I bet all public defenders say that.  But I have the most bizarre assortment of headache-inducing, logic-defying, clients-who-I-no-longer-even-represent timesucks.  Where does the time go in a day?  I'm afraid to answer my phone or check my messages, because I'm over a week behind in returning phone calls.  I'm doing triage, putting out fires, for former and current clients, and it's hard to do when I have 20 cases scheduled per day in court.  Every case presents a new and bizarre twist, and juggling so many of them, I can hardly keep them straight.
I've been bemoaning my fate to all who will listen, and by listen I mean, not run away when they see me coming.  When consulting a colleague on a case that involved a former client of his, I weakly cracked an exasperated joke about the defense of absolute innocence that all of my clients seem to be invoking lately.  You know, the "every single person made up every single detail of that story," type of defense.
He responded cheerfully, "Don't fret.  You're going to promoted to the Innocent Defendant's Bureau soon!"
Ha.  The Innocent Defendant's Bureau.  I like it.

Sunday, June 04, 2006

Urban lingo

It seems that we associate a certain language to crime, and I wonder how much of it is accurate. For instance, the Baltimore Sun ran several articles that made mention of how John Mohammed referred to Malvo as "son" in his cross examination. The article pointed this out as an example of how Mohammed was a father figure to Malvo and manipulated him. I don't doubt that Malvo was manipulated by a man that he considered a father figure. I disagree, however, that the term 'son' is illustrative of that fact. I find that African-American men refer to one another as such quite often - regardless of age or role.

The New York Times has been covering a trial in New York City that has been charged as a hate crime based on the use of a word: you know, the N word. The crux of the case seems to be this: is it a slang term used in a ghetto-fabulous way, or was the attack solely racially based? That is, can people of different races assault one another without it being a hate crime? If so, does the N word change that? In all cases? How can you tell?

I think that's the tricky part with hate crimes. It's hard to tell what someone's motivation is. And, if in New York City, the only evidence is the use of the N word, is that sufficient? Perhaps the jury will let us know.