calling all motion writers

I'm looking for a really good analysis, scientific or legal, that supports why DNA samples are testimonial evidence and thus protected by the Fifth Amendment (unlike blood, or hair, which are physical evidence and thus not implicated by the Fifth Amendment).  I cannot possibly do a thorough review of the millions of scientific articles on the endless possibilities of the information we can get from DNA, but I hope to use this information some day to write a motion in limine. 

 

I think it's fun to argue that 40 years of clearly established Fifth Amendment jurisprudence was wrong. 

 

If there are any non-lawyers reading this, how do you feel about the fact that the government has the right to get your fingerprints / blood / hair and use it against you as they see fit?  Do you think the government should be able to use your body to prosecute you?  Do you think the right against self-incrimination should be involved in that determination at all?

But my dream's not coming true.

The kid next to me at the coffeeshop said that to his dad.  I'd guess the kid is somewhere between 3 and 4.  I love listening to a child's thought process.  He was so upset that his dream wasn't coming true - when his dad asked what dream he was referring to, he kid said, "My dream of having sea animals."  His dad admitted right, it wasn't coming true, but maybe it would someday.

 

I was sitting at the table, finishing the best latte in the entire city, and my delicious goat cheese and onion quiche, and trying to slowly process the phone call I got from my brother the night before.  I was in a cab on the way to a honky tonk dive bar, a few glasses of wine and a few good Gillian Welch songs already in me.  My brother got his deployment date.  In about a week and a half, he said, he would be in the midst of the most volatile area of Afghanistan.  He wanted me to know what arrangements were made.  Who the life insurance beneficiaries are.  Who has power of attorney.  That our mother would be the first one notified, but he was going to try to change it.  He wanted it to be me.  And if it wasn't, he assured me there would be plenty of money in his account, and could I please make sure to get to my mother within 24 hours.  He didn't think she could handle it.

 

Of course.  Of course.  I got you.  I understand.  Consider it done.  Absolutely I'll make sure to.  I could only respond in calm affirmations.  I got this covered, don't worry, I'll make sure it's taken care of.  I know he's scared, there's nothing I can do to make it not scary, all I can do is make sure that he knows I've got his back, on this side. 

 

I'm tired.  I feel like I take care of a lot of people.  Why am I always the one to take care of it?  When is someone, anyone, going to start looking after me?  Before, it was a decision that my brother made that we selfishly and protectively tried to talk him out of.  He was so mad that we all tried to convince him that he was making a terrible decision, joining the military.  When he snapped one day on the phone, yelling, "Why can't any of you just appreciate that I'm doing an honorable thing?" all I could say was, "If anything ever happened to you, and we never tried to stop it, we'd never be able to live with ourselves."  But he went ahead, and after we couldn't stop him, all we could do is support him 100%.  And now this means not just accepting his choice, but taking on responsibility for his choice.  His choice means making sure I have some time set aside, if I ever needed to go home on a moment's notice.  His choice means I need to take care of my mom, several hours away, while trying to take care of myself.  His choice means I have to decide what and when to tell my father, with whom my brother hasn't spoken in years and to whom he still refuses to speak.  His choice means that if something happens, I have to keep it together, take care of them, help them, make sure they're ok.  That responsibility sucks, and I didn't ask for it.

 

I'm not saying that I don't want to take care of my family with every ounce of my being.  Of course I do.  I'm freaking out, though.  Why isn't my punkass little brother still living nearby, going to school, or working, or otherwise misbehaving in ways that cause us fits of anxiety?  Why couldn't he have decided to move to Thailand or Costa Rica and farm?  Couldn't he just have gotten another tattoo or piercing or stupid mechanical toy like a snowmobile?  Why did he have to decide to enlist?  There's nothing I can do to control this.  I can't make sure he's safe, I can't keep him from harm, but I'm supposed to keep it all together on the other end.  It's shitty.  I hate it.

 

So now I feel fiercely protective and mindful of my family, mindful of my role to keep them calm and ease their worries, while still trying to cope with that anxiety and worry myself.  On top of feeling the weight of hundreds of clients' problems on my shoulders, on top of constant worry and anxiety about my friends' drinking, or unacknowledged depression, or general recklessness; in addition to the regular old lesser worries about getting everything done in a day, not gaining weight, paying bills, or wondering if I'll ever be married and so desperately wanting kids.  I wish someone was making a phone call to say, Please look after her.  I don't know if she can make it through this one alone.

 

But I'm not really alone.  I have friends and family who love me, and we'll get through it together.  We'll work out our worry and our anxiety together, we'll look out for him the best ways we can, and we'll look out for each other too.  I love you, little bro, make sure you take care of yourself and be safe.  You're smart and resourceful and sensitive to others, I have faith these things will carry you back home safely. 

 

The old Chinese curse, "May you live in interesting times" rings true.  I have lived through interesting times, and I'm hoping to live in less interesting times.  Boring family sitcom-type times.  I think I've encountered some fairly turbulent decades, and I keep dreaming of a time when I'm cruising at a steady altitude, turbulence free, where I can undig my nails from the armrest, relax my shoulders, and maybe even let my head rest gently against the seat.  That's my dream.  Not coming true right now, but maybe like the kiddo's sea animals, maybe one day. 

best compliment ever.

"I'm gonna pay you to keep on as my attorney, now that the case is over."

 

One satisfied customer!

Can I call ya Joe?

I didn't watch the first Presidential debate.  I frankly don't care.  I'm watching the VP debates only because I'm hoping Palin speaks in random phrases like she did with Katie Couric.  So far she's stringing together sentences pretty well, equally as important sounding but nevertheless empty as any other candidate.

 

I'm glad Gwen called them on the fact that neither answered her question.  They did that more than once in the beginning. 

 

You know what grinds my gears?  This silly, hollow "bipartisanship" debate.  It's a straw man argument.  Gwen Ifill just actually asked them what they'd do about the sudden rise in bipartisanship.  I'm sorry - We are in a debate that is by design for two parties only, and for each party to disagree with each other and explain why.  We are only permitted two points of view, and we must choose from one of those two points of view based on the decisions made exclusively by the respective political party.  The one eventually chosen party is supposed to fall within party lines and if not, that chosen one is not doing what they're chosen to do.  Right?  A two party system is bipartisan.  I hate all this pretending.  Let's point to Democrats voting Democrat or Republicans voting Republican and call it a bad thing, while demanding exactly that. 

 

Democrats don't support gay marriage.  Huh.  Guess there's no choosing candidates on that issue.  If gay marriage was your issue, who are you voting for this year?

 

I love when Joe Biden speaks in the third person. It tickles me.  No one loves the third person more than Woman of the Law. 

 

Sorry, I was facebooking during the foreign policy part.  Which was a big part of it, I know.  But it's like the Charlie Brown teacher voice to me.  Whow whow whow whow....

 

Say it ain't so Joe...?  Holy moly. 

 

We need STANDARDS but flexibility in standards for No Child Left Behind.  Yes yes.  Flexible standards.  Excellent.

 

Sorry, I think Palin is durn cute.  She did well.  Not just "did well, considering she's an idiot."  I am appalled to think that she is in any way qualified to be VP but I love the splash she's put in this election.

 

I miss you Hillary.

 

Ooooh!  The Dick Cheney VP question.  LOVE IT.  GREAT question Gwen Ifill!  Biden knocked it out of the park, more in his response than in his initial answer.

 

I think Ifill just asked what each candidate's Achilles Heel is.  I don't think Palin understood the question, because she had the opportunity to say her weakness is her Washington outsider status, and then using that as her strength.  Instead, she's just babbling again about her executive experience.  mayor, maverick, team, blah blah blah.  *shudder* 

 

O.M.G.  Biden just teared up.  So did I.  About 5 seconds before he choked up I was already there.

 

Anyway.  No one answered the Achilles Heel question.  I think a Moot Court board or an appellate court or the like should do these debates.  ANSWER THE QUESTION, CLAIRE.  That's a Breakfast Club reference.  Wink.  Thanks, I know, I'm pop culture brilliant.  My Achilles Heel?  I'm a lazy mofo. LAY-ZEEEEEEE.  (That's not to say I don't do my work well - I do - but I structure myself in such a way to do so.  In my personal life, I have to remember to do the same, otherwise I'd never pay bills or clean the house or return my library books.)  Thanks for asking, Gwen. 

 

Wait.  What's the question now?  It's not on the bottom of the screen.

 

Oh!  There it is.  Did you have to change your mind due to changed circumstances?  Palin's answer is NO.  Liar.  Much like the "what promise have you made that you can't keep"?  She said 'nothing.'  I really respect that Biden had a legitimate answer to each of those questions.  That's straight talkin'.  Palin?  Never been wrong.  That's a scary person.

 

OMFG.  Another bipartisan question?  Ugh.  Ick.  Yack.  Biden's answer was better than the question. 

 

Palin - the mainstream media is not your problem.  I promise.  It's a problem for you equally as much as any other public figure.  So stop.  You're just a whiner. 

 

Closing remarks.  Eh.  snore.

For me.

I've priced it.  I'm renting an RV for 10 days and traveling the Southwest US.  Not sure exactly when, but before Dec 31 2009.

political articles

His wife, Martha, added: "Alaska is a state very, very close to Russia. That gives her foreign policy experience."  I disagree.  Does that qualify every governor who borders Canada or Mexico as having "foreign policy experience"?  Does that qualify every governor who borders an ocean as having excellent naval defense strategies?

 

Palin's blue collar lifestyle not so attainable for others, Slate discusses.

 

Timothy Noah of Slate predicts Palin's speech will be great but only because we know nothing else about her. 

 

John Dickerson reacts to Palin's speech.  Can you tell I read a lot on Slate?

 

The NYTimes considers why being Governor of Alaska might actually be different and potentially more qualifying. 

 

The one other thing I disliked about her speech was that I felt as though she spent more time attacking the adversary and not as much time talking about her plans or solutions to problems.  I think the Dems did a little better at focusing more on 'what we're going to do' although they did of course include some 'but the Republicans can't get it right' stuff as well.

Palin's speech

I think she's likeable. I think her speech was good.  I think that her speech could very well have rebounded the McCain campaign.  I think that her speech makes it clear that Hillary Clinton would have been a better choice for Democratic presidential candidate.

 

I disagree with Palin on a fair number of specific issues, assuming that what I've read about her political stances is correct.  The one conflict I couldn't get around was Palin's repeated accusation that Democrats would increase taxes and create bigger government, government that makes decisions for you - and then in another breath, would promise to advocate for special education (generally a government-administered entity), deride people who would question the importance of civil liberties (they aren't important if they're criminals ie terrorists, government is right don't question it).  Plus the decisions that she thinks the government SHOULD be making for you - ie abortion.  I appreciate her small-government stance, but I don't know that what she was saying was very small-government, really. 

 

Giuliani makes my skin crawl.  Ewww.  He is creepy, and I just felt that most of his speech was slimy.  When people started chanting "Drill Baby Drill" it really disturbed me.  I'm not sure who Giuliani was referring to when he said "THEY say Palin won't have enough time to spend with her children."  It wasn't the Democratic party.  That's a weird thing to say. 

 

I wondered what the hell McCain was thinking when he selected Palin, but I respect his decision, and I respect him for standing by it. 

 

I can't wait to hear what everyone else is saying.

purging

It's taken me almost five years, but I am finally parting with my fat clothes.  I couldn't ever part with them because of my two strongest anxieties: money and my weight.  I was about two sizes larger several years back, but I'm at about my average size now - I'm still not skinny, but I'm maintaining my current weight without too much wrangling, and although I'd love to be two more sizes smaller, it's unlikely.  I've had a large box of these clothes that no longer fit for about five years now. 

 

I didn't want to get rid of them because if I did gain weight, I would not be able to afford a new wardrobe.  Most of these clothes are nice clothes - actually nicer than most of the clothes in my current rotation.  I don't own a lot of clothes, I rotate about the same three or four pairs of capris in the summer, three or four pairs of pants in the winter, and about 10 different t-shirts regardless of the season.  But I had all these crappy, pit-stained, superlarge shirts, plus some really nice collared shirts, slacks, skirts, just taking up space that I don't have in my current urban [read: tiny] space I share.  I am throwing out three garbage bags of the gross shirts, and I have four garbage bags of clothes to be donated - two to a women's work wardrobe type organization, and two to Goodwill. 

 

Someone wisely pointed out that there's a difference between being broke and poor - I'll always be broke, but I don't ever ever want to be poor again.I still have the anxiety, that if I throw them out I have no safety blanket, I'll have nothing to wear, no way to get new clothing, and I'm just throwing money away.  I cling to these things because I can't take those things for granted.  I'm always afraid of being poor again. 

 

I wore the same pair of sneakers for an entire year.  Every single day.  And they were hand-me-downs from a friend.  I patched up the crotch of two pairs of my jeans, the only two pairs that really fit, because that's all I had that year, I didn't have any way to replace them, and so I had to make do.  Once in eighth grade, our teacher required us to bring two very specific school supplies.  They'd cost about $8 total now, but I remember being yelled at, at home, that we didn't have the money for those things, so too bad.  I remember being lectured that public school is supposed to be FREE, and since when did we have to provide such things?  Then I went to school and got yelled at there, too, in front of the class, for not having those supplies as the teacher required.  I remember going on a field trip that included a stop at a food court, and being the only kid who was eating a brown bag lunch in the food court.  In high school.  Even more embarrassing, one of my teachers came over and insisted on giving me money to buy an ice cream or something.  I don't think on these things too often, but those memories and the discomfort and the embarrassment is seared into me, something that may heal but will always leave scars. 

 

My family is almost 10 years removed from that type of poverty, and I'm so happy to see that was a finite period of my family's life, but I'll never be able to shake it off.  I will never completely stop worrying about having something appropriate to wear for an occasion, or being able to buy food, or being able to pay all the bills every month.  There will always be that chill in my bones that I'll never quite be able to warm.  And now that the economy's bad, and I have hundreds of thousands of dollars of debt, I'm paranoid that I'll wake up tomorrow and won't have a job, and won't be able to get one, and won't have any way to pay the bills or put a roof over my head.  That gut anxiety never goes away. 

 

Other poor kids know what I mean.  You'll always be the poor kid.  Even though I went to good schools, and I've managed to traveled a little bit, and I appreciate red wine and a good meal, I don't feel like everyone else when I do it.  I feel like an imposter.  I don't belong in fancy clothes, or a fancy hotel, or planning fancy vacations.  I'll always be the girl wearing her friend's hand me down sneakers.  I'll always be the girl wondering how everyone else lives life so easily, when having so many more things now just means anxiety about losing those things.  Poor kids are always looking over their shoulder, wondering when life is finally going to catch up and take away the cloak of security that you clutch so hard your knuckles turn white.  Poor kids are always worrying about when the time will come to be poor again.

 

Getting rid of those clothes meant having to trust that even if things go badly, I'll still be pretty ok.  Even if I have to get rid of the gym membership and even if I'm eating nothing but rice and pasta and gain back all that weight, I won't go without clothes, or have to visibly sew tattered clothing to keep it together.  I'll never completely trust that there is anything at all preventing me from being that poor again, but at least I was able to let a little more of that go.

I'll always love you, Hillary.

It's been a month.  I've been hanging out, relaxing, which isn't always the stuff of blogging.  I've taken a lot of time off to do not much at all, which is a refreshing change from taking time off to run all over the place.  I've been baking as much as the weather will allow.  I've been reading as many issues of The Economist and Real Simple as time will allow.

 

I waited and waited and waited and finally, Hillary came on to stage at the Democratic National Convention.  I somehow managed to not watch any of the Olympics, despite my best intentions, and I haven't managed to be able to read a book, and I didn't even know that the DNC had started until this morning.  But once I found out that Hillary was speaking, I glued myself to the TV.  I do love Hillary.  I don't think I realized how much I am in awe of her ability to be a strong, respected woman in a man's world.  I am so moved by her legacy.  I love her. 

 

Even though I didn't expect it to happen, and even though I'm not sure it would have been a good idea, I felt put off by the Democratic Party's snub of Hillary, with choice of Joe Biden as VP.  I don't know much about him, he seems like a sufficient political candidate.  I don't think Hillary should play second fiddle to anyone, and as I said I don't think Hillary as VP is a very good idea.  But I think Obama and the Democratic Party owe Hillary, big time.  If Hillary was the Democratic Candidate, I'd vote Democrat this year, as I have in every previous election.  I feel completely alienated from the Democratic party and national politics, and with Hillary not being the candidate, I'm voting third party, even though Hillary is urging me otherwise.  Sorry Hillary.

Hillary, you inspire me.  Keep going, sister. Keep going!!

Louisiana death penalty case

The issue in Kennedy vs. Louisiana was whether it was unconstitutional to execute someone for raping, but not killing, a child.  My opinion?  Hmmmm.

 

I have a variety of thoughts on this topic.  I'm a defense attorney, and a former social worker for abused and neglected children, and did an internship with incarcerated youth, and worked with kids in an educational setting.  I've done a variety of jobs with kids, and with law, and some with both.  When I was a social worker, I remember a coworker of mine saying, "Why put kids in foster care?  They'd be better off if we took them out back and shot them."  I was appalled, as a newly minted Bachelor of Social Work, and regarded my coworker's comment with disgust.  How dare she say such a thing!  It didn't take long for me to see that, although hyperbolic, she might be on to something.  Kids were being abused in foster care, or being put into facilities or foster homes that weren't providing these kids any sort of nurturing or care.  The fact was, ripping them from the only dysfunctional household they knew and putting them in a new dysfunctional setting with strangers was not the solution to the problem.  Hell, putting them into a functional relationship with strangers wasn't always the solution, either.  (Who saw "Gone Baby Gone"?)

 

But what I also saw was the type of impact and the long term effects of abuse and neglect on a child's development.  The most severe behaviors were often present in children who had been sexually abused or exposed to inappropriate sexual behavior.  When I fled social work for law school, I left with the impression that there could be no greater harm to a child than sexual abuse.  It messed them up so bad that I thought that maybe my coworker's seemingly appalling comment was true in more ways than one. 

 

That's not to say that kids can't recover, that kids can't cope, that they're all doomed.  There are strong, functional human beings out there who are survivors of child sexual abuse.  But I can't shake the impression that the children who were most troubled were the ones who had been sexually abused.  So that's my feeling about child sexual abuse.

 

With respect to the death penalty: I am against the death penalty.  There are a variety of reasons.  My opinions began to form in high school, when I was assigned to write a report on the death penalty.  When I started the report, I was for it - when I finished the report, I was against it.  I was most influenced by the estimated percentage of people on death row or executed who were at some point later exonerated.  Then in college I began learning about social stratification, and the influence of race and class on punishment, and the gaping disparities in "justice."  Then in the real world, I realized that I wouldn't trust my government to do any damned thing right that actually mattered, and I don't think my government has any business killing its citizens.  So my opposition to the death penalty is based on the likelihood of error, the likelihood that marginalized groups of people are more likely to receive the penalty, and my utter distrust of government and bureaucracy. 

 

Understanding from whence I come, let's turn now to the issue at hand - is the death penalty an appropriate penalty for the crime of child sexual assault?  I read a few amici briefs, and when it was released I read the opinion of the US Supreme Court.  Social workers submitted a brief, indicating that it was generally in a child's best interest that child sexual abuse NOT be punishable by rape.  The social workers pointed out that it provides perpetrators with an incentive to kill - if you're going to be executed for raping, why not go ahead and kill the only witness against you?  It'll be the same sentence.  The brief also discussed the continuing victimization of a child witness who has to testify, probably more than once, against a person who is probably related to them, and faces execution.  I don't really believe that the death penalty acts as a deterrent; however, I was most interested in the discussions in that brief.  I'm pleased to see that the Louisiana public defenders put in a simple brief - simply put, they absolutely would not have the resources to provide effective assistance of counsel if every child rape was death-eligible. 

 

The opinion itself was not a good one, in my opinion.  It reminded me of Kennedy's opinion in Lawrence v. Texas, and more recently, Kennedy's opinion on abortion restrictions.  Not so much law, mostly just talking about feelings.  In the TX sodomy case and in the abortion case, there was potential to use and strengthen an existing legal framework, and Kennedy did not.  The Louisiana child rape case was an equally unhelpful opinion, but what makes it different is that Eighth Amendment jurisprudence is like jello.  What kind of 'legal standard' is "evolving standards of decency?"  Or "proportionate sentencing"?  These are hardly standards.  So really, what else can Kennedy do except talk about "How do we feel about this?"  When Kennedy is talking about feelings about the Eighth Amendment, it seems to be precisely what the law demands. 

 

In the end, the Supreme Court decides that our feelings as a nation say this isn't a good punishment for that crime.  I don't think that's really what the Supreme Court said.  I think the Supreme Court said that we don't like the death penalty very much at all, so there isn't much reason to keep it in a case like that.  I suppose they were being narrowly tailored to only decide the case in front of them, but I wish they had just done what they said - strike it all down because we don't like it so much anymore.  I don't like when the Supreme Court takes on the role of deciding what we want or what's best for us - I think it's patronizing, and if I can't trust my government to kill someone I don't know if I trust my government to decide when it's capable of killing someone - unfortunately, that's precisely the type of decision that Eighth Amendment jurisprudence demands with respect to the "evolving standards of decency" decision. 

 

But what about whether it is proportionate?  Is murder worse than rape of a child?  I can't say that I believe that.  I don't really recall how the Supreme Court decided that issue.  I'm sure that everyone would prefer to have their child alive instead of dead.  However, the consequences of living through trauma like that can be staggering and irreversible, as I saw in my time as a social worker.  With respect to whether the punishment is proportionate to the crime, I don't know that the Supreme Court got it right.

 

For all that the opinion said and didn't say, I didn't like it.  However, I can't say that I think the Supreme Court, legally, got it wrong.  Or right.  I just don't know that there was an easy way to answer the question.  I respect the Court for not punting, and finding some procedural appellate error that could have been used to avoid the death penalty issue.  It's a hard question, and I don't think there's a good legal answer to it.  Maybe that means it shouldn't be a legal question, but a legislative one.  Nevertheless, the Eighth Amendment makes it a legal question, albeit with not so much law to lead the way.

 

Those are my thoughts and reflections.  What do you think?  I'd love to hear your opinion.

when I'm nervous, I...

1. will loudly hum a nonsense tune to try to drone out the anxiety.  This coping mechanism is only used in certain nerve-wracking situations, and I've done it for years without really noticing that I did it.

 

2.  look up apartment listings in another city.  A specific city.  A city you would not consider an answer to the question, "If you were to quit your life and go somewhere else, where would you go?"  If I told you the answer, you'd probably give a short laugh and say, "Random."   This is my getaway plan.  An escape plan.  Plan B.  When I'm unhappy, I look at apartment listings and fantasize about what my life would look like there.  I derive a lot of comfort from knowing that at any time, I could end this, I could walk away from it, that I'd be strong enough to do it.  Strange thing is, I don't think that's what I want at all.  Not sure why I enjoy the fantasy so much.

a political thought

I think Edwards and Obama pushed the Democratic race to the left more than it would have been, but now that it's just Obama, I think Obama moved right back to the middle where Democratic voters thought he wouldn't go.  This Slate article by Doug Kendall, "Obama veers to the right, but does he need to take the Constitution with him"? is a smart, to-the-point discussion of Obama's position with respect to judicial appointments and recent Supreme Court rulings, and good advice as to how to say what he really means, or to say what the voters want to hear.  Although he uses Obama specifically, I think his discussion is smart on a much more general basis.

Heller makes me happy

Oh, the life of a law geek... I am PUMPED.

 

I have a lot of thoughts on the Louisiana death penalty case as well.  My personal beliefs are quite separate from my legal agenda in both instances, and I think my makes me a social pariah.  No one really wants to converse with me about each of the cases, so i'll have to blog about them because I'm so happily geeked out.  But not now.  I have a gun trial scheduled for next week and gotta get started on some motions.

put up or shut up

I have no idea whether this will resolve anything, but I'm dusting off the resume and looking for PD or PD-similar positions.  I don't know if I'm really ready to move yet, but it can't hurt to look.  Or apply.

 

Send me some leads if you got 'em!

wish list, week of June 9th

1.  Wish that just one of my five scheduled trials will happen, and wish that one will be one of the two I've prepped.

2.  Wish that trial won't go past Friday so I don't freak out all weekend.

3.  Wish my client with two potential alibis will call me so we can hammer out the times a little better.

4.  Wish the US Supreme Court would rule on the DC 2nd Amendment case.

5.  Wish that I get to sleep in one day.

weddings

I watched from the balcony as my dear dear friend twirled below us in her wedding dress.  She was born to wear a wedding dress.  Every part of her is long, slender, modest, graceful.  She's a few years older than I am, and was a supervisor and mentor to me years ago.  There is something about her that always seems so centered, so at peace, even when she's struggling.  I spent most of the wedding admiring her, her quiet grace and quiet beauty that is cooling and soothing.  I was there on the balcony a long time, thinking.

 

There's something really difficult about coming back to people who knew you once, who knew a big part of you, when two things are true: first, when that part of your life no longer seems relevant, or that it seems to have moved past you; and two, when the part of your life you're in now doesn't feel right.  So here I am with a large cup of chippedy chocolatey ice cream still trying to just figure it out.  How can I be at this stage of my life and still not know where I am supposed to be or what I am supposed to be doing?  It seems to me that I've worked very hard to be at this stage in life so how, how in the world can this be so unfulfilling and bewildering?

 

During the cocktail hour I had been catching up with an older former coworker of mine.  He was thrilled to hear how I was doing, what I was up to.  He gushed about how great I looked and how amazing I was.  At the end of the conversation he looked directly at me, dropping the small talk face, and with a kind but serious voice said, "You're letting off this great energy.  You're warm, solid... there's just something there that is such a great aura about you."  Instead of brushing it off with a nervous, "Thank you" I made a split second decision to respond as honestly and as openly as he was.  And so I responded, "Well thanks, but I couldn't feel further from that.  I feel like a mess.  I feel worn out, I feel broken, I feel hardened, and I feel kind of lost."  He was surprised, said he couldn't tell.  "Whatever it is, it's still in there!  I can see it!" he said.

 

At the end of the night, I made sure to seek him out to say goodbye.  I gave a hug and was about to leave when he grabbed my hands and looked directly at me, seriously, and said, "I know you said you're feeling really cut up, but it's still in there, you've got it.  You're great.  You're really, really doing great."

 

And then I cried.

best day of a girl's life

I unintentionally dropped a dress size.  I was shopping for a dress to wear to a wedding (always a bridesmaid / attendee / drunken reveler, never a bride) and was disgruntled that nothing fit appropriately.  Lo and behold, it turns out I'm one size smaller.  In disbelief, I asked the sales clerk if they had recently changed any of the sizes, as several stores have done over the past few years.  She says no, and I celebrate.

 

My celebration was quickly followed by panic that I won't be able to actually maintain this weight until it's time to wear the dress, and now I'm miserably obsessing over my weight. 

There is no getting over it

Justice Scalia says to 60 Minutes about Bush v. Gore, "Get over it."

 

It irks me so, so bad.  I don't care that it's Bush v. Gore that we're talking about.  The fact that a Supreme Court justice would hand down a decree of constitutional law and then, in response to public scrutiny, dismiss it with the wave of a hand... ugh. 

 

I know that judges are in an unenviable role.  Local judges have to worry about making decisions (to release or not to release?  bail or no bail?  suppress or not to suppress?) that look bad to the public and make great tabloid-like headlines in the newspaper, even if these judges are making decisions that are legally reasonable.  But that's part of being a judge.  Being a judge means making tough decisions.  That's what a judge does.  Our system is an adversarial one, so two parties take opposing positions and the judge rules.  Now, some of the judges I work with prefer not to make decisions, and that type of judge is the one for whom I have the least respect of all.  WE ARE NOT HERE TO AGREE WITH EACH OTHER.  I hate judges who want everyone to just talk it out.  Well, I think the cop's a fucking liar.  You may be surprised to learn that the prosecutor disagrees.  So, no consensus.  Now your turn judge.  Oh, don't want to weigh in?  Don't want to have to decide who wins this round?  Thanks, judge, my barista at Starbucks makes harder decisions in a day than you do.

 

I have several cases that haunt me, cases that I know I was legally in the right, cases in which my clients lives were devastated.  And when I get up there to yell about how unfair it all is, the judges have the response equivalent to Justice Scalia's - Get over it.  So here's my response, here in this empty little tin can of the internet I'm shouting into - NO I WILL NOT GET OVER IT.  You know what?  You made the decision.  You made a bad decision.  You made a decision that ruined innocent people's lives.  YOU DEAL WITH IT.  Don't tell me to shut up to make the problem go away.  Because I'm going to come back every day on every future case and remember what you did.  And you are going to try to make my life miserable because I can't let you forget that I think you fucked up.  I'm not going to get over it, never ever.  And neither will these people whose lives have been ruined.  You made the decision.  The responsibility of the decision lies with you.

 

I know it's hard sometimes to make the legally correct decision.  But if what you're doing is truly following the law, it shouldn't be so hard to take responsibility for that, right? 

 

Justice Scalia's "get over it" response to a decision he made, interpreting constitutional principles, just infuriates me.  Every decision the Supreme Court makes is a big one.  His job is to clarify the most essential rights of our existence.  To try to evade or dismiss as trivial the impact or response to those decisions is not only patronizing but appalling.  This is your job.  If you cannot accept the responsibility of your professional actions, then you don't belong there.

 

There are cases that haunt me, and I will not get over it.  And maybe, judge, you shouldn't "get over it" either.

superrelationships, monogamy, and please stop asking.

A few years back, the Utne Reader had a cover article about SuperRelationships.  I found the article compelling because it explored the question of whether we expect too much from relationships.  This is a question to which I keep returning.  Is it realistic to expect so much from one person?  Can we expect that one person will "get" every aspect of us?

 

In October, I was at a wedding and catching up with a friend I hadn't seen in some time.  I was telling my friend about my recently acquired boyfriend.  I felt compelled to explain that I wasn't sure that he was the love of my life, because even though he was my boyfriend, I feared that people would infer too much from it.  I then began confessing that as much as I adored my boyfriend, I also felt drawn to a coworker with whom I got along very well and who shared a similar sense of humor and approached work much in the same way I do.  I was confused by what seemed to be conflicting feelings - how can I feel that way towards one if I feel the way I feel towards another?  My friend shared something that I thought was so insightful and intelligent that I reflect back upon it often, particularly when the issue of relationships come up in conversation. 

 

What my friend shared with me was her belief that perhaps our society is so wildly monogamous that we cannot accept that there might be one person, not our significant other, who gets one part of us so much better than anyone else, and we feel guilty when that happens.

 

Over the holidays, I again found myself in a discussion about my current relationship status.  When asked whether it was serious, I responded that I couldn't tell.  I knew I cared very deeply for my boyfriend, and I felt that his laid-back, upbeat approach to life balanced out my high-anxiety, intense, sometimes moody self.  I liked spending time with him, but liked that we both kept separate spheres, and were able to join or not join the other when we felt like it.  What I didn't feel, however, was that firecracker emotion, that tingle in the back of my neck, the excitement that comes when you meet someone who sparks some dormant or quiet part of you.  I wasn't sure that he really "got" me, and that we didn't have enough in common for that to ever realistically happen.  So things were good, they were really good, but I wasn't sure they were great, but I also wasn't sure that any relationship ever has that capacity.  My friends shared their stories, of friends who were together but then broke up, no reason other than it just wasn't The One.  It was good, but it wasn't great, and good isn't good enough.  And here we are, embracing or about to embrace our 30s, and still no answers or discoveries with respect to The One.

 

It came up again last week.  A friend who was considering some of her own relationships started asking whether I saw myself marrying my current boyfriend.  She asked if I was happy, or just content, and was being just "content" settling for something less than love that we each deserve?

 

I don't have answers.  I do sometimes wonder about my relationship, and it pains me to admit that.  But for as much as the questioning around me increases, my own questions subside.  The longer I'm in this relationship, the more I see that he gets me much more than I gave him credit for.  He might not debate my socio-political philosophies with me, and we may never be capable of having such esoteric discussions.  But there are other people with whom I can have those discussions, and I don't know anyone else who can calm me or keep me company in the day to day drudgery of life the way that he can.

 

If we expect the superrelationship, then we are looking for one person who gets every part of us, to the exclusion of the people around us who are very capable of providing those connections.  I have seen couples who are good examples of superrelationships, but I am not sure it's for everyone.  And it's not that I don't wish the best for myself or others who haven't found a superrelationship, and I'm not even sure whether I think there is a superrelationship for everyone or not.  But I think it's ok to be in a committed, long-term relationship with someone who gets most of you, and respects that the rest of the parts of you will continue to explore and develop, sometimes or even oftentimes with other people in your life.

 

So am I going to marry the boyfriend?  I don't know.  I'm not anywhere near that place.  The question makes me uncomfortable.  Would I be, if I were in a superrelationship?  Maybe.  There's no way to tell.  I'm not in a rush to resolve the question.  There's so much more fun to be had first.  I know we're good together right now, and right now I think that's enough.

 

What do you think?  Are we expecting superrelationships and supermonogamy?  Are we expecting too much?  Or are we discarding a formerly economic and social contractual approach to marriage and relationships in favor of a true, deep, one-of-a-kind bond approach to marriage?

ask and ye shall...

I just pled with fate and this blog's audience for a big win.  Right after that I had a trial, and right after that I had an utterly innocent client convicted.

 

Kick me while I'm down.

sorry.

This blog is something I've come to just poke at now and again, like a super fancy kitchen utensil that you only need for one recipe that you make twice a year.  Otherwise it sits on the shelf, and I wish I had the energy or the zeal or the words to do something with it.

 

Maybe I will eventually.  Just not lately.

 

Part of the reason might be because I feel driven to leave the job.  Not right away.  Not next month, or even in 3 months.  But I need to get a feel for what's out there, because I need to leave, and the idea of leaving my job is really difficult to grasp.  I thought I'd be here a long time.  And I thought when I left, I'd just go to a public defender in a different part of the country.  Work has been so difficult for me lately - so tedious, so not law-based, so much paperwork and scheduling and administrative bullshit that it makes me feel like my law degree has just led me to be a fucking secretary with six figure debt - that I'm losing my shit.  It never even occurred to me to do anything other than public defender work - and not even as a contract attorney.  When I tentatively mentioned to a friend I was considering hittin' the long dusty road, she started talking civil rights firms and big government work.  No no no, I waved it off.  Just PD work, not that other stuff.  Why not? she asked.  And then I stopped for a moment.  I guess I don't know why not, other than I just never really considered it. 

 

If I'm not a public defender, who am I? 

 

Am I ready to leave before I feel like I ever really got started?

 

My mentor told me, it's times like these that you need a big win.  I don't know if just one will cut it - I think I need a few really big wins to get my revved again.  I feel so far gone already.

unfinished

I can't stand it a minute longer.  I'm so angry I want to cry.  I'm storming out of the courtroom, where I've just wasted an hour of time sitting there doing nothing, precious time better spent researching a legal issue or analyzing a case or writing a motion or talking to a client or interviewing witnesses.  Just an hour today wasted, as I've started to realize that NOT appearing on time has made me a better lawyer.  The wind is cold and I can't get a handle on my scarf that's whipping around in the air around me.  Fuck this.  Fuck this. FUCK THIS.  I'm not meant for this.  I'm not built to just sit there and watch people in black robes and suits say stupid, stupid things over and over and over again.  I hate it, I can't stand it, I don't have the patience for it.

 

Back in the office, I return to my chair, the chair that sees more of me than does my boyfriend or my bed.  On the screen, right where I left it, that motion I've been painstakingly writing, one slow sentence at a time, researching as I write.  I cut, I paste, I cite, I move the paragraph, I'm clicking, I'm typing.  Every once in a while a flash of his small quiet face comes to mind.  Juvenile charged as an adult.  So quiet.  Can't get him to talk.  What ever happened to him that made him so quiet?  So tiny.  I click, I type, I type, I highlight.  I remember back when I saw him, when he first sat down across from me in the activity room.  The activity room filled with silence, with false institutional cheer on the cement walls.  He, in the jumpsuit, not expecting me.  He was expecting the other one, the middle-aged paunchy grizzly soft male attorney he had before.  Instead he got me, an edgy, young, eternally scowling female.

 

When considering sentencing, the court is required to first consider rehabilitative options

and as I typed the sentence I wondered how that was going to be true.  He had never been in trouble before.  I couldn't quite figure out what was to rehabilitate.  It was a bad decision, made quickly. 

an unfolding sense of one's place in the world

That's how my tarot card reading began and ended.  I was asking a lot of questions for one reading.  I wanted to know where I was going next, what I'd be doing next, who'd be there with me.  Will I be lonely?  Will I find someone to marry?  Will I have children?  Will I be a lawyer?  Will my life look the way I think I want it to look?

 

The thing I like about tarot cards, cynic that I am, is that it's not about whether they're true or not. (Although I have had some strangely accurate readings).  The tarot cards reflect back at you want you need to know.  This time it was no different.  The tarot reading didn't answer any questions about the entire unfolding of the rest of my life, just as the reading didn't tell me what to eat for breakfast.  but what the reading made clear is that I have no idea what the hell is going on.  It reflected back to me my own confusion about where I am and where I'm going.  Do I believe that tarot cards predict the future?  No.  But I think they tell you what you might already know.

 

I'm still searching for answers. I am pretty sure I don't have them.  I think I've identified that I'm ready to start planning some changes.  A new geographic location, and new practice.  (I like my job, I don't like my current practice.)  I have absolutely no insight was to what I want as to either location or practice.  And I haven't met anyone I want to marry, or have children with, or consider real estate with.

 

I'm young, but not so young to be this incapable of figuring out my place in the world.  Nothing is unfolding for me, as of yet.  I don't know if I'll go, and if I do I don't know where it will be, but I've decided that whatever this is, it requires a 2 year plan.  Two years from now I have to be living intentionally, and not so passively.  I have to be active and investing my time in something, instead of just continuously waiting for something to grab me and shake me to life.

on being a public defender: apparently we're all liars.

It's strange how much judges and prosecutors really believe that we lie, lie, lie all the time.  I often don't get involved in the "truth" or "what really happened" because no two people tell the story the same way.  This is how defense attorneys get to use the government's evidence to create their own defense without ever having to put on a witness.  It doesn't matter what I think really happened - if the evidence leads to the inference that there was a self-defense issue, then I get to argue that.  The flip side of that is, I have no interest in spinning falsehoods.  I don't need to create testimony or create evidence to create a false 'story.'  The government (usually in the form of the police department) gives me all the false evidence I need.

 

It really gets to me when participants in this very system seem to embrace and support the belief that defense attorneys are liars.  Often times when a prosecutor is confronted with a big booboo, the first response is to accuse the defense attorney of somehow craftily tricking the prosecutor into doing something.  It's strange.  Or when I file a notice of intent to introduce a particular defense, the prosecutor gets all *wink wink nudge nudge* "but you know he really did it." 

 

I can almost accept that prosecutors feel this way but when JUDGES articulate this, it disheartens me to the point of wanting to throw in the towel.  Why do I even show up for work every day?  If even JUDGES think I'm a flat out liar because I represent people who have been accused of crimes, if I'm guilty by association for representing clients who are assumed guilty because they wouldn't have been arrested if they hadn't done something wrong, why do I even need to get out of bed in the morning?

 

And when the government loses, it's always, "The government failed to prove each and every element" but when a defendant loses, it's, "Defense counsel hardly makes out the requirements of XYZ" or "Defense counsel's tenuous argument that ABC..."  I get called a bitch, I get all the adjectives, but the government never gets told that they are silly, ridiculous, and a colossal waste of time.  Furthermore, even if my argument is tenuous, can we please just leave out the bitchy adjectives as a way of acknowledging that IT IS MY JOB to challenge these issues?  That even if it's a loser of an argument, it doesn't mean that I should just fail to challenge evidence whatsoever?  I mean, it's like having a trial and not saying a word because I know I'll lose.

 

Last week I had an oral argument on a suppression issue.  The prosecutor alleged a certain set of facts that, for the most part, I agree with.  Where we differ is that I introduced an entire previous set of facts, that existed BEFORE this second agreed-upon set of facts, that strongly negates the prosecution's conclusion as to what the second set of facts means.  I discovered this first set of facts because I kept looking for a witness until the witness, in a very reluctant and hostile manner, told me what he observed.  Other objective individuals were able to verify different parts of this first set of facts, and I was so delighted to have discovered such great exculpatory material.  (although, sadly, if I can't ever get the witness in to testify, as is probably the case, then my client is in big trouble).

 

The government opposed my motion to suppress, mostly on the grounds that they deny the first set of facts existed because they say they looked into it and could not find any evidence this first set of facts existed.  The judge denied my motion and in the decision, the judge constantly referred to this first set of facts with words like "allegedly" and "defense counsel would have you believe that..."  The judge almost solely used the government's inability to discover my evidence (which is very strange, because it is technically THEIR evidence if they believe their own facts to be true) to deny my motion.  Basically, if the government says it never happened, then defense counsel is clearly fabricating this entire thing.  [Seriously, why would I MAKE UP facts?  I'll argue inferences but to create an entire scenario based on sheer imagination?  Why would I lie?  See above.]  I was so insulted that the judge, in no uncertain terms, called me a liar.  If the judge had denied my motion because there were not enough facts to support it, that's one thing.  But to characterize my argument the way the judge did...

 

I have a lot of words that come to mind in reaction to that decision, but the words I'll choose to use here are, "I'll see you at trial."

on being a public defender: reasons prosecutors make me scream

Most defense attorneys believe that, in general, prosecutors are unjustifiably arrogant about their roles and their individual capabilities.  I've become accustomed to the bravado of the courtroom and accepted the fact that they think the same of us.  Really, it's not personal.  We're just doing our jobs. 

 

But a surefire way to quickly and vehemently enrage me is to make it personal.  And when a prosecutor personally seeks me out to admonish me about how to represent my clients, violence ensues.

 

It often goes something like this:

P:  Why won't your client take a plea?

D:  He's not guilty.  He has witnesses.  As I've told you 4 times before, no plea.

P:  Ok, so what if I drop the plea down [one more notch]? 

D:  Go ahead.  Still not guilty.  Still has witnesses.  Still wants a trial.  Still no plea.

P:  But I just don't understand why he won't plead to XYZ.  I mean, you know he did it, and you have ALL THESE OTHER CASES WHERE YOUR CLIENTS REALLY NEED YOU.  It just doesn't seem right to waste our time and the court's time with a case like this.

D:  [jaw drops. violence ensues.]

 

I've had prosecutors tell me, several times, that I am doing all of my clients a disservice by wasting time and resources litigating certain issues.  Generally the issues I have encountered as a "waste of time" are issues such as 1. a demonstrated alibi, acknowledged by the prosecutor; 2. a procedural error by the prosecutor that results in an automatic dismissal of my client's case.  I've also been told that 3. defense attorneys are doing their clients a disservice by not making them do treatment programs when the clients need them.

 

I get angry when a prosecutor tells me I am wasting their time because my client refuses to concede guilt.  It is downright horrifying how much the "innocent until proven guilty" is one big *wink wink nudge nudge* in the courtroom.  I have two cases in particular where the judge has actually said as much on the transcript.  I really should have ordered those. 

 

But I get nearly BLACKOUT angry when a prosecutor admonishes me about the time I won't be able to spend on all my other cases that REALLY need my time.  And I get nearly blackout angry when a prosecutor tells me that I'm preventing her from helping other defendants because I'm wasting her time by litigating issues on that case.  Or when a prosecutor admonishes me for 'letting' my client get rearrested, or 'letting' my client out of jail without a program in place in the community.

 

I'll set aside the prosecutor's belief that I have some sort of moral influence or flat-out control over my client's life choices - that "reason Prosecutors make me scream" we'll leave for another day.  But I cannot comprehend how a prosecutor can, with a straight face, argue that a case is not worth the court's resources and then adamantly refuse to drop the case.  I cannot comprehend how a prosecutor can tell me that I am actively hurting my client's best interests by NOT advising my client to take a plea when I have at least a 75% shot of complete dismissal.  Or really, the point is, I cannot comprehend how and where a prosecutor gets off by TELLING ME I'M DOING MY JOB WRONG.

 

You don't have to be an attorney to know what I'm talking about.  There are people in life who always seem to think they have some higher authority.  People who are never wrong.  People who tell you, when you feel a certain way about a subjective issue, that you are wrong.  And these people are frustrating because they are locked in some small little world where things are so certain, and you are here in this much bigger world where things are not so certain, and there's nothing you can do to get them to step outside that tiny little world of theirs to take a look around at all the other things that could be.

 

I have received several very, very unprofessional calls or personal tirades from prosecutors calling me a liar and a cheat.  One example (and the most memorable because it was the first and most volatile) originated because they forgot to show up for a hearing scheduled by the court.  When ordered to appear, they were not prepared and then accused me of fabricating the hearing myself.  However, when asked by the judge earlier that morning, their office told the judge that they were ready to proceed on that very hearing.  I think what really happened is that they lied about being ready to proceed, and since the left hand didn't know the right hand lied, the left hand argued back that I made up the fact that the case had been scheduled for a hearing.  The tirade was so unprofessional and filled with personal insults that I considered making a complaint with the ethics committee.

 

I've also been accused of making up, wholesale, a conversation I had with a prosecutor.  When confronted with my screaming rage and evidence of one actual conversation in particular, the prosecutor admitted that conversation occurred but never once apologized for calling me a liar or for openly insulting not only me personally, but my professionalism and ethical duty.

 

There are occasions when a prosecutor's behavior is so unprofessional and ignorant that it merely reinforces the stereotype of their unjustifiable arrogance.  The real evidence of arrogance is when they think it is their place to call me and 'supervise' me personally by telling me what I, personally, should be doing for my clients and why.  Why do prosecutors think they know what's best for defendants?  That seems so strange to me.  They know nothing other than the charges written on the paper - often times they don't get around to speaking to witnesses - and yet they profess to know what's best for my client.  Furthermore, it's no secret that my job is to represent my client's express interests.  So if my client doesn't want to do what the prosecutor is suggesting, why does the prosecutor think that I am somehow a horrid attorney for working on getting my client the disposition my client wants?  It would be one thing if the prosecutor was discussing the "worth of the case" which really means, what this looks like on paper without regard to the actual specific facts of this case.  But in these instances, when accusing me of "wasting time and resources" the prosecutor makes it personal - makes it about me specifically, and about screwing over a specific defendant, and as a result I'm personally being a bad, bad attorney to all of my other clients.

 

This is not meant to personally insult or accuse every prosecutor of being a douchebag.  There are only a chosen few prosecutors that I believe have zero redeeming qualities, and that designation was well-earned by them individually.  Most prosecutors I respect / contempt on a case by case basis, and the prosecutors I respect are not the ones who do me favors but the ones who are professional, reasoned, and capable.  (In other words, if you're insulted by this post, it's not really about YOU.  Unless it is.  In which case, you should really REALLY think before you say something - "Is this about the facts of the case or is this me telling someone else what to do because I think I know more than everyone else?")

resolve: to find or be found.

I think I'm lost.

I recently went to a small political gathering and had the opportunity to discuss world politics and the presidential primaries and Benazir Bhutto's assassination and the economic and political influence of South America with a handful of people. Although I had signed up to attend, I was dreading actually attending. Who did I think I was? I hardly follow politics anymore, I'm resigned to voting third party just as a big Fuck You to our current system of government, and frankly, I'd rather do nothing at all than get all gussied up to speak with smarmy politicians. But I got there and I met earnest people doing interesting things with a variety of professions and interests and I nearly burst with happiness. I started to remember what it felt like to talk about Big Ideas and thinking about Important Things.

It made me downright giddy. I loved academia, I loved having a physical location dedicated to thinking and talking about Big Things. By the end of law school I was sick of talking and thinking and ready to do. But now "doing" is something I've had enough of, after two years of doing it and doing it and doing it well (Thanks LL Cool J) and I'm ready to start thinking again. I want to muse, to discuss, to learn. I want to stop talking about work all the time, or thinking about work all the time. I want to feel like I'm being an active participant in the world and not just going to work and coming home.

I feel like I somehow, somewhere along the way, stopped really living. I've just sort of been getting by, figuring that one day I'll stop being so busy and then have the time to live the way I want my life to be. There have been a few reasons for this. First, I met someone. Having a boyfriend was a great reason to not doing anything anymore. I have someone to lie around and watch TV with all day, someone who will order in takeout and lie in bed late into the day. Second, work took up so much of my time that in the absence of work, I wanted to do as little as possible. Third, I just sort of forgot what makes me happy, and never really thought to stop and update that list.

I learned last year, but somehow forgot again, that work cannot be the only thing in my life. It has always been important to me to work a job to which I am personally and deeply committed. But I need to remind myself that it's also ok to remember that it's just a job, in the sense that there is no way my job can encompass everything that's wonderful about the world. (As a matter of fact, being a public defender tends to encompass a lot that is deeply tragic about the world.)

I feel some long bouts of self-imposed isolation coming on. Or in the alternative, I need to switch up my scene quite a bit. Too much of my personal life is invested in work and coworkers, and too much of my work life has eclipsed any semblance of a personal life. I am ready to get out there and really participate in the world, to learn new things about people and ideas, to try things I've never done before. I'm going to commit to keeping my life and the people around me positive, and to give myself permission to release the things that are not positive, as painful as it may be. I have to keep learning and seeking and moving forward, and I'm ready to cut a bold path for myself in the world.