it's one of several things.

1.  I've watched too much american idol, I'm burnt out.

 

2.  I've watched too much karaoke.

 

3.  or, American Idol is just not very good or entertaining this season and is just "really good karaoke" as Simon said.

on being a public defender: take trial advocacy

I had a DA object to my objection today.

I made an objection, the judge overruled my objection, and the DA objected to my objection. Didn't oppose my objection. Objected to it. And then refused to accept the judge's "Overruled" (in response to my objection) as an answer. The judge continued to tell the DA to stop, but the DA just REALLY wanted to keep going with his 'objection.' Finally the judge said sternly, "MR. JONES. I ruled in your favor. Stop while you're ahead."

object away

I had a DA object to my objection today.  Didn't oppose my objection.  Objected to it.

 

I made an objection, the judge overruled my objection, and the DA objected to my objection, and then continued to try to explain why.  The judge continued to tell the DA to stop every few words, and the DA just REALLY wanted to keep going.  Finally the judge said sternly, "MR. JONES.  I ruled in your favor.  Stop while you're ahead."

thinking

I want to be in a relationship.  I want to be married.  I want to start having babies.

 

but I'm not.  and I'm pissed.  and insecure.  and wondering, why not?

RIP O.C.

Behold the end of an era.

race against the clock

This week the Supreme Court decided Wallace v. Kato, in which the Court determined that the statute of limitations for a federal 1983 civil rights claim for false imprisonment / false arrest starts at the time one is detained in that criminal proceeding.

 

Let's flesh out the logistics of this.  Now, being a defense attorney, my attention always begins at the initial detention of my clients, not when the cops say they are 'under arrest.'  Here's a common hypo.  My client is walking down the street with two people.  The police approach, ask them questions, and keep them there until an eyewitness drives by, unbeknownst to my clients, while they are pressed up against the wall.  Then the police ask them to come down to the precinct with them.  They go.  That takes an hour.  After 12 hours of 'conversation' the police then place my client and two others under arrest.  Another 36 hours or so later, my client meets me and sees a judge who sets bail in the amount of $500,000.

 

My client, not having half a mill kicking around, stays in jail for motions, hearings, discovery, and finally, trial.  The DA isn't ready for trial 3 times in a row, I am not ready for trial once, the judge isn't ready for trial the next two dates because there aren't enough jury panels available or because he's on vacation or whatever.  Assuming this is indeed a 'speedy' trial, the soonest that I begin voir dire will be at least a year from the day I met my client.

 

My client is convicted based on one eyewitness.  My client is sentenced to, oh, let's be nice and say 8 years.

 

Over the course of appeals, it turns out the DA never turned over all that stuff that is constitutionally required to be turned over to the defense but almost never is.  Let's say, oh, the fact that someone else's DNA was recovered from the scene.  The intermediate state appeal took  8 months and was denied.  The final state appeal took another year and hallelujah, his conviction is overturned.  I'll eliminate any federal appeals time here for the purposes of brevity, which no doubt would have tacked on another decade or so.

 

So.  When does the statute of limitations start to run?  The analysis that makes the most sense to me, for a false imprisonment case, is to start running the statute of limitations from the date of the decision rendering the imprisonment false .

 

The Supreme Court does not agree and even expressly rejects that rationale.  The Court in this case clearly lays out that the suit starts running at the END of the alleged false imprisonment.  That makes sense - how can you sue for false imprisonment while being falsely imprisoned?  The false imprisonment ends, essentially, as soon as a client makes his first appearance, arraignment, bail hearing, etc.  As soon as a judge sets bail, the false imprisonment is over.  In my hypothetical, my client was 'falsely imprisoned' for 48 hours.  As soon as he saw the judge who slapped him with $500k bail, he had two years from that date to sue for false imprisonment.

 

The absurdity of this rule is that many clients won't even be CONVICTED by that point.  And if they are convicted, either rightfully or wrongfully, their appeals process will not be finished.  JUST IMAGINE how many civil suits, with a significantly lower burden of proof, will be outright dismissed on summary judgment motions based on a conviction alone in the trial court!

 

And furthermore, after my client has been in for 3 years, half of it pre-trial, half of it post-trial, the only thing he gets to sue for is that first 48 hours.  (Further detention must be remedied through a malicious prosecution suit, virtually impossible to win, I would guess, considering there are still DAs in the world).

this. this is why I cry at night. or drink.

I have a client who is being charged with drug possession and resisting arrest.  This is a pretty common 'bullshit' fact pattern, where a client is stopped for no reason, searched, then arrested for contraband, and then charged with resisting.  These cases are a dime a dozen. 

 

This case in particular haunts me becaue my client can't take a plea.  Even if he could, it's crystal clear to me that this officer is lying.  Lying, lying, lying.  My client is innocent, the cop made it all up, and how in the world am I going to convince a jury of that?

stabbing heartache

I hate that it matters to me, every day, whether you look at me or greet me.  I hate that I hold my breath for you to give me a nod, or a wink, or to walk by and hold my hand a second too long.  I hate that you know how much it matters to me.

 

I never realized how much you watched me, or how well you read me.  I wish that I didn't need you so much.  I wish I didn't know the way you look directly into my eyes and see everything.  I wish I didn't know how it felt to be the focus of your eyes and your questions.  I was surprised to find out how much you knew about me just by watching, since I had never revealed it, verbally or otherwise.  I wish I didn't see it in your eyes, how much I amuse you.  I wish I didn't know how well you could tell what I was thinking or feeling, more than anyone else has ever been able to.  I wish I didn't know that you feel about me the same way I feel about you.  I wish you didn't challenge me and excite me and make me laugh and laugh at me when I'm being funny or just unintentionally absurd.  I wish I didn't know how deeply you care for me.  I wish you hadn't been able to look at me and tell me, right at the moment that I thought I was staying strong and trying to be indifferent and standing firm, that I was fragile.  And you were right.

 

I wish that this connection was something I'd had with someone, anyone else.  I wish this didn't make me more lonely.  I wish I hadn't allowed myself that one hard, sobbing, lengthy cry.

 

More than all that, I wish you weren't with someone else.

 

like I said.

Slate article:  Evidence that prison doesn't deter crime

our kids.

Baltimore Sun article on a 17 yr old who died after being restrained in a youth facility.

 

This makes me so sad.  Maryland has consistently had problems with their juvenile facilities, and frequently one of the issues that is highlighted is staff training.  Several years back, the DOJ intervened and wrote a scathing report that Maryland has been scrambling to clean up since then. 

 

A high school diploma is all that's required to work at these facilities, plus some training when hired.  I think what no one is willing to point out is that there are people in corrections who are just one conviction away from being just like the clients they serve.  They come from the same backgrounds and have similar behaviors and solve problems the same way - with violence.  Others are interested in a law enforcement career - cops on the make.  It never ceases to anger me, the utter lack of services or desire to provide services to incarcerated kids and adults. The U.S. has the highest rate of incarceration of any developed country, and in this country, society wants to see you convicted and / or incarcerated and doesn't want to see you again.  I have clients who do a year in jail at a time for possessing cocaine.  The past 20 years of their life have been spent like this, a revolving jail door.  The cops know them, and when they need an easy collar, they just roll up, pat them down, and throw them in the car.  (I've had several officers admit this to me.)  How has this helped society at all?  This hasn't made us safer, has it?  Can you believe how many taxpayer dollars are spent incarcerating people for being drug addicts?  Why don't we throw alcoholics in jail?  Why don't we incarcerate people for using too much gas in their SUVs or people who don't recycle?  Those choices are most certainly affecting the quality of our lives.

 

We should be making juvenile facilities in particular a career path for people who are trained in social services, who are dedicated to serving juveniles' educational and emotional needs.  These are our children.  There may juveniles in custody who are beyond these levels of care and who may need to be in custody just because they really are a danger to society, but sitting on them until they die is not a solution to the problem.

prayers answered.

So I got a win.  It was a little baby victory, in the grand scheme of things, but a win that I really needed.  It made me feel competent.  It made me feel less overwhelmingly helpless.  It made me realize that maybe my job does matter, maybe I'm more than just a person who makes the judge and DA feel better about sending my client to jail.  Sometimes we actually win.

Best American essays

I'm digging into Best American Essays 2006 and came across this quote that I loved because it really does apply to all of life:

 

"I suppose the joy of finding an appreciative audience is better any day than some feeble notion of a destination."

- Poe Ballantine, 501 Minutes to Christ

burnout

It's that time again.  The time when I don't want to get out of bed, I can't stand to listen to my clients tell me one more bullshit story, I eat cheese and drink red wine like an addict consumes heroin, I won't answer phone calls because I don't have anything nice to say, and I'm pretty sure I haven't smiled in over a month.  If I did, it was fake.

 

I get along well with an attorney in my office who has an MSW (masters in social work) and since my undergrad degree is in social work, we talk about feelings, and debriefing, and our emotional investment in our jobs, etc.  Things that attorneys don't ever talk about, and that criminal defense attorneys should probably talk more about.  Today she told me two things that are very true. 

1. I expect too much from my clients. 

2. Good doctor, bad patient.  I can give help, and spend all of my time giving help to others, but you can't make me take help and I absolutely won't take it, damnit.

 

My clients, I think, have defeated me.  I have one client who was trying to snow me with some ridiculous story about why he was innocent, and I let him get about halfway through it before I told him it was disingenuous to try to claim innocence if he already signed a confession.  Why lie to your lawyer?  Why?  You spill your guts to the cops IN A HEARTBEAT.  And I'm not the one who beats you and arrests you and harasses you and instigates you with lewd, disgusting comments about what I'd do to your mother / daughter / sister.  If you tell me what happened, at least I know where the best defense will be.  If you try to come up with some alternate reality, then you don't have much of a defense, because you're the only person in the world who's singing that tune.  All the witnesses, the police officer, the DNA evidence, the medical records - those will flush you out.  The signed confession?  Yeah... you say it's not a confession because it only said that you were sorry, that you'd been arrested for it before, and that you might have done it this time but you'll never do it again... that, my friend, is a confession.  Don't let the police trick you into thinking you were making a "statement" or that they'd "put in a good word" for ya.  They were lying.  Because they want you in jail.  I want you out of jail.  Making up some fantasy world is not going to help that happen. 

 

I had one client who spent 10 minutes telling me what happened, that he hit the guy because the guy gave him a nasty look, so of course he was going to engage in a high speed car chase, that's doesn't make the resulting car accident his fault, and he concluded with, "That's why I'm innocent."  His story pretty much made out every element of the crime, and when he asked, "So how does my case look?" and I answered honestly, I immediately regretted not lying to him.  He insulted my legal abilities, yadda yadda, telling me that he's on his own, because people like me don't like to fight cases, yadda yadda, I'm a crock of shit, etc. 

 

Sending me on a wild goose chase all over this state and the neighboring states looking for witnesses who will tell me how much you're a liar will not help your case.

 

Assuring me repeatedly that you know all these people who were witnesses and will corroborate your story and you can get me their info, only to later tell my investigator that you don't know any of those people because they were just bystanders, and actually there really was only one, and he wasn't there when it happened, will not help you win your case.

 

So today, I did a hearing with a client claiming actual innocence, and after hearing the cop testify, I pretty much threw in the towel, mentally.  The judge even yelled at me for litigating a case that was so clearly a loser.  When I told the judge that it is not my decision whether to take a plea or go to trial, he yelled, "Well it's someone's decision!"  Yeah.  Still not mine though.  After the hearing, I spoke quite harshly with my client, and I regret that, because it's not my place to be angry.  It's my place to give legal advice and perform legal functions.  I have to stop expecting so much from my clients, it's true.  I have to stop expecting that they won't be able to stay out of jail, that they'll call me when they say they will, that they'll come to the office when they say they will, that they will see how hard I work for them, that they understand that it is not in my power to dismiss cases, that fighting cases means coming back to court, over and over again, regardless of whether you are in jail or not. 

 

I don't think that's necessarily what the attorney meant when she said I expect too much from clients, but to some extent it's true.  I have to expect that my clients will not trust me.  I have to expect that my clients, when frustrated with bullshit cases, will take their frustration out on me, because I am the one advocate they have in the system.  I have to expect that the truth is always somewhere in between. 

 

I had a former client stop me on my way into court.  He's a teenager and was on his way out of the courthouse.  He said, 'Hey!  I remember you!  You defended me once!  I recognize your face.'  I didn't recognize him, so I asked his name, and his name rang a bell, but I couldn't remember his case.  I greeted him, asked him how he was doing, and teasingly asked him how he ended up back in court?  He assured me he was staying out of trouble, he just came back to support a friend.  The court officers shooed us out of the doorway, so we parted ways, but something about that interaction made me feel good.  Today, I covered a case for a coworker, and the client thanked me for fighting so hard for him.  I really was just doing my job.  I didn't do anything over and above the call of duty.  I made arguments that I believed had legal merit, the judge disagreed, I made my record, made my demands, cited my law, and went on my way.  He thanked me for fighting so hard for him.  I thanked him for being so kind, and then wondered to myself how it is that the people who receive the bulk of my time and energy would never even know it, and would never care even if they did.

except for the last line

I admit it, I am watching Shallow Hal.

 

The quote that fits me to a T:

 

I know what I am and I know what I'm not. I'm the girl who, you know, gets really good grades and who's not afraid to be funny. And I'm the girl who has a lot of friends who are boys and no boyfriends. I'm not beautiful, ok, and I never will be. And I'm fine with that.

From The Onion

Peyton Manning Looking Forward To Ninth Annual Super-Bowl-Watching Party

 

 

So-Called 'Genius' Bill Belichick Stumped By Non-Football-Related Question

 

desperately thinking happy thoughts

just trying to hang on.

Lake Tahoe

I had the unimaginable delight of spending some time in Tahoe recently. I'm not an outdoorsy girl, although I love being outside - and I'm certainly not a winter person. I hate snow and I hate when it touches me. But Tahoe won me over. The skies were clear, the air was clean and invigorating, and I felt so renewed and peaceful.

disgusted

I read this article in the LA Times via a link from Dahlia Lithwick's Slate article . 

 

It's truly, truly horrifying how much our government is extending and abusing its power.  I never thought I'd be a Libertarian, but no one else seems particularly concerned about the Bill of Rights, those silly technicalities.  So Libertarian Party, here I come.

 

(P.S.  Barack Obama, I love you.)

say it ain't so!

Turns out my client lied to me.

 

It was a valid defense - a critical one, actually.  This case is a slam dunk conviction that has mandatory jail time with it.  Since he's out on bail, a plea isn't really going to work, because the DA won't negotiate to another charge that isn't mandatory jail time. 

 

I spent an entire day hunting down some witnesses - one was moderately helpful and the other one totally blew my client's case out of the water.  Blew it out of the water, in that it became clear that my client was FULL OF SHIT.  And not only that, but he almost got some innocent bystanders in felony-level trouble. 

 

This client is not an ideal client.  He couldn't care less.  He never returns my phone calls, he sleeps in court, and when I ask him to step outside the courtroom with me he gets up, stretches, takes his time, yawns, steps outside, walks ever so slowly over to me, and just stares at me with this bored, "Why are you wasting my naptime?" look on his face. 

 

I swore I would never be the type of attorney who would yell at her clients, but since I broke that resolution about, oh, three months into the job, I think this guy is getting an earful from me.  I just wasted an entire day searching the ends of the Earth just to find someone (objective witnesses, nonetheless) who told me that my client made the whole thing up.  That's one less day I get to spend on trying to legitimately resolve his case, or any of my other client's cases, for that matter.

 

On the plus side, if my client doesn't care, maybe I can stop being so nervous and frantic and all "torch the ends of the earth" about this case.  I mean, think of all the uninterrupted sleep he can get in jail.

Love your Public Defender

The PD Blog Awards results are in.

*I received 'runner up' status in the Best Writing category (2 votes?).  I'm flattered.

 

Congrats, winners and runners up!   PD Stuff did a great job, taking on responsibility for creating and administering the awards.