Random Stuff

This is the first week of a two-week trial term. Two down today -- neither of which, obviously, actually went to trial. Good outcomes, nonetheless, I believe. Five tomorrow, one with an interesting Confronation Clause issue. The client's stepson calls 911 after the client has left the premises. The prosecutor wants to get the 911 tape in, since I don't think the victim/wife is going to appear.

I think I mentioned a couple of weeks back that one of my colleagues was slapped in court by her client, after the jury found him guilty. You might remember that this was the case where the client shot up his mother's house. Well, the Conflict Defender did take the case for sentencing, and the Judge imposed a term of 111 years. That's right: 111. Effectively, he will never be paroled. That's a whole lot of time for an incident where no blood was ever drawn.

As it turns out, things are going to go quite well in my new division, I think. The senior assistant, my friend, is very reasonable indeed.

I doubt that I will try anything tomorrow -- there is a judge's meeting, so my judge will only be available for part of the day. I guess we could pick a jury and then reconvene on Friday morning. However, I think my cases are going to all get worked out. I am expecting two or three dismissals tomorrow. We'll see.

A Change in Focus

Or perhaps an addition?

O Faithful Readers, I'm thinking about adding another dimension to my writing here. I initially conceived of this space as a log, or journal. (Hence, the unique name.) Personally, I don't think that I need to be in the business of writing generally about politics, since many do that much better than I. In addition, I don't think that writing about legal stories in the news is particularly useful. In many respects, every case is important. I'm not sure that salacious facts or a well paid legal team necessarily mean that a case is more interesting.

I have tried to avoid getting too esoteric here, in fear of alienating the three people who visit and aren't actually public defenders. So I've mostly tried to write about things that are interesting or things that might help counteract the clear pro-prosecution bias that exists in the world we live in. Afterall, our criminal justice system is adversarial, and I think it is helpful for us, the public defenders, to promote our point of view. It's my own educational project, or sorts.

Before I returned to criminal defense, I was working at the Federal Court of Appeals here, as a staff attorney. That office was pretty clearly divided politically when I was there. And, because we were all lawyers, no one was scared of backing down from an argument. I've realized in the last month or so that I miss the debates that we had about overarching issues. Some of the things that I have ranted about here are echoes of the exchanges that I had then, but without rolling up the sleeves and talking about the gritty technical issues.

And that got me to thinking.

Obviously, I went to law school. But, if you ask any that has been to law school, they'll tell you that isn't actually designed for teaching, or learning, the law. The law school curriculum pretty clearly is designed to accomplish other ends. I've realized that there are a lot of things that I haven't learned. For instance, just where the hell is Justice Scalia coming from? I mean, what's that all about? What was Justice Rehnquist reading that inspired him to rekindle the Federalist revolution? And, just how many copies of jury instructions are you supposed to file with the court?

So, I've decided to start studying again, allowing my curiousity to take me where it will. And, from time to time, I might just write about here.

Right now, I'm reading parts of The Common Law, by Justice Oliver Wendell Holmes, Jr. Good stuff, and food for thought, which I might be tempted to share soon.

Changes

The prosecutor has finally assigned a permanent, second assistant to my courtroom. I think things are going to be okay for awhile. You see, the new assistant is actually a friend of mine. As a matter of fact, I met him because he used to work in our office. He thought he would like the private world better, so he left the Defender and was out in the real world working comp or something. Anyway, the grass was not greener and he decided he'd better get back to a courtroom. We weren't hiring, so he went across the street.

I don't necessarily know that it's going to be easy-street for me, but I think things are going to work out well. Today was the first day that we have worked together, and we seemed to be on the same page.

Domestic Violence

I represented a lady, let's call her Ms. Smith, after her first arrest. She was accused of assaulting her husband, who had let her sit in jail for a couple of days before bonding her out. I met her at arraignment, where she came across as mild-mannered and quiet. I think her husband had already had a case or two, in which he was accused of assaulting her. His cases ended up being dismissed, because she didn't appear for trial.

As it turned out, hers was dismissed for the same reason. At that point, I had moved into another courtroom and had turned the file over to another attorney in our office. The file was closed, and everyone moved on to other clients.

Apparently, the relationship became more volatile as time went on. Her husband evidently felt the need to get a protective order at some point over the summer, and he alleged that she violated it. A divorce was filed.

Three weeks ago, she ended up getting a protective order of her own, alleging that he had assaulted her again. He ended up picking up new charges for assaulting her.

Yesterday, police were called to their house. He alleged that she had assaulted him with a machete. When the police arrived at the house, they saw her outside, maybe with a knife and maybe not. She ran into a neighbor's house, and the officers followed her in. The officers reported that she grabbed a knife and lunged at them twice. Some reports indicate that she was saying things like, "go ahead, do it." Ultimately, the police obliged and fired one round, killing her.

That was 5:00 p.m. yesterday, making her the 12th person killed by the local police this year.

A Matter of Opinion

This afternoon, leaving the office, I ended up striking up a conversation with a probation officer on the way out. Naturally, the recent election came up. Let's just say we had very different takes on what the election meant.

First off, this P.O. is a cop. He's go the short hair, the little mustache, the talk, all of it. I get the impression that he's the kind of guy that would actually jump in when shit gets crazy. I don't know if he was ever actually employed as a cop. He's old enough to have had a full career and then retired and started a second career. But he's cop through and through.

He seems to think that the election turned out as it did because the current prosecutor got voted out of office because she tried to control too many things and "didn't prosecute." Those are his words, not mine. He was lamenting the fact that she was offering diversion in so many cases. He pointed out that there is a loss of revenue because people don't actually pay probation when the case is diverted, because they aren't on probation. So, apparently, she was a softy that was going to bankrupt the county. ... Or something.

The common wisdom in our office is that the prosecutor alienated a fairly large proportion of the electorate by locking people up over minor stuff. Of course, we're just P.D.'s.

But what really struck me was that the criticism that she didn't prosecute cases. Last I knew, the duty of a prosecutor is too seek justice. Not necessarily long terms of incarceration in every case, or hefty fines, but punishment which fit the offense and the offender.

Did I mention that these are just misdemeanors?? Most of my clients wouldn't have any interaction with the criminal justice system if they learned to deal with their anger better, used better judgment, or fell in love with people that dealt with their anger better. The solution to these problems is simple, I think: education and a sense of empowerment or ownership over their own lives. Effectuating change on a cultural level, though, is beyond the scope of this entry, anyway.

So, as far as I'm concerned, doing justice in these misdemeanor cases mostly means making some sort of positive intervention. Maybe sending a guy to an anger management course, or making a kid going to a prison and talking to the inmates there. Somehow, trying to give the client some sort of perspective on their own actions and how they impact others. It seems to me that the social costs of locking someone up on a misdemeanor for retributive purposes onlyh exacts a social cost that is to high. Children lose contact with their parents, and incarceration becomes normalized for them. The client comes out of incarceration having lost their apartment, they're behind on bills and have to find a new job. And, if they have any reflective sense whatsoever, they are altered by the fact of incarceration. Why pay all these social costs, when it's possible to intervene and make a change for the better? What the hell ever happened to rehabilitation?

But maybe I'm just bleeding heart liberal.

Random Reflections on Arraignments

Arraignments were this past Thursday, and it was strange day all the way around.

There were about 200 cases scheduled for arraignment, an unusually high number. I ended up picking about 30 cases, so I'm not complaining. But it seemed like almost everyone was in a bad mood. Ugly, almost.

This judge schedules arraignments at 9:00 and then again at 2:00. At 1:45, we were still finishing up the morning schedule, so I didn't get any lunch. Neither did any one else, and I don't think that that helped matters.

Apparently, it was international day. There were more hispanic defendants than usual, which was only slightly remarkable. But we also had two Russians, a Somali, and an Afghan. I think there was also a defendant from Korea, but he or she had retained counsel, and I didn't pay attention to that case.

There was one guy who was on the 9:00 calendar and had to wait through lunch. At 2:30, when the Judge came back onto the bench for the afternoon calendar, he stood up after the judge called and a case and said, "Excuse me, excuse me! I've been here since 9:00 and I've got to go." Needless to say, the Judge didn't take kindly to the interruption.

Also, several people (the deputy, the bailiff, the Judge) all asked people to turn off their cell phones. I am always amazed that people will simply leave their cell phones on. I don't care wh a person is -- no one needs to be instantly contacted all the time. Several phones rang during the course of the afternoon. The Judge warned several times that the phones needed to be turned off. She must have warned people four or five times. Finally, she warned that the next person who had a cell phone go off would be taken into custody. Sure enough -- someone's cell phone rang about five seconds after she made the announcement. That guy had two blackberries, and hadn't realized that the second one was on him. He got to think it over in a holding cell. The bad part was that he was signed up for a plea.

Did I mention that I didn't get lunch?

Another weird thing, but a good thing, involves diversion. Diversion is called a lot of different things in different jurisdictions: pre-trial diversion, delayed prosecution, a "hold" in my jurisdiction. Basically, the idea is that the case is suspended for a period of time, the defendant jumps through some hoops, and the case is eventually dismissed. I am of the opinion that nearly all misdemeanors should be diverted, with perhaps the exception of recidivist DV cases, recidivist theft cases and DUI cases. Off the top of my head, anyway.

The current prosecutor has a run a very tough ship. She has based her administration on "evidence-based prosecution," which means that her office will continue to prosecute, even if the alleged victim doesn't want to go forward. She has required all diversion offers on DV cases to be run through one of four adminstrators before the offer could be made. And, I've got the impression that either she or her deputy keeps a close eye on the offers that are otherwise being made. She ran for re-election on Tuesday in a contested race and lost. (I think most of that had to do with demographics -- she ran as an appointed Republican in a Democratic county.)

Well, I got five or six diversion offers on Thursday. Granted, none of them were DV cases, but I know that I would not have gotten diversion offers last week. I'm a big fan of diversion because, frankly speaking, I don't have to do much, and the client knows e Sxactly what he has to do to get the case dismissed. In addition, it's possible to get the arrest expunged once the case is dismissed. Everyone wins. So, those 30 or cases actua;lly means that I only have to work 25 or so. And that's something that is manageable.

That were such good results that they almost offset the fact that I didn't get out of court until 7:00 p.m. On the other had, the guy whose blackberry landed him in a holding cell? His case was the very last called.

Report Day

Our office isn't actually in the Courthouse, but located in a building across the street. This arrangement certainly presents some advantages, as we are a bit insulated from all that goes on in the Courthouse and, hopefully, on the edge of the radar screen.

The misdemeanor probation office is also located in our buidling, which is one of the main reasons that I have been running into so many former clients. In any event, I can always tell when it is report-day in the probation office, because there are empty double-deuce bottles of beer in our parking lot.