a public defender

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I’ve always been fascinated with legal terms, phrases and concepts. But then again, I’m a geek. Most people that come into contact with the legal system are not (read: defendants and jurors).

So why is everything that we say in a courtroom so confusing…so obstructionist…so difficult to listen to and understand?

Over the last few years, reading transcripts, watching trials, being on trial, talking to clients, I’ve become more and more convinced that most of the things that come out of lawyers’ and judges’ mouths are superfluous.

Jury instructions are long, painful, meandering and – above all – repetitive. Plea canvasses are meaningless. Questions to witnesses are drawn out and even those on direct are often longer than the responses elicited.

Limiting instructions, in my opinion, are the worst offenders. I’ve often seen jurors’ eyes glaze over or turn quizzical when a judge tells them what for absurd limited purpose they can consider the testimony they just heard.

It’s a hard habit to break, though. We learn all of this in law school, from our professors and from reading cases. Both those sources pride themselves in their expert use of “legalese” and, if you went to law school recently enough to remember, law students often pride themselves (in a self-deprecatory fashion) on their mastery of legalese and use of legal-sounding phrases in real life.

I catch myself talking to clients in legalese sometimes – and I know I am doing it when they start robotically nodding their heads, a sure sign they don’t understand a damn thing I’m saying.

Briefs are the same – wherefore; in the instant matter; it is of no moment, heretofore…heretofore?!? WTF is that?

Who the hell speaks like that but lawyers? Who writes like that but lawyers? So why do we keep doing it? Our lives – and our jobs – would be made so much easier if we were to dispense with the legalese and stick to plain English. Write stuff that everyone can understand. Present evidence in ways that the non-lawyer can follow. Ask questions during a canvass that a person actually has to think about and can answer truthfully, rather than respond by rote: Yes. No. Yes. Yes.

Of course, to institute such changes would shake some foundations of the system that haven’t moved in 300 years, but it’s worth a try – for your sanity, and most definitely mine. So will you swear with me, fellow bloggers, to abandon as much legalese as possible?

(That’s not to say that some people haven’t tried. Check out this list compiled by lawprof Eugene Volokh, or this website with a legalese hall of shame, or this 326-word sentence forming an adoption section of the Ohio code. For those completely confused by it all, here’s a glossary.)

You may have heard, you may not have. A Texas grand jury has decided to “no-bill” Joe Horn (no, not that Joe Horn). Prosecutors sought to indict Horn after Horn killed two men who were fleeing after committing a burglary.

Except it was not his own house. Wouldn’t you know it, such a thing is permitted in Texas. The relevant statutes are here. I’ll pare it down for you:

A person can use deadly force (as in this case) if he believes it is immediately necessary to terminate the trespass/burglary/robbery AND the property being taken cannot be recovered by any other means AND he has a reasonable belief that the third person asked him to protect the property. Actually, upon further reading of the statute, it seems that this last one is not a requirement. So, in Texas, you can kill someone you believe is robbing your neighbor without having the neighbor’s permission to protect his house. Don’t we all feel like men now?

Bennett thinks Horn [update: perhaps] met the requirements of the statute; I disagree. I’ll tell you why.

Let’s take the “immediately necessary” portion of the statute. Here’s why this was not immediately necessary: He was on the phone with police who were on their way to the scene.

“I’ve got a shotgun; you want me to stop him?” Horn asked the dispatcher.

“Nope. Don’t do that,” the dispatcher replied. “Ain’t no property worth shooting somebody over, OK?”

Horn was clearly upset by the dispatcher’s response.

“I’m not gonna let them get away with it,” he said. “I can’t take a chance getting killed over this, OK.”

Despite the dispatcher’s protects, Horn said “I’m gonna shoot! I’m gonna shoot!”

The 911 dispatcher warned Horn to stay inside at least a dozen separate times, telling him, “An officer is coming out there. I don’t want you to go outside that house.”

He did not heed that request. He went outside and shot the two men in the back – firing three shots. Police arrived seconds later.

They weren’t on his property, they weren’t coming to his property. He was in no imminent danger.

Let’s look at the other element of the statute, that he reasonably believe that the neighbors asked him to watch over their property. The statute reads “has requested”, not “would have requested”.

“I really don’t know these neighbors,” Horn said. “I know the neighbors on the other side really well … I can assure you if it had been their house, I’d already have done something.”

Sure, today the neighbors may be glad (or perhaps not), but the question is did they give him permission at the time? Seems not to be so.

Then there’s the unfortunate matter of race. Both victims were illegal aliens of the hispanic persuasion. Horn is white. Harris County is predominantly white. I wonder what the makeup of the grand jury was?

[As an aside - where are you, victims' advocates? Every news story is parading the fact that one of the victims here was a criminal. So if they're criminals their lives aren't worth the same as others'? That's what really, really annoys me about this...]

Others may disagree – and it may seem incongruous coming from a defense attorney – but I don’t care. I don’t like the castle doctrine and I’m even more leery of using deadly force to protect property. I’ve always had trouble with this legal quirk and I always will.

As the police dispatcher said, no property is worth taking someone’s life and certainly not in cold-blood like Horn did.

I wrote and rewrote this last sentence several times as I tried to sympathize with Mr. Horn, just as I do with a majority of my clients. Don’t get me wrong, I would defend him to the best of my ability, but I’m not going to like him or feel bad for him.

Perhaps I’m just blinded by my hatred for this doctrine, but I can’t find it within myself to see his point of view. Maybe some other day, but right now I can’t. If that makes me a bad person or bad lawyer, so be it. What a slap in the face to the justice system and our notions of due process.

Alternative title: “Our standards are so low”.

Remember David Pollitt? [Previous posts here, here, here and here] Yeah, he’s the guy whose release from prison after maxing out from his sentence had his rich neighbors in an uproar. They didn’t want him living in their cul-de-sac, so they staged protests and feverishly dialed into “Idol Governor”, simultaneously pressing 0 for the operator (I guess 1 for complete abrogation of the rule of law and 2 for abandonment of common sense weren’t enough. They went straight for the operator Governor).

So the Governor, as any good Governor would do, stepped in and asked the chief prosecutor attorney general to intervene to see “if we could have this here guy locked up longer than his sentence”, because well, “I’m the Guv’nor dammit and I should be able to”^.

Thankfully, the only person who could actually make Mr. Pollitt go back to jail remembered that there’s something called the law, which is written in these things called books, to which we do something called follow.

Judge Susan Handy was rather skeptical of the legal basis for this “request” from the Governor and reached back into obscure legalese to pull out a rarely heard term called “Illegal”. Never heard of it.

Anyway, whatever this “illegal” action was, it was coupled with some other bizarre phrase known as “standing”. I guess if you aren’t standing, you can’t do something illegal. My head is spinning.

[insert deafening silence, followed by sound of crickets chirping]

So. The point of this nonsense post is that this past Thursday was the 50th Anniversary of Law Day. Judge Handy received an award from the New London County Bar Association. In keeping with the tradition that lawyers are the most uncreative people on Earth, who have an affinity for campy, cheesy names, the award was called the Liberty Bell Award. Because, I guess, someone rang Liberty’s bell.

“I am both humbled and, I have to say, completely overwhelmed, to receive an award for simply doing the job you entrusted me to do,” said Handy, who was appointed to the bench 15 years ago and serves as presiding judge for criminal matters in the New London judicial district.

Let’s be clear: this post is not about Judge Handy at all. She obviously did the right thing. What disturbs me is that doing the right thing now leads to awards and needs to be recognized. How skewed has our notion of justice become that a judge who follows the law and does the most obvious thing has be to feted.

“Let’s imagine if Judge Handy had not ruled as she did,” [Chief Court Administrator Judge Barbara] Quinn said. “A man who had completed his prison sentence would have been unjustly held. The neighbors and some politicians would have rejoiced, along with many members of the public. I would submit to you, however, that the damage to the constitutional rights of every member of the public would have been shaken to the core.”

Why must we imagine? It should be unthinkable that she would rule any other way. This should have passed silently in the night – yet now we have to beat it over people’s heads that she did the right thing.

Congratulations, Judge Handy and I hope this keeps giving you the courage to do the right thing. What worries is me is now I don’t know how many judges would have done the opposite.

^Obviously she did not say that. I don’t know what she said. That was an attempt at humor.

This job is tough enough as it is. The law itself is not kind to criminal defendants and those that mount their defense. If that were the only thing we had to struggle against, it would be an uphill battle. When you throw unreasonable prosecutors into the mix, however, it just becomes exasperating.

Every criminal defense lawyer knows what his case is worth. We all know what we would accept in order to resolve a case. After all, plea bargaining is 94% of the criminal justice system. So why do some prosecutors not get it? Why are some so damn difficult to work with? They must know what their case is worth. So why is it easier to make deals and settle with some prosecutors, when oftentimes, with better facts for the defendant, the prosecutor is just so damn reluctant to make a deal?

I couldn’t tell you the number of hours that have been wasted litigating stupid, small issues. Don’t we all have something better to do? Do 6 lawyers need to litigate a case where 120 days of incarceration is at stake?

The one “rationale” that I get from these bullheaded prosecutors over and over again is that it would “open the floodgates”. “Well, if I give your guy that deal, I’ll have to give it to everyone.” Really? If you give the guy with the simple possession charge 6 months suspended you’ll have to give the same offer to the triple murderer? Really? Everyone?

No, I think not. It has nothing to do with the floodgates. It has to do with a lack of knowledge of controlling caselaw and a failure to recognize the weaknesses of your case. Perhaps there’s an ego trip hidden in there somewhere. I’ve found that the easiest prosecutors to deal with are the ones that have been around forever. Those that know how the game is played. As for the rest… I don’t know. I have just one question:

Do we have to try everything?

Life, A-D also bemoans the lack of reasonable prosecutors.

It seems like every month or so, one of these posts makes the rounds [that's five already; six if you count this. There's room for two more in my phrase. Who wants to step up?] of the blogosphere. Can the blogosphere survive yet another year?

So, really. Is the blogosphere stagnant? Can there be new blogs? Will there be new blogs? Who gives a rat’s ass?  Oops, how did that get in there?

I mean, besides someone like Kevin O’Keefe of lexblog – who, you know, runs a business off of blogs – why do other bloggers care? Shouldn’t the question be: has readership stagnated? By all accounts: no. Readership has increased and will continue to do so as blogs become more “mainstream”. But why should I get all in a tizzy about whether the rate of new blogs has leveled out.

FTW.

Update (not a real one): This beast grows faster than I can keep up! More here, here and here! I need a new sentence up there. I’m not even going to try and send trackbacks to all of them.

Maybe I’m naive, but I thought it – what we do, this side and the other – was about justice. Righting wrongs. Then why, for some, is it about winning and losing?

As I sat in court today, a young man came up for sentencing. I hate watching these sentencings, because they’re sad affairs all around. The young man, I say young man because he couldn’t have been more than 20, was pleading guilty to some serious offense. I don’t know what it is that he is alleged to have done, but there he was.

As the judge went through the canvass, taking special care to make sure he understood the parameters of the plea bargain (it was a right to argue), it struck me that this young fellow was going to see nothing but the inside of a prison for the next 15 years. 15 years just gone, finished, written in stone. I can’t imagine being in his position (nor do I ever want to be), knowing that one act you committed, one moment of weakness, has resulted in your being banished out of sight and out of mind for the next 15 years. The world will move on by and you’ll be left there, stuck in a vacuum. The things you will not see, the air that you will not breathe,  the freedom that you have squandered away. Is there regret? Is there pain? Is there sadness? It broke my heart.

Sure enough, as he walked away, a tear rolled down his cheek.

It’s just sad.

This is my blog. It is a personal blog. I write mainly about criminal law, but that doesn’t change the fact that this is a personal blog. I own the blog, I pay for it. I will rant; I will scream and yell if I feel like it. I do not have to be rational or logical or correct. Please read the legal disclaimer/privacy policy if you’re unsure of anything.

I also recognize that I can be wrong. Very often. Which is why, unlike some other blogs, comments are always open and I rarely, if ever, delete comments.  You’re free to disagree with me and more often than not I will respond in the comments.

This is not directed at any one individual in particular, I just thought it prudent to remind my readers in light of the sensitive and controversial topics that have been covered here over the past few months.

If you’d like a fair and balanced news report, try these sites.

Thank you for reading and I hope you continue to do so.

Yes, this was a rant.

Last week I appeared in a court other than the one I’m attached to, to represent a client. That appearance marked the third time in just over a year that I’ve heard this line: “This is how we do things here“.

This really irks me. One, I don’t care. Two, it is symbolic of a deep-seated institutional malaise in some courts. Third, I don’t care.

It reveals a disturbing parasitic relationship between the prosecutors and the defense bar in a particular court; one where the prosecutors usually have the upper hand and the defense bar usually goes along, so as not to “upset” the State.

In those situations, I generally get the sense that I’m going to make things more difficult for the lawyers that practice there regularly and the prosecutors will transfer their anger at me to them and this, of course, the defense bar doesn’t like.

It makes me very uncomfortable and a little sad.

Sometimes it feels like that’s what our clients are: a runaway train, wrong way on a one-way track. You try your best: you plead, you exhort, you beg; yet they have their own wisdom, their own logic, their own reason for doing things. Doesn’t matter that you’re an attorney and doesn’t matter that you’re trained to help them. Clients will do what clients want to do.

It’s disappointing and frustrating. We dedicate our lives, nay, our careers to those that no one else will help. We fight with them, we get angry with them, but we do it all for them. Not because we’re better; rather because we might as well be them.

PD Dude is experiencing this and I completely understand. You second guess yourself: “Could I have been more convincing? Should I have explained it better? Did I do something wrong?” It’s only because you care.

The lesson is never to give up, never to be defeated, but to know that you tried when not many others would.

For your musical enjoyment:

[youtube]http://www.youtube.com/watch?v=psP1bKKEtHg[/youtube]

Ever since Steve posted his opinion on what would be sensible registry and residency restriction legislation, I’ve been thinking about what I’d like to see implemented. Today, I have a few ideas.

1. Mandatory risk-assessment: Every inmate shall have his case presented to a risk assessment panel no later than 6 months prior to his or her release date. The panel shall consist of previously appointed individuals from the board of parole.

2. Criteria to be examined: The age of the offender; the age of the victim; degree of kinship (if any); prior sexual offenses; length of sentence; ties to the community; job experience; potential for re-employment; programs availed of during incarceration; allocution; victim statement, if any; conditions of probation.

3. Statutory exemptions: Offenders convicted of “statutory rape” where the sexual contact was consensual are automatically exempt from any registration and registry requirements.

4. Risk level scores to be assigned (tiered system): The risk assessment panel shall assign a risk level score to each offender. The scale shall be as follows: 1 – low level offender; 2 – mid level offender; 3 – high level offender.

5. Low level offenders shall be required to register for only 2 years, but the registration will not be publicly available and shall not have any residency restrictions imposed on them.

6. Mid level offenders shall be required to register for 5 years and will not be permitted to reside within 1000 feet of schools or playgrounds. Mid level offenders will also not be permitted to work where they will come in contact with minors under the age of 16.

7. High level offenders shall be required to register for 20 years and will not be permitted to reside within 2000 feet of schools or playgrounds. These offenders shall also not be permitted to work where they will come in contact with minors.

8. All offenders shall be permitted to return to their existing residences if they have resided there for more than 5 years prior to the date of the offense, unless the victim of their offense lives within 2000 feet.

9. The registration of all mid-level and high-level offenders shall be available to the public.

10. Requirements for obtaining information: Any member of the public seeking information on mid-level and high-level offenders shall be required to provide a name, valid address and proof that a child under the age of 16 resides in their home.

11. The Department of Corrections shall be charged with the task of ensuring that all sex offenders are given adequate training in vocations that does not require contact with minors.

12. Parents will be charged with the task of educating their children about not talking to strangers and not getting into strangers’ cars.

13. Penalty for misuse: Anyone using publicly available information to threaten, harass or injure a released sex offender shall be guilty of the offense corresponding to their actions, or a Class D felony, whichever is greater.

Ugh. I had more, but I received a phone call and now I’ve lost my train of thought. Anyway, what do you guys think? A little crazy? Too liberal?

Whither (my new favorite word) parental responsibility? First, a stripper for your 16th birthday [ht: Crimlaw] and then a Glock for your 8 eight year old. Yeah. A .40 Glock. Apparently, the eight-year old needed "protection", so his father gave him this loaded handgun to take to school. When the police retrieved the weapon, it had eight rounds in the magazine and a live round in the chamber.

How humongously stupid do you have to be to give an eight-year old a loaded weapon to take to school? What does an eight-year old need protection from? Cooties? The bogeyman? Well, guns don’t work against either.

Moron.

I love these little anecdotes that you can find all over the web and on blogs, about "overheard at court" or "stupid things my clients say". What I also love is standing on the steps to a courthouse and listening to people vent. It reinforces my faith in humanity.

So yesterday, I’m on the steps (there are only 4) and this unidentified man was sitting there smoking a cigarette. Apparently, he had a heroin addict landlord who gave him keys to the house, but yet had him arrested for burglary and larceny. Obviously, our man wasn’t too pleased about it. To top it off, it seemed that the complainant hadn’t shown up to court on a previous ocassion – not that he’d have to -  and after the usual "this is bullshit, the system is screwing me" (which I do agree happens), he said "if he doesn’t come to court three times, I’m going to have the charges thrown out. I know my laws, I’ve been in jail before."

Does anyone else have a similar law in their jurisdiction? Complainant doesn’t "show up to court" three times in a row and the charges get dismissed?

He then mumbled something about warm juice.

Furthering the series of posts on "Advice to Clients", comes this gem via PD Clerk, entitled "Some advice from your Public Defender". Choice quotes include:

You have the right to remain silent. So SHUT THE FUCK UP. Those cops
are completely serious when they say your statements can and will be
used against you. There’s just no need to babble on like it’s a drink
and dial session. They are just pretending to like you and be
interested in you.

On one of the common complaints heard from PD clients:

Don’t think you’ll improve my interest in your case by yelling at me,
telling me I’m not doing anything for you, calling me a public
pretender or complaining to my supervisor. This does not inspire me, it
makes me hate you and want to work with you even less.

On not being careless:

For the morons: Your second grade teacher was right – neatness counts.
Just clean up! When you rob the store, don’t leave your wallet. When
you drive into the front of the bank, don’t leave the front license
plate. When you rape/assault/rob a woman on the street, don’t leave
behind your cell phone. After you abuse your girlfriend, don’t leave a
note saying that you’re sorry.

If you are being chased by the cops and you have dope in your
pocket – dump it. These cops are not geniuses. They are out of shape
and want to go to Krispy Kreme and most of all go home. They will not
scour the woods or the streets for your 2 grams of meth. But they will
check your pockets, idiot. 2 grams is not worth six months of jail.

On defenses:

"I didn’t put it all the way in."  Not a defense.

"All the money is gone now."  Not a defense.

"The bitch deserved it."  Not a defense.

"But that dope was so stepped on, I barely got high." Not a defense.

"She didn’t look thirteen."  Possibly a defense; it depends.

"She didn’t look six."  Never a defense, you just need to die.

And finally, on "How can you defend those people?":

For the idiots who ask me how I sleep at night: I sleep just fine,
thank you. There’s nothing wrong with any of my clients that could not
have been fixed with money or the presence of at least one caring adult
in their lives. But that window has closed, and that loss diminishes us
all.

Couldn’t have said it better myself.

They sicken me. I’m sorry, but they do. When I pick up a copy of the latest Law Tribune or similar legal publication and see High Partner of Major Law Firm felicitated for taking precious time out of his/her busy busy schedule to fight for an innocent man, for free no less, I want to vomit. The Bar Association office has a framed list of attorneys who did pro bono work in the past year.

Why do we do this? Why do we give out awards to people who make ungodly amounts of money, doing mostly boring work anyway, for some "charity" work that they have done, mostly only to comply with the Rules of Professional Conduct.

No one ever gives awards to the Legal Aid lawyer, or the countless hard-working public defenders. So what is it about the big corporate attorney who provides pro bono representation that is so special? [Note: I'm not referring to the solo practitioner who takes on pro bono work.]

I’m not seeking recognition, or awards, or even a pat on the back. I do what I do, at serious financial loss, because I love my job. I love representing the indigent and I won’t stop doing it.

It is repugnant, however, for our profession to honor someone who didn’t make that decision, who didn’t dedicate their professional careers to that cause, the one time they do it out of obligation. If you want to give pro bono awards, they should be given every year to every single public interest lawyer in the state. Not the High Partner.

Thanks a lot, big lawyer guy – the indigent population was shit out of luck before you decided to come along.

This post has no point – I just wanted to rant.