Friday, November 07, 2008


Arizona authorities have charged an 8-year-old boy with two counts of pre-meditated murder. This is so outrageous on so many levels, I don't even know where to begin. They interrogated an 8-year-old child (whose father had just been murdered) without an attorney or parent present. He is EIGHT YEARS OLD! Even assuming he did shoot and kill these two people, an 8-year-old child does not have the capacity to commit premeditated murder. Somebody, somewhere, please stop this insanity!


Tuesday, October 21, 2008


You know what is frustrating? When you spend forever arguing, begging, pleading, and using all your other tools of persuasion to get a prosecutor to give you a particular deal, but the prosecutor will only offer you X years. So, you go talk to your client and explain what the offer is, and your client yells at you, "Why you trying to give me X years?"


The Problems with Eyewitness IDs

The Dallas Morning News did a very interesting investigative series on the problems with eyewitness identification and how they were major factors in the wrongful convictions of 18 of the 19 DNA exonerees in Dallas County. It is a MUST read for anyone involved in the criminal justice system. I wish it were a MUST read for everyone about to sit on a jury, but, sadly, that is not to be.

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One Xanax Pill

Update: Morning of trial and super-longshot motion to suppress . . . prosecutor agreed to recommend year and a day with the statement that the defendant's violation was de minimis and make no further argument on sentencing and we could argue for an exceptional downward sentence (one below the minimum under the sentencing guidelines) . . . I recommended the client take the deal . . . we asked for 90 days (minimum under the guidelines was year and a day) . . . judge gave him . . . 90 DAYS! Woohoo!


Possessing one Xanax pill without a prescription should not get you a year and a day in state prison no matter how many prior felony convictions you have. Also, it does not make me feel better when a prosecutor tells me that he wishes he could do something better for me, and that he feels bad that he can't do better. If you wish you could do something better and you feel bad that you can't do better, then DO SOMETHING BETTER!

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Wednesday, September 17, 2008

Why Just Having the Right to a Jury Trial Matters

Recently, I had a jury trial that reminded me why having the right to a jury trial matters, and why it is blatantly unfair that juveniles do not have that right, and yet their convictions from juvenile court can count significantly in sentencing decisions for crimes they may commit as adults.

My client was charged with stalking. I don't want to get into all the details, but I will say that, based on my interpretation of the stalking statute, I did not believe my client was guilty. Even assuming all the facts as laid out in the police report were true, I did not believe that my client committed the crime of stalking under any reasonable interpretation of the stalking statute. In Washington, this allows us to file a motion before trial, arguing that the charge should be dismissed. For the purpose of the hearing, you concede that everything in the police reports are true, but say that all of that information is insufficient to prove the crime charged. So, I filed that motion. The judge and the prosecutor each had their own different but equally unreasonable--in my opinion--interpretation of the statute, and so my motion was denied. My client was disheartened, but I told him I still thought we should win in a jury trial.

So, we went to a jury trial. This time, I made essentially the same argument in a motion to dismiss after the state rested its case. My legal argument was the same, but the judge this time was deciding whether the evidence actually presented at trial--as opposed to what the police reports said--was sufficient for any reasonable jury to convict my client of the crime. Again, I made my argument, and once again, the prosecutor had his unreasonable interpretation, and the judge came up with a strange interpretation of the evidence to go along with his strange interpretation of the law, and denied me again.

And so, I was left to argue the law to the jury. I had not disputed any real fact presented by the state. I gave a 5-7 minute closing argument. I just wrote the key words from the definitions in the statute and explained why, no matter what they thought of what my client did, they could not find that what he did was the crime of stalking. I was, essentially, making the exact same arguments on the law that I had made to the judge to the jury. The prosecutor made his arguments about why what my client did fit the statute and he argued his interpretation of the statute.

The jury deliberated for about 45 minutes, and found my client not guilty. This, despite the fact that the victim of the alleged stalking was a police officer.

When asked by the prosecutor afterwards why they acquitted, they said that the definitions made it pretty clear that what my client did wasn't stalking. A few days later, a friend of mine told me that a woman she knew had been on my jury, and that she had said that it took them a while to vote on who the foreperson would be, but that the "not guilty" verdict was easy.

And yet, if my client, like a juvenile, had no right to a jury trial, he probably would have been found guilty. He may have won an acquittal on appeal, but that likely would have been after he had done at least a significant amount of his probation and probably all of his detention time. Sometimes, even when your whole case is about a correct interpretation of the law, you need to have 12 citizens who can read two or three definitions, put them together, apply them to the virtually undisputed facts, and say, "not guilty." Sometimes, you need the jury to tell the judge that his interpretation of the law is wrong.

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Thursday, September 11, 2008

Long time, no blog . . .

Yeah, I know you've heard that before. I apologize. Circumstances have conspired against me. So, here's an update:

I have moved from juvenile court to adult felonies. I was really torn when I was asked to make the move. It was considered an advancement in the office, but I had really grown to love juvenile work. I missed being able to do jury trials (and having my clients have the RIGHT to a jury trial), but I knew I would miss the kids. So far, though, I am happy where I am. I have been back in front of a few juries with pretty good results so far.

I am still busier than ever--the life of a public defender. And things at my office are far from perfect. But, what has inspired me to get back into blogging is what is going on at my old office in Dallas. They are really suffering. They are being messed with in the extreme by the political forces in the county, and good, experienced public defenders are quitting because they don't believe they can meet their ethical obligations to their clients under the quota system that has been imposed there.

My thoughts go out to all my former colleagues there in Dallas, whether they have chosen to leave or are trying to stick it out. I don't know what I would do if I were still there. On one hand, I respect those who have quit because they do not believe that they can fulfill their ethical obligations to provide zealous representation under the overly burdensome caseload standards that have been imposed. On the other hand, I respect those who are staying because they know that good, ethical attorneys need to be there to represent the indigent accused. I wish them all the best and hope that changes will be coming. (For more information about the situation in Dallas, check out Grits for Breakfast. As per usual, he is all over the issue.)

Hopefully, it won't be another year before my next post!

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Tuesday, June 19, 2007

Kiddie prison post coming soon . . . and that Duke thing

I took a fascinating tour of three of the state's juvenile institutions last week, and I am working on a nice, long post about it all. The short story is that they weren't as bad as I thought they would be, but still not someplace we should be sending kids except in extreme circumstances. In the meantime, check out David Feige's (of Indefensible) spot-on analysis in Slate of why disgraced Duke prosecutor Mike Nifong's disbarment is a "freakish anomaly" rather than a precedent for the criminal justice system.

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Monday, June 04, 2007

18 Years Later, Tiananman Square Remembered

This is a photograph of a candlelight vigil in Hong Kong marking the 18th anniversary of the Tiananman square crackdown. China still remains an oppressive regime that regularly violates the human rights of its citizens. But hey, they make great trading partners!

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Thursday, May 31, 2007

Trial Frenzy

It seems like I was here for months before I finally tried my first case. I had a couple go to the brink of trial, only to be pulled back by a last-minute offer too good to turn down. Then, finally, one trial. A couple months later, another. And now I am preparing to go to trial for the fifth time in seven weeks--my second sex case in the same time period.

Trial is one of those experiences that is simultaneously exhilerating and exhausting. Nothing gets me revved up like a trial. Nothing gives me butterflies or keeps me up at nights like a trial. Trial keeps me in a state of hypervigilance. You have to pay attention to everything that's happening in the courtroom while processing how what is being said affects your case, and thinking about how you're going to respond to what was said, and all the while remembering when to appropriately object, and when not to object even if you properly could because you want the evidence to come in, and, well, you get the picture. Exhilerating and exhausting.

And it really doesn't matter if it's a case you think you can win or one you have no hope of winning. At least not to me. For me to really be prepared for trial, I have to get myself in a place where I believe that I can win. I have to believe that if I do everything I possibly can, as effectively as I can, that I can win the case. It's the only way I feel I can be sure that I give everything I have even in a case that, viewing it from a dispassionate distance, I would realize I have no hope of winning. So, when the case is over, it is just as crushing to lose a case that was a loser all along as it is to lose one that I thought I could win, because I got myself to a place where I thought I could win it, no matter what. Of course, winning a case tends to create a bit of delirium of its own. But win or lose, the overwhelming feeling at the end of a trial is exhaustion.

Unfortunately, there's no time to rest. Because while I was in trial, more new cases have landed on my desk, and, oh yeah, the trial date on that other case is now a few days closer with nothing having been done, and there are 15 messages on my voice mail, and the beat goes on.

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