Thursday, August 31, 2006

Internet Traffic

If you have a blog and you aren't using something like SiteMeter to check your referrals (how people are getting to your blog), you are missing out. Today, I saw that someone got to my blog by searching, "will i go to jail for my third DWI in ny?" I'm no New York lawyer, but I would guess that the answer to that question is "yes."

I still get a lot of hits from people searching about "animal sex" as a result of this long-ago post.

A lot of people end up here when they do a search for something related to Nancy Grace. If you've been reading me long enough, you know I'm her biggest fan! One particular Nancy-related search was something like, "does nancy grace have a boyfriend?" I hope that person was scared away from her by some of my posts!

And, finally, there are apparently a lot of people doing searches for Mickey Sherman, who I talked about here. Interestingly, I read that he is the lawyer for the man who is accused of murdering the neighbor who allegedly molested his daughter.

New Voices in the Blogosphere

I've added a couple new links worth checking out. Thanks to PD Investigator for bringing Anita Witness to my attention, a great blog by a criminal defense investigator. Skelly found this new defense attorney blogger based out of Idaho--Assuming Arguendo. Just a couple posts there so far, but it seems promising.

Update: One more: Accident Prone, by a lady defense lawyer in Minnesota.

You're E-Fired!

So, the folks at Radio Shack decided they needed to lay off about 400 workers. They decided the best way to deliver the news to each worker was by sending them each an e-mail message saying that their job had been eliminated! I wonder what genius in their human resource department came up with that brilliant idea. But, who am I to judge? According to company officials, everything went very smoothly.

Wednesday, August 30, 2006

What is Justice When a Parent Kills His Child's Molester?

According to this AP report, a Connecticut patent lawyer has been arrested for breaking into his neighbor's home and stabbing him to death. The accused had apparently been told by his wife that their 2-year-old daughter had indicated that the neighbor had molested her. I have heard a lot of people--even prosecutors--say that if someone molested their child, they would kill him. Although I have no children of my own, I can certainly understand that desire. But, how should the law respond to something like this? The man who was killed in this real-life situation clearly has no way to defend himself against the molestation allegations. But for the purposes of my question, let's just assume that those allegations were true. Should he be convicted of murder? Manslaughter? What should his punishment be if he has no other criminal record? I'm especially interested in what my favorite prosecutor bloggers like Tom and Sarena think about this.

Friday, August 25, 2006

Move the Docket

Public Pretender laments the oft-heard judicial refrain about how public defenders aren't "moving the docket." Although the image of public defenders in the press is more often one of underpaid, overworked lawyers who just try to plead all their cases out without concern for the individual needs of their clients, my experience has been that public defenders must constantly fight against the not-so-subtle demands of judges to "move the docket." To be sure, not all judges are like that. When I was in family violence court, I probably set 50-75% of my cases for trial. My judge never complained once. And it wasn't uncommon for that court to have anywhere from 3-4 jury trials a week, along with 1-2 bench trials on Friday. This judge understood two things about family violence cases: 1) a conviction for a family violence assault was about the worse misdemeanor conviction you could have on your record; and 2) these cases were very often "he said-she said" cases that meant defendants had a good chance of an acquittal. In my year-and-a-half in that court, I'd guess that about half of the cases I set for trial were dismissed, about 25% of them pled on the day of trial, and the other 25% actually went to trial. Of the 25% that went to trial, about 75% resulted in "not guilty" verdicts. When you have statistics like that, it is hard to argue that you are setting too many cases for trial. On the other hand, one of my former colleagues had a judge that constantly complained to her superiors that she was setting too many cases for trial, despite the fact that she was winning 75% of them. My response to that judge would have been something along the lines of "Which clients who were found not guilty by a jury after exercising their constitutional right to a trial would you suggest that I should have simply pled out?" And, of course, none of that even touches on the issue of it being the defendant's decision whether to go to trial or accept a plea. Because, god knows, there has never been a case where the public defender advised her client that it would be prudent to accept the prosecutor's reasonable plea bargain, but the defendant insisted on going to trial, as is his right. Nope, it's always those damn public defenders not "moving the docket."

Thursday, August 24, 2006

Newsflash: Juvenile Work Can Be Really Depressing

So, here is the paradox of juvenile law. On one hand, the juvenile court is designed to intervene in a person's life at a time when they are still being formed--to give them structure and guidance, to teach them about the serious consequences of illegal behavior, to set them on the right path toward a responsible and productive adulthood. It is not all about punishment. It really is supposed to be about rehabilitation. And when that type of thing works, it feels really good. But then you have the kids who just don't seem to have any chance of any kind of future. They come from a horrible family situation--a combination of poverty, drug/alcohol addiction, lack of education, neglect, and abuse. They live in an area flooded with meth. They have a variety of learning disabilities, mental illnesses, and/or behavioral disorders, and have a fairly low IQ. They keep repeating the same or similar illegal behavior, and never seem to be able to follow through on probation requirements, so they are repeatedly sent to juvenile detention. I look at one of these kids, and can't help but think, "He's only 16, and his life is basically over." I can never imagine this child growing up into an adult who is able to function in society. Do you have any idea how depressing that is? To think that a child has no chance to make it in the world? When a child dies--whether from illness, accident, or violence--it is often so horribly sad because you feel like that child never had a chance to do so many things in life. To experience things, to learn things, to contribute to society. I feel a similar sadness about some of these kids. Only, instead of having no life at all, they will have a life in and out of jail, rehab, substandard housing, and who knows what else. Certainly, I had adult clients that were just like these kids, just a few years down the road. But, somehow, with them, it was different. I could lament the fact that their childhood had been bad, and them still tell myself that, ultimately, they made a choice to break the law, and that they had to take responsibility for it. But with these kids, I feel like, somehow, we should be able to fix it. Kids represent potential. And feeling like these kids have none is downright sad. Writer Warns Men Not to Marry Me and My Kind

Michael Noer is a loser. Michael Noer is an asshole. Michael Noer is a son of a bitch. Michael Noer, in case you didn't know, is the author of the recent article "Don't Marry a Career Woman." I could say a lot more about Michael Noer, but Rebecca Traister at Salon already did, and she's a professional writer, so she naturally did it better than I would.

Wednesday, August 23, 2006

A Brutal Lesson Learned

Today, I withdrew from the case where I represented a youth who has allegedly been abused by her parents. Among other things, the parents, in an ironic twist in which I choose not to appreciate the irony, threatened to sue me for defamation, accusing me of coercing their daughter into making false abuse allegations against them. There are other reasons behind the withdrawl, but the whole experience just makes me ill. I wish I could just wash my hands of it all and not care anymore, but I have a feeling it will continue to weigh on my mind. The experience was good for one thing, though, and that was to get some insight, I think, into what a prosecutor feels when they sincerely believe they are working to protect a child from abuse. I felt like the white knight, riding in to protect this child from her abusive parents. I was going to save her, to be the one person who stood up for her in the system, and fought to give her a chance at a real life in a home free of neglect, substance abuse, and physical and emotional abuse. Then, the whole thing turned on a dime. She didn't want to fight anymore. I was the bad guy. I was the "fucking bitch" who was conspiring to destroy her family. I suppose it was a lesson I needed to learn, but it's been brutal, and I hate it.

Tuesday, August 22, 2006

Quick Stuff

Work is super-busy at the moment, so here's a quick summary of stuff to check out:

*The TV critics at Salon don't like Nancy Grace any more than I do. Well, maybe a little more, but not much.

*Sarena Straus at Prosecutor Post-Script answers my question about what happens to people who make up allegations of child sexual abuse. The gist: pretty much nothing, although she wishes more could be done.

*Grits for Breakfast is back from vacation!

*The DVD of Veronica Mars, Season 2 is released today! Go buy it. And buy the first season, too, which is even better. And then, be sure to watch the premiere of the season three on the CW on October 3. Don't be scared away by thinking it's just a teenage show. It is not. It is smart and dark and twisted and funny and you will love it.

*Speaking of TV, Television Without Pity has been unveiling their lineup of new fall shows they will recap. I like to use it as a guide for what to watch in the new season. So far, they've got Studio 60 on the Sunset Strip, Six Degrees, Heroes, Ugly Betty, Kidnapped, and Friday Night Lights.

*And finally, an update on this cryptic post of mine from a little while back. She didn't tell social services anything. I found out yesterday that they only interviewed her while her mother was sitting right there with her. I'm no expert on interviewing potential victims of child abuse, but that strikes me as incompetent. I'm pissed.

Thursday, August 17, 2006

Wow--JonBenet Murder Finally Solved?

I was in court or client meetings from 8:30 - 5:00 yesterday, so I totally missed this news until I got home, but I'm sure everyone else knows by now that a suspect has been arrested and charged with the murder of JonBenet Ramsey. Wow. It was interesting last night watching all the various media personalities and forensic and legal talking heads backtracking on their years-long demonization of the Ramseys. I saw Cyril Wecht, famous/infamous forensic pathologist, this morning still "extremely skeptical" about the man's guilt. I'm sure the fact that he wrote a book all but indicting the Ramseys for accidentally killing JonBenet in the midst of a twisted sex game has nothing to do with his skepticism. I was also struck by the quote from John Ramsey, where he refused to engage in media speculation about the man's guilt, but wanted to allow the justice system to run its course. How odd it must be for him to now watch the media declaring this new suspect's guilt when they did the same thing to him so many years ago. No one who brutally murders a young child the way JonBenet was brutalized should get away with it, and so, I truly hope that the prosecutors and police have finally gotten their man.

Wednesday, August 16, 2006

Dallas Evidence Warehouse Sort of Falling Apart

I can't put my finger on it, exactly, but something about this article in the Dallas Morning News about the Dallas Police Department evidence warehouse being in such bad shape does not make me feel good. I don't know if it's the tone of the article or the picture of the woman in charge of the place sort of smirking as she leans up against a stack of boxes of evidence or something else. It could also be the casual way they mention that the DNA evidence in a rape case that was destroyed when the air conditioning went out turned out not to make a difference in the case without explaining how, exactly, that is. But, it just seems like it's almost a lighthearted article about the fact that evidence in thousands of felony cases--including murders and rapes--could all be destroyed with one big rainstorm or if someone accidentally throws an incompletely extinguished cigarette in the general vicinity of the building. Oops. Gosh darn it, there goes all that evidence--what do we do now? Am I reading it wrong? Is it just the weird mood I'm in this morning?

The Alien Did It!

Skelly helpfully points out that there is an opening for a PD in Roswell, New Mexico. This reminds me of when I was first in family violence court back in Texas. The chief prosecutor in the court used to love to respond to a defense closing argument that talked about the possible ways an injury depicted in a photograph could have occurred other than by the defendant assaulting the complainant by saying something like, "I suppose it's possible that an alien could have come down from another planet and inflicted this red mark on the victim's arm!" I wonder if that argument would be as effective in Roswell.

Tuesday, August 15, 2006

My Connection to One of the FBI's Most Wanted Fugitives

The Houston office of the FBI has placed Jacqueline LeBaron on their list of most wanted fugitives (not to be confused with the FBI's Ten Most Wanted list). LeBaron is the daughter of deceased polygamist sect leader Ervil LeBaron, who died in prison and apparently left a hit list for his children and other followers to act on. What could this possibly have to do with me? Well, several years ago, when I was in my law school immigration clinic, I represented another one of Ervil LeBaron's daughters--he had something like 54 children from around 20 wives. Like many of LeBaron's children, she had been born at one of his Mexican compounds to one of his many Mexican wives. She had since come to the United States to be nearer to some of her siblings, and had married a U.S. citizen. He turned out to be a son-of-a-bitch who beat her and threatened both her and their infant son. So, she left him. The problem for her was that, even though her father was a U.S. citizen, she was not. You may be surprised to learn that being born to a U.S. citizen outside the United States does not automatically confer U.S. citizenship. If the U.S. citizen parent is your father, and your father is not married to your mother, then your father must "claim paternity" of you in some sort of legally recognized way before you turn 18, or else you lose your claim on U.S. citizenship forever. Since Ervil could not be legally married to my client's mother as he was already legally married to another woman, my client was pretty much screwed. After marrying her dirtbag husband, he had started the application process to get her residency and citizenship through him, but then, she had to leave him due to his abuse. The federal Violence Against Women Act provided a way for my client to continue to seek legal status in the United States by virtue of her marriage to a U.S. citizen, even though she was no longer with him due to his physical abuse. It was, indeed, a fascinating case. I remember reading the newspaper articles about her family, and reading a letter from an FBI agent supporting her application to the INS, talking about her good moral character, particularly in relation to her assistance in the investigation of the very murders that Jacqueline LeBaron and others were involved in. I remember her describing in her affidavit what life was like on the Mexican compound she spent a lot of time at, including witnessing the murder of one of her half-brothers by a cousin who was challenging him for leadership of the sect. Most of all, though, I remember being amazed at how intelligent, articulate, and emotionally together she seemed. She had gone to college on various scholarships and done very well. While she had married a man who ended up abusing her, she had quickly left him and taken her baby with her, despite her fears that it would mean her having to leave the country. I couldn't imagine how someone could grow up in the environment she did, and still manage to become a decent, relatively normal, and responsible person. But, she had, and I was truly inspired by her. I remember thinking at the time, that if I practiced law for 50 years, I would probably never have a case that had such a fascinating story behind it as this little VAWA immigration application that I managed to pick up in a law school clinic. And, more than seven years later, after two years of big firm civil work (including a fun little foray into the 2000 presidential election litigation), and five years of public defender work handling cases from driving with a suspended license all the way up to murder, I find that I was right. That case--helping that remarkable young woman--remains the most interesting case I have ever been involved in. I wonder what she is doing now, and whether she has heard the latest news about her sister. I hope she and her child are well.

Monday, August 14, 2006

Espionage Act Prosecution Should Scare Everyone

Public Defender Dude is understandably disturbed about a recent ruling in an Espionage Act case that seems to indicate that the government can prosecute anyone for disclosing classified information, even if the person who discloses it owed no duty to the government to keep that information classified. This would mean, for example, that any reporter who helped to break the Abu Ghraib story could be prosecuted and sent to federal prison for a very long time. The Espionage Act contains a requirement that the disclosure harm the interests of the United States, but, of course, revealing government wrongdoing can always harm our interests in the short term. But, what is harmful is the fact that the government was engaging in the wrongdoing in the first place, not that a whistleblower or a reporter brought the wrongdoing to the attention of the people, who have an absolute right to know when their government is breaking the law. This is very frightening, and I don't think PD Dude is unjustified in worrying that we our headed down the same road as Russia, China, and other totalitarian regimes that prosecute good, conscientious people for having the nerve to tell the people of their country that their government is breaking the law and lying to them about it.

Prison Sexual Abuse No Big Deal to 11th Circuit Court of Appeals

Mike at Crime & Federalism is understandably outraged over the 11th Circuit's conclusion that a prisoner who has been repeatedly forced to expose himself and masturbate in front of a prison guard has suffered only a de minimis injury, and therefore has not suffered a violation of the Eighth Amendment's prohibition on cruel and unusual punishment. Apparently, since the guard didn't cause any physical pain, and only made the guy masturbate a few times (and wrote him up on false disciplinary charges a few more when he refused), it's just not that bad. (**This case was in the pre-trial phase, so the court was assuming the allegations to be true for the purpose of resolving whether he could proceed to trial.) I wonder if this is something I could get my old pal Nancy Grace to be outraged about?

What the Devil Were They Thinking?

Please excuse the bad pun, but what the hell were the prosecution and the judge thinking when they decided that evidence of a defendant's Satanism was admissible at his trial for killing his infant daughter? Apparently, they weren't alleging that she was killed as some part of his satanic practices (in which case it clearly would be admissible), just that him being a Satanist made it more likely that he would kill his sick baby. Huh? Did I miss the part where this is nothing but propensity or character evidence? I don't know much more about the details of the case, but if they had a strong case without the Satanism evidence, why taint the conviction by throwing it in there? This seems like an act of desperation in a weak case. Nice to see the judge play right along. Unfortunately for them, an appeals court has overturned the conviction, which, frankly, seems like a no-brainer.

Friday, August 11, 2006

Not Having Insurance Shouldn't Get You the Death Penalty

A new public defender blog I've just discovered and added to my links, Public Pretender, writes about the terribly sad story from Minnesota where a man arrested for driving without insurance was murdered in the jail by another inmate. Apparently, the alleged murderer was a prison inmate who had been transferred to the local jail to face a charge of assaulting a fellow prison inmate. Strangely, it would seem that the powers that be at the local jail didn't think this merited him being segregated from other inmates.

Anything You May or May Not Have Said Can and Will Be Used Against You--But Not in Texas!

In Part 1 of my continuing series on how Texas law is actually more pro-accused than Washington law, I talked about the right to a jury trial in all cases, including juvenile cases. Now, I'll move on to an even more prevalent issue--the admissibility of custodial statements of an accused. When I first started reading the police reports in my cases, I would read about how the respondent (as they are called in juvenile cases) had been given a Miranda warning, then chose to answer questions, and admitted all guilt, and I would think, "Well, they can't use that." But, that was just my freedom-loving, Texas-trained legal mind working. I quickly learned that, in fact, anything my client said after that point can be used. In Texas, statements made as a result of custodial interrogation are inadmissible unless there is a written, knowing, and voluntary acknowledgment and waiver of Miranda rights, and the statement is either recorded or in writing witnessed by someone other than the interrogating officer. The statement can be recorded on audio or video and the writing can either be in the hand of the accused or written by someone else and signed by the accused. Now, if the accused testifies at his trial, then any prior statements he made (as long as they were voluntary) can be used to impeach him. But if he chooses to remain silent at trial, no statement that doesn't meet these guidelines is coming in. I think this is a great rule because you don't have to rely on the truthfulness of the officer to determine if the individual really did receive the proper warnings and waive them or to know exactly what the accused said. If it has to be recorded or in writing, there is very little room for dispute. In Washington, as you have surely already deduced, this is not the case. An oral waiver of Miranda rights, followed by an unrecorded, oral statement is perfectly admissible. This means that almost every motion to suppress a statement based on a failure to give Miranda will end up being a swearing match between the accused and the officer. Gee, I wonder who will win. And because these statements usually aren't in writing or recorded, the accused is forced to confront not what he actually said, but what the officer remembered him saying by the time the officer sat down to write his report. I don't think the Constitution requires anything more than the protection Washington provides, but I do think that the Texas rule is more effective in protecting the 5th Amendment rights at the heart of the Miranda case.

Next up in the series . . . whither the grand jury?

The Ups and Downs of Being a Juvenile PD

You know what is not fun about juvenile work? Standing in between a 16-year-old kid and his mother as they argue about whether or not he really missed his curfew two weeks ago, or if he was in later than the standard curfew time because he was working, or if he was just saying he was working when, really, he was with his friends, or, if she is just making it up because she's mad at him for not helping her with her social services paperwork so she can get her monthly check. And doing this all because the judge has given you all of 30 minutes to prepare for a contested hearing on the issue of whether the kid has violated his probation.

Earlier that day, I had spent a long time reviewing police reports and medical records in a rape case I was recently assigned.

And, my stomach is still tied up in knots about my "At-Risk Youth" client who is in desperate need of getting the hell out of her parents' house.

And then there was yet another phone call from a parent whose kid has a great case for trial, but he won't stop just being an all-around jerk to his parents.

This job is definitely a whirlwind.

Thursday, August 10, 2006

It Doesn't Happen Often

I've added a prosecutor's blog to my links section. Prosecutor Post-Script is technically the blog of a former prosecutor, but it is from the prosecutor's perspective, and what I've read so far is really good.

Thanks to Ken at CrimLaw for the tip.

Wednesday, August 09, 2006

The Inspirational Kennedy

Update: Professor Berman at Sentencing Law & Policy takes Justice Kennedy to task over his speech in this very thought-provoking post. He criticizes Kennedy for drawing on jury rhetoric while consistently voting to deny jury rights in the Apprendi line of cases, and says Kennedy "ought to get his own house in order before lecturing others." I can't say that I disagree with him on that point.
Original post:

No, I'm not talking about JFK. I'm talking about that other Kennedy who can inspire with his rhetoric--Supreme Court Justice Anthony Kennedy. Stop laughing at me--I'm serious! Slate's magnificent legal editor, Dahlia Lithwick, writes about Kennedy's speech to the ABA, and I'm inspired. I'm a sucker for all those speeches about how lawyers have changed the world for the better and how we lawyers of today need to do the same. You?

My Turnaround on Bill Gates

In my first year of law practice, I was doing antitrust work, and one of the fun, sexy things I got to do was follow the Microsoft proceedings. When the judge handed down his thousands of pages of findings of fact and conclusions of law, I read them all, and summarized them for the other antitrust attorneys in my firm. (And you wonder why I quit to become a PD?!?) Anyway, that whole experience left me with a less than favorable impression of Bill Gates. Quite less than favorable, actually. But when he and his wife go and do things like this, I can't help but love him. Is it crazy to think that his foundation--along with the generous donations of Warren Buffett--might actually completely revolutionize world health and save millions or billions of lives? I don't think so. It is breathtaking just to imagine.

Crossing My Fingers

I am crossing my fingers that my client who is meeting with social services will tell the truth about her parents. And I seriously don't know how people who do child abuse cases day in, day out, for years handle it. God bless them. Just one case and my stomach is in knots, and I was awake and have been completely unable to sleep since 3:00 this morning.

Tuesday, August 08, 2006

Bad Lawyer!

It is best not to show up to court drunk when you are scheduled to do closing arguments in a kidnapping case in which your client faces life in prison. It is also probably best not to agree to the judge's request that you take a breathalyzer test when you show up to court drunk. It is also probably best not to bring Josephine, the girl you just met at a bar, to court with you, and to tell the judge she is your ex-girlfriend Christine.

Monday, August 07, 2006

Scalia Rebuffs DeLay

I don't post a lot about politics that's not related to criminal justice issues here, but I just love the fact that Tom DeLay and his Republican cronies got smacked down by Scalia today in their effort to evade Texas's prohibition against replacing a withdrawn candidate on the ballot. FYI, the guy quoted in the article as saying, "Wow! That was quick." is one of my old law school pals and all-around great rabblerouser. Go Cris!

New Things Can Be Scary . . . And Good

I must admit that I was sort of nervous and unsure when I found out from my new employer that they wanted me to start off in the juvenile section. I've never practiced juvenile law. And I think it has sort of gotten the reputation as the red-headed stepchild of criminal law. You hear stories about the not up-to-snuff prosecutors being shipped off to the juvenile section. A lot of people seem not to even want to attempt juvenile work. But, I went into it with an open mind. And, I have to say it has been a nice surprise. One of the things I have always loved about being a public defender is having the opportunity to be the one person who stands up for someone when it seems that everyone is against them. With my juvenile cases, I really feel that way. Sometimes, it seems that these kids have no one. And when I talk to them, and explain to them that I am their attorney--not the attorney for their parents or their school or social services--for some of them, it seems to really mean something to them. Our "family/juvenile" section also handles non-criminal matters, and so, I've had the opportunity to do some other interesting things that I don't think I ever would have even attempted if I weren't here at the PD's office. I handled a couple of involuntary mental health commitment hearings. And in a couple days, I'll be representing several children who have been sued by their parents under the "At Risk Youth" provision of Washington law that allows parents to get court orders making their kids follow their rules. This is certainly something I don't think I would have touched with a 10-foot pole before I got here, but I'm already deep into the issues on one of these cases, and have the fire in my belly.

So, new things can be good. It's easy to be afraid to try them, but I'm glad I've been willing to walk out on that limb.

Sunday, August 06, 2006


*I've fiddled around with my links a bit--some adding, some deleting.

*Did you hear that Ken Lammers over at CrimLaw is becoming a prosecutor? At first, I thought my eyes were playing tricks on me. Then, I read is explanation, and I have to say I understand where he's coming from. His description of the blatantly unconstitutional funding of indigent defense in his state makes me ill. At what point do all the criminal defense lawyers just stand up and say, "We will no longer accept indigent appointments until the government agrees to provide reasonable fees such that we can provide the appropriate, zealous representation to our clients demanded by the Constitution." The problem is that there will always be the bottomfeeder lawyers--we all know they're out there--who will continue to take a high volume of cases for a low fee per case, and plead them out as quickly as possible, with no care or consideration for their constitutional obligations to their clients. And as long as the legislature and the judiciary allow such a system to continue, the good, dedicated lawyers like Ken--who end up earning less than minimum wage on their cases because they put the actual amount of time needed to represent them properly--will continue to be forced to walk away.

*Blonde Justice reviewed Indefensible's new book, appropriately titled Indefensible. I ordered my personally signed copy a couple weeks ago, and I can't wait to read it.

*I'm dying to post about something I just discovered is a crime in Washington, but I can't because it is related to a case I have set for trial, and I have no idea if the prosecutor in my case reads my blog, and I don't want to tip her off to what I discovered if she doesn't already know it.

*I had a dream last night that Al Swearengen from Deadwood was my client. It was . . . interesting.

When Your Clients Like You Too Much

Crimson Bear relates the story of a female client asking him out. While neither office policy nor the disciplinary rules in his state prohibit such an encounter, he politely declined, on account of her being accused of attacking her previous boyfriend with a knife. What about the presumption of innocence, I ask! Seriously, though, I imagine this is something just about every public defender practicing long enough has experienced. My personal favorite was when a client whose case I had resolved with a plea bargain a couple weeks before showed up at my office with flowers for me. I insisted that such a gesture was not necessary, I was just doing my job, yada yada yada. But, he insisted on giving them to me and proceeded to tell me how intelligent and understanding I was. As he continued his very brief courtship of me, the following thought ran through my head: You know I know you tried to strangle your pregnant girlfriend, right? Alas, I have managed to unknowingly move myself from a state in which romantic relationships with clients are permitted to one in which it's a definite no-no. It's always nice to have disciplinary rules to save you from yourself.

(Thanks to Skelly for the tip.)

Thursday, August 03, 2006

Parents v. the State - Best Interests of the Child?

This case from Seattle has gotten a lot of media attention in Washington in the last few weeks. It involves a baby who was diagnosed with a condition that doctors said would require dialysis. His mother disagreed, and wanted to be able to pursue naturopathic remedies instead of dialysis, which she feared would cause unnecessary side effects. The doctors also wanted to perform a surgery to put a shunt in to facilitate the dialysis which his mother also opposed. When the mother wouldn't agree to the procedures, the doctor went to court, and a judge ordered the treatment. Before the surgery for the shunt could be performed, Mom grabbed the baby and ran. This was followed by an Amber Alert and massive media coverage. Ultimately, the mother was charged with first-degree kidnapping. As the article linked above notes, a plea agreement has been reached for the mother to plead guilty to misdemeanor custodial interference instead of felony kidnapping, and she'll get probation. I think this is a fair resolution of the criminal matter as she clearly violated a court order, although it seems clear that she never intended any harm to the child, nor did the child suffer any harm. But, I have a serious problem with what seems like a growing trend of state interference in parental decisions involving the healthcare of their children.

I understand the general principle that parents have a legal duty to ensure the health, safety, and welfare of their children, and that sometimes, the state must step in when a parent is failing to do that. But, it seems like there are more and more instances where the state is interfering in situations where the parents are making a decision they believe is in their child's best interests, but the doctor and the state happen to disagree. It is these situations that I find quite troubling. It seems to me, that a parent should have the right to make the healthcare decisions for their children except in circumstances where that decision is completely unreasonable and dangerous for the child. The state should not be substituting their judgment for the parents. I have read about one case, for example, where a teenage boy had undergone several rounds of chemotherapy and radiation for cancer, and was suffering yet another relapse. The doctors gave him a 20% chance of surviving for another year if he underwent yet another round of chemotherapy. He didn't want to do it. He had suffered so much already, faced little hope of any long-term survival, and preferred to live his last few weeks or months with friends and family, unaffected by the harsh toxins of chemotherapy. His parents supported his decision. The doctor disagreed with their decision and went to child welfare. They, in turn, filed a petition with the court to order the treatment. Worst of all, the judge went along with it. The judge's reasoning was that he had no choice since the boy would die without the treatment. But, he seemed to ignore the suffering he would go through because of the treatment, and that he faced an 80% chance of dying within a year anyway. This, to me, seemed like a situation where the state and the courts should have minded their own damn business. If an adult in this situation chose to forgo treatment, no court would be allowed to interfere in that decision. If parents, who unquestionably loved their child, wanted to honor that child's decision, why should the government be able to overrule that choice? What if the chance of survival was 10%? 5% 40% 50% I can't think of a place to draw the line that wouldn't be completely arbitrary, but, it seems to me that if a reasonable adult could make the same choice for himself, and there is no other evidence to suggest the parents are not making the choice because they believe it is in the best interests of their child, then the state and the courts should stay out of it. What do you think?

Tuesday, August 01, 2006

So Much for the Sixth Amendment

The Sixth Amendment to the Constitution of the United States of America states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

And yet, in the State of Washington, juveniles charged with criminal offenses have no right to a jury trial. Instead, their cases are decided solely by judges or court commissioners. This is true whether the juvenile is charged with a misdemeanor or a felony, and applies even in cases where the juvenile faces incarceration in a juvenile facility until the age of 21. The argument against jury trials in juvenile cases is that these are civil proceedings, not criminal prosecution. But, that is ludicrous on its face. Juveniles are arrested, detained, and charged with offenses that arise under the criminal code. Conviction of these charges can result in incarceration, probation, and fines. Some of these convictions can be used later as "strike" offenses for purposes of Washington's "three strikes" law. These proceedings are civil in name only.

In Texas, all juveniles are entitled to a trial by jury. Not so here in Washington, and it bugs the hell out of me. You may wonder what the difference is between having your case tried by a judge or a jury. Honestly, they truly are worlds apart. For starters, a jury trial means that the State must convince six or twelve people beyond a reasonable doubt, instead of just one. In addition, a jury trial forces the triers of fact to actually deliberate--to talk over the evidence, to work through it. In a trial before a judge, if the judge deliberates at all, it is merely in his own mind. Another major difference is that, in a jury trial, the jury hears only the admissible evidence. Things like unreliable hearsay, confessions obtained in violation of the law, the accused's prior criminal history, and witness statements made to the police but never made under oath in court are kept completely out of the jury's decisionmaking process. In a bench trial, the judge has likely read the entire probable cause statement, knows the accused's criminal history, knows whether the accused has had any violations of his or her pre-trial release, and knows about any illegally seized evidence or confessions that have been deemed inadmissible. It's hard enough to get a jury to disregard a brief reference to inadmissible evidence. How is a judge expected to completely cut out of her deliberations this inadmissible information? Finally, there is something special about a jury that the Framers understood--something that simply cannot be fulfilled by a judge. A jury represents the community judgment. A jury is the power of the people standing between the great power of the state and their ability to take away the liberty of a citizen accused. As intelligent, responsible, conscientious, and well-meaning a judge might be, he can never play that role. That is what jurors are for. It is something that the people of Texas valued and understood when they enshrined the right to trial by jury in their Constitution, and it is something I would like to see the State of Washington recognize.