Tuesday, October 31, 2006

Irresponsible Taser Use Puts Kids at Risk

Update: Sanchovilla at Tales of a Public Defender Investigator posted about this case, including a chilling account of the incident posted on the MySpace page of one of his friends. She was not an eyewitness, so I'm not sure where her version of events comes from, but she claims that he was tases four or five times, and that he only became combative after the police officer tased him. Up until that point, he was just shouting on the corner for Jesus. He apparently is bipolar with a history of hospitalizations. This brings up another issue on law enforcement training which is that many police officers get little to no specialized training in how to deal with a mentally ill person in distress. They often end up treating them the same way they would any old resistant suspected criminal, and sometimes that leads to tragic results. Very, very sad. I hope there is a full investigation, and that it looks not just at the particular officers involved, but their training and use of force policies.

Original post:

A teenager was killed when he was tasered not once, but twice, by police officers after he allegedly became combative with them. There's really not enough information in this article to know whether the use of the taser in this case was appropriate, but it does represent yet another use of a taser on a child when there is little to no evidence about the risks associated with using tasers on children. In the first few weeks of my job here in Washington, I must have read at least three police reports where the officer used a taser on a child who was not attempting to harm the officer or any other person. In two of the cases, the child was running away from the officer. In the third case, the child was refusing to get out of the car he had been driving. I was appalled. My experience in Dallas County was that officers used tasers when they would have been otherwise authorized to use lethal force. If a suspect was refusing to put down a knife, or actually assaulting the officer. Here, they seem to use them so they don't have to run fast. It doesn't sound like they have any kind of department policy on when it is appropriate to use the taser. And, if they do have one, it doesn't seem to take into account the fact that there is little to no evidence suggesting that tasers are safe to use on children. As I've said when I blogged about taser use in the past, I fully support departments trying to find less violent and lethal methods of controlling uncooperative suspects. But, the overuse of tasers, especially on children who are not posing any direct threat to anyone, is not responsible. Not by a long shot.

Thursday, October 26, 2006

Prosecutors are People, Too

Tomorrow, I'll Be a Real Lawyer!

I've been practicing under a provisional license since I started at my new job, but tomorrow, I will finally be official. I passed the ethics portion of the Washington bar exam, which, thankfully, was the only part of the bar that I had to take to get my license here. Tomorrow, I take their "new lawyer" class, and will be sworn in at the end of it. I'll finally be a real lawyer--no matter what my clients might say!

Tuesday, October 24, 2006

Exculpatory Evidence? What Exculpatory Evidence?

Update: So, Tom responded to this post thusly:

I imagine most courts would take a dim view of it, and as I've often said, what does it matter to win one case if costs you your credibility with the court? (or your law license).

I would have to think no court that she practices in will ever find her a trustworthy advocate.

As a general rule, I think he is right. Any prosecutor thinking about the consequences to her career if she were to be found out violating Brady would not risk those consequences just to win one case. But in this particular example, I have no such consolation or hope. First, she was found out, and the judge presiding over the trial not only did nothing to sanction her for her misconduct, but she let the evidence be admitted, and denied the defense a continuance to deal with the unfair surprise. Second, she still maintains that she did absolutely nothing wrong. She doesn't see this information as Brady material because the new alleged witness still implicated the defendant. And not only does she maintain that she did nothing wrong, so does her supervisor! How can the ADAs in this jurisdiction be properly worried about the consequences of violating Brady if neither they nor their supervisors appear to understand what Brady material is?

Here is an example of what I'm talking about. I once had an argument with another ADA who, like Hallman, was a chief prosecutor in a felony court. He told me that if he were to submit certain evidence related to a crime to an expert for evaluation, and if that expert were to conclude that nothing related to the evidence inculpated the defendant, he did not believe that was Brady material that he was required to turn over. I was dumbfounded. I asked him what basis he had for that belief, and he had nothing other than his own common sense. I threw caselaw back in his face that deals with this particular issue--when an expert hired by the state makes conclusions that fail to inculpate the defendant--and he still said that he didn't believe it was Brady. He said that an expert just has an opinion, and just because one particular expert he asks to evaluate the evidence has the opinion that it doesn't inculpate the defendant, that doesn't make it a fact that he must turn over to the defense. We argued about this for a while, and the sad part for me was that, at the end of the argument, I hadn't changed his mind at all. He still believed that he was right.

Original post:

Here's a story from my old stomping grounds. This case is from the court I used to be assigned to and involves one of the prosecutors I worked with regularly. I always got along with her, and never knew her to do anything dirty or underhanded. But, in this case, I am just stunned by her crossing the line. The gist of the case is as follows. A guy is on trial for murder. An eyewitness has told the police and prosecutors repeatedly that she saw the shooting and the defendant was the shooter. Two weeks before the trial, the witness now claims that she didn't really see the shooting, but that some friend of hers who she knows only by the name Miguel, who she can't really describe, and who she thinks has moved out of state was the one who saw it, and told her who the shooter was. The prosecutor sends her investigator out to try to find this mysterious eyewitness, but never tells the defense. At least not until the morning of the trial when they have a hearing on introducing this mysterious witness's hearsay statements. Not only did the judge allow the testimony, but she denied the defense's request for a continuance so they could investigate who this new, mysterious person was and what he did or did not see. The scariest part for me was this quote from the article:

Both [the prosecutor] and her supervisor maintain that Brewer's story about Miguel was not exculpatory. After all, the witness doesn't change her story to say that Freeman was innocent.

I remember attending a CLE once where someone from the prosecutor's office gave a presentation on Brady material. One of the defense attorneys asked if the DA's office had a written policy on the handling of exculpatory evidence, and the ADA said that they didn't. I have had so many arguments with prosecutors in this DA's office about what is exculpatory material that must be handed over and what isn't. Most of them have a completely distorted view of what it is. This case is a classic example. Your only eyewitness suddenly changes her story two weeks before the trial and that's not exculpatory? That doesn't cast doubt on her credibility? Give me a break!

Heads should roll here. And I'm guessing that they would at a lot of other DA's offices. But as long as this particular prosecutor's husband gets elected DA in November (he's the Republican candidate), I'm guessing that won't happen.

Sunday, October 22, 2006

It's Moments Like This

Are you a public defender who's been feeling a little beaten down by the job lately? Need a reminder of what this job can be? Live vicariously through this post from Miriam at Accident Prone.

Saturday, October 21, 2006

Lotsa New Links

I've updated my links, thanks, in large part, to the updated PD blog guide from PD Stuff. Check 'em out.

The Universal PD Experience

If you haven't checked out Ruth's fairly new PD blog, Of a Public Defender's Life, you really should. Reading many of her posts, I feel like I'm reading about some of my own experiences. Every public defender office is different, but there are some experiences that do seem universal, and she has captured a number of them. Recently, she lamented the problems of the mentally ill in the criminal justice system, and the general lack of resources from support staff to office supplies in a public defender office. Good reads.

Law Enforcement Burdened by Public Defenders Enforcing the Constitution

Skelly has a nice post following up on the scandal of indigent defense that occurred in Grant County, Washington. This happened before I got to this great state, but apparently, those charged with defending the poor in Grant were not living up to their ethical obligations. As a result, the ACLU filed a lawsuit, and a new crop of public defenders are in town. And according to Skelly, who is like Woodward and Bernstein rolled into one with his well-placed sources, prosecutors aren't happy with the results. It seems that these new public defenders are insisting on interviewing the witnesses in their cases! They want to interview the cops! They want to interview everyone! And this is just too much for those sworn to uphold justice, one of whom apparently complained to a judge in open court that having to be interviewed by defense attorneys was overburdening law enforcement! This is priceless.

A bit of background on Washington criminal procedure. Unlike in Texas, where criminal law is largely trial by ambush, in Washington, the defense has a right to interview any witness the state plans on calling in their case in chief. If the listed witness won't talk to you, you can make the prosecutor set up the interview for you! You actually have the right to ask the witness questions before you have to cross-examine him in court! Civil attorneys might be familiar with this procedure which they call discovery. Criminal defense lawyers, depending on their jurisdiction, may be shocked. Anyway, I would guess from the current complaints that the old lawyers representing the poor in Grant County weren't all that keen on interviewing many of the witnesses in their cases. But now, the new public defenders are, and it's making things hard for the poor police officers and prosecutors. Excuse me while I wipe away the lone tear slowly falling from my eye.

Maybe now, the police and prosecutors will have to exercise some judgment and discretion in the cases they file. This actually is a good example of why it is important that everyone, even the guilty, need zealous representation when accused of a crime. If the prosecutors and police officers know that if they will have to truly have the evidence to convict and not just to enough to charge, that a defense attorney will be there to make sure that they do, in each and every case, even when the accused has very little resources of his own to fight, then those police and prosecutors will be more careful about just filing charges in every case because they can, and the innocent will be less likely to be convicted, and less likely to suffer the burdens of being wrongfully accused--which for a person living paycheck to paycheck can include everything from losing your job and your housing amont other things--in the first place.

Wednesday, October 18, 2006

Tag--You're It!

A school in the Boston area has banned kids from playing tag at recess. They say it is because they fear that a child could get hurt and the school could be held liable. Give me a break! Tag? Even worse than the school administrators is the stupid parent quoted at the end about how her son feels safer now that no one can play tag? What are they teaching these kids? That any activity that presents the possibility of being hurt should be avoided? All risk is bad? Feeling "safe" is the most important value of all values? Blech.

Thank You for Your Support

I'm curious what kind of support staff other public defenders have at their offices. At my old office in Texas, we had one office manager, one receptionist, three secretaries, six investigators, and a Spanish interpreter. These people supported the approximately 60 attorneys in the felony, misdemeanor, juvenile, and family sections. At my new office, we have an office manager, two receptionists, five investigators, one social worker, and an unknown number of legal secretaries and file clerks. These support the approximately 20 attorneys that work in our felony, misdemeanor, juvenile, and family sections. It is a huge disparity, and one of the best things about this office as compared to my previous office. Right now, I share a legal secretary with two other attorneys! Two! That's what I had when I was at my fancy schmancy civil firm. I don't know if other offices in Washington or like this or if I just lucked out big-time, but it really makes a huge difference to not have so much of my time taken up by routine paperwork and scheduling appointments.

The other bonus for me is that my secretary also loves Veronica Mars. I already knew how awesome she was, but finding out this new information just makes me love her more!

Tuesday, October 17, 2006

Texas Court of Criminal Appeals and US 5th Circuit Court of Appeals Still Defying US Supreme Court on Death Penalty

Scotusblog reports on the U.S. Supreme Court agreeing to hear three more death penalty cases from Texas on an issue that they have decided multiple times already. Two of these cases are from the 5th Circuit and one is from the Texas Court of Criminal Appeals (the court of last resort for criminal cases in the state). In all three cases, these courts have continued to defy the Supreme Court opinions on the issue of the error of the jury instructions in the sentencing phase of capital cases. In one of the cases, the Supreme Court summarily reversed (without argument) the lower court, telling them that they really, really meant it, and the court took the case back on remand and still upheld the death sentence. Despite these various judge's active defiance of binding case law, I haven't heard any conservatives screaming about how these judicial activists need to be impeached.

a Public Defender is Finally Back!

Gideon at a Public Defender is finally back and blogging! Can you believe his office blocked out the site he uses to blog? For shame! At any rate, he's back blogging from home now, and I am very happy because I definitely missed his contribution to the discussion.

Monday, October 16, 2006

The Mega Guide to PD Blogs

PD Stuff has a nice, comprehensive list of public defender blogs which made me realize I need to update my links. Check it out.

Me, Too

Why Do the Prosecutors Here Want to Try Incompetent Kids?

The other day I was arguing a motion to have my client evaluated for competency to stand trial. Now, this is something new for me. Back in Texas, I never had to argue these motions. If I thought a client might be incompetent, I would fill out a pre-printed form with the court requesting an evaluation and the judge would sign it. The prosecutor wasn't even involved. We didn't have to swear to anything or argue over anything. The judge took your word that you had a serious question as to your client's competency and ordered the evaluation. If the shrink found the client incompetent, it was exceedingly rare for the prosecutor to challenge that. They know the case isn't going anywhere. The person just needs to be further treated and evaluated in the future before the criminal case can proceed. So, back to my case here. I filed my motion for a competency evaluation citing my client's various cognitive disabilities, his diagnosis of mental retardation, etc. I also state in my supporting affidavit that based on my attorney-client interactions with my client, I had serious doubts as to his ability to understand the nature of the proceedings and to assist in his own defense. I swore to this in writing. So, here we are arguing my motion. Not only does the prosecutor object to my motion to have my client evaluated, but she says that there is nothing in my affidavit to indicate that he cannot assist in his own defense. Okay, first of all, I'm not asking for a declaration of incompetency. I'm just asking for an evaluation to determine if he's incompetent. So, why is she fighting me on this? If he's competent, the doctor will say so. If he's not, the doctor will say so, and she will look stupid for fighting me in the first place. And what is with her saying there is nothing to indicate my client cannot assist in his own defense? How about my sworn statement that I had doubts that he could based on my interactions with him. Is my sworn testimony "nothing?" It reminded me of clients who don't understand how they can be convicted when "they aint got no evidence against me." I have to remind them that the testimony of the alleged victim is, in fact, evidence. You know, I could almost understand the prosecutor arguing that my assertion alone that I had doubts as to my client's competency was not enough. I say "almost understand" because the case law is pretty clear that great deference is to be given to the defense attorney on these issues. But seriously, saying that my sworn statement saying that I didn't think my client understood the process or could assist in his defense was "nothing" is just ludicrous. And also really annoying.

He's Not Just a Cop; He's a Human Lie Detector

So, I was reading some police reports on one of my cases last week, and was fascinated with some of the detail the detective provided regarding his observations of various suspects as he interviewed them. As he was questioning one suspect, he observed that he appeared nervous and was breathing rapidly. On top of that, he saw that his carotid artery was beating strongly and rapidly and estimated his pulse at over 100 beats per minute. With another suspect, he observed several signs of deception such as prefacing answers to questions with "honestly" and "to tell you the truth." Another suspect had a noticeable tremor in his right hand as he answered questions. Has anyone ever seen comments like this in a police report before? It was a first for me. I was especially interested in his close observation of one man's carotid artery and his estimate of his pulse. It's a wonder he could keep track of what the man was saying in between focusing on his artery and taking his pulse visually. Is it just me or does it seem like this detective has been to some class recently on human lie detection?

Friday, October 06, 2006

Stupid Answer of the Week

This has been kind of a rough week. I can't really go into the details, but, on top of the particular stresses of the individual cases involved, I am just generally swamped. Most of the time, I feel like I have just enough time to handle the case in front of me, with almost no time to actually prepare for the cases down the road. Then yesterday, I was trying to convince the prosecutor to dismiss my client's MIP (minor in possession of alcohol) case. This is not a case of innocence. I can't really discuss what the issues were for why I thought it should be dismissed, but I'll just say that they were not made-up defense attorney reasons--they actually had some real substance to them. The prosecutor wouldn't even consider dismissing. When I asked her "Why?," her response was, "Because it's a crime and I'm a prosecutor." Like she's some sort of robot or something. Roboprosecutor must prosecute every crime! Dismissal is not an option. Must prosecute. Argggghhh!

Tuesday, October 03, 2006

TV Alert: Watch "Veronica Mars" Tonight or I'll Kick Your Ass!

Okay, not really. But, you should watch it! The third season of one of the best shows on TV premieres tonight at 9 p.m. (8 p.m. Central/Mountain) on the new CW network. Do you like smart TV? Do you like witty dialogue? Do you like well-acted, intriguing drama? Watch the show! You won't regret it.