Frustration

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?"

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!

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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!

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.

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.

A Long, Rambling Return to Blogging

Has it really been over a month since I last posted? I guess it has. In that time, I tried an interminable child sex abuse case that resulted in a split verdict of guilty of one count and not guilty of the other, which, objectively, was a huge victory, but didn't feel that way as I watched the mother of my client dissolve into tears throughout the judge's announcement of his verdict. In the middle of the trial, I went on a little vacation, which was really lovely, but now feels like forever ago, in that I am just as overwhelmed with work and exhausted as I was the day I left. Then, I tried a little misdemeanor minor in possession of alcohol case that I had no hope of winning but almost did on a completely random technicality, but none of that ended up mattering, as my client, who has been an alcoholic since he was probably about 10, was ordered shipped off to the juvenile institution for almost a year, without a single parent or family member there because none of them can be bothered to give a damn. And then, this Monday, I tried a burglary case that actually involved four felony counts because of the two cars stolen and the going back to the house a second time to steal one of them after wrecking out the other one, and the only evidence--literally, the ONLY evidence--against my client was the testimony of a co-defendant who was refusing to name the alleged third person involved (which would categorically not be enough to convict in the State of Texas, but is enough here in blue-state Washington), and the stakes couldn't have been higher after my client turned down the misdemeanor offer from the prosecutor who knew he had a weak case (aren't those always the absolute hardest offers to advise your client about???). And somehow, the star witness accomplice guy managed to perjure himself during the prosecutor's direct exam, and I forced him to admit said perjury during my cross-exam, and then he refused to answer my question as to who the third person he told the police officer he would never name and would take the fall for was, and then the judge granted my motion to strike the lying, withholding witness's testimony in its entirety, leaving the prosecuto with no evidence against my client, forcing him to dismiss with prejudice in the middle of trial. And it was an awesome, thrilling moment of victory, that I felt the need to bask in for the rest of the day, because you so rarely get such awesome, thrilling moments in this job, and then, the next day, I get dragged right back down because I have to try a case that is most likely a complete loser. And throughout all of this, I'm putting out this fire here and that fire there, handling probation violations, and motions, and kids who won't go to school, and kids who keep running away, and pleading out a bunch of other kids, including one whose mother is dead and whose dad is in prison, and he was so horribly sexually abused that he has had to have multiple surgeries to repair the physical injuries from the abuse, but whose legal guardians are so "fed up" with his inability to control his anger that the kid heard the "dad" on the phone with a friend saying he just wished the kid was dead, said "dad" also having told me that he doesn't believe the kid is properly being held accountable, and that I shouldn't even bother to tell him about the consequences of convictions becuase he knows about convictions, being a four-time convicted felon himself. Oh, and yeah, Veronica Mars got cancelled, so that was just the icing on the cake. And that, in a nutshell, is what's been happening the past month.

How's everyone else doing?

Thought for the Day

Sexual abuse cases are bad.

Sexual abuse cases with a child victim are worse.

Sexual abuse cases with a child victim and a child defendant are the worst of all.

On the Run

So, today, I had a client plead guilty to an assault charge involving a former classmate. The case was pretty old because she seemed to have had a habit of running away from home. Dad took a 5-hour bus ride to get here for her hearing today, which was great, except for the fact that he absolutely reaked of alcohol. After the plea, my client needed to talk to another prosecutor before heading back home because she is the complainant in a felony assault case where the defendant is her mother. Gee, I can't imagine why this girl keeps running away from home.

Has There Been a Full Moon All Month?

It sure the hell feels like it. All month, we've been overloaded with kids who have no parents or family willing or able to care for them, who have no place to live, or who have been seriously abused at home and just can't go home. I can't remember a time since I started this job when we had so many of these cases all at once. I certainly can't remember a time we were all so busy. I apologize for not blogging in so long, but I simply haven't had any time. I barely feel like I have time to deal with what needs to be done by the next hour. Thankfully, our juvenile section is really working together well, or I don't know how we'd have been able to handle it all. One thing these past few weeks have done for me, though, is reinforce how important this job is. There truly are kids falling through the cracks of the system all the time, and sometimes, sadly, getting charged with a crime, is the only way they come to the attention of the state agencies that are supposed to be looking out for their welfare.

Twists and Turns and Finally . . . A Win!

It feels like it's been a long time since I won something big in court. Getting dismissals is always great, but it doesn't have the same feeling of winning an adversarial proceeding in the courtroom. That's why what happened to me today was so exhilerating.

Yesterday, I started a trial for felony possession of cocaine. My client didn't really have much of a defense (ie., I was wearing someone else's clothes or the officer planted it on me), but the prosecutor had refused to offer him a misdemeanor, so he didn't really have much to lose by going to trial. We decided to tee it up. Maybe she won't get all the witnesses she needs for chain of custody or something. Who knows? When you've got almost nothing to lose, you might as well take a shot.

So, we began yesterday morning with a hearing on whether my client's statements to law enforcement were admissible. Honestly, I wasn't clear why the prosecutor wanted them in. All my client had said, in two separate statements, was, "It's not mine. The other officer planted it on me," and "It's not mine; those aren't my shorts." If I were the prosecutor, I wouldn't be offering those statements myself, but whatever. It's her case to prove. So, through the testimony elicited in the hearing, something unexpected happened. The officer described the circumstances of the search in a way slightly different than in his report. He testified that he had responded to a vandalism complaint, and detained a few young men, including my client. When he ran my client's name through dispatch, he discovered that he was a runaway from Seattle. After talking to my client's parents on the phone, it was arranged to transport him to the police station where his parents would pick him up. As part of police procedure, he conducted a pat-down search for weapons before transporting him in the patrol car. During the patdown search, he felt a small rock in one of his pockets. Not knowing what it was, he pulled it out of the pocket, and, wouldn't you know it, it looked like crack. So now, my client is under arrest. When he is strip-searched at detention, they find more crack.

Now, the wheels in my head start turning. First, I thought about what a stupid, boneheaded move it was not to file a motion to suppress. I think I have fallen into a bit of a bad pattern of not filing them when it seems clear from the report that the search was legal. But now I'm thinking, "That doesn't sound like a legal search. What the hell do I do? Have I waived it by not filing the motion pre-trial? Should I pretend I don't realize it's illegal so I don't look bad? No, I obviously can't do that. What the hell do I do?"

When the court took its morning break, I called my office and frantically asked one of my colleagues for some advice on making a motion to suppress once trial had already started. He told me I could and should do it. Of course, I knew this was right. But, it felt good to have backup. He offered to start finding the cases for me. When we came back to court, I advised the court of my oral motion. Over the state's objection, she agreed to let me argue it, and recessed for a couple hours to give us time to find caselaw.

I came back to the office and went to work. Two of my colleagues helped me by pulling together some of the relevant Washington cases. I did my best to pull my argument together. Heading over to court, having read the cases, I was pretty confident of a ruling in our favor.

The prosecutor recalled the officer to elicit some additional testimony. I asked him about what he thought the object was when he felt it. He stated that when he felt the rock, had no idea what it was. "It could have been anything," he said. Again, I'm thinking, SLAM DUNK. You can't do anything more than a patdown search unless, by plain feel, you immediately recognize something as a weapon or contraband, or, stretching it a little, if something has the size and density of a weapon, but requires further investigation. Then, you can do a more intrusive search to determine if it is, in fact, a weapon. So, I ask him about the size of it. He won't admit to it being the size of a pebble. All he'll say is that it is smaller than a golf ball. But, he never offers any testimony that he thought it was any type of weapon in particular. Just that, "It could have been anything."

So, we argue the motion, and the judge quickly rules against me. She explained that a weapon could be small--a razor blade, a piece of wire, a rock, a firecracker, etc. And since he didn't know what it was, it was legal for him to pull it out of my client's pocket and determine if it were a weapon. She was not swayed by my argument that her ruling essentially created an exception that swallowed the whole rule. It seemed to me that her ruling was that anytime an officer felt anything that he couldn't rule out 100% as being a weapon, he is entitled to do a further search to determine what it is. The way I read the caselaw, an officer can only conduct a further search if he reasonably believes it is a weapon. But, that was that. I told my client I thought we had an excellent argument for appeal, but we'd go on with the trial.

And then, something else unexpected happened. When the same officer was testifying at trial, the actual drugs were offered into evidence. I threw up some chain of custody objections, and the court didn't admit them, but allowed the state to get the necessary witness to establish chain of custody. But again, the wheels in my head started turning, and I decided to get some more information in the record about the size of this rock, with the intention of re-urging my motion to suppress, and having a better record for appeal. So, this morning, after crossing the officer about the relevant guilt-innocence questions (with almost no defense, there weren't many), I ended with two final questions. I asked him to look at the exhibit and describe the size of the rock that he had found in my client's pocket. He described it as "pea-sized." I asked him to refer to the lab report, and confirm that the weight of that rock was .17 grams. He did. No further questions.

So, we take another break so I can interview the new chain of custody witness. It looks like the prosecutor has what she needs to establish chain of custody, so I'm feeling 99.9% sure of a conviction. I intend to re-urge my motion to suppress, but don't really expect anything to come of it at this stage. I'm just doing it for the record on appeal.

But then, something else unexpected happened. When we came back from our break, the judge announced that she had to do something before starting back up. After hearing the additional testimony from the officer about the size of the rock, she decided that she must reverse her prior ruling and grant my motion to suppress. She said there was no way he could have thought an object that size could be a weapon, and even if he did, he didn't testify that he did. The crack found in my client's pocket was suppressed, and the addditional crack found in the detention search was suppressed as fruit of the poisonous tree. Fourth amendment vindicated. Case over. Not guilty.

It was fantastic! So, what did I learn, or re-learn, here?

1) Always file a motion to suppress, even when it looks like everything was legal.
2) Don't ever let your fear of admitting a screw-up prevent you from raising every necessary legal issue for your client.
3) One of the best things about working in a public defender's office is having colleagues to back you up in those frantic moments that come up in the middle of a trial.
4) Judges sometimes do the right thing when you least expect it.
5) You never know what is going to happen in a trial that might turn a hopeless case into a winner.

AND

6) It feels really good to win.

My client is a good kid with no prior convictions. He had run away from home and fallen in with some not so good people. Now, he's back home, and doing well. And he can now move forward with his life without a felony drug conviction making his life that much harder.

Quick Hits

I got slammed this afternoon, and don't have time for a long post, but there is a lot of interesting stuff in the news, law wise, so here is a list of stuff to check out:

*One of those terrorist-loving lawyers for the Gitmo detainees publishes an open letter to Cully Stimson in Salon and it is awesome.

*The dedicated lawyers at the Cook County Public Defender's Office are fighting back against budget cuts that would mean a bunch of lawyers there losing their jobs, and their already high caseloads getting even higher.

*Bill O'Reilly, adamant defender of children against sex offenders, thinks Shawn Hornbeck didn't escape his abductor for over four years because it liked it since he didn't have to go to school.

*The judge and the DA apologized to James Waller yesterday in court when his DNA exoneration was made official, but I think it would be nice if someone tracked down the jurors who didn't do their job and got some apologies from them. They convicted the guy in 46 minutes based on an obviously bad voice identification and in the face of an alibi. Step up and take some responsibility for violating your oath and sending an innocent man to the pen for 30 years, jurors! Maybe future jurors will learn a lesson.

*I told the prosecutor yesterday that my case set for trial on Tuesday should be dismissed because he didn't have the evidence to prove it, and this morning, he dismissed it. Wow. That's pretty cool.

Mommy and Daddy Issues

Some parents really suck. First, let me just say that my clients come from all sorts of families--nuclear, step, single-parent, grandparent, foster, adopted, and group homes. Some of the parents I meet are truly wonderful. And, in some cases, no matter what the parents do, the children can't seem to get it together. But, then there are the ones where the kids are good kids, but their parents just plain suck. They're drunks or drug addicts. They're always moving because they can't hold a job long enough to pay the rent anywhere. They beat them or molest them or let their live-in boyfriend do it. They don't ever have any food in the house or they let their junkie friends steal their kids' stuff. I've had cases where the police report describes my client as being his parents' "designated driver;" where the parents kicked the kid out of the home with no place to live, then had him charged with burglary when he broke into the house when they were away so we could have a place to sleep; where the mother told the police officer that her son was at fault for his father beating him because the kid intentionally got his dad drunk; where the mom left the state for a week-long trip to see an old boyfriend, and ended up having such a fun time that she didn't come back for two months, leaving her teenage kid home alone the whole time. And the worst part is that there is almost nothing I can do about it. I can talk to the kid about how to stay safe. I can call CPS, and report it myself. I can tell his probation officer to do something about it. But, in the end, I have virtually no power. I can't get the kids better parents. And so many of these kids, I'm telling you, I truly believe would never set foot in juvenile court if they had even one halfway decent parent. Just someone who loves them unconditionally, and teaches them about responsibility and empathy and consequences, and what it means to be a decent human being. What they don't need is a prosecutor talking about how they're "on the wrong track," and a judge telling them it's time to "get with it," and a lawyer telling them that she's doing everything she can when she knows it's not nearly enough.

Tip for the Prosecutor

Offering my client a deal that involves pleading as charged (to a felony, no less), and a sentence recommendation that is pretty much exactly what the judge would sentence him to if he went to trial and were convicted is not really a plea bargain offer.

There's Not Enough Crime in This Town

You know you're a juvenile public defender when the local news story that makes you choke on your coffee is about the police busting up a party full of drinking teenagers. According to the paper, twenty kids were cited for minor in possession! Twenty! Apparently, the police were called by neighbors who believed that the kids were up to no good. The cops knocked on the door, and were told they weren't being let in without a warrant (good on you, kids!). So, unbelievably, the police went and got a warrant in the middle of the night, and came back and busted up the party, writing out citations right and left! Now, you understand the title of this post. There is not enough crime in this town if the police have the time to get a search warrant to bust up a teenage party! Don't get me wrong. I'm not wishing for more crime here. I just, well, I just wish the cops had more important things to do. Of course, there aren't many cases here in juvenile where I have the opportunity for a full-fledged Franks hearing, so maybe I shouldn't be complaining.

I Need Some Help

Anybody have any advice on how to tell a kid that her mom doesn't want her anymore? Ever again? Because I need some help here.

A Reminder About Freedom and This Job

Sometimes, when I'm in the middle of all the muckety muck of this job, I miss important things. It's the arraignment calendar, and I'm entering pleas of not guilty, asking for adjustments to conditions of release, setting trial dates, blah blah blah. Then, not unlike what happens at other arraignment calendars, I convince the judge to release a client on personal recognizance who had previously been ordered held on bail. That feels good, and then on to the next case. But then, I'm back in my office, and I'm sorting through the morning files, and I move the kid's file from my "in custody" file drawer to my "out of custody" file drawer, and it finally hits me. I got that kid out of jail (okay, detention, but it's the same difference). He was locked up. And because of what I said and did, he's now free. It's a normal, everyday part of this job, but that doesn't make it any less important or valuable to that individual person. It's good to stop and remind myself of that every once and a while.

Kids are Different

A few weeks ago, I was walking from the courthouse to my office with a client. He's about 14 and, like a number of my clients, he has ADHD. So, here we are, walking along, having an intelligent discussion about how he can prepare for his disposition hearing when, all of a sudden, he leaps into the air and jumps right into a huge puddle, splashing the dirty water all over me. Luckily, I was wearing black tights and houndstooth-type suit so it didn't really show up. He immediately stopped, looked at me with his big eyes, his hand over his mouth, and said, "Oops. I meant to jump over it." I just burst out laughing, called him a liar, and on we went, to the office. Can you imagine an adult client ever doing something like that? Can you imagine ever thinking that having someone jump in a puddle and splash dirty water all over your suit being one of the sweetest, most endearing moments of your job? I couldn't either, but it absolutely was. It was just one of those moments that reminded me how having kids for clients is different. Sometimes, that difference makes things worse. But more times than not, it makes things better. They have a way of crawling right into your heart and making you love them, no matter how many times they screw things up.