Tuesday, October 31, 2017

As good as it gets

Lately my mind keeps mulling over the repetitive nature of life. It is hard for me to accept that THIS is what life is. That our entire lives are basically a repetition of the same day, over & over. This is what life is? What kind of ridiculous waste is that?

Here is my life, the entire essence of my existence:
Wake up, go to work, come home, dinner/errands/chores. Repeat Monday through Friday. Saturday & Sunday, catch up on sleep, errands/chores, maybe some social event, home.

That's it! That's my whole life. That's the entirety of my existence. It seems really pointless.

Saturday, June 10, 2017

Losing one's liberty is punishment enough

A common argument against prison and jail reform is that jail or prison is supposed to be a punishment and should therefore be as miserable and horrible as possible. I disagree with this argument because it is shortsighted for one, and for two, it tends to put both prisoners and officers at a higher risk of danger.

People get angry when they find out that correctional institutions have things like yoga classes, television, educational programming, baseball, or other "fun" activities. the idea is that because you are incarcerated, you should be miserable every minute of every day that you are there. it is not enough to simply lock you up, you must also be completely and utterly miserable. People that support this argument seem to believethat losing your freedomas an insufficient punishment. But is it? Is it really insufficient punishment for the government to take away your liberty?

Having your freedom taken away results in a multitude of deprivations . If you think about the things that you, as an average person who is not incarcerated , enjoy the freedom to do every day, you see how much a person who is incarcerated uses simply by the fact of their incarceration . Anything that cannot be done within the incarceration complex is lost to them . It Cimmerian of things that they lose .

Here's a list of something that incarcerated people are not able to access or to do :
Go to their child's high school or college graduation
See their child get married
Go to a sporting event
See a movie in a movie theater
Make dinner for their family
Go to the park
Ride a bike
Swim
Wear regular clothing
Wear makeup
Go shopping
Have privacy
Sleep in a room that doesn't also have a toilet in it
Eat what they want when they want
Have more than a specific number of pillows, blankets, uniforms, etc.
Sleep in the same bed as their partner
Wear clothing & underwear that hasn't been worn by someone else
Go on vacation
Use products & toiletries in the brands they prefer
Go for a run
Be there when their grandchild is born
Sleep on a real mattress
Have a barbecue
Watch fireworks
Go fishing
Attend their children's school conferences
Attend their children's school activities
Access the internet without restrictions, if at all
Use a cell phone
Have access to their regular medications
Eat in a restaurant
Attend their parents'/children's/loved ones' funeral
Go outside when they want
Go anywhere other than the prison/jail facility meaning they spend every hour of every day in one space
Tuck their kids in at night
Play video games
Call people without it costing an exorbitant amount of money
Wear makeup or nail polish
Wear decent looking glasses (in Minnesota the prison issued glasses are called "birth control" bc they are so awful looking)
Go to see a stand-up comedy show

The list goes on & on. There is no need to make incarceration any more miserable than it already is. Losing your liberty, your freedom, is punishment enough.

Moreover, letting inmated have some things that society may deem too nice for jail/prison keeps tensions down & makes the institution safer for everyone, including the correctional officers & other staff. Keeping the inmates active & productive & involved in classes & activities is a good thing. It doesn't need to be the gulag. They've already lost a lot simply by being in custody. That's the punishment.

Saturday, April 01, 2017

Jury trial = most terrifying thing ever

I've always been amazed by clients who end up going to trial. I am not sure I could imagine a more terrifying thing than having 12 strangers determine the course of my life. In some cases, it's not as huge of an impact as others, although it always has an impact. But the cases where a conviction means prison time are the cases I am always amazed when clients go to trial.

Ok real talk: if I were charged with a crime that I was 100% innocent of, but I was facing prison time, I'd take a plea deal without a second thought if it meant no prison time. I'd confess to a crime in open court & lie through my teeth under oath to enter my guilty plea if it meant I could avoid going to prison. I know that's not what people want to hear, but it's true. And it's not an uncommon opinion among lawyers I know who work in the criminal justice system, especially defense. Too many things can go wrong at a trial, the judge can allow evidence in that your attorney wants out or not allow evidence in that your attorney needs in, witnesses can say different things on the stand than they did in previous interviews, etc. There are too many variables. I would never take the risk.

The idea of 12 strangers deciding my life is the most frightening thing ever. I'd have no control over my own life. I couldn't deal with that.

Picking a jury is the most important part of a trial. It's also the part that gets the shortest shrift. It doesn't matter how spectacular of a case you put on or how great your cross exam is or how compelling your closing argument is if you have the wrong jury. And given how frequently this part of trial gets rushed through, it makes me even more convinced I'd never go to trial if I were a defendant.

Jury selection gets glossed over for a number of reasons. It's uncomfortable for most people, whether the potential juror or the lawyer. You are either asking strangers questions, sometimes extremely personal ones, or you are answering questions a total strangers is asking you. It's hard to get people to really talk about things because most people have never been questioned like they are in jury selection, so they treat it like a quiz, where they have to give the "right" answer. They can usually tell what answer is the "correct" one & they want to be cooperative & give the right answers, so you'll often end up with a Q & A that sounds like this:
Q: What are your thoughts about handguns?
A: I hate them. No one should own one. It's unnecessary.
Q: What do you think about a person who owns a handgun?
A: They are probably paranoid or think everyone is out to get them, so they think they need a gun.
Q: So is it fair to say you have a negative opinion about a person who owns a handgun.
A: Yes, that's fair.
Q: And if you were to find out during this trial that the defendant/a witness owned a handgun, would that cause you to have negative feelings towards that person?
A: Probably yes.
Q: Would those feelings affect your ability to be fair & impartial to both sides?
A: Possibly.
Q: Okay. How so?
A: I would probably be more skeptical of what they have to say. I might not believe them as much.
Q: If the judge told you that you had to put those negative feelings aside & not consider them when reviewing evidence in this case, do you think you could do that?
A: Yes.
Q: Any doubt about your ability to set aside those feelings?
A: None whatsoever.
Q: Could you be completely fair & impartial to both sides, despite your feelings about handguns?
A: Yes. 100%.

Like, how realistic is it that anyone would be able to totally disregard their internal feelings about someone or something? It's not. Only in court do we expect that of people. But whatever, that's the way it is. What the bigger concern is that in that example, the person starts out with a really clear opinion on something but then walks it back because they start to realize it's not the "right" answer. And that makes it difficult to know what they really think.  Plus, no one wants to say they can't do something, like setting aside their opinions. (One judge I know of asks a way better question. Rather than asking if the juror can set aside the thoughts they have, the judge asks, "Is it reasonable for us to expect you to ignore those thoughts & feelings if you're a juror in this case?" I like that way better).

The main reason I think jury selection gets glossed over is that most everyone in the courtroom wants it to go quickly. An hour to an hour & a half, tops, unless there's an unusual reason for it to take longer. Judges are especially concerned with the time it takes because they worry about the jurors sitting around.

In Minnesota, for most felony cases, between 30-40 people get called in for jury duty. Then they are put in order randomly, from 1-40. Most felony trials need 13 jurors, 12 who will actually decide the case & one alternate. Lawyers don't actually pick who they want on the jury, they pick who they don't want, by using peremptory strikes. The state gets 3, the defense gets 5. After those strikes, whoever is left is the jury.

After the random order is decided, the clerk calls out the first 21 names on the list & those folks are seated in the jury box & asked questions. 21 is the number because 12 jurors + 1 alternate + 3 state strikes + 5 defense strikes = 21. The remaining 9-11 jurors who aren't in the first 21 just sit in the courtroom & listen.

If someone in the first 21 had to be removed for cause, meaning they have something that prevents them from being a juror on the case like they are close friends with a witness or they are related to the prosecutor, then the 22 person would take their place. Then 23, 24, etc. So if you're 40, you probably aren't going to end up in the jury box getting questioned. You'll probably just sit there for the whole thing until a jury is picked & then you get sent home. And you'll get a measly $10 per diem for having had to be there & miss work & arrange childcare, etc. So it sucks, basically. It's boring & it sucks. Which is why judges are concerned about keeping jurors waiting.

But on the other hand, if I were a defendant, I'd want to talk to these people at length. They are going to decide my life. I would want to know as much about them as possible. If these people are in charge of determining my fate, I want to thoroughly vet them. I'd want to take as much time as possible with each one of them & know everything I could about how they think. If it took only an hour for my jury to get picked, I'd be freaking out.

I try to remember that it's likely unnerving for a defendant to know that those strangers are going to determine the course of their life. I try not to overlook the importance of picking a jury. I try to remember that my clients are much braver than I am because I'd plead guilty to a crime I didn't commit if it meant no prison time instead of risking it at trial.

Saturday, March 25, 2017

I've come a long way in 8 years

On Monday I start what is definitely the biggest trial of my 8 year career as a practicing attorney. I've had high stakes cases before, of course. You can't be a public defender who primarily handles felony cases for 6.5 years without having taken some high stakes cases to trial.. Well maybe you can, but it's pretty unlikely. At any rate, this one is the highest stakes one I have tried.

I'm lead counsel on it, too, which is still strange to me that I've been doing this work long enough to be lead counsel on something. But I am. I typically see it more as "co-counsel" than lead, but technically, I'm lead. My co-counsel is great to work with, super helpful, & makes it a lot less stressful. It's a high stress case bc of the high stakes.

Co-counsel & I have been working hard to get everything ready. I think we are as prepared as anyone could possibly be. We have worked our asses off so far & will continue to throughout the trial. There is nothing that we could have done but didn't. We have poured ourselves into the case.

I'm nervous, of course, as I always am for any trial. But I feel good about our case & I feel ready. Just have to hope that the hard work pays off with a not guilty in the end. Trial is blocked for 2-3 weeks...so we've got awhile before we will know.

I love something my co-counsel said. He said, "It's a pretty cool system we have when the government pays for lawyers to fight against it in court."

I couldn't agree more.

Thursday, March 09, 2017

Hi, have we met before?

Apparently I'm too negative at work & it's bringing everyone down, or so says one of my co-workers. It's "toxic" & "needs to stop."

I feel like no matter what I do, I can't win. I'm supposed to "be myself" & open up to people, try to break through some of the steely defenses I have in place that keeps me from opening up to people. When I do, I am "too negative" & "toxic." Well, that's who I am! Being cynical & inclined to pessimism is my personality. It is a large reason why I'm also funny & witty, bc being funny is how I cope with it.

And I get that that means I'm not going to be everyone's cup of tea. That's fine. I don't expect to be. I don't expect everyone to like me. I am not that concerned when people don't like me. I know I'm an acquired taste.

But it does bother me when people who are supposed to be my friends tell me that parts of my personality is a problem. Then why be friends with me?

Sunday, February 05, 2017

Trumps Muslim Ban EO vs The Court That Stopped It

Recently during a Twitter discussion about the Muslim ban EO, I was asked what precedent a judge has to block the EO that affects non-citizens & why the US Constitution applies to non-citizens & if it does, why doesn't it apply to everyone in the world? The inquiry was a genuine one, not a troll, so I'm more than happy to answer! In fact, I'm such a nerd, I enjoy getting to explain this stuff. Woohoo, nerd!

Okay, anyway, I'm assuming everyone knows that DT signed an EO preventing non-citizens, including immigrants & refugees (not the same thing, btw), from seven countries from entering the U.S. Unless you listen to only the "alternative facts" provided by the DT administration, you probably know this order was unexpected, causing many people to be detained at the airport when trying to enter and generally causing a clusterfuck at airports all over the county. Lastly, I'm assuming everyone has heard that a federal judge blocked the EO, essentially returning everything back to the way it was before the EO was signed.

Brace yourself...this is going to be a meaty discussion. There are a LOT of things that lead up to the court having the ability to block the EO, so we will have to cover them all.

First things first: how/why can a court block this or any EO?

Going way back to your civics class, you maybe learned about a case called Marbury v Madison. The facts of the case don't matter too much for this topic. What is important is that this case formally established the Court's power of judicial review. Judicial review is the Court's part in the whole checks & balances thing. Essentially, what it does is it allows the courts to review law & if it violates the constitution, the courts get to strike it down & it cannot be law anymore. That's important, because if the other branches of government can create laws or orders that violate the constitution, then the constitution becomes meaningless. So, the courts have the power of judicial review, which allows them to strike down laws/orders that are unconstitutional.

Next part of this whole thing: what exactly did the judge do?

The judge issued a temporary restraining order, prohibiting the enforcement of the EO until a more thorough hearing on the merits of the underlying claim can be heard. Essentially, what that means is that there are ongoing, pending lawsuits about whether the EO is in violation of the constitution or not, but the parties who are suing the federal government asked for an emergency order until they can get into court to argue the constitutional stuff. The court process can take a long time, so it's not uncommon to have these emergency orders available to prevent harm from happening while waiting for your court date. The hearings for these types of emergency orders are usually not as involved as the full hearing on the ultimate issue. The party requesting it just has to show it's likely that they'll win at the full hearing & that they will be irreparably harmed if the court doesn't grant the restraining order. Basically, these types of temporary restraining orders put the law on hold until it can be determined if it's constitutional or not.

So, the judge didn't actually strike down the EO. Rather, he simply said that enforcement of the EO should be put on hold until the litigation about whether it's constitutional or not is done. The judge DID find that it was likely that the plaintiffs (the states that are suing the federal government) will win in their suits, but he didn't actually decide that they HAVE won just yet.

The judge mentioned the court's role as a check on the other branches of government in his order, discussing how the court's role is to ensure the constitution is upheld. So he relied on the court's power of judicial review to issue the temporary restraining order.

Now, onto the specific questions re: the constitution applying to non-citizens.

First, the lawsuits & the request for a temporary restraining order was actually brought by a number of states, not individual non-citizens, so technically the court reviews the harm the EO causes to the states. Since the states are part of the US, they don't have to get into whether constitutional protections apply to non-citizens or not. The states argued that the EO ban affected the states' interest in a number of areas, like tax bases (fewer people in the states = less of a tax base), etc. You can read the order here if you want.

But, that doesn't answer the question about why do constitutional protections apply to non-citizens & if they do, why don't they apply to everyone all over the world? So let's turn to that.

Throughout the nation's history, there have been a number of Supreme Court cases that have specifically held that non-citizens are entitled to the protections found in the constitution. This article gives a nice breakdown on the cases.

The basic reasons that non-citizens get those protections is the wording of the constitution. In the Bill of Rights, we see the following language:

"...the right of the people..."
"No person shall be held to answer..."
"...nor shall any person be subject for the same offence..."
"...the accused shall enjoy the right to a speedy and public trial..."

Note that it never says "citizen." In fact, in the entire Bill of Rights, there is nothing mentioned about limiting the protections to citizens only.

Now, when you get to the 14th Amendment, you see this:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

So we have a description of what makes someone a citizen and a prohibition on the states making laws that abridge the privileges & immunities of its citizens. But then, it goes on to say that the government can't do things that deprive any person of the right to due process & equal protection.

Which means, if you are within the jurisdiction of the United States, you are entitled to constitutional protections. They are not specifically limited to citizens only. There are some rights that are for citizens only, such as the right to vote or hold public office. But the protections apply to everyone within the jurisdiction of the United States.

It also doesn't matter if you are here legally or illegally. You get the same protections as citizens. Including the right to due process, which appears to be seriously lacking in the enforcement of the EO (more on that in a moment).

The reason those protections don't apply to everyone in the world boils down to jurisdiction. The US only has jurisdiction, or power/authority, over certain places. Anything considered to be US land or territory is arguably subject to its jurisdiction. So if you are in the physical borders of the United States, you are within its jurisdiction. That means you are subject to its laws & conversely, subject to its protections. It gets a bit more murky when looking at US jurisdiction outside of the physical borders of the nation, such as when dealing with places like Guantanamo Bay. The Supreme Court has ruled that at least some of the constitutional protections apply to places that are US-controlled like that, even though it isn't within the physical borders of the country. But it definitely gets less clear-cut on that front.

However, the main thing the courts look at in those situations is whether that out-of-country location is a place that is considered to be under the jurisdiction of the United States. If it's not, then the constitution doesn't apply. The laws of that government apply. Our constitutional protections apply only to people under our jurisdiction.

Now, let's talk briefly about due process, since that's a major issue in the overall argument against the EO. Due process means that if the government is going to take something from you, you have the right to challenge it and that if the government is permitted to take something from you, the taking needs to be done fairly. That's kind of an obtuse description, so it's easier to explain through examples.

In the criminal court realm, due process typically means "fairness." The right to an attorney to assist you so you aren't going up against the government on your own. The right to a public trial. The right to have a fair trial. Those things go to due process. If the government is going to take away your freedom by putting you in jail or prison, the process by which they do that must be fair.

But due process also applies to other areas of the law that aren't criminal law. For example, if the government wants to take your driver's license away, you have the right to a request a hearing to challenge that. The government can't just take it from you w/o providing you an opportunity to fight it.

This applies to a number of areas. Basically if the government wants to take something, be it your liberty, your property, your benefits, or your rights, they have to provide you with an opportunity to challenge it. They don't get to just snatch it away.

Due process applies even to benefits that the government has given to people, such as government assistance or, in the case of the EO, visas/ability to legally enter the country. In sum, no take-backsies just bc you changed your mind, Government. Once you give it, you can't take it back without due process.

Of course, that doesn't mean the government can never take back benefits its provided. Just that they can't do it w/o due process, where the affected people can challenge it.

Aaaand that's where the problem with the EO comes in. Or at least one of the problems. People had been given visas or other status that allowed them to legally enter & exit the United States. Many people have residences established here, jobs, rent, car payments, family, pets, school, etc. They left the country with the understanding that they were legally allowed to return. Then, for many people while they were in flight, the government suddenly & without notice took that away. They were no longer allowed to enter the country. They had not had any opportunity to challenge this & were suddenly blocked from returning to their lives here in the United States.

That's why the temporary restraining order makes sense. The people affected by the EO that have homes, families, obligations, work, school, pets, mortgages, etc. that were prohibited from re-entering the country were going to be irreparably harmed if the EO were enforced before they had an opportunity to challenge it. Even if they ultimately won the challenge, they may have lost their jobs, been evicted, had their pets die, have their car repossessed, missed too much school, etc. The judge's restraining order puts the EO on hold, which allows the affected people to have due process. And that's so important to our nation's system of government that when the 14th Amendment was written, it was written to provide due process to ALL people subject to the jurisdiction of the United States, not just its citizens.

Okay. Dense enough for you? Good! Then that's it for today.

Tuesday, January 24, 2017

There are rules to this sort of thing

I don't know why it's taken so long for social media to pick up this story from about a year ago regarding a court in Oklahoma ruling that oral sex on an unconscious victim wasn't forced sexual assault under the law, but suddenly it's popping up everywhere. And of course people are all pissed off and screaming about how stupid the court is and how they are blaming the victim and saying it's not sexual assault to take advantage of someone who is unconscious and (insert hyperbole here).

Everybody just slow your roll.

If you've been losing you shit at the court about it, either when the ruling came out last year or recently when it's in the Twitters and the Facebooks and what have you, you are doing it wrong.

I'll explain.

So, th legislatures make laws for their states. They write them, they argue about the particular language, they reach some agreement, it gets signed into law. Then, said law is now subject to interpretation by the courts. This is probably something you heard about in school when they taught you about the different branches of government. The legislative branch makes the law, the judicial branch interprets the law, and the executive branch enforces the law. #CivicsClassThrowback

So courts have to interpret the law that other people wrote. And fun fact: they aren't writing them so it's easy to read or understand. So interpreting them can be difficult.

But! There is something called the canons of statutory construction! Not to be confused with the cannons of statutory construction, where they just shoot books of statutes at you. No, CANONS. A.k.a. RULES. But canons sounds fancier so we use that.

There are a lot of canons. They cover a lot of things and it can be pretty dry and technical. But, the first rule of statutory construction club is we do not talk about statutory construction club. Wait. No. Wrong club. That first rule of statutory construction club is if the language of the statute is clear/plain, the court cannot interpret the statute at all. The plain language controls and there is no further interpretation by the court. Only if the statute is unclear may the court then move on to other canons to try to interpret the law.

For example: if the law said "No one can drink that water from any outdoor man-made pool" that is clear. No drinking from any outdoor, man-made pools. However if the law said, "No one can drink from any pool of water" that is not as clear. "Pool of water" can describe many things. A lake, a puddle, a swimming pool, a bay, a bucket of rain water, etc. So, in the pool of water law, the court could rely on the canons to interpret what the legislature meant. In the first one, they couldn't.

Real world example: in Minnesota, it's illegal to drive a car without insurance in any public roadway. Therefore, according to the plain language, you can drive an uninsured car on a private roadway. I have actually made this argument and won in the past. Plain language is what controls first.

In determining plain language meaning, the court is supposed to rely on customary use of words and dictionary definitions unless the statute says otherwise. For example, the common use of the word "sale" refers to exchanging money for goods or services. In Minnesota, the legislature has defined "sale" for drug charges to mean to buy, sell, give away, barter for, or transfer. So in those cases, the court must use the legal definition for sale because it's been specifically defined.

I haven't been able to find the exact wording of the Oklahoma statute, but from what I understand, the defendant was charged with oral sex by force on a victim who was so intoxicated she was completely passed out and that "by force" was the pivotal word.

Force, in customary usage, means with effort, exertion, something that requires more than ordinary movement, using strength, against resistance. That's why we can open a door or force a door open. One implies it opened with ease. The other implies resistance from the door that requires more effort.

A person who is completely unconscious cannot resist. Therefore, a person performing sexual acts on the passed out person does not have to use force. There's no resistance, no need to exert oneself, nothing beyond routine physical moments.

End of analysis.

But, but, but it's horrible! They took advantage of an unconscious person! It's forceful to do something against the other person's will! Other objection here!

It is horrible, it is taking advantage, but it's not force just because it's against the other person's will. If someone threatens to hurt me if I don't do something, and I do it to avoid getting hurt, I've been coerced. If I'm totally unaware of what's going on, I'm not being forced or coerced.

The first rule of statutory construction club is if the language of the statute is clear, the court cannot do any interpretation & must follow the plain language. End of analysis.

So, yeah, it sucks. It isn't fair to the victim. But the problem isn't with the court's interpretation. The problem is the law sucks. The law needs to be modified. It's not the court's job to make it fit. The legislature needs to do it. They make the laws.

So the court's determination in the case wasn't a tacit approval of the alleged actions. It was a ruling based on the constraints of the law. I'm sure they personally were disturbed by the allegations as any normal person. But that doesn't mean they can ignore the canons. They are bound to follow the rules even if they don't like the outcome.

So blame the legislature for making a law that wasn't good enough. Don't blame the court for doing exactly what it was required to do.

Also, if the court HAD gone beyond the plain meaning, they would have been activist. ACTIVIST JUDGES ARE THE WORST! Well, you can't have it both ways. They can't be activist only when it suits your cause.

Monday, January 23, 2017

New year, new hobby

In an effort to try to find things to help keep my depression at bay I have been taking aerial silks classes recently. I don't know what made me want to do it. It's a lot like climbing the rope in gym class, except prettier (in theory, when done correctly) and I never once was able to climb the rope. I also don't have a lot of upper body strength, which is a lot of what it is. But I have wanted to try it for awhile so I did when I was in Chicago over NYE and had a lot of fun.

So I found classes in Minnesota. I am not very good at it yet but I have managed to get up off the ground and even into a pose that I held for about 30 seconds. It's very hard and I hurt in weird muscles the next day but I am having a really fun time. Even when I look stupid and fall out of the fabrics, it's still fun. And it helps give me something to do that I enjoy and that can help keep me from being too overwhelmed by depression.

Here are some photos of my last class, including the pose I managed to do. My arms and chest muscles hurt a lot the next day!