Monday, January 22, 2018

Big exciting news!

YOU GUYS!!!!!! BIG, EXCITING NEWS!!!!!

I got offered a public defender position in the metro! Which means I get to move out of the sticks & back to civilization & closer to my friends & family!

Finally something good is happening! I feel like I've been pushing a boulder up a hill forever & hating so much about my life circumstances. I truly thought I'd never get a PD position in the metro. I felt so trapped & suffocated & like I had a weight dragging me down for so long. And amazingly, suddenly, everything is changing super fast.

I start at the new office on 2/20. I'm already getting cases assigned to me. I am looking for a new apartment & packing up all my stuff into boxes & AHHHHH I can hardly believe it's really real!!

I'm so excited! Also nervous & anxious & scared & sad to be leaving all my work people, but excited for the new changes coming. It feels like such a fresh start, like I'm finally putting everything behind me & shedding my old life fully & just getting a brand new start.

Squeeeeeee!!!! Is this real?!?!

Thursday, January 11, 2018

Here are some times when I was the only one keeping the train on the tracks

I always laugh to myself when people say that they'll never need an attorney because they don't commit crimes or get in trouble. The assumption in that is that the cops, the prosecutors, the probation officers, & the judges always get it right, so they would never get the wrong guy or make a serious mistake.

I'm here to disabuse you of that idea. Allow me to share some real life examples of times when EVERYONE ELSE thought things were supposed to be one way & I was the only one who caught that they were wrong & saved my client from getting railroaded.

Example 1:
I had a client who was out of custody on conditions of release until trial. My client eventually got arrested on a claim that he was not following his release conditions. Specifically, the jail officers had accused him of not coming in to do drug/alcohol testing twice a day. He had only been coming in a couple times during the last few weeks. Police arrested him on a release conditions violation & he spent late on Friday through Monday in jail. The prosecutor filed a motion on Monday to have his release revoked & make him pay money before he could get out again.

I show up to the hearing on Monday. I review the motion, accusing my client of violating because he hadn't been coming to do his twice daily testing. I then looked at the court's order, the order that says what his conditions of release are. Lo & behold, the order says my client has to test twice a week, not twice a day. Not one person had actually looked at the order before they locked my client up (for no reason) for four days.

I showed the order to the prosecutor who had no idea that that was what the order actually said, the judge came out, & I demanded my client be released because they was no legal basis for him to be in jail. The judge released him and apologized to him for the serious mistake that had occurred.

Example 2:
A client of mine was charged with felony perjury for allegedly lying on her application for a public defender. A judge reviewed the complaint & signed off on it.  I got the case & started doing some research on perjury for a  PD application. Someone can only be guilty of perjury of the statement is made under oath after they have been sworn in by a judicial officer. So I pulled the transcript from my client's hearing where she had applied for a PD & found out that the client had never been sworn in or otherwise affirmed under oath that the info in her app was true. I emailed the case law to the prosecutor & the next day, the case was dismissed because the prosecutor realized the charge was improper.

Example 3:
I had a client charged with a felony offense of aiding an offender. Once again, a judge reviewed the charge & signed off on it. In a nutshell, the allegations were that police were trying to find a guy that had a misdemeanor warrant & they went to my client's house looking for the guy. Client told police that he wasn't there (he was). Police asked to come in & look for the guy & my client said ok. Police found the guy & my client got charged with aiding an offender.

I reviewed the statute & saw that it requires that the person aids an offender for a felony offense. The guy was wanted on a misdemeanor warrant, so my client couldn't be charged with aiding him. I pointed it out to the prosecutor.

Prosecutor ultimately agreed, but suggested that the charge be reduced to obstruction of justice. I did some research on what that requires & quickly found that in Minnesota, lying to police (except about your own name/DOB) is not obstruction. In order to be guilty of obstruction, the person has to physically interfere with the officer's ability to do their job. It is possible that a lie COULD physically obstruct an officer, but it would be a pretty rare situation. The best my co-workers & I could come up with was if a cop was arresting your friend & you screamed, "There is a guy with a gun right behind you!" and the cop stopped what he was doing to focus on the guy with a gun, except you were lying to distract the cop so your friend could run away. So it's hard to make it to an actual obstruction charge on words alone.

And in my client's case, all she had done to "obstruct" was to say the guy wasn't there. After that, she actually helped, she let cops come in & search for the guy. That's like as opposite as you can get from obstructing.

So I sent the obstruction case law to the prosecutor & said that my client didn't obstruct. Prosecutor reviewed the cases I had sent & ultimately agreed with me & she dismissed the case. Client avoided a felony case bc I caught the prosecutor's error in charging.

Example 4:
Minnesota has sentencing guidelines that have a complicated method of determining what someone's sentence should be. One factor is a person's juvenile record. If an adult is charged with a felony offense & is under a certain age (I think 24 but can't recall for sure), then their criminal history score can be increased by felony level juvenile convictions that happened after the defendant was 14. You need 2 of those to get a criminal history point. The more points you have, the longer your sentence will be.

I had a client in his early 20s, who had two felony juvenile convictions. The person from probation who did my client's criminal history marked that my client got a point for his juvenile convictions.

I did some digging & was able to find that one of the two juvenile cases was from when my client was only 13. That meant it couldn't be used. Once again, I notified the prosecutor & he looked at what I had found & he agreed that my client should not get that point.

Knocking off a point is a big deal, since it can mean the difference between getting put on probation or being sent to prison.

These are just a few examples of times when everyone else thought it was one way, when it was really the other. My clients would have been screwed without a lawyer.

So even if you are innocent, even if you didn't commit a crime, every if (

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.