I totally got a .gif on What The Public Defender's website! Score!
Check it out here: http://whatthepublicdefender.tumblr.com/post/49227680053/when-my-client-initially-tells-me-he-has-an
It's like our two fantastically awesome minds came together for some serious kick-assery.
I freaking love this dumb cat. Wardy is my guy. I honestly don't know what I would do without him. He is such a cuddly, cute, slightly dense, loving furball.
Okay, I know, enough. My crazy cat lady is showing. But I do have to give him a little credit because he did let me cry into his big, chubby belly every night for like a year after YKW left. And purred the whole time. He is happy for any attention...
All right. No more cat talk, I promise. Onto other topics.
I thought I was going to be in a trial today. The client had been wanting a trial for some time. On Monday, we were #2 for trial & #1 was a very short civil case. So, we were going to start ours today. But once we showed up today, the client decided to accept the offer & resolve it.
In the back of my mind, any time I am up for trial, I always have this thought that it just might end up settling. Regardless of how much work I have put in prepping it, regardless of how much the prosecutor refuses to budge off their offer, regardless of how insistent my client is that they want a trial. It. Always. Can. Still. Settle.
There are various reasons for this. Some clients are calling the state's bluff, wanting to see if they really will try the case. When they get there & realize the state will try it, they decide to settle.
Some defendants are certain they want a trial till they get there and then they get freaked out.
Sometimes it's the prosecutors calling our bluff, to see if we will really take it to trial. They have weak witnesses or unpredictable aspects of the case that will only be a concern @ trial, so when it gets to that point, they have called our bluff, we have delivered, and so they modify the offer.
Sometimes witnesses move or disappear @ the last minute.
Sometimes, the original offer is based on an understanding of things that ends up being legally incorrect, so the offer that once was a good offer under mistaken information is suddenly not.
Sometimes it's because the evidence permitted @ trial is dramatically or significantly limited after pretrial motions.
And in one unique case, it was because the judge brought the lawyers into chambers. The judge asked why this was going to trust and what the offer was, which was plead as charged (aka not really an offer). The judge then asked the prosecutor why he wasn't making a better offer because the case was terrible & his witness had major credibility problems. I just about fell out of my chair since I had never seen that before. Lo and behold, the offer then became significantly better!
The point is, no matter how absolutely certain it seems that a case is going to trial, there is always the chance it won't. There is always a chance for a last minute settlement.
Now there is something you don't see on TV.
So, the Boston bombing suspect is in custody. The news and social media and politicians and pundits are all abuzz about whether he should be given a Miranda warning prior to any questioning. "Public safety exception" is being said a lot. As someone who uses this whole Miranda concept on a daily basis, I have a pretty good understanding of it. Sadly, it appears most people do not. So, let's discuss.
Q. When is a person entitled to a Miranda warning?
A. When they are subject to a custodial interrogation. That requires that the person is both 1) in custody and 2) being questioned. Custody isn't just formally being arrested. A person can be in custody for purposes of Miranda without being told they are under arrest. Going into the police station voluntarily to answer questions or give a statement is not considered being in custody, so don't do it & don't be surprised if they don't give you a Miranda warning if you do.
Also, a person must actually be asked questions by officers. If the cop arrests someone & asks no questions, there is no need for Miranda. Despite what is on TV, the police are not required to recite your rights to you as they are slapping on the cuffs. If you start rambling on in the back of the squad without being asked any questions, you're SOL. All that can be used against you. So, shut up.
Q. Do the police HAVE to read someone their rights before questioning them?
A. Technically, no. However, if the police choose not to inform someone of their rights, then the statements made by that person cannot be used against them. If the police decide that they don't want to bother with informing someone of their rights, then they are deciding they don't care that nothing said can be used as evidence. Since that sucks for the police, prosecutors, etc., the police will usually inform the suspect so when the suspect admits to everything, it can be used as evidence.
Q. Do illegal immigrants and/or non-citizens have the same rights as citizens when they are taken into custody in America?
A. Yes. No, there isn't any way to argue that they don't just because they aren't citizens. No. No. Don't even try to make an argument that non-citizens don't have the same protections/rights when accused of a crime as citizens because it's just not correct. They do. End of story.
Q. Everyone has heard Miranda rights being given on TV, so we all know them already. Do the police REALLY have to read them to suspects?
A. Yes. Regardless of how frequently we have all heard them, everyone in custody & questioned should be informed. Even police officers, lawyers, & judges accused of crimes.
Q. Are there times where Miranda doesn't apply but they can still use your statements against you?
A. Yes. If you aren't in custody & police ask you questions, no Miranda is needed & they can use your statements against you. If you are in custody but not questioned and just decide to run your mouth, no Miranda needed. If they are asking you routine booking questions, no Miranda needed. If they are using the public safety exception, no Miranda needed.
Q. What is the public safety exception?
A. It allows police, in a very limited number of cases, to ask questions if they reasonably believe that there is an imminent threat to public safety. Any answers given can be used against the suspect, despite the lack of a Miranda warning prior to questioning.
Q. What is an example of this exception?
A. In the case that crafted this exception, New York v. Quarles, involved a suspect arrested in a grocery some store & suspected of being armed. When arrested, he had an empty shoulder holster & police asked where the gun was located. That was the extent of the questioning. The suspect nodded & said, "Over there." Other examples may potentially include a situation where a suspect is arrested & suspected of putting a victim in a life-threatening situation with limited time to prevent them from dying, where police believe the person may have set a bomb to detonate in a few minutes & need to locate it to deactivate it, etc. The key to this exception is that the police are asking limited questions to address an imminent threat. Imminent meaning immediate or very close to immediate. In contrast, if the victim is kidnapped & location unknown but there is no reason to believe they will die shortly, it's unlikely such an exception would apply. Imminent threat to public safety is required.
Q. Does the public safety exception apply to the Boston bombing suspect?
A. Well, that depends on who you ask. Clearly, the Obama administration has determined it does. My opinion is that it does not. If it does, it doesn't apply beyond asking something like, "Are there any more bombs and if so, where?" The bombings occurred on Monday & no other bombings have been verified since that time. The police have determined that only 2 people were involved, one of whom is now dead & no longer a threat. By the time the suspect is out of the hospital & able to answer questions, even more time will have elapsed. The more time that passes, the less likely it is that this exception will apply. The exception is narrowly crafted for a reason. In my opinion, the Obama administration is stretching the exception beyond its boundaries and completely unmooring it from the purpose for the exception.
Q. But if he is read his rights, won't he remain silent?
A. Ha!!! Like that ever makes a difference. Please. I get maybe one in 1,000 cases where someone actually refuses to answer questions after being read their rights. That concern is really non-existent.
Q. He is a terrible, horrible, no good, very bad person. Why should we care if he is denied his rights?
A. "First they came for the communists, and I didn't speak out because I wasn't a communist.
Then they came for the socialists, and I didn't speak out because I wasn't a socialist.
Then they came for the trade unionists, and I didn't speak out because I wasn't a trade unionist.
Then they came for the Jews, and I didn't speak out because I wasn't a Jew.
Then they came for the Catholics, and I didn't speak out because I wasn't a Catholic.
Then they came for me, and there was no one left to speak for me."
"All that is necessary for the triumph of evil is that good men do nothing."
"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."
That's why. Every time we allow someone else to be denied their rights, we sacrifice a bit of our own protections. We must demand that all suspects, no matter how terrible the offenses or how egregious the acts, are afforded every single due process right. If we don't, we are allowing the government to take them from us. More than that, we are willingly giving them to the government without protest. Terrifying.
So I have a student loan from law school that is extremely overdue. I know it's overdue but there isn't much I could do. I had other bills to pay before that one. My philosophy on bill paying since being on my own & not having enough money to pay everything is that things that can get taken away take priority and get paid first. So, rent, car payment/insurance, utilities, etc. come first. Then, things I need, like food & medications. Last, things that I owe money to but can't do anything but hurt my credit and eventually garnish my wages, meaning mostly student loans and credit cards. Usually those things just go unpaid because I run out of money. Don't get me wrong, it's not that I don't intend on paying them back eventually. I just can't do it right now.
So I have been talking by email with one of my loan companies. I explained the divorce/depression issues of the last year and a half and said I could pay $50/month for now to show I am not blowing it off. The response was: no, that would not work. The best he could do would be to grant me a forbearance that would bring my account current so it wouldn't default and then I would have to start paying the full amount due each month.
I responded that that wouldn't be possible right now, but that I would be able to start paying once I moved in July to a cheaper apartment, so could he get me a forbearance until then?
The response: no. He can only get me a forbearance to bring my account current, not for any future months.
I replied cheerfully (because I don't care that much about paying this off at the moment since they can't take anything from me) and said that that was too bad because I had really hoped we could work something out. It doesn't benefit either of us if it goes to collection, because garnishing my wages will only get them a max of 25% of my net income, spread out among all my creditors who would garnish my wages, which would be well below the amount he was saying I would have to pay. But, it sounded like their was nothing we could do to make this work, since I couldn't pay till July and he wouldn't extend a forbearance until then. Ooooooooh well! We tried! Thanks!!
The response: please call me.
So, we spoke on the phone today and he said, "Ok. You wore me down. I'll give you a forbearance until July. I don't do this for people whose accounts are this far overdue, but you're very persistent."
Yes! I win! I get my account brought out of overdue status, I get to postpone additional payments until July, AND I get a reduced payment amount when I start paying in July. Awesome all around!
I don't know that I have ever "worn down" a creditor before. But I use the same technique in some of my plea negotiations. Polite persistence until the other party just wants me to stop talking and they relent, just to make the whole thing go away.
Being annoying, FTW!!
Hubert looks so cute all the time. His coloring makes it look like he is smiling all the time, even while he is sleeping.
Child A is 13. Child B is 12. They engage in some sort of consensual sexual contact. Putting aside any discussion on the appropriateness, in a moral sense, of that behavior (because holy crap, they are both so young! I was truly terrified of penises @ that age and NEVER wanted to see one, ever), should one or both of them be considered sexual offenders? Victims of sexual abuse? Neither, since they are both around the same age and it was consensual? What if they were both exactly the same age?
Defendants who have a criminal sexual conduct charge who undergo what's called a psychosexual evaluation, meant to determine their risk to re-offend. In these evaluations, they discuss prior sexual events in the person's life, whether consensual or not. I have seen and heard of evaluations which state that the defendant has previous "victims," and the prior "offense" has been when the defendant was young (12-14) and the "victim" is right around the same age. The sexual contact was consensual, yet, the evaluator determines that the defendant sexually abused the other party involved. I'm not sure that I agree with that assessment.
I am obviously not a licensed doctor or therapist who does those type of evals for a living, so my opinion probably doesn't amount to a hill of beans. But, I recall that, several years ago, it wasn't an uncommon situation for parents to find young kids "playing doctor," which inevitably involved taking off clothes and comparing body parts. It wasn't considered a sexual offense; it wasn't appropriate but it wasn't a criminal action. It was curiosity.
And many teenagers are sexually active, generally with each other. The discussion about the morality or appropriateness of teenagers having sex is for a different time. Assuming that they are having sex, with each other, and it is consensual, should we characterize that as criminal conduct and/or sexual abuse? If they are the same age, how do we determine who the perpetrator is and who the victim is? Does it depend on whether one of them later goes on to be convicted of a sex offense? Does that conviction years later transform otherwise non-criminal conduct into criminal conduct? What if they both are convicted of a sex offense in the future?
I find it unsettling to label prior consensual sexual contact between two kids around the same age as criminal behavior or to name one of the two as a victim and the other as an offender. This is routinely done in these evals, without any real research into the facts of the prior event. It's based on the defendant reporting the age @ which the previous sexual event occurred, the other person's age, what contact occurred, and what led up to the contact. If the defendant describes it as consensual, or says that the other person initiated it, the evaluator commonly describes the defendant as "minimizing his/her role" or as "blaming the victim." But, isn't it entirely possible that two 13 year old kids may both be interested in being sexually intimate with each other? Isn't that the common knowledge among adults? Teenagers are walking hormones, who suddenly realize they want to touch other teenagers and have other teenagers touch them. That's why parents are not generally going to let their teenager go stay in a hotel room with their boyfriend/girlfriend. So, why is it so unbelievable that the defendant could have had a consensual sexual encounter as a teenager with another teenager? Why is it so unlikely that the other teenager may have wanted to be sexually active with the defendant or that the other teenager may have initiated the encounter?
Keep in mind, we are not dealing with an 18 year old and a 13 year old, where there is clearly a vast difference in maturity. We are dealing with a 12 or 13 year old and another 12 or 13 year old (or other ages where the two kids are no more than 1 year apart). Why is this considered sexually deviant conduct on the part of the defendant? Is it really that deviant as compared to other teenagers?
It seems that in these evaluations, if a defendant is convicted of any sexual offense, then any past or future sexual experience is automatically considered deviant and criminal, even if it wouldn't otherwise be for anyone else. Masturbate while viewing heterosexual, run-of-the-mill pornography? Totally normal if you aren't a defendant. If you are a defendant, deviant behavior that compounds your sexual predator behavior. Engage in consensual sexual conduct with another teenager the same age as you? Not criminal or deviant so long as you aren't a defendant. If you are, that prior sexual experience shows you have a "history" of sexually abusing others and since you said it was consensual, you are blaming the victim and aren't taking responsibility. If you commit one sexual offense, no matter how serious, suddenly you are considered incapable of having normal sexual experiences and/or desires, whether in the past or in the future.
I realize that sex offenders aren't a popular group. But, are these evaluations really helping identify truly predatory behavior if everything is considered predatory just because the person has been convicted of a sex crime? Even behavior that is normal/non-predatory for others? How do we determine which one of those consenting 12 year olds is the victim or the perpetrator? Is it fair to characterize this as a "history of sexual offenses," if it would not be a history for people who aren't defendants?
It's definitely an interesting question and an interesting can of worms.
Recently, there was a terribly frightening incident in MN where a 12 yr old called police to report a shooter at his school in New Prague. This call caused wide-spread panic, as would be expected. However, the report was fake. There was no shooter at the school, a fact that wasn't known until later, after parents had left work in terror to make sure their kids were safe and after police responded.
The kid ended up being arrested for the fake report. The news reported that he could be facing "serious charges." A discussion ensued in my office as to what, exactly, the kid could be charged with.
The initial thought was a Terroristic Threats charge, a felony. This covers threatening to kill someone and also covers saying that you are going to bomb a place or shoot up a place. Shoot up a place seems to fit this situation. But the nuance is that the charge applies if the defendant says HE is going to shoot up a place, not simply saying that someone is already shooting up the place. So that would not fit, then, since this kid didn't say he was going to do it personally. Just that it was happening.
After some discussion, we ended up concluding that the most likely charge would be a Falsely Reporting a Crime. That's a misdemeanor. Not "serious charges" like the news reported he would be facing.
Of course, I expect that he will likely be charged with something more serious given how much panic the false report called. But legally it seems, based on what we know of the facts from the local media (which in no way guarantees accuracy), there doesn't appear to be a fact pattern for anything more serious than Falsely Reporting a Crime.
As we were all discussing this, Golf joked, "Leave it to a bunch of public defenders to figure out how to get him off!"
Yep.