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!

Saturday, January 14, 2017

Objecting during trial: just because you CAN doesn't mean you SHOULD

Objecting during trial is always shown on tv & movies as a big deal where the attorneys are really upset by the question or answer & when something really important or damaging is about to come out. If you have never seen a trial in reality, the media tells you that if something is being objected to, it's because it's a big deal.

The reality is that oftentimes, objections are about procedural things & are not about some big, hugely damaging piece evidence. The question of what evidence gets to come in or not is dealt with before trial so there isn't typically some surprise damaging evidence. Usually, when I'm objecting, I don't even look up from what I'm writing down for my notes about the testimony. I usually just calmly say, "Objection, hearsay" or "objection, foundation." If I need to say more, I say "objection, may we approach?" So for me, it's never some "oh shit!" deer-in-headlights moment. It generally shouldn't be if I'm doing objections properly, although it could happen every once in a great while.

There's an art to objecting during a trial. The jury is watching everything you do & it's critical to remember that. If you object too much, especially if you are overruled, it looks like you are trying to hide something. That's bad, you don't want that. Sometimes, depending on the situation, you could technically object and even be right about your objection, but it's a better move strategically to not object. Just because you CAN doesn't mean you SHOULD.

I take the following things into account when deciding if I should object:

1. If I don't object, how damaging/improper/problematic will the evidence be? If it's something really minor, or it won't make a difference, maybe it's not worth objecting.

2. How many times have I made this same objection & what has the judge ruled on it so far? If I have made it a lot & lost, maybe I need to either let it go, put a continuing objection on the record, or come up with a different reason for my objection. Obviously, preserving the record is important so if I need to keep objecting on the same basis but I'm not winning, the continuing objection is a good way to get the objection in without looking bad in front of jury. A continuing objection is where you tell the court that you object to the entire line of questioning or of the witness or something like that, so you don't have to say objection every time. It's on the record that you are objecting to all of it.

3. Will objecting be more harmful for my case than not? Sometimes objecting to something draws even more attention to the thing & creates more harm than it does if you just let it go. For example, I've had cases where a witness testified about something & in passing, very quickly mentioned something objectionable. It wasn't great for my cases but it also wasn't super harmful either, especially since it was in the middle of a bunch of other stuff they were saying. I could object, but that may draw more attention to the problem testimony than if i say nothing. Maybe the jurors didn't hear it or maybe they didn't think it was important. By drawing attention to it, I make sure they notice it & that it's likely important. There are times when it's better to let it slide & not put a spotlight on it.

4. Is this worth it? This is where you tell yourself to pick your battles. Often, public defenders & prosecutors & other attys appear in front of the same judges over and over. The judges start to know you & know your style. Like anything, if you're constantly objecting (especially if you're losing) eventually you run the risk of just being the attorney who cried objection. You don't want judges to think that objecting to everything is just what you do & stop taking your objections seriously. As a related example, if a probation officer recommends on every single probation violation that the whole sentence should be served (known as executing the sentence), it loses meaning. If they only recommend execution of sentence on really egregious probation violations, the court is likely to take that more seriously. So, is it worth picking this particular battle?

5. Does it advance or help my case? Lots of time, I could object to small, procedural issues but I don't. For example, if the pros is using leading questions, but the questions aren't about things that I care about for my case, maybe I'll let it slide. Why? Bc it's not that important & I don't want to look like a pain in the ass to the jury.

There are times when it's better to let it go. As an example, let's say that the defense has a paid witness testifying to counter the state's expert. The defense does the direct exam & doesn't mention that the witness is paid by defense. State cross examine & doesn't ask. Back to defense for some redirect & then back to the state for re-cross. During re-cross, the state asks if the witness is paid by the defense for testifying.

Defense objects as outside the scope of redirect. This is technically correct. BUT is this an objection worth making? I would say no. 1. The defense will be able to ask more questions about whether being paid affects testimony, blah, so it will be given context. 2. Overall it's not super damaging to the case bc it's common for experts to get paid to testify. 3 Objecting runs the greater risk of making the defense look bad to the jury, no matter what the judge decides. The question is already out there. You can't unring the bell.

If the judge sustains the objection, the jury may assume you objected bc the witness IS paid & you are attempting to hide that from the jury. That's bad. If the witness wasn't paid, you probably wouldn't object. And if it wasn't important that the witness was paid, you wouldn't object. A jury may wonder if the reason you are objecting is bc you paid the witness to testify a certain way & you don't want the jury to know. And that's if you win the objection.

If the judge overrules you, then it comes out that the witness IS paid and now you really look like you were trying to hide that from the jury. Now they know for sure the witness was paid & that you didn't want them to know about it. And again, that makes you look suspicious.

The best way, in my opinion, to handle that situation? Let the witness answer. Don't object. Would the objection be correct? Yes. But, does it help or hurt me? Is it going to advance my case? Is it worth it?

When it comes to objecting, it's an important tool at trial. But, it should be used intelligently & thoughtfully. Simply because it's possible to make the objection that doesn't mean you always should.