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.

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.

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?

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.

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.

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!

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.

Why a juvenile record haunts you forever

Oftentimes, I hear people say things to me like, "It's just juvenile offenses, those don't count." Or "It's a juvenile record so it was supposed to be dropped off." There is a pervasive belief that a juvenile record doesn't count for anything once the kid turns 18. People believe that juvenile records are sealed & can't be used against them in the future. This is a dangerous misunderstanding, bc juvenile records can & do have significant consequences that can last for years.

How can a juvenile record affect someone? Let's review:

1. If the kid is 16 or 17 & charged with a felony, it's public information. It's not confidential, like other juvenile charges. Anyone can find out about it. So the stigma of being labeled as a bad kid/bad person can start very early.

2. Certain juvenile adjudications will have lifelong consequences. Adjudication is what they call convictions in juvenile court. Since juvenile offenses are "delinquency" matters, not crimes, a kid can't be convicted, just adjudicated. In theory... For example, if you get a juvenile adjudication for a felony level "crime of violence" at age 11, you are permanently prohibited from using or possessing a firearm. For the rest of your life. FOREVER. The only way to get that changed is to specifically request that the court grant you the ability to have a firearm again. So, at 11, you can say goodbye to any career goals you had that involved handling a firearm as part of the job. Can't be a cop, in the national guard, can't work in any capacity where you'd need to use a gun. At 11, your career options have already been limited.

3. Planning on working as a CNA, a PCA, a daycare provider, or even just a janitor at a hospital? Make sure you don't have juvenile adjudications (or even charged!) for any number of offenses, because the Department of Human Services will disqualify you from working in any position in any place where you might have direct contact with clients/patients. I.e., the janitor at a hospital. Got into a fight at school when you were 15 & got charged with misdemeanor assault? You're barred from working in those DHS background check required jobs for up to 7 years or more. Doesn't matter that it's not a public record, the DHS can still see it & still ban you. Depending on the charge, it can be a 7 year, 10 year, 15 year, or lifetime ban.

4. If you are a kid who gets charged with an offense that requires an adult to register as a predatory offender, be prepared to register as a predatory offender while you're a kid. And possibly into adulthood depending on how long your registration period is. Even if you end up adjudicated for a different offense that doesn't require registration, if it was from that same incident, you still have to register.

5. If you were adjudicated for two felony level offenses after age 14 & get charged with a felony as an adult under the age of 25, your juvenile adjudications give you a criminal history point, which means your adult sentence is now going to be more serious/severe.

6. In Minnesota, certain crimes are enhanceable. That means having a conviction for that type of offense will automatically make another charge for that offense more serious. So if you've already been convicted of a misdemeanor assault & you get charged with another misdemeanor assault, that now becomes a gross misdemeanor just because you have a prior assault conviction. If you have 2 of them, it becomes a felony, even if it would otherwise be a misdemeanor for someone else. But this doesn't just apply to adult convictions. If you were adjudicated for an assault as a juvenile (fight in school, for example) & then get charged with an assault as an adult, that juvenile adjudication will make the adult charge more serious. Instead of a misdemeanor, you get a gross misdemeanor charge because of your juvenile adjudication.

These are only some of the consequences of a juvenile record. It's simply NOT true that these records are sealed or expunged or dropped off or have not effect on someone after they turn 18. These records can & do follow a person around forever, even if they never get in any legal trouble again.

The more you know.

Let's Tone Down the Hysteria, It's Not Helping

I read this article today about local Minnesota communities passing restrictive city/town ordinances to prohibit Level 3 sex offenders from living within so many feet of various locations like schools, parks, etc. It's typically a knee-jerk reaction to a notification that a Level 3 offender will be moving into the community. And it's a problem.

First let's talk about the status of the law in Minnesota. Unlike many other states, Minnesota does not have a state law that restricts where someone convicted of a sex offense can live. There is a requirement to register the address(es) that the person lives at, the car they drive, the school they attend, etc. And if they are admitted to a hospital or something like that, they are required to notify the staff of their status as a registered offender. But they can live anywhere. There's nothing in state law that prohibits them from living next to a school or a park or whatever.

That's a good thing, despite what the general public thinks. We'll touch more on that in a minute, after we review more info about sex offense laws in Minnesota.

There are different levels given to certain people convicted of a sex offense, but those levels only are given to people who are sent to prison on the offense. So if a person is convicted of a sex crime & is given probation, they don't get assigned a level. There are 3 levels that the Department of Corrections gives to people before they are released. I don't know how the determination is made regarding what level someone is, but it is meant to label them based on how likely it is that they will reoffend in the future. Level 1 is least likely, Level 3 is most likely. I don't know how accurate those labels are, but it is the system the DOC uses.

When a Level 3 offender is going to be released back to the community, the community gets a notification about that person. They are given the name, age, and general location of where they'll be living & a general description of the crime they were convicted of. It's also possible to search for Level 3 offenders in a particular neighborhood on the BCA website.

Generally, Level 3 offenders have committed violent or multiple sex offenses or offenses against children. Not always, but in general. So when a Level 3 offender is released into a community after serving their sentence, the community usually flips out. They aren't exactly welcoming the person with open arms. Sometimes the person is targeted & attacked, other times they are vilified & harassed, sometimes people avoid them, etc.

But, communities, towns, & cities have started to create local ordinances that do what state law has refused to do--restricting where these people can live. The laws are meant to essentially prevent those offenders from moving into the locality. They are prohibiting a person from living within X feet of a park, school, daycare, etc. In the article, it also notes that the ordinance in Dayton also prevents them from living near an apple orchard or pumpkin patch or a bowling alley, among other places.

More and more ordinances like this are cropping up in Minnesota & it's a bad idea. In an effort to protect the public by passing these ordinances, the community makes it less safe.

First of all, Minnesota has a crazy amount of parks. Even the most podunk town is likely to have at least one within a stone's throw from it. So if the state law had geographical restrictions, these people would end up with no place to go.

Adding in other locations like daycares, school, pumpkin patches, etc. means that there are even fewer places available for these folks to live. Oftentimes, the ordinance effectively bans the person from living anywhere within the community.

Do these restrictions help? Well, according to this:

"The Minnesota Department of Corrections examined the 'sexual reoffense patterns of 224 recidivists released between 1990 and 2002 who were reincarcerated for a sex crime prior to 2006' and concluded that not one of the new offenses would have been prevented if residency restrictions had been in place."

Moreover, it goes on to say that:

"Study findings suggest that those with histories of any kind of criminal offense reintegrate more successfully when they are offered social support and opportunities to reintegrate into society through housing and employment."

And according to this article:

"Without exception, the longer offenders remain offence-free in the community the less likely they are to sexually recidivate."

And in this one:

"Empirical findings indicate that stable employment diminishes the risk for reoffending in sex offenders. A study conducted by Kruttschnitt, Uggen, and Shelton (2000) indicated that sex
offenders who were steadily employed were 37% less likely to reoffend."

"The best evidence linking housing stability and recidivism is found in a study of 81 child molesters(Willis & Grace, 2008): the authors identified housing as a significant predictor of sexual recidivism, even after controlling for other factors."

"With regards to social support, studies having evaluated the effectiveness of Circles of Support and Accountability (COSA) indicate that social support is associated with decreased recidivism in sexual offenders."

So, empirical research shows that people convicted of sex offenses are less likely to reoffend if they have housing, employment, & the social supports provided by a community. But instead of taking the research & implementing it, locales have barred these folks from finding the very things they need to lower their risk.

They can't get a stable place to live bc of housing restrictions, causing some to have live under bridges. They can't employment bc they don't have a residence or a phone for employers to call them for an interview or the employer won't hire someone convicted of a sex crime. The ordinances prevent them from attending church or going to a bowling alley or otherwise join community groups since they can't be in or around those areas. Essentially the ordinances strip away every possible risk-lowering factor available, under the guise of making the public safer.

The Level 3 offenders that are released to the community are under strict supervision. Oftentimes it includes GPS monitoring, curfew restrictions, movement & travel restrictions, etc. They are heavily monitored during the time immediately following their release into a community. The studies show that the highest chance of recidivism is the first few years after release from prison & the longer the person is out in the community without new offenses, the more the likelihood of a new offense goes down. So, getting these folks steady & stable after their release, getting them employment, a residence, and involved in their community all works to make the community safer & the risk lower.

So the ordinances are poor solutions to prevent future offenses from those convicted of sex crimes. They create an environment where these folks are at an increased risk of returning to criminal behavior.

The Minnesota legislature was intelligent enough to not create these types of restrictions in state law. Local ordinances should not be allowed to counteract that decision.

Brock Turner & why judicial discretion matters

Recently I was talking about the Brock Turner case on Twitter & a friend asked me to discuss it more in depth in a blog post. So, as requested, that's what I'm discussing today. I take requests now!

So first up, some background details since my friend has actually missed all the hype about this case. Brock Turner was recently convicted of sexually assaulting a woman. Both he & the woman were (are?) in college. It was a pretty bad assault. Two other guys happened to come up on Turner digitally penetrating the victim while she was passed out behind a dumpster & in pretty rough shape. Turner tried to run away when the other guys came up, but if I remember correctly, one of them was able to catch him.

He went to trial & was convicted. After trial (and after most guilty pleas) the defendant usually goes through a pre-sentence investigation of some kind, where a probation agent meets with the defendant & gets info about them & makes recommendations to the court as to what an appropriate sentence should be. The court can follow those or not. In Turner's case, the recommendations were that he be given probation. The state was asking for prison time. The judge went with the recommendation for probation & sentenced Turner to 6 months in jail (he ultimately served 3) followed by probation. The judge noted that Turner was an athlete & that it would be detrimental to his future if he went to prison & that he felt like the probation recommendations for probation were more appropriate.

The entire online world subsequently lost its collective mind over this sentence. There are efforts to have the judge removed from office bc of his ruling in the case. California, where the case took place, passed a law just recently as a result of the case mandating a specific amount of incarceration for a conviction like this in the future, so as to prevent a judge from doing something similar in the future.

So, that's the background info that led to my Twitter conversation about the case. Now onto the discussion portion.

I'm very much in the minority on this, but I don't support the backlash against the judge in this case, or the effort to remove him, or the new law requiring incarceration. I firmly believe judges should have discretion to craft what they determine are appropriate sentences for people. I loathe mandatory minimums. Mandatory minimums are a lazy way of handling the criminal justice system.

Mandatory minimums (referring to laws that require a mandatory minimum amount of time that has to be served if convicted of a specific offense) treat defendants like widgets on a factory line. Everyone gets treated exactly the same no matter what. In theory, that sounds great. No concerns about racism bc everyone gets the same sentence. No concerns about economic disparities bc everyone gets the same sentence. Etc.

The problem is that every case is different, every victim is different, every defendant is different, every set of circumstances is different. Yet mandatory minimums want to treat it as if every case is exactly the same. And the legislature makes mandatory minimums as a way of preventing a judge from making a thoughtful decision about a sentence. It's just, "well, you get this sentence bc it's a mandatory minimum." It's much more streamlined than actually parsing through information & making a decision. That's why it's lazy.

Let's do an example here of why mandatory minimums that treat everyone the same are problematic.

Scenario 1: A 29 year old man breaks into a home & violently assaults the people inside with a gun & gets convicted of a felony level offense for burglary & assault. Goes to prison, gets out. He has a long criminal history of violent offenses. Shortly after getting out of prison, he purchases from a friend a stolen gun that's been modified into a sawed off shotgun, which is illegal. He plans to go break in & assault another family. Because of his felony convictions, he's unable to use or possess a firearm.

Charge: Felon in Possession of a Firearm
Mandatory minimum: 5 yrs in prison

Scenario 2: An 38 year old has a prior juvenile adjudication for a burglary from when he was 14. No other prior criminal history other than his juvenile adjudication. Family man, working full time, went to college, etc. He has struggled with depression for most of his life & one day it gets into his head that he should end things. He tells his friend he can't take it anymore & is going to kill himself. He takes his friend's gun & leaves. Friend calls the police to prevent him from killing himself. Police manage to find him before he hurts himself. Unbeknownst to him, his prior juvenile adjudication makes him a "felon" for purposes of the Felon in Possession of a Firearm law. Therefore, he is unable to use or possess a firearm.

Charge: Felon in Possession of a Firearm
Mandatory minimum: 5 years in prison

Now, those are two very, very different defendants with very, very different facts in their cases. But the mandatory minimum law doesn't care. It requires that both of those men go to prison for 5 years. It makes no difference that one man had a violent criminal history & the other had one juvenile adjudication. It makes no difference that one man was going to hurt others & the other was suicidal. Mandatory minimums do not care.

And in many places, the judges cannot do anything other than give the mandatory minimum, regardless of the circumstances of a case. In Minnesota, judges can depart from the mandatory minimums, but it is the defendant's burden to show why the judge should & it's extremely hard to get the court to do it. In all my time as an attorney, I have only gotten one once unless it was a part of a plea agreement. The requirements are that the court give the mandatory minimum in almost all cases.

The problem is that people & cases are widely different. Not everyone should get the same sentence, even if it's the same charge. In an effort to treat everyone the same, the law has become extremely draconian & unfair.

Judges are in a position to evaluate the person as a whole & the case as a whole. They have the opportunity to hear from multiple people in the case, including the probation officer, the prosecutor, any victims, the defense attorney & the defendant. They get to see confidential info on the defendant, like medical records, mental health records, treatment records, etc. They get to decide what an appropriate sentence is for a particular defendant in a particular case after reviewing multiple pieces of information. A judge may decide that one person should receive a more lenient sentence than another person or a more harsh sentence. That's the role of judges, to decide the sentence. That's judicial discretion.

Mandatory minimums strip judges of their discretion. It doesn't matter what the facts are or what the information is. Everyone is given the same sentence, regardless of whether it's appropriate or not in a given case. It's a cookie-cutter solution to criminal justice.

I'm sure people will say that without mandatory minimums, people will "get off" or not have consequences. But mandatory minimums are a sledgehammer solution. In an effort to make sure no one who should get a harsh sentence avoids punishment, the laws end up hammering people who don't deserve that severe of a punishment.

Judges are supposed to use discretion. They are supposed to craft sentences they feel are appropriate for a particular case & particular defendant. If we continue to chip away at judges' discretion & force them to give everyone the same sentence regardless of the situation, we may as well just get rid of judges altogether, since we'll just be an assembly line justice system, fully automated, no need to review each case individually. And that is a scary way of doling out "justice."

I'm still hanging on

I'm still here. Still hanging on. It's not easy. Every day feels like a mountain to climb. But I'm still climbing. I don't really know why on some days but I do it.

I am still stuck in the sticks, which is soul crushing. But I do get to go to DNA training, which I've been wanting to do for awhile but didn't think I'd get the chance. Only a few of us get to do it & then we are supposed to help with others' cases involving DNA. So my boss wasn't sure if he wanted to burn a spot on me, knowing I don't want to stay in the area. I didn't expect that he would, although I really wanted to go. So it was a big surprise that he picked me as one of the people to go. It's pretty cool. I'm really excited about it. It's like one of the few silver linings I've got going for me lately.

I'm leaving for vacation tmrw, a road trip with my mom. Should be pretty good. Going to a couple national parks. It will be nice to get away for awhile. Maybe a change of venue for a bit will help brighten my mood, at least temporarily.

Thank you to all of you who have reached out in the comments to tell me you're thinking of me & sending good thoughts my way. It really means a lot. It helps me to feel less down. You all are the best. Thank you more than I can say.

The Right to Bear Arms, Part 1

I feel like discussing something other than my depression-induced misery, so in a change of pace, today's post is about gun control. Obviously, the recent tragedy in Orlando has brought this to the forefront of the national conversation again. Sadly, "again" has to be added to that sentence because these types of horrific incidents are all too common. Mass shootings in public locations have become par for the course. Go to a political event, run the risk of being shot & killed. Go to a movie, run the risk of being shot & killed. Go to college, run the risk of being shot & killed. Go to a nightclub, run the risk of being shot & killed. Go to the mall, run the risk of being shot & killed. Go to a place of worship, run the risk of being shot & killed. Even going to elementary school now comes with the risk of being shot & killed. Every public location seems to be fair game for people intent on shooting & killing others.

So the rallying cries of "citizens do not need assault rifles! Stricter gun laws needed!" sound from the left & "what we need is more people with more guns to shoot back! No more gun laws are needed!" sound from the right. It's an endless stream of the same things we've heard after every single one of these incidents. And ultimately, nothing ever changes because each side is beholden to the party line.

But something must change, unless we are willing to accept a routine mass shooting as payment for living in America.  The problem cannot be solved, however, until both sides are working with a correct understanding of what the 2nd Amendment is about. So let's start there.

The 2nd Amendment is not about hunting. It's not about protecting your home from an intruder. It's about protecting the citizens of the country from the government. Anytime you consider anything in the Constitution, it is important to remember that it was written by people who had lived under a government that they felt was unduly oppressive. It was written by people who had seen the lengths that oppressive government would go to in order to maintain its control & power over the citizenry. It was written by people who had seen the necessity to physically fight back in war against that oppressive government. It was written by people who feared a repetition of history by allowing the same conditions to develop again & allowing another oppressive regime to take power of the newly formed country. It was written by people who feared the government & who wanted to ensure that the citizens were protected from the government. That context is crucial in understanding any part of the Bill of Rights. It's why criminal defendants have so many rights, like a speedy trial, prohibition against cruel & unusual punishment, to confront their accusers, etc. Because historically criminal defendants were railroaded by the oppressive government & the Founding Fathers wanted to ensure that couldn't happen in this newly formed country. It's why the federal government cannot quarter soldiers in your home. It's why police are required to get a warrant to search & why that warrant must specifically state what the police are looking for & where it is likely to be located. Fear of government drove the creation of the Bill of Rights. And that includes the 2nd Amendment.

The right to bear arms also mentions the need for a well-regulated militia. A militia isn't a hunting group. It isn't a home security system. It's a line of defense in case of war, almost always against one's own government. The right to bear arms means the right to physically fight back, if necessary, against the government. And that means that yes, citizens do need access to assault-style weapons. Because IF an armed conflict against the government were ever necessary, then the citizens need to be armed with the necessary weapons to fight back. If the government gets AK-47s & the government also says that the citizens can only have access to a 6-shooter, then the theoretical armed conflict is controlled by the government & the citizens have no chance at winning & an oppressive government gets to maintain its power w/o any way for the citizens to resist. The weapons need to be matched, the playing field needs to be level.

Is it a likely scenario that we'll ever come to an armed conflict against the government, a la the Revolutionary War? No. It's not. But that doesn't change the fact that the 2nd Amendment was written with that scenario in mind. It doesn't change the fact that the right to bear arms means the right to bear arms against an oppressive government as a last resort. The Founders attempted to achieve their goals in a peaceful manner through the proper channels in the government. When that failed, they declared independence from Britain. And when Britain came to keep the states from seceding by force, the citizens fought back. Sure, it was considered treason at the time. But they won, so it wasn't treason under the newly formed country. The fact that it's an unlikely scenario, that it's a last resort, doesn't change the reasoning for the 2nd Amendment. It is not meant for hunters. It's not meant for personal protection of your home against a burglar. It's meant to allow citizens to have access to weapons that would be needed in the event of an armed conflict against the government, should it ever come to that again.

To prohibit the citizens from having access to assault-style weapons is to permit the government to maintain its power & control over citizens. When the people in power are benevolent, there's no concern from the citizens about letting them have unchecked power. But when the power is unchecked, a benevolent leader can become, or be replaced by, a tyrannical one. Absolute power corrupts absolutely. So, should regular citizens have access to assault-style weapons & weapons used in war? Yes. Otherwise we stand no chance against a tyrannical leader using force against us to maintain control.

But do we need gun control laws? Yes. And that will be the discussion for the next post on this topic.

Barely functioning

I want to say thank you to everyone who has reached out since my last post. It may not seem like much to send a comment, but it means a lot to me, especially right now when I'm struggling so much to keep my head up. Hearing from you all, people who I don't know & almost surely will never meet, helps me to feel less like giving up. I cannot express how grateful I am for all your support.

I am trying to keep hanging in there. It's hard. It feels like a 10,000 pound weight on my chest most days. I want to curl up on my couch & cuddle Ward & Hubert & sleep & shut the world out. That's the easiest path, the path of least resistance. Getting up in the morning, getting dressed, going to work, being in court, counseling clients, working out, making dinner, running errands, cleaning the house...it all seems overwhelming most days. It seems impossible on some days. As if I've been asked to fly to the moon. It's easier to just give in & curl up & sleep.

Work has agreed to give me a 2 week reprieve on case assignments to help me feel less overwhelmed by everything. I don't think that a complete leave of absence would do me any good, since I'd just end up bawling on the couch all day & that would make me feel worse. But a slow-down would help. That way I still have a reason to get up in the morning but I don't have so much on my plate. I hope it helps me feel less like I'm in a sinking hole.

I have an appt w/ my doctor to review my meds & see if there's something better that I can be on to help with my symptoms. And I still see my therapist on a weekly basis. I'm doing what I can to try to stay afloat. But every day just feels like an insurmountable obstacle. It feels like nothing will get better & I will just spend my entire life pushing a boulder up a mountain. I try to tell myself it's just the depression talking, that it isn't true, that nothing can be bad forever. But logic goes out the window when depression is involved so it doesn't make me feel better to tell myself those things.

All I can do right now is go to work & then go home to sleep. I can't do anything more than hang on by my fingernails.

My absence

I've been gone for awhile without meaning to be. I've been grappling with some incredibly intense depression the last few months & trying to keep my head above water. I didn't get the federal PD job & things have not been going well lately. I've been struggling to put on a happy face & pretend I can make it through, but the truth is, I don't think I have it in me anymore.

The divorce almost broke me. That was a sudden, deep blow that almost snapped me in two. Lately, it's not a sudden blow. It's an accumulation of years of struggling & pain & hurt & disappointment. It's the weight of a thousand little hurts that are crushing me. It's my resolve to keep going, slowly fading away. Like an injured warrior, losing blood from wounds, trying to keep fighting, but eventually her body gives out & she can't go on anymore. That's how this feels.

The divorce was just the most serious of the wounds. Maybe if it was just that one, I could survive. But the emotional trauma started well before the divorce. I was damaged long before then. The divorce was just the deepest hurt.

So I have been gone, struggling just to keep going. I don't have anything left anymore. Every last ounce of strength I had is gone now. My reserves are used up. I have nothing left.

I don't have it in me to care anymore. I don't have it in me to keep trying & hoping for happiness. I won't find happiness. This is my lot in life. If I accept it, instead of hoping things will change, then I can't be disappointed when those hopes are destroyed.

That's why I've been gone. The last of my strength was going towards trying to hang on, trying to overcome the depression. And now, it's just swallowed me whole. And I'm not able to fight it anymore.

I am a shell of a person now. The world has sucked me dry and plucked out every good thing in me. I am now hollow & going through the motions of life.

It's #PublicDefenseDay!

Today is important but most people don't realize it. That's because today is the day that, 53 years ago, the US Supreme Court held that a person accused of a crime who could not afford an attorney must be provided an attorney. The case, Gideon v. Wainwright, was a landmark ruling.  Prior to that case, a person who could not afford an attorney was basically S.O.L.  They had to represent themselves against the full force of the government's power.  It was a modern-day David versus Goliath.  

Clarence Gideon's tale is not only notable for its creation of the right to court-appointed counsel, but also because the underlying criminal case demonstrated so perfectly why it was unfair to make a person proceed without counsel when they wanted one.  Gideon was charged in Florida w/ breaking and entering with intent to commit larceny, after a local pool hall was broken into, vandalized, and burglarized my an unknown person.  A witness said he'd seen Gideon leaving the pool hall that night with money and wine in his pockets.  That was enough to get Gideon arrested and charged with the crime. 

Gideon appeared in court and requested an attorney to help him defend against the charges. At that time, only people who were charged with capital (read: death penalty) cases were able to have the court provide them with an attorney. When Gideon requested an attorney, the Florida court told him, in a nutshell, "No attorney for you!" (Imagine the Soup Nazi voice).  To which Gideon gave the most perfect, beautiful, and succinct response: " The United States Supreme Court says I am entitled to be represented by counsel."  Sometimes the simplest answer is the best. 

However, Florida, being all Florida about it, still wouldn't give Gideon a lawyer. So, he had to represent himself at trial. And he did. He didn't plead out or plead no contest. He took that em-effer to trial and maintained his innocence the entire time. However, he was going up against a trained prosecutor, who had the full force of the government, police, etc. on his side and who had (presumably) gone to law school and had experience in trying cases.  Unsurprisingly, being outmatched, Gideon was convicted. He was sentenced to 5 years in prison. 

But our hero Gideon refused to give up. Instead, he took it upon himself to write a petition to the United States Supreme Court, arguing he had been denied due process of law by being forced to go to trial without the aid of an attorney, in violation of his Sixth Amendment right to counsel, as applied to the States by the Fourteenth Amendment.  He wrote the whole thing in PENCIL. By HAND. From PRISON. 

He toiled away at the prison library to be able to get this thing together.  It's actually fairly well written, despite some errors in grammar, syntax, etc. He did a damn good job. You can read the whole thing here. And you should--it's not that long and it's worth seeing how this one man's handwritten, penciled petition changed the entire legal landscape. 

And the US Supreme Court decided to hear his case. The Court gets hundreds of petitions a year and they get to choose which ones they want to hear.  There's only a small number of cases they are obligated to hear. Most of the cases that the Court hears are because the Court has determined it wants to hear them. And of all the cases that request a chance to be heard, the Court hears roughly 80 a year.  So, Gideon's chances of having his case heard by the Supremes was not high. Somehow, he hit the jackpot and got his case in front of the Court. 

Interestingly enough, almost as if they were tipping their hand a bit, the Supremes appointed an attorney to represent Gideon at the Supreme Court.  That attorney was Abe Fortas.  Fortas later went on to become a Supreme Court justice himself. 

On March 18, 1953, the United States Supreme Court ruled in Gideon's favor.  The Court held that the State of Florida had violated Gideon's rights by refusing to appoint him counsel and remanded his case back to the Florida court for further action in line with the Court's new ruling.  The Court's decision impacted every criminal defendant in the United States, not just Gideon.  The Court had said that assistance of counsel by a person who wanted it but could not afford it was a fundamental right under the US Constitution and that providing attorneys to indigent defendants was essential for a fair trial and due process of law.  That meant no one accused of a crime who couldn't afford a lawyer could be forced to defend him or herself without the help of an attorney. 

TADA! Creation of the "public defender." 

So, back to our story...Gideon's case was returned to Florida and since he was deprived of a fair trial the first time around, he was given a new trial.  This time, with an attorney to represent him. And you know what happened??? 

Ready??

Want to know????

Gideon was found...


NOT GUILTY!  Of the very same charges he was previously convicted of and sent to prison for 5 years! Because his attorney--his court-appointed attorney--was able to discredit the only witness during cross-examination and destroy the State's case. And the jury took only one hour to acquit Gideon. 

Five years in prison to a complete acquittal.  Same charges, same case, same witness.  The difference? An attorney. 

Gideon's case illustrates the reason why the Supremes ruled the way they did.  Because it's fundamentally unfair to make a person have to defend themselves in court without help against a criminal charge against a trained, experienced prosecutor.  And if the playing field isn't fair, then the results get skewed. As in Gideon's case. He was unable to effectively defend himself, but once he had help, he was acquitted and walked out of prison. 

It's a great story. It changed the entire criminal justice system, for the better. And, the original case shows why legal counsel is so necessary. No one would perform their own surgery--why make someone perform their own legal defense?  Both are technical, complicated worlds that don't often make sense to outsiders and that have a language all of their own. And both have serious consequences if done poorly or incorrectly. 

So, Gideon's case left a lasting legacy for all criminal defendants. The full force of the law and the faceless government could no longer overrun the little guy. Now, the little guy got to have their own fighter to get in the ring and throw some punches. 

Are the sides perfectly, evenly matched? Of course not. The financial disparity between the two sides is stark in many places. But, even if it's not a perfectly level playing field, it's better than it was. And those of us who are here, in the ring, throwing punches against the giant Goliath that is the government are doing it because we want to, because we love the fight, because we love the thrill of victory against the enormity of the State, because we like helping the underdog, because we care. 

Society as a whole doesn't particularly like us. We represent "criminals" and "bad guys." We get people off on "technicalities" (also known as "your constitutional rights"). We stand beside the loathsome, the unwanted, the overlooked, the reviled, and we fight for them. Society doesn't understand how we can sleep at night, defending people like those in Gitmo or people accused of child rape or murder or any number of terrible crimes. They don't get it because they don't understand it's not just about this one client, this one case, or this one charge. It's about more. It's about upholding the idea that we live in a country that values fairness and justice.  That we would rather have it done right.  That we uphold and protect the things our ancestors fought and died for, that the Constitution was created for. 

I am proud to be part of a group of people who defend those that society reviles.  I am in good company. John Adams defended the British soldiers in the Boston Massacre and Abraham Lincoln defended many people charged with murder*.  If I get to be in the same ranks as those people, I am proud.  

I am proud to be a part of Gideon's legacy. I am proud to stand by my clients and step into the ring to throw some punches. I am proud when I get a TKO on Goliath.



*You can read more about how public defense is awesome in this editorial over at Slate.com. 

Time to make some changes

I've decided I need to move. I have lived in rural town for almost 3 yrs & it has not been a good move for my mental health/depression issues. So it's time to do something to make myself happier. And that means moving back to a location closer to my friends & family.

The commute will suck, since it will double my drive time. But I think it will be worth it to have my social life back again. It will be worth it to not feel so isolated & alone.

When I moved to my current location, I had a car payment that ate up a big chunk of money. I paid my car off last year, so I don't have that expense anymore & that means I can afford more for rent. So that frees me to move.

I found a place I'm interested in. There aren't any open units right now, but it sounds like there will be in the future. And that will give me time to pack, etc.

Having a plan to move makes me feel less trapped by my life. It makes me feel like there's a light at the end of the tunnel. And eventually I.hope to get a job near the metro, too. But until then, I can at least live somewhere that makes me happy.

Also I finished my couch! Here's the final result:

The biggest project I've ever done!

So I have had my couch for about 10 yrs & it looks like it. The cats have torn the sides & arms up, so the foam is coming out. I want a new couch, but I don't have the money & I don't want the cats to rip up a new one. So, I decided I should just re-upholster the couch. I've never re-upholstered a single thing in my whole life, so of course why not start with a super big piece of furniture & the only piece in my living room?? Sounds reasonable!!

To the internet I went, in order to find out what it takes to redo a couch. New fabric. Some stuffing to redo the spots that the cats have torn out. Thread. Ability to sew. Staple gun. Really the only thing I didn't have was a staple gun.

But whoa, the amount of fabric needed for the project was huge & upholstery fabric isn't cheap. I could just buy a new couch for the cost of the fabric. After a little more internet searching, I found out that canvas painter's drop cloths are a cheap way to get a lot of fabric! Who knew?? Canvas isn't the softest but for a couch I figured it would be fine.

However, the canvas comes in beige & I'd decided I wanted a robin's egg blue couch. Which meant I needed to dye the drop cloths. This is not a small task. I used 12 bottles of Rit dye & 3 packages of powdered dye. I had to go to 4 different stores to get enough dye. Then I had to dye all the fabric in my bathtub since I needed a container big enough to hold 36 gallons of water. And then I had to make sure the fabric was constantly in motion, so it didn't get streaks or dye unevenly. It was a weird night, me with a big ass wooden dowel, standing over a bathtub full of water that is so dark it's almost black, stirring away for like 45 minutes. But, it was worth it! The color came out exactly the way I wanted it to & looked great!

I next tore off the fabric from the couch cushions & seats & used the old fabric as the pattern for the new fabric. I took the brown piping from the old fabric & recycled it on the new fabric bc I thought the blue & brown would go great together. So I did the cushions & the seats.

I don't want the cats to tear up the new fabric, so I did some additional research & found out that they sell vinyl sheeting that you can attach to your couch so the cats can't scratch the fabric. Good idea, except it looks really obvious that you have plastic on your couch. I love my cats, but I'm not ready to clearly announce that I'm a crazy cat lady to everyone that comes into my apt. I mean, I'd like to date someone again, so... I had to come up with an idea.

Which became taking the vinyl sheeting, sewing it to a contrasting piece of fabric on the back, & then spraying the front with a clear coat that takes away some of the shine. Those pieces then get attached w/ brass furniture tacks like you see in fancy leather furniture. That way, the vinyl sheeting looks more like it actually belongs on the couch, rather than something I added on.

I'm almost done with the couch. But I need a staple gun to complete the project. And I don't want to spend money to buy one so I can use it for one project.  So, I asked Guy if I could borrow one from him. (Yes, Guy & I still talk. Story for another day.) I just wanted to borrow the gun, so I offered to pick it up & bring it back if he could loan me one. He asked why I needed one, I told him my plan, & he offered to come help me. I told him he didn't have to, but he said he wanted to & he'd bring 2 staple guns so we could get it done really quick. So next Saturday, he's coming over to help me finish it up.

I've got the cushions & seats done & the vinyl pieces are ready to be attached once it's time. I'm super excited about the way it's looking so far & really excited about how it will look when it's all done. It's going to look so awesome! And so much more affordable than buying a new couch.

Pictures of the project so far are included. I'll post a picture of the final project when it's all done!

Scalia was a strange character

Supreme Court Justice Antonin Scalia died yesterday. He's been an outspoken force on the Court for as long as I've been interested in the law (late high school/early college) and most everyone who is somehow in the legal world has an opinion of him. Many people not in the legal world do, too.

Scalia was an interesting character in the Court. Oftentimes, I found myself frustrated & disgusted with things he said or wrote. He was a phenomenal writer, even when I wanted to scream bc I disagreed with him so strongly. But I was often at odds with his position on issues & I never counted him among my favorite justices (yes, I have favorites...RBG, I'm looking at you). His social views were appalling to me & I found much of his opinions lacking in any sense of empathy or feeling.

That being said, I cannot deny that some of the most important decisions in the realm of criminal law have been from Scalia. Before Scalia, the Confrontation Clause was essentially meaningless. The Confrontation Clause is the part of the Constitution that says if you're accused of a crime, you have the right to face your accusers in court & make them answer questions. In the past, it was permissible for hearsay statements to come in as evidence against a defendant if the judge determined the statements were reliable. No live testimony needed, just a submission of the statements. Scalia wrote the Crawford decision, which ended that practice. If someone is accusing you, you have the right to make them do so under oath & subject to cross-exam. The importance of Crawford can't be overstated. It changed the way trials & courts operated in a major way.

Scalia is also the reason that an actual scientist/lab person now has to come into court & testify about their results, rather than just submitting a report & calling it good.

Scalia was also a staunch supporter of the 4th Amendment & had a hearty distrust of the State as an actor bc the Founders had that same distrust. He often reminded the judiciary that judges are part of the State & that's why a jury is so important, bc they are NOT agents of the government. He wrote a brilliant dissent in Maryland v. King about the collection of DNA samples from people arrested for crimes but not convicted, in which he skewered the majority for trusting that the government would keep its word & limit the use of such DNA.

Scalia was a justice that I often felt was lacking in compassion & mercy, that was too hard-lined for my taste, and whose social views I absolutely hated. But I cannot completely vilify the man bc he also was a champion of the 4th Amendment & the Confrontation Clause, which are extremely significant legal areas.

I hope that whoever replaces him upholds the good things Scalia brought to the Court while also doing better in areas that Scalia was lacking.

So exciting!!!

I have a first-round interview w/ the federal PD office!!! I'm so over the moon that they are even interested in me enough to want to interview me. It would be absolutely incredible if I were to get the position. Even if I don't, being picked for an interview with the feds is SO cool!

Here's hoping!

More about DWI cases

To the person who wrote me a recent comment that I'm not going to publish, I want to say thank you so much for what you said. It was really touching & lifted my otherwise-rather-glum spirits. Thank you for taking the time to reach out & tell me your thoughts. It meant a lot.

In rather exciting news, a case from Minnesota has been picked up by the United States Supreme Court!!! This is probably the closest I'll ever get to being at SCOTUS, so I'm nerding out about it. It's even a case I've talked about to you all! It's the Bernard case involving whether or not the state can make it a crime to refuse to submit to a dwi test. I've voiced my opinion that I think it's wrong to charge a person with a crime for not consenting to a search. And the law in Minnesota on this topic continues to be a moving target. The court of appeals recently held that the state cannot make it a crime to refuse to provide a blood sample. The Bernard decision had dealt with breath samples--it's ok for the state to charge you with a crime if you refuse a breath sample.

So, presently, here's what we know on this topic:

If you're arrested for a dwi & refuse to provide a breath sample, you can be charged with test refusal.

If you're arrested for a dwi & refuse to provide a blood sample, you can't be charged with test refusal.

If you're arrested for a dwi & refuse to give a urine sample, who the hell knows? The courts haven't decided this yet.

To make the cluster even more fucked, the statute says that if a cop first asks for a blood sample & the person refuses, a urine or breath test must be offered instead and if a cop first asks for a urine sample & the person refuses, a blood or breath test must be offered. So you can refuse some tests but not others & some we don't know if you can refuse & sometimes the cops have to offer you a different test which you may or may not be able to refuse.

So. That's fun. Good luck trying to understand that mess.

The right to refuse the blood test causes the most trouble for drug-dwi cases, when it's not alcohol that's the issue, it's drugs. Unlike alcohol, you can't smell it on someone & it doesn't show up on a portable breath test. And many of the "possibly high" indicators are also "possibly medically related" indicators. I had a dwi case once where the police thought it had been drugs, but turned out the guy had had a seizure. Slow cognition, droopy eyelids, confusion, garbled speech...hard to say what causes that without a tox screen of the blood. And any defense attorney with half a brain would be able to get a case like that either outright dismissed or to win at trial if there's no proof of any drugs in the person's system. In the past if a person refused to give a blood sample, they'd still get charged with a crime for refusing. (The most ridiculous parts of the test refusal statute are that 1. The penalty for refusing is almost always more severe than failing the test, so ACTUALLY DRIVING WHILE INTOXICATED is less serious than not giving a sample and 2. Yo can be charged with & convicted of a dwi-test refusal even if you were 100% sober. So combine those two stupid things and you wind up with the possibility that a completely sober person who values their civil liberties & refuses to consent to a sample gets a gross misdemeanor dwi-test refusal charge with the possibility of a year in jail, while an actually intoxicated person driving with a BAC of .15 gets charged with a misdemeanor dwi with the possibility of 90 days in jail. Way to keep our roads safe, legislators!!!!)

The easiest fix to all of this is to just make cops get a warrant for a blood, breath, or urine sample. Then there's no arguments to be had about the test refusal law & what type of tests you can or can't refuse, etc. When I get a case w/ a warrant involved, my immediate reaction is, "well shit" bc most of the time, that will prevent any 4th Amendment arguments about unlawful searches or seizures. All that terrible, horrible, damning evidence that tanks any case we may have gets to all come in. And the thing I challenge the most during pretrial hrgs is warrantless searches (and not to brag, but I win a lot of those, too. Bc I'm a badass.). So, the quickest & easiest way to head off all these issues w/ dwi tests is to just get a damn warrant authorizing the police to collect a blood, breath, or urine sample.

However, the police & the state & the courts strongly dislike this option. Dwi cases make up a large chunk of criminal cases. And the state gets a shitload of money on the cases. On a misdemeanor dwi case, you can expect a $300-400 fine, $80-85 in "court costs" (aka your fee for using the court system), a $25 alcohol assessment fee (which goes to the state and not to the place where you get an alcohol assessment done), and a $680 license reinstatement fee. That's a lot of money. And it goes up from there. If your test is high enough, you pay the state $680 and you have to get an ignition interlock device installed in your car, which is a few hundred dollars & get the device read every month, which costs at least $100 each time. So, dwi cases are cash cows.

Yes, yes, I realize that drunk driving is a problem & people get hurt or killed. In law school one of my roommates was t-boned by a drunk driver & almost didn't make it. She ended up in a coma for 3 months & had yrs of rehab & still has ongoing problems from it. So I GET IT.

Still, dwi cases are a bankroll for the state. And if the police were required to get warrants, that would slow them down, although with the availability of telephone warrants now, not that much. And it's inconvenient. A lot of dwi arrests occur after bar close or on the weekends. Judges don't want to get constant 3:00 a.m. phone calls to issue warrants.

The fact that it's inconvenient or slows things down doesn't trump the 4th Amendment. At least, it shouldn't. And the courts have said that in the past. But when it comes to dwi cases, that doesn't seem to matter.

So, the answer to the problems w/ the test refusal cluster is "get a warrant" but since the legislature & courts don't like that solution, we get a giant mess. But now that SCOTUS has the Bernard case, hopefully we'll get some clarity.