And there goes the Fifth Amendment

So, today we have another ridiculously mind-boggling SCOTUS decision. This one deals with the 5th Amendment right to remain silent.

Here is how this plays out in court normally. A defendant who exercises his or her right to remain silent is protected from the state using that against them. The prosecutor can't argue to a jury, for example, that if the defendant wasn't guilty that he or she would have told the police that much. The fact that a defendant decides not to talk to police not admissible as evidence against the defendant.

So, if police question you, just remain silent & that should protect you, right? Well not according to the SCOTUS. In an absurd ruling today in Salinas v. Texas, the Court decided that in order to be protected by the right to remain silent, you can't remain silent.

Need a minute to try to wrap your brain around that?

The Court has ruled that your right to remain silent only kicks in if you explicitly say that's what you're doing. Because, as they apparently determined, your right to remain silent only exists if you've got the right reasons for utilizing it.

So in this case, the Def had voluntarily started speaking w/ police about a murder. (Don't ever do this. I know I say that all the time but it bears reiterating that because no one ever listens to me & they always run their mouths. So, just don't.) When the questioning became such that he didn't want to talk anymore, he just quit answering questions and shuffled his feet & looked down, etc. And the State used this as evidence of his guilt @ trial.

And the Court said this was totes fine, no problem here, move along, nothing to see...

From the opinion: “A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim."

I know, I am just a bleeding heart, crime loving, liberal defense attorney who shouldn't even be able to sleep @ night, so of course I think this is a problem. But everyone should.

The problem here is that the Court has once again decided your rights are contingent upon when the government wants to allow you to utilize them. Your rights, be that the right to remain silent, the right to counsel, the right to be free from unreasonable searches & seizures, exist on their own. They are not bestowed upon you by the government. The Constitution guarantees them bc governments have been known to snatch them away from people. But the Constitution did not create them out of whole cloth. You have them because you do.

And so, the fact that you have these rights regardless of what the government wants to let you have has paved the way for landmark rulings such as Miranda, when the Court decided your rights were so important that you had to be told them before police talked to you if you were in custody. Shit, if I were arrested, they would have to tell me my rights even though I tell them to defendants roughly 10x/day. The fact that you have these rights led to Gideon, where the Court determined that your right to counsel was so inherently important that if the government wanted to prosecute you & you couldn't hire your own attorney, then the government had to pay for one for you.

These rights are inherent and do not exist just because the government decides to let you have them. All the important cases have established, over the government's objection, that these rights exist for you even if the government would rather they didn't and even if it makes it harder to prosecute people.

But now, apparently the right to remain silent during a voluntary conversation with police only exists if you tell the police that you want to remain silent, so the courts can determine the "merits" of your 5th amendment claim.

Bullshit! The right to remain silent doesn't (well, shouldn't, since the Court has made it so it does) depend on whether you explicitly state that you are using its protection. If you have the right to remain silent, and then choose to remain silent, there shouldn't be any question that you are using the protection afforded to you. It's absurd that in order to remain silent, you have to do the exact opposite & say that you're remaining silent.

Only a group of lawyers could reach such a tortured result. Anyone else, anyone who isn't an attorney and who uses common sense (something that isn't always in the court system), would assume that shutting your damn mouth is the best way to remain silent.

So, the Court bashed the 4th Amendment on its head a week or so ago, this week it's the 5th. Maybe I should worry about my job security, since they are on a roll & my job is found in the 6th Amendment.

I just cannot even with this nonsense.

This is why my mom is awesome & hilarious

This is the actual conversation I had with my mom yesterday via text.

Mom: I am going to your aunt's today to see the baby kittens this afternoon. Do you want to come with?

Me: I definitely would but I have plans with (name withheld) for our second date this afternoon.

Mom: Oh that's exciting! What are you guys doing?

Me: We have lunch plans. I am going over to his place & then we are making lunch there.

Mom: Where does he live? It's a little soon to be going over to his place, isn't it? Ted Bundy was charming & attractive too, you know*.

Me: It's just lunch, mom. His address is (withheld). I have let people know where I will be, I have plans w/ RV in the evening, I am not being careless. I will be fine.

Mom: Hmm...

Me: Besides I already told him that Dad went to prison & threatens guys I date by saying he isn't afraid to go back.

Mom: Oh, ok! I feel better about this now. Have a great time, hon!

(*I would like to point out that her concern wasn't that it might be too soon to go over to his place bc she was worried we would be having sexy time, but rather that she was worried I might end up being ax murdered. This is the hazard of having your mother work at a state prison facility.)

I love my mom. She is hilarious.

And yeah, I had a second date yesterday. I went out w/ him for the first time on Thursday to a Twins game (pretty much the best first date idea ever given my obsessive love of baseball) and yesterday we had a lunch and tv date, where we ate lunch & then watched Law & Order: SVU & I semi-dozed on the couch (pretty much the best second date idea ever given my obsessive love of lunch, SVU, & napping). So basically, this man knows all the ways to my heart: baseball, delicious lunch, SVU, and naps. I think we are going to try to get together again sometime this coming week.  I have had a lot of fun w/ him on dates #1 & #2, so I am looking forward to #3.

That's all the news for now! I think it's naptime, anyway.

Bebe!!

RV popped out another baby. He is super adorbs. I can't get over how tiny he is!

Babies are so small.

Yep.

*grins*
*twirls*

That is all.

Happy days

Wahoo, I am really on a roll w/ this whole being in a good mood/happy thing. It's been such a long time since I have really felt like myself (instead of a sad, crabby, depressed version of myself). I was in a great mood today, for no reason @ all. This is bizzaro world! But it is awesome. I like it.

I am doing my very first 5k next month. It's a zombie obstacle course, so it sounds pretty fun. I still have exactly zero desire to run a marathon (bc gross...running for HOURS?!?! I'll pass.) but a zombie obstacle course sounds so much like being a kid on the playground that I can't resist. It just sounds fun. CB is going to do it w/ me so that will be fun. I wish I had someone to cheer us on, but that's okay. My mom was going to do it w/ us, but she has been too sick to get ready for it. So it looks like it will be just me & CB. Still fun though.

Work has been okay. I miss working w/ my old prosecutors, but that's the way it goes sometimes I guess. Hopefully I will be put back in that county eventually. I did feel touched when one of the prosecutors I used to work w/ told me I was missed. Plus, I will admit, I liked having the reputation of being "the good public defender" in my old county. I don't know that it was necessarily true, that I was somehow better than the other PDs in the area,but it was nice not to have to be met w/ the normal expectation from most defendants that PDs suck or don't care or won't work on the case. It was nice to know that a good majority of my clients were happy to have me on their case right from the start & to not have to overcome that stereotype of PDs. Now I have to start from square one again, with a new crop of clients who don't know me & most haven't heard anything about me so most come in expecting the worst. I haven't had to deal w/ that in a long time, but hopefully I can do enough work so that new clients are not expecting the worst when we meet. And I am also hoping to forge awesome relationships w/ the new prosecutors like I had in the old county. It makes it so much easier when we can not fight about needless things & instead focus our time & efforts on stuff we need to fight about (in court, of course).

Other than that, nothing new to report. Ward, Hubert, & I are all three little happy campers. Speaking of, I am writing this while in bed, with a very snoozy Wardy curled up beside me. He clearly needs me to cuddle him, so I'ma go do that now.

And here's a Ward pic for you all, because he is seriously so freaking cute. It wouldn't be fair for me to keep all this cuteness to myself.

This is good

I know, it's a rare two-post day! Whaaaa?? Craziness. But I had a minor epiphany this evening that I felt was worth noting.

So I had kind of a wah wah day today. Nothing major happened that I can really complain about, just a bunch of little annoyances. I didn't realize that I had a hrg on in the afternoon, my necklace kept falling into my cleavage so much that I ended up taking it off @ lunch (drawback of my giant rack is that I am limited in my necklace options), the office was really humid & gross, I had like 8 motions to file, the wire in my bra popped out (apparently I was having a really tough time with my boobs today...). So nothing really worth complaining about but enough that at the end of the day, I was glad it was over.

But then, this evening it occurred to me that, if those kind of trivial things are bothering me, then I must not have much to be bothered by. I thought about a year ago--shit, even 6 months ago--and how much of a wreck I was still quite often. And that isn't the case anymore. I am not a wreck anymore. I feel like my old self almost all the time.
I still have my moments. Whenever I am @ church surrounded by married people, I can't help but feel very divorced, for example. But even then, it's no longer that I miss HIM. It's that I miss the companionship. Eventually I am sure that will fade too but I am glad to see that I have come as far as I have. I haven't cried in probably 6 months about it all, I don't think about him or the divorce much anymore, & I don't wake up feeling miserable anymore. I am actually happy most days (although don't start thinking I am going to become some ball of sunshine & optimism bc that isn't happening).

So, the fact that my "bad" days now are really insignificant compared to where I used to be is kind of a major realization. And it's really nice to be happy again. Especially after such a long time feeling like I could never be again.

I am still the same weird, anxious, strange, nerdy, pants-hating chick I always was, but now I don't hate everything all the time (as much as I used to bc let's be honest, my hatred of things will never disappear entirely & that's what makes me hilarious).

Also, I get to go to my first Twins game of the season this week, which is super awesome. I haven't been able to go @ all this year, which is a travesty. So, I pretty excited to go. Plus, hot dogs! Omg, I love those Target Field hot dogs way more than I should. I might have to call into work the next day. I'll be all: "Can't come in today. I got super wasty-face on hot dogs last night, so I am hot dog hungover today." I think that will go over well.

Woohoo, I'm back! So, prepare for a return to pre-divorce awesomeness from this girl. And by awesomeness, I mean napping.

This is my work conversations...

Coworker: I don't think he has ever heard of sizzurp (cough medicine and Fanta).

Me: I don't think he has either. And did you really think you had to tell me what sizzurp is?

Coworker: What was I thinking?

Ugh moving

Boo, I hate packing & moving. I have to move @ the end of this month, so I am packing my things into boxes. Weeee...

I am not moving far, which is nice, but I think I will still have to rent a truck (sigh). And I have people to help load my furniture into the truck but I am not sure if I have people to help me bring my furniture into my new place. Which is up a flight of stairs. Crap. I may end up sleeping outside if I don't have anyone to help me get my bed upstairs...

Luckily, I can start moving stuff in any time this month, so I can get some of the easy boxes & whatnot to the apt & into place before the final hurrah w/ moving the furniture. It will definitely make things less stressful that way. Last yr when I moved, I was so exhausted after we got done @ 8:00 that I could barely move & then I was overwhelmed with how much stuff there was to deal with. I couldn't even find my suits for work the next day! Thankfully, my boss was cool about it & let me be out sick the next day to get myself together & find my essentials for work. But I really don't want to have to do that again! So, I am going to start bringing stuff over this week, which will make the transition easier.

Of course that assumes that I will have things packed & ready to be moved. And that is a doubtful question so far. The picture is all the packing I have gotten done this weekend. Oops.

Well, @ least it's a start, right?

Bail: What Was Once Your Right and Protection from the Government Has Now Been Usurped By the Government

Bail is an interesting issue. Someone's arrested, the state drafts a complaint, the court finds there's probable cause to believe the person committed the crime alleged (and keep in mind, probable cause is a relatively low standard. Not the lowest possible, but definitely not that much of a hurdle to meet.), and then the issue is whether or not the court should order the person be held until the posting of bail or if it should release the person, either with or without conditions. 

The reason that bail is interesting is that so few people realize the purpose of bail. And therein lies the problem. When we don't understand why bail is a thing, we don't understand why it's important to everyone (not just "criminals") and how it should be used by the courts. 

So, let's discuss. 

DNA swabs and the Fourth Amendment, Round Two: Why Fingerprints and DNA are Different

First of all, OMG you guys, I made it into the MPR News Cut blog! I've made it in there a couple of other times, with a couple other posts, and I always feel really honored that my stream-of-consciousness ramblings are worthy of Bob Collins' notice. But this one was super exciting because he said yesterday's DNA post was "outstanding" and that "this is the kind of writing that legal reporting needs; it needs to wake up the people who think if they didn't commit a crime, what's the big deal about cases involving people who do?" So basically, I kind of felt like I won an Emmy or something. :D  

Now that I'm done gushing w/ excitement, let's get down to business.  Today's post is in response to a few reactions that I got about the DNA analysis from yesterday. Mainly, the primary question I was seeing was, "How is this different than taking someone's fingerprints for identification?"

I did answer that a little bit in yesterday's discussion, but I didn't fully go into it since there were so many things to be upset about and the post was getting pretty long. So, let's go into it a little bit more thoroughly and explore why this is NOT like fingerprints.

Fourth Amendment, Schmourth Amendment.

So, I couldn't not get mouthy about the latest Supreme Court travesty decision, Maryland v. King.  It was just released today and it's pretty much the worst.  If you're not familiar w/ it (and I'm guessing you're not because you probably have a life and don't read this kind of stuff for fun), the quick and dirty version of the case is as follows: 

Guy named King gets arrested for a "serious" offense (assault charges).  While he's being booked for this charge, the police collect a buccal swab from him as part of the booking process. (This is not routine in all states--yet. But I am guessing it will be soon after today's decision...).  Once they had this, they eventually ran it through a database of unknown DNA samples collected from other crimes and--what do you know--it matched DNA collected from an unknown perpetrator of a rape.  Boom, Mr. King now finds himself facing a new charge because his DNA matches that unknown DNA from the rape. 

The question presented was whether police could obtain a DNA sample from a person who was arrested--not convicted, just arrested and thereby still presumed innocent--without needing to get a warrant.  Now, pretty much every state allows the collection of DNA evidence to be collected from convicted persons.  That's a different situation entirely--those people have actually been found guilty and convicted of a crime.  However, when we are at the arrest stage of the proceedings, the person is not convicted and is not guilty of any wrongdoing. 

The court & the jail: what's the relationship btwn the two?

"The court (can't/won't/isn't going to) tell the jail what to do or interfere with the jail and its policies."

Occasionally I hear this from judges when I request something on behalf of an in-custody defendant. I have to admit that I find it both confusing & frustrating. I don't know if there is some official rule or policy that applies or if it's just the decision of the judges that I have asked. But it does drive me a little nutty.

I don't understand, bc the court does order the jail to do things...all the time, in fact. They order the jail to take people into custody, they order the jail to release people on furlough, they order jails to transport defendants in jail in other counties to court... So courts can and do order jails to do things. And what if there was a situation @ the jail that violated a defendant's constitutional rights? Would the court be unable to do anything about that to ensure that the defendant's rights are being vindicated?

For example, I heard of a jail that had a policy that any inmates who were in seg were not allowed to receive visitors & were only allowed to make phone calls from 11 p.m. to midnight. This included visits from their attorneys and calls to their attorneys. So, the result was the defendants in seg were never allowed to meet w/ their attorneys and could not call their attorneys during normal business hours. In effect, this policy completely denied defendants the right to be represented by their attorneys because they never were allowed to talk to them. Ultimately, a defense attorney raised the issue to the court & the court ordered that the policy against visitors/phone calls for seg inmates could not apply to contact w/ attorneys.

But what if the court had said that it could not tell the jail what to do in that situation? The jail had a policy & the court couldn't/wouldn't interfere? The court is charged w/ ensuring defendants are treated fairly & their rights are protected in the system, so does that not include in the jail while waiting for their cases to resolve?
I wouldn't expect the courts to do something like order that the jail must serve tacos on Friday or anything like that. But what about situations where the jail policy prevents someone from bailing out? I have seen that occur. Bail gets lowered to an amount the defendant can post, but the defendant's wallet is in his property @ the jail & he isn't allowed to access his property while in custody. So, he can't get to his money to post bail, despite having the money to post bail. Or he needs to make a phone call to a family member or friend to have them line up a bail bondsman but they don't have any phone credit, so they can't call & can't bail out. What is the remedy, if any, in those situations?

Is the court w/o the authority or ability to order that the defendant be allowed to access his money or to make a call to get his bail arranged? It seems like there should be some ability of the court to ensure that silly things like that don't keep someone in jail who would otherwise be able to bail out. Keep in mind, if the person has had bail set, they are still considered innocent so the end result is that innocent people are stuck in jail bc of jail policies, rather than a court order or sentence. It seems unfair & ridiculous to me, but of course, I recognize I may be biased.

Maybe there is a policy that prevents the courts from ordering certain things and that explains the reluctance to do so. But if there is, it's not one I know about, so I am just left confused & wondering when can a court order the jail to do things??

Ugh, for real??

So, it seems I will be in a trial next week that involves me having to talk about lien waivers and other things I don't understand. It's a criminal case that soooo overlaps into the civil world that I think it should be civil completely and I shouldn't have the case at all.

I had hoped we could resolve it, because I don't want to deal with trying to learn about lien waivers and shit, but alas, no go. So, trial it is.

Ugh...

Well that was completely horrible

I went on my "date" tonight. Which lasted all of 2, maybe 3, minutes. Immediately after we met, he informed me that I was "bigger" than I looked in my photos (which makes no sense bc one of them was from last week!) and that unless I was interested in just hooking up, he wasn't interested, so, what did I think? I am pretty sure he thought he was throwing me a bone by so generously offering to still sleep w/ me despite how obviously hideous I was and that he was expecting me to jump @ the chance to be able to sleep with him. Like my reaction was going to be, "Well gee, you just insulted me but sure, let's go do it." Instead my reaction was, "Ok I am going to head home." So I did.

And here I was being concerned that the worst thing that could happen would be that I would be awkward... Looks like I vastly underestimated just how bad it could be.

Brb, have to throw up

Soooo this date is less than 24 hours away & I am starting to get the panic dry heaves. The socially anxious part of my brain is trying to figure out if there is a way I can cancel politely (don't worry, I am not actually going to cancel...I have enough control over my anxiety not to do that) while also imagining all the terrible ways I can totally embarrass myself. So, that's fun!

Everyone keeps asking me if I am excited & I say yes bc it's obvious that they are excited for me. I appreciate their excitement because I have very little excitement of my own. Not because of anything in particular that is killing my excitement...just because I am...well, I am me. I make awkward people wonder why I am so awkward. I like me but I also know that not everyone feels that way. And some people take a while to warm up to me. So, mostly I am not excited because I am too busy worrying about the possibilities that he won't like me.

Or worse, what if he does?! What if he wants to go out consistently? My poor little emotionally destroyed heart couldn't handle that much pressure.

Basically I anticipate that whether it goes well or it goes badly, I will end up in the fetal position on my couch barfing from nerves.

Hot.

That was fast

Well apparently the stuff I put in my online profile was enough to garner me a date already. I will be going on my first date post-divorce this Wednesday.

Now, if you'll excuse me, I need to have a minor panic attack.

Just the idea of dating makes me want to break out in hives

At the insistence/urging of several friends, I have put a profile up on a dating website. Then I remembered that 1. I did that in college & hated filling out all the info sections and 2. I hate going on dates. First dates, specifically.

Like what do I put in the "about me" section? I can't tell the truth. It's like interviewing for a job that includes the potential for making out. There are real answers and there are interview answers. I

f I were going to give a real "about me" it would be something along these lines: "I work as a public defender, which I love, but which sometimes consumes my entire life and means I deal with people you probably would avoid. I am really passionate about my work so if we are dating, you're going to have to listen to me rant about my day if things don't go the way I think they should. Outside of work, I have several life-long, chronic conditions which you probably have never heard of but which require me to take a ridiculous amount of medication in order to function normally. I sleep a LOT. I have social anxiety, which means if I ever have to meet your friends or family, I will probably have a small panic attack. That also means you'll have to carry the conversation @ first, since I suck @ small talk. I am recently divorced, which was the most devastating thing I have ever lived through, and I am still seeing a therapist since it fucked me up pretty badly. I am also incredibly terrified of commitment as a result. I hate wearing pants. I often go out in public looking like a crazy homeless lady. I have an unhealthy obsession with my cats and will expect you to humor me when I show you 800 photos of my cats being adorbs. I swear a lot and I am a grammar & spelling Nazi. I also dislike being touched by strangers. I know I sound crazy but I think I am pretty effing awesome, so I have a bloated sense of myself, too."

Clearly I cannot use that...

I am not cut out for dating.

I am annoyed with many things lately

1. I was scheduled to cover a coworker's routine hearings in one court while they were in another court. These were insignificant hearings as far as the overall case goes. Then a sentencing for a sex assault case got added. My coworker tried to get it moved but the court denied the request, meaning I would have to cover an extremely important sentencing for a case I had no interaction with for a client I had never met. This would have been an absolute travesty for this client, who has every right to have the attorney who has been on the case the whole time do this important hearing. Public defenders are NOT fungible. We build a relationship with our clients, we get to know them & they come to know us. We are not just warm bodies sitting next to the defendants. We are not there simply to give the appearance of fairness. I can't possibly do as well the original attorney on something like this. Thankfully, my coworker is no longer in two courts so I don't have to cover this anymore, but the point is I shouldn't have had to in the first place bc we aren't all interchangeable.

2. So this is a weird observation... If a 17 year old is sleeping with a 55 year old in MN, that's legal (barring some exceptions). But if the 55 year old has a naked picture of the 17 year old, that is a crime. How is it worse to have a naked picture of the 17 old than it is to actually have sex with them???? Something seems off.

3. I absolutely hate, hate, hate, hate the laws that criminalize teenagers having sex with other teenagers. We are talking about kids who are sleeping with other kids consensually and one kid now gets labeled a predatory offender. How ridiculous! The laws that automatically & arbitrarily criminalize consensual sex between teenagers of different ages is just stupid. Who decided on the 24 month cut off for the oldest someone could be for it not to be illegal? What was that based on? What is the real and actual difference between someone being 24 months older than the other person or being 24 months and 1 day? And what about situations where the two kids were legally sleeping together, but one kid turns 18 and then suddenly it's illegal for them to do what they were legally doing before? The laws that criminalize these kids are ridiculous & do nothing to protect the public.

4. While we are on the subject, how about we address the stupidity of the predatory offender statute? It requires defendants who are charged with certain crimes to register, even if they aren't convicted for those registrable crimes. So here is the scenario: def is accused of kidnapping (registrable offense), criminal sexual conduct (registrable offense), and disorderly conduct (not a registrable offense). Def has a trial. Jury finds him not guilty on the kidnapping and not guilty on the criminal sexual conduct, guilty on the disorderly conduct. Guess what? DEF STILL HAS TO REGISTER AS A PREDATORY OFFENDER EVEN THOUGH HE WAS FOUND NOT GUILTY OF THOSE OFFENSES!! Does that sound even remotely fair? Or logical? Why is that guy registering, if the registry is meant to keep tabs on dangerous people? Oh and here is the best part...so disorderly conduct defendant is now a registered offender.Meanwhile, the law also allows for def #2 to go in, plead guilty to first degree criminal sexual conduct (the most serious level) and, should the court stay adjudication for some reason, that defendant won't have to register even though he ADMITS ON THE RECORD to committing the crime. Granted, that's not a likely scenario, but it isn't an impossible one. The law only applies to convictions (or juvenile adjudications, which in recent years has just come to mean "juvenile convictions") so if the court doesn't enter a conviction, then no registration required. Does this make sense to anyone?? Disorderly conduct defendant is not guilty but still has to register, crim sex defendant admits guilt but doesn't. It's just plain stupid.

5. Punch your wife in the face and give her a black eye? Misdemeanor. Maximum sentence is 90 days in jail and/or $1000 fine.
Give a 20 year old a beer? Gross misdemeanor. Maximum sentence is 365 days in jail and/or a $3000 fine.
Really??? Do the legislators not realize how stupid that is? I have yet to meet a prosecutor who actually pursues a gross misdemeanor sentence on that because it's ridiculous to make that a more serious level of offense than punching someone in the face.

Everyone whines lately about government spending, blah blah. How about clear out some of these stupid, illogical, nonsense laws and free up some resources for the judicial system.
Ugh. I am so irritated recently with these things.

"Well I've never been through hell like that, but I've closed enough windows to know you can never look back."

-Carry On by fun.

Stiff upper lip

I will not cry tomorrow. I haven't cried about it in months.

I will not be sad tomorrow. It is just another Wednesday.

I will not let one person's actions continue to hurt me.

I will not be sad. I will not cry.

Tomorrow is just another day.

I am SO proud of Minnesota right now!

The Senate passed the bill legalizing same sex marriage.  It passed the House on Thursday of last week.  Governor Dayton is signing it tomorrow.  

I am so overwhelmed with excitement about this that I could pop. 

Mark this day in history

I woke up this morning & realized something was different. I couldn't quite figure out what it was for awhile. Then, as I was driving to work today, it finally dawned on me what it was.

I am happy.

For no specific reason @ all.

A yr ago, I never would have believed this was possible. Especially not so close to what was once my anniversary (May 15). But it's possible.

I haven't felt happy for no reason in soooo long. The feeling was so foreign I didn't even recognize it @ first.

Fingers crossed that it sticks around!

I am everywhere!!

So, I am now an authorized blogger @ the newly resurrected Public Defender Stuff site. It's linked on the side already, has been for awhile, but only recently did it start back up again. Before its hiatus, I was only a reader of it but recently I was asked to be a contributor. That one is solely focused on all things public defense related, so no ramblings about cats from me on that one, but it's still very interesting & you should read it.

More changes

As usual, my life is full of change. I am going to be moving in a couple months. I am moving closer to work. It's not exactly where I pictured myself being but other than being a public defender, none of my plans have worked out. So may as well add another thing.

I think this one will be ok though. The rent is way cheaper than what I currently pay. And CB will be my neighbor. The new apt is in a bldg that has only 2 units. CB just moved in to the one unit & I will be in the other. So that should be fun! It will be like we are roommates but we each will have our own space. Plus we can split the cost of stuff like internet & cable.

So it will be good, I think. I am looking forward to being somewhere new & starting my life again. Single & in a new place with a sort of roomie right near by.

It's just business, baby

When I got to my office today, I saw that I had a really sweet email from a prosecutor friend of mine that made my day.  My friend said that they had recently been talking w/ an member of law enforcement in the county that I used to work in and that the officer said that they had only had pleasant and nice interactions w/ me and that I don't make things personal when I do my job. 

That was an awesome boost to start my first day back at work after my vacay.  I try to be nice and polite and friendly when dealing with people and when dealing w/ officers and prosecutors because, it's just business, baby.  I have a job to do and they have a job to do.  At the end of the day, we're all the same: we all just want to go back to our respective houses and take off our pants because fuck wearing pants kick back and relax.  

Protecting the Innocent Ones

So, I happened to stumble across this post that talks about the often-asked question that many defense attorneys get ("How do you defend someone you know is guilty?") and contrasts it with the more difficult question: "How do you defend someone you know is innocent?"

The truth is, as a defense attorney, there's nothing that causes me more anxiety, fear, and dread than the client who is actually, 100%, absolutely innocent.

Mini vacation

Currently chilling in Chicago.  RV's little sister got married this weekend, so I travelled to Chicago to be at the wedding and visit with everybody.  It's been really fun and very relaxing.  The nice thing was that I got to stay with RV, which was the hub for all the pre-wedding activities.  So, I got to be there for all the excitement and bustle and seeing the bride get ready and hang out w/ everyone, but since I wasn't actually in the wedding, I didn't have to BE involved with everything.  I could just be around without the stress of being in the wedding itself.  The wedding was super awesome.  

Tomorrow I head back to MN.  And Wednesday, it's back to work.  I turned off my phone's email push notification, so I actually have no idea what's been going on at work.  And I'm totally okay with that! 

Shout outs (Amended again)

So I have been feeling pretty happy with things lately & feeling grateful for the things in my life. And, my dear NFTMonosyllabicers, that includes you guys. I write here mostly for myself. I am lax about keeping an actual journal, so this operates as a replacement for that. But I also write because people read it. And I enjoy the comments from readers and I enjoy knowing that even if you aren't commenting, you are finding something of interest in my strange little ramblings.
And, with the aid of my stat tracker, I am able to see the area that people view from. Some of you all have been dedicated followers, seeing me journey through law school, the bar, marriage, divorce, starting my PD career, etc. And some of you are more recent but nevertheless just as dedicated. So, this is my thank you to all you readers. I really do appreciate the company, even if you're quiet.
So here is the first round-up of shout outs to you. If you aren't on this list, it may be because the stat tracker didn't say where you are. Or you've just recently joined us. In either case, I am glad you're here!
Holla to my peeps in the following locales (you know who you are, even if I don't!):
Bozeman, Montana
Winsted, MN
Mpls/St. Paul
Reading, MA
Austin, MN
Chicago
Arlington, VA
Napa, California
Randall, MN
Eden Prairie, MN
West Concord, MN (I didn't even know you were a place!)
Mountain View, CA
West Palm Beach, FL
Newark, Delaware
Melrose Park, IL
*Denver, CO* (sorry about missing you the first time!)
*Schenectady, NY (sorry I missed you!)

And a special shout out to whoever checks me out @ the Hennepin County Government Center. This one has caught my attention because the entry page is always this post...my guess is that post must be saved as a bookmark or something? If anyone from that locale wants to anonymously leave me the deets on that in the comments, that would awesome! But no pressure, you still get the special shout out because you caught my eye!
Thank you all. Especially during this last very difficult year+, your constant readership has helped lift my spirits.
And if you want to tell me something without leaving it in the comments, you can always email me @ PDGirlmn @ gmail or find me on Twitter @NFTmonosyllabic.
Sending virtual love & thoughts & well wishes to you all!
Xoxoxo, PDGirl

I feel famous!

I totally got a .gif on What The Public Defender's website! Score!

Check it out here: http://whatthepublicdefender.tumblr.com/post/49227680053/when-my-client-initially-tells-me-he-has-an

It's like our two fantastically awesome minds came together for some serious kick-assery.

The McNeely Decision: Completely changing the way MN does DWI cases

Ok so there's tons of stuff going on lately that I could discuss--the entire wtf of the Tsarnev situation (but how about I just tell you to watch the video at the end of this post to hear about the concerning aspects of EVERYTHING ABOUT THAT SITUATION); the whole gay NBA player thing; the White House Correspondents' Dinner...  But instead, I am going to discuss a thing that is more directly impacting my life and that would be the US Supreme Court's decision in Missouri v. McNeely.

My cat & my almost trial.

I freaking love this dumb cat. Wardy is my guy. I honestly don't know what I would do without him. He is such a cuddly, cute, slightly dense, loving furball.

Okay, I know, enough. My crazy cat lady is showing. But I do have to give him a little credit because he did let me cry into his big, chubby belly every night for like a year after YKW left. And purred the whole time. He is happy for any attention...

All right. No more cat talk, I promise. Onto other topics.

I thought I was going to be in a trial today. The client had been wanting a trial for some time. On Monday, we were #2 for trial & #1 was a very short civil case. So, we were going to start ours today. But once we showed up today, the client decided to accept the offer & resolve it.

In the back of my mind, any time I am up for trial, I always have this thought that it just might end up settling. Regardless of how much work I have put in prepping it, regardless of how much the prosecutor refuses to budge off their offer, regardless of how insistent my client is that they want a trial. It. Always. Can. Still. Settle.

There are various reasons for this. Some clients are calling the state's bluff, wanting to see if they really will try the case. When they get there & realize the state will try it, they decide to settle.

Some defendants are certain they want a trial till they get there and then they get freaked out.

Sometimes it's the prosecutors calling our bluff, to see if we will really take it to trial. They have weak witnesses or unpredictable aspects of the case that will only be a concern @ trial, so when it gets to that point, they have called our bluff, we have delivered, and so they modify the offer.

Sometimes witnesses move or disappear @ the last minute.

Sometimes, the original offer is based on an understanding of things that ends up being legally incorrect, so the offer that once was a good offer under mistaken information is suddenly not. 

Sometimes it's because the evidence permitted @ trial is dramatically or significantly limited after pretrial motions.

And in one unique case, it was because the judge brought the lawyers into chambers. The judge asked why this was going to trust and what the offer was, which was plead as charged (aka not really an offer). The judge then asked the prosecutor why he wasn't making a better offer because the case was terrible & his witness had major credibility problems. I just about fell out of my chair since I had never seen that before. Lo and behold, the offer then became significantly better!

The point is, no matter how absolutely certain it seems that a case is going to trial, there is always the chance it won't. There is always a chance for a last minute settlement.

Now there is something you don't see on TV.

It's my Dirty 30!

Yeah, I don't actually know what that means, but it rhymes so I like it. It's mah birthday today and I'm officially the big 3-0.  I feel like I should start being more...like...adult-ish?? But that's probably not going to happen, so whatevs. 

What was awesome today was that I realized this afternoon that today was the happiest that I've been in a very long time.  The happiest I've been since September 20, 2011.  I've been happy since then, but there was always a tinge of sadness somewhere in my brain.  But today I was just happy. 

And that was a nice change.  That was the best birthday gift ever.  Finally feeling really happy again. 

Ugh.

Everyone is all abuzz on the interwebs about the Boston bombing suspect and Quarles, a case which I'm sure no one other than nerds and lawyers and nerdy lawyers knew about before this week, and Miranda warnings.  I could add more to the debate, but I think it's easier to just tell you to go read this blog posting about it, because it's very well-written and explains everything very nicely. 

This is my last day to be a 20-something.  I feel like I have to start being a grown-up or something tomorrow and who wants to do that?  Blech. Pass. 

In make-my-Monday-even-worse-news, YKW texted me this morning to apologize for forgetting to tell me happy birthday yesterday.  Problem is that my birthday isn't till tomorrow. Really?? Really?? Six years together and he's already forgotten my birthday?  Thanks, pal.  Glad to see how memorable our effing marriage was to him.  It shouldn't bother me.  I should just ignore it and not let it be a concern at all.  But it does bother me.  I spent 6 years with that guy.  I was freaking married to him.  And then he forgets when my birthday is.  Ugh.  Whatevs.  I guess it's just one more reason to think that perhaps I dodged a bullet by him divorcing me--otherwise I'd be stuck w/ him for the rest of my life. 

All right, that's enough complaining from me for now.  Off to go look at adorable kittens to help cheer me up.

The Fifth Amendment, Miranda, & all that jazz

So, the Boston bombing suspect is in custody. The news and social media and politicians and pundits are all abuzz about whether he should be given a Miranda warning prior to any questioning. "Public safety exception" is being said a lot. As someone who uses this whole Miranda concept on a daily basis, I have a pretty good understanding of it. Sadly, it appears most people do not. So, let's discuss.

Q. When is a person entitled to a Miranda warning?

A. When they are subject to a custodial interrogation. That requires that the person is both 1) in custody and 2) being questioned. Custody isn't just formally being arrested. A person can be in custody for purposes of Miranda without being told they are under arrest. Going into the police station voluntarily to answer questions or give a statement is not considered being in custody, so don't do it & don't be surprised if they don't give you a Miranda warning if you do.

Also, a person must actually be asked questions by officers. If the cop arrests someone & asks no questions, there is no need for Miranda. Despite what is on TV, the police are not required to recite your rights to you as they are slapping on the cuffs. If you start rambling on in the back of the squad without being asked any questions, you're SOL. All that can be used against you. So, shut up.

Q. Do the police HAVE to read someone their rights before questioning them?

A. Technically, no. However, if the police choose not to inform someone of their rights, then the statements made by that person cannot be used against them. If the police decide that they don't want to bother with informing someone of their rights, then they are deciding they don't care that nothing said can be used as evidence. Since that sucks for the police, prosecutors, etc., the police will usually inform the suspect so when the suspect admits to everything, it can be used as evidence.

Q. Do illegal immigrants and/or non-citizens have the same rights as citizens when they are taken into custody in America?

A. Yes. No, there isn't any way to argue that they don't just because they aren't citizens. No. No. Don't even try to make an argument that non-citizens don't have the same protections/rights when accused of a crime as citizens because it's just not correct. They do. End of story.

Q. Everyone has heard Miranda rights being given on TV, so we all know them already. Do the police REALLY have to read them to suspects?

A. Yes. Regardless of how frequently we have all heard them, everyone in custody & questioned should be informed. Even police officers, lawyers, & judges accused of crimes.

Q. Are there times where Miranda doesn't apply but they can still use your statements against you?

A. Yes. If you aren't in custody & police ask you questions, no Miranda is needed & they can use your statements against you. If you are in custody but not questioned and just decide to run your mouth, no Miranda needed. If they are asking you routine booking questions, no Miranda needed. If they are using the public safety exception, no Miranda needed.

Q. What is the public safety exception?

A. It allows police, in a very limited number of cases, to ask questions if they reasonably believe that there is an imminent threat to public safety. Any answers given can be used against the suspect, despite the lack of a Miranda warning prior to questioning.

Q. What is an example of this exception?

A. In the case that crafted this exception, New York v. Quarles, involved a suspect arrested in a grocery some store & suspected of being armed. When arrested, he had an empty shoulder holster & police asked where the gun was located. That was the extent of the questioning. The suspect nodded & said, "Over there." Other examples may potentially include a situation where a suspect is arrested & suspected of putting a victim in a life-threatening situation with limited time to prevent them from dying, where police believe the person may have set a bomb to detonate in a few minutes & need to locate it to deactivate it, etc. The key to this exception is that the police are asking limited questions to address an imminent threat. Imminent meaning immediate or very close to immediate. In contrast, if the victim is kidnapped & location unknown but there is no reason to believe they will die shortly, it's unlikely such an exception would apply. Imminent threat to public safety is required.

Q. Does the public safety exception apply to the Boston bombing suspect?

A. Well, that depends on who you ask. Clearly, the Obama administration has determined it does. My opinion is that it does not. If it does, it doesn't apply beyond asking something like, "Are there any more bombs and if so, where?" The bombings occurred on Monday & no other bombings have been verified since that time. The police have determined that only 2 people were involved, one of whom is now dead & no longer a threat. By the time the suspect is out of the hospital & able to answer questions, even more time will have elapsed. The more time that passes, the less likely it is that this exception will apply. The exception is narrowly crafted for a reason. In my opinion, the Obama administration is stretching the exception beyond its boundaries and completely unmooring it from the purpose for the exception.

Q. But if he is read his rights, won't he remain silent?

A. Ha!!! Like that ever makes a difference. Please. I get maybe one in 1,000 cases where someone actually refuses to answer questions after being read their rights. That concern is really non-existent.

Q. He is a terrible, horrible, no good, very bad person. Why should we care if he is denied his rights?

A. "First they came for the communists, and I didn't speak out because I wasn't a communist.

Then they came for the socialists, and I didn't speak out because I wasn't a socialist.

Then they came for the trade unionists, and I didn't speak out because I wasn't a trade unionist.

Then they came for the Jews, and I didn't speak out because I wasn't a Jew.

Then they came for the Catholics, and I didn't speak out because I wasn't a Catholic.

Then they came for me, and there was no one left to speak for me."

"All that is necessary for the triumph of evil is that good men do nothing."

"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."

That's why. Every time we allow someone else to be denied their rights, we sacrifice a bit of our own protections. We must demand that all suspects, no matter how terrible the offenses or how egregious the acts, are afforded every single due process right. If we don't, we are allowing the government to take them from us. More than that, we are willingly giving them to the government without protest. Terrifying.

Eye make-up tutorial

(For any readers not interested in knowing techniques for doing eye make-up, you can just totally disregard this post.)

I frequently get told that people like how I do my eye make-up and/or asked if I can do other people's eye make-up for them. Since people seem interested, and my eye make-up tricks/techniques aren't really particularly complicated, I figured I'd share how I do it and then anyone who wants to try it out can.  In order to see the details more, I did this with Microsoft Paint, so the steps would be more obvious to see.  I also took photos of the actual steps, so you can see what they look like as they look in real life.

Pictures in the Media: The Good, The Bad, and The Graphic

The bombings at the Boston Marathon are absolutely horrible.  I am once again completely unable to grasp why someone would choose to do something so awful.  It seems like these type of events continue to happen over and over again--be it the bombings today, the Sandy Hook school shooting, the theater shooting, etc. Whatever it is, it's always horrible. 

There are some extremely graphic photos from the bombing available on the internet now.  Most of them are coming by way of Twitter or other social media sites and are being shared over and over again.  And inevitably, some people object to such graphic, disturbing, horrific, and tragic images being plastered all over for everyone in the world to gawk at. 

It's an understandable sentiment.  Often there are victims in these photos, people who didn't ask to be hurt or killed, who didn't agree to be photographed, who are now dealing with something completely unimaginable, who are vulnerable and unable to ask that they not be photographed.  And the images are haunting and deeply disturbing.  One photo shows a man being wheeled in a wheelchair who has clearly just had both of his legs blown off below the knee--the bones are gaping out in the photo and it's incredibly upsetting to see that. 

So the question arises of whether or not such images should be made available for the public to view.  Graphic, disturbing, and victim-filled photographs.  Should they be censored? Should they not be aired? Should we be allowed to see these things?

I think we should. 

This technique also works in my negotiations with prosecutors

So I have a student loan from law school that is extremely overdue. I know it's overdue but there isn't much I could do. I had other bills to pay before that one. My philosophy on bill paying since being on my own & not having enough money to pay everything is that things that can get taken away take priority and get paid first. So, rent, car payment/insurance, utilities, etc. come first. Then, things I need, like food & medications. Last, things that I owe money to but can't do anything but hurt my credit and eventually garnish my wages, meaning mostly student loans and credit cards. Usually those things just go unpaid because I run out of money. Don't get me wrong, it's not that I don't intend on paying them back eventually. I just can't do it right now.

So I have been talking by email with one of my loan companies. I explained the divorce/depression issues of the last year and a half and said I could pay $50/month for now to show I am not blowing it off. The response was: no, that would not work. The best he could do would be to grant me a forbearance that would bring my account current so it wouldn't default and then I would have to start paying the full amount due each month.

I responded that that wouldn't be possible right now, but that I would be able to start paying once I moved in July to a cheaper apartment, so could he get me a forbearance until then?

The response: no. He can only get me a forbearance to bring my account current, not for any future months.

I replied cheerfully (because I don't care that much about paying this off at the moment since they can't take anything from me) and said that that was too bad because I had really hoped we could work something out. It doesn't benefit either of us if it goes to collection, because garnishing my wages will only get them a max of 25% of my net income, spread out among all my creditors who would garnish my wages, which would be well below the amount he was saying I would have to pay. But, it sounded like their was nothing we could do to make this work, since I couldn't pay till July and he wouldn't extend a forbearance until then. Ooooooooh well! We tried! Thanks!!

The response: please call me.

So, we spoke on the phone today and he said, "Ok. You wore me down. I'll give you a forbearance until July. I don't do this for people whose accounts are this far overdue, but you're very persistent."

Yes! I win! I get my account brought out of overdue status, I get to postpone additional payments until July, AND I get a reduced payment amount when I start paying in July. Awesome all around!

I don't know that I have ever "worn down" a creditor before. But I use the same technique in some of my plea negotiations. Polite persistence until the other party just wants me to stop talking and they relent, just to make the whole thing go away.

Being annoying, FTW!!

I freaking love my cats

Hubert looks so cute all the time. His coloring makes it look like he is smiling all the time, even while he is sleeping.

Interesting question

Child A is 13. Child B is 12. They engage in some sort of consensual sexual contact. Putting aside any discussion on the appropriateness, in a moral sense, of that behavior (because holy crap, they are both so young! I was truly terrified of penises @ that age and NEVER wanted to see one, ever), should one or both of them be considered sexual offenders? Victims of sexual abuse? Neither, since they are both around the same age and it was consensual? What if they were both exactly the same age?

Defendants who have a criminal sexual conduct charge who undergo what's called a psychosexual evaluation, meant to determine their risk to re-offend. In these evaluations, they discuss prior sexual events in the person's life, whether consensual or not. I have seen and heard of evaluations which state that the defendant has previous "victims," and the prior "offense" has been when the defendant was young (12-14) and the "victim" is right around the same age. The sexual contact was consensual, yet, the evaluator determines that the defendant sexually abused the other party involved. I'm not sure that I agree with that assessment.

I am obviously not a licensed doctor or therapist who does those type of evals for a living, so my opinion probably doesn't amount to a hill of beans. But, I recall that, several years ago, it wasn't an uncommon situation for parents to find young kids "playing doctor," which inevitably involved taking off clothes and comparing body parts. It wasn't considered a sexual offense; it wasn't appropriate but it wasn't a criminal action. It was curiosity.

And many teenagers are sexually active, generally with each other. The discussion about the morality or appropriateness of teenagers having sex is for a different time. Assuming that they are having sex, with each other, and it is consensual, should we characterize that as criminal conduct and/or sexual abuse? If they are the same age, how do we determine who the perpetrator is and who the victim is? Does it depend on whether one of them later goes on to be convicted of a sex offense? Does that conviction years later transform otherwise non-criminal conduct into criminal conduct? What if they both are convicted of a sex offense in the future?

I find it unsettling to label prior consensual sexual contact between two kids around the same age as criminal behavior or to name one of the two as a victim and the other as an offender. This is routinely done in these evals, without any real research into the facts of the prior event. It's based on the defendant reporting the age @ which the previous sexual event occurred, the other person's age, what contact occurred, and what led up to the contact. If the defendant describes it as consensual, or says that the other person initiated it, the evaluator commonly describes the defendant as "minimizing his/her role" or as "blaming the victim." But, isn't it entirely possible that two 13 year old kids may both be interested in being sexually intimate with each other? Isn't that the common knowledge among adults? Teenagers are walking hormones, who suddenly realize they want to touch other teenagers and have other teenagers touch them. That's why parents are not generally going to let their teenager go stay in a hotel room with their boyfriend/girlfriend. So, why is it so unbelievable that the defendant could have had a consensual sexual encounter as a teenager with another teenager? Why is it so unlikely that the other teenager may have wanted to be sexually active with the defendant or that the other teenager may have initiated the encounter?

Keep in mind, we are not dealing with an 18 year old and a 13 year old, where there is clearly a vast difference in maturity. We are dealing with a 12 or 13 year old and another 12 or 13 year old (or other ages where the two kids are no more than 1 year apart). Why is this considered sexually deviant conduct on the part of the defendant? Is it really that deviant as compared to other teenagers?

It seems that in these evaluations, if a defendant is convicted of any sexual offense, then any past or future sexual experience is automatically considered deviant and criminal, even if it wouldn't otherwise be for anyone else. Masturbate while viewing heterosexual, run-of-the-mill pornography? Totally normal if you aren't a defendant. If you are a defendant, deviant behavior that compounds your sexual predator behavior. Engage in consensual sexual conduct with another teenager the same age as you? Not criminal or deviant so long as you aren't a defendant. If you are, that prior sexual experience shows you have a "history" of sexually abusing others and since you said it was consensual, you are blaming the victim and aren't taking responsibility. If you commit one sexual offense, no matter how serious, suddenly you are considered incapable of having normal sexual experiences and/or desires, whether in the past or in the future.

I realize that sex offenders aren't a popular group. But, are these evaluations really helping identify truly predatory behavior if everything is considered predatory just because the person has been convicted of a sex crime? Even behavior that is normal/non-predatory for others? How do we determine which one of those consenting 12 year olds is the victim or the perpetrator? Is it fair to characterize this as a "history of sexual offenses," if it would not be a history for people who aren't defendants?

It's definitely an interesting question and an interesting can of worms.

Always thinking like a public defender

Recently, there was a terribly frightening incident in MN where a 12 yr old called police to report a shooter at his school in New Prague. This call caused wide-spread panic, as would be expected. However, the report was fake. There was no shooter at the school, a fact that wasn't known until later, after parents had left work in terror to make sure their kids were safe and after police responded.

The kid ended up being arrested for the fake report. The news reported that he could be facing "serious charges." A discussion ensued in my office as to what, exactly, the kid could be charged with.

The initial thought was a Terroristic Threats charge, a felony. This covers threatening to kill someone and also covers saying that you are going to bomb a place or shoot up a place. Shoot up a place seems to fit this situation. But the nuance is that the charge applies if the defendant says HE is going to shoot up a place, not simply saying that someone is already shooting up the place. So that would not fit, then, since this kid didn't say he was going to do it personally. Just that it was happening.

After some discussion, we ended up concluding that the most likely charge would be a Falsely Reporting a Crime. That's a misdemeanor. Not "serious charges" like the news reported he would be facing.

Of course, I expect that he will likely be charged with something more serious given how much panic the false report called. But legally it seems, based on what we know of the facts from the local media (which in no way guarantees accuracy), there doesn't appear to be a fact pattern for anything more serious than Falsely Reporting a Crime.

As we were all discussing this, Golf joked, "Leave it to a bunch of public defenders to figure out how to get him off!"

Yep.

Life in trial

There is a fairly decent chance that I will be in trial this week. On Friday, my case was the second one on the list, meaning that if the first case resolves, my case will be up.

Being in trial is a unique experience. For me and most attorneys I know, everything else in life sort of stops. Like you hit the pause button on your life. All other cases disappear. You have only one client, the trial client. Everyone else is nonexistent during that time.

The same is true for your personal life. Everything is secondary to trial. No social events, no church events, no errands, nothing. Just trial.

Basically when handling a trial, it's like signing up to work every minute of the day minus when you are sleeping. During the day, you are in trial. During the breaks, you are reviewing your case, planning your questions, thinking of how to best present things, etc. There is no "break." Just trial work while the jury goes pee. Same for lunch. Shove something down your gullet while working.

After the work day, you continue to work. You plan and prep and practice. In the shower, you're practicing your open and closing statements. You are practicing your motion argument in the car. It consumes every minute of your life. You go to bed too late and wake up too early. You are never thinking about anything but trial.

So finding out that I'm going to be in trial is both good and bad. I enjoy a good trial. It's the ultimate in "being a lawyer." My very own Law & Order moment. But I also know that my life will be taken over that week and I will no longer have the ability to do anything else except trial.

You get a speedy trial, you get s speedy trial...EVERYONE gets a speedy trial!!

What would happen if every defendant demanded a speedy trial all on the same day?

Currently the judicial system in Minnesota works on the premise that most defendants are willing to give up their constitutional right to a speedy trial. With the exception being people unable to post bail, that premise is usually true. But what if it weren't?

It's an interesting question. No part of the system is adequately funded. Not the court itself, not the court admin, not the PDs, not the prosecutors, and not the crime lab. There isn't enough money to fully staff most of these areas. We all do the best we can with what we have and we make it work. But if every defendant demanded a speedy trial, the system would explode.
In MN, once a defendant makes a speedy demand, the court must have their trial within 60 days. The exception to this rule would be if a person is in custody on a misdemeanor offense-then the time drops down to 10 days (the max sentence on a MN msd is 90 days and our state says you do 2/3rds of your time, which would mean if someone had to wait 60 days in jail on a msd, they would have served the max sentence they could get if convicted. So, they made it 10 days for a speedy msd trial).

Best case scenario: 60 days is 8 weeks. If the trials are very quick, a court might be able to squeeze in 2 trials a week. Assuming 2 trials/week that is 16 speedy trials per judge. In the rural counties, the average number of judges is 2-3. So, if every judge was presiding over speedy trials, that would be 32-48 trials that would be within the speedy time frame.

I have quite a few more cases than 48. So does every public defender I know. Some have close to 200.

Of course, the rules provide that the speedy trial date can be continued for another 60, so that it starts within 120 days of the demand for a speedy trial, but that can only happen if there is good cause. You know what is not considered good cause, according to the MN Supreme Court and Court of Appeals? Court schedule congestion. "Too busy with too many cases" doesn't fly, says the Courts. So, that option wouldn't be available.

So, we are a three judge county and we can do 48 trials in 60 days. Assuming they are quick and uncomplicated. What happens to all the other cases? The ones that can't be held within 60 days? Those people can start filing motions to have the case dismissed. They probably won't get granted, at least not on day 61, but if they delay is too long they will. And if they are in jail waiting for the trial and they don't get a speedy, they are entitled to be released without posting any bail.

Another side effect would be that no other type of case would be heard. No civil cases would be able to be on the calendar because every judge would constantly be presiding over trials.

And, since the crime lab is underfunded and back logged, unless they somehow magically had enough time and people to do all the needed testing, it's inevitable that on some cases, the state wouldn't have test results back from the forensic crime lab in time for trial. There would be a real possibility that they would show up for trial without DNA results, fingerprint analysis, drug testing, etc. completed. Which makes proving cases beyond a reasonable doubt very hard, especially when the defense attorney hammers on the lack of forensic evidence in the case (which we do when we can. I've won cases at trial on that argument and when we talked to the jury, the lack of testing despite the availability of material to test sunk the state's case). The lab can currently accommodate requests to rush a particular test because not everything is speedy. But what if everything was? They couldn't possibly keep up with the demand. No area of the justice system could.

That is the fatal flaw in the whole thing...we operate on the assumption that a vast majority of defendants will waive their speedy trial rights. Legislatures fund the system without realizing that, should people choose to demand that the government abide by their speedy trial right, the entire system would collapse under the weight of complying. Sure, some metro areas have more than 3 judges and could handle more trials in that 60 days, but the number of judges a county has its based on how many cases it has. So while more trials could be heard in 60 days, more cases would not be heard in those counties since they just have more on a regular basis.

It's dangerous to fund a system based on everyone giving up their speedy trial right. We should fund ALL areas of the judicial system with the assumption that people won't give up that right, to ensure we could handle the volume if they don't. Right now, it would be too easy to cause a widespread systemic failure, simply by asking that the judicial system honor the constitutional right to a speedy trial. That is a very precarious way to balance the system.

It has not ever happened (yet) but it is certainly interesting to think about what would occur if it did.

To make the hypothetical even more messed up, imagine what would happen if everyone demanded a speedy trial AND the PDs office had to furlough every PD for a few months because they didn't have funding. So, no attorneys for all these speedy trials... I think the technical term for that would be a "clusterf*ck."

Bits & bites & everything nice (well, maybe not that nice)

I am trying to make sure to twat every day. That is the correct term for posting on Twitter, yes? Twatting? I am up to 6 followers, so I feel pretty important.

Found out that one of my fav prosecutors is leaving and going to work @ the USAO. Which is sad, but also really cool for him. And now if I'm ever federally indicted, I'll just call in a favor. Connections, baby!

Preachers' Daughters on Lifetime is my new dirty television obsession. If you aren't watching it yet, you should be. It's teenage girls with preacher parents and the girls are crazy! I'm obsessed.

In only 26 short days, I will be 30. Which sounds crazy old to me, even though I know it isn't. But it's still the oldest I've ever been. And it sounds so grown up. Like I should be a real adult now. Do real adults wear pants all the time? Because if so, I am going to have some major issues with being a real adult. Man, pants are just so...blegh.

Ward stole my spot on the bed tonight because he is a spoiled brat. My reaction was to pet him and talk to him in baby talk about how cute he looked under the covers, all snuggly and adorbs. I just can't understand why he is so spoiled...

Let's talk about marriage.

Today the Supreme Court heard arguments about Prop 8. Let's take a minute to talk about marriage. As someone who has been married and found myself on the painful end of a divorce, I feel like I have some experience in the marriage area.

Allowing two people who love & care for each other to get married does not, in any way, shape, or form destroy the "sanctity of marriage." In fact, it does the complete opposite by allowing two committed individuals to legally unite their lives and creates bonds that legally obligate them to take care of each other.

More marriage does not destroy the sanctity of marriage. Divorce does. Instead of funneling all this time & resources into preventing people from getting married under the guise of protecting marriage, perhaps more energy should be focused on making divorce more difficult. Protect the unity of marriage by not allowing people to get married and divorced on a whim. Eliminate the concept of a "starter marriage." Making divorce more difficult will cause people to think carefully about the choice to marry someone. People wouldn't be able to jump ship so easily, calling it quits on marriage like it was an old pair of shoes they are tired of.

The hypocrisy of claiming to be in support of marriage without actually doing one single thing to protect marriage from being little more than something to do until you get bored with the other person absolutely infuriates me.

You seriously want to protect marriage? Then make divorces harder to obtain before you go around limiting who can get married. Deal with the staggering divorce rate first and then maybe that BS argument about protecting marriage might sound less like a compete lie to cover homophobia and more like a legitimate belief. I still won't agree with your position on gay marriage, but at least I won't think you are doing lip service without any real action. I can respect someone with a different opinion as long as they stand behind that opinion and really mean it.

Prevent divorce from being the instant go-to when things get dull or rocky and then we can talk. Until then, don't talk to me about protecting marriage.

I give, I give...

Ok so CB keeps telling me I need to get a Twitter account for my blog. I don't get how to use Twitter at all. But I caved into peer pressure and signed up.

You are welcome to follow me, but don't expect too much from it. I don't even know what a hashtag is used for.

@NFTmonosyllabic

I am already confused...

Television in real life

So I'm sort of obsessed with watching true crime shows and documentary-style shows where they go inside real prisons in America and interview inmates and officers, etc. Because apparently I don't get enough of this stuff in my work life...

Anyway, as I watch these shows, I am always amazed at how much time people get sentenced to in other states. Like I was watching one the other day where the guy was in  state prison for selling drugs and his sentence was 75 years. 75 YEARS?! I don't think it's even possible to get a 75 year sentence in Minnesota without some special circumstances. First degree murder will get you life in prison w/o the possibility of parole.  Otherwise, unless there is some aggravating factors, the sentencing grid in Minnesota tops out around 480 months (40 years).

Another one I saw was an 18 year old kid who was in prison for the first time was there for an aggravated robbery. His sentence was 25 years. The presumed sentence in Minnesota for a first time offender convicted of aggravated robbery is 4 years.

So, is Minnesota excessively lenient? Or are other states excessively harsh?

Also, in a similar vein, I happened to be watching "Snapped" on Oxygen (shhh, don't judge me) and it was a new episode. I was only half paying attention until I heard the narrator say, "In 2010, in Lake Crystal, Minnesota..." And then it had my full attention. Minnesota is never mentioned in these type of shows, so I was fascinated. It was an interesting episode, until it got towards the end, when the show was covering the outcome of the murder charges and the narrator said, "Prosecutors offered to take the death penalty off the table if the defendant would plead guilty."

(Insert record scratch noise here)

Fact-check fail. Minnesota doesn't have the death penalty, so the prosecutors didn't offer that unless they were being facetious. Or aholes. In either case, it wouldn't have been s legitimate offer.

Way to go, "Snapped."

Hmmmm

I just found out that I've got to represent a juvenile on a CHIPS file. CHIPS means Child In Need of Protection or Services. It is different than juvenile delinquency stuff.

I know exactly nothing about CHIPS cases. I probably know more about contract law than CHIPS. So this should be interesting........

Hug a public defender day

Fifty years ago today, the landmark case Gideon v. Wainwright was decided by the US Supreme Court. That court unanimously decided in that case that for a person accused of a crime, having an attorney was a necessity, not a luxury, and that if a defendant was too poor to afford one, then the court would appoint one @ public expense. The public defender was born.

The promise of Gideon is still lacking because of terrific underfunding and lack of resources. But the work done by public defenders is a vast majority of the work done in criminal courts.

We win trials for clients. We win motions for our clients. We argue for sentencing that will help our clients get the treatment they need that cannot be received in jail or prison. We negotiate with prosecutors to get charges reduced or dismissed. We explain to our clients what their options are, what will happen at their next court date, and what they can expect.

I've had six cases dismissed at or before the omnibus hearing. In one case, a terrified defendant with no criminal history at all was charged with felony aiding an offender. The law requires that the "offender" being "aided" must have committed a felony offense. In this case, the offender was wanted for misdemeanor warrants, so my client clearly was not guilty of this crime. But the prosecutor & the court had missed that requirement in the statute. After a bit of discussion with the prosecutor, the case was eventually dismissed.

My client didn't speak any English.  My client was poor. My client was facing a felony charge. My client would not have been able to hire a lawyer and certainly could not have discussed this statute with the prosecutor on their own. The promise in Gideon came to fruition in this case.

This is just one example of the work we do every day to protect the rights of the citizens, to ensure fair processes in court, and to help people in need. We have a long way to go still to achieve all that Gideon stands for, but we are fulfilling it in some very big ways.

We get called names, get told we aren't real attorneys, get punched by angry defendants, get scolded by impatient courts, and generally are not really well-received by the public. But, I am incredibly proud to be a member of this elite class of lawyers, defending the least among us. I hope that for every one of my clients, I am fulfilling the promise and ideals of Gideon.

Now, go hug a public defender.

Adjusting to my new work assignment

I am slowly becoming more accustomed to my new county, although I still wish I was in my old county. Nothing is wrong with the new county. It's just new and I don't like change. Plus, I miss the people in my old county. I've been there for four years. That's a long time.

But I'm adjusting to the new county. Some things are nice, like the fact that I don't have to drive to court anymore, since my new county courthouse is only a block away from my office. And the jail is closer, like a 5 minute drive if you hit all the red lights. So that is nice & saves me a lot of time.

The new county schedules things completely differently than my old county. As a crash course for non-lawyers/lawyers who work in other states with different rules, in MN, a defendant will show up to a first court date & formally be charged. This is called a Rule 5 hearing. They can apply for a PD @ this point in time. The next court date is called a Rule 8 and this is usually the first time I'm with the defendant in court.

So, now that we all know that, back to scheduling differences...so in my old county, the Rule 8 hearing was usually within a week or two of the Rule 5. Pretty soon after they appear at the Rule 5, I will meet them & be in court with them. Makes sense, since people are usually pretty freaked out @ this point in the process and want to talk to their lawyer ASAP.

However, in my new county, I got a new file in mid-January. I popped it open & looked to see when the Rule 8 was scheduled for. I actually had to double check that I had read it correctly because it said the Rule 8 was scheduled for March 25! Wowza, talk about a drastic change of pace! And that tends to be par for the course. If the defendants aren't in custody, the court dates are spread pretty far apart. If they are in custody, the court schedules them right away so they are complying with the timing requirements for in custody people. But otherwise, the court dates are spread out.

This is both good and bad. Good because I have time to focus on immediate needs clients, i.e. those who are in jail awaiting trial. So I have way more time to meet with clients at the jail and deal with them right away. I also have time to meet with out of custody clients more often, since I'm not in court so often. So those things are good. 90% of lawyering takes place outside of the courtroom, so having more non-court time to get things done is helpful, because then when I am in court, I am always well-prepared and ready to go. I think the only continuance requests I have had to make were for cases that I took over for another lawyer and the trial date was like a week away when I got the file.

The bad? I forget who my clients are and/or what the case is about. I see a court date that is a month and a half away & I read the complaint & put the file away. Then I don't think about it again for a long time because the court date isn't for awhile. So, I get phone calls from people and I think, "Who? Is this my client?" Or I see the file in my drawer & can't remember what the case is about. So that is a bit frustrating. But that is really just my brain being forgetful...

Semi-related but not really: since court is so close, I can walk there now. But that creates the issue of my pant hems dragging in the slush and snow and salt. Which is a great way to ruin dress pants. So, in the pair of pants that I sewed, I solved the problem with some fancy snap cuffs.

On the inside of the pants near the bottom, I sewed two snaps, one on each side along the seams. They are basically invisible from the outside. But, when I need to go walk outside and it's gross outside, I can just snap the cuffs up so they don't drag in the slush. It beats rolling them up, since they always unroll as you walk, or stuffing them in your boots, because they get all wrinkled at the bottom. Snap cuffs! Why hasn't anyone figured this out before?

Sewing master

I made pants! My first pair I've ever made on my own. I am pretty excited about it.

And I don't normally stick my butt out like that. CB told me to so it would be a funny picture. She is clearly a bad influence.

This. Is. My. Life.

Best public defender website ever!

Still looking and feeling good

Been a week and a half and my nails are still in good shape! Normally they would look like a hot mess by now.

I am also still feeling pretty good on a daily basis. Some days I still feel pretty down but they are happening less and less. It is a nice change of pace from feeling horrible every single day of my life.

I prefer to limit my human interaction

So, I got a new phone recently. It has the talk-and-text feature. You know, where you can talk into the phone instead of typing out a text message.
I think that used to just be called "talking on the phone."

Zombies and Martha Stewart

Guys, I'm running!

Ok, not exactly...but sort of... I found this phone app called Zombies, Run! 5k training. So I decided to check it out. I've done two of the missions (which is what they call workouts). The story has me training inside the base camp in order to be able to go out into the zombie infested world and grab supplies for the survivors. So no zombies yet, since I'm still inside the camp. But, I like this so far because the woman who talks to me through my headphones says things like, "Run slowly" and "Don't push yourself." I can totally get on board with that. I'm awesome at not pushing myself, especially when it comes to exercise. And you can add in your own playlist of music, so the "incoming transmissions" just pop in around your music. In my case, I listened to an episode of "Wait, Wait, Don't Tell Me" with Martha Stewart as the guest. She is surprisingly funny. And apparently she loves both Spam and Velveeta (both make me gag).

Also, did you know she dated Anthony Hopkins? And that she broke up with him because she couldn't stop seeing him as Hannibal Lechter? I found that hilarious.

Seriously.

Every freaking morning!!

I'm such a wordsmith

CB and I were talking about the fact that we have double the amount of women working in the office than men. I asked, "So what is the opposite of a sausage fest?"

I decided that the opposite of a sausage fest is a clam jam.

Product review

It's been awhile since I've talked about a product that I like enough to talk about it. But, recently I have become a fan of Sally Hansen gel manicure kit. A coworker and I (Carpool Buddy, aka CB) split the cost of it. It's not terribly spendy but it was more than either of us wanted to pay if it didn't work. There are two versions. One has a mini-LED light and uses nail polish strips. That is about  $30. We got that one. The other one uses actual polish, not strips, and a bigger LED light. That one was like $120. Too much for my budget.
However, they sell replacement items for both the big and little kit. So, we bought a shade of the gel nail polish. CB used the strips and I used the polish. Since I didn't use the strips I'll just talk about the polish.
I freaking love it! I can never seem to wait long enough for my nail polish to dry and I always screw it up. This dries right after you stick your nail under the light, which lasts about 30 seconds! Amazing!
And normally I manage to somehow chip my polish in a day or two, at most. If I put my hands in water for any length of time, it's over. But this has stayed looking nice since I did it on Saturday. AND the picture I'm including in this post is what they look like after I spent an hour with my hands in water while I cleaned the bathroom. They look pristine!
So, I give this two well-manicured thumbs up. I would suggest getting the small kit and if you want to use regular polish, not the strips, buy the individual colors as you need them. Unless the bigger light is really important to you, you can get all the pieces from the big kit (minus the light) as replacement items for cheaper than buying the big kit. So, go with the little one and buy the other pieces separately.