Wednesday, April 23, 2014

Ouch. ICA slams defense, leaves 30 to life sentence intact.

Not that the average person would read it that way.  State v. Marks came out yesterday.

You might read it and think, ouch.  That's some bad law.  But it's Judge Lansing, so she does what you'd want from a Court of Appeals.  She tells you everything the defense SHOULD have done to accomplish what it wanted.

The case is about Mr. Marks, who was accused of having sex with his daughter.  He was also accused of having sex with another daughter, but that didn't make it past the prelim.  So, the state brought in the daughter that didn't make it past prelim to testify at the trial they could get under 404b.

The defense also wanted an expert to testify as to why you SHOULDN'T believe these girls.  The state almost always has an "expert" telling you why you should, even though the victims don't behave like victims.  The defense did not get this expert in.

Anyway, the Court of Appeals says no as well, but points out not only what the defense should have done, but what, to its astonishment, was simply abandoned on appeal.  Check it out:

The district court held that Dr. Guertin would not be permitted to testify regarding the credibility of the victims as it would usurp the role of the jury in determining credibility. Marks does not dispute that ruling on appeal. The court also excluded the remainder of the proffered testimony as speculative and creating the risk of jury confusion. On appeal, Marks apparently challenges only the district court’s exclusion of a portion of Dr. Guertin’s proposed testimony relating to the examination of one of the victims, K.M. Marks argues that exclusion of this evidence was inconsistent with the Idaho Rules of Evidence and amounted to a denial of his constitutional right to present a defense.


On appeal, Marks has not precisely identified which portion of Guertin’s proposed testimony he contends was improperly excluded, but he appears to contend that Dr. Guertin should have been allowed to testify that the medical examination of K.M. indicated that she had not been molested. 
Marks did not put the sufficiency of the State’s evidence “squarely at issue.” He noted that B.K.M. had originally told the authorities she had not been assaulted, but then changed her story. This comment was not an attack on the veracity of the witness, however, but part of Marks’s estoppel argument that he has abandoned on appeal.

Who had this gem on appeal you ask?  Why those brilliant attorneys at the SAPD!

Monday, April 14, 2014

This is just to say

I set aside
an hour
to listen
to your bullshit

which you
probably came up with
high on meth

I forgive you
even though
you kept saying
if I couldn't get your case dismissed
you'd hire someone who could

Tuesday, April 8, 2014

It's You

So I grumbled on Gideon's page

But I spent an hour yesterday arguing with a prosecutor over her “offer” to send my dui client to prison for 7 years because this was his 6th DUI, and no matter how many times I pointed out A. then clearly locking him up is pointless and B. his last DUI was TWELVE YEARS AGO she could not fathom what I was saying. So it may just be that most Americans are hard wired to be fucking idiots.

and this happened:

Regarding the DUI section I have to question point “A”. Are you arguing that it’s pointless locking up someone with five prior DUI’s because either they clearly have a raging alcohol problem that no amount of prior convictions has stemmed or that it’s essentially a victimless crime (if no accident resulting in injury/death). You deliver no details to back up your thoughts there so I’m left to assume.

We don’t know the background on your client. How many times in or out of rehab? Prior accidents?

Then point B. Who cares that it was twelve years since last DUI conviction? I don’t and neither does anyone else who has lost a loved one to a drunk driver. Reading between lines the assumption by you is that this was a relapse and therefore should be treated as a first time offender with AEP. The joke is that after ten years in most states the slate for DUI is wiped clean regarding AEP. In a just system each person gets one bite at the AEP apple and that’s it.

Having a different point of view than yours doesn’t make others “fucking idiots.”

So.  Where to start.

1. I am not arguing but simply stating that it is pointless to simply lock someone up because they have a raging alcohol problem.  AND if you had read the rest of post (which was about defending child molesters) and my previous point about that (that A. folks that do things they are hard wired to do are less culpable and B. that locking them up and doing nothing to stop the problem is a massive and pointless waste of money) then hopefully you would have been able to see that I didn't just bring up my DUI client's issue because "hell why not share" but because I see the situation as the same.  Raging alcoholic client has a problem, it's a very tragic problem, and saying they are morally blameworthy for their behavior and addiction is, frankly, pretty brazen.  If people could turn on and off being addicts, I'm pretty sure there wouldn't be any.  It is, in fact, less fun to be an addict that to be pretty much any other minority I can think of, except maybe child molester.

2. I am not going to answer your questions because, as an attorney, I have a duty to keep my client's life confidential, and while at this time I assume you have no idea who I am and even if you did you could never pick this DUI client out of my other 50 or so, if I told you the other facts you are requesting, you might be able to do that.  That is an ethical thing we attorneys have.  If you are a prosecutor, I would strongly suggest you learn at least a little about what we do.

3.  I have no idea what AEP is.

4.  Trying to parse this out though, you're either saying that anyone with a DUI should be locked up for seven years, or that anyone who gets two DUIs in a lifetime should be locked up for seven years.  I'm going to assume that you know that a DUI means sitting a driver seat with the car on while having .08 or above parts alcohol in your blood measured by 100 cubic meters of blood OR .08 parts alcohol in your breath measured by 210 liters of breath.  That you also know that the state never takes 100 cubic meters of blood and NEVER forces anyone to blow up entire barrels of gasoline (standard barrel holds almost 159 liters) before that do that test, so instead the test is done on a tiny sample and then extrapolated.  That you know that the tests for breath are done using instruments that have evolved for 50 years due largely to the fact that one by one they are discredited, and are now part of an industry worth billions, that they refuse to train anyone not in law enforcement on how their devices work, that they push laws and legal opinions that are, frankly, anti-science and quite awful.  That you know that the list of things that affect your alcohol ratio, breath or blood, is immense, and includes things like "stress" and the powder your airbag is packed in.  That you know that America's auto industry effectively ruined public transportation in most parts of the country, and that Idaho has little to none.  That life is ugly, brutish, and short, and that for many, throwing a few back with your friends in the only escape they are likely to have.  That everyone dies, that tragedies are inevitable, and that holding grudges is bad for your mental and physical health.

And yet, despite all this and the myriad of other things that you must know to have formed a judgment here, you believed long periods of incarceration are necessary for DUIs.  You do not believe in rehabilitation, or, you think if a person tries once and fails, there should be no third chances.  You are willing to pay for a system that locks people away for long periods. 

It's you.  You are the one that our entire system operates for.  Your opinions form the basis for everything I find wrong with this country.  You would burn the Constitution to save a child.  You place hate and revenge as the highest earthly values.

I have no further response for you.  I think our differences are now laid bare.  Go on with your sad, pathetic life, knowing me and mine will always be out here to fight you.