Wednesday, July 31, 2013

Going Mental

A lot of public defenders will tell you that our clients are crazy.  Ok.  Sure.

But then we're like, "no seriously, dude is crazy."

Here's what is fun about trying to practice ethically when your client is a nut: The rules are essentially out the window.

Seriously, look it up.  If the client is under a disability you have to act in their best interest and possibly find them a guardian.  Screw that.  My client is facing a criminal record for listening to the voice of God.

Oh, Idaho doesn't have an insanity defense.  Did I forget to mention that?

Even if we did, I was taught that your crazy client may keep you from pursuing that claim.  I can imagine that might be the case if your client is just sane enough to get you off his case.

Anyway, the insanity defense is out of the picture.  But I and my fellows carry caseloads where some percentage is going to be nuts.  What is one to do?

Generally, you ignore it.  Look, we know the judge and the prosecutors.  If you can keep your client together long enough to enter a guilty plea to a lesser charge, you generally do it.  Again, they have no defense- God is not a defense in Idaho.

Now you might think- yeah but if you tell the prosecutor he'll get it.  Sure, sometimes.  Sometimes not.  Even the best ones will decide that this is a great way to get across to your client that he needs to take his meds.  Which is like "?" seeing as how, dude, the guy is crazy.

Which is why most of the time you just factor crazy out.  You pursue the case as if all were fine, you fight the facts, get the reasonable offer.  You see if your client will take it.  Most of the time they will, because almost all of them find courtrooms provoke a lot of anxiety.  In fact, you can have a great defense for them, and a lot of them will take a plea anyway.  Just to get away.  Which is pretty sad.

But wait!  You're supposed to look out for their best interest!

Uh..?  Define that one for me.  I fight for drug addicts to be free knowing full well their next hit could be their last on a daily basis.  If a mentally ill person can take a plea to disturbing the peace and walk out of court with a fine, that's a win.  That person does not want to spend the next few months in a hospital being force fed drugs.  They don't want to go to jail.  Did he pull his pants down and shake it at the little old lady?  Sure.  Did he think she was his wife and that his actions were inspired by the divine?  Yes indeedy.  I pled him to a nonregisterable offense, and now he has an obligation to pay 200 bucks should he ever have any money.  Might he go off and hurt himself?  Fuck if I know.

I'm the guy's attorney.  Not his fucking guardian angel.

While we're on the subject though, what about the hospital?  What about "mental commitments?"  Yeah I do those.

Here's what you do- go to the hospital.  Meet client.  See if they are ok.  If not, go find the doctor.  See if he thinks they'll be ok.  Where I work, this may not be possible, so you may need to set out the hearing so you can subpoena him.  He will call you and beg you to not have to come to court.  Anyway, you go to hearing if your client doesn't want to stay anymore (which is generally true).  You make it abundantly clear that the "designated examiner" with the masters in social work has not the slightest clue whether the mental illness is actually causing the symptoms or if it is the meds or the meth or what.  The judge will shrug and commit them anyway.

Two months later, the state will say they can't do anything more and let them out, blinking, into the sun.

Let's say you appeal the ruling (did you ask your client after the hearing if he'd like to appeal?  you better.  the guy just lost his gun rights.).  Now you have a mootness issue.  But it isn't moot, because of his gun rights.  Never forget his gun rights.

And you fight.  And you fight and you fight and you fight.  And somehow you still find time for the rest of your caseload.

So it goes.

Wednesday, July 17, 2013

I have no mouth and I must scream

Officer: So at that point I went to hit the record button on my device but I hit play instead.
Me: And you didn't hear it playing?
Officer: Uh, no.
Me: Ok.  Didn't you also write an email to the evidence tech saying, "There's something wrong with the recording I have"?
Officer: Um.  Yes.
Me: So when you said you had a recording, you actually meant you didn't have a recording.
Officer: Right.
Judge: Yeah that sounds legit.

A client asked me once while he was freaking out over an illegal stop of his son and what he was facing, "Who makes sure the cops do their jobs right?"  And I was like, uh... me?

Not that I have much power beyond dragging cops to court and keeping them off the street for 30 minutes while they get paid overtime.

Sunday, July 14, 2013

Justice for Trayvon Martin!

Justice for Trayvon Martin is pretty popular right now.

Everyone wants to hold George Zimmerman accountable for his actions.  George's actions, that can be proven beyond a reasonable doubt, are:
1. driving around looking for trouble while armed.
2. seeing a young black kid and deciding to follow him on foot.
3. upsetting that young man in some way.
4. Getting his own ass kicked.
5. Shooting that kid to death.

Laws broken?  I don't know Florida laws all that well.  Harassment?  Based on race?

I think the law you'd like to have is "acting like a cop when you're not a cop."  It's generally not a good idea to pretend to be a cop.  Though I nitpick at the concept, the reality is the police have authority and training to do things you don't.  Things like harassing kids while armed.  This leads to two things: 1. the kids don't generally wind up fighting them and 2. they don't usually fight the kids for acting like brats- they just arrest them.

Not always, but much of the time.

But if you're not a cop, the kid has no reason to treat you with any respect, and in fact is wholly in the right to tell you to fuck off, and strike you if you won't, because frankly, you're being a creep.

Buuuuut- if he's successfully beating you into unconsciousness, you do get to use that gun.

What bothers the masses is that you brought the gun and created a situation where you needed it.  That seems unfair.  It is unfair.  But there's no law there.  You could pass a law that says: A person armed with a gun may not initiate confrontations (except when defending another from great bodily injury (meaning a beating with a pool cue) or something- if you see your kid getting smacked around in a normal fight, put your gun down first before you intervene.  you'll thank me later).  Or something.  Make the punishment 20 years.  I'm a gun owner, I think that's a legitimate idea.  Guns are for protection, or for violating the law.  They shouldn't be available to people to use to play cop.  That's a bad idea.  Trayvon is what you get.

Beyond the event, you get a lot of people bringing up stereotyping and profiling.  First- I think it is sweet that so many white people are upset about this, but the reality is you can't fix it without making it unlawful for an officer to detain a person without probable cause.  And you guys are going to whine so much if that ever happens.  Just like the police whine about the idea.

Of course, the reality is that Terry stops don't really get a lot done, they often end in constitutional violations.  My understanding is that police presence is what is shown to prevent crime best, not having them harass the suspicious.

And how does that relate to George?  He's not a cop.  He was playing cop.  Even if you changed that law, you'd never come up with a law that could stop average people from acting on suspicions.

But you might come up with something to stop them from playing cop.  That's about as close as Trayvon is ever going to come to justice.

Sunday, July 7, 2013


A lot of conflicting ideas going on in my head lately.

It starts with clients getting pulled into jail on bench warrants issued for probation violations.

I don't understand how that is a thing.  I'm the attorney.  You have to prove a probation violation and I'm required to be there.

What's the warrant for?

Presumably it is to ensure that they appear for court appearances, after all, the probation officer says they don't care much for court orders.

But in Idaho, I'm not there for the bond to be set either.  In fact, thanks to court calendars, I can't get in front of a judge for a month to six weeks in some cases.

And for those who don't know, the bond in my area is going to be around $10 grand for a person who has no criminal history and no history of failing to appear and has six months over their head.  That means through a bond agent, they can pay $1000 to be free, which they will never see again.  Let me remind you that I am a public defender.  And this is Idaho.

Anyway this practice is upsetting.  But it gets you thinking.  What the hell are arrests about?

Generally, pretrial incarceration is supposed to be allowed only when the court just can't feel sure that the person will come to their hearings.  But rather than set a meaningful bond amount, judges generally just come up with some random number and go with that.  Why not?  The fact is, if you're guilty as sin, and you reallllly don't want to face the consequences, you'll pay as much as you're asked to skip town.  Bail is kind of an antiquated concept.

But wait, there's more!  Judges can set all kinds of conditions for pretrial release!  Drug testing, therapy, wear an ankle bracelet, the goofy things judges think of goes on and on.  Ok, the ankle bracelet actually makes sense.  Of course, in today's world it's generally difficult to be on the run for long, but that's besides the point.

Ok, so getting back to the issue, what's the deal with arrest?  Is it just so a judge can decide what it will take to have the guy show?

No, because there's usually also a dangerousness finding.  Which is a made up word.  So officer arrests a person mid-burglary and the judge says gah I just can't let you out on these facts.  You're a danger to the community.  So much for presumption of innocence right?  As you can imagine, this motivates the super high bails that no one can make.  Judges hate being told later than the guy arrested for meth possession that they let out went out and killed someone.  So you stay in jail.

Practical realities of the current system, however, do not save it from constitutional infirmity.  The idea is that the Fourth allows for reasonable seizures and the defendant is reasonably seized.  But reasonably kept?

Essentially, you have to come to the realization that your liberty is very cheap, but your reputation is what the trial system is protecting.  The guarantee of a trial by your peers can't prevent you from spending years in jail.

But in the modern world you are tainted by the arrest and accusations alone, even the best alibi sometimes can't wash off the stink.

So what is any of this good for?  If mere accusations can lead to a loss of liberty that dwarfs what the actual sentence would likely be, if you will lose your job, your family, and your reputation, and the trial provides merely solace at the end of the tunnel, why pretend we're protected at all?

The fact is: that first bond hearing before the judge is perhaps the most critical hearing a person has.  The fact that in Idaho a person faces it in chains, on a video screen, and alone is unacceptable, and unconstitutional.  A lawyer can't necessarily fix the problem, but just as Gideon had to have a lawyer to assist at his trial, thousands need a lawyer to keep from having their lives destroyed on the basis of accusations alone.

Idaho needs to change.

Tuesday, July 2, 2013

Idaho: Scarlet Letter State

First, Idaho still has a fornication law on the books and yes it is used (albeit not often).  As in, once within the last year I had a client charged with fornication.

But the topic here is criminal records.  You see, in Idaho, we have two.  There's your criminal record kept by the executive by law.  This record has finger prints to back it up and make sure you're the one it is talking about.  It can be expunged only, and only if you get an acquittal.  Nothing else suffices, and that a determination made by our good friends at the Idaho State Police, so.. yeah.

Then there's the court record.  This functions exactly the same way except you don't need fingerprints and it is accessible to everyone on the internet, so you don't have to pay for it like you do with the criminal record. It cannot be expunged, only sealed, and that is according to Administrative Rule 32.  That rule in 2009 was construed (yes, construed) by the Supreme Court of Idaho to require a factual determination that a person has more interest in keeping an acquittal under wraps than society has in knowing about it.  No shit.

First, why in the fuck does the Supreme Court have to construe its own rule?  The Court appoints committees that pass these idiotic things, and then, when confronted by the perfectly logical and fair request to seal a case involving an acquittal it goes, "oh shit, wait though, I think you have to follow this rule."  



But hold up, they probably know this.  They're probably hiding behind this whole "rule" thing.  The reality is the Court is so far removed from the real world they don't understand what kind of an impact on people having even an acquitted criminal charge will have.

Or they're thinking- meh, a few more people my kids won't have to compete with when looking for work.

The reality is, a record has horrible consequences for life.  Even as stupid a misdemeanor as "frequenting" which just means you knowingly were in an area where drugs were being held can make it next to impossible to get all but the worst jobs.  It's a sure fire way to keep the poor in their place.  The police largely only use their powers to investigate what the poor are doing, once one of them slips up just slightly, he finds himself branded for life so he can never be anything but poor (except in a few rare cases that are later held up by the rich as reasons why they're not doing anything wrong by perpetuating this slave state).

Anyway, as you can probably tell, I had a kid with an acquittal get a request to seal turned down today.  Why?
It's probably just to save on the administrative expense.  That's the true horror of it.  Your liberty costs a $1.45.