Wednesday, August 28, 2013

Serve and Protect

There's been a lot of discussion lately on the militarization of the police force.  Randy Balko got everyone interested with Rise of the Warrior Cop, including the mighty ABA which let him write a pretty good summary in their monthly magazine.

Of course, plenty of folks have been concerned about this for a long time.

What's curious for me is how the warrior cop has become acceptable in the court.  Example: Officers go to investigate a domestic, find someone injured and intoxicated, rather than clearing him from the area before engaging in a search with a warrant, they just go around looking at his things, despite the fact that it obviously upsets him.  And next thing you know cops are fighting with a badly injured drunk.  When asked about it, the officers say, "I'm just trying to protect myself and the other officers."  Ok.  That's not really an answer to anything.  But the judge nods sagely.

Or you have cops visit a home at 3 AM, barge inside and harass the naked occupants.  Excuse: "They could be dangerous, I don't know what's going on in that house."  Ok.  So don't go in.  "Well, but they could come out and attack me."  Riiiiiight.  Did you have any reason to think they were dangerous.  "Every day I'm in danger."  Fuck.

Judge: Yup.  Scary out there.

No.  No it isn't.  Well, yes, but not all the time.  There is no reason to take the guns blazing approach to EVERY FUCKING SITUATION.

So recently Police State USA posted this:

Which was, upsetting.

Then in Idaho, we get our own:

I can't get over the calm.  These folks are upset, but it's like they feel they have to make a logical argument.  Like there's a discussion to be had here.  "Well, you see, when a man has a knife to his own throat, there's no reason to shoot him to death."

Yes.  That is true.  Assuming that's the case, you don't need to explain.  The scenario explains itself.

Hell, I don't even know why they'd need to shoot a guy holding a knife.  They have tasers.  Why use the gun?  Who was in danger of gross bodily injury or death?  The guy himself?  So you kill him?

None of this is new.  Cops have been killing blacks, poor whites, and whatever other undesirable minority for as long as they have been around.  But now we have it on video.  And the response remains: shrug.

Thug cops are being replaced by warrior cops and the end result is: nothing changes.  And the few good cops that believe what they do is about protecting everyone, even the law breakers, remain an endangered minority.

It would be cheaper for everyone if police were properly trained so that we could avoid things that lead to massive lawsuits.
There, I made the argument everyone can agree with.  Money matters.  The current situation is bad for money.  Do it for the money.

The dead poor will sort themselves out.

Thursday, August 22, 2013

Intoxilyzer 8000 a Worthless Piece of Junk

First, a caveat.

A really, really depressing caveat.  Bad news first.

1987, Supreme Court of Nebraska declares results of Intoxilyzer 4011AS inadmissible because they rely on blood/breath ratio of 2100:1.
1990, Colorado Department of Health and the New Hampshire Division of Human Services send separate letters, unrelated to each other, to CMI telling them that the Intoxilyzer 5000 has lost credibility with the law enforcement community and has a ton of problems.  No one seems to care.
2000, Nebraska backtracks.
2004, Indiana Court of Appeals throws out a result because of a tongue ring.
2005, Indiana Supremes say, forget that!

There are other such cases (particularly an amazing battle between trial judges in New Jersey and their seriously fucked up Supreme Court). 

The landscape of DUI law is postapocalyptic, with massive, steel towers draped in a twisted version of the American flag.  Nothing good lives here.  Even in Ohio, where State v. Homan
89 Ohio St.3d 421, 732 N.E.2d 952 (2000) remained good law right up until it was overruled by the legislature.

But Good News arrives once again from the armpit state:

Retired Municipal Judge Teresa Liston (may she live forever) found in the Marrietta Municipal Courthouse (Ohio) that the Intoxilyzer 8000 is based on science too unreliable to be used in a court of law.


Articles are here and here

First person to get a copy of that order wins.

Tuesday, August 20, 2013


A public defender, like an ambulance chaser, hunts for technicalities in cases.

"Technicalities" is American for constitutional rights having been infringed.

You may recall a film starring the great Clint Eastwood in which he railed against the injustice of his prey being released on technicalities.  Dirty Harry, who I had assumed was no rookie, apparently had no idea that he had to follow the law.

The great state of Idaho is famous for technicalities.  It spent its first 20 years without criminal laws, only discovered when an enterprising attorney pointed out they had forgotten to take the territory's laws and get them passed as a state.

Recently, the state had to vote in a change to its Constitution to allow the counties to control misdemeanor supervised probation, because well, our Constitution said they couldn't. I'm too lazy to find something showing it passed, but here was the issue:

As you might imagine, there are a lot more easter eggs in Idaho law. 

Idaho does NOT provide an attorney at one's first appearance before a neutral magistrate, the only time one's bond must be reviewed (at all other hearings, you have to get it on the docket, and you need to give seven days notice).

Ah! You say. But no one ever said the 6th gives you an attorney at that hearing

You mean that SCOTUS never did, because they're nuts. I've literally heard a judge ask a woman to provide reasons to lower her bond covered by Idaho Criminal Rule 46. She started to cry.

Idaho's Supreme Court has declared a right to appointed counsel in all probation cases under.. well they said that the 6th requires that you be allowed retained counsel (?) and Idaho has a statute giving counsel and so... ?? Counsel. Bam. Does the 6th actually apply to the work the appointed attorney does meaning that counsel has to do a good job? Unknown. (state v. young, look it up).

So we have counsel, kind of. But we don't have him when we're placed in the jail. The first time we will see a judge again, unless a hearing is scheduled, will be one to two months out. Yup.

Then it gets really tricky. You see, judges don't get to just operate in a vacuum. For crimes, judges get complaints and issues warrants. For probation violations at the misdemeanor level---judges get motions for warrants ex parte and act on them.

Oh yes.

There is no law allowing for this procedure. District Court judges don't do it, they hold the hearing and if you don't show you'll get the warrant.

Best of all, in supervised probation cases, the PO goes to the prosecutor, gets a form motion, and takes it to the judge. Did you know filing pleadings is something only a lawyer can do? No? Apparently, neither does misdemeanor probation.

So this is where we get back to technicalities. I get a case and see all of these issues. I file the appropriate motions and get a hearing. The state says, huh, how about your guy do X. And X is perfectly reasonable considering the client did in fact violate his probation. And because frankly, the remedy for all of the above is unknown, and may very well be totally useless.

That to me is a technicality. The huge issues which, when you realize you'll have to ask for a remedy and that you'll never get the court to agree to simply dismiss, they stop seeming all that useful if you can get the state to be reasonable.

But it's just a matter of time before some pissant prosecutor blows off the argument. And things can finally get interesting.

Thursday, August 15, 2013

And the taxpayer need not fear!

Idaho decreed not terribly long ago that criminals should pay restitution.

Well, yeah.  But they made it bigger.  And longer.  And more.  Insane.

So now- you break the law, YOU PAY.  FOR REALS.

The Idaho Court of Appeal recently release this wonderful "unpublished" opinion:

So what we learn is- you can be forced to pay the salary of every cop that worked on your case.  Fuck, they don't even have to show up and testify to doing the work- one cop showing up and guessing at their salaries is fine, and that memo saying what the hours was- shit we're good.

Admittedly, it would be great if criminals paid the wages of their own prosecution and imprisonment.  But of course they can't.  They're fucking poor as shit.  Chongphaisane is, according to this, a drug dealer.  So he has a ton of money all of which was already taken by the state.  So what the fuck is the point?

Oh I know, let's make him a slave to our government forever!  That'll teach'im.

I've never, ever, seen a judge do this.  Maybe it is only saved for rich defendants.  But laws shouldn't be that discretionary.  That allows for abuse.  And no one abuses the law quite like a prosecutor.

Friday, August 9, 2013

"Family" Law, or why child protection DESPERATELY needs juries

You know who is looked at as lower than criminal defense attorneys?  Divorce attorneys.

Yeah.  I said it.  I was actually taught that in law school.

My practice (and is it ever) does not include "family" law, just Child Protection.  Which is weird, because Child Protection is rarely about protecting children.  It's mostly about families.

Idaho is extremely interested in children, however.  This year they amended their law so that every kid over the age of 14 gets an attorney during a Child Protection case.  Yes, once they're over 12 I'm thinking the ABA says you have to treat them as normal clients, but Idaho doesn't want 12 and 13 year olds calling the shots?  I don't know.

Anyway it means CP cases just got a lot more crowded with attorneys.

If you want to see an attorney act like a total ass, watch a CP case.

There's no jury.  So an attorney is free to behave as badly as they would like, within reason.  If you think your judge is going to be as annoyed as you are, you can basically tear the witness apart.  If you're wrong, expect the judge to be an ass to you.  Which comes with the territory.  CP cases are full of asses.

So in a way they're fun.  But they also tend to make me want to shoot all the attorneys.  And since it's a judge, sometimes I just go ahead and say that on the record.  Because I know the judge is thinking it, too.

The worst cases, in my mind, are not the sex abuse cases.

They're the cases where the parents are going through a custody battle.  I want to scream every time I get one.  I try very hard to keep the client on task.

Me: I understand that he/she accused you of spanking/slapping/beating the child and leaving a mark, and you have said it was him/her.  But this is about the government taking your kid and placing him/her in foster care.  What can we do to bring her home?
Client: I just want to make sure he/she never goes back to him/her.
Me: That's your custody issue.  This is about the government.  You have shared custody for X years.  Nerves are frayed.  But don't you think your child is better at home than in a foster home?
Client: But he/she spanked/slapped/beat him/her like fifty times that I've never reported to anyone because I didn't want to start shit till he/she called the cops on me and I can't believe this! GAH!
Me:  I see.  Well.  We will tell the judge your position.

You know what CP actions rarely result in?  Perjury and wrongful prosecution charges.  You know what they mostly consist of?  Perjury and stupid, stupid reasons for thinking a child has been abused.

And then you have those Health and Welfare workers, who are the most despised creatures of all, whispering evil to your client, egging them on, BECAUSE THE OTHER PARENT IS THE DEVIL.

Fuck.  This poor fucking kid is going to be more scarred and fucked up by this insane battling and being forced into foster care than by anything you people claim is going on.

And can I just say that if leaving a mark is a reason to take a kid away, I should have been sheltered like a hundred times?  Who the hell decided this country has to be raised by sissies?  Kids are not so fucking dumb they don't get that sometimes parents fuck up.  They don't grow up to kill people because mom loses her temper over some dumb thing and gives the kid a good smack.  GROW THE FUCK UP.. COURT SYSTEM.

Folks, these are your taxes, now paying for at least FIVE attorneys per case (prosecutor/mom/dad/child/CASA).  Maybe you should tell your legislator this shit needs to stop.


Wednesday, August 7, 2013


Some prosecutors are obsessed with the sex they're not having.

Slate just churned out this rather mean-spirited article:

But as mean as it is, it's also kind of true.

Cuccinelli actually forced the issue and got the Supreme Court of Virginia to strike down their fornication statute.  I had to use that case arguing against a fornication charge.

I lost.  I know, how ironic, seeing as how Idaho.

Later I realized that the trouble was that our buttfuck statute ("THE INFAMOUS CRIME AGAINST NATURE" seriously that's what it is called and it is in all caps in the statute book) survived even federal district court level scrutiny- because it was used in a case involving a minor.  9th Circuit wasn't touching that one.

Not long ago a Sheriff up north decided he wouldn't support the Boy Scouts anymore because they allow gay kids and that violates the law!  THE INFAMOUS LAW.

As for the Idaho Supreme Court- they upheld discriminating between rape of a female and "male rape" (yes, we have a separate law called "male rape") because clearly the government has a perfectly good reason for finding raping women worse- it can produce unwanted offspring.

Evidently, the idea of women raping men never entered the judicial mind.

So what's up with all this?  You.  You people keep voting in deranged sex obsessed representatives to write your laws and others to enforce them.  And I'm left sitting on a court bench listening to the prosecutor assigned NOTHING BUT CHILD SEX CASES tell me how my clients should be sterilized so they can't have kids anymore.  All my clients.  "Put it in the meth," he offers.

Lord, some days I'd rather just lock the lot of you up in a big room and let you sort it out among yourselves.

I'm goin' fishin'.

Friday, August 2, 2013

This is America Mother Fucker

Attorney: So let's go back to when you said he licked your vagina.
Six year old: (clutches teddy)
Attorney: Do you remember talking to the officer about this?
Six year old: Yes.
Attorney: Do you remember telling him that the man only did it once?
Six year old: No.
Prosecutor: Objection! What is the point of any of this!
Judge: Yeah!  Sustained!
Attorney: No.  That's not a basis for an objection.  (return focus to child) So when you looked down and saw the man licking your vagina, did he have a beard?

One of the things you don't generally know anything about as a normal person is what it feels like to be hated by everyone in a room.  Everyone.  Including people that you know well and get along with.  Just hate.  Like, if those people could, they'd beat you about the face with a bat.

So when you become a defense attorney, you of course think, oh man, I'm going to defend some really bad people.  How can I come to grips with that?

Defending human beings against a faceless state and obnoxious laws takes nothing.  Defending them from people who claim to have been victimized- harder, but you get over it.

What you never think about, at least not accurately, is what it will be like to have everyone hate you.  It's not just being the despised defense attorney.  The slimy defense attorney.  Whatever.  You can shrug that off.  That's just ignorant bullshit from people who have no idea how many crimes they commit a week, and how bad the police are at detecting crime, and how lousy the system is at figuring out who is guilty and the appropriate punishment.

You don't know what it is like to attack a child, a child you pretty much accept has been horribly raped, and force them to tell you about all the blood- and as you do it, to have everyone in the room want to kill you.  Judge, bailiff, clerk.  The people that usually are pretty capable of shrugging off the weirdness of what we do.  Just hating you.  And because of the hate, the rulings start to get pretty stupid.

And you want to be all, "Hey now, this is my job remember?  You think if the crime is bad enough the accused should just roll over and die?  Not in America mother fucker.  Not today."

And you do think that.  And you just ignore it.  But once you go back to your office (because you had three more hearings after that) you sit in your chair and your brain just kind of screams and writhes for a few seconds.  And you're ok.

But when that's all of your cases, or you have so many that it seems like all of them.. you have to start to live in all that hate.  Really dumb judges sometimes just can't seem to let go.  You can't get a bailiff to joke with you anymore.

It is exhausting.  And no one but your comrades in your office can even begin to understand and offer any kind of solace.

But hey now, you know who else feels that?  Your client.  And being able to share the experience of being violently hated by everyone with somebody else is actually not a bad way to bond.

Meh.  This is America mother fucker.  You want to take the freedom of an American, you better believe you'll have to wade through an ocean of shit, piss and blood.  We'll see to that.