Saturday, November 16, 2013


Supreme Court is going to be trying to figure out what to do about all this restitution for child porn victims-

Basic idea here is that the government and the people who were in the films are claiming that everyone that possesses the porn has victimized the child.  In some places like Montana that means looking at the porn period.  VICTIMIZED.  Bam.

The restitution is to be used to pay for the expensive psychological healing the kids need.

There's something weird about this, which is why some courts don't do it.

But there's something much weirder about the government supporting this position.

Because you see, the government is a purveyor of child porn.

All over, agencies have big databases of this stuff.  They allow people to download it, and then arrest them.

A smart tactic, right?  I mean, presumably, you'll catch a lot of folks that like child porn that way.

But um... if you also take the stance that each time it is downloaded or viewed the person involved in victimized- aren't you victimizing the shit out of these people?

Not all agencies are doing this, some actually have a fake one on their database and use this scheme differently.  But for the agencies that are passing out porno- I just have to say, wtf guys?  If we're supposed to believe that the folks are being victimized, maybe you need to stop victimizing them?  It's kind of like giving guns to felons to be used in murders and arresting them afterwards.

Oh wait.. the DOJ does that too...

Thursday, November 14, 2013

District Court Probably Hates You, It Sure as Hell Hates Me

District Court is considered to be "real" court or "big time" or whatever you want.  You will be told, if you ever ask, that what happens in misdemeanors and infractions is only "kind of" the law.  Law is truly and only done in the District Court.

That is a ridiculous oversimplification.

First, all judges are human.  Most will, if you are a good attorney, do what you convince them is the law.  Many will, if they respect you, let you get away with fudging things here and there.

Second, the problems in the lower levels of law are often built in.  Judges can fudge more because no one is paying attention.  So if you have a bad judge, you're in for it- but only to a point, because really, you're looking at like a year in county worst case scenario.

Third, District Court is hardly the holy grail of law.  District Court judges still want to churn out guilty people.  The only real difference is that fudging happens less often.  This is almost entirely a problem for you, because even if the state, say, doesn't have the ability to successfully keep your client locked up if you have a preliminary hearing because the lab isn't in yet- they will simply arrest your client again, open a new case, and you just lost your credit for time served.  And your client has two felonies rather than one on his record.  So good going.
Also, most felony clients are in jail.  They can't get out.  Not just because in Idaho there's no such thing as reasonable bail, but because you won't be there to help argue it when your client appears for the first time, and better yet, unless you get notice to the court 7 days prior to whenever you want to argue it (and that requires the judge's clerk paying attention to you) your client will never see the light of day without the agreement of the state.  And you know what that will cost.

Can we focus on reasonable bail for a second here?  Who the fuck determines this shit?  All the judges seem to grab insane numbers from their asses that are roughly the same.  Felony DUI- 40 grand.  Burglary- 10 grand.  PV in a misdemeanor- 25 grand.  PV in a felony- if bail, 50 grand and up.
Who the fuck says any of that is reasonable?  Does my client being poor as shit mean nothing?  Do they assume if my client gets a loan from friend/family that will help keep them on the straight and narrow if they get out?
Look, I understand there's a disconnect here.  Some people you kind of have to say, well, shit, I can't let you out because you NEVER COME TO COURT or CONTINUE TO BREAK INTO CARS.  But you don't have to give people bail!  JUST REASONABLE BAIL.  And fucking 40 grand to a homeless person is not reasonable bail.  It is the same as not giving bail.

And fuck, it'd be great if judges just came out and said that.  But they've been playing this bullshit game with themselves for so long they literally believe what they are saying.  Sure, 45 grand because you blew off probation on this trespassing charge.  Blah blah I'm a fucking rubber stamp blah blah.

Thank you very much your honor.  Your total lack of insight into what you are doing assists the state in forcing pleas in cases they shouldn't be taken, and punishes people for conduct they haven't admitted or been found to have committed.

Saturday, November 2, 2013

WRONG and the SAPD

Idaho has quirkily set up a single office for appeals for the poor.  For felony matters.  It is known as the SAPD.

On the one hand, a PD in Idaho doing felonies does not generally have the time to handle all of his own appeals.  On the other, neither does the PD doing misdemeanors.  Or Child Protection.  Or contempt cases for failure to pay child support.  Or any of the other things that get you counsel.

Still, you'd think you'd be pretty happy that you don't have to work on everything.  You'd be mostly right.

The problem, as I and others have experienced it, is that the SAPD kind of sucks.

I do not know the SAPD folks particularly well.  I do know they operate in Boise and like to talk a big game at trainings.  I've heard that they pick and choose what to argue on appeal based on what they think the current court is likely to do.

Which is what some people would want them to do.  Don't make bad law!  Don't fight unwinnable battles!

Except.. you're the SAPD.  It's your job to work for your client.  Not "the law" as some weird amorphous subject.  Your client could really care less that you don't think it will work.  He wants you to fight for him.

And worse, you are insulating the appellate courts of Idaho from entire areas of argument because... what?  You're afraid that if you keep raising these points that the AG and the Governor will push for the destruction of your office and you'll have to come work with us?

Add to this that once the SAPD is through, the Post-Conviction Relief (PCR) returns to us.  And so you get opinions like this one.  

Gould has a shitty trial.  He appeals.  The SAPD gets it.  And they don't want to do anything with it, so they file their blanket "the sentence was excessive" appeal which is ALWAYS denied.  And we file on post conviction that those sons of bitches are cowardly shits not deserving of their titles.  And this happens:

Appellate counsel, in his testimony, stated that he read the entire trial record and 
transcripts and found no error in the district court’s rulings on either the motion for mistrial or in
ruling on the impeachment evidence under Rule 403. Appellate counsel believed that the district court crafted the appropriate remedy in that the defense was free to cross-examine the mother about her testimony on the status of the marriage, but in doing so would open the door to evidence that may have been prejudicial to Gould. He further testified that in deciding which issues to appeal, he first looks for possible error by the district court and then argues that error on appeal, but having found no error in how the district court ruled, in his professional judgment, the motion for mistrial was not an issue to raise on appeal.  

Gould has failed to show that appellate counsel was deficient for failing to raise the denial of the motion for a mistrial or the evidentiary ruling on appeal. While these may have been nonfrivolous arguments to make, appellate counsel is not required to raise all nonfrivolous arguments that the defendant wishes to pursue. Gould’s appellate counsel had been representing clients on appeal for several years, and in his judgment, there was no error by the district court in the court’s decisions regarding those issues. Appellate counsel raised the issue of an excessive sentence because, as he testified, a defendant can always argue that the district court abused its sentencing discretion. There is no evidence that appellate counsel’s performance fell below an objective standard of reasonableness, and therefore, the district court did not err in determining that Gould failed to show that appellate counsel was deficient. 

See what happened?  They fucked the guy, and the Court pats them on the head.  It's ok.  So what if you didn't appeal a nonfrivolous issue.  So what if you instead raised a totally frivolous issue.  You did what you're meant to do.  Keep us from being bugged.

PTSO for the SAPD: If the Court of Appeals thinks you done right, you're not doing your job.

You may read this and think, "well, I kind of get this poor SAPD's point."  But don't forget that the Court of Appeals twists the facts as it sees fit.  Frankly, we can't know what this case looked like without access to the PCR.  And even if the SAPD was right- YOU FIGHT THE BATTLE ANYWAY.  Just like we did when we fought it in PCR.  Where we KNEW we'd lose.  Because that, ladies and gents, is the job.

I don't mind that private counsel isn't arguing this stuff.  One thing the poor has that the rich don't is the ability to litigate every legal issue to death for free.  I get a kick out of telling a magistrate that while they cannot rule in my favor, I would like an opinion telling the higher courts that they are wrong.  Magistrates blanch and get flustered.  A normal person doesn't have the money to wage an appeal, much less an almost certainly pointless one.

BUT WE DO.  And it is astounding to me how every time a poor prisoner files a request to overturn decades of law and it is granted by the Supremes all attorneys go "well.. gosh.  Maybe we should file these things?  I don't know."  

A friend of mine says I think like a habeus attorney for death row inmates.  Uh.  Thanks?

I see my clients's lives destroyed by misdemeanors.  Doors and windows of opportunity slam shut forever. I take all cases seriously.  All abuses of law, unfair trials, and bad judgments need to be litigated.  

I don't really know how I'd last in this job without it.  Most of the work is triaging folks who have no hope of beating their charges, trying to set up a plausible probation scenario for sentencing.  I'm a lawyer, damn it.  I didn't go to law school hoping to be a social worker.

Look, moral of my rant today is- it's ok to be told you're wrong while you do right.  In fact, that's kind of the whole point of being a criminal defense attorney.  If you're uncomfortable telling a court that it is wrong, that's ok, too.  Just quietly put in your resignation letter, and leave the law alone.  I won't tell anyone.