Wednesday, March 26, 2014

It's Official- the SAPD doesn't have to care

In a ruling that was surprising to only a handful of law students, the Court of Appeals today made into controlling precedent its holding that the SAPD doesn't have to file all nonfrivolous claims.  The case is here.  I had previously blogged that they had said this in a non-precedential opinion, which is of course an oxymoron that means the opinion can't be cited to and thus isn't "precedent" even though its published and we all know damn well it means what it says.

The Court used what you might call a test case to do it, except of course the plaintiff bringing the action and appeal was the criminal defendant.  The convict argued the SAPD should have pursued his motion to suppress evidence found in his car based on a search incident to arrest in a DUI case which, of course, the Court had already said was fine in its Cantrell opinion.  Essentially, the Court is saying you're never going to convince us your lawyer wasn't effective because he didn't challenge existing law.

But that is, I'm sure, only part of the story.  Likely, the convict's original attorney filed the motion because Cantrell is bad law.  They also may have filed it because his case differed in ways that may have been important.  Who the fuck knows, because his appellate attorney from the SAPD said, "nah, I'm too lazy and busy losing these other cases I evidently think are worth bringing before the Court."  What's the worst that could have happened, you SAPD hack?  The Court denies it?  You somehow make bad law worse?  Fuck, that's YOUR FUCKING JOB.

The real fuck of it is, the Court probably would have simply denied oral argument.  Oh no, I had to write a brief!  Damn it all!

Considering how fucking terrible the attorneys at the SAPD are at oral argument, that ought to have been an incentive.

I say, if the ACLU is paying any attention, now is the time for a massive lawsuit against this fucked up appellate system.

Saturday, March 22, 2014

Crushing Weight of Responsibility and Scorn

Every government official deals with scorn.  Americans don't much like government, and even if they do in abstract, they don't like us when they deal with us.

Public Defenders in Idaho have just received a nasty slap in the face.  Here is the bill that the governor will soon sign.  After a year or so of wrangling on a panel made up mostly of law enforcement, and not consisting of one public defender, a bill was then sent to a committee, who sent it to the Idaho State Police and the Prosecutor Association, and it came back like this.

What does it do?  Creates a committee to study things.  Pays them $200 grand.

What else?  Puts an end to paying flat fees to random attorneys for cases, forces counties to have a public defender office or hire a local attorney to act as the public defender on contract.

But as a massive slap in our face, it removed the two year term for public defenders.  Now, the heads of the various offices in our state will serve at the pleasure of county commissioners.  Some of the stupidest, cruelest, most insane people you have ever had the displeasure of encountering.  People who have told us that a monkey could do our job, that pull us in to ask us why it is they are being told by the sheriff and prosecutor that we are using technicalities to get people out of the punishment they deserve.  These clueless bastards will now be free to destroy us at will.

I think part of the problem is that we are terrible at explaining why we are important.  I don't trust the local ACLU, I think they're hacks.  The SAPD are certainly hacks.  And we ourselves, we're tough people to get along with.  The people of Idaho love law and order and hate government.  It's a dichotomy that makes no sense, and it does not seem to help us, because we are not seen as fighting government, but as helping evil.

The odds are NEVER in our favor.  And it exhausts me.  So many years of fighting, and this is what they do to us.  They finally take a look at how bad things are, and all they can bring themselves to do is remove the what little protection we had from political bullshit.

Saturday, March 8, 2014

Guardians of the Darkness

Recently in the news there was quite the hub-bub about the nonselection of Abdegbile.  You hear all this stuff from lawyers about how everyone needs a defense and blah blah.  Let's unpack that, shall we?

Dershowitz said, "The zealous defense attorney is the last bastion of liberty - the final barrier between an overreaching government and its citizens."

That's sort of true.  But it has to be unpacked as well.  There is the attorney as advocate for his client.  That's what attorneys will explain is all that they are.  The rest is just the trappings of that job.  And so, from this view, the attorney is the guardian of his client's liberty.

That view, however, does allow for a certain amount of disgruntlement from ordinary folks.  You can't simply wash your hands of who you defend in this view.  This view and the "everyone needs a defense" thing are, frankly, kind of bullshit.

Because we defend evil.  Dark, dark evil.  We put the murderer back on the street to kill again, and we get him off on a technicality and he does it again.  I'm sorry, but simply saying, "everyone deserves a defense" is pathetic.  Society may quite righteously respond to that, "Fuck you."

I am a public defender.  I do not decide who I defend, but I know I can't hide behind that.  I took on the mantle because I believe in what I do.  And I hardly love my clients.  Well, to be honest I have rarely really hated any of them, I'm kind of a softie in that way.  Everyone is sympathetic on some level.  But I live in the world with the rest of you.  And I don't tell myself it's ok that I help the child rapists rape.  That would be insane.

What I realized, as I took up this job and did it for a while, is that the good guys are pushy.  Cops and prosecutors are order.  They are light.  They defend liberty, too.  I have lived in a real war zone.  I know what it is like to be so terrified you can't get out of bed.  Liberty from fear is extremely important.  Law enforcement liberates us from some very bad shit.

But Acton said, "Power corrupts, and absolute power corrupts absolutely."  This is a terrible truth.  Our people have learned it time and time again.  During much of the strengthening and founding of our civil rights, our leaders have looked at that absolute corruption and in response, we have the system we have.  The rules of this game were designed not to protect the darkness, but to protect the light.

But the gate stands between those forces and the watchmen along it are not us.  Despite what Dershowitz and people think, I do not defend the darkness.  I have never argued that evil is good.  That takes the power of a Pope, and I don't have that.  What is it that Jack Nicholson said...

Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lieutenant Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know, that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives! You don't want the truth, because deep down in places you don't talk about at parties, you want me on that wall. You need me on that wall. We use words like "honor", "code", "loyalty". We use these words as the backbone of a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, and then questions the manner in which I provide it! I would rather you just said "thank you", and went on your way. Otherwise, I suggest you pick up a weapon, and stand a post. Either way, I don't give a damn what you think you are entitled to!

The guardian on the wall is the judge.  The judge determines how far into the dark the light may go.  The judge has the heavy duty of defending order from the corruption that comes from completely wiping out the dark.  From the Gulag Archipelagos that form when the light strays too far into Hell.

What do I do?  I remind the judge of his duty.  I am the canary in the mine shaft.  I point to the rule and beg the judge to hold fast, keep the gate shut.  When I fail, I feel not only personal defeat, but a slight terror of what may yet become of this country.  Our judges are the last bastion of freedom.  They are the watchers on the gate, the guardians of the darkness.

Would that those who chose them would choose more wisely.  Would that those who revile attorneys who have begged judges to maintain the wall could see what Aristotle, Plato, Acton, Washington, Jefferson, Hitler and Stalin had to teach us.

Friday, March 7, 2014


One of my compatriots was complaining about our imminent (?) switch to paperless as a court system ('tis all the rage) and that this would mean more people looking at screens and less at each other and further dehumanize the whole process.

Now, I have read Hannah Arendt and I get the whole idea that as society grows more complex we stop understanding the world around us.  Personal interactions force us to actually figure out how to "love our neighbors."  Take that away, and we start to lose the modicums of respect and dignity in our treatment of one another that so many centuries of social living have achieved.

But all the same, I gotta ask y'all, how much of your clients' product are you smoking?

Have you met these folks?  Hell, have you met people, period?  Do you really like yourself all that much?  Do you know what judges are like?  Socially isolated.  Highly educated and logical.  THEY DO NOT LIKE PEOPLE.  You know how we convince judges not to slaughter our clients?  It's not by having the filthy bastards go up and shake the Mighty's hand and breathe in his face.  Shit, most of my clients have tattoos on their neck or face identifying them, if not as unemployable idiots, then as members of prison gangs.  Fuck your idea of humanity.  What you really mean when you say human is the human in humanitarian, the "ism" of helping each other out, expending our resources for the betterment of ourselves as a species.  You know how you get a judge to agree to that?  By the power of ideals applied to particular facts about your boy that you cherrypick with tender loving care.  Not by having judge McSternpants look your client in the eyes as he hears about his meth addiction.  Not my clients anyway.  Fuck, if you have a client you WANT to expose a judge to, you're definitely not a PD.  When I have cases where pathos is on my side, I go to trial.  Otherwise, the heart of a judge is logos, and logos can only go so far to cover up the tough talking idiot who just pled to felony assault on an officer down from attempted murder.

Fuck.  Dehumanize?  Do you people pay any attention to the news?  How is tying these bastards to humanity a good thing?

Bring on the internet, brothers and sisters.  On the internet, my clients could be Mother Teresa for all the judge knows.

On a more serious note, we already have people going to first appearances on TV screens.  The thing that keeps judges in line is their own moral and ethical compass.  I'm really not worried about face time with his or her honor when we're not judging the credibility of my clients' accusers.  If you really think your judge needs to be reminded your client is a human, you probably already know you've lost, no matter what you do, and you need a new judge.  If society is producing a lot of bad judges lately, well, that's just the shit we're in.  You won't fix it having judges hang out with my boys.  Hahaha.  No.  That will not help things.  Not that I don't think you can't like anyone if you spend enough time with them, but that kind of thing isn't going to get a judge to pick a lower bail.  Get to know your client and tell the judge why, based on his past actions and current attributes, we know he'll come to court, not use drugs, and  not get himself arrested again.  THAT IS YOUR JOB.

Fuck.  Dehumanize.  You kids.

Tuesday, March 4, 2014


It's odd the way that courts exist in this country.  History is replete with things like the star chamber, where badass old guys questioned catholics and had them tortured and executed.  We have people in gowns in rooms of various shapes and sizes.  A lot of courtrooms nowadays are built squat but wide.  I like the high ceilings myself, but I also recognize that not letting the judge be a football field away and raised a story about our heads is a good way to keep folks in check.  Acton's law and all that.

Anyway, federal courts are, in my opinion, the worst.  They were all built extravagantly.  They are made to make those who enter feel like the farmer in Kafka who will never have access to justice.

They scare the hell out of me.  I need a judge that will be able to understand the case from the side of my client.  I can never imagine those berobed bastards even being driven in limos down the streets my clients are stopped on, much less with the boot of of deputy Bob on their backs.

For all that, you seem to get more bad judges down in the pit, sitting eye level with you, than you ever do in the star chamber.  I wonder why that is.