Tuesday, April 29, 2014

Execute! (presses button) (bangs gizmo on wall) Damn it! (shoots convict)




And I can tell you, Idahoan that I am, what red staters are thinking.

"What the fuck?"

Followed by:

"So.. it worked out ok then.  We wanted to kill him, and eventually, we did."

We don't give a flying fuck that he died of a heart attack from his vein bursting.  Assuming he deserved to die for his actions, we could really care less how it happens.  I mean, days on end of torture might seem overboard, but this?  You really think we're going to give a fuck?

And then it's all, well, but like 4% of these guys turn out to be innocent.

That's bad.  No one can, accepting that to be true, say otherwise.  But I can already tell you some of us will tell you we can deal with 4%.

Fuck, it's like half our unemployment rate.

I read Camus kids.  I love Camus.  And I'm willing to even say, yes, Camus is right, capital punishment is philosophically and qualitatively worse than most things it is implemented for.  Particularly now that only killing gets the death penalty.  You want a good death penalty-real life comparison?  How about child rapists raping their own kids- I can tell you, that shit happens on a schedule of sorts.  Camus' whole deal was "what kind of monster would lock you in a room and tell you the day you were going to die?"  Well, that may not happen very often, but similar shit occurs.

Hell, that's kind of what we do to our soldiers, come to think of it.

Anyway, Camus, much as I love him, is not terribly convincing.  A better argument is this- who are we to give up on our brothers and sisters?  Why do we get to say, "that's enough of this, kill the fuck."?  Because when we draw that line, we stop trying.

What you may not know is- a few centuries back, death was the penalty for ALL FELONIES.  Dude.  Like whoa.  Now, we rehabilitate a lot of felons.  Sadly, there are many we don't.  But for society to take the stance of "nah, fuck this guy" sucks- because it simply ends progress.  We shouldn't say "ENOUGH."  We can't know when it is enough.  And if we leave them alive, pay for them to be alive, we have this itch, this itch to figure it out- why are people doing this?  how do we stop them?  how can we heal this soul?

Red staters- you know you claim we're a Christian nation.  What would Jesus do?

Monday, April 28, 2014

A factual record

Since the Volokh Conspiracy sold out, you can't just go on their site and say, "hey, what you're saying is nonsense."

I'd had an ongoing argument with Prof. Kerr as to his belief that magistrates can't refuse to sign a warrant because they think it will violate the Fourth Amendment.

No, that's really his position.  He thinks that all the magistrate may do is determine if probable cause exists, they may not determine that the search or seizure will be unreasonable.  Why does he think this?  Why do academics think anything?

What I don't recall from that bizarre argument was his arguments today: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/28/courts-grapple-with-the-mosaic-theory-of-the-fourth-amendment/

No factual record?  What does he think a request for a warrant is?  Is he of the opinion that a warrant cannot be requested through sworn testimony?  That a judge may not ask questions of the officers involved?

If he were just an academic, I'd understand his weirdness, but since he did spend time with the DOJ, I gotta tell ya folks, I can't figure out why the man is so incapable of understanding the simplest things.

But I will agree, these are good times for those who love the Fourth Amendment.

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.

Macro Approach and the SAPD

Anonymous wrote:

Im inclined to think there's a disconnect between the SAPD and the local PD offices. SAPD have very little, if no, actual client contact and I think they tend to view their appeals more globally, i.e., is this case going to make bad law..or can this case be used along with others to steer the Court of Appeals towards overturning "State v. Shit Case"....I think the individual can get lost in that.

Whereas the trial level practitioner focuses on that client and their issue..

That is, of course, basically what the SAPD (Idaho State Appellate Public Defender) has said it is doing.

I would accept this explanation, but I really want to just think they are lazy.  The folks at the SAPD never struck me as bad people.  It's hard to accept that they simply don't consider themselves to work by the same ethical constraints as the rest of us, that they think of themselves as outside that system.  Remember:

As a representative of clients, a lawyer performs various 
functions. As advisor, a lawyer provides a client with an informed 
understanding of the client's legal rights and obligations and explains 
their practical implications. As advocate, a lawyer zealously asserts 
the client's position under the rules of the adversary system. As 
negotiator, a lawyer seeks a result advantageous to the client but 
consistent with requirements of honest dealings with others. As an 
evaluator, a lawyer acts by examining a client's legal affairs and 
reporting about them to the client or to others. 

No where in there does it say a lawyer is a crusader for some random cause called "overturn state v. shit case."  Is there such a thing as non-client centered advocacy for lawyers? Not in Idaho.  Hopefully not anywhere.  And sure as shit if you ARE going to go on a cause streak, you better not be harming your client in the process.

There are (though I can't recall where you find them) special rules for public defenders requiring them to fight anything they can raise in good faith largely because we are seen as "the government," we're civil servants, and the danger is there that we will simply become what so many people say we are- meet 'em and plead 'em warm bodies.  Closest thing I could find to what I'm referring to is this bit from the North Carolina Office of Indigent Defense Services:

3. “Work Hard FOR Your Client” 
APD’s MUST Work Hard 
 -Hard work is the only thing that can attempt to “level the playing field” 
 -A lawyer must be diligent and zealously represent his or her Client (Rule 1.3) 
 -The duty to use the law to “the fullest benefit to the Client’s cause” 
(Rule 3.1, Note 1) 
 -In order to pursue a matter, all you need is a good faith basis that includes 
“a good faith argument for a …modification or reversal of existing law” 
 (Rule 3.1) 
It is All About the Client 
 -APD cannot have a “lawyer’s ego” (it is NOT about “you”) 
 -Always ask colleagues or other lawyers for opinions or help 
-Never base decisions on personal motives 
 -Client’s interest is primary (over offending judges or bureaucratic office rules)

For the SAPD to decide they are going to see their clients on some macro scale that allows them to blow off claims they can make in good faith... that's pretty horrifying.  Private counsel would never ever do that.  Why should the poor find themselves with attorneys who don't care about them as individuals?  Who don't zealously pursue their defense?

No.  That's just way too much bad mojo.  I won't accuse them of that.  Not yet anyway.

Monday, April 7, 2014


Abraxas begetteth truth and lying, good and evil, light and darkness, in the same word and in the same act. Wherefore is Abraxas terrible.
-Carl Jung

If you ever want to peer into the void of madness- read a court opinion that smears the truth in feces to save a lying cop.

Go read this- http://blog.simplejustice.us/2014/04/06/but-for-video-your-lying-eyes-edition/

Then tell me your government is sane.  All three branches bending truth in different directions till we the people cannot take it anymore.  When the government speaks truth it lies, but we must accept it as truth, for the government is the one true god.

So say we all.