Sunday, June 29, 2014

Meanwhile, in Idaho

While folks the nation over have been chatting about the recent SCOTUS decisions including they're unanimous decision to not treat our entire digital lives as reasonable to rummage through on arrest, Idaho's Supreme Court has also made an appearance.

First, the good news.  In Doe v. Doe, the Court concluded there was no abandoning of one's parental duties in a case involving a mother hiding children from their dad.

The magistrate court’s finding that Father abandoned Child is not supported by substantial, competent evidence. It is undisputed that Father has not had contact with Child for over one year. Thus, Mother has established a prima facie case of abandonment. The burden of production was on Father to demonstrate just cause. The record uncontrovertibly establishes that Father’s failure to maintain contact with Mother was supported by just cause. The magistrate court failed to address significant evidence in the record demonstrating Mother’s concealment and hostility towards Father, which on the facts of this case establishes just cause.

The Court has held the same thing previously, mind you, so this was mostly important from the standpoint that things haven't gone too crazy.

I don't know why the court assumes the defendant has to prove just cause, but that's good to know I suppose.

Anyway, now for bad.

First, less bad:  Moses.  Moses being a reversal of the Court of Appeals' Moses, which I could try to find a link to but that sounds like a headache.  For those that kept track, the original Moses reversed his conviction and lambasted the prosecutor for misconduct so intensely that they used his actual name.  It was a harsh, HARSH opinion.  And it did not make a ton of sense, but you could tell the COA was fired up.

The Supreme Court reversed EVERYTHING.  It's kind of horrifying.  Makes you wonder what the deal is.  Now, some of it appears to have to do with the fact that the COA accepted facts that were utterly wrong on their face, which is something both courts have a tendency to do, but I can understand the aggravation.

I think the worst part of Moses is the fact that the Supreme Court comes off as not knowing what trials are like.  They simply rob every bad thing that occurred of its power.  The piece de resistance of the opinion was how the judge handled a juror that suddenly seemed unwilling to take part in the case.  The COA took this extremely seriously and reversed on those grounds alone.  The Supreme Court shrugs it off and makes questionable caselaw.  Why?  Because Moses was a bad dude?  Who knows.  In any case, now the defendant knows he has to make a record showing that the judge is abusing his/her discretion when they don't allow you to question a juror or do it themselves.

Now for the really bad decision.  State v. Richardson will live in infamy forever.

You can read the opinion yourself, but the synopsis is: guy goes to his preliminary hearing (in Idaho, we are guaranteed a hearing in felony cases where the state must prove it has probable cause to believe the felony was committed and we get to do cross and present evidence).  State has a confidential informant who is produced then and there, no information discovered to the defendant (discovery must be provided 14 days after you request it, meaning that if your client is in jail, you will most certainly not have hit the deadline prior to the hearing, so it's really up to the state if they want to give you what you need, else your client spends extra time in custody).

So here's the crucial point for the Supreme Court- defendant got to see, hear, and cross examine the CI.  But did he?  The trial judge (district judge) says no.  Supreme Court says yes:

The district court concluded that Richardson did not have an adequate opportunity for cross-examination of Bauer pursuant to the Confrontation Clause. The district court found that Richardson was not informed of the name of the confidential informant until the confidential informant testified at the preliminary hearing and that any claim by the State that Richardson knew the identity of the confidential informant prior to the preliminary hearing was speculative. The district court also noted that the audio recordings of the controlled deliveries did not identify the confidential informant. Based on these reasons, the district court concluded that Richardson’s attorney used his cross-examination of Bauer as an investigatory tool. Due to Richardson’s  apparent inability to investigate Bauer prior to the preliminary hearing, the district court determined that Richardson did not have an adequate opportunity for cross-examination. We hold that the district court erred in concluding that Richardson was denied an adequate opportunity to cross-examine Bauer at the preliminary hearing.

Cue wailing and moaning.

This is important because the CI dies and is not available at trial.  The state now reads his testimony from the prelim into the record at trial.  Presto: conviction.

Of course, all is not lost, the Court tries to give direction.  If you want to keep out the prelim transcript, the Court demands you show what you think you can accomplish on cross at trial that you did not at prelim.

That is kind of stupid.  As the DJ noted, at prelim, the defense is often just looking for information.  You're not doing your best to shut down the state, hell, sometimes you make their case stronger as you try to pin down the witness's testimony.  You're trying to figure out what the foundation is for something they are saying, because you're hoping it will be crap.  Or whatever.  Point is, it's ridiculous to say that cross at prelim is the same at trial.

But now we are on notice.  While it's kind of difficult to foresee dead witnesses, the fact is we do have folks that do not come to trial and the state often seeks to introduce transcripts.  So, we need essentially facts that counter their testimony.  But I can already tell you what answer we'll get for most things we do: "that's speculation!" or "why can't you just introduce that at trial and impeach the dead guy?"

You know what that's like?  The jury is not told the state's witness is dead, they just assume.  They ALSO assume your client killed the person.

Ugly business.  Hard to believe the Sixth Amendment intended these results.  Why can't the Supreme Court be cool?

Wednesday, June 18, 2014

Taking the Black

That Game of Thrones show that is so popular has this big chunk of the story about a group of men who take a lifelong vow to go stand on a wall and protect the world from zombies.  They call it taking the black.

Hardly a new concept.  Monks take vows, nuns take vows, you take a vow when you get married.

Hell, they've even had Shoalin Warrior Monks.

Now, I knew this because.. well I thought it was obvious.. but apparently it's new to enough people to have gotten a study done:

Defending criminals is a life vow.

Not that you can't stop.  You can.  But you can't really ever do anything meaningful ever again.

First, because people now hate you because clearly your moral compass is off if you're willing to defend, zealously, someone who is accused of (and lets face it, did) something really horrible.  Hillary Clinton cross examining someone in a rape case is the given example.  How dare she!

So much like the guys in the Thrones show, if you choose to defend criminals in this country, you accept that you have taken a vow.  You choose to stand on the wall and defend an ungrateful (to put it mildly) population from an overreaching (to put it mildly) government.  And you don't get to go on to do anything else, because you have burned your reputation.

Now, the article says Public Defender.

Let me tell you something: if you were really a Public Defender, there's another really good reason you'll never go on to do anything else-

You will know, have been neck deep in the shit, that there is nothing good in public life.  That democracy has become governance by bickering between powerful interest groups.  That nothing you do out there will ever feel as good as walking someone out to freedom after a year of scorched earth litigation.

Also, you will have garnered a few bar complaints, meaning that not even criminal defense law firms will be willing to hire you thanks to bullshit like Avvo.

If you're a law student looking at being a PD because you need a job and it sounds better than pushing paper, don't despair.  You don't have to be a real PD.  We won't hire you to do felonies.  You'll putz around doing first appearances and misdemeanors for years before you touch anything that can burn you.  Not because we care about you, understand, but because you are no PD, and no PD office worth a damn would let you walk into a courtroom with a client's life in your hands.  You have to spend some time being formed before we put you in the furnace to harden.

Besides, Public Defenders aren't made, they're born.  No one takes the black that didn't want to deep in their soul.  So keep your studies ABA.  You can't scare off new recruits better than our job already does.

Tuesday, June 10, 2014


Sartre has this interesting part in Being and Death about a waiter, being a waiter.  Lost in being in a waiter.  Same with a gambler, lost in being a gambler.

Philosophy doing what now psychology tries to claim it does on a "scientific level."

You are what you do.  For those moments, you are your task and responsibilities.

What happens when, lost in that, you forget the larger picture?  You are one of the trees now.  Forest is lost to you.

Laughing with the judge about a losing motion for your client, who clings to life.   You should always be on the side of the client, but you know some things you only argue for formality's sake- the rules require it- so you do it.

The joke is on the formality.  But for those not in the know, including the client, it seems like its on the client.

Then some no-nothing stumbles into the whole affair, finds your conduct offensive.  The judge and you agree.

All of this is offensive.

Thursday, June 5, 2014

Temper temper

So this judge in Florida has gone viral for beating up a PD.  I'm not going to give it another link.  It's bad enough as it is.

Comments have essentially varied between: "That man is no judge" and "That PD is an anklebiter."

(Nods sagely) Ah.  I, too, have bitten at the ankles of power.  And they were frail and overly sensitive.

Today (and I do this a lot, as do all PDs, so no, you can't figure out who I am) I lost my temper.

Judicial temperament is important because judges have to deal with a lot of people behaving badly.  Attorneys are supposed to be easier to deal with.  Calm, composed, making logical arguments with little or no ad hominem attacks.

Yeah but man, when you're in the hallway before court and captain assmcface is trying to force a felony on some mentally disabled kid or dying old person you can't always "keep composure."

Sometimes, you tell that fucker off.  You tell him he's a fucker.  He makes a quip about, "accountability" and you say, "yeah, you'll be held accountable, fucktard, when you see your God and have to explain all this fucked up shit."

Am I proud that such things occurred?  No.  Should a judge do such a thing?  Psh.  I don't care as long as it isn't on the record.

Do I punch the prosecutor in his stupid face?  I haven't yet!

No, you go in the courtroom and you do your job with an unnatural vigor driven by a cold rage.  And the judge and prosecutor (who is already unnerved by your display in the hall) try to duck your blows and keep things under control.

They fail, you win.

C'est la vie.

Or you explode and lose.  Like the judge in Florida.

He has to lose.

Rage is like a superpower in the courtroom if properly harnessed, but otherwise it bucks and kills the rider.

For the love of god, Florida, fire that judge.