Saturday, September 27, 2014

Representing People

With his characteristic ability to be simultaneously right and utterly wrong, Greenfield posted this where he juxtaposed an interesting ruling that shows where the rubber hits the road in lawyer decision-making with something stupid Volokh had to do for a client this one time.

Sometimes you have to go crack open your dictionary.  These are from Merriam-Webster.

Goal: noun \ˈgōl, chiefly Northern especially in 1b & 3a also ˈgül\

        : something that you are trying to do or achieve

        : an area or object into which a ball or puck must be hit, kicked, etc., to score points in
          various games (such as soccer and hockey)

        : the act of hitting, kicking, etc., a ball or puck into a goal or the score that results from
          doing this

Strategic: adjective \strə-ˈtē-jik\

               : of or relating to a general plan that is created to achieve a goal in war, politics,
                 etc., usually over a long period of time

               : useful or important in achieving a plan or strategy

Strategy: noun \-jē\

              : a careful plan or method for achieving a particular goal usually over a long period
                of time

              : the skill of making or carrying out plans to achieve a goal

Tactics: noun plural but singular or plural in construction \ˈtak-tiks\

            :the science and art of disposing and maneuvering forces in combat
            :the art or skill of employing available means to accomplish an end

            :a system or mode of procedure
            :the study of the grammatical relations within a language including morphology
              and syntax

So the story of Volokh is one most attorneys know pretty well.  Client is kind of crazy, has a goal you can achieve but you're pretty sure it's not a good one.  I was referring to the same situation in the Tenacity post I just did the other day.  You plead with your client not to get you to try to do it, it's not worth it, it will probably backfire, etc.  But the client insists, so you go to work.  And you turn out to be right.

Now, there are times where the line between a goal and tactical decisions get blurred.  In the decision cited by Greenfield, for example, one might have thought that having the codefendant's plea read into the record was a goal.  Maybe it sort of is, but assuming the client still wanted to be found innocent at the end of the trial, and assuming that having it read was, in the client's mind, for the purpose of accomplishing that, it was rather clearly a strategic decision and thus up to the lawyer.

There are a few examples of this that come up a lot.  First is insanity cases or cases involving your client's disability.  You need to use it, the client says no.  It's rather difficult to force a person to submit to evaluations, but strictly speaking, you could do this by getting the court to appoint a guardian after convincing the court your client can't make this decision due to whatever incapacity, then have the court threaten your client with jail till they concede.  I can't imagine anyone ever doing that.  Generally what winds up happening is either the lawyer resigns or he tries to get what he wants without the client's cooperation.  It's ugly and leaves a bad taste in everyone's mouth.  Textbook example: the Unabomber.  As I recall, his lawyers gave up and he pled guilty with an agreement that the government would not seek the death penalty.

 The next is where your client wants to testify and you think that's a horrible idea.  Well, he has an absolute right to do that, so you can at best try to not ask him the questions he wants you to and hope it all works out.  I don't know of any famous examples, but I know a few attorneys who can tell you stories about clients taking the stand and simply admitting they did it.  Or turning out to be awful at testifying and wrecking a perfectly good case.

The last is the scenario Greenfield was thinking of when he's ranting about attorneys as mouthpieces.  Where the client has some crazy belief system they want you to argue.  First, as a PD, because my client did not pick me, I think I have to at least sift the arguments and see what if anything I can do with what they are saying, much as a court has to do (see the Law Day post and the Bristol decision).  Anyway, a textbook example of this was McVeigh, the Oklahoma City bomber.  His attorney, by the way, said no.

Of course, McVeigh lost and was executed.  I haven't read enough about the trial to know how utterly out of the process McVeigh was, but I do know he hated his attorney.  You have to wonder, in a loser of a situation like that, whether it's worth it to also reject your client to the point that they get nothing out of it at all, so they feel like they're just being dragged through it and eventually killed.  Anyway, interestingly, the Ruby Ridge debacle which was very similar and ended the opposite way involved a defense that was related to what the defendant wanted to say.  But trying to do that for McVeigh would have been difficult if not impossible.  Perhaps during the sentencing phase?  Again I don't know what the lawyer did, other than he tried to reduce McVeigh's culpability by portraying him as a pawn.

Back to Volokh.  He wins a decision with a sentence in it that his client apparently found offensive and insisted he ask to have it removed.  Greenfield says this is a strategic decision.  How is it strategic?  How is the removal of the sentence related to winning the decision?  Decision was already won.  The sentence didn't change the outcome of the legal battle, except for the offensive part.  The sentence simply is not subordinate to the goal of winning the case, it's a separate issue.

But these are interesting questions that attorneys get to ask themselves constantly.  Your hope is that you form a relationship with your client where they trust you enough to believe you when you tell them what is up and go along with your plans to get them what you think is the best outcome possible.  But when you deal with people that commit really terrible crimes, that can be tough.  Reality is there are no easy answers.  If you wanted an easy job, you shouldn't have joined the criminal defense bar.

Friday, September 26, 2014

Law Day

A lot of cases were just decided so let's get to it.

First: Carr v. Edgar.  Supreme Court.  Contempt case based on a child custody order.  Noteworthy for two things: (1) Horton wrote it and he's the ex-prosecutor newbie on the court and (2) it tears Magistrate Terry McDaniel of the Fourth District a new one.  To the point of requesting that he be investigated.

It's also a nice example of an appellate court looking at a record and saying "these facts and your reasoning are nonsense."

Which is a perfectly good note to get to the second case: H & W v. Doe.  Court of Appeals.  Involuntary commitment of a mentally ill person.    This case is tricky because it takes a few reads to figure out what is going on.  Apparently, the Magistrate ruled for commitment, but essentially did a laundry list of the things he found without saying why.  So for example, he said Doe is mentally ill, but doesn't say which mental illness.  Doe argues that's bullshit, the record is no good.  The Court of Appeals disagrees, saying that because only one person testified and Doe only tried to attack her credibility, the judge didn't need to give any specifics.  But, in line with the usual crap you get from the Court of Appeals, the Court says two things that make you wonder: first, that it wouldn't be good for judicial economy to reverse just to make the judge do his job.  Why even say that if the law doesn't require him to do it?  Second, they mention later that Doe suggested that her symptoms were caused by her meds.  That seems to contradict the mental illness idea (judge has to find she's a danger to herself or others or gravely disabled due to mental illness).  So that's not just credibility.

How do you juxtapose what happened in Carr when what happened in Doe?  Magistrate's find out that all they have to do to keep from not only getting overturned but from being investigated as incompetent is keep their mouth shut.  So there's no record of how dumb they are.  Their wrong decisions can just ruin lives with no way to fix them.  Hurray!

The other interesting point in the opinion is that "friends and family" private care does not include being in assisted living.  I mean, I guess I sort of see that if you read the statute like a moron, but seriously, talk about misusing words to get the outcome you want.

Third case: State v. Herren. Supreme Court.  Court of Appeals already reversed on roughly the same grounds.  See, when you have a no contact order from a judge, the violation could just be contempt.  But we have another law making it a whole new offense.  That law defines violation as "contact."  But there are other ways to violate a no contact order.  So the state argued that essentially the title controlled instead of the law, and the Supreme court disagreed.

Also of note: the court held that the defendant could have done a conditional admission on a probation violation, something with no basis in the criminal rules.  But hey, works for me.

Fourth case: State v. Young.  Court of Appeals.  Guy tackled his baby momma when he thought she was trying to leave with his kid because she apparently is a monster who had her rights terminated and is just bad news bears.  Tried to kidnap the kid once before... so on.  First, the court holds that to have a child in common applies even here, because so long as you have two biological parents, it doesn't matter what the other circumstances are.  That seems a little weird to me personally, I mean, it's not like we're saying you can batter people if they're awful parents, but if you lost your kid because you're a drug addict, you shouldn't also be protected by domestic violence statues.  I mean, shit, this is going to mean you don't get to own a gun?  Plus, it doesn't jive well with the Supreme Court's rulings on the household member statute that said it was about intimate relationships.  Whatever.  The Court goes on to say that it was ok for the Magistrate to refuse his two defenses- defense of another and defense of necessity.  The court basically says he could have grabbed her for all they care.  But the tackling just was never going to be ok.

I don't get why the court says this instead of letting a jury say it.  But whatever.  The caselaw is in the court's favor, and they could have made really ugly law here but I think this might actually be kind of useful as written, so I'll take it.

Fifth case: State v. Denny. Court of Appeals.  I don't know why this got published.  Basically, guy is held in WA, there's a warrant, he says, out of Idaho, and while he could have gotten out if there was just the WA hold, he can't cuz he can't afford the Idaho hold or something.  It's all pro se and he can't get evidence of what he's saying so he loses.  I mean.  Ouch. Just seems kinda weird to bother publishing this case as opposed to---

Sixth Case: State v. Bristol. Court of Appeals and unpublished.  Also pro se.  Guy in Pocatello gets convicted for having a dirty house or yard or something.  The Court is pretty patient with him and while it's not worth much it's at least entertaining.

Seventh Case: State v. Brooks. Court of Appeals.  Guy gets pulled over for not having his blinker on for five seconds before changing lanes on the freeway.  Argues that the statute has to be read that only if you're leaving a parked position while on the freeway you need to do that.  Kind of hilarious and the court clearly chides the defense for trying this argument out.  But this is important because we've all seen cops try to do that 5 second rule on city streets, and now we have a court case saying no no this only applies on the interstate/highway.  I mean duh, but sometimes you need caselaw to get a Magistrate or what have you to do something right.

Eighth and final case: State v. Miller.  Court of Appeals.  So, this case is kind of interesting.  Essentially, every issue the defense raises they win on.  Hearsay! true.  Irrelevant! True.  And there are plenty of judges that probably need this primer on the rules of evidence.  I definitely suggest folks give it a read.  If you've ever let a cop testify about the arrest and such, you need this case to remind you that you need to be objecting.  But, court says who cares?  He's guilty as sin.  None of this stuff changes the tons of evidence against this guy, or all the stuff in his favor.  Jury didn't buy his witnesses, none of this stuff was all that harmful.

It's impossible to know if that's true because of the way courts can control what the facts are when they write the opinion.  I mean, I get their point if I believe them, but I don't.  Because I know better.

Anyway, that's enough law for this week.

Wednesday, September 24, 2014


I have a client, well, I have a lot of them, but one client right now who really deserves some recognition.

A lot of my clients say and want to argue things that are pretty out there.  And so long as the story/argument is plausible and can be done in good faith, I file the motion or go to trial (assuming plea negotiations fall apart).  I spend a lot of time in court.

But this client cannot be stopped.  No matter how many times he is denied what he wants, he comes up with something else.

That kind of tenacity is awesome.  I am literally in awe.  I admire his never-ending thirst for what he thinks is justice.  If only he'd apply that level of devotion to his personal life.  Getting a job.  Etc.

And if I were a private attorney, his tenacity would be for nothing, since he could never afford the amount of work he creates.  If I were most PDs, I probably would have written him a letter after the first few failures and called it good.

But damn it, the most depressing thing about this is not the workload.  It's losing, time and time again, for all the wrong reasons.  It's knowing that, yeah, he probably shouldn't get what he wants, but the system is so messed up, we can't even get to second base.

But God bless him for wanting to keep going.  Someday, there will be vindication, I believe that.  If only his burning, fiery spirit and determination didn't cause him to suffer so much.

They're all suffering, of course.

Anyway, here's a salute to Tenacious I.  Hang in there, you bastard.