Fatherhood

What is a father?

The Court of Appeals issued an "unpublished" opinion* today on the subject.  It is noteworthy because of what the judges signed off on indicates not being a parent-

Doe’s mental health issues, combined with his criminal behavior and lack of stable job or residence, demonstrate that Doe is unable to discharge his parental responsibilities. Furthermore, the behaviors exhibited by Doe are not recent, isolated occurrences, but rather, are a continued and persistent pattern over a number of years. Thus, we hold the magistrate did not err in concluding Doe is unable to discharge his parental responsibilities and that such inability will continue for a prolonged indeterminate period, and will be injurious to the health, morals, and well-being of the child.

The Court speaks of a 26 year old suffering from schizophrenia who receives disability and finds some work detailing cars.

The state of Idaho has no insanity defense.  Thus, in Idaho, you are blameworthy for what you do when you are in the throws of psychosis.  Naturally, Doe has a criminal record.

Recall for a moment the law that provides the foundation upon which your and my right to parent rests, summarized by the Court:

A parent has a fundamental liberty interest in maintaining a relationship with his or her child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d 341, 343 (2002). This interest is protected by the Fourteenth Amendment to the United States Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the Termination of Parent and Child Relationship Act is the philosophy that wherever possible family life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of due process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a parent-child relationship be proved by clear and convincing evidence. Id. Because a fundamental liberty interest is at stake, the United States Supreme Court has determined that a court may terminate a parent-child relationship only if that decision is supported by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982). See also I.C. § 16-2009; In re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d at 652. 

The Court makes no mention of what treatment Doe has, does, or should receive.  So much for "wherever possible family life should be strengthened and preserved."  Rather, Doe is insane.  Therefore, he should not be a parent.

We cannot know how bad a job Doe's attorney did.  Doe apparently wanted to represent himself.  We do know that Doe had a statutory right to put on evidence as to how he can treat his disease and the Court of Appeals does not mention it if it existed in the record.  

If you are a judge, and a case of this importance is brought before you, and you watch a madman essentially be blindfolded and shot in front of you, what can you do?

The standard is "clear and convincing evidence."  The Court should not accept mental illness on its face as a de facto "you can't parent."  The Court should demand FROM THE PETITIONER evidence that the illness is being treated as best as can be expected for the formative years of the child's life.  A judge must allow bad lawyering to destroy lives- that is the essence of our system.  But it is not the case that the law allows the petitioner to get away with such a limited showing.

The lack of understanding for mental illness and disability among the judiciary of Idaho is extremely disappointing and concerning.  The people of this state have shown they have sympathy for the disabled, however blameworthy they find them.  Would that our judges vindicated those interests in our courts.

*"unpublished" opinion essentially means that a clerk or staff attorney wrote the opinion and the judge simply looked at it a moment before signing it, or that the judge wrote it and thought perhaps it was too early to make this into "caselaw."  But there are many very good arguments as to how silly it is to pretend there are non-precedential decisions, and reality tends to bear out the idea that these opinions matter.

Money matters man, part deux

News from the North- Boise says we spend too much locking up nonviolent offenses.

Well, if the Spokesman Review can be believed.  The article is short and you can read it here.

Spokane is a pretty conservative town.  But I couldn't find a report in any other publication.  No Idaho newspaper is running this story.  Did it happen?  Did it happen in the way the story describes, with most everyone agreeing things in Idaho aren't right?

This is my money line:

Sen. Patti Anne Lodge, R-Huston, the Senate Judiciary chairwoman, said, “We are not getting soft on crime. I don’t want anyone to leave here saying that we’re going to be soft on crime by trying to improve the way we help people become responsible, accountable, taxpaying citizens.” She noted that close to 90 percent of Idaho’s prison inmates eventually are released into society. “We want to be sure that they’re ready to be in our community.”

That's the Idaho I know.  The idea of locking people up for less time shocks the Idaho conscience.  People who commit crime need to be dead.  We'd kill them all if we could.  Why must punishment cost so much?  Sure, we send our criminals the bill for their time incarcerated, but they never seem to get their lives together and pay back that 70+ grand.  Does this really mean we have to let these monsters who steal golfcarts and take video games from Walmart back into our fair cities?

Honestly, if they can convince the IDOC to start paroling people when their eligible instead of waiting until 75% of their time is up, I will likely die of shock.

The Dred Scott of DUI Opinions

Oregon's Supreme Court just decided my favorite issue.  Well, to be fair, they actually scrubbed my issue.  The defendant didn't argue that it's unconstitutional to use fines and loss of a driver's license to procure consent to a search.  I guess.  The Court never says that they did.  So the Court simply says, "well, it's the law! Cops get to tell you about the law!"  Gah.

But then.. this happens:
Notwithstanding our agreement with the state's primary argument -- that the 
officer's reading of the statutory rights and consequences of refusing to submit to the tests 
was not necessarily coercive -- our inquiry is not at an end. Before this court, defendant 
does not seriously contend that a statement of the lawful consequences of refusal is 
unconstitutionally coercive. Rather, defendant's primary argument is that the implied 
consent warnings include at least one consequence of refusal that is not lawful, at least 
not in all circumstances, because it is unconstitutional. Defendant argues that, whatever 
the implied consent statute may say about the matter, a driver has the constitutional right 
to refuse to consent to a seizure of his bodily fluids under Article I, section 9, of the 
Oregon Constitution and, as a matter of constitutional law, the assertion of a 
constitutional right may not be used as substantive evidence of guilt. That is, defendant 
argues, a person may not be put in a position where the only options are to produce 
physical evidence when he or she has the constitutional right not to produce that evidence 
or to refuse the request and have the refusal be used against him or her as evidence of 

guilt.

Let's fast forward to where the Court appears ridiculous:
Farrar's statement to defendant differs from the terms of ORS 813.310 -- 
the statute that defendant argues is unconstitutional in some circumstances -- in several 
important respects. First, it does not convey certainty that evidence of refusal will be 
used against a driver. Rather, it informs the driver that the evidence "may" be offered. 
Second, it does not inform the driver that the refusal will be admissible; rather, it states 
only that such evidence may be offered. Third, it does not refer to a criminal action, or, 
indeed, any particular type of action at all. The statement actually read to defendant thus 
does not express or imply that evidence of his refusal will be used or can be used as 
substantive evidence against him in a criminal proceeding -- only that it "may be offered 
against [him]." Moreover, it is incontrovertible that a driver's refusal to submit to 
chemical tests lawfully may be used against him or her in at least two non-criminal 
proceedings. Under ORS 813.410, a driver who receives notice that his or her driving
privileges will be suspended based on the refusal or failure to submit to chemical tests for 
intoxication has a right to an administrative hearing on the validity of the suspension. 
The driver's refusal to submit to the tests is relevant evidence to prove the validity of the 
suspension and, thus, lawfully could be offered against him or her at that hearing. 
Additionally, under ORS 813.095, the refusal to consent to a chemical test is a specific 
fine traffic violation. If the driver chooses to contest the violation, the refusal would be 
admissible in the ensuing proceeding. 
It follows that advice that evidence of the refusal or failure "may be offered 
against you" is a true statement, and it advises of a consequence that the constitution does 
not forbid in at least two situations. That statement was not coercive. Defendant has not 
objected to the legality of any of the other consequences that would flow from a refusal to 
submit to the tests, nor has he argued that Farrar's statements to him regarding any of 
them were coercive in any particular respect. 

So there you have it.  They argued semantics.  Really, really stupid semantics.  On this basis, your Fourth Amendment dies.

Because when it comes to DUIs and the breathalyzer industry, science and the Bill of Rights, not to mention logic, are all dead.

Money matters man.

You know you're a public defender when the judge releases your defendant prior to sentencing and in your head you're screaming, "NOOOOOOOOOOOOO."

Contrary to what some film depictions of us will tell you, we are not all about getting people out as quickly as possible.  That is because most people make deals.  Sometimes those deals are very important.  Say you convince the prosecutor that your client really isn't that bad a guy and to reduce the possible max from life to a decade.  That deal comes all to pieces if your client gets out and then violates the conditions of that release.

Those conditions often consist of simple things, but also difficult things, like:
No driving.
GPS monitoring (which costs a lot of MONEY)
Drug testing (which costs MONEY)

You say to your client, who was just told he is released, "can you afford that?"  OF COURSE I CAN LET ME THE FUCK OUT OF HERE.  Oh.  Well ok.

And then, a week later, back in jail, and a month later, prison.

Sometimes the judge will really screw a client over by saying something like "and your attorney will tell you where to go and what to do, but do it before you go home or I will send you to prison" except now your client is being led away, you have 5 clients left to do, and you're honestly not sure where X is and you think, well, I'll call him later? shit.  shit... there he goes.  Gone.
Except you have no working number for that client and you don't get back to your office till after 5 anyway.

Why didn't you just interrupt the judge and say, "Your honor, I don't know if I will have a chance to tell my client where that is."  Why.  And you know the answer is probably somewhere between getting your client away from the judge before he changes his mind, your confusion, your not wanting to have the judge berate you in front of your 7 clients who rely on you to keep them out of prison and whose faith in you is key to keeping them out, your own dislike of being berated and feeling the fool, and ... seriously you were given a few seconds to respond to this and this guy really wasn't up there on your worries today so where the hell did this come from?  WHY IS THIS MAN SUDDENLY FACING PRISON BECAUSE OF SUCH STUPID THINGS???

You also know that EVERYONE AT JAIL KNOWS WHERE X IS.  And you assume your client will get this information from someone there.  But you are wrong.  Oh lord.  You are sooo wrong.

I guess the message here is assume nothing.  But do you have any idea how exhausting it is to be ready to answer every question and fix every problem on a moment's notice?  This is what I do.  I will not say I do it well.  But I will try.  And when I fail, I will tell the judge it was my fault.  More than that, I dunno man.  I just don't have any great answer for you.

......

Getting back to the topic-

You know what else is great about money?  You can hire an attorney.

Your private attorney has time to get his paperwork right.  Ok, honestly, I know a lot of private attorneys fail this because I have to handle some cases where rich people want to steal children from poor people, but at least they have the ability.  I, on the other hand, on probably a monthly basis, fuck up an order somehow, and I have no real excuse except that I am an idiot and I am in a rush.  And now bob is in jail an extra day.  But I heart you bob.

Another great thing about paid attorneys- they can confidently fuck a client all to pieces because of a lack of paperwork from the state.  I generally wait for paperwork to show, but it may be that my assistant, who is also the assistant of other attorneys and has other issues, will not get me that paperwork on time but will scan it into our system, and even better, sometimes the assistant will never get the paperwork to me.  And so my system "wait for the physical copy", not a great system I guess, fails.  Can't count on the assistant.  Should I spend an extra hour each day building a system into my phone to remind me to look at certain cases?  Why not.  God knows the public defender sometimes has a good two hours that he spends sitting in court, waiting for three private attorneys to finish their 45 minute summations on their clients' lives in their driving without privileges cases to avoid... a day in jail.

Yeah, it's been one of those days.  You can all go back to whatever it is you do.  I have my rye.  Cheers.

Compelling the Insane to Speak

In another move evidently meant to show that the United States Supreme Court is aware that crazy people are a pain and ought to be dead, the Court handed down Cheevers.

J. Sotomayor starts by reminding everyone that the government cannot compel speech.  Except that actually it can, because the Constitution doesn't care unless that compelled speech is used during a trial.

So in this case, the judge below ordered the defendant examined to see if he was competent.  His attorney objected.  But his attorney probably didn't tell him, "oh and don't answer any of their questions because if later we decide to talk about your mental state the government can get all those statements in."  Because at the time, that wasn't true.  Nor would any attorney have thought it ever would be.

But then SCOTUS came, and reminded us that they don't like defendants going to trial and having an edge over the state by giving evidence about their mind.  You see, your thoughts are free, the one thing the government can't surveil.  You can't be allowed to use your thoughts as a defense unless the government can have a crack at them.

Normally, this is done by giving a recording of your conversation with the psychiatric expert to the state so their expert can watch and critique.  But what if the judge already ordered your thoughts examined?  Why can't the state use that?  Just because you were forced to reveal your thoughts?  And that's obviously a violation of your rights?  Psssshhhhhh says SCOTUS.  PSH.

So here's your lesson: Tell your client they have a fifth amendment right not to answer a damn word at the competency eval.  And they probably shouldn't.

Fun question: Who thinks the government is going to start asking for a competency eval in every case that they can make a colorable argument in?  

Idaho: Submission can be begruding, and also, ride a motorcycle if you don't want the cops rummaging through your things

The Fourth Circuit just released an opinion recognizing that "consent" to a search is.. pretty much never actually consent.  You can read it here.  Or you can read a more entertaining summary of it here.

Meanwhile, today the Idaho Court of Appeals released this decision overruling suppression because... well... perhaps our judges are not very street saavy?  They certainly don't seem to have any experience with dealing with the police or driving a car with a trunk.

The Court had the following facts as found by the DJ:

Here, the officers returned [Petersen’s] license and accompanying information, 
and also asked [him] if he was “good to go.” [Petersen] actually did think he was 
free to go, which is clearly evidenced by the fact that he acknowledged that he 
was good to go, shook the officer’s hands, and began to leave before the officers 
reinitiated questioning. While there is no indication as to tone of the exchange, 
the officers’ testimony indicates that the continued questioning was not 
immediately directed toward accusing [Petersen] of a crime, or inquiring about his 
nervousness--instead, officers continued to ask about the purpose of [Petersen’s] 
trip, and his intended destination . . . . [A] reasonable person would have believed 
he or she was at liberty to ignore the police presence and go about his or her 
business once the officers terminated their questioning, returned [Petersen’s] 
documentation, and asked if he was good to go. 

A review of the totality of the circumstances shows that, when Petersen was questioned the 
second time, the initial traffic stop had terminated and a consensual encounter had begun. 
Petersen had been issued a warning citation, his license and other information were returned to 
him, and he was asked, “are you good to go?” indicating the initial stop had terminated and he 
was free to leave.

Petersen argues that, despite these facts, a reasonable person would not have 
felt free to leave and disregard the officer’s renewed questioning after being ordered out of the 

vehicle and while the officers’ overhead lights remained on.

The Court finds:

The officer’s indication to Petersen that he was free to leave included implicit permission to 
return to his vehicle Petersen also argues that a reasonable person would not have felt free to leave under the circumstances here because of the location of the stop and the presence of the two uniformed officers. However, the location of the stop is not dispositive. Moreover, a seizure does not occur simply because a police officer asks if the individual is willing to answer some questions or puts forth questions if the individual is willing to listen. Florida v. Bostick, 501 U.S. 429, 434 (1991); Florida v. Royer, 460 U.S. 491, 497 (1983); Ray, 153 Idaho at 568, 286 P.3d at 1118. This was the case here. When one of the officers asked Petersen, “are you good to go?” Petersen replied 
that he was and shook both officers’ hand.2 Petersen then indicated that he understood he was 
free to leave by turning to leave and heading toward his vehicle. When one of the officers asked him if he would answer a few more questions, Petersen voluntarily returned and was willing to converse further with the officer. As a result, the district court did not err in finding that the officers did not unreasonably or unlawfully extend the traffic stop because the questioning occurred during a consensual encounter. 

But it gets better!  After finding that your average person feels free to tell the cops he's too busy and leave when there are two of them, their lights are on, and they're suddenly getting weirdly interested in who you are and what you're doing, the Court tells us things we should never do because evidently they show we are drug dealers:

1.Drive from Minnesota to Seattle for a two-day visit with a recent acquaintance

2. with a very clean car for such a long trip

3. with caffeinated soda in view (because only drug dealers have to keep awake)

4. and cellphones (because only drug dealers have those)

5. and an air freshner (because drug dealers have to mask all that drug smell)

6. and blue jeans (I mean, sure, he has a trunk, but JEANS in the CAR?? DRUG DEALER!!!)

I disagree.  And I think any normal person would, so long as you didn't tell them what they were really deciding is whether a drug courier goes free.  And therein lies the rub.  It would be interesting, I think, to see how judges would rule if we never told them what the crime was until after they had concluded there was no constitutional violation.

Victimhood

Supreme Court is going to be trying to figure out what to do about all this restitution for child porn victims- http://www.reuters.com/article/2013/06/27/us-usa-court-restitution-idUSBRE95Q0W520130627

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...

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.

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.

Reason and Rape

If a boy and girl in high school meet and have sex, do you charged both with rape?  Neither can consent.  And according to the media lately, they "assaulted" each other.

What about if she passes out first after they both do a ton of drugs?  What if she has a lot of sex with guys while on drugs?  What if the prosecution is being pushed by her parents?

None of that is relevant in today's world.  Rape is rape.  If you cross the line of consent/nonconsent, you lose big time.  A life in prison or as a sex offender, which is, as far as I can tell, just as bad.

Is there going to be a day when people snap out of it and stop screaming for blood because bobby fucked sally while sally was asleep?  If these are reactionary times, reacting to years of treating rape victims like shit, do we ever get to a day where reason takes hold again?

Reading the news lately, that day doesn't seem like it's going to show up any time soon.

I hate rape cases.  I hate victim witness advocates.  I hate prosecutors that have bought into the rape is rape crowd's bullshit.  I hate that lewd and lascivious contact with a minor ever occurs to anyone as a logical alternative charge to rape.  Why don't we have a sleep fucking statute?  How is it that not one state has adopted a rape statute that deals with the mens rea of the perp instead of the victim?  Why can't we rewrite all our battery statutes- I mean fuck folks, just intentionally touching another person should not be a crime.  Isn't there supposed to be a prohibition on crimes by omission?

America- I'm glad you've started caring about your daughters.  But good fucking god, go easier on your sons.

"Well, I probably would have just kicked him the one time, but Detective Reid said, 'Again.'"

When there doesn't seem to be anything going on in our quiet community, the police just go find the fellows with the proper rap sheet and hang out with them, eventually often encouraging them to break laws and then "hurray!" they get to arrest somebody.

The behavior of these officers is stupifying- are they just protecting themselves?  Or are they like Donny Brasco, and start to enjoy it?  Or do they just figure it's a small price to pay to wait till the group does something worth stopping- say keeping a ton of drugs or guns off the streets.

The question for me is- what does it mean for the client, now arrested because a cop dragged a helpless man from a car and encouraged him to hit him?

Entrapment has been so watered down as to be almost impossible to use,  We have to generally show that our client was not inclined to commit such a crime without the government's assistance.  What the hell that even means is up to, not the jury, but the judge, who think he's in the position to prejudge everything you want to give the jury because of his power to decide if there is evidence supporting the instruction you requested.  Is that the case?  Fuck no.  But every judge in probably every state thinks that's what they get to do.  It's particularly infuriating because they KNOW they can't do that if you request them to find an acquittal.  So, they basically assume they have more power over you because of the law on giving instructions than they have to decide not to give a case to a jury.

And in Idaho, two of our Supreme Court justices just said they were ready to get rid of it completely.  You'll want to check out Barton.  Part of their thought was that entrapment is not part of the common law that came from England and we never had it as a statutory defense, so they don't see where it came from and why they should recognize it.  But I just can't see how any people in creating a limited government could possibly have provided the government with the power to cause and commit crimes with the hopes of arresting anyone that joins in.

So be warned, people of Idaho- your judicial branch is about to give the green light to your government to start trying to get you to commit crimes because the crime rate in this state is at a devastating 3rd lowest in the nation.  So if we're to maintain our being 8th in the nation for imprisonment and first for people on probation, the police have a lot of work to do.  Or, you do.  And if you don't think you're ready to commit a crime, the police are ready to help you out with that.

Idaho Executioners

Stuck in Boise the other day I picked up a copy of a book called Hanged.

The book is about all 23 men legally hanged in Idaho.  Starts out in 1863 or so and ends in the 50s.  Doesn't sound like a lot compared with Texas or Ohio but then our population is generally next to nothing so who knows what that means.

The stories are fascinating.  The author tells them like they're fact, which of course they're not.  They're just the story as accepted by the state for the purpose of killing a man.  But even with all that, the best part is always the aftermath.

Judge so-and-so (who, naturally, has a name of a judge I know because god forbid we get new blood in our judiciary) says, "YOU WILL DIE, and may god have mercy yada yada"

Except for this Native American guy killed in the 1870s.  That judge was evidently not interested in mercy.

Mercy is the big story here.  So for each guy, no matter how bad, there's always this group of people saying, "hey, dude, don't kill him."

And there's the executioner.  It's always the sheriff!  Who also is warden.  Who also has a close personal relationship with the man who he has to kill.  And so in a few of these stories the Sheriff is so shook up by the killing that I actually felt worse for him than the dying guy.

It got me thinking anyway.  The death penalty, even then, wasn't applied very evenly.  Kind of upsetting really.  And so you live in this world where a large proportion of the people know you if they want to kill you, and folks are thinking, hell, this guy shouldn't have to hang.  And killing seems wrong, so it's kind of infrequent, and weighs heavy on everyone, except the governor, who always comes off as a total asshole.

Compare this with today, where even with the increased number we kill the only people that really get to know them are a few jailers, lawyers, and judges.  The media does the rest, and it is as fickle as they come, mostly condemning and bloodthirsty as the worst Roman crowd.

Does the death penalty really have the same meaning now?  Doesn't the death penalty rely on the dignity of human beings, and once that's gone, doesn't the message essentially get lost?  You know what they never said in these old cases?  Eye for an eye.  In fact, they seem specifically against that idea.  Rather, they are concerned about the message, the "here's the line!"  Today, it's just about people wanting to kill each other.  So frustrated in our own little lives, so ready to lash out and destroy, we can't show mercy anymore.  And there's no politician forced to get to know us before he kills us, to point out how badly out of control we've become.

Blood

This blog is dedicated to law.  Criminal law.

But I have a life outside law.  My life comprises things I may or may not acknowledge.

Obama wants to kill in Syria.

I, unlike many of my ilk, care nothing about death.  I don't even care about killing the innocent.  I've never been bothered by death.  Death is the only true peace.  It is suffering that bothers me.  And suffering, unfortunately, comes each time our government proclaims death.

A friend of mine, an old colleague, one with whom I share few, if any, values, is in the military.

Tonight, she asked on facebook of all places:

We are debating the beginning of a third straight war during the last decade, and talking about broken promises and money. When will we bring the debate to every American dinner table and focus on the most valuable American resource we use in these decisions--when will we debate bringing back the draft?

Draft.  Draft whom.  The brain dead of America don't want to die in wars the way they once did.  America likes its private military.  We make movies about how our Marines love to kill.  We tend to forget that other branches even exist.  Let's say they take a stand and win.  The Marines will likely take over.  As long as you can manufacture killing machines, you will.  Be they drone, or be they man.

Americans are a warlike people.  We want blood.  It keeps this nation alive.  We simply aren't limited by the draft anymore.  Not for something like Syria.  "War" has come to mean something far bigger and more terrible.  It requires a power capable of withstanding our vastly superior technology.  Few are left.

Rome went through a similar period.  I realize it is... unnecessary to point out that there's nothing to be done.  And yet, a voice in the madness, however few voices, can help ensure the end of such a period.

Americans, your government does not serve you.  It uses you to accomplish the goals of your privileged classes.  Your lives will not be affected by what goes on in Syria, save the few of you that are hired to work for the companies building weapons.  Americans, you'd be better served creating technology for surveying Mars, than creating a realm for him here.

Serve and Protect

There's been a lot of discussion lately on the militarization of the police force.  Randy Balko got everyone interested with Rise of the Warrior Cop, including the mighty ABA which let him write a pretty good summary in their monthly magazine.

Of course, plenty of folks have been concerned about this for a long time.

What's curious for me is how the warrior cop has become acceptable in the court.  Example: Officers go to investigate a domestic, find someone injured and intoxicated, rather than clearing him from the area before engaging in a search with a warrant, they just go around looking at his things, despite the fact that it obviously upsets him.  And next thing you know cops are fighting with a badly injured drunk.  When asked about it, the officers say, "I'm just trying to protect myself and the other officers."  Ok.  That's not really an answer to anything.  But the judge nods sagely.

Or you have cops visit a home at 3 AM, barge inside and harass the naked occupants.  Excuse: "They could be dangerous, I don't know what's going on in that house."  Ok.  So don't go in.  "Well, but they could come out and attack me."  Riiiiiight.  Did you have any reason to think they were dangerous.  "Every day I'm in danger."  Fuck.

Judge: Yup.  Scary out there.

No.  No it isn't.  Well, yes, but not all the time.  There is no reason to take the guns blazing approach to EVERY FUCKING SITUATION.

So recently Police State USA posted this: http://www.policestateusa.com/2013/police-taser-man-to-get-him-off-a-roof-choke-drag-him-face-down-across-a-staircase-killing-him/

Which was, upsetting.

Then in Idaho, we get our own: http://www.spokesman.com/stories/2013/aug/26/man-shot-killed-cda-police-identified/

I can't get over the calm.  These folks are upset, but it's like they feel they have to make a logical argument.  Like there's a discussion to be had here.  "Well, you see, when a man has a knife to his own throat, there's no reason to shoot him to death."

Yes.  That is true.  Assuming that's the case, you don't need to explain.  The scenario explains itself.

Hell, I don't even know why they'd need to shoot a guy holding a knife.  They have tasers.  Why use the gun?  Who was in danger of gross bodily injury or death?  The guy himself?  So you kill him?

None of this is new.  Cops have been killing blacks, poor whites, and whatever other undesirable minority for as long as they have been around.  But now we have it on video.  And the response remains: shrug.

Thug cops are being replaced by warrior cops and the end result is: nothing changes.  And the few good cops that believe what they do is about protecting everyone, even the law breakers, remain an endangered minority.

It would be cheaper for everyone if police were properly trained so that we could avoid things that lead to massive lawsuits.
There, I made the argument everyone can agree with.  Money matters.  The current situation is bad for money.  Do it for the money.

The dead poor will sort themselves out.

Intoxilyzer 8000 a Worthless Piece of Junk

First, a caveat.

A really, really depressing caveat.  Bad news first.

1987, Supreme Court of Nebraska declares results of Intoxilyzer 4011AS inadmissible because they rely on blood/breath ratio of 2100:1.
1990, Colorado Department of Health and the New Hampshire Division of Human Services send separate letters, unrelated to each other, to CMI telling them that the Intoxilyzer 5000 has lost credibility with the law enforcement community and has a ton of problems.  No one seems to care.
2000, Nebraska backtracks.
2004, Indiana Court of Appeals throws out a result because of a tongue ring.
2005, Indiana Supremes say, forget that!

There are other such cases (particularly an amazing battle between trial judges in New Jersey and their seriously fucked up Supreme Court). 

The landscape of DUI law is postapocalyptic, with massive, steel towers draped in a twisted version of the American flag.  Nothing good lives here.  Even in Ohio, where State v. Homan
89 Ohio St.3d 421, 732 N.E.2d 952 (2000) remained good law right up until it was overruled by the legislature.

But Good News arrives once again from the armpit state:

Retired Municipal Judge Teresa Liston (may she live forever) found in the Marrietta Municipal Courthouse (Ohio) that the Intoxilyzer 8000 is based on science too unreliable to be used in a court of law.

OH YEAH BABY

Articles are here and here

First person to get a copy of that order wins.

Technicalities

A public defender, like an ambulance chaser, hunts for technicalities in cases.

"Technicalities" is American for constitutional rights having been infringed.

You may recall a film starring the great Clint Eastwood in which he railed against the injustice of his prey being released on technicalities.  Dirty Harry, who I had assumed was no rookie, apparently had no idea that he had to follow the law.

The great state of Idaho is famous for technicalities.  It spent its first 20 years without criminal laws, only discovered when an enterprising attorney pointed out they had forgotten to take the territory's laws and get them passed as a state.

Recently, the state had to vote in a change to its Constitution to allow the counties to control misdemeanor supervised probation, because well, our Constitution said they couldn't. I'm too lazy to find something showing it passed, but here was the issue: http://www.nlada.net/jseri/blog/idahos-misdemeanor-probation-systems-may-violate-state-constitution

As you might imagine, there are a lot more easter eggs in Idaho law. 

Idaho does NOT provide an attorney at one's first appearance before a neutral magistrate, the only time one's bond must be reviewed (at all other hearings, you have to get it on the docket, and you need to give seven days notice).


Ah! You say. But no one ever said the 6th gives you an attorney at that hearing


You mean that SCOTUS never did, because they're nuts. I've literally heard a judge ask a woman to provide reasons to lower her bond covered by Idaho Criminal Rule 46. She started to cry.


Idaho's Supreme Court has declared a right to appointed counsel in all probation cases under.. well they said that the 6th requires that you be allowed retained counsel (?) and Idaho has a statute giving counsel and so... ?? Counsel. Bam. Does the 6th actually apply to the work the appointed attorney does meaning that counsel has to do a good job? Unknown. (state v. young, look it up).


So we have counsel, kind of. But we don't have him when we're placed in the jail. The first time we will see a judge again, unless a hearing is scheduled, will be one to two months out. Yup.


Then it gets really tricky. You see, judges don't get to just operate in a vacuum. For crimes, judges get complaints and issues warrants. For probation violations at the misdemeanor level---judges get motions for warrants ex parte and act on them.


Oh yes.


There is no law allowing for this procedure. District Court judges don't do it, they hold the hearing and if you don't show you'll get the warrant.


Best of all, in supervised probation cases, the PO goes to the prosecutor, gets a form motion, and takes it to the judge. Did you know filing pleadings is something only a lawyer can do? No? Apparently, neither does misdemeanor probation.


So this is where we get back to technicalities. I get a case and see all of these issues. I file the appropriate motions and get a hearing. The state says, huh, how about your guy do X. And X is perfectly reasonable considering the client did in fact violate his probation. And because frankly, the remedy for all of the above is unknown, and may very well be totally useless.


That to me is a technicality. The huge issues which, when you realize you'll have to ask for a remedy and that you'll never get the court to agree to simply dismiss, they stop seeming all that useful if you can get the state to be reasonable.


But it's just a matter of time before some pissant prosecutor blows off the argument. And things can finally get interesting.

And the taxpayer need not fear!

Idaho decreed not terribly long ago that criminals should pay restitution.

Well, yeah.  But they made it bigger.  And longer.  And more.  Insane.

So now- you break the law, YOU PAY.  FOR REALS.

The Idaho Court of Appeal recently release this wonderful "unpublished" opinion: http://www.isc.idaho.gov/opinions/39577.pdf

So what we learn is- you can be forced to pay the salary of every cop that worked on your case.  Fuck, they don't even have to show up and testify to doing the work- one cop showing up and guessing at their salaries is fine, and that memo saying what the hours was- shit we're good.

Admittedly, it would be great if criminals paid the wages of their own prosecution and imprisonment.  But of course they can't.  They're fucking poor as shit.  Chongphaisane is, according to this, a drug dealer.  So he has a ton of money all of which was already taken by the state.  So what the fuck is the point?

Oh I know, let's make him a slave to our government forever!  That'll teach'im.

I've never, ever, seen a judge do this.  Maybe it is only saved for rich defendants.  But laws shouldn't be that discretionary.  That allows for abuse.  And no one abuses the law quite like a prosecutor.

"Family" Law, or why child protection DESPERATELY needs juries

You know who is looked at as lower than criminal defense attorneys?  Divorce attorneys.

Yeah.  I said it.  I was actually taught that in law school.

My practice (and is it ever) does not include "family" law, just Child Protection.  Which is weird, because Child Protection is rarely about protecting children.  It's mostly about families.

Idaho is extremely interested in children, however.  This year they amended their law so that every kid over the age of 14 gets an attorney during a Child Protection case.  Yes, once they're over 12 I'm thinking the ABA says you have to treat them as normal clients, but Idaho doesn't want 12 and 13 year olds calling the shots?  I don't know.

Anyway it means CP cases just got a lot more crowded with attorneys.

If you want to see an attorney act like a total ass, watch a CP case.

There's no jury.  So an attorney is free to behave as badly as they would like, within reason.  If you think your judge is going to be as annoyed as you are, you can basically tear the witness apart.  If you're wrong, expect the judge to be an ass to you.  Which comes with the territory.  CP cases are full of asses.

So in a way they're fun.  But they also tend to make me want to shoot all the attorneys.  And since it's a judge, sometimes I just go ahead and say that on the record.  Because I know the judge is thinking it, too.

The worst cases, in my mind, are not the sex abuse cases.

They're the cases where the parents are going through a custody battle.  I want to scream every time I get one.  I try very hard to keep the client on task.

Me: I understand that he/she accused you of spanking/slapping/beating the child and leaving a mark, and you have said it was him/her.  But this is about the government taking your kid and placing him/her in foster care.  What can we do to bring her home?
Client: I just want to make sure he/she never goes back to him/her.
Me: That's your custody issue.  This is about the government.  You have shared custody for X years.  Nerves are frayed.  But don't you think your child is better at home than in a foster home?
Client: But he/she spanked/slapped/beat him/her like fifty times that I've never reported to anyone because I didn't want to start shit till he/she called the cops on me and I can't believe this! GAH!
Me:  I see.  Well.  We will tell the judge your position.

You know what CP actions rarely result in?  Perjury and wrongful prosecution charges.  You know what they mostly consist of?  Perjury and stupid, stupid reasons for thinking a child has been abused.

And then you have those Health and Welfare workers, who are the most despised creatures of all, whispering evil to your client, egging them on, BECAUSE THE OTHER PARENT IS THE DEVIL.

Fuck.  This poor fucking kid is going to be more scarred and fucked up by this insane battling and being forced into foster care than by anything you people claim is going on.

And can I just say that if leaving a mark is a reason to take a kid away, I should have been sheltered like a hundred times?  Who the hell decided this country has to be raised by sissies?  Kids are not so fucking dumb they don't get that sometimes parents fuck up.  They don't grow up to kill people because mom loses her temper over some dumb thing and gives the kid a good smack.  GROW THE FUCK UP.. COURT SYSTEM.

Folks, these are your taxes, now paying for at least FIVE attorneys per case (prosecutor/mom/dad/child/CASA).  Maybe you should tell your legislator this shit needs to stop.

BRING ON THE JURY.

SEX SEX SEX

Some prosecutors are obsessed with the sex they're not having.

Slate just churned out this rather mean-spirited article: http://www.slate.com/articles/news_and_politics/jurisprudence/2013/08/ken_cuccinelli_s_sodomy_obsession_the_frightening_legal_implications_of.html

But as mean as it is, it's also kind of true.

Cuccinelli actually forced the issue and got the Supreme Court of Virginia to strike down their fornication statute.  I had to use that case arguing against a fornication charge.

I lost.  I know, how ironic, seeing as how Idaho.

Later I realized that the trouble was that our buttfuck statute ("THE INFAMOUS CRIME AGAINST NATURE" seriously that's what it is called and it is in all caps in the statute book) survived even federal district court level scrutiny- because it was used in a case involving a minor.  9th Circuit wasn't touching that one.

Not long ago a Sheriff up north decided he wouldn't support the Boy Scouts anymore because they allow gay kids and that violates the law!  THE INFAMOUS LAW.

As for the Idaho Supreme Court- they upheld discriminating between rape of a female and "male rape" (yes, we have a separate law called "male rape") because clearly the government has a perfectly good reason for finding raping women worse- it can produce unwanted offspring.

Evidently, the idea of women raping men never entered the judicial mind.

So what's up with all this?  You.  You people keep voting in deranged sex obsessed representatives to write your laws and others to enforce them.  And I'm left sitting on a court bench listening to the prosecutor assigned NOTHING BUT CHILD SEX CASES tell me how my clients should be sterilized so they can't have kids anymore.  All my clients.  "Put it in the meth," he offers.

Lord, some days I'd rather just lock the lot of you up in a big room and let you sort it out among yourselves.

I'm goin' fishin'.

This is America Mother Fucker

Attorney: So let's go back to when you said he licked your vagina.
Six year old: (clutches teddy)
Attorney: Do you remember talking to the officer about this?
Six year old: Yes.
Attorney: Do you remember telling him that the man only did it once?
Six year old: No.
Prosecutor: Objection! What is the point of any of this!
Judge: Yeah!  Sustained!
Attorney: No.  That's not a basis for an objection.  (return focus to child) So when you looked down and saw the man licking your vagina, did he have a beard?

One of the things you don't generally know anything about as a normal person is what it feels like to be hated by everyone in a room.  Everyone.  Including people that you know well and get along with.  Just hate.  Like, if those people could, they'd beat you about the face with a bat.

So when you become a defense attorney, you of course think, oh man, I'm going to defend some really bad people.  How can I come to grips with that?

Defending human beings against a faceless state and obnoxious laws takes nothing.  Defending them from people who claim to have been victimized- harder, but you get over it.

What you never think about, at least not accurately, is what it will be like to have everyone hate you.  It's not just being the despised defense attorney.  The slimy defense attorney.  Whatever.  You can shrug that off.  That's just ignorant bullshit from people who have no idea how many crimes they commit a week, and how bad the police are at detecting crime, and how lousy the system is at figuring out who is guilty and the appropriate punishment.

You don't know what it is like to attack a child, a child you pretty much accept has been horribly raped, and force them to tell you about all the blood- and as you do it, to have everyone in the room want to kill you.  Judge, bailiff, clerk.  The people that usually are pretty capable of shrugging off the weirdness of what we do.  Just hating you.  And because of the hate, the rulings start to get pretty stupid.

And you want to be all, "Hey now, this is my job remember?  You think if the crime is bad enough the accused should just roll over and die?  Not in America mother fucker.  Not today."

And you do think that.  And you just ignore it.  But once you go back to your office (because you had three more hearings after that) you sit in your chair and your brain just kind of screams and writhes for a few seconds.  And you're ok.

But when that's all of your cases, or you have so many that it seems like all of them.. you have to start to live in all that hate.  Really dumb judges sometimes just can't seem to let go.  You can't get a bailiff to joke with you anymore.

It is exhausting.  And no one but your comrades in your office can even begin to understand and offer any kind of solace.

But hey now, you know who else feels that?  Your client.  And being able to share the experience of being violently hated by everyone with somebody else is actually not a bad way to bond.

Meh.  This is America mother fucker.  You want to take the freedom of an American, you better believe you'll have to wade through an ocean of shit, piss and blood.  We'll see to that.

Going Mental

A lot of public defenders will tell you that our clients are crazy.  Ok.  Sure.

But then we're like, "no seriously, dude is crazy."

Here's what is fun about trying to practice ethically when your client is a nut: The rules are essentially out the window.

Seriously, look it up.  If the client is under a disability you have to act in their best interest and possibly find them a guardian.  Screw that.  My client is facing a criminal record for listening to the voice of God.

Oh, Idaho doesn't have an insanity defense.  Did I forget to mention that?

Even if we did, I was taught that your crazy client may keep you from pursuing that claim.  I can imagine that might be the case if your client is just sane enough to get you off his case.

Anyway, the insanity defense is out of the picture.  But I and my fellows carry caseloads where some percentage is going to be nuts.  What is one to do?

Generally, you ignore it.  Look, we know the judge and the prosecutors.  If you can keep your client together long enough to enter a guilty plea to a lesser charge, you generally do it.  Again, they have no defense- God is not a defense in Idaho.

Now you might think- yeah but if you tell the prosecutor he'll get it.  Sure, sometimes.  Sometimes not.  Even the best ones will decide that this is a great way to get across to your client that he needs to take his meds.  Which is like "?" seeing as how, dude, the guy is crazy.

Which is why most of the time you just factor crazy out.  You pursue the case as if all were fine, you fight the facts, get the reasonable offer.  You see if your client will take it.  Most of the time they will, because almost all of them find courtrooms provoke a lot of anxiety.  In fact, you can have a great defense for them, and a lot of them will take a plea anyway.  Just to get away.  Which is pretty sad.

But wait!  You're supposed to look out for their best interest!

Uh..?  Define that one for me.  I fight for drug addicts to be free knowing full well their next hit could be their last on a daily basis.  If a mentally ill person can take a plea to disturbing the peace and walk out of court with a fine, that's a win.  That person does not want to spend the next few months in a hospital being force fed drugs.  They don't want to go to jail.  Did he pull his pants down and shake it at the little old lady?  Sure.  Did he think she was his wife and that his actions were inspired by the divine?  Yes indeedy.  I pled him to a nonregisterable offense, and now he has an obligation to pay 200 bucks should he ever have any money.  Might he go off and hurt himself?  Fuck if I know.

I'm the guy's attorney.  Not his fucking guardian angel.

While we're on the subject though, what about the hospital?  What about "mental commitments?"  Yeah I do those.

Here's what you do- go to the hospital.  Meet client.  See if they are ok.  If not, go find the doctor.  See if he thinks they'll be ok.  Where I work, this may not be possible, so you may need to set out the hearing so you can subpoena him.  He will call you and beg you to not have to come to court.  Anyway, you go to hearing if your client doesn't want to stay anymore (which is generally true).  You make it abundantly clear that the "designated examiner" with the masters in social work has not the slightest clue whether the mental illness is actually causing the symptoms or if it is the meds or the meth or what.  The judge will shrug and commit them anyway.

Two months later, the state will say they can't do anything more and let them out, blinking, into the sun.

Let's say you appeal the ruling (did you ask your client after the hearing if he'd like to appeal?  you better.  the guy just lost his gun rights.).  Now you have a mootness issue.  But it isn't moot, because of his gun rights.  Never forget his gun rights.

And you fight.  And you fight and you fight and you fight.  And somehow you still find time for the rest of your caseload.

So it goes.

I have no mouth and I must scream

Officer: So at that point I went to hit the record button on my device but I hit play instead.
Me: And you didn't hear it playing?
Officer: Uh, no.
Me: Ok.  Didn't you also write an email to the evidence tech saying, "There's something wrong with the recording I have"?
Officer: Um.  Yes.
Me: So when you said you had a recording, you actually meant you didn't have a recording.
Officer: Right.
Judge: Yeah that sounds legit.

A client asked me once while he was freaking out over an illegal stop of his son and what he was facing, "Who makes sure the cops do their jobs right?"  And I was like, uh... me?

Not that I have much power beyond dragging cops to court and keeping them off the street for 30 minutes while they get paid overtime.

Justice for Trayvon Martin!

Justice for Trayvon Martin is pretty popular right now.

Everyone wants to hold George Zimmerman accountable for his actions.  George's actions, that can be proven beyond a reasonable doubt, are:
1. driving around looking for trouble while armed.
2. seeing a young black kid and deciding to follow him on foot.
3. upsetting that young man in some way.
4. Getting his own ass kicked.
5. Shooting that kid to death.

Laws broken?  I don't know Florida laws all that well.  Harassment?  Based on race?

I think the law you'd like to have is "acting like a cop when you're not a cop."  It's generally not a good idea to pretend to be a cop.  Though I nitpick at the concept, the reality is the police have authority and training to do things you don't.  Things like harassing kids while armed.  This leads to two things: 1. the kids don't generally wind up fighting them and 2. they don't usually fight the kids for acting like brats- they just arrest them.

Not always, but much of the time.

But if you're not a cop, the kid has no reason to treat you with any respect, and in fact is wholly in the right to tell you to fuck off, and strike you if you won't, because frankly, you're being a creep.

Buuuuut- if he's successfully beating you into unconsciousness, you do get to use that gun.

What bothers the masses is that you brought the gun and created a situation where you needed it.  That seems unfair.  It is unfair.  But there's no law there.  You could pass a law that says: A person armed with a gun may not initiate confrontations (except when defending another from great bodily injury (meaning a beating with a pool cue) or something- if you see your kid getting smacked around in a normal fight, put your gun down first before you intervene.  you'll thank me later).  Or something.  Make the punishment 20 years.  I'm a gun owner, I think that's a legitimate idea.  Guns are for protection, or for violating the law.  They shouldn't be available to people to use to play cop.  That's a bad idea.  Trayvon is what you get.

Beyond the event, you get a lot of people bringing up stereotyping and profiling.  First- I think it is sweet that so many white people are upset about this, but the reality is you can't fix it without making it unlawful for an officer to detain a person without probable cause.  And you guys are going to whine so much if that ever happens.  Just like the police whine about the idea.

Of course, the reality is that Terry stops don't really get a lot done, they often end in constitutional violations.  My understanding is that police presence is what is shown to prevent crime best, not having them harass the suspicious.

And how does that relate to George?  He's not a cop.  He was playing cop.  Even if you changed that law, you'd never come up with a law that could stop average people from acting on suspicions.

But you might come up with something to stop them from playing cop.  That's about as close as Trayvon is ever going to come to justice.

Warrant

A lot of conflicting ideas going on in my head lately.

It starts with clients getting pulled into jail on bench warrants issued for probation violations.

I don't understand how that is a thing.  I'm the attorney.  You have to prove a probation violation and I'm required to be there.

What's the warrant for?

Presumably it is to ensure that they appear for court appearances, after all, the probation officer says they don't care much for court orders.

But in Idaho, I'm not there for the bond to be set either.  In fact, thanks to court calendars, I can't get in front of a judge for a month to six weeks in some cases.

And for those who don't know, the bond in my area is going to be around $10 grand for a person who has no criminal history and no history of failing to appear and has six months over their head.  That means through a bond agent, they can pay $1000 to be free, which they will never see again.  Let me remind you that I am a public defender.  And this is Idaho.

Anyway this practice is upsetting.  But it gets you thinking.  What the hell are arrests about?

Generally, pretrial incarceration is supposed to be allowed only when the court just can't feel sure that the person will come to their hearings.  But rather than set a meaningful bond amount, judges generally just come up with some random number and go with that.  Why not?  The fact is, if you're guilty as sin, and you reallllly don't want to face the consequences, you'll pay as much as you're asked to skip town.  Bail is kind of an antiquated concept.

But wait, there's more!  Judges can set all kinds of conditions for pretrial release!  Drug testing, therapy, wear an ankle bracelet, the goofy things judges think of goes on and on.  Ok, the ankle bracelet actually makes sense.  Of course, in today's world it's generally difficult to be on the run for long, but that's besides the point.

Ok, so getting back to the issue, what's the deal with arrest?  Is it just so a judge can decide what it will take to have the guy show?

No, because there's usually also a dangerousness finding.  Which is a made up word.  So officer arrests a person mid-burglary and the judge says gah I just can't let you out on these facts.  You're a danger to the community.  So much for presumption of innocence right?  As you can imagine, this motivates the super high bails that no one can make.  Judges hate being told later than the guy arrested for meth possession that they let out went out and killed someone.  So you stay in jail.

Practical realities of the current system, however, do not save it from constitutional infirmity.  The idea is that the Fourth allows for reasonable seizures and the defendant is reasonably seized.  But reasonably kept?

Essentially, you have to come to the realization that your liberty is very cheap, but your reputation is what the trial system is protecting.  The guarantee of a trial by your peers can't prevent you from spending years in jail.

But in the modern world you are tainted by the arrest and accusations alone, even the best alibi sometimes can't wash off the stink.

So what is any of this good for?  If mere accusations can lead to a loss of liberty that dwarfs what the actual sentence would likely be, if you will lose your job, your family, and your reputation, and the trial provides merely solace at the end of the tunnel, why pretend we're protected at all?

The fact is: that first bond hearing before the judge is perhaps the most critical hearing a person has.  The fact that in Idaho a person faces it in chains, on a video screen, and alone is unacceptable, and unconstitutional.  A lawyer can't necessarily fix the problem, but just as Gideon had to have a lawyer to assist at his trial, thousands need a lawyer to keep from having their lives destroyed on the basis of accusations alone.

Idaho needs to change.

Idaho: Scarlet Letter State

First, Idaho still has a fornication law on the books and yes it is used (albeit not often).  As in, once within the last year I had a client charged with fornication.

But the topic here is criminal records.  You see, in Idaho, we have two.  There's your criminal record kept by the executive by law.  This record has finger prints to back it up and make sure you're the one it is talking about.  It can be expunged only, and only if you get an acquittal.  Nothing else suffices, and that a determination made by our good friends at the Idaho State Police, so.. yeah.

Then there's the court record.  This functions exactly the same way except you don't need fingerprints and it is accessible to everyone on the internet, so you don't have to pay for it like you do with the criminal record. It cannot be expunged, only sealed, and that is according to Administrative Rule 32.  That rule in 2009 was construed (yes, construed) by the Supreme Court of Idaho to require a factual determination that a person has more interest in keeping an acquittal under wraps than society has in knowing about it.  No shit.

First, why in the fuck does the Supreme Court have to construe its own rule?  The Court appoints committees that pass these idiotic things, and then, when confronted by the perfectly logical and fair request to seal a case involving an acquittal it goes, "oh shit, wait though, I think you have to follow this rule."  

...

YOU HAVE PLENARY AUTHORITY OVER THE FUCKING RULE YOU FUCKING IDIOTS.

But hold up, they probably know this.  They're probably hiding behind this whole "rule" thing.  The reality is the Court is so far removed from the real world they don't understand what kind of an impact on people having even an acquitted criminal charge will have.

Or they're thinking- meh, a few more people my kids won't have to compete with when looking for work.

The reality is, a record has horrible consequences for life.  Even as stupid a misdemeanor as "frequenting" which just means you knowingly were in an area where drugs were being held can make it next to impossible to get all but the worst jobs.  It's a sure fire way to keep the poor in their place.  The police largely only use their powers to investigate what the poor are doing, once one of them slips up just slightly, he finds himself branded for life so he can never be anything but poor (except in a few rare cases that are later held up by the rich as reasons why they're not doing anything wrong by perpetuating this slave state).

Anyway, as you can probably tell, I had a kid with an acquittal get a request to seal turned down today.  Why?

It's probably just to save on the administrative expense.  That's the true horror of it.  Your liberty costs a $1.45.

Baby girl

A lot of news this week on Supreme Court opinions.

What was lost, in my view, was a possible shift in the favor of parents.  The Court heard argument in Adoptive Couple v. Baby Girl for the Adoptive Couple claiming that the heightened standards created to protect Native American families are a violation of the equal protection clause.  The Court ignored this, and simply read the statute in a kind of stupid way so as not to allow a parent that wasn't around at birth to show up later and get the protections of the statute.

That doesn't make any sense at all.  The statute has jurisdiction based on the baby's status, not the parent's.  I have clients who are under ICWA jurisdiction who are non Native American because their child is.  This decision is really quite stupid.

The point of ICWA was to ensure that where Native American children are taken from their parents- they go to people within the tribe.  Not some white people.  Because otherwise the tribes faced (and some may continue to face) being quickly wiped out by having their kids taken and raised by whites.  Culture dead.  Poof.

Anyway, Scalia's dissent was perfect.

While I am at it, I will add one thought. The Court’s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best  interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection. 

You see, what should have happened is that the Parent's point that the special protections given Native Americans IS a violation of equal protection.  In fact, ALL PARENTS SHOULD GET THAT PROTECTION.  I know, madness.

You have to understand, you, if you're a parent, have essentially no ability to hold on to your kid if the government wants it.  The laws, at least in Idaho but I'm pretty sure it's the same everywhere, are vague and basically allow the government to take your kid.  Then 48 hours later, you go to Court with a lawyer (in Idaho, elsewhere alone) and you try, with almost no notice of what the case is against you, to get a judge to think there's no reasonable possibility that what the state is saying is true.  Yes.  Prove the negative.  You will find this is next to impossible.  And you will lose your kid for at least a month.  In Idaho, at that next hearing, you get a preponderance standard and the rules of evidence come back like old friends.  And sometimes you win.  But usually the State continues to hold all the cards.

ICWA makes this quite different.  The state has to prove by clear and convincing evidence that there is an imminent threat to the child to remove it from the home.  It's a beautiful, beautiful thing.  And it should be there for all families.

So Baby Girl was a big loss for us all.  But the argument is untouched, and may be made again.

Besaw and Mixed Emotions

So the Court of Appeals of Idaho went and released an opinion today that at first horrified me but then I became rather uncertain of what the Court was really saying.

First, although the Court of Appeals in Idaho has no choice but to review cases, it does not have to publish an opinion.  It also doesn't have to write much.

So along comes Besaw. http://www.isc.idaho.gov/opinions/39874.pdf

Besaw is a terrible opinion.  If you look at the dicta.  But the dicta is pointing in many different directions, and the holding is even weirder.

Although Besaw has exposed some troubling information about the manner in which the 
SOPs for breath testing have been developed or amended, we are not persuaded that he has 
demonstrated that the SOP procedures are incapable of yielding accurate tests. Besaw contends 
that the SOPs are so strewn with “weasel words” and “wiggle room” that they lack scientific 
basis and permit testing procedures that will not yield accurate tests, but there is no evidence in 
the record to support that conclusion. To be sure, the emails and memos to and from ISP 
personnel are disturbing, for some comments and suggestions lacked any apparent regard for the 
way proposed changes could affect the validity of the tests. As Besaw alleges, some participants 
seemed to view the ISP’s task as being to thwart all possible defense challenges to the admission 
of breath tests rather than to adopt standards that will maximize the accuracy of tests upon which 
individuals may be convicted of serious crimes and deprived of their liberty. Further, it appears 
that there was a conscious avoidance of any opportunity for suggestions or critiques from 
persons outside the law enforcement community.5
While we do not endorse or condone such an approach to the ISP’s statutorily-assigned duty to define breath testing procedures and standards, we cannot say that the emails in and of themselves, or any other evidence in the record, establishes that the test procedures actually authorized by the SOPs and applied in Besaw’s case are incapable of producing reliable tests.6 Therefore, we find no error in the magistrate court’s denial of Besaw’s motion to exclude the test results from evidence.

And mind you, this is Lansing writing, and she wrote the dissent in Wheeler that inspires us all to try to get the Court to see how bad the SOPs are.

But what is she saying?  The judges know that the ISP, in 2011, was fucked up.  They know that Jeremy Johnston is doing everything he can to make it impossible to keep breath test results from being thrown out by making them impossible to challenge, rather than more accurate.  But, in 2011, they are saying things aren't that bad yet.  And it's 2013.  And things are much worse now.

Further, the Court has now released two opinions with this footnote (in Besaw it occurs twice):

We have not, however, held that these SOPs and manuals actually constitute “rules” or 
that the ISP has “prescribed by rule” testing instruments and methods as contemplated by I.C. 
§ 18-8002A(3); that issue has never been presented to this Court.

So what does it mean?

For now, not much.  But give it a few years and the SOPs of 2013 are going to get a real grilling.

Tactics and Misconduct

The Idaho Court of Appeals is a weird group of judges.

Every since Perry, their opinions on prosecutorial misconduct have gotten worse and worse.  I would blame the newbies, particularly Gratton, who I doubt has any criminal experience, but Lansing signs on to these things like it doesn't matter.

The first time Gratton claimed that failure to object to prosecutorial misconduct could be a tactical decision and therefore couldn't be fundamental error I really hoped this would be a blip on the radar.

But low and behold, June 14, Gratton is at it again.  This guy really thinks that a trial can't be unfair if the prosecutor does everything humanly possible to inflame a jury and bring in incompetent evidence so long as the dope in the seat next to the defendant is silent.  Because, you see, that could be a tactic not to draw attention to the bad thing the prosecutor did, so, see, that means the misconduct wasn't fundamental error.

That insane circular logic is what our dear judges are cementing as law.  And naturally I'll have a case on the subject before them soon.

This raises the question: When what you think needs to be done is to just flat tell the judge that he's bonkers, what do you do instead?  Judges are so smug in their robes, you have to basically engage them in intellectual puzzles and force them to realize that what their doing makes no sense whatsoever.

But even then, judges will just go on doing the wrong thing.  You'd like to think they have integrity, but rather than "apply the law," they want results.  Screw your client.  He's just a druggie, like the prosecutor told the jury.

As his attorney, sly as a fox, sat by and did nothing.

New rule for police interactions: Ramble on about the weather

The Supreme Court did what we all were expecting in Salinas.

They decided that you have to say "I'm remaining silent" to invoke the Fifth if there's no custodial interrogation.  The gruesome twosome wanted silence even with Miranda to be ruled on and allowed as evidence at trial.

This is the result of fantastic mental gymnastics.  If the Constitution does not allow a person to be compelled to be a witness against themselves, then this ruling makes no sense, as the government's question compelled a response, here, silence.  So what Scalia and Thomas are insisting on is that the 5th be read to only mean in the court, even though no police existed at the time the amendment was written, and so their "founders" are really no use to answer the question, unless you acknowledge the broader principle- that the government cannot compel a person to be a witness against themselves- and knowing full well that what is said to a cop will be used later in court, YOU CAN'T SCREW WITH PEOPLE JUST BECAUSE YOU'RE A COP.

Then you have the other three conservatives who simply recall their promise to law enforcement to destroy Miranda, and not realizing that this particular scenario in reality has nothing whatsoever to do with Miranda as a prophylactic but it quite simply the constitutional right being called into play.

And of course what this will lead to is a sudden jump in trainings for cops and prosecutors called "how to get people to shut up, and then convict them for it."

It's easy!  Badger them a bunch.  When they get frustrated and stop talking- WIN.  The prosecutor can proudly march in and say, this guy was not willing to say whether or not he did X.

In the fact of everything going on right now, the conservatives on the court apparently aren't getting the message that the current party is supposed to be anti-government.  But then, I never know with conservatives.  How the hell does anyone think they can be anti-government but pro-cop?

"No such agency" doing a great job of keeping out of the headlines

How long ago did that Boston thing happen?  I feel like it wasn't that long ago, but it has apparently totally vanished from our collective memory.

I'd have thought you'd get this NSA scandal and everyone would start doing the hand count to doom, you know, "FIRST (hold up pointer finger and point at it with your other pointer finger) they shut down a major city to get one guy that wasn't even a threat, SECOND.." etc.  But nope.  NSA scandal apparently is not related in America's mind.  Maybe it's because the media was pretty sure we all were ok with closing down Boston.  ("That place blows anyway.") Or maybe it's because the media moguls have drawn a line as to what we're allowed to not be ok with and what we can be ok with.  Nah.

I'm also kind of amazed how long it took for anyone to refer to the last time we found this out under the Bush Administration when the Times leaked it.

I'm not particularly surprised that conservatives are enraged and Democrats are called "civil libertarians" or something weird like that if they care.  Are you actually bothered by the lack of privacy?  Then you're in this subgroup that doesn't make policy in this country anymore.  Also, the Supreme Court evidently no longer thinks the Constitution means what you think it means, so your DNA is going into a master database with your Social Security number.  Yeah, the acronym is SS.  Weird right?  Funny coincidences abound.  Now open your mouth for the swab.

Everyone else that cares is mostly just freaking because Obama is supposed to be a muslim communist that wants to sell our women and enslave our men as revenge for slavery EVEN THOUGH SLAVERY IS WHAT GOT BLACK PEOPLE TO THE GREATEST NATION ON EARTH AND WITHOUT IT THEY'D BE STARVING IN AFRICA!  And the inane ranting goes on.  Big sigh.

I guess I'm bothered, personally, by the fact that the government as a whole, all three branches, have agreed that our liberty has shrunk a ton and we just have to deal with it.  But I'm also at a point in my life where since things are going well I'm unlikely to get up and start some social protest movement to do something about it.  I'm kind of counting on the ACLU to do it's damn job.  But since the Supreme Court doesn't care, that's not going anywhere fast.

And realistically, I'm not in a place that is the focus of a lot of government stuff, some sure, but not a ton.  Ruby Ridge kind of put the feds in their place.  Of course, with this area having been taken over by the conservatives from socal thanks to decades of white flight, Ruby Ridge would likely turn out different if it happened again today.

I mean the trial, not the event.

Anyway, assuming the only way to get our freedom back is democratically, that means we have to vote in people that will actually stop what is happening.

Vote!  That's the message.  Vote your heart out.  And hope they actually do it instead of simply farming it out to a private company to do for them.

The exhaustion that is Idaho

I spent most of today putting together a cheat sheet on penalties for various crimes.  My favorites were the 20 years I can spend in prison for messing with an agriculture research center or sabotaging a tree.

I spent a few minutes trying to figure out why the police can record people and play it in court without committing a felony.

And that's sad, because you'd think I'd assume the law was well-written enough that the police wouldn't be constantly committing a felony.  After all, our Terrorism statute literally describes what police do as terrorism but then in a separate statute grants them all immunity.  Thank goodness.

But see, since I started working in this state I've noticed that dumb things happen.  Very dumb things.

The first thing I noticed was that our courts have decided there's no issue with not presenting the other side with your rebuttal witnesses.  Nothing in the discovery law or rules allow this.  In fact, neither did the original case law.

But our good ol' Court of Appeals misread our Supreme Court and cemented this practice, which as of yet has not made it to the Supreme Court for review.

The second was when the Court of Appeals, out of nowhere, decided that rather than people being allowed to use reasonable force to defend themselves from unlawful police action- they may not use force at all.  Peaceful force only.  Or the cop that is raping you with his nightstick can still arrest you for battery on certain personnel.

And now my current headache.  "Implied consent" is a country-wide state practice of requiring drivers to submit to breathalyzers or be punished.  You read the cases, and the Supreme Courts all say "this has nothing to do with the Fourth because the Fourth is unrelated to DUIs- Schmerber said so!

But McNeeley says that's really not the case, so.. um..

But in Idaho, our Court of Appeals (again) decided to misread the case law (badly.. like.. violating the professional rules badly) and say that Implied Consent is to a Fourth Amendment search.

And so, just like that, the state legislature was granted the ability to force you to give up your Fourth Amendment rights if you wanted to drive.  And then, ten years after the fuck up, the Supreme Court held the same- CITING TO THE OPINION WHERE THE COURT OF APPEALS GOT IT SO FUCKING OBVIOUSLY WRONG.

Facepalm.

And when I get to the Supreme Court, I will stare at them.  And I'll say, "well, since you're an elected judiciary, I'm going to assume I've already lost, so let's both just spend fifteen minutes in silence, contemplating the death of our freedoms.  Because when a state government can make its citizens waive their rights just to do something as universal as driving, the Bill of Rights is dead."

This is why my job is depressing.  It's not just the screw ups that send the innocent to prison, it's having a front row seat for the death of America and all it stands for.