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.

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.

Tenacity

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.

Techie..techi techy whatever

I am decidedly not technical.  My spouse is.  I am not.

I mean, I know most things a person with my background would know, but I can't do weird algorithm or what have you.

I don't use powerpoint in trial.  I don't have a tablet.

A lot of older attorneys are like me.  They see the tech crap enter our practice and they say: wha?  This is nonsense.

So today the ABA published this gem.

Here are my questions:

What is e-discovery?  Documents provided as pdf files?  Videos?  Anything you give the defense on a disc?

Why are taxpayers paying for a woman to "educate" attorneys on how to use the alt-f function to quickly skim tons of pages for the important parts?  And can you even ethically do that in any criminal case?  Can you just decide "well the computer search thing this lady gave me says no important words are on that page so I will NOT EVEN LOOK AT IT EVER IN MY LIFE."

Why is New York so lazy?  I thought their whole gestalt was that they work hard and wear watches and live hard and... other things hard.  I've seen movies.  Why can't they do what I do?  Read the discovery.  Use a highlighter and tabs to determine what is important.  I know pdfs let you do the same thing.

Do we really need to pay for this lady?

What is a legal rebel, I get the idea that it's someone that rips off attorneys and judges and taxpayers due to their ignorance... is this true?  Please confirm.

Updated: Orwellian Justice

CORRECTION: I've been informed through the grapeline that Ms. Anderson was not trial counsel and had submitted an affidavit in favor of the prisoner.  My apologies for not catching that.  The opinion notes that she submitted an affidavit that it took judicial notice of, my mistake for assuming she was trial counsel.

The word "jail" is not offensive.

It does, however, carry certain connotations that those who run jails prefer to avoid. 

So we call them other things.  In Kootenai County up north, they're called "Public Safety Buildings."

Orwellian as you can imagine, but yes, that's what they do.

The Court of Appeals has, once again, produced an opinion that can only be understood from what a coworker of mine calls "ends justify the means" legal analysis.

Court upon court has had the courage of its convictions to say "no" to trials held in jails.  Time and time again.  Essentially, pages 3-5 of this horrible opinion list just a small sample of how many states have said "fuck no you CANNOT do this."

Not in Idaho.

Now, granted, this is on PC or PCR, aka Post Conviction Relief which EVERYONE hates doing.  But the attorney on PC is a damn good one.

From the opinion:

Here, the district court concluded that the failure to object to the trial being held at the safety building was not objectively unreasonable. The district court reasoned that the law was not sufficiently clear on whether, at the time of Dixon’s trial, an attorney should have known there was a basis to object. Additionally, State v. Jaime, the case predominantly relied on by Dixon below and now on appeal, was not published until roughly four years after his conviction. The court also noted that Dixon’s expert witness, who testified at the post-conviction hearing,indicated that Dixon’s attorney should have objected because “now” the case law exists that this may be a violation. Dixon’s trial attorney also testified to the lack of authority at the time of Dixon’s trial in answering why no objection was made, explaining that at “the time there was no legal basis to do so.” The district court further noted that no other attorneys in the county objected during the numerous trials previously held in the safety building.3 Indeed, in her affidavit, Ms. Anderson states that she represented numerous clients in jury trials in the building without indicating she ever objected, or that it was ineffective to not do so. We agree with the district court’s analysis.

What to do about appellate courts' addiction to ends justify the means analysis?  We've been calling it "bad facts make bad law" for so long we've almost come to see that as a justification.  But it isn't.

The law cannot be cowed by heckling.  Shushed by angry stupid mobs who have no understanding of what occurred other than a news article that says "rapist given no jail time by judge."

Here's the thing about that debacle, by the by.  "rape" in that case was actually "statutory rape," which, frankly, violates the young woman's right to sexual autonomy as much as it punished people for basically being people.  They're stupid laws written by idiots to please other idiots.  You know why the girl killed herself?  Me neither, but it wasn't because she had sex with her teacher.

Courts are packed with prosecutors.  And in Idaho, much worse, they are democratically retained and elected.  They are thus clowns and puppets, not judges and justices.

And so you get Mr. Dixon, in prison for touching a vagina of a twelve year old despite being physically incapable of such an action in a jail by a jury who really had no reason to do anything but convict.

Public Safety.  Which public?  And how safe is anyone when the law has so little meaning when the facts get "bad?" 

Reality of being Poor Emerges in the Zeitgeist

If you're in the system, you know all of this already.  But for those outside, it's nice to have the media interested enough to write things like this.

The system is not very good at being egalitarian, as it has a hard time both being egalitarian and appearing egalitarian.  It appears egalitarian when everyone gets an 800 fine for the first DUI.  It is egalitarian when judges take into account how much money a person has, if they can work, etc.  This is because the point of the fine is punishment, rehabilitation, protecting society, and deterring others.  800 fines do these things differently depending on the person standing there.  Judges usually try to do proper sentencing, but often have default positions on certain things.

What if they have a past where they still owe fees and fines?  Judges start ordering community service, or jail.  "Graduating sentencing" is the idea.

What's lost is of course a moment to figure out what is going wrong.  A lot of people are getting driving without privileges charges over and over because they are simply deep in debt and you can't live or work without driving in Idaho.  Are they supposed to move away?  The system becomes a destructive loop, and a person who was just down on their luck rapidly finds himself unable to move forward.

Paul Ryan, who I generally find interesting but don't think highly of, just put out a new book (you can google it, I'm not trying to help him sell the thing).  He wants to have social worker/case managers available for all the folks that need help (among other things, but let's be myopic for a moment).

My thought on hearing that was: whoa, I have thought that same thing for years.

Apparently, we're not the only ones to be thinking this is a great idea, but not a lot of Republicans are pushing for it.  And all I see is him being criticized on right and left.  I just want to say, it's a great idea.  Being poor is exhausting, living in poverty is far more work and more stress than being in the middle class.  Having a person who knows what resources are available and can quickly assist a person in doing things would be awesome, particularly if they could do it in that persons office, rather than needing to go to multiple offices and make multiple appointments for everything.

Homosexuality and Criminal Law

So Cali got rid of the Gay Panic defense.  The Gay Panic defense is really just a way to make homosexuality relevant so you can bring it up and hope there are a few homophobes on the jury that will acquit your client.

Generally, I hate to see one of the few accepted defenses to law breaking disappear, but I'm ok with this one.  I would feel bound to use it, and while I'm not usually much bothered by what I do for a living, I could see this troubling me.

You know, Idaho is actually a lot less homophobic than most think.  Most of the cities passed bans on using homophobia to discriminate.  While the Republic Party's platform usually includes various homophobic things, so far, the state seems to be moving inexorably toward not sounding like a bunch of old cranky white guys.

Yeah we did have that lawsuit for the old woman who wanted to be buried with her mother in a state cemetery.  But that was the executive mostly and they have to deal with their base and politics yada yada.

ANYWAY I actually wanted to talk about this.  Because prosecutors claiming that homosexuality is related to pedophilia DOES happen in Idaho.

The story is as old as time: gal is a lesbian, someone claims molestation, clearly her lesbianism means she wants to touch kids!  Duh.

Then the Court of the 4th Appellate District (Cali is big) said f that nonsense:


So by linking appellant’s sexual orientation to the issue of motive, the prosecutor essentially told the jury the reason appellant chose to victimize A.G. is because she is gay.  

We have grown beyond that notion. “[T]he modern understanding of pedophilia is that it exists wholly independently from homosexuality. The existence or absence of one neither establishes nor disproves the other.” (State v. Crotts (Ohio 2004) 820 N.E.2d 302, 306.) While there are some early cases to the contrary (see e.g., People v. O’Moore (1948) 83 Cal.App.2d 586 [equating homosexuality with sexual perversion]), California courts have long recognized that a defendant’s sexual attraction to adults of the same sex has nothing to do with whether they are sexually attracted to children of the same sex. (People v. Giani (1956) 145 Cal.App.2d 539 (Giani).)

In Giani, the trial court granted a new trial to a male defendant accused of sexually molesting a boy, due to the fact the prosecutor elicited evidence the defendant was a homosexual. (Giani, supra, 145 Cal.App.2d at p. 541.) In affirming that ruling, the Giani court rejected the notion that a person’s sexual orientation has any bearing on their propensity to commit sex crimes against children. (Id. at pp. 543-544.) Indeed, the court considered the idea of using evidence of a defendant’s homosexuality to prove they molested a child of the same sex about as farfetched as using evidence of a defendant’s heterosexuality to prove they committed rape. (Id. at p. 543.) It is painful to find this battle still being fought 58 years later.

The Attorney General argues, “Appellant’s sexual preference for females only went to the gender of her victim, not to her predilection for children over adults.” “[T]here is a modicum of relevance concerning appellant’s sexual preference for females given that she and her victim were females.” This argument assumes gay child molesters are more likely to victimize children of their own sex than of the opposite sex. However, “there is no evidence that lesbians are especially likely to abuse girls” as compared to boys. (Becker, The Abuse Excuse and Patriarchal Narratives (1998) 92 Nw.U. L.Rev.1459, 1467.)

The point the Giani court made before the lawyers in this case were born is no less true today. Trying to draw a connection between a child molester’s sexual orientation and a preference for children of one gender or the other is problematic to the point of counterproductivity. “Many child molesters cannot be meaningfully described as homosexuals, heterosexuals, or bisexuals (in the usual sense of those terms) because they are not really capable of a relationship with an adult man or woman. Instead of gender, their sexual attractions are based primarily on age.” (Herek, Facts About Homosexuality and Child Molestation, at p. 3, <http://psychology.ucdavis.edu/faculty_sites/rainbow/html/facts_molestation.html> (as of Aug. 3, 2014) (hereafter Herek, Homosexuality);see also Murray, Psychological Profile of Pedophiles and Child Molesters (2000) 134(2) The Journal of Psychology 211, 215 [an important factor in child sexual abuse cases is “the availability and vulnerability of children rather than a particular sexual attraction”]; McCloskey, et al., Adult Perpetrator Gender Asymmetries in Child Sexual Assault Victim Selection: Results from the 2000 National Incident-Based Reporting System (2005) 14(4) Journal of Child Sexual Abuse 1, 2 [female sex offenders choose child victims of both genders with equal regularity]; Freund, et al., Erotic Gender Differentiation in Pedophilia(1991) 20 Archives of Sexual Behavior 555 [sexual arousal study indicating pedophiles are far less likely to choose their victims based on gender than are other adults in selecting their sexual partners].)

That being the case, we do not believe the evidence of appellant’s sexual orientation was relevant to her prosecution. Period.

You have to love it when a court gets sassy in an opinion.

Anyway, as some of us still find ourselves confronted by these tactics, I think this is a pretty good opinion for attorneys to be aware of.  And who knows, could be the AG appeals it and we get a Cali Supreme Court opinion on the issue.  Can't see that turning out well for the state either, but I could see an AG thinking, let's just push this all the way and be done with it.  Either it's going to be a thing, or it needs to be wiped out statewide.

Amen to that.

A Reminder of What it Means to be an Attorney

Slate has this article about Jason Wright, the JAG that has defended Khalid Sheikh Muhammad, maybe the most hated man in our hemisphere.  He's being forced off the case by JAG, and has now left the Army just to remain on for at least a short bit.

Think about that.  Would you give up your life for one project you're working on?  If you're an attorney, one client?

Yeah, you might.  Some wouldn't.  But as Wright points out, he has a duty to his client, and that overrides the rest.

As an aside, I heard from a JAG friend that JAG just let go something like 200 attorneys.  They are claiming it is for budget reasons.  I think it's an attempt to cover up what they did to Wright.  Expect extreme spin.

I point this guy out because today, my blog got flooded with views.  This is a tiny, PD blog in Idaho.  It does not have a lot of viewership normally.  Today, that went haywire.  And I have to assume it is because various people were discussing my last post about the SAPD.  A PD in Ada County named John even commented that essentially my criticism was nonsense because 1. I did not provide a way to properly perform at oral argument and 2. I have an anonymous blog.

I've said this before, but I'll say it again: The SAPD is made up of attorneys and they have the same duties to their (our) clients as we do.

So, when they decide to not pursue a "nonfrivolous" argument, that's an ethical failing.

Frankly, I know the SAPD folks, and I never had much against their actual skills till lately as the evidence has begun to pile up that the work product is becoming garbage.

The obvious retort, besides making ad hominem attacks and asking me to explain how to do oral argument (step 1: PREPARE), is they are facing insane workloads and cannot be expected to function well.

Scott Greenfield recently wrote a perfectly good response to that bullshit argument so you can just go read it.  Look, you have a duty to your client, even if he is a crack addicted schizophrenic who rapes babies.  You don't get to phone it in, and claim you're just too overworked and underpaid to do your duty.  That goes for the SAPD, too.  If they can't handle the load, they need to take a stand and start refusing cases.

I'm kind of surprised that the mood about the SAPD is so protective.  Do you PDs recall this (the bill, not the post itself)?  Remember when she told us she had our back?  And she failed.  She failed horribly.  A CEO in her position would have stepped down.  I know we're used to failure in our business, but when you actually make our situation worse, it's time to say, hey, I tried, time to let someone else step up.  That would also have sent a message to the Governor and legislature: You can't put one of us on your bullshit councils, ignore us completely, fuck us, and expect us to smile and bear it.  We will simply stop participating in your charade and sue you.

After all, we're attorneys.

Undeniable Proof the SAPD is Awful

September 5, 2013: The Court of Appeals hands down State v. Schall.  Shawn Wilkerson of the State Appellate Public Defender (SAPD) was arguing, and won a small but important victory.  When the state claims a defendant committed a felony DUI requiring proof of prior DUIs, and some of those DUIs are from out of state, the state must show at the preliminary hearing that the DUIs from out of state are conforming convictions in terms of the law violated.  DUI differs a bit from state to state, so this is important.  The state, which merely needs to prove there is probable cause to believe the felony was committed, had argued the conviction which often says ".08 DUI" or something is good enough.  The Court of Appeals said no, bring a copy of the law and argue it.  Or lose.

State requested the Supreme Court look at it, and it granted the petition.

On August 20, 2014, the same day that Doug Phelps would argue Wulff to the Court and find that everyone agreed that McNeely likely killed implied consent (bless him)- this happened.  Shawn Wilkerson, fresh from his win less than a year ago, strides to the platform and shows his mastery of the law and the Court of Appeal's opinion.

Oh no, no he doesn't.  Actually, he flounders, freaks out, and shows a total lack of understanding of the law, the system, everything.  He basically concedes that preliminary hearings are useless and he has no idea why we have them.  What's the difference between a felony and a misdemeanor?  He doesn't know.

Question: How did he win in front of the Court of Appeals?  Probably this way.

Update: Having thought better of the negativity I unleashed, I have decided to remove the insulting section here, but my opinion of the SAPD is unchanged to the extent that I believe they do more harm than good currently and are violating the rules of professional conduct by not properly serving their clients.

The SRBA: It's finally over!

For folks who aren't from Idaho, the SRBA probably has some significance other than the Snake River Basin Adjudication.

How nice for you.

For Idaho, it has been 30 years of litigation.  It has produced almost a half of our appellate judges.  It was once deemed the "full employment for lawyers act."  It was pretty crazy amazing from a criminal defense lawyer's perspective.  Civil law is weird.  Money is weird.  Dealing with property rights man to man is weird.

Weird.

The reason I mention it is because I have on a few occasions used SRBA opinions in arguments.  The SRBA is probably one of the better gauges for what Idaho Appellate judges will do in existence.  I'm not saying mention the SRBA every time you argue, but... maybe?

You can read about its demise here.  You can check out the history here.

The Snake River for out-of-staters is the massive river that wraps through southern Idaho (like a snake) emptying eventually into the mighty Columbia, after heading through Hell's Canyon, the deepest canyon in the US.  It is generally found down deep embankments and taunted early settlers on their way to Oregon dying of thirst in the desert.

But then FDR came and spent a bunch of money turning that desert into an agricultural zone using the Snake.  And then people got mad about water rights, and then this thing happened.

I think the most important thing to remember is this is the case where the judiciary put the smack down on the Legislative and Executive, who in turn promoted those who had sided with them while District Judges and placed them on the Supreme Court and Court of Appeals.

Those judges are, in my lowly opinion, dangerous.  But they're still growing and learning, and perhaps the fact that the SRBA was successful, despite the justices occasionally throwing out laws and solutions wholesale as violations of the state Constitution (this happened, read about it), will teach them that its ok to be loyal to our charter.

Maybe.  Anyway, if you're a lawyer in Idaho, you really ought to learn about it.

Hypocrisy and the First Amendment

Every time someone in this country is told they can't say something by anyone, you get a bunch of tinfoil hat folks screaming about the Constitution and the First Amendment.

Let me explain this very slowly to you:

The...Constitution...of...the...United....States....of....America...is...a....document...that....provides...certain...powers....and....limits...on...those...powers...to....the...federal...government.

It has literally no effect on you.

I say literally because it is written to have no effect on you, but we talk about rights so much people seem to think the document created something they own and the Supreme Court sometimes agrees.

It's a mess.  Don't get me started.

But even from the illiterate view, the Constitution does not say that no one can make anyone shut up, ever.  Just the government.

So A&E is mad about duck dude hating gays, that's not a First Amendment issue.  Savvy?

Now, sadly, to that tinfoil hat crowd a number of attorneys have joined: Scott Greenfield, his mentee Horowitz, and some other assholes.

Of course, Greenfield and said assholes are smart enough not to actually claim the First Amendment applies. Only Horowitz seems to claim this and makes the bizarre additional claim that the First Amendment ended slavery. But as a group, there's that tinfoil hat tendency to claim all Americans can say whatever they want and no one can stop them because it's a free country.  Hell, they'd welcome a law that made it unlawful to make other people shut up.

Or would they?

Greenfield routinely silences people on his page and then writes long, rambling columns about how sad it makes him that stupid people comment on his work.  Pot calling the kettle, but whatever.

Sometimes, some people really need to shut the fuck up.

So, as Horowitz claims, did the First Amendment win the Civil War and end slavery?

No,the First Amendment A. did not apply to the states and B. did not mean what we now say it means.  Because A. Fourteenth Amendment was not passed till 1868, and B. free market of ideas crap doesn't even show up till like 1953 (though you can date the idea back to Holmes in..1918).

Hell, states constantly banned abolitionist publications.  BECAUSE THEY COULD.

Granted, without a First Amendment, had Congress/President ever agreed to ban abolitionist writings they might have.  I'm not so sure that would have saved slavery though.  Because, you know, the historical reasons slavery ended.  Read a book.

Would it be nice if attorneys learned about things before they babbled like idiots on the internet for their adoring dipshit public?

Yep.

But I won't tell them to shut up, since frankly, we're criminal defense attorneys, so no one important is listening anyway.

Juvenile Shackling in Idaho

Court of Appeals released State v. Doe today.  Over one dissent, the Court held that juveniles cannot be shackled at evidentiary hearings without an order of the court/finding of necessity.

Kind of a huge fucking deal.

Better, the Court goes on to say it thinks kids shouldn't be indiscriminately shackled at all, and asks the rules committee to look into it.

Idaho.  It's a pretty weird place.

Nightmare Government: Town Outlaws Giving Water to Thirsty Families

The thing about Idaho is it is a very conservative state.  Small government state.  Or so it was.

You can find some interesting articles about it, but if you're from out west, you know Californians are destroying every state around them.  Mostly, its urban liberals mucking up places like Idaho.  But in Idaho, it's urban conservatives.  Ultra religious, ultra law and order, ultra conservative.  They are tone deaf, insane, and ravenous.

So I suppose I should be unsurprised that this happened.

But I am kind of surprised because, holy shit.  Water?  

Bless Mr. Freitas for fighting.  The Court of Appeals released a rather harsh opinion.  Here are my two favorite parts:

Here, Freitas fails to acknowledge or address the state’s legitimate interest in retaining control of the authority delegated to the city to exclusively provide domestic water services. He also fails to recognize that the municipality’s ability to effectively collect delinquent water fees is undermined by circumvention of the penalty for failing to pay those fees--disruption of service. Although the water provided to the third party is still being paid for, the water previously provided to the third party for which that third party has not paid remains unpaid and the incentive to pay that debt is reduced. This threatens the city’s ability to provide low-cost water services.5 Thus, the municipality, and thereby the community it serves, is harmed and the municipality may take steps to prevent that harm, including criminalizing the causal conduct. As a result, the ordinance is not arbitrary. Instead, it is the result of a legitimate exercise of the city’s local police powers granted under Article XII, Section 2, of the Idaho Constitution and I.C. § 50-323 in regulating the provision of domestic water services for the peace, good government, and general welfare of the city residents. Accordingly, the ordinance is facially constitutional and the district court did not err in so finding.

So, a city has a legitimate interest in preventing a family from having any access to water in their home if they can't pay the bill.

Imagine this:

I can't pay a debt on time, so by law, I cannot get a loan from ANYONE.

I can't pay my electric bill, so you're a criminal if you loan me a flashlight.

I can't pay my water bill, so you're criminal if you GIVE ME A GLASS OF WATER.

Oh wait, that's what this case is about.

My other favorite part:

Freitas fails to specify how, under any of the several provisions he invokes, the ordinance is unconstitutional. Instead, he provides several statements about the value of charity followed by conclusory assertions that charity must be protected under the state and federal constitutions. These assertions are unsupported by cogent argument or relevant authority applicable to the facts of this case. A party waives an issue on appeal if either authority or argument is lacking. Zichko, 129 Idaho at 263, 923 P.2d at 970. Accordingly, we will not address this argument further.

A couple points here:

1. What authority "relevant to the facts of this case" do they expect?  NO OTHER GOVERNMENT IN THE ENTIRE COUNTRY FOR THE LAST 200+ YEARS HAS BEEN THIS INSANE.

2. Seeing as how he was claiming charity is protected by state and federal constitutions, he's required to prove it's a traditional value around since those documents were adopted.  That substantive due process for you.  Either judges buy it or they don't.  Obviously, this set didn't.

3. This would have been a watershed moment for the judicial branch and these fuckers totally let it go by.  Why?  Seriously.  

This case is the biggest black eye I've seen our appellate courts receive from the public since cases where they let really bad people go.  You've got the IFF writing articles and getting them published all over the state.  I mean.  Self inflicted wound guys.  Why do this to yourselves?  

I get the opinion for the most part.  I don't find the ordinance as clear as I think the constitution requires, certainly not if it's intended to apply as it does here.  I'm of the "if a government wants to outlaw something totally normal it needs to do it in neon letters" crowd.  

Bad news bears man.  Bad news.

The other IAD

It's not a roadside bomb.

It's the Interstate Agreement on Detainers.  A super boring name for something that all states have signed onto requiring states to bring someone to trial within 6 months of a demand to be brought to trial made by a prisoner in another state.  The "detainer" is any kind of hold another state makes on a prisoner.  In a prison.

This law sounds, super awesome.  Imagine me using hand gestures for that.  Super.  Awesome.

Here's how it works though:

Prisoner is in local jail and finds out about this, somehow pencils it together.  RESULT: laughed out of court.

Prisoner is in prison.  Cannot get prison to figure out what he's talking about.  Time goes by without him filing the proper paperwork.  RESULT: dies in prison.

Prisoner is in prison.  Prison officials give him paperwork to ask that his detainer be quashed.  RESULT: probably dies in prison.

Prisoner is in prison.  Somehow manages to file proper paperwork.  RESULTS:

1. Local DA is like huh? signs papers, demands trial.  Sheriff never does anything.  DISMISSED! Woooot

(DA could just let it go, but.. nah)

2. Local DA is like huh? signs papers, demands trial.  Sheriff comes and gets you.  Now shit gets interesting.

So many new variables!  You've heard of speedy trial rights, you didn't know that mostly they just end in a dismissal without prejudice, going to jail all over again, and repeating your hell.  But with the IAD on your side, dismissal MUST be with prejudice.  Shit. Just. Got.  Interesting.

You're in Idaho.  You go to court.  Do you want a preliminary hearing?  You use a prelim to test your case, possibly to get charges.. dismissed.  WITHOUT PREJUDICE.

WHAT DO YOU DO???  You might win.  If you win, now the state will crush your tiny baby soul by REFILING CHARGES.  All the work you did: fucked.  Your six month clock: dead.  You: die in prison.

Next: to take a deal.

The state is all: agree to horrible deal, stupid idiot trapped in hell with no real choices.  You're all: what?  you have one month to try my case.  Puh-leeez.

But then: judges realize the DA is a fucking moron, and fast track your case.  You don't really think the witnesses the state needs will show since they have like a week to pull it off.

WHAT DO YOU DO????  Will they crash and burn?  Or convict your stupid ass?  Why did the state have to push you this far?

Oh I dunno, probably because they lose nothing by screwing with you.

The IAD: making shit get all crazy since 1970.

Even When They WIN

Readers know I'm no fan of the SAPD, Idaho's bizarre appellate attorneys for poor felons branch.

Yesterday, they produced a pretty cool win.

But did they?

Really, it was the work of the trial attorney, who made enough of a record to properly preserve the errors in jury selection.

It's been said a million times, but the fact is, the most important part of a trial is jury selection, and then the opening statement.  The rest of it is a lot more fun, but comes pretty easily if you're meant to be a trial attorney at all.

Jury selection is a lot harder.  Idaho is a great state, we get to question the jurors and we can do so forever.  Days on end.  And a good attorney can probably get rid of jury panel after jury panel.  But you don't do that, because either you're not that good or you know eventually the judge will shut you down and you may wind up with something very ugly, so you play a delicate balancing game.

It's the most gambling-related thing that happens.  Kind of like a really goofy shell game where you never got to see what was under the shell in the first place, but you can ask the dealer questions and he can lie all he wants (yes jurors are under oath but... that's bullshit).

Anyway, Ornelas's attorney did a Batson challenge (among other challenges less properly preserved) and lost, thereby creating some damn good law in Idaho.

I say that because the SAPD did NOTHING to create good law.  Per the Court:

We are now faced with an issue of first impression in Idaho: whether a court proceeds to the third step of Batson or ends its analysis after an impermissible reason along with permissible reasons are proffered in the second step of Batson. Ornelas generally contends that “Juror Number 24 was removed because of his gender and, therefore, the district court made a clearly erroneous finding that the prosecutor did not engage in purposeful gender discrimination.” With this contention, Ornelas seeks for us to vacate the judgment of conviction and remand his case for a new trial. However, Ornelas cites no authority for the relief he seeks. The State, meanwhile, quotes excerpts of a Seventh Circuit case that does not directly address the issue at hand. Other courts around the country have addressed this issue, and there is a split of authority among the federal circuit courts of appeal as well as the states. The United States Supreme Court has not yet specifically addressed this issue on review. As we describe below, most states have adopted what is the referred to as the per se approach, some states and most federal circuits have adopted a mixed-motives analysis, and the Ninth Circuit has adopted its own approach.

The Court then proceeds for SEVEN PAGES to do its own fucking research and THANK THE GODS comes out in favor of the substantial part test instead of the mixed motives test (based largely on work other attorneys did in the Ninth Circuit, bless them).

The SAPD.  Seriously, if you allow your client's appeal to go to them, you're committing malpractice.

A Light at the End of the Tunnel?

I heard about this opinion a week ago, but the whirl of excitement just seems to keep growing so i figure I gotta say something.

It's a District Court opinion, and I don't think it's available anywhere other than people passing it around.  Came from Judge Stegner, the only district court judge in the second circuit, pitch hitting for first circuit judges.

Basically, someone up North said that the Standard Operating Procedures that the Idaho State Police puts out are worthless (true) and that the law requires that a method be adopted (true) and so there's no method (true) so the state cannot get in its breath test result (tru- wait what).

Well bugger all but the good judge agreed.  After tearing apart the ISPs misuse of the power granted by the legislature in I.C. section 18-8004(4), he simply said enough is enough, the legislature cannot assign the admissibility of evidence to the executive and thus allow the executive to get in whatever it wants at a criminal trial.

Oh, and fuck you.

Shouldn't this mean the state can still call an expert to get it in if they can convince a judge it's acceptable?

No I'm really asking.  The opinion seems to say no, but I don't see why, other than to say "You know what, you're just going to bring the ISP expert to get it in, and that guy wrote the SOPs, and so fuck him, fuck your breath test results, and fuck you."

And I'm totally ok with that.  In any case, it's nice to see a Judge agree that the status quo in DUI cases is not even close to Due Process.

Three cheers for Judge Stegner!  Let's hope the Supreme Court or the Court of Appeals doesn't tear this thing apart.

Dog's Life (and untimely death by cop)

So a story from the North got pretty big lately.  Cops behaving badly shows up now and again (weirdly, many of those stories come from up north- specifically I'm thinking of an ISP officer with a shit ton of criminal charges).

This stands out for two reasons, first:

Because the police department has received threatening voicemails and emails, the name of the officer who shot Arfee is not being released, Clark said in a news release. The officer has not, however, been placed on administrative leave.


And second:

This is the second officer-dog shooting incident that has resulted in a possible lawsuit in Idaho this year.

You can read the article here.

This is actually interesting to me because cops killing dogs in Idaho is sort of an old battle.  

Smith v. Costello, 77 Idaho 205, 290 P.2d 742 (1955) superseded by statute, I.C. § 6-611, as an example of an arbitrary law being held unconstitutional. In Smith, a conservation officer shot and killed a dog and claimed former I.C. § 37-1407 as an affirmative defense. Idaho Code § 37-1407 provided that “any dog running at large in territory inhabited by deer, is hereby declared to be a public nuisance and may be killed at such time by any game conservation officer . . . .” The Idaho Supreme Court stated that the phrase “territory inhabited by deer” could refer to the majority of the state, including farmland. This could make any farmer’s dog a public nuisance and at risk of being shot by a conservation officer. Accordingly, the Court held that the statute was an “arbitrary, unreasonable and unconstitutional regulation.”

Weird right?  Weirder still, Smith came out the same year that SCOTUS handed down Lee Optical and changed the game for striking down statutes for being really, really stupid.  Lord knows if you could get rid of a law like that today.

It's pretty fascinating that Idaho's lawmakers and law enforcers apparently hate your dog.  And Idahoans obviously love dogs quite a bit because they freak out every time one is killed.  Cop kills a person, you can see the public trying to make it ok and eventually it's like well cops live dangerous lives, that guy earned it.  But cop kills a two year old lab- not so much.

The other majorly interesting part of the story is that the Coeur d'Alene Police Office released a press release that apparently was nothing but lies.  Dog was a pit bull, it said, and lunged out of the van!  but the dog was killed in the van, with a bullet through the window, and pictures of the dog show that it's no pit bull.  Cops are claiming an animal control officer said it was a pit bull but a vet said um, no guys.  no.

It's one thing when cops kill folks because they're untrained and love their guns.  It's kind of another when they release an incredibly stupid cover up story, a brazen one that makes the situation so much worse than it ever needed to be.  Now you have to wonder about the people running this police force.  How can anyone trust these people?  It's not hard to fire or train cops when they have trigger happy issues.  But fixing a department that is fundamentally corrupt?  Sucks to be up North.

What in the fuck is wrong with North Idaho?

Kid is accused of murdering dad and brother.  Ok.  Cool.  Whatevs.  So everyone involved agrees that this kid should be with the other kids in the juvenile center, not in the adult jail per the law's demands.

Because in adult jail, he lives in a tiny cell where the light never goes out.  As his GAL said, "fucking worse than GITMO" (paraphrased, but barely).

Everyone agrees- except the judge.

Read it here and here.  Listen.  I love Idaho.  I love the law.  I love the system.  But this, this might be one of the single worst things that has ever happened.

I mean... you have to understand.  Folks go to prison and we think they shouldn't all the time.

But to take an accused CHILD and put him into this environment..

Whole point of this system is that punishment can only occur AFTER you're found guilty.

For the judge to say the danger is too great but the risk is small?  I mean... what the fuck does that even mean???

If you can, give this weird judge a call.  Call representatives.  Call someone.  This is just too weird.  I've seen weird shit, but when everyone, including the state, agrees a child shouldn't be held in an adult prison, and a judge says otherwise- what the fuck.

And why is this asshole judge allowed to be on the case?

Ah me.  North Idaho.

Liberals! and Hobby Lobby

First of all, I don't shop at Hobby Lobby, I understand they sell nicknacks.

Apparently, it's a large corporation owned by a family that did not want to offer a handful of contraceptives they found objectionable on religious grounds.

The Supreme Court ruled that was fine.

The Supreme Court did not rely on the First Amendment.  And yet, the internet is full of memes about the First Amendment.

The Supreme Court relied on a law called the Religious Freedom Restoration Act (RFRA).  This law was passed by a unanimous majority democrat house and nearly unanimously by a democrat senate, and signed into law by Clinton.  It was written in part by the ACLU, who are currently decrying Hobby Lobby.

The RFRA is a pretty simple law.  The Supreme Court had held for centuries that the government can pass laws that apply to everyone and there are no religious exemptions.  Period.  You don't get to claim your religion says it's cool to marry children or kill people.  Or use peyote.  Liberals and Conservatives flipped the fuck out and passed the RFRA, forcing the Court to look at federal laws with the strictest scrutiny any time someone has a religious objection.

How fucking stupid is this?  How fucking unconstitutional?  We can spend all day talking about it, but other folks already have.  I just really want to address Jost on Justice and some other commentators who are attacking Justice Ginsburg for her dissent.

So the Supreme Court rules in favor of Hobby Lobby thanks to the RFRA.  Every female on the Court and Breyer say this is a terrible idea.  Justice Ginsburg writes a long dissent.  It gives various reasons why this is a terrible idea.

She does not, however, try to strike down the RFRA.  She simply claims it is more limited.

Well, it fucking isn't.  But that's not the issue.

The issue is that fucking idiot liberal after fucking idiot liberal, apparently aware of the fact that Justice Scalia's dissents have helped their various causes (a dubious claim- a dissent, as my own Court of Appeals will tell you, is just that), are attacking Ginsburg for pointing out the obvious extension of the ruling and the law to other issues.

Look, you fucking morons.  Neither litigators nor judges need a dissent to figure out where to go next when a decision is handed down.  Unlike you, we're quite capable of thinking.  And we expect judges and justices to speak their conscience on issues and be intellectually honest.  It's when they aren't that we're concerned.  The public just got to find out what the consequences were of passing the RFRA.  If it has half a brain, it will get rid of that law. Going on and on about how Justice Ginsburg would have better served you by lying and claiming that the decision was really limited would hardly have stopped anyone from using the case for all the issues she talks about.  The law is based in part on experience, but there's quite a bit of it, particularly when litigating, that comes from logic.  So if the reasoning fits, the arguments are made, and those arguments will win.

If we do it any other way, then you have a judiciary that is dishonest and unpredictable.

Fuck that.

And fuck you Jost and the rest of the pack of chicken little, scapegoating, intellectually dishonest, utterly ignorant as to how the law operates bitches.

Meanwhile, in Idaho

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

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

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

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

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

Anyway, now for bad.

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

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

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

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

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

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

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

Cue wailing and moaning.

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

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

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

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

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

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

Taking the Black

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

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

Hell, they've even had Shoalin Warrior Monks.

Now, I knew this because.. well I thought it was obvious.. but apparently it's new to enough people to have gotten a study done:  http://www.abajournal.com/news/article/want_to_run_for_political_office_dont_work_as_a_public_defender_first/?utm_source=feedburner&utm_medium=feed&utm_campaign=ABA+Journal+Top+Stories

Defending criminals is a life vow.

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

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

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

Now, the article says Public Defender.

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

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

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

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

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

Creatures

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

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

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

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

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

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

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

All of this is offensive.

Temper temper

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

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

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

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

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

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

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

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

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

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

They fail, you win.

C'est la vie.

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

He has to lose.

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

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

Reaper

There was a TV show at some point called Reaper.  No.

No I'm thinking of something else.  Hold on.

Dead Like Me.

That was it.

You know what that show failed to do?  It was all "being death is a job and you have a boss and quotas and shit."

But really being death also requires a lot of paperwork.  A shit ton.

It's weird after a while.  I was just in court, pleading A not guilty.  Meanwhile, B was entering his denials on his probation violations, he was in A's position 5 months ago.  Also, C is here for sentencing and I can already see the writing on the wall- I'll get probation from the judge, but a retained is right around the corner.

The circle of prison.  It moves us all.  Through despair and hope.  Through faith and love.  Till we find our place, in some dark prison cell.  It's the circle, the circle of prison.

Meanwhile, as professional, what was it they called me in Apocalypse Now.. Grocery Clerk.  As professional Grocery Clerk, I shuffle the paper.  I shuffle so that the circle may be whole.  I shuffle for you all.  Amen.

Court of Appeals Adopts Truthiness, Hates Your God

To a great extent it has always been the rule in the courtroom that the police officer lies by making what he knew at the time he acted sound more in line with the law.  They're trained to do so.

Every once in a while they forget or can't, and the motion to suppress is granted and the case goes away.

The Court of Appeals has apparently decided that judges are allowing this to happen far too often.  So they released the mind-numbing State v. Perez-Jungo opinion.

This was the law:

An investigative detention is permissible if it is based upon specific articulable facts which justify reasonable suspicion that the detained person is, has been, or is about to be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 26 (1968).

Old law, sorta.  Well known from law school.  In this case, cop thinks car abandoned, goes to check it out and whoa, not abandoned.  So.  Ok.  Then comes the next legal nugget, again, pretty well understood and understandable:

Thus, the length and scope of the initial investigatory detention may be lawfully expanded if there exist objective and specific articulable facts that justify reasonable suspicion that the detained person is, has been, or is about to engage in criminal activity. State v. Gomez, 144 Idaho 865, 869, 172 P.3d 1140, 1144 (Ct. App. 2007).

So if cop then saw the occupant of the car had a needle in his arm, he could go on asking questions.  That didn't happen here.  And so the law got weird:

Just as with probable cause to search a vehicle, reasonable suspicion does not require a belief that any specific criminal activity is afoot to justify an investigative detention; instead, all that is required is a showing of objective and specific articulable facts giving reason to believe that the individual has been or is about to be involved in some criminal activity.

The Court claims this is true of probable cause for searches as well, and that various other courts agree with them.  No.  Not really.  They all spoke to the fact that you don't need "direct evidence" of a particular crime.  In other words, facts that support an officer being suspicious of a number of different crimes are good enough- such as the smell of marijuana.  So no one has ever said you don't need to be able to articulate what kind of criminal activity you think is going on.  Because that just sound like guess-work.  And cops are not allowed to rely on a hunch.

So what incredible fact pattern produced this horrific law?

The circumstances known to the officer here provided reasonable suspicion to believe that some criminal activity was afoot.The officer testified that, after the concerns justifying his initial contact with Perez-Jungo had been resolved, he suspected that Perez-Jungo might be involved in impaired driving or illegal drug activity.  Specifically, the officer came upon Perez-Jungo's vehicle parked on a gravel road in a remote area late at night. Although this was insufficient alone to create reasonable suspicion, officers are not required to ignore the suspicious nature of relevant surrounding circumstances, such as location or time. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (noting that police may consider location, even when not in a high-crime area, when determining if reasonable suspicion exists); State v. McAfee, 116 Idaho 1007, 1010, 783 P.2d 874, 877 (Ct. App. 1989) (agreeing that “unusual activities at unusual hours” can contribute to establish reasonable suspicion, but noting that citizens do not become prospective detainees because they lawfully drive and park late at night). The officer also observed that Perez-Jungo had bloodshot, glassy eyes. Again, the presence of bloodshot and glassy eyes is not alone sufficient to provide reasonable suspicion. Grigg, 149 Idaho at 364, 233 P.3d at 1286. However, it nonetheless supports suspicion of both intoxication and illegal drug activity. See State v. Sheldon, 139 Idaho 980, 985, 88 P.3d 1220, 1225 (Ct. App. 2003) (noting that glassy, bloodshot eyes not caused by alcohol consumption can contribute to reasonable suspicion of illegal drug activity). 

So what do we have?  A Latino (gasp!) in a car in a remote location on a gravel road late at night with bloodshot, glassy eyes. (Chief Judge Gutierrez signed of on this piece of shit opinion, so we have to assume the obvious racism was.. lost on him?) (P.S. Judge Melanson, the author, is a really nice guy, but I don't think much of his legal prowess in criminal matters and I see a pattern in his cases of siding with the state, although not as bad as one of his fellow judges.)

Did I mention racism?  Here comes the piece de resistance:

Finally, the officer observed a Santa Muerte statuette on the dashboard of Perez-Jungo’s vehicle. The officer testified that, based on his training and experience, Santa Muerte is a patron saint for drug traffickers.

Oh yes my friends.  Santa Muerte.  Patron Saint of Drug Traffickers!  Oh no wait, she's the center of what is often described as a cult with millions of members, tens of thousands living in the USA, one that is at odds with the Catholic Church and the authorities and thus attractive to many members of the working class.

So now we know why Gutierrez could give less of a shit.  Santa Muerte is, tis true, associated with a lot of criminality.  But moreover, she's an embarrassment to every good Catholic, like our Chief.

In a footnote, the Court says they will not hear argument on why that statute couldn't be used as reasonable suspicion.  That argument would most certainly have been the First Amendment.  Who knows if this was raised below or not.  The Court has a point to make, and it won't be dragged into recognizing that what it is doing is making a mockery of constitutional protections.

The opinion then ends with one more illogical claim: that if the officer thought Perez-Jungo was under the influence, it made perfect sense to question him and look around with a flashlight for ten minutes till other cops arrived who I guess had better eyesight and spotted the cocaine just sitting there in the car.  Because that's how you prove a guy is under the influence.  Questioning and looking around at the inside of his car.  Not field sobriety tests, which as we now know, are meaningless anyway.

Reality Testing

As I've said before, DUI jurisprudence is a post-apocalyptic wasteland where nothing good can live.  This is in part because of the reality of DUIs.  Once an officer stops a car, the law in Idaho says he needs reasonable suspicions you're under the influence to force a blood draw.

But this isn't about that.  This is about probable cause to think a person is driving at .08.  The Court of Appeals finally ripped away the final vestiges of weird that are Field Sobriety Tests and held that frankly, we don't need them:


Hunter had driven several blocks without headlights. The officer who stopped Hunter could smell the odor of alcohol coming from the open driver-side window and Hunter told the officer he had been drinking. This officer also observed nystagmus in Hunter’s eyes. The female passenger appeared to be heavily intoxicated. Once Hunter exited the vehicle, Officer Gibson could smell the odor of alcohol coming from Hunter. The officer observed that Hunter’s eyes were glassy and bloodshot. Hunter told the officer that he was coming from a bar and that he had consumed three vodka tonics that night. Hunter failed the HGN test, scoring the maximum points allowed. Officer Gibson later confirmed the HGN results by administering the test for a second time. Hunter also swayed during the one-leg-stand test. Finally, Officer Gibson had specialized training in DUI cases and had conducted several hundred DUI investigations. Though Hunter did not fail each of the field sobriety tests, the remaining information was sufficient to supply probable cause. This is especially true because I.C. § 18-8004(1)(a) establishes a per se alcohol concentration violation. An individual who has become more tolerant to alcohol may not exhibit the same observable functional impairment at the per se legal limit as others. Thus, under the totality of circumstances, an officer is not required to ignore other indicia of intoxication when an individual partially performs well on field sobriety tests. 

Because Officer Gibson had probable cause to arrest, the breath alcohol evidence recovered after the arrest should not have been suppressed.

What do you say to that?  Other than, well, ok.  FSTs are dead.  You don't need them to breath test, and even if you take them all and pass them all, you still lose.  Why?  Because .08.  It's an arbitrary number picked for no fucking reason by assholes, but that's the law.  It's rational enough for the courts, because DUIs are bad.  Picking this bullshit number is, if not to prevent dangerous driving by punishing those who drive dangerously, good for scaring everyone into not driving with much alcohol in them, which after all, if you reach a certain level, could be bad.  Why not just say no to driving with alcohol in you at all?  Hell, they could if they want, says the Court.  

If you want to fight these cases, learn about the evidentiary testing.  That is going to be all that is left soon.  And those fights are going to be expensive if we can force the courts to acknowledge that it's not good enough to just leave us with cross examination.  Our clients need their own damn experts.  Someone with an iota of independence has to be present, it can't just be the cops and their machine and the assholes that make billions off shoddy science and human suffering.

Third Party Doctrine and How Stupid People Plan to Ruin America

You may have heard that the Supremes are planning to give the thumbs up to cops going through your smartphone.

You may also have heard that the NSA collects all our info and runs searches and we're all supposed to be cool with it because WE ALREADY GAVE THAT INFORMATION AWAY ANYWAY I MEAN SHIT.

They've been doing it for years in Idaho.  Which is pretty weird because we don't even believe in the Third Party doctrine.

Prof. Kerr and the ever batshit crazy Stewart Baker at the Volokh conspiracy are huge fans of the Third Party Doctrine, establish years back in a case called Smith v. Maryland and said that if you give info to another person it isn't secret anymore.  Thus, when you make phone calls, that info goes to a phone company, and now you have no expectation of privacy.  Because you wanted those phone employees to know, and expected them to make a shrine to you, gathering your calls and thinking of you each time they lovingly look over it.

Idaho said "that's the stupidest fucking thing I've ever heard."  "No seriously.  Are you all fucking high?"  And we have State v. Thompson and we don't have to deal with that kind of bullshit.  You need a warrant to get phone records in this state.

So given that we don't even have this, you read the arguments for the Third Party Doctrine which include such gems as "you should know better, person making phone calls or using the internet" and "but without this, how will the government know when it needs a warrant?" and you think, "Bu-wah?"

These are pretty easy things to answer.  First, who gives a crap if I "gave" data to a massive company that does not, nor should anyone expect it to, read my emails, google searches, and phone calls?  Hell, if anything, I kind of assume whatever relationship I have with these people requires them NOT to read my things.  But that's not right, because they use machines that read it, compile it, and give advertising on that basis, so like, clearly it's all good.  Really?  Because a machine made to do advertising reads what I do I'm supposed to think nothing I do online is private?  Who are these idiots?

The even stupider argument, which apparently Prof. Kerr is a big fan of, is "where do we draw the line?"  Look, you goon, it's not like we fight a revolutionary war so we could cry like babies over how the government just doesn't know when to run its requests by a judge.  GET A WARRANT.  When in doubt GET A WARRANT.  What happened to the preference for warrants?  I know you worked for the DOJ, Prof Kerr, but why not try on being a thinking rational person?  You think the Fourth Amendment's demand for reasonable searches and seizures doesn't apply because the government isn't seizing anything or searching anything that isn't public?  Dream on asshole.

The very fact that the police are fighting with such inane arguments to do what they are doing without oversight from the judicial branch should FREAK EVERYONE THE FUCK OUT.  Period.

Rant for the day is done.

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

The news is like... WHOA THIS GUY LIKE TOTALLY DIDN'T DIE FROM THIS LIKE

BOTCHED

EXECUTION BUT THEN DIED.  So.  LIKE WHOA.

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

"What the fuck?"

Followed by:

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

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

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

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

Fuck, it's like half our unemployment rate.

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

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

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

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

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