Blonde Justice recently posed a great question: Can the Defense Ever Be Pro-Proseuction? Her hypo is about a fellow defense attorney “who had recently been a crime victim.” He decided to give a statement, agreed to testify against the arrested suspects, etc. I’m not sure what she means by “crime victim,” but assuming she means that this PD was the person directly injured, either physically or financially, by some breach of the law, then ok; the hypo doesn’t seem that difficult. Of course the PD can choose to cooperate with the prosecution. Possibly “Harry” said it best in his comment to BJ’s post:

Defense attorneys don’t exist to help criminals, but to prevent innocent people from being convicted. The only way to do that is to give the best possible defense to everyone, both guilty and innocent.

Any alternative would require deciding upfront who was innocent and who was not. But if there were a way to do that, no court case would be needed at all.

I am very surprised that a bunch of criminal defense attorneys, of all people, would fail to understand this basic principle.

That Lawyer Dude offers another fascinating perspective:

Good criminal defense attorney’s do not argue for leniency. They argue for a sentence that fits the crime. They argue for another opportunity. They argue to keep the defendant from being just another number and so that if the defendant is convicted of a crime he committed, he is able to rejoin society with as little baggage as possible.

Defense lawyers who bleed all over a courtroom are terrible lawyers. They have failed to take the other parties needs into consideration and as a result rarely “win” a fair or even a good sentence for their clients. Judges ignore them because they know that the lawyer will never be able to guide the court.

Once you’re at the point of arguing sentencing, this seems true — it’s not about leniency, it’s about fairness and a sentence that fits your particular client’s actions and situation in life. By the time questions of lenience v. fairness arise, your client has already entered a plea of guilty or been found guilty at trial; you’re in the sentencing phase. Prior to that time, the battles are different. Unfortunately, public defenders end up spending a lot of their time and effort and energy in the sentencing phase and it takes an incredible amount of work, experience, and wisdom to be effective in that zone day after day, and even multiple times in the same day.

I could go on and on but you should just go read the post and all the responses. Excellent stuff. (As usual from Blonde Justice!)

But returning for a moment to the original question: Should a PD cooperate with the prosecution when the PD has been injured by a breach of law? Sure. I don’t think I would do so in every case; it would depend on the crime and the circumstances, but I don’t think a public defender is per se a hypocrite for deciding to help the prosecution on a case where the PD has been directly injured.

Here’s a twist on the hypo, though: Should a public defender who has not been injured by a crime but has witnessed something relevant to a crime cooperate with police? Should she give a statement? And even more important, should she invite the police into her public defender office in order to give the statement during work hours?

Thoughts?

Richie Ramone, one of the drummers for The Ramones, lost his fight to get paid for 6 songs he wrote because a judge said that digital files are not “manufactured or sold” but are instead transmitted and licensed.

Wha? So when I pay someone (e.g., Apple) to “buy” a song, and I download the song and do whatever I want with it (listen to it, share it, give it someone as a gift, etc.), I did not “buy” it? Apple did not “sell” the digital file to me? Sure, music from iTunes and other online music retailers has restrictions, but they are easy to circumvent and hardly change the fact that the digital file is “sold” in an online music transaction. Except, apparently, according to this judge, that’s not true.

See why I don’t practice copyright law?

Today is finally the day of the Democratic presidential primary in Pennsylvania. Keep your fingers crossed that today will finally put an end to the godawful self-swiftboating the Democratic party has been giving itself for the last many weeks. Let’s have a decisive win for Obama and move on to making the case that he’s going to be a better president than McCain, ok? Priorities, people, priorities!

You know you’re living in a wonderful world when you can just open a web browser and read a chronology of the events in Infinite Jest by David Foster Wallace. (And here I must point out that the old paperback book cover is, um, infinitely superior to the new cheap imitations.) I found this out by reading this review of Evernote, a new online “brain extender” that “allows you to easily capture information in any environment using whatever device or platform you find most convenient, and makes this information accessible and searchable at anytime, from anywhere.” Now who wouldn’t like that? Of course, I can see the person who drops everything into evernote and just forgets it, then ends up somewhere w/out internet access and is just useless to himself and the world. That could be a problem. AT&T, please when will you allow me to have an iPhone here?

Poetaster, digital hitchhiking, jpods, horse surgery, carburetor, inapposite, incompetent but corrigible, superrelationships, soul-mates, and timing.

Ok, I was totally duped. I read on my treo RSS reader that Gideon of the blog “a public defender” was quitting his job to go into private civil practice and I totally believed it. My treo downloaded the post before he updated it to say that it was an April fool’s joke and I haven’t had time to look into it further since reading it, so for two days now I’ve been wondering, ‘How could he do that? What’s going to happen to PD Stuff!?’

Ha. The joke’s on me. Of course, my gullibility has a context. Two of my colleagues right in my office have left in the last month to pursue, um, other things. One left after about 5 years as a PD to become an investment banker (!?), the other is leaving to become a part-time prosecutor w/a private civil practice on the side. That sort of makes me ill.

That brings to a total of three the number of PDs in my office who have quit to become prosecutors since I started at the office 20 months ago. At least one of them was a great public defender and an inspiration to us all, so seeing him go to the dark side like that is demoralizing and sad beyond words. That aside, the idea that such a relatively large number (close to 1/5th of our total attorneys) of public defenders in our office clearly will switch sides to make more money speaks volumes about the defense culture here. I’ll just leave it at that…

Anyway, I’m glad it’s not that way nationwide and that Gideon was only joking.

I have to stop reading the news; it only reminds me that the world is going straight to hell in an American-made handbasket. Exhibit A:

Since 2006, when the insurgency in Afghanistan sharply intensified, the Afghan government has been dependent on American logistics and military support in the war against Al Qaeda and the Taliban.

But to arm the Afghan forces that it hopes will lead this fight, the American military has relied since early last year on a fledgling company led by a 22-year-old man whose vice president was a licensed masseur.

Thank goodness that “war on terra” is going so well!

Closer to home, I recently lost a probation violation hearing where we were asking the court to excuse my client’s failure to complete her restitution payments by the end of her sentence because my client had made a good faith effort to pay. The law says that failure to pay restitution must be excused if you’ve made a good faith effort because your obligation to pay remains with you for life, the “victim” has civil remedies for collection, and the state can garnish wages and tax returns to ensure you complete your restitution regardless of whether you’re on probation. So we had testimony that my client has worked a low-wage job throughout probation, working 32-35 hours/wk, which is all the employer would give her. She paid about 20 out of 36 months, she moved her family to a cheaper apartment to save money, her husband was in jail through part of the time and so could not contribute to household expenses for her and her two kids, plus when he was out he had his own considerable restitution to pay in an unrelated matter, etc. Finally, we had evidence that during this period, creditors brought three separate collection actions against my client for debts she and her husband incurred prior to the time this restitution was ordered, so for most of the time she was supposed to pay restitution her wages were being garnished for other debts.

Of course, after all of this, the court said, “You could have tried harder! You have cable tv and your son has internet.’ (Testimony was that son pays for the internet himself.) “You should have sold your tv and skipped those luxuries to prioritize restitution.” The court revoked my client’s sentence and started it over again. Awesome. I have a suggestion: Why doesn’t my client stop paying rent and move into a shelter so that much more of her income can go to restitution! That would really be trying, wouldn’t it?

What else? Oh, I recently learned that two of my “favorite” judges have very interesting “pet peeves.” One of them says his pet peeve is lawyers who can’t control their clients and waste his time at hearings they are totally going to lose. Great, so we should just ignore the fact that even if this judge denies the motion, an appellate court might very well rule the other way? It sounds to me like he’s saying that attorneys making a record for appeal and/or fighting for every possible hope their clients might have are wasting his time and annoying him. This from a judge who also recently asked me in an off-the-record pre-trial status conference, “Why doesn’t your client just plead guilty?”

Another judge’s pet peeve was cross examination. “It takes too long and just repeats the state’s case, so why are you wasting my time?” (I’m obviously paraphrasing.) So the judge is saying that his pet peeve is the entire defense case!? How often do we end up going to trial w/nothing but cross to make our case!? I don’t believe this judge was ever a defense attorney and it’s pretty clear he never prepared a cross-examination of a key witness, yet I have to practice in front of him on a regular basis. Grrrrrrr!

The song on constant rotation these days is Why Do I Keep Counting by The Killers. I mean, really, if all of our days are numbered…??

Big firm associates are apparently “lost” and “unhappy.” Don’t you feel sorry for them? Things sort of sound especially bad at Jenner & Block, which does make me sad, actually.¹ All of us unhappy lawyers could become teachers, concrete artists, or rappers. Concrete really does offer endless possibilities.

Tip: Don’t lie to judges.

Tip2: Macs are so much better than PCs it’s amazing people even have to keep asking this silly question. Macs can even let you take law school exams these days!

Don’t you think a lot can be explained by the fact that there are drugs in our water?

1. Apologies to my friends at big firms; I know it sucks. Might I suggest a career in public interest law? No money, but lots more satisfaction! Maybe…↩

Apropos of nothing, I went to a big going out of business auction last weekend. It was a pawn shop so they were selling a little bit of everything. The real reason I was there were the scooters and motorcycles for sale. Some of them have been parked out front for weeks and months and I have walked by them a hundred times, wishing, wishing. So I was really hoping they’d go for nothing. I was mistaken. The 2000? Honda ST1100 w/something like 24k miles went for $4k. The 2003 Honda Silver Wing w/about 6k miles? (looked almost brand new) went for $2400, and the beat up old (1995?) Honda Helix w/20k miles went for $900. By my humble researches, those were all about 50% of market value, except for maybe the Helix, which was in bad shape and should not have gone for so much (I thought).

My dad’s a big auction fan and each time I go to one I’m reminded of why people like them. It’s fun to check out the merchandise and wonder about what it will go for, and it’s exciting to get into the bidding for something you want. It’s also this strange sort of honor system culture where anyone can sign up for a number and bid, no questions asked (other than name, address, and phone number). Where else can you stand up and declare you’re going to pay $5k for something w/out anyone asking to see some kind of proof beforehand that you’re actually good for it? I could get into big trouble that way, but still, it’s kind of a neat thing.

I still have that scooter jones, though. If I’d had an extra $900, that Helix would have been mine! My grandpa had what turns out to be a rather rare 1984 Honda Elite 125 (rare because it was a 125 for only one year before they made it a 150, apparently w/o much of a performance gain). It’s been sitting in my dad’s garage for probably close to a decade now, but it apparently has title and ownership issues. Really I keep making this vow to stop wanting things I can’t afford and this would be one of them. Nose to the grindstone, pay those loans, get back to work. Yadda 2x.

In the comments to a news article describing how a man was beaten badly by two other men after stopping them from raping a woman we find a fierce debate about that to do w/the “trash” (poor and homeless people) who live and hang out downtown and on the south side of town. From that debate comes this paean to capitalism:

People Please!!! The porblem is not the skate park, it has nothing to do with the skate park. It has nothing to do with the kids. We are all good, caring & providing parents. The problem is the “trash” on the south side. Call me and think of me what you want, that is fine. I have a solution. If the population of the “do gooders” want to help the “trash” so much then let them. We should be able to have a deduction on our taxes for the welfare that is given out. Those who want to help, the “do gooders”, then can pay for it. They then could have this deduction taken from their money. The ones who care about and take care of the ones they love can keep their money and spend it on the ones they care for and love. We would really see the “do gooders” numbers decline! I am sick of hand outs! This is America, you get what you work for.

That self-righteous screed could also be characterized as vulgar selfishness, racism, and ignorance, but really aren’t those just natural byproducts of our wonderful capitalist society?

Contrast with this explanation of freeganism:

Freegans are people who employ alternative strategies for living based on limited participation in the conventional economy and minimal consumption of resources. Freegans embrace community, generosity, social concern, freedom, cooperation, and sharing in opposition to a society based on materialism, moral apathy, competition, conformity, and greed.

Hmm.