I hardly know what to say to this:

A Billings man driving home from work around 5 p.m. Monday spotted his car that had been stolen from him that morning. He chased the car until it stopped on the 2600 block of Fourth Avenue South and managed to hold one of the passengers at gunpoint until police arrived.

“He was actually going home from work at the time of the call,” Billings Police Sgt. Scott Conrad said. “It was a red Suburban. He chases it down and there’s four occupants in the vehicle. Three run. He catches one of the passengers, with one hand at gunpoint and one hand on the phone calling police dispatch.”

Really? And the guy who chased a car through town (at what speeds!?) then pulled a gun and threatened to shoot a teenager walks away w/o being charged with the crimes he just committed? Really? Because somehow, suddenly it’s legal to use deadly force in defense of property? What!? And out of 75 comments, only about 4 even express skepticism that this is a good idea? Really?

Do you feel safer thinking that anyone could point a gun at you and threaten to kill you with impunity? Is this the society we really want to live in?

Wow.

Maybe this says something about the public defender organization for which I work: It scheduled its annual “meeting” (at which attendance for all attorneys is “mandatory”) for the same dates as this year’s NLG Law for the People Convention in Seattle.

You think?

Congratulations and thank you to the state of New Mexico, which has become the 15th state to abolish the death penalty. Montana may be next.

Thanks to DNA exonerations the number of people against the death penalty continues to grow. The SCOTUS effectively suspended the death penalty in 1972, finding its application arbitrary and therefore cruel and unusual. State legislatures rewrote their laws to once again make the penalty possible. Now, those same legislatures are deciding no amount of tinkering is going to create a system they can live with. While it’s true that these legislatures could return someday in the future and reinstate the death penalty, the current trend is headed the other way and thank god for that.

The SCOTUS yesterday held in Vermont v. Brillon that delays caused by a public defender do not count against the state in determining whether a defendant’s right to a speedy trial has been violated. (Opinion in PDF.) More specifically, the Court held that PDs are not state actors in the criminal justice system and that court-appointed attorneys should not be treated any differently than private counsel when assessing speedy trial violations.

Sadly, the good Justices demonstrated today that they live in a fantasy land when it comes to the 6th Amendment right to counsel. Their ruling would make complete sense if we lived in a world where appointed counsel had the same resources (primarily time, but also money) as private counsel. Sadly, we don’t live in that world. Instead, we live in a world where the State (embodied by state and county governments throughout this nation) has again and again and again made deliberate choices to provide court-appointed counsel as cheaply and minimally as possible. Therefore, treating court-appointed counsel the same as private counsel for purposes of speedy trial analysis is like treating a city bus and a motorcycle the same for getting you from one side of the city to the other. Sure, both can do the job, but one has many more obligations and demands upon it than the other.

That’s a far from perfect analogy, but the point remains that Brillon leaves a gaping in hole in the 6th Amendment for those defendants who get appointed counsel who are overworked and who delay their cases because of the State’s refusal to provide them with the resources to do their jobs adequately.

One solution to this is for public defenders to simply refuse to take cases when they know they are overloaded. Of course, by the time you realize you’re overloaded, it’s already too late; you’ve already got too many cases to adequately meet all deadlines and truly represent your clients.

So what does an indigent defendant do when his counsel just shovels his case along from continuance to continuance because counsel hasn’t had a chance to prepare the case? An Ineffective Assistance of Counsel claim can get a defendant new counsel or a new trial, but it does nothing to guarantee a speedy trial.

From Skelly quoting The AJB’s and Me:

…(T)he State of Montana Office of Public Defender may change how they handle their conflict cases, resulting in a significant decrease in the availability of contract work for us and many of our friends. Basically that’s like getting advance notice that layoffs are coming at your work… We naively thought we had pretty recession proof work because in hard times more people need public defenders…

Rah-roh, Raggy! Really? Anyone else heard anything like this? I have many friends who pay lots of their bills on conflict/contract work from the MT public defender’s office and I haven’t heard a thing from them about this, but maybe the rumor just hasn’t reached them yet?

You know, I’ve never posted online a great deal about work (when I worked, that is). Here’s a reason why:

Talk about looking a gift horse in the mouth. One might think that Kathy Kelly, of the Capital Post-Conviction Project of Louisiana, jumped for joy upon discovering this blog post by Patrick Frey, a Los Angeles Deputy District Attorney who writes an off-the-clock blog, Patterico’s Pontifications. Not only did Frey build a case for witness misconduct and evidence tampering by two prosecution witnesses in a Louisiana murder trial that landed Kelly’s client, Jimmy Duncan, on death row, but he even conducted an interview with another prosecution expert witness. Given that a post like this one — coming from a prosecutor — could potentially provide grounds for appeal, you’d have expected Kelly to get on the phone with Frey ASAP. Kelly did indeed contact Frey — to threaten him with an ethics complaint!

It’s kind of a crazy story. Apparently the misunderstanding has since been resolved with an apology from the defense attorney. Still, it’s a good reminder of just why it’s often better to say nothing about your work than to risk saying the wrong thing.

Now, if only I could find work to say nothing about…

Last Thursday somewhere over 800 associates and staff were laid off from Biglaw. Scott Greenfield thinks it’s inevitable that some number of them will be hanging shingles as criminal defense lawyers. I definitely agree. And while it’s unlikely that a very large number of them will want to become public defenders, the fact that they will be flooding the legal markets can only mean fewer jobs for all of us. If nothing else, with more competition in private practice, fewer current PDs are going to decide now is a good time to leave their jobs and strike out on their own, which means fewer PD positions for people like me.

This is just not good. Not good at all.

Two items about what counts as “justice” in our society:

First, at the age of 13 Joe Sullivan was sentenced to life in prison for the crime of rape. He is now 33 and is asking the SCOTUS to find his sentence cruel and unusual so he will have a chance at parole.

Second, Paul Kennedy reminds us that we live in a society where actual innocence is no bar to execution.

You couldn’t make this stuff up…

Pro: Once the cops have satisfied the original purpose of a legitimate traffic stop, any further detention w/o additional PC or reasonable suspicion, is a new seizure and evidence gained by such illegal seizure should be suppressed.

Con: Lying to a cop about your age is a felony!? (See Jeremy’s footnote.)

So says a hatchet job article in the Boston Herald. The comments do a pretty good job of pointing out how misleading and inaccurate the article is. It’s sad when something like this can be called “news.”

But and so, what the heck has happened to Public Defender Stuff? It’s been silent for a month and while that’s pretty normal on this here blog, it’s very not normal for PD Stuff. Gideon is still posting regularly on his main blog, which is good, but… I miss PD Stuff. Anyone know what’s going on?