This, my friends, must be origin, cause, and prize for some sort of public defender contest. Perhaps it should be the new award for the overall best blog in the Rodneys. Perhaps it should be for some monumental feat and contest yet to be devised. Example: Public defender w/the most repeat customers in a year wins the trophy! I just had a great one: Guy gets felony DUI (or for some of you crazies out there, DWI — drunk driving, ok?). We move to suppress for lack of good reason to stop. (MT calls the level of evidence needed to make a traffic stop legal “particularized suspicion” — probable cause was just far too high a standard for the law and order folk in the wild wild west!) State concedes on the motion; stop was stinky, case dismissed! Not two weeks later, same dude is back in jail on a new felony domestic assault charge. I didn’t know whether to scream with rage or cry with sadness, so I did neither and instead just went about my business. That’s what we do. As one of my colleagues says constantly, “The hard work of freedom is never done!” That’s why we need a trophy!

Alrighty then. I’m thinking about it, so you should, too. Let me know if you come up w/anything. I just want a chance to win this or give it to someone.

Yes, I know I need therapy.

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?

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…??

As twitter followers and rss readers already know, I finally won a jury trial yesterday! Whoohoo! It was a two-witness, felony DUI trial that turned into a 2-day affair. The second day started w/closing arguments, then the jury began deliberating … and asking questions — seven of them. Jurors kept wanting more information but the judge kept telling them to rely on the evidence presented. Finally, after four hours, they came back w/the Not Guilty!

The clerk read the verdict: “We the jury, duly impaneled and sworn, do hereby find the defendant Not Guilty of driving under the influence of alcohol.”

It’s hard to think of other moments in life that could be better than those seconds right before the actual verdict, the verdict itself, and then the next second where you can actually exhale. It happened so fast I could barely believe it was real.

Obviously, this was terrific news for my client, but also for me. It was a huge relief because, if the verdict had been guilty, my client would have been subject to our 2-strikes law and a mandatory minimum 5-life in prison. (I kid you not.) So obviously it’s terrific that he no longer has that hanging over his head. But it’s also a huge relief for me personally because, well, basically it proves I can win at trial. I know it won’t happen every time, or even most of the time, but it’s just good to know that it can happen. And I know that there are many skills necessary to be a good public defender, trial isn’t the only measure of success by a long shot, etc. I know all that. But I also know that it feels really good to win. ;-)

Last week’s inbox brought the latest installment of the ABA Weekly Journal Newsletter. Inside are interesting tidbits about “big brother” facial recognition software from Micro$oft, some slightly interesting whining from biglaw associates about the gruntwork they no longer have to do¹, and a Blawg Directory that lists 200 “Criminal Justice” and 12 “Criminal Procedure” blogs.²

But the really interesting bit in the newsletter is the story of a law school grad on a campaign to talk people out of law school:

“I’m on a one-woman mission to talk people out of law school,” she tells Law Blog. “Lots of people go to law school as a default. They don’t know what else to do, like I did. It seems like a good idea. People say a law degree will always be worth something even if you don’t practice. But they don’t consider what that debt is going to look like after law school.

“It affects my life in every way. And the jobs that you think are going to be there won’t necessarily be there at all. Most people I know that are practicing attorneys don’t make the kind of money they think lawyers make. They’re making $40,000 a year, not $160,000.”

Ah yes, so true. I do love my job. I do. What I don’t love is the debt it took to get it and the feeling that I will never escape or retire that debt. Ugh. I don’t even like to think about it.

I haven’t paid up my ABA dues for this year but so far I continue to receive stuff from them as if I had paid. I don’t see much benefit from being a member of the ABA, but, speaking of debt, I do lament being unable to afford NACDL and National Lawyers’ Guild dues. Where do people find the money for these professional organizations? Grr…

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1. I like the one who had to “appear and bail out clients who managed to get arrested late at night.” I thought I could be disbarred for bailing out a client!↩
2. Who knew!? A couple of interesting finds from a quick browse include Simple Justice, a NY criminal defense blog w/a slightly academic focus, and the Cook County Public Defenders blog, to which I really should probably pay more attention. There’s also the No Montana Death Penalty Blog; it’s not very active, but good to know it’s there. Michigan Public Defender also looks promising (I love it when cops testilie!, but again, not very active. ↩

Big props to Scoplaw, who just won two jury trials in two days. Also congrats to MissTyrios, who just picked up her first outright win in a jury trial. The feeling is one I know not, but I do know it must be sweet!

Reading Scoplaw’s brief accounts of an office where 61 cases are set for trial (on the same day!?) and trials appear to be happening on a regular and daily basis — it really makes me question where I am and what I’m doing. My job is nothing like that. I might have 1-4 trials set on a single day, and none of them will go. That happens at least once each month, and in some months it happens once every week. But almost nothing goes to trial here; even in misdemeanor land, only the very rare case goes to trial. In felony land, our entire office of 9 felony attorneys will probably do less than two dozen trials the entire year. Meanwhile, our approximately 6 misdemeanor attorneys might do a few dozen jury trials and I have no clue how many bench trials. But of the thousands of cases that go through our office each year, that’s nothing. For a huge number of reasons, this just doesn’t seem to be a place where people go to trial.

And so while Scoplaw and others¹ spend their first years as PDs getting massive amounts² of trials under their belts (and building their confidence by collecting wins at least now and then), I’m spending my first years arguing felony probation violations, negotiating plea agreements, and honing my skills making sentencing arguments. Of course, these are vitally important skills, and these are services my clients require; however, who wants to be the pleading and sentencing attorney? And it’s one thing to become very good at these things over a career while at the same time learning to be a good trial lawyer. It’s another thing entirely if after a few years of practice you’re still no better at trials than when you started b/c you simply have done so few of them.

I know it’s not that simple. I’ve learned and continue to learn many many things in addition to how to negotiate plea agreements and make sentencing arguments. I’ve taken a handful of cases to the eve of trial, with all the preparation that entails, and each time I have learned a great deal about investigation, preparing cross and direct examinations, choosing, writing, and arguing jury instructions, writing motions in limine, etc. But there’s no substitute for actually going to trial if you ever hope to be good at it. And I do hope to be good at it. So what to do??

If you’re a PD and you’ve read this far, please tell me: How often do you go to trial in a year? Do you work mostly felony or misdemeanor cases? Inquiring minds want to know!

1. Audacity goes to trial (& wins) a lot, too. Frolics and Detours seemed to do a good number of trials (and win), but has not posted for months now. Ipse Dixit goes to trial, too. It goes on…. ↩
2. ”Massive amounts” might be an exaggeration; I really can’t tell, but it seems like they’re doing more trials than I am.↩

So what’s this “due process” thing all the kids and the Constitution are talking about? What is it? Notice and hearing? Isn’t that what we learned in law school? So, like, when the State wants to take away my freedom and throw me in a tiny concrete cell, I get notice of why and a hearing on that, right? And if the State says I can gain release on bond, I get notice of that and a hearing on it, right?

Not here folks! Here you can have a bond hearing in front of one judge who sets bond at X, then another judge can call the jail and raise your bond over the phone to X times 4! We don’t need no stinking due process!!

Some days I really really really love my job. Or, ok, I’ll be honest: Some days this job makes me so angry I feel like I’m going to spontaneously combust b/c the point of doing this job is to be in a position to do something about injustices like this and here I find I’m as helpless as any random dude on the street. Ignorance, bliss, where are you?

In other news, my mom got a scare this week when she started having excruciating and random pain on her scalp and a doctor suggested she might have trigeminal neuralgia. It’s a condition I’d never heard of before, but after a little research it’s clear that having it would be seriously not good. (See also here, here, A few days and another doctor visit later, and there’s reason to hope it’s just some random muscle spasms and no big deal. Keep your fingers crossed.

In the ongoing quest for the perfect data management solution, I’ve found nirvana in the 30-day free trial of Filemaker. It’s perfect! But at $300, I’m going to have to keep looking….

Case Management: Following up on yesterday’s post about some solution to help me track my work on my many cases, I’ve had a chance to search the Google for options and so far, not much. The best candidates I’ve found are Notes Organizer Deluxe and myBase, but I haven’t had a chance to actually try either out to see if it would really do what I’m looking for. Another option might be something like Filemaker, which might allow me to more or Iess design the database I need, rather than trying to find one that works for me. I certainly don’t need an entire case management package; our office is going to use Justware for that whether I like it or not. But, like I said, Justware is so awful (primarily because it’s so *slow*) that it won’t even come close to doing what I need. The search continues; suggestions welcome! What do you use?

Presidential Candidate: I admit, I’m just starting to pay more than passing attention to the campaign, but one thing is immediately clear: Barack Obama wins hands down when it comes to public speaking, both on radio and television interviews and in big speeches. The man is just awesome when it comes to stringing one sentence after another in a convincing, genuine, inspiring, and persuasive way. His speech last night compared to Hillary’s or McCain’s? Those two are not even in the same league as he is. For that reason alone I’m almost sold on Obama. After the last seven years of a pResident who could barely speak a single sentence properly, I’ll admit I’m swooning at the prospect of having a president like Obama who would make such a great impression every time he opens his mouth.

So one of the resolutions for the new year was to keep better track of what I’m doing. I don’t understand it, but I can’t escape my need to document. I should have been a journalist because I just want to record everything — images, sounds, words, and every little move I make. Ok not every move, but after a year of being a PD I’ve learned the value of having good notes, both to cover your ass if the need arises,¹ and so you can jump in and out of 100 different cases at will without losing a step on any one of them.

The problem is, I can’t figure out how to keep track of what I’m doing on all these cases in a meaningful and still manageable way. Our technology people decided to invest gazillions of dollars² in the latest and supposedly greatest version of Justware Defender. Huge mistake. It’s a worthless, bloated, glacially slow kitchen sink of features. Trying to do too much, it does absolutely nothing well.³

So here’s what I need: I need a very lightweight database that runs on Windows that I can customize to allow me to enter a string of notes all day long, associate those notes with names, and have each note tagged with a date and time. I need to be able to arrange the data in chronological order so if I want to go back and see everything I did on a given day, I can do that. Just as important, I need to be able to narrow my view to just one client so I can quickly and easily see all the notes I’ve taken/interactions I’ve had w/that client — also preferably in chronological order. Ideally I could also characterize the type of interaction I had with the client or related to the client’s case — was it a phone call, a visit at the jail, an office appointment, a court appearance, or what? That way, if I wanted to see all the dates/times I saw a client in jail, I could quickly focus in on that.

What I need is sort of like what you can do w/email. You can view your inbox by date messages were received, or group by sender. You can sort based on whether a message has an attachment. You can sort based on whether you replied. You can sort by message subject, etc. I need to be able to take case/client notes quickly and then save them in a way that allows me to use the data in more than one way later on.

So tell me, wise readers, does anything like this exist?

1. I did tell him about that 10-year mandatory minimum before he entered his guilty plea, didn’t I? Didn’t I? Yikes!↩
2. I exaggerate, but I know it was a lot and way way way too much, considering the total budget of the PD’s office↩
3. Oh wait, it’s built on Microsoft “.NET” technology. No wonder it sucks!↩