I dreamed last night that a judge recessed court at the end of a day and then stood up and bragged about how few cases went to trial in his court. In my dream I stood up and told him that was nothing to brag about because it showed he was setting bonds far too high and coercing guilty pleas. In my dream we got into a shouting match about it and he’s the one that stormed from the room.

I can dream.

Not long ago something a little like this actually happened. My client and I won a motion to withdraw his guilty plea on a misdemeanor only to have the judge explicitly say “I’m going to allow him to withdraw his guilty plea but I’m going to set a high bond.” Needless to say, the bond was so high my client would have ended up spending at least two months in jail waiting for his trialââ�¬â��and this after he’d already served the sentence on his previous guilty plea and served only a few days jail time on the prior sentence. I explained this to the judge and requested a more reasonable bond that would account for these facts. The answer was absolutely not, but the judge would accept my client’s guilty plea if he didn’t want to go to jail. So, of course, what did my client do? He pled guilty again and walked out disgusted with the criminal justice system. So did I. [tags]bond, guilty pleas[/tags]

Blonde Justice (who, sadly, is leaving our PD ranks soon) has been hosting a great conversation about how many people who plead guilty really are and whether courts allow no-contest and Alford pleas. Some great stuff in there, not least this from an anonymous commenter who says he/she practices in St. Louis:

in my jurisdiction judges no not really enhance punishment if a defendant exercises his right to a jury trial.

Wouldn’t that be nice!? We’d have a helluva lot more trials if that were the case in my jurisdiction. It’s very discouraging how much of our criminal justice system ends up resting on mythical principles that turn out in practice to be basically empty platitudes , e.g., “right to trial by jury” and “presumption of innocence.” Here, if you “waste” a court’s time by exercising your right to trial when “everybody” knows you’re guilty, well, you better be ready to get double or triple or more punishment than you could have expected prior to the trial. Justice? Constitutional rights? What are those things?

In this jurisdiction judges commonly take nolo/no-contest pleas; it’s the prosecutors you have to convince. The prosecutors seem to decide on a case-by-case basis whether they’ll take such a plea, and it’s not clear to me what makes the difference. Sometimes I suspect it comes down to whether they think such a plea will make the difference between getting a conviction by plea and having to go to trial, but I really haven’t figured it out.

I really like my job. In fact, I love it. Where I do my job? Well…. It leaves much to be desired. So of course I’m interested in what the experience of being a public defender is like for people in other places, and especially what it’s like to be a newly graduated PD in other places. So I was fascinated to learn that about these three new hires in Victorville, CA. Apparently they start out with “an extensive four-week training course” and then they go to trial. That sounds pretty cool. The fact that the local paper profiles them prior to their first trials so that their clients are likely to know that their attorney is fresh off the pumpkin truck?¹ That’s not so cool, yet it is cool because it shows a community interest in public defenders that certainly seems absent here.

One of these new public defenders said that one reason she wanted to be a public defender is the quality of people she works with:

�I think that public defenders in general are great people to work with,� Dyerly said. �They have huge hearts.�

Sounds like a bright-eyed, idealistic, newly-graduated law student, doesn’t it?

How about it, folks? I know just about every public defender out there w/a blog is the kind of person Ms. Dyerly describes, but is the same true of the people you work with? Are public defenders big-hearted in general, or are they just as petty, selfish, and egomaniacal as any other attorney? Inquiring minds want to know…

1. This would be assuming that public defender clients read newspapers. Your instinct might be that the average person who can’t afford a lawyer probably also does not read the newspaper. That may be true so long as that average client is not in jail. If your clients are in jail, be prepared: They probably know more about local news (especially as it relates to criminal justice) than you do. ↩

Gee, it’s too bad I’m so busy. If I had some free time I could head up the road to the Testical Festival. When in Rome…

I was actually very near there on Thursday when I attended Sentence Review at the Montana State Prison. I was reminded that prisons are our society’s blatant expression of hopelessness. We send people to prison to throw them away, to give up on them, and by doing so we are saying that we have no hope for these people. You’ll hear proponents of incarceration talk about how prisoners have access to all kinds of rehabilitative programs to help them come out better than they went in, but you won’t hear much about stuff like that from the people who actually work in prisons or from the prisoners themselves. Those are the people that know how unlikely it is that prison is going to be good for anyoneââ�¬â��prisoner or the society who sent him there.

On the bright side, the sadness of prisons makes the work of public defenders all the more important . . . even if people do use their freedom to do nothing more than eat cow’s balls. . . .

Last week I mused about whether my daily uniform of suit and tie was a sign that I’ve sold out. The jury remains out on that question, but now the European Union has raised the question of whether such attire might be contributing to global warming.

I kid you not: A “senior commissioner” (what does that mean) at the EU has proposed that men stop wearing ties in the summer so that the EU can turn down the air conditioning in its offices. The article doesn’t say exactly, but I assume they would also stop wearing the jackets, which are frankly ridiculous in weather over about 75 degrees.

I don’t know about you, but I’m all for it! I understand the desire to make sure lawyers look professional in order to show respect and make a good impression on both court and client. However, why can’t a “professional” look be accomplished by some combination of clothes that is more comfortable and less ridiculous? Jackets in the fall and winter? Fine. Ties? Never. As much as some in the U.S. legal world oppose following the Europeans for any reason, I say we jump aboard this train and ride it all the way to shorts, sandals, and Hawaiian shirts in court. Tasteful and muted colors only, please.

Every morning when I button up my lightly starched dress shirt, cinch my belt on my pressed dress pants, and tie the tiny little laces on my shiny dress shoes, I’m reminded again of the 2/3 or more of my life during which I swore I would never, ever be the type of person who dressed up like this every day. I wonder if that nagging thought will ever go away.

For most of my life, I was convinced that suits and ties were the uniforms of capitalism and exploitation (although, of course, before college I just thought they were uncomfortable, uncool, and markers of the type of life I would never want to live). Now I put on a suit and tie nearly every day. Does that make me a tool? Have I sold out?

I like to think it’s possible that the answer is no. I may wear the uniform of oppression and exploitation, but as a public defender I fight against those forces. I like to think I’m sort of using the master’s tools to destroy the master’s house, so to speak.¹ Maybe that’s just rationalization.

Perhaps it’s good for public defenders to be constantly asking themselves, “Are we tools?” Because if we are tools, cogs in the system that grinds down our clients, we should stop what we’re doing, shouldn’t we?

Ah, nevermind. It’s Tuesday and me and my shiny shoes are late for work.

1. If anyone can provide background on that phrase ââ�¬â�� you have to use the master’s tools to destroy the master’s house ââ�¬â�� I would appreciate it. I’m pretty sure there’s a debate over whether that’s even possible or whether it’s just cover for those who have sold out…↩

Get this: Things are so bad for prosecutors in Chicago that they have to get partisans to write “commentaries” begging for more pay. Articles and editorials arguing for more pay are something you can find almost daily in newspapers around the country. The thing is, all of that text is focused on the problem of poor pay and resources for defense attorneys, not prosecutors. Clearly, Chicago has been doing something right!

Check this out from the “commentary”:

The typical prosecutor’s annual pay before then was about $63,000, compared with $73,000 for public defenders. Since then, prosecutors received a raise that would bring them closer to “parity” with the public defenders, but they still lag about 8 percent behind. This while the total number of active felony cases per attorney is 50 in the public defender’s office and 109 in the state’s attorney’s office.

Overworked and underpaid prosecutors and public defenders with reasonable salaries and caseloads? Yeah, that sounds like a little bit of paradise to me.

More tidbits from comments on the blog of Dennis Byrne, the partisan who wrote this “commentary” asking for more prosecutor pay:

• Here you can see the salaries in the Cook County Public Defender’s Office. Wow. I was clearly given the wrong information a year ago when I was told that PDs started in Chicago at $35k/year. It appears starting salaries are actually about $43k, which is the same as we get in Montana. According to a Chicago prosecutor, defender “salaries are consistently as much as 20-25% higher than their Stateââ�¬â�¢s Attorney counterparts with identical start dates. A study revealed that APDs are paid on average $9,100 more per year than ASAs with comparable experience & tenure. “
• Public defenders are apparently union members; prosecutors are not. Advantage: Union!
• Supposedly (and again, this is from the comments on David Byrne’s blog so who knows if it’s accurate), “the PDs Office receives double the amount for training that the SAO receives, $70,000 vs. $140,000 per year!”

The Cook County (Chicago) public defender’s office has recently laid off at least “15 of its least senior members,” including, apparently, the blogger at Second Guessing in the Second City. Ouch.

When I graduated from law school a year ago I had basically two choices for where to go � here in Montana, or to Chicago. It seems, despite other evidence to the contrary, I made the right decision.

Best of luck to all of those laid off. If you want a serious change of pace and scenery, I know there are still openings around Montana…

A few weeks ago I mentioned all the trials I had coming up soon and how I expected to have little time for blogging during that period. Correction: That was six freaking freaking weeks ago! Needless to say, I’ve been busy, but not in quite the ways I thought.

The biggest thing that’s happened is that I lost my first ever jury trial. My client was charged with two counts of misdemeanor assault for a fight in her workplace where she allegedly punched two coworkers. The prosecution had a string of five eyewitnesses and an investigator who all said the same thing: My client lost her temper and basically hit two people. We had cross examination and an admittedly thin theory of self-defense.

Along the way we ended up winning a small victory by convincing the judge that she should give the self-defense jury instruction despite the fact that we had not put on any witnesses. Because self-defense is an affirmative defense, we had a burden of proving it by putting on evidence; the prosecutor argued that meant we had to at least call a witness, and prior to trial, all the experienced lawyers I talked to basically agreed with the prosecutor. Of course, we argued that we did put on evidence via our cross-examnation of the prosecution witnesses. The judge went our way and my slim hope that we might have a chance remained alive.

Of course, that tiny victory was short-lived. I knew going in that we were unlikely to win, but it was still a huge disappointment to hear that double “guilty” at the end of a 13-hour day. (The trial was only about 8 hours from voir dire to verdict, but I started the day long before the trial began.)

The good thing is that I no longer have to wonder if I can get through a trial without throwing up on my shoes. I can. And I learned an incredible amount, all of which I will have to apply in a couple of weeks when I have my first felony trial. Although only one of the four trials I was contemplating six weeks ago actually happened, I know that this one coming up is definitely going, so I’ll keep you posted.

Meanwhile, congratulations to Frolics and Detours for her big win in her first felony trial, despite having a rotten judge.

I can’t believe it’s happening already. At 60-some felony cases I feel like I’m becoming the typical overworked, frazzled public defender. I’m a fireman, actually; I spend a day or two putting out one fire (preparing for a hearing or filing a motion or writing a brief that’s due today), only to get to work the next day to face another three fires I have to start hosing down. I never aspired to be a fireman. Never. Not even when I was six.

I’m thinking the best criminal defense attorney the typical client can have is:

1. Independently wealthy so getting paid is not an issue.
2. A dedicated, passionate, true-believer fighter, for sure.
3. In private practice so she can only take as many court-appointed cases (and she would do no other kind of cases, probably�money is no object, right?) as she can legitimately defend to the absolute limit.
4. Experienced. She needs to have been through the wringer and know the local system inside and out or else she’ll have trouble going to the mattresses for every single client, which is the whole point.

I am not that person. I will never be. I’m just trying to keep my head above water and fighting like mad to make sure my clients don’t get screwed too badly in the process.