Category: Crimlaw

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.

It’s not a threat, it’s a misfortune cookie. Scary, isn’t it?

Here’s my favorite:

You have great insights about matters of little consequence.

So true.

I’ve spent much of the last three weeks writing motions about the right to a speedy trial, the State’s duty to prosecute its cases diligently (pre-indictment delay), and constitutionally infirm DUI convictions. In other words, I’ve spent a lot of time thinking about how incompetent prosecutors can be. That incompetence often means our clients languish in jail too long, but it also sometimes means our clients eventually get released w/out a conviction b/c the cases get dismissed. I think another misfortune cookie is apropos:

Someday this will all seem funny. Oh, not to you. Did you think we meant to you?

I wonder how that would go over at the jail….

I dreamt last night that I was in jail. I don’t know what for, but for a short time I was in the jail jumpsuit, shuffling through the hallways and cell blocks, sticking close to the walls with head down and never making eye contact so as to avoid sending any provocative messages that might get me into trouble. It was very uncomfortable.

I’ve been going to the local jail here 3-5 times a week for the last month. Maybe I need to find a way to cut down on my jail time? I mean, I really do want to be able to empathize with my clients, but isn’t this going a bit too far?

Hello from the Lubrect Experimental Forest of the University of Montana School of Forestry. ((How, exactly, it’s experimental, I’m not sure. I guess people do research here or something.)) I’m here for a week of “trial boot camp” and, for the most part, I’m loving every minute of it.

Ok, to be honest it seems a bit unfortunate that the week after I get sworn in and can finally start handling my own cases I have to leave for a week to do something else. I’ve learned that some of my fellow new public defenders who were also just sworn in last week have already done their first jury trials, so I’m clearly slacking and have some catching up to do.

On the other hand, this training is a great thing. I did a mock voir dire today ((“Voir dire” refers to “jury selection.” Why don’t lawyers and judges just say “jury selection” so that everyone would know what they’re talking about? Because lawyers and judges are pompous asses, that’s why. Ok, maybe it’s because “voir dire” is French for something like “to speak the truth,” and that kind of does describe what the whole exercise is supposed to be about, so, well, ok, maybe the fact that lawyers and judges are pompous asses is not the only reason they call it “voir dire”…)) and it was definitely a tremendous learning experience that I’m glad I got to have before I actually had to do it for real. Because I’ve never done a jury trial before, I’ve never had to select a jury (nor did I have to simulate the process in any class or clinic prior to now). What I’ve learned is this: It’s not easy. People say all kinds of crackheaded things in response to your questions and your job is to make split-second decisions about how best to use that crackheadedness to your advantage. Should you go for a strike-for-cause, or should you try to use the crazy to teach the jury something more valuable? And whichever you choose, what exactly should you say to achieve that result?

What you’ve heard is true: Jury selection is an art, not a science. Today made one thing very clear: I am not yet an artist in this medium.

So it’s all good. I’m told when I return from the wilderness I’ll have more clients than I can shake a stick at. If you don’t hear from me for a while, the silence will be the sound of me being overwhelmed.

It’s officially official: I’m a lawyer.

The final hurdle, the “swearing in,” was Wednesday at the state capital. I got to put my name in a big book w/all the other members of the state bar “association,” I met the clerk of the Supreme Court, and I got to stand up and sit down in the House Chambers when an assistant attorney general read off my name to “introduce” me to the Court. I also signed an oath and recited another. I’m thinking it would be good for someone to have given me copies of those oaths so I can be sure I remember everything I swore to do or not do, but hey, I guess they trust me to just be ethical or something.

I guess this means the honeymoon is over. For the last two months I’ve been working as a glorified intern—researching, brief-writing, and brainstorming for and with most of the other lawyers in my office. I’ve had the chance to be a small part of a murder trial, a DUI trial, and a domestic violence trial. I’ve visited clients in jail, interviewed witnesses, fielded phone calls from concerned family members, and helped write and file an appeal to the state supreme court. All of this has been experience has been terrific for learning local procedure and norms, and for getting to know everyone in my office. Although I started out a little frustrated (ok, very frustrated) at having a job but still basically being an intern, I’ve since grown to really appreciate this opportunity I’ve had to do all of the above w/out the pressure of a client load of my own.

And now it begins for real. I got my first client yesterday and will gradually be getting more clients in the next few weeks. It’s exciting, but a little surreal. That’s my file? My client? I’m responsible for this person’s defense? Me? Allrighty then! Let’s go!