Horrifically stupefied…

Yesterday the U.S. Senate gave the President the power to torture, the power to detain anyone, any time, for no reason, forever. Those detained will not be able to challenge their imprisonment; no one may ever know they’re even in prison. Glenn Greenwald has the blow-by-blow on yesterday’s “debate” and vote [via TDQ]. As soon as Bush signs this into law, anyone, anytime, could just disappear forever into U.S. military custody. The world has seen these kinds of tactics before. I note in this connection that the recently declassified snippet from the National Intelligence Estimate reports that “leftist” groups are terror threats. Only the President (and any lackey’s to whom he designates the power) can say who is an “enemy combatant.” I’m sure you can do the math from there…. [tags]terrorism, torture, bush administration, fear, congress, conlaw[/tags]

Want to be a public defender in the wild wild west?

I have it on good authority that the state of Montana is still hiring Public Defenders all around the state. For you urban types, that includes at least one opening in the “big city” of Billings. Starting pay is around $43-44k/year and up, plus benefits (which are quite good). My understanding is that they need people asap.

After just two months I can definitely recommend the job. You might even get to work on cases like the latest big one in our office. [tags]montana, Billings, public defender[/tags]

Perspective on Liberty

Working all day with people who are incarcerated—who have no freedom—makes me feel incredibly lucky to be able to come home every night and do whatever I want with my time.

Dress to Defend

Skelly recently updated the look of his blog (nice) along with a short post about the proper attire for a public defender:

Every work day, I wear a tie (from my couturiers, Deseret Industries and Ross Dress for Less) with a white shirt, a blue shirt, or a gray shirt. I maybe suit up once or twice a week and go with a sportcoat the rest of the time. In my office, if you’re not going to court, t-shirts and flip-flops are okay, but shorts are verboten. I can’t pull off either look, so the tie stays on.

Sounds pretty much like what I’ve seen around the PD offices I’ve been in, although Montana is far more relaxed in the dress department than anywhere else I’ve seen. On my first day in court here I saw a defense lawyer conduct a hearing in court wearing (from head to toe): windblown, slightly mullet-esque hair; no tie; an open-collared, white, button-up, short-sleeved shirt; a wide, tooled-leather belt with a big shiny buckle; faded and worn wranglers; and scuffed cowboy boots. I was taken aback that someone would have the nerve to stand up and represent a client in open court in such attire, but the judge wasn’t even phased; it simply wasn’t an issue. Since then I have seen that this guy seems to be the exception; most men wear khakis, ties, and sportcoats, and their shoes are usually more or less dress shoes, although cowboy boots are not uncommon—especially for judges. I’ve since seen Mr. Casual Cowboy wearing at least a sportcoat with his outfit, and often he even has a tie. Less than half the male members of the defense bar seem to favor suits (khakis/sportcoat are the norm), but the prosecution seems to like the slightly dressier and traditional look of the matchy-match pants and coat.

On the subject of dress, JuvieJournal reminds us that defense attorneys make a statement with their clothes, whether they like it or not. I agree that it’s important to look professional, but a certain level of comfort is also a priority, don’t you think? [tags]style, fashion[/tags]

Missing: Wyoming State Public Defender

This just in:

Wyoming State Public Defender Ken Koski is missing, and a search is under way in the Bridger Wilderness near Pinedale after Koski failed to return from a solo backpacking trip Friday.

I’ve never met him but I’ve heard very good things. Here’s hoping he turns up ok, and soon.

UPDATE: Still no word but look for updates here.

There are ponies

Big news: I am employed!!

Remember my agonizing from just a couple of weeks ago? You know, when I thought there was no way I was going to get the job I wanted? Turns out it was all for nothing. I got the call late last week to set up the interview, interviewed earlier this week, and got the offer later the same day. I am now a Montana Public Defender!

It all happened so quickly I almost couldn’t believe it. I’ve been dreaming about this job since I learned of the Montana Public Defender Act last October, and I gambled big on the fact that I would get it. Then, just like that, I’m hired. Is it any wonder I still find it hard to believe?

The day I got back to Missoula for Bar/Bri classes Professor Paula Franzese was giving her last lecture on property and she told this joke about these two twins. One was very pessimistic and cynical, the other was hopelessly optimistic. The twins’ father wanted to try to balance them out, so for Christmas he shut them in their rooms with their presents. The father filled the pessimist’s room with wonderful toys and gadgets and all good things, and he filled the optimist’s room with horse manure. After a while he went to check on them. The pessimist was standing in his room, arms folded in defiance: “You can’t fool me, dad. I know life is never really like this.” (Or something like that.) The father found the optimist busy in his room full of manure, whistling a happy tune as he carefully put the manure into tidy piles. The father couldn’t believe it and asked his optimist, “Son, how can you remain so happy among all this crap?” And the optimist answered, “Well, with all this crap, there must be ponies coming!”

Franzese’s point was that studying for the bar is a bunch of crap, but she promised that there are ponies to come. Now that I have a job—and not just a job, but the job I really wanted, the one I gambled everything on—I know she’s right. There are ponies, people. There are definitely ponies. Now about all this crap in my room…. [tags]good news, billings, job search, montana[/tags]

Crimlaw around the web

Everybody’s talkin’ ’bout the SCOTUS decision to gut the knock and announce requirement for police searches of your home when they have a warrant. The case is Hudson v. Michigan (see summary here) and, although its precise holding appears to be unclear, there’s little doubt this will make cops much less concerned about knocking, announcing their presence, and waiting a reasonable time for you to open your door if they have a warrant to search your home. Instead, they’ll be much more likely to just shout “police” and break your door down. Professor Kerr has a lot more to say about the case today.

See what happens when you replace a centrist Sandra Day O’Connor with a conservative Samuel Alito?

In other (more positive) crimlaw reading, Dan Filler recently wrote a great explanation of the special value of public defenders. ((This is part of a series Filler is writing in response to a recent ABA study of the Alabama indigent defense system. See also: “Death Penalty Moratorium In Alabama? ABA Study Says Yes,” “Death In Alabama: The Problem of Indigent Defense,” and “The Problem of Jury Override in Capital Cases.”)) His piece is worth reading in its entirety, but to summarize, he argues that public defenders provide better indigent criminal defense than court-appointed or contract systems for four main reasons:

  1. Public defenders have more expertise because all they do is indigent criminal defense.
  2. Public defender offices raise the level of criminal defense practice throughout their jurisdictions by staying on top of new developments in the law and by modeling good advocacy practices for their private colleagues to copy and follow.
  3. Public defenders thereby raise expectations for other defense attorneys.
  4. Public defenders create and support a community where criminal defense is seen as virtuous and worthy of effort.

I think the most important of his arguments is that public defender offices concentrate expertise and raise the quality of the criminal defense bar as a whole. I’m certain that’s true, plus they provide a great training ground for making sure new criminal defenders will become good criminal defenders. Finally, one point he didn’t mention but which many states might find fairly compelling, is that public defender systems may end up being less expensive in dollar terms than competing systems. I’m not sure there’s good data on that either way, but I know many people are watching Montana to see if its conversion from ad-hoc, county-based indigent defense to a statewide system will produce any economies of scale in terms of cost.

Speaking of the Montana Public Defender system, the Great Falls Tribune is running another intro to the system in today’s edition. I’m sure short explanatory pieces like this are going to help convince the average Montanan that this change is going to be a good thing.

Finally, Mary Whisner, a law librarian at the University of Washington, recently pointed out a podcast about public defenders that looks like some good listening. One of these days… [tags]scotus, public defender, podcasts[/tags]

Job News: Ah-oh.

The last word on my quest to become a public defender in Montana was that my application was going to be forwarded to “the hiring official” on May 26th. That was two weeks ago last Friday and I still hadn’t heard anything, so I figured I’d check in to see what I could learn about the current state of the State Public Defender’s hiring process. What I learned was, um, not great.

The office received over 500 applications for all positions (including lawyers, investigators, paralegals, and administrative staff) so I’m competing w/a big pool, the majority of whom are almost certainly very experienced and already licensed to practice in MT. The hiring process hasn’t reached the Billings office yet and won’t until after July 1st, but right now the priorities in that office appear to be for an investigator and an administrative assistant. If the Billings office does need an attorney it will most likely hire someone with experience who is already licensed.
Continue reading…

Clinic Report: The mercy of the court

Last week I had what will probably be my last appearance in court as a clinic student attorney. We were scheduled for a trial but our case was pretty weak (and got weaker the more I got into it) so our big hope was that the gov’t would not be ready and the judge would dismiss for lack of prosecution. ((I know this varies by jurisdiction, but in D.C. it’s very common for judges to dismiss cases (misdemeanors especially) for lack of prosecution. I don’t have numbers, but I’d guess the number of misdemeanors that get “dwipped” is easily more than 20%.)) Unfortunately, the gov’t was ready so my client faced a choice: Go to trial with a weak case and hope the judge would see things his way, or plead to the information and hope the judge would be lenient in sentencing. ((This was an especially sad choice considering the fact that this trial was originally scheduled about a month ago but on that day my client was about an hour late to court. When he finally showed up the gov’t had to admit it wasn’t ready and we moved to dismiss. The judge said she would have dismissed if my client hadn’t been late, but she granted the gov’t a continuance to punish my client for being late. Yeah, that really sucked.))

The charge was PDP (possession of drug paraphernalia). The gov’t had an officer ready to testify that my client had made spontaneous statements along the lines of, a) “I am a drug user,” and b) “I am carrying a pipe.” And, of course, the officer was going to testify that my client consented to be searched. Plus, the gov’t had a “drug expert” ready to testify that the item seized was definitely a “stem” or crack pipe (this despite the fact that they had done no lab analysis to show it had any drug residue or anything). So it was going to come down to my client’s word against the word of a cop and a “drug expert.” Not so good.

In explaining this choice to my client I tried to make the trial option sound as good as I could. If we’d had another judge, I might have argued to him that he had nothing to lose by going to trial. However, this particular judge has a well-known reputation for rewarding defendants who plead guilty with much more lenient sentences than she gives to those who go to trial. I don’t think that’s fair, but I understand her desire to encourage “efficiency.” Whatever the case, I explained to my client that if we went to trial we had a small chance of winning, but more likely he’d be found guilty and then, odds were, he’d get at least a slightly harsher sentence than he would if he just admitted guilt.

So, not very surprisingly, the scheduled trial turned into a guilty plea. I cringed and had to bite my tongue as the prosecutor read her highly exaggerated version of what she would have proven had the case gone to trial. It’s hard not to want to interrupt to point out that all the prosecutor need say is that the government would have proven that my client was found in possession of drug paraphernalia and that all the rest was just bullshit to prejudice the judge against my client. Of course, unless the prosecutor just outright lies, objecting to the reading of the “information” will generally do you absolutely no good. So, instead, you just stand there and bite your tongue and wish you had just one more bit of evidence so that you could have gone to trial and proven that cocky prosecutor wrong.

After the plea itself, I gave a short (30-second) argument that my client was a great, upstanding guy who simply had no need for any of the services provided by supervised probation, and that, therefore, the most appropriate sentence would be a short period of unsupervised probation and/or a small fine. The gov’t countered w/great emphasis and drama that my client obviously had a serious drug problem and definitely needed regular drug testing and treatment; therefore he should get at least a year of supervised probation w/those conditions and any others the probation officer might deem appropriate.

So what did the judge do? She gave my client a $50 fine. That’s it. Done. My client and I were both thrilled!

Lessons learned: First, there are apparently times a guilty plea really is the best way to resolve a case. Second, if you hear from everyone who would know that a certain judge is known for this or that, pay attention—those people probably know what they’re talking about. Finally, judicial discretion is great—except when it’s not. [tags]clinic, pdp, guilty plea[/tags]

How can this be just?

Over at Arbitrary and Capricious Skelly recently pointed to a decision by U.S. District Judge Charles Pyle that said that counties in Arizona did not have to give prosecutors and court-appointed defense attorneys equal pay because prosecutors and defense attorneys are not “similarly situated.” From the news article on the decision:

Pyle noted the county’s attorneys argued that prosecutors and defense attorneys not only do different work, but the county has a “legitimate interest in favoring the public’s interest in vigorously prosecuting crime over the county’s duty to provide indigent criminal defense, and that paying prosecutors more than public defenders is rationally related to that interest.”

“Although the argument is an uncomfortable one,” Pyle concluded, it is a rational one.

Poor criminal defendants weren’t entitled to court-appointed attorneys prior to 1963, and even now they are entitled to get only “reasonably effective” representation, Pyle said. As a result, government entities “could legitimately conclude that its law enforcement obligations are of a greater priority than its obligations to provide ‘effective’ assistance of counsel to indigent public defendants.”

So there you have it, folks. A federal judge saying that it’s legal for a unit of government (albeit a small one) to ensure that the scales of justice will never balance in its criminal courtrooms. Of course, just because the court-appointed defense attorneys aren’t getting paid as much as their counterparts on the prosecution doesn’t mean they won’t work just as hard or harder and maybe even do a better job than the prosecution. But unequal — lower — pay definitely puts the defense at a disadvantage and it’s hard to see how that’s fair or just, or even “rational,” for that matter. What’s rational about stacking the deck toward locking people up? Isn’t it more rational to take a simple step like equal pay to increase the odds that only those who are truly guilty get punished?

On the bright side, blogger “ACS” (who blogs at Defending Those People) left the following series of great quotations from legal luminaries suggesting that the Honorable Judge Pyle is just plain wrong. Some or all of these may soon make it into the “today’s tagline” rotation here at the imbroglio.

“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”
— U.S. Supreme Court Justice Hugo Black, Griffin v. Illinois, 373 U.S. 12 (1964).

“If the motto ‘and justice for all’ becomes ‘and justice for those who can afford it’, we threaten the very underpinnings of our social contract.”
— Chief Justice Ronald George California Supreme Court, Annual “State of Judiciary” Speech, 2001

“Equal justice under law is not just a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our society . . . It is fundamental that justice should be the same, in substance and availability, without regard to economic status.”
— U.S. Supreme Court Justice Lewis Powell, Jr.

“Equality before the law in a true democracy is a matter of right. It cannot be a matter of charity or of favor or of grace or of discretion.”
— U.S. Supreme Court Justice Wiley Rutledge, Speech to American Bar Association, September 29, 1941

“The real practical blessing of our Bill of Rights is in its provision for fixed procedure securing a fair hearing by independent courts to each individual…But if the individual in seeking to protect himself is without money to avail himself of such procedure, the Constitution and the procedure made inviolable by it do not practically work for the equal benefit of all. Something must be devised by which everyone, however lowly and however poor, however unable by his means to employ a lawyer and pay court costs, shall be furnished the opportunity to set fixed machinery of justice going.”
— William Howard Taft Chief Justice, U.S. Supreme Court, Preface to Smith and Bradway, LEGAL AID WORK IN THE UNITED STATES (1926) [tags]public defender, prosecution, 3rd circuit, motivation, access to justice[/tags]