Saturday, December 31, 2005


It Looks Like A White New Year’s

As opposed, that is, to the brown and sere Christmas we just had. Good color scheme, really, because that’s pretty much how it was this year. Let me hasten to add that nothing terrible happened, no one died, no serious accidents, no unexpected medical events, and no earth shaking emotional traumas in Mr. DA’s world this Yuletide. It was just kind of flat.

Warning -- Boring, non-legal, cathartic blather follows.

Don’t say I didn’t warn you. The following has nothing to do with criminal law, or law of any sort. It’s me, venting to you about a Christmas that was OK, by almost every objective measure you care to think about. Trust me, I am well aware that I have it damn’ good compared to probably 90% of the current human race, and God and I discuss that on a regular basis. The following is just me dealing with seasonal malaise.

Christmas Should Be Better Than OK

I received an email from my sister (who lives in another Baja Great White North State) with some Christmas snapshots of my fairly new great nephew and the following note:

Hope you had a good Christmas. Ours was okay but Christmas should be better than ok so next year we are doing things my way and whoever doesn't like it can go somewhere else. These people who insist on going to church drive me nuts. Either go to 4:00 p.m. mass, midnight mass or go Christmas morning, but don't go to 6:00 p.m. mass and expect to have a nice family celebration after because by that time it's too late. Mom is 80, cousin Emmy is 2 and your great nephew is 5 months, they all go to bed at 8:30 for crying out loud. Anyway major changes next year.

That’s her mother-in-law who’s 80. I don’t know why I bothered to add that, seeing as our mother would also be 80 if she were still alive. I suppose it’s because I just realized they were the same age. Anyway. . .

This note got me to thinking about my own vague, unfocused feeling of nothing special having happened this year. I’m pretty sure I can spot my sister’s complaint - she was pretty clear about what was bugging her.

She married into a family that resides on the other side of the Great Divide: They celebrate the festive, gift-giving, wassailing part of Christmas with the relatives on Christmas Eve. Well, she’s been married longer than I have, so mixed-marriages can work out. Her point being, why get together when half the participants are going to asleep or really needing to be asleep and the other half are going to be taking care of the first half?

Unbeknownst to me, until I gave it some thought, we had sort of the same thing, here.

My wife and I are in a separate living mode that complicates things a little bit, but not much seeing as we live about a mile down the main road from each other and the kids are all pretty much adults (quasi-young adults -- disgustingly young adults, if you ask me) and my step-children, to boot, so there are no real issues there. (By issues, I mean the nasty child support/visitation stuff which can really screw up Christmas -- mostly because we worked it all out ourselves, we’re both nice people, and because the kid’s “real” dad has been so uninvolved for so long, he doesn’t really enter the picture at all, either support or visitation-wise. Really uninvolved, like invisible. At one family gathering, a few years ago, my sister-in-law was on a soap box about some diet plan that was based on your ABO Rh blood type. When my wife pointed out that this could cause some real meal planning problems as she and I were O and the kids were B, her sister announced that she must be wrong because two type Os couldn’t have anything but type O offspring. When we all just stared at her, it still took her about 30 seconds to get it. ) But I digress yet again.

We celebrate all the holidays and birthdays and things at the family homestead where she and the boys (when they are around) live. Our daughter has decamped, temporarily, to an Eastern seaboard state while her significant other goes to school. It’s an all day drive for them to get back here, so the timing depends on work and school schedules and, at this time of the year, weather.

Because her SO’s family live about 120 miles north of here, as does “real” dad, the plan was to spend Christmas Eve with us, drive up to his folks that evening,  spend Christmas  with them, the 26th with “real” dad and his new family, and return here on the 27th to spend a day with us, recharging for the trip home.

Now, I have to note that this is a major change for our family. My wife and I both come from families that make Christmas morning the big, nuclear family event with Christmas afternoon and evening devoted to the extended family (over-the-river-and-through-the-woods stuff.) Christmas Eve is for last minute gift wrapping, flying visits to and from friends and neighbors, and Midnight Mass. Christmas day is for opening gifts and eating huge meals. And that is how we have celebrated right along, for 15 years. Until this year.

I was OK with the change in plans. My wife and I are grown ups, and the kids are pretty much on their way, so it’s not like they still expect to put out milk and cookies for Santa and we hide all the presents until they’ve gone to bed Christmas Eve. I can get my head around a Christmas Eve Christmas once in a while. But I kind of expect it to be during the real eve portion of the day. I’m not sure when our 2005 schedule changed, but it did.

I was out Christmas Eve morning. No, not shopping. I was doing in-custody warrants at the County Jail. (See previous post) and spent a couple of hours cooling my heels while the on-call secretary and the County IT boffins battled with the new network printer installation. We finally got the warrants done and I decided to hit the local breakfast buffet for a pre-Holiday gorge on pork products, eggs and hash browns. I was happily contemplating the addition of Polish sausage to said buffet when my cell phone went off. It was my wife with the change of plans.

Number two son’s girlfriend had shown up with the Sun and advised that she had to be home (a 30 minute or so drive) by noon for some family thing that she couldn’t avoid and would last all day so she couldn’t join us for dinner. Sigh. So we were going to do the gift exchange now rather than after dinner. Sigh. So I cut short my breakfast and went home and cleaned up (hanging around the Sheriff’s squad room, swilling bad coffee doesn’t really demand a lot in terms of shaving and stuff) and retrieved the kid’s gift envelopes (they are at the easy to shop for age - just find the crispest bills the bank has) and headed out.

I got there just about the time Daughter managed to pry potential future son-in-law out of bed. When they arrived the night before, the poor guy looked like a zombie. Between school and work and Daughter’s ideas of packing and panning, he’d been going about 20 hours on one two hour nap. He’d tried valiantly to stay awake and be sociable until my wife just about ordered number one son and his buddy to carry him upstairs and put him to bed. Eleven hours later, he still didn’t look fully human, but closer. Much closer.

So, after a pot of coffee, some sticky buns and like stuff, I fired up the camcorder, made sure there were new batteries in the still camera, and we did the gift thing. At 11:00 a.m. on December 24th. By 1:00 p.m. the kids were off doing last minute shopping for SO’s folks, girlfriend was back in the bosom of her family, Wife was watching the Food Network and I was back at my place, correcting online class papers so my students would have their grades on time.

Dinner was fine, glazed spiral cut ham and the usual sides. The boys were less gross than usual, inspired in large part by the excellent manners of Daughter’s SO, a guy they both like and who is just enough older to exert the maximum “good example” influence on them. When it was over, Daughter and SO engaged in the usual Christmas Eve gift wrapping and such. The rest of us wandered about aimlessly, watching TV and eating way too many Christmas cookies. I was home and in bed by 11:00 p.m.

Christmas day, nothing. Daughter, SO and number one son headed North to see SO’s folks and “real” dad. Number two son was scheduled to spend the day with girlfriend and her family (pretty serious stuff going on there) and I spent the day watching the Battlestar Galectica Season 2.0 DVDs, Country Western Christmas videos, and talking to my wife on the phone. I did manage to go out for a loaf of bread from one of the never-close convenience stores, but that was about it. Oh, and it rained. Not freezing, thank God, but rain on Christmas. Maybe there’s something to this global warming stuff, after all.

A brown and sere Christmas, indeed.

I did warn you.

Thursday, December 29, 2005

It's, It's -- It's ALIVE!

Well, Here I Am, Again

Wow! It’s been a long damn’ time since I added anything to this effort. Way too long, I’m afraid. What was it John Lennon said, “Life is what happens when you have other plans.” No kidding.

Things have been a little, hummm, hectic around the office the last few months. As I may have noted in some past post or other, we rely on law student interns to eke out staff, both trial staff and me, the appeals department. We usually have a couple all the time, either academic (i.e. they pay their law school for the privilege of working for us and they get credit for the experience), or regular part-time employee interns (i.e. we pay them and they work their butts off). Well, welcome to the wonderful world of County budget games!

Like most government entities in my State, the County runs on a fiscal year that tracks the actual calendar year. Used to not, but a few decades back, the State said this fiscal year starting in July (or October) is silly and we’re not going to do it any more. So. . . from about June to November the County board puts their pointy little heads together with the County Controller and the County Administrator and start to hammer out the budget for the following year. This year, no big surprise to anyone who was paying attention, they discovered there was going to be about a 1.4 million shortfall for 2006. Even better, our Controller came from the private sector and is pretty much clueless about how government agencies work.

I know a fair number of the readers of this enterprise work for government or quasi-government entities, so you know what I’m talking about. You go into December with Department budgets that look pretty healthy, heck, you may even have some surpluses! Then everyone starts submitting accounts payable items immediately, on receipt of the invoice. Something that may 30 or more days the rest of the year gets submitted Right Now! Sometimes on the same day.

Why, you may ask, those of you who work in rational worlds. Well, because in my world, about a week into January, the County comes along and cleans out all the Department accounts (i.e. sets their balances to zero and transfers the amounts to the County General Fund) in preparation for setting up the next year’s (now the current year’s) accounts. That is to say, if there is still money in a Department’s budget at the end of the year, the Department will never see that money again. In government circles this is fondly known as the ‘use it or lose it’ rule. This has been true from my first unit assignment as an eager young 2LT in 1972, through my days with the Army Reserve, to my time with our intermediate appellate court, right down to last year with the County. There is nothing to be gained by giving back unused funds. Because in the next budget season, people are going to remember that you didn’t need all that money you asked for.

But I digress. We got into a budget bind for this year (2005) when the County decided we couldn’t use the funds tagged in the line item for ‘contract services” (e. g. a special APA to fill in for someone on family leave) to pay interns in the months of November and December. After all, our interns are, technically, contractors if you squint at the IRS code real head and hold your head just so. . .

Actually, this is kind of a big issue, masquerading as a little one. There is a fairly substantial argument (in this State, anyway) that a County Board (legislative branch) imposing a rigid line item budget on, for example, the Prosecuting Attorney (executive branch) is a clear violation of the separation of powers. In plain words, the Board can tell us how much money we get (and some specific items that are clearly spelled out in the statutes) but not how to spend it. Alas, the boss didn’t think this was the issue to draw the line in the sand over. He’s pretty sure one is going to come along, but this just wasn’t it.

So, we have one intern doing what two or three were doing through September. Add to this a change in staff that returned the termination of parental rights appeals to my desk for the foreseeable future, and I’ve been writing just about non-stop since I last posted.

I know I have mentioned that the kind of writing appellate attorneys do is exhausting work. Finicky procedural rules, everything is on deadline, in many cases the issues are boring but still need to be given the full treatment -- for the thousandth time! Yes, you can recycle your gems of advocacy for some of the recurring issues. But many appellate issues are issues of fact. That is, the law is pretty much settled. But how it is applied depends on the facts of the case. I can cut and paste the law on consent searches in about 30 seconds, but applying that law to the facts of the case in front of me, and reducing it all to a clear statement that fairly address the questions raised may take several hours.

So that’s what I’ve been doing. Along with all the other stuff I get to do as a APA, like on call warrant duty (due to a freak alignment of the regular on call schedule and the Holiday on call schedule, the APA who follows me in our more of less alphabetically duty roster and I have pretty much been the only people on call for the month of December. I had a regular week, she had a regular week, then I had Christmas week, now she has New Year’s week -- and the fun thing about on call duty is it just isn’t the weekend warrants, it’s all the in custody warrants for the week. When you are arrested, you have a right to be presented to a magistrate for, among other things, a bond determination, within 48 hours. This means some assistant prosecutor has to review a warrant request before a police officer and swear out the warrant and present it, and you, to the magistrate. Lots of fun.

The upshot of all this fun is that I just put the whole appeals thing (except for questions, court appearances, and phone calls from opposing counsel) on hold from the 23rd to the 3rd. Amazingly enough, my batteries have been recharged to the extent I actually installed the Blogger toolbar in Word (this is a big deal, ‘cause I really don’t like Word) and am using it to prepare this post. Now it’s time to see if I can publish from here.

More over the next few days.

Wednesday, October 05, 2005

Word Verification for Comments


Over the last couple of weeks I've started seeing comment spam so I've turned on the word verification for comments feature. I apologize to the overwhelming majority of posters (and you both know who you are) who post real comments.

To the cretins who use this very irritating from of spam. . .

You know where you can go.

Tuesday, September 06, 2005

The Working Poor

More Perspective On The Cost Of Things

This article, answering the question of why so many people didn't leave New Orleans when it became obvious that the potential for a catastrophic landfall by Katrina was extremely high, illustrates the points some of us have been making about the realities of the true cost of legal representation.

Living Paycheck To Paycheck Made Leaving Impossible

From the Washington Post, Sunday, September 4, 2005.

Then there's is this, from CNN's Drew Griffin, on the ground in New Orleans

Rescue Ticket

Scroll down to the headline. It's the second story on the page.    

This line is a test of Blogger for Word.

Tuesday, August 30, 2005

Still Here After All These Days

My God! Won't It Ever Slow Down?

Yes, I'm still alive, and functioning. More or less. Work, these last few weeks, has given new meaning to the expression "rode hard and put up wet." Nothing spectacular, nothing earthshaking. Just one damn' thing after another. And when I get home, the online class is waiting for me. By the time I get finished with that, I'm almost too tired to watch TV, let alone do creative writing. That, and high school football season has started up.

My youngest (17 years old - I'm not old enough to have a 17 year old kid. Am I? Hell, number one kid is 21, half-way to 22!) is a varsity starter at offensive guard - we like to call him a Right guard because, well, that's where he plays - and his mom and I are so proud of him it almost hurts. Of course, attendance at all games is a must. Have you seen "Friday Night Lights"? Well, our town is not quite as football crazy as the folks on Odessa, TX, but "not quite" is still pretty damn' crazy. Anyway, the parent things and the first game have devoured what little spare time I had, so postings have been a bit light around here.

More later. Maybe this holiday weekend will have a few spare hours.

Tuesday, July 26, 2005

Nebraska man charged for sex with wife, 13

Now here's a disturbing (on many levels) story.

Nebraska man charged for sex with wife, 13 - Crime & Punishment -

This really gets to the heart of what do we mean by consent in the context of the statutory rape laws. It also engenders some disturbing thoughts about arranged marriages and white slavery, when you think about what's going on here.

You can all probably figure out how I voted. How about you? And why?

UPDATE: I see some of the bigger name blogs have picked up on this story- finally. Check out Professor Althouse's entry and the comments. Click Here.

And People Wonder Why We Don't Use Our Real Names

One of the hazards of freedom of speech, your boss may not like what you have to say.

Fashion Editor Fired Over Blog

Wednesday, July 20, 2005

Requiescat In Pace James "Scotty" Doohan

March 3, 1920 - July 20, 2005
The 36th Anniversary of Apollo XI Moon Landing

Sunday, June 19, 2005

Fathers Day 2005

Why Dad's Are Important

Just got around to reading James Lileks Backfence column for today and I had to share a bit of it with whoever stops in here today. For those of you who don't know, James Lileks is, among other things, a columnist for the Minneapolis Star-Tribune and a hard core blogger - one of the sort who was doing this before it had a cute name. You can find his blog-like activity at and his Strib columns at
(annoying free registration may be required - it depends on what mood the server is in on any given day). Anyway, it's Fathers Day and the topic of his column is what kind of dad did you have. Lileks is just a bit younger than I am, in fact, he's just about my kid sister's age, so I'm betting we had the same kind of dad. This one. . . .

"GGs, or Greatest Generation Dads. Fought in the Big One, never mentioned it, worked hard, could bench-press a Rottweiler while
staring it down, able to fix a car with a wrench and two paper clips. The
voice of authority, but not for authority's sake. Disinclined to handle the
mushy stuff. Not flummoxed by it, but it's hard to really connect with your kid's tears over a broken 45 rpm record when your baseline for human tragedy is, oh, Anzio. [Or the Normandy Hedgerows. Or the Ardennes.] Some GG s indulged their kids, because they wanted to give them what they never had; some were strict, because once it came time to go toe-to-toe with the Rooskies, we would need strong men. So drop and give me fifty, mister. But Dad, it's 3 a.m.! Well, it's morning where Ivan lives, son. Drop!"

Except for the very last part, that's my dad to a T. Go and read the whole thing at: See if your dad's there.

Thursday, June 16, 2005

Yes, My Lovelies, I Have Not Forgotten You

The Red Queen's Race Is On. . .

in my office. Summer is here and two things happen -- people think they are entitled to actually use that vacation time they've accumulated, and the NCDA and our state association start putting on loooong training sessions. In fairness to the state, one of the sessions is for new assistants who were hired off the mid-winter bar exam and the current crop of summer interns. And I suppose in fairness to the National College I have to observe that many of their instructors, who are mostly practicing prosecutors, use vacation time to teach. So I haven't forgotten our boy Danny and his defense counsel dilemma. I've just been running as hard as I can to stay in one place. Or maybe to stay ahead of my own, personal version of the giant boulder from the opening scenes of "Indiana Jones And The Raiders Of the Lost Ark."

More as I can.

Monday, June 06, 2005

So, What's A Lawyer Cost, Anyway?

OK. What does all that stuff down there, in the last post, mean? Nothing, until we get a handle on what it costs to hire a private attorney. If you look at most lawyers' websites, you'll see a lot of lawyer-speak on the subject of fees. Except this site, where the talk is pretty straight forward, and this site, which is a little more direct than most.


Let's look at the expertlaw numbers. These seem in the ballpark to me. Maybe a little high for some, a bit low for others, but pretty close to what I'd expect. And let's say our hypothetical defendant, Danny Gettinby, is charged with a moderately serious felony - let's call it Assault-injury resulting. It's a five year felony and Danny's had a couple of run ins with the system before. A juvenile disposition for grand larceny, a felony if he had been an adult, and an adult conviction for aggravated battery, a serious misdemeanor. So Danny's looking at some serious jail time, if not a prison sentence, depending on how serious the injuries were and whether there are any extenuating or mitigating factors.

Now, just to stir the pot a bit, let's give Danny a classic defense - some other dude did it! Danny admits to being there, and arguing with the victim (let's call him Vinny) but claims some unknown individual sucker punched Vinny from the back and gave him a kick or two for good measure when he was down. Then ran off. Danny was bending over Vinny, attempting to determine the extent of his injuries when the security guard, Sam Secure, came running up. Covered with Vinny's blood, Danny didn't look all that innocent.

To make matters even more interesting, he kept telling the police officers who responded to Sam's call that "I didn't want anything like that to happen." and "Man, I never wanted him hurt that bad." This despite the officers' repeated instructions to shut up and save it for the detective who would be assigned. Danny finally did shut up and refused to talk to the detective. Vinny doesn't remember anything much after he arrived at the club, (of course a bar type establishment is involved) several hours earlier, until he came to with Danny shacking him and saying "I'm sorry man, I'm sorry." The only other witness immediately present was Danny's girlfriend, Gina Goodgirl, who backs up Danny's version of events.

Now, to stir the pot a bit more - Danny is black, Gina is white, Vinny is white, and the other dude is black. Sam is white and the arresting officers are one black and one Hispanic. The argument with Vinny was over Gina and her kids. Gina used to date Vinny and has two kids by him. Both children live with Danny and Gina. Up to this point relations between Vinny, Danny, and Gina have been, if not exactly friendly, cordial and civilized. The argument started in the club (Club Chaos, a dance/jazz club) when Vinny became irate over Gina's refusal to change his visitation weekend because she and Danny were taking the kids to visit Danny's grandparents up-state. The argument became sufficiently heated that Bernard, the bartender/bouncer, asked them to "take it outside." They did, retiring to the mostly vacant parking lot. Bernard seems to recall one or two other patrons leaving at the same time, but he's not sure. During the argument in the parking lot, Vinny may have used a racial epithet in addition to hurling a slur or two on Gina's moral character. Danny says he doesn't remember any thing like that, but they were yelling "pretty good" at the time. Gina was crying and yelling at both of them and doesn't know who said what. Sam is positive he heard the N-word from around the corner as he made his rounds (that's what started him toward the area) but can't say who said it. By the time he got around the corner, Vinny was down and Danny was holding him by his shirt front, crying and saying something.

The local police routinely seek alcohol tests from all the participants in this sort of incident. In this case, Vinny's came from the hospital, with his consent, and showed a body alcohol content of .07%. Danny and Gina were given breath tests at the station. Danny's was a .06 and Gina's was a 0.00.

Because of the circumstances, the prosecutor has offered to plead Danny to an attempt, which reduces the charge to a relatively low grade felony with a maximum sentence of two years in a state prison or one year in the county jail. This essentially means there is no possibility of prison and a very good possibility of no more than three months county jail time. Danny insists he didn't do it and doesn't want to plead. So, how much money is this going to cost Danny and Gina if they want to hire a private attorney rather than take the PD or appointed counsel?

Looking at it dispassionately, if Danny wants to go to trial, he probably should not waive the probable cause hearing (who knows, he might get lucky and the magistrate will ash can the case) and will probably need two or three pre-trial motions to try and get rid of his statements and limit the testimony of Bernard and any other witnesses from the club. Figure pre-trial practice, including a half-day on the PC hearing (not that it will take that long, but's that how long you'll have to be in court, waiting) and another half-day (if you're lucky) on the motions, the time to prepare the motions, the time spent talking to the prosecutor, the time spent reading police reports and witness statements, client hand holding at $125 an hour, you're likely looking at $1,000-$1,500 just to get to the day before trial. And that's if you're happy with the police investigation and the local courts' dockets aren't too messy. As for the trial itself - many attorneys cap their daily fees at some set multiple of their hourly rate. Let's assume Danny's prospective attorneys all cap trial days at $600 a day or any portion thereof. This is probably a three day trial from voir dire to the return of the jury's verdict. $1,800 bucks there. Let's call the attorney fees $3,000 at this point. That'll probably cover any post trial stuff if there is a conviction. Now, let's take a wild guess at filing fees (if you retain counsel, most places require the same fees for court filings as in a civil case), transcripts of any hearings, especially the PC hearing, copying costs, paralegal costs. . . heck, let's just call it another $1,000 and say $4,000 as a ballpark.

Hang on - Danny wants to take a polygraph, and so does Gina. Sigh. Never, never, never let a client take a police polygraph unless you've had a reliable private examiner run them first. Just guessing here, based on local experience, but a reliable, retied police polygraph examiner usually charges $500 a pop. You may get a deal on a two-fer, if you can do both the same day, but let's not count on it. We're up to $5,000 without really trying. So that's the retainer Danny has to come up with. $5,000. Can he do it?

Let's add some facts. Danny works two jobs. He's a $10/hr machine operator at a local plastics plant. Forty hours a week, a little overtime every now and then, but not a lot. He also works weekends driving for a taxi/delivery/messenger service. That gets him an average payout of about $100 a week, all legit. He makes a few bucks on tips that he doesn't report, but not enough to matter. So he grosses $500 a week, on average, over the course of the year. That's $26,000 a year. He's in a low tax-bracket, just guessing here, but he probably gets to keep about 75% of the gross - $19,500 a year. Gina works part-time (two kids to care for, remember) at a local fast food joint where she makes $7/hr as a shift leader/cook. She averages 20 hours a week and grosses $140. She nets about $120 (two dependents, remember. Single head of household, too.) So Gina's bringing in a net of $6,240 a year. The two of them net about $25,000 a year. Essentially, Gina's pay offsets Danny's tax obligation. Sigh.

Based on my area of the world, and assuming Danny and Gina have middle-class aspirations, living expenses for a family of four are going to run about $500/month for rent and utilities and another $400 to $500 a month for food. That's half their take home and we haven't even touched on transportation and insurance and clothes and kid (Vinny pays nominal child support) costs and on and on and on. So no, in my opinion Danny and Gina do not have $5,000 to give an attorney. $5,000 is the amount of money this couple would scrimp and save and sacrifice to accumulate as a down payment on a house. Or to buy a decent used car.

Most criminal defense attorneys are going to ask for a retainer that will cover their estimated cost of doing whatever it is the client wants to do. After all, the three rules of private practice criminal defense work are 1) get the money up front. 2) get the money up front. And, 3) get the money up front. Yes, there are attorneys who will set up payment plans and the like, but you can't count on that.

This is where the idea that the State should shoulder some of the burden of defending people charged with criminal offenses comes from.

Saturday, May 28, 2005

Back To Those Comments

Gideon comments on how eligibility for state paid counsel is determined and suggests the federalgovernment's poverty level as a starting point. He said:

"It seems to me that the current level ($9,570) is woefully inadequate, given debt levels, soperhaps that should be taken into consideration.

"To decide the actual level should perhaps be the job of individual legislatures, taking into accountcost of living in their respective states."

Which is very perceptive of him. In fact, if you look at that Ohio Public Defender manual I linkedto a couple of post ago, on page 2 (numbered page 2, page 5 as displayed in Acrobat Reader) atsub-head B-1 you will find this language:

"An applicant's indigency or eligibility for a reimbursement, recoupment, contribution,or partial payment program shall be determined by the courts. [. . . .] [T]he court shallrequire the applicant to complete a financial disclosure form, and shall follow rulespromulgated by the Ohio Public Defender Commission pursuant to section120.03(b)(1) of the Ohio Revised Code.

Section 120.03(b)(1) of the Ohio Revised Code provides:

"Standards of indigency and minimum qualifications for legal representation by a public defenderor appointed counsel. In establishing standards of indigency and determining who is eligible forlegal representation by a public defender or appointed counsel, the commission shall consider anindigent person to be an individual who at the time his need is determined is unable to provide forthe payment of an attorney and all other necessary expenses of representation. Release on bailshall not prevent a person from being determined to be indigent."

Still kind of vague, if you ask me. Ah, ha! If we look in the Ohio Administrative Code section onthe Ohio Public Defender, we find (at last) some detailed guidelines on how we are supposed touse/evaluate the information from that financial disclosure form. Section 120-1-03 of the Codeprovides, in sub-section (B):

(B) Income standards.

(1) Presumptive eligibility. Without other substantial assets, individuals whose income is notgreater than 125 per cent of the current poverty threshold established by the United States officeof management and budget may be presumed to require the appointment of counsel. An individualwhose income is between 125 percent and 187.5 per cent of the federal poverty guidelines maystill be presumed to require the appointment of counsel if any of the following apply:

(a) Applicant's household income, minus allowable expenses, yields no more than 125per cent of the federal poverty income guidelines.

(b) Allowable expenses are the cost of medical care, childcare, transportation, andother costs required for work, or the cost associated with the infirmity of a resident familymember incurred during the preceding twelve months and child support actually paid fromhousehold income.

(c) The applicant has liabilities and or expenses, including unpaid taxes, the total ofwhich exceeds the applicant's income.

(2) Presumptive ineligibility. Applicants having liquid assets that exceed one thousand dollarsfor misdemeanor cases and five thousand dollars in felony cases shall be presumed to be notindigent. For purposes of this rule, "liquid assets" are defined as those resources that are in cashor payable upon demand. The most common types of liquid assets are cash on hand, savingsaccounts, checking accounts, trusts, stocks, and mortgages. Applicants with an income over187.5 per cent of the federal poverty level shall be deemed not indigent.

(3) The poverty income thresholds (125 per cent-187.5 per cent) are updated annually by theUnited States office of management and budget and may be found in the federal register. Theseincome thresholds are based on gross income. They will be available, on request, from the Ohiopublic defender commission.

(4) Applicants being detained in a state institution shall have only their own income and assetsconsidered, as they have no "household" for purposes of this rule.

Now notice something here. The figures used are the OMB's poverty threshold figures, despitethe sloppy drafting where later reference is repeatedly made to the federal guidelines, which arenot the same thing at all. The poverty guidelines are statical averages of the threshold numbersissued by the Department of HHS.. "In August 1969, the U.S. Bureau of the Budget (thepredecessor of the U.S. Office of Management and Budget) designated the Census Bureaupoverty thresholds as the federal government''s official statistical definition of poverty."
So what's the difference? See this site for all the details, including a nice chart. In short, the thresholds are the original, statisticalmeasure of poverty in the US, developed by the Census Bureau, based on the work of MollieOrshansky, an economist with the Social Security Administration in the mid to late 1950's. The essentialdifference is that the thresholds are based on a more detailed calculation of the actual cost ofkeeping body and soul together with as little impact on the health and fitness of the individuals aspossible. They also are adjusted based on the age of the individuals, in broad, general terms.

For more than you ever wanted to know about how the poverty thresholds were first calculatedsee this article.

So what's the number? What does this mean in real world numbers? The following is based on the2004 figures for both the Guidelines and the Thresholds:

2004 Poverty Guidelines Family of Four = $18,850 (lower 48 States)
2004 Poverty Threshold Family of Four:
four adults = $19,484
three adults - one child under 18 = $19,803
two adults, two children under 18 = $19,157
one adult - three children under 18 = $19,223

The difference is not really all that significant. Look at that family of four with two kids under 18.The basic threshold figure is $19,157 (set aside for the moment the question whether this isbefore or after taxes) a range of 125% to 187.5% of that number is $23, 946 to $35, 919. Usingthe guidelines figure of $18, 850 the range is $23, 563 to $35,344.

Is this reasonable? And why do we have the multipliers? 125%, 187.5% -- what's that all about?Let's look at that two adults, two kids under 18 number. $19,157. That's not a lot of money for a family of four to live on. But consider - if both the adults are working full-time, at minimum wage jobs (currently that's $5.15/hr) and put in a full 2080 hours a year, their gross income will be$21,242. Whoa! If we only used the threshold or guidelines numbers, these folks wouldn't qualifyfor appointed counsel. And that's just plain silly. But when we apply the 125% multiplier we find they do qualify. So if Dad has a couple of beers after work on Friday, and rolls through a stop sign on his way home, he'll be eligible for appointed counsel to fight the drunk driving charge Officer Friendly dropped on him.

So what's with that 187.5% multipler for the top of the range? What's that all about? I'll be addressing that in my next post.

Friday, May 27, 2005

If You Read This

You Won't Have To Read My Comment To Gideon's Comment To The Previous Post

Clear as mud, right? I just thought better of leaving this burried in the comments section. Based on my own Blog reading habits, the odds are pretty good almost everyone will miss it if I leave it just in the comments. So, here's what I told Gideon:
Hopefully, over this three day weekend, I'll be able to get some rightous posting done. No online class until Tuesday. No family obligations until a week from Sunday. The weather forecast says cool and rainy, so no burning desire to run around doing vigerous things. (I should, but "should" and "want to" are very different thing.) Unfortunately, I did pick up Season One of Quantum Leap, but it was a mid-season replacement show its first season, so there are only eight episodes - the double length pilot and seven regular lenght shows. And I've already knocked off the pilot and the first reqular episode.[-)By the way, the first regular episode? Teri Hatcher guest stars as a college student and, my God! Was she a beauty! At 25, easily playing 18-19, she is just stunning.
I may have to reconsider my decision not to bother with the soon-to-be-reoeased first season of Lois And Clark: The New Adventures Of Superman.

By the way, the "block quote" function here on Blogger is just about the most un-intutive "feature" I have ever run across.

Wednesday, May 25, 2005

No, I Didn't Forget The Comments

To Gideon and Tom McKenna -- I haven't forgotten you guys. Next post will be comments on your comments! I Promise!

Indigent Defense - Who Does It?

Is It Always Three Ways?

There are, when you come right down to it, three ways to provide counsel for indigent defendants. The most comprehensive is the Public Defender. Think of this as a sort of parallel to the prosecuting attorney. In an ideal situation the offices will be of similar size (although prosecutors offices tend to be a bit larger because they have additional responsibilities a PD office doesn't) with similar pay. (Note - I said an ideal situation.) A PD office is usually considered a department of the supervising governmental unit and works under a budget from that entity, just like the prosecutors office or the fire department. Sometimes there is a semi-independent board or authority that is charged with supervising the PD office. It may be a State or a local agency, depending on where your are.

A somewhat similar operation is the contract defender organization. This is where a law firm or, more likely, an ad hoc collection of attorneys enter into a contract with the governmental funding unit to provide counsel for indigent defendants. The contract systems I have looked at all involved a flat fee arrangement based on an annual projection with some provisions for exceptional expenses. There are also provisions for conflict of interest situations (e.g. co-defendants with conflicting defenses should not be represented by the same attorney or organization.) Note: PD offices will have similar arrangements with outside attorneys, often on an hourly rate contract.

Finally, there is the assigned or appointed counsel system where private attorneys are assigned cases (or appointed to represent indigent clients - the usage varies from court to court, even within a state), generally by the local court, and are paid after the case is concluded and they submit a bill. (In a long, complicated case there may be provisions to make partial payment before the case is over) Payment is either based on an hourly rate or a flat fee schedule or a combined system where some events are flat fee and others are hourly rated. For an example of the State regulated fee system for assigned counsel, check out this publication from the Ohio Public Defender. Take a look at page 13, in particular. That is, page number 13 - it's about page 16 the way Acrobat Reader numbers pages. For examples of flat fee systems, take a look at this compilation of appointed counsel fees in Michigan, where apparently the counties set both the compensation for indigent trial defense and the systme used. This report is for 2004. Look particularly at the 3rd Circuit, Wayne, the most populous county, and the 6th Circuit, Oakland (which is the second most populous county according the the Census Bureau), and then the 40th Circuit, Lapeer (which is a rural[?] county of moderate population, again according the the Census Bureau.)

So, what's the best system? Damnifino. Speculation and anecdotes to come.

Sunday, May 15, 2005

Indigent Defense

Neither Simple Nor Easy

You know, a while back I imposed on Gideon, the Connecticut. PD who runs "a Public Defender" blog (here) with a huge quasi comment (see here. Scroll down, you'll find it.) on the sad state of indigent defense (that is, the provision of same, not the quality) everywhere you look, and it occurred to me, Why am I not posting this on my own blog? What the heck is wrong with me? So, here are some of Mr. DA’s thoughts on indigent defense and related topics.

First off, what the heck is "indigent?" Well, so far it’s primarily an adjective, but the noun form seems to be gaining acceptance, especially in legal circles. Most dictionaries I’ve looked at tag "indigent" as an adjective, (see, for example, the listings at the Onelook: General Dictionary Sites page) but a few add the noun form as a second definition. One example: "adj. 1. Experiencing want or need; impoverished. See Synonyms at poor. . . n. A needy or destitute person." American Heritage Dictionary of the English Language (3d Ed). Some add the qualifiers ‘very’ or ‘extremely’ to poor and/or needy.

So, in law speak, indigent defense is the defense of very/extremely poor/needy people. Seems clear enough at first blush. But. . .
  • What is ‘indigent?’ That is, how poor is very/extremely poor?
  • Once we know that, how do we determine if a given defendant is, in fact, indigent?
  • And who decides if a particular defendant is indigent?
  • Who represents the indigent defendant? Obviously, an attorney, but which attorney?
  • How does that attorney get compensated? Or do we impose the duty to represent indigent defendants on the members of the bar as a mandatory pro bono publico activity. Sort of an "in kind" element of their bar dues. Abraham Lincoln said an attorney’s time and advice are his stock in trade. Is it fair to take that time and advice without compensation? Is there a Fifth Amendment problem here?
  • If we are going to pay attorneys to defend the indigent, how much are we going to pay them?
  • And who, exactly, is ‘we’ in this context?

The place to really start is the Supreme Court's 1963 decision in a case called Gideon v Wainwright, 372 U.S. 335 (1963). For a detailed review of this opinion take a look at the entry at for a copy of the opinion itself and lots and lots of additional material. The site is designed for teachers, primarily at the high school/junior college level, so there is a wealth of detail that isn't normally presented in discussions of Gideon. I particularly like the "Evolution of a Decision" activity. It takes you from Powell v Alabama to Betts v Brady to Gideon to Argersinger v Hamlin that considered whether the Sixth Amendment right to counsel applied to misdemeanors as well as felonies.

Well, that should keep you busy for a while. More, later.

Sunday, April 10, 2005

There I Was. . .

at 20,000 feet. . .

Whoops, wrong story. Well, there I was, crouched over my computer (doesn't sound anywhere near as exciting, does it?), trying to decide how to do a pinpoint cite when Westlaw provides the official citation but no official pagination and no national reporter cite at all, when the office manager came down the hall chanting "Hello, hello, is anyone here?" until she got to my door when she changed it "Thank God, you're here!" Something I don't hear from beautiful women all that often these days. Of course, she follows it up by asking "Can you cover a probation violation hearing in Judge X's court? No one else is here and it wasn't on the docket." Sigh. Let me explain about probation violation hearings in my state.

Felony probation is not uncommon for property crimes, non-injury assaults, drug possession, felony drunk driving, and the usual run of crimes in the fraud family. But it's not necessarily a cake walk for the offender. Depending on things like past record, substance abuse problems, employment, and the offender's attitude as evaluated by the probation agent (PA), the conditions imposed can sometimes make jail/prison a viable alternative.

For example, in addition to the stock stuff (don't drink or use drugs, don't break the law, don't leave the state, etc) some problem offenders have additional conditions like: show up every morning and pee in a cup for the nice PA; show up every week with your AA attendance sheets, show up once a month with your restitution installment in hand and a list of the places you applied for a job - include the name and phone number of the person you talked to, and on and on. Other, more or less typical offenders just have to worry about the stock conditions and showing up once a month. Care to guess who seems to fail most often? Right. The once-a-month guy. Probably something to do with structure. Anyway, the other thing to know about probation violation hearings is that the prosecutor generally doesn't know a damn' thing about the case, the probation conditions, or the alleged violation unless he or she happened to handle the original case and/or been in the courtroom with the violator was arraigned on the bench warrant.

In these hearings, the role of the prosecutor is call the witness (almost always the only witness is the PA) and ask the questions necessary for the story to be told. The rules of evidence mostly don't apply to these hearings and they usually boil down to giving the offender a chance to put his excuse/justification on the record and answer any questions the judge may have.

So I trot on up to Judge X's courtroom, looking for the PA in the mob that's milling around in there. Some God awful civil trial looks to be headed into its second week, based on the amount of stuff spread across the counsel tables and stacked around the court reporter's station. I finally spot a PA huddled a corner with an appointed-counsel-list attorney and am told that the offender (sure enough, a once a month guy) after a nice chat with counsel and the PA, is going to plead guilty. So I go looking for a bailiff/corrections officer to retrieve the offender from the holding cell and tell the judge we're ready. Turns out we weren't the only ones who didn't know about this hearing. It's something of a Freaky Friday sort of session. The chief of courthouse security is doing prisoner transport and the court reporter, looking really pissed about, it is doing the bailiff thing - you know, all rise, the court is now in session, etc. And the only thing that would demonstrate more acutely the sort staff situation in my office would be if the Boss was standing here instead of me.

Well, eventually we get offender, defense counsel, the PA, me, and the judge all in the room at the same time. The offender, a boot camp graduate (it's always a little disconcerting to see these guys standing there, in their orange jumps, at attention saying "yes, sir" and "no, sir") who appears to have both moved without telling anyone and missed reporting for a couple of months, explains how he screwed up the first time, then was afraid to come to the second reporting date because he'd screwed up the first time and if he hadn't missed the first reporting date he would have filled out the change of residence form he knew he was supposed to turn in. I have no idea what he's in for, but the fact he made it through boot-camp, coupled with his age and the PA's recommendation that the bond be changed to own recognizance pending sentencing, seem to indicate a boy-will-be-stupid-boy property crime of some sort. Anyway, my entire role in this matter was to stand behind my podium, looking prosecutorial, and say "thank you, judge" when his honor says, "OK, plea accepted, bond is amended to $1000 OR and this matter is adjourned to the sentencing date."

Another day in the Halls of Justice.

Sunday, April 03, 2005

If This Is Spring, Bring Back Winter

It's More Honest

April, apparently suffering some identity issues, is coming in like a lion. Spent the day, yesterday, darting from the car to various shops and stops through the kind of weather that makes you long for the brutal honesty of a day in deep Winter.

Just a short note, this time. More of a break from 1)grading essays on "what justice means to me" and 2) editing a looong appellee's brief by one of our interns. The stuff from the online class I teach I pretty much do every weekend, but I brought real work home (well, emailed it from work to one of my "civilian" accounts) for the first time in a long time because of he aforementioned weather.

Those of you who work in older buildings, government buildings in particular, will know what I'm talking about. Twice a year, in the Northeast to the North Central/Midwest portion of this great country, large, sealed environment office structures undergo the dreaded transition from heating season to cooling season, or visa versa.

When the heating to cooling transition occurs (like now) for about three to four weeks in March and April, the maintainable staff tries to anticipate whether they really need to have the furnace running. They always guess wrong, so I don't know why they even bother to try. In practical terms, this means the building becomes uninhabitable on the weekends because they are always trying to get the heating plant shut down as early as they can to extend the nothing but ventilation season (when the only cost is the current to run the blowers) as long as possible.

I have a digital thermometer in my office and it was showing a temperature drop of about a degree an hour Friday afternoon. I fully expect, based on the local weather, to find it running about 62 or so when I get in Monday morning. And that's assuming they get the heating plant back on around 6 a.m. or so, when the maintenance supervisor starts the building for the day.

It's damn' hard to type with gloves on, at least on a computer keyboard, I can recall times in the Army. . . but that was another life. Anyway, gloves don't help and my late middle age fingers tend to stiffen up below about 68 degrees, so I'm working at home this weekend.

More later, maybe.

Tuesday, March 29, 2005

Once More Into the Breech

Sometimes, things just get nuts

It's been way to long since I updated this place -- I know it, you know it, everyone knows it! But things have been a little crazy of late. Since my last post we've had a couple of people leave the office, one on family leave and one for a better/more challenging job in the big county to the south. Well, actually, two people left of the big county to the south, but one of them left at the first of the year and their replacement has been on board for a month. This is a bit more turnover than we've had lately and one of the direct consequences is that I get to do walk-in warrants again.

Used to be walk-in warrants were an excuse for the cops to seek out their favorite APA and sweet talk their way into a authorization. Now, it means one of two thing. One, this guys been in lock up for 43 hours and I've got to get this warrant through the system so I can arraign him this morning! Or, two, there's a crime here, somewhat, but I'm damned if I can find it. How about you Mister DA?

Needless to say, this is something of a distraction from writing, so lots of start overs and where the hell was I going with that? Plus, we had cert granted by our supreme court on a murder case and, in their own inimitable fashion, they added two issues for us to address. So, on top of the three I want them to think about, I've got two they pulled out out of thin air. Delightful.

And it's still not Spring here in the Baja annex of the Great White North!

More, as things happen.

Monday, January 31, 2005

Back Again

The Silence Is Broken!

To those of you who have been checking this place for new content over the past {mumble} uh - few days, my apologies. Assuming anyone other than Ken Lammers has been. In the last post I explained how I finally got some downtime where I wasn’t pounding the keyboard all day and all night for people who give me money and expect something in return, unreasonable bastards that they are.

{Aside - WordPerfect’s spelling checker doesn’t recognize bastards as a word - it suggests "bastardy" "brassards" "bustards" "dastards" and "bastardize" interesting - on the other hand, Word’s does. One point to Microsoft on the curse word front.}

Anyway, shortly after my last post, my secretary received a nice call from one of the deputy clerks at the Capitol City office of our intermediate appellate court. Were we going to submit a brief in a certain case? Huh? My secretary, who knows the policies of the office as well as I do, maybe better, told her we submit a brief in every actual appeal. Was this, she asked, a petition to appeal or an honest-to-God case before the court? The latter, it seems. She informs the clerk that we have the initial appointment of appellate counsel, which also serves as the notice of appeal, and a ton of stuff from the defendant himself, but no brief on appeal, no motions, no pleadings of any sort from appointed counsel. Well, says the clerk, it was filed with the court in June and your reply brief was due in August. (Mind, this is shortly after New Year’s that this conversation took place.) The case is not yet on a call (that is, not yet scheduled to be reviewed and decided by a panel of judges) but it was in the queue and would go to a panel Real Soon Now. Would we like her to fax us a copy of the appellant’s brief? Oh, yes.

You may wonder, particularly those of you who are lawyers, what the Hell happened. An odd double failure of systems, as near as I can tell. Worthy opposing counsel, per the proof of service included with his brief, sent all his service copies of everything to a non-existent address, listing the elected prosecutor by name, rather than office. The PA doesn’t live in the city where our offices are, nor has he had a private practice there for a couple of decades or so, leaving the post office pretty much clueless. God alone knows where it wound up.

In most cases, heck, all cases before this one, the court itself would have alerted us that something was amiss long before now. For years, the policy has been to send out nasty-grams to counsel 30 days after the date their brief was to be filed. I’ve never been late as an appellant, but as an appellee, those letters set a 21 day deadline to submit a reply brief or it won’t be accepted and the case will go to the panel with only the appellant’s brief. The letter never went out. When my secretary asked about that, the clerk said that’s why she was calling. When they started to pull files and check paper work for the upcoming calls they found this case had more of less fallen through the cracks. Because appellant was late, he didn’t have oral argument. Because we were late, we didn’t have oral argument. So the case was moved from the local office to the Capitol City office to equalize the workload between offices. In the process, no one bothered to send out the 21 day letter. Because, in the final analysis, the significant screw up was the court’s they would accept my reply brief right up to the time the case was set to be heard, when ever that was going to be.

So, there I was, passing through 5,000 feet in a flat spin. . . wait, that’s another story, but similar thoughts and feelings were running through my mind. Including the desire to get a good gun lock on opposing counsel with a GAU-8. The brief was junk, but in my line of work junk is often, almost always harder to answer than a real, substantive, on point issue. And the statement of facts was impossible. When you get an honest, or mostly honest, statement of facts from opposing counsel, you can just accept it, noting any real problems or omissions in the body of your arguments, and save a lot of time writing the reply brief. Not in this case.
It took me about four MisterDA days to write the thing and another half day to do the motion to extend time and proof it and get it ready for my secretary to FedEx to the Capitol City clerk’s office. In actual elapsed time, about eight days because nothing else went away while I worked on this thing. The usual flow of motions for re-sentencing, motions for new trials, and cries for assistance from the trial staff continued, unabated.

Of course, when I wrapped up the Brief From Out of the Void, all my slack time was gone and the February deadlines were looming (looming?! They were charging in mass!) So, that’s what I’ve been doing. It’s much like attempting to keep your head above water in a whirlpool.

Oh, yeah. About three days after we send out the reply brief the court docketed the case for February 1. Last Friday, I get a call from the clerk's office, telling me they granted my motion to extend time and 10 minutes for oral argument. The catch is that the Capitol City offices of the court are about twice as far away, time-wise, as the Major Metropolitan Area offices where my cases are usually argued. To make things even more fun, my case is dead last on a call with a bunch of civil cases where everyone and her brother has been listed for oral argument. Sigh. This means, based on grim experience, that I'll be standing up at least two hours after the call has started. Then the grim drive home. So, in essence, the day, between travel time, waiting time, and finding lunch time, will be totally consumed by one ten minute, unopposed argument on a pointless case. Sigh. Sigh. ‘Cause the brief elves are not going to finish any of the other things due this week and next while I’m gone. Sigh.

More on why we do this later.