Mister District Attorney

Still Here, More Less

2008-06-07T08:15:00.002-05:00

Well, I see I missed an anniversary -- the Year-Since-I-Last-Posted anniversary, that is. When I last graced these electrons, it was the middle of a bear of a winter here in Baja Great White North, and the work load at work was mind numbing. Things haven't changed all that much in the last 16 (!) months. Well, now it's miserably hot as opposed to miserably cold, but other than than, the beat goes on.

Work is still work. Criminals are still unhappy with their just deserts, a certain subset of appellate defenders still doesn't understand that zealous advocacy does not mean trying the mislead the courts about what happened at trial, either by omission or flagrant out of context quotation, the gray matter still seems to be sucked out of judges' brains when they climb into that black robe, and CSI is still science fiction.

That last is something I may write about if I get enough time to put my thoughts into some coherent order. There is at least one study by a trial court judge that seems to indicate that there is no such thing as the CSI effect, or, if there is, it gets lost in the noise of factors like skill of counsel, nature of the crime, characteristics of defendant/victim, and so on. But it didn't strike me as having a particularly rigorous methodology when I read it, admittedly, quite a while ago. And jurors say the darnedest things to the trial attorneys after the verdict.

Anyway, that's it for now.

John Lennon Was Wrong

2007-02-11T17:51:00.001-06:00

Did He Really Say It? Probably.

John Lennon said, sometime about 27 years ago, "Life is what happens to you while you're busy making other plans."

He was wrong. Work is what happens to you when you are busy making other plans. And, boy, did work happen to me. It's been one, steady grind since before Thanksgiving. And the worst part of the whole megillah is that the things that are coming in are not very interesting. In fact, they are downright boring. I should spell that with a capital B.

Oh, yeah. The phrase is part of the lyrics of Beautiful Boy from Double Fantasy, Lennon's last album. The song is about his son, Sean.

I'M A WHAT?

2006-11-09T09:37:00.000-06:00

One Of Those Silly "What Sort of {Fill In The Blank} Are You?" Quizzes That Actually Makes Sense, of A Sort.

You scored as A college textbook. You're an authority on something, you just know it. Everyone else does, too, but that doesn't mean they like you. Since you think very highly of everything you say, you charge a pretty penny to entertain your listeners. Those forced to pay do so grudgingly and try to defray the costs of learning from you by selling portions of their access to your charms to others. As a result of this speedy dissemination of your knowledge, you constantly add to your repertoire--and then hike your price. Despite your usefullness, which is rarely in doubt, nobody likes you. They find you didactic, boring and irrelevant--but still necessary.

A college textbook

61%

A classic novel

61%

A coloring book

57%

A paperback romance novel

54%

Poetry

32%

An electronics user's manual

29%

The back of a froot loops box

25%

Your Literary Personality
created with QuizFarm.com

What I find interesting is the fact that I tied for a Classic Novel and was barely ahead of a Coloring Book or a Paperback Romance Novel. Go figure.

If Anyone Cares, Here's The Classic Novel Blurb

You scored as A classic novel. Almost everyone showers praise upon you for your depth and enduring relevance. According to your acolytes, everything you say is timeless, erudite and meaingful. Of course, none of them actually listen to you. Nobody listens to you at all, but it's fashionable to claim you as a friend. Fond of obscure words, antiquated notions and libraries, you never have a problem finding someone to hang out with. The fact that they end up using you to balance their kitchen tables is an unfortunate side effect, but you're used to being used for others' benefit. Oh the burden of being Great.

A college textbook

61%

A classic novel

61%

A coloring book

57%

A paperback romance novel

54%

Poetry

32%

An electronics user's manual

29%

The back of a froot loops box

25%

Your Literary Personality
created with QuizFarm.com

I kind of agree with this one, too. Geez, no wonder no one reads this thing.

Be On The Cutting Edge!

2006-10-22T07:43:00.000-05:00

What Cutting Edge, You Ask?

The cutting edge of electronic publication, that's what cutting edge. What, you ask, the Hell does this have to do with Law, Prosecution, all that stuff up in the header? Well, I actually can make the connection.

One of the hot "new" areas of law is Intellectual Property. New, you understand, in the sense that people outside the patent bar and the practice of entertainment law actually have heard of the subject. When I went to law school, 20-mumble years ago, there was one, three credit, intellectual property survey course at my law school at a large, Midwestern research university. Last year, one of our interns graduated from an other law school in the state, also at a big, Midwestern research university, with an actual endorsement on his degree that he had specialized in intellectual property law. Of the roughly 90 credit hours needed for his JD, almost a third of them were IP courses.

Electronic publishing, and its benefits and pitfalls and potential to make money, is still publishing and the question of copyright is a large part of the discussion. The purpose of Digital Rights Management, the digital millennium Copyright Act, and other, even more obnoxious legislation pushed by the MPAA, the RIAA and other trade organizations is to protect copyright. That is to say, money. They can dress it up any way they want, the bottom line is still the bottom line. Because this is law, and law that includes treaties and international trade agreements as well as statutory law in virtually every country on earth, lawyers are involved. Both civil and criminal penalties are involved in the law of copyright. So there -- That's the link.
And this is the electronic publication I want to talk to you about. Jim Baen's Universe. For those of you who have followed this blog from the early days, it will come as no surprise that Mister DA is a science fiction fan. I've talked about my DVD collecting habits in the past, particularly Stargate: SG-1 and others. Until very recently being an SF fan meant a science fiction reader almost exclusively. The movies and television just didn't provide all that much in the way of worthwhile SF for the enthusiast, adult or teenager, so if you wanted SF, you read books and/or comic books. I started reading the stuff so long ago, I still cringe, just a little bit, at the term Sci-Fi. But I'm getting used to it. Today, it's a very different world in SF fandom. There are media fans of the various SF video franchises who have never been exposed to written SF outside their particular niche. Star Wars fans may read a Star Wars novel, but may have never heard of Robert A. Heinlein or John W. Campbell or Isaac Asimov, let alone contemporary authors like Larry Niven or John Scalzi or Charlie Stross. But this is a digression. If you are not a reader of fiction, Jim Baen's Universe is not going to make you one. If you are a reader, and anything of a video SF fan, Jim Baen's Universe wants to make you a reader of quality science fiction and fantasy by offering an electronic magazine that showcases the best of the past the present and the future of written science fiction.

Jim Baen had very strong ideas on the proper place of copyright in the world. With Baen Books he was a (maybe the) pioneer in providing electronic versions of his authors' work for reasonable prices, in multiple formats, with no Digital Rights Management nonsense. Jim Baen's Universe works the same way as Baen Books - copious amounts of free stuff combined with multiple formats and ease of access once you've paid for something.

Go to this site http://www.baens-universe.com/ to see what I'm talking about. The third issue is out and there are a number of stories and articles available on the page, in full, for you to sample. The subscription rate is $30 for six issues. The first issues have been running about 200, 000 words, plus illustrations, so it's something of a bargain. You can also read the third installment of editor Eric Flint's analysis of why copyright is a necessary evil. The third installment discusses how long is long enough.

Enough from me. Go take a look. Let me know what you think.

Still Here

2006-10-09T15:20:00.000-05:00

No, I haven't {DiedQuit ProsecutionExperienced My Own Personal Rapture}, yet!

Still working my fingers to the bone on appeals. Still having problems finding stuff to write about that won't blow my cover. Although the declining number of folks who check this page may make that a moot point.

I can make a recommendation, though. If you want a real picture of what it means to be a prosecutor specializing in child abuse prosecutions get your hands on Bronx DA by Serena Straus. Amazon Link here.

Ms. Straus is also a blogger. Blogspot Link here.

Yes, I'm Compusive. So Sue Me.

2006-07-09T07:28:00.000-05:00

But Not All That Compulsive.

Yes, I did re-edit the last entry to make it prettier on the page. Every time I looked in, it bugged me. Just not enough to do anything about it until today. So I'm not that big a nerd.

The inability of Blogger to actually deal with block quotes and other simple-minded formatting stuff (like tabs, for God's sake) is one of the low level irritants that makes it easy to keep putting off adding entries to this page.

And, yes, I know about the Word add-in that will let me compose in Word and post to the blog. Have I mentioned my near pathological dislike of Word? My path to modern (Ha!) word processing was Scripsit (big thumbs up and props as a real OTMCU [Old Time MicroComputer User] to anyone who knows what that was without resorting to Google or some other search engine), WordStar 3.3 to WordStar 4 (which, running on a Sanyo PC, got me through law school), WordStar 5 to WordStar 5.5 to WordPerfect 5 for DOS to WordPerfect 6 for Windows to WP 7, 8, 9, and now 10. At about the time we were upgrading to WP 8, I had to come to some accommodation with Word in my capacity as an online instructor. Hated it then, hate it now. Someday I'll even think of a good reason.

Something Diverting

2006-06-10T08:31:00.000-05:00

Something Diverting

I received an interesting email from a law student Blogger and found the topic interesting enough that I though I’d share my response with whoever still drops by here.

Hi there, I run the blog at www.anonymouslawstudent.com. [interesting site] I'm trying to compile a post about relationships after law school. However, I don't know anything about that because I'm still in law school. So my plan is to email about 10-15 blawggers and ask them a few questions about their experiences and observations. If you'd take a second and help me out, I'd really appreciate it. Thanks!

Well, thanks for asking.

1. What areas of law, in your opinion (assuming some areas are worse than others), tend to be harshest on a marriage or long term relationship?

Bearing in mind that, First, I’m a prosecutor, in an office full of prosecutors, which sort of limits my day to day contacts with the more mundane areas of the law, and, Second, I work in a moderate sized community where there are no pressure-cooker law firms to be found (I mean, we’re the biggest “firm” in town), and, Third, I’m 20 years out of law school and have pretty much lost track of my classmates, most of whom were of an age where serious relationships
were just starting, my answer is that it’s not the area of practice as much as it is the type of practice that screws with relationships. That is, my marriage was screwed up from things that had nothing to do with my job. The same is true of the other two or three marriages among my of the bench and bar that hit rocky patches. It wasn’t the job, it was the people in the relationship. Six of my colleagues are married to lawyers or judges and none of the marriage
troubles related conversations we’ve had over the years has ever involved the practice of law. One of my classmates divorced his wife shortly after law school, years ago. That seems to have been based on long-term incompatibilities that only came to light (or became intolerable) when they both started working more or less normal hours (she was a nurse, he’d been a student almost the entire time they were married) and were thrown into each other’s company for
hours and hours every day.

2. What mistakes, if any, do you think new attorneys make that cause problems or contribute to the end of their marriages or relationships?

Again, based on a very small sample - my classmates who took associate job with the “big” law firms in the Big City seem to have had more problems connecting with someone for the long term then my unmarried colleagues in the office do. Hours worked is my guess. Which is, in the current legal employment environment, even more of a dilemma for the new associate than it was when I graduated. If you are not billing some incredible number of hours, you are not going to find it all that easy to advance in the firm If you are working the hours necessary to honestly bill those hours, your are not going to find it all that easy to maintain any kind of relationship, let alone a marriage. One of our former interns took a job with a silk stocking firm in the Big City and is working the insane hours the partnership track seems to require with out too much damage to her marriage. However, by prior arrangement, her husband took up the mantle of househusband when she passed the bar and began to work in earnest. It helps, I’m sure, that they had their first child while she was still in law school.

3. Do you have any advice on how to balance work and home life?

Sorry to say, based on my own experience, it’s the job that has to give over the long term. Yes, when you are starting out you can work those 70+ hour weeks and a marriage will survive - as long as there is light at the end of the tunnel. But when I was active in the State Bar ssociation, I constantly met partners at big firms who were still putting in 60 or more hours a week. The only difference was, many of those hours were on behalf of the Bar or other volunteer supported organizations. Maybe that says something about the sort of drive (Type A personality, anyone) you need to make partner in a traditional law firm more than anything about the practice of law. I guess it comes down to simply having a balance and not letting work become the be all and end all of your life.

4. What seems to be the common thread in the relationships that survived law school and that went on to survive the new career as an attorney? What seems to be the common thread in the ones that didn't make it?

Can’t say. Except for the guy mentioned above, everyone I know from law school who was married is still married. And the legal work environment where I live and practice is such that the successful and failed marriages alike seem to succeeded or failed for the classic reasons. I’m sure work played a part in some of the failures (one local attorney divorced her husband and married the accountant she rented office space from, but I don’t see how the nature of her
job had much to do with that) but only in the way work relationships torpedo marriages all the time.

5. Is getting married right out of law school a good or bad idea?

I have to say it’s going to depend on all the circumstances. Assuming for the sake of discussion that we are talking about a fairly typical law school grad - 24-25, been in school non-stop since he or she was five years old, starting a new job, maybe in a new town, a ton of school related debt, you know the drill -- I’d have to say why would you want to add just one more brick on the load? On the other hand, if your debt load is moderate, you are going into partnership
with your Dad, and you took five years to do law school while working full time as a bookkeeper for the old man, why not?

I can't think of any more, but if you have anything else to add, please do. I appreciate your time..Thanks again,

aLs

Anyone else have any thoughts or comments?

Still Here After All

2006-04-15T18:54:00.000-05:00

Still Here After All These Days

Sorry, it’s been way too long between posts, but I’ve just been unable to muster the writerly wherewithal to post anything. Work is still work. The bad guys still do terrible things to people, and we do our level best to lock ‘em up for as close to forever as we can. See, if we did not do that, then the parole board would have no one to let out because they’ve “found Jesus! Praise the Lord!” I, of course, was not aware that He was missing. The more fool me, ‘eh?

The end of Senior year is here for number two son, out youngest. The Perfect Local High School Student. Four years of football, two as a varsity starter (offensive line, thanks for asking) 3.5+ GPA (4.0 scale) in AP and college prep courses, no discipline problems, the kid is practically the poster child for what the school administration wants a typical male student to be. It’s been a helluva strain, believe-you-me.

I mean, the other two were anything but models of the modern Senior High School Student and I think we’ve been waiting for the genetics and/or hormones to come roaring to the fore, leaving nothing but smoking ruins in their wake. But we’re just about five weeks from the last day of classes for Seniors, and just six weeks from graduation, so, we’ve crossed everything that can be crossed and are holding on to our sanity as tight as we can.

Oh, The Things They’ll Do
There is a certain class of defense lawyer that simply thinks the rules are for fools. (I actually had one say that to me, once upon a time) and that if they get 50 miles away from the big city to the south that no one will know those rules and they will be able to bullshit their way to whatever they want. Sigh.

Of course, we have an arraignment court chief judge who is totally clueless about most of the substantive rules (like Miranda only applies to custodial interrogation) and virtually all of the procedural rules. One can make some excuses about substantive rules like Miranda because in most cases they are derived from case law, not statutes or codes and can change without warning. It’s a bit harder to excuse a failure to know about the court rules published by the state supreme court. I mean, they come out in a nice little book from West/Thompson, every year, and changes are prominently displayed in the monthly bar journal as well as on the state court web site.

We had an out of town attorney try to get the chief judge to issue a writ of habeas corpus for his client, who was pending arraignment, on an oral motion. And the dummy was going to grant it! Happily for the chief’s reputation in the building, the clerk of the court is also an attorney and was able to advise him that the writ could only issue on a properly filed complaint. And Mr. Out-of-Towner had not filed such a complaint. Oh, and in the same breath, while he was issuing an illegal writ, he was ordering our office to appear forthwith and arraign the defendant. Aside from the fact that we were still waiting on the police report/request to charge, there’s a tiny little separation of powers thing going on there. Ya think? And the final insult? Mr. Out-of-Towner may have outright lied to the judge about the circumstances of his client’s detention. We don’t know. Why? Because the judge ordered the court reporter to go to lunch (don’t want to incur any comp time) and shut down the Dictaphones. Another attorney was in the courtroom while this was going on and left to call my boss and give him the heads up. So, two of us spent an enjoyable hour drafting a complaint in mandamus against the arraignment court, just in case. We didn’t need it, thank God, because who needs to be in the middle of that kind of firefight between the courts.

Ah, yes. It’s a great life if you don’t weaken.

On A Cold Sunday Afternoon

2006-02-19T16:47:00.000-06:00

Writers’ Block? Not Exactly.

I’ve come to the conclusion that, unlike Kevin Smith I really do have a boring-ass life. I am sitting here, at a loss for something to write about. Not that there are all that many of you looking in these days, but for the occasional lost soul who drifts by, I’d like to think there is something worthwhile, or at least mildly amusing/interesting/diverting on these pages. Preferably something related to the Law. But I just keep coming up dry.

Sex Crimes. That’ll Wake ‘Em Up!

Well, here’s one. For the lawyers and enthusiastic amateurs out there -- How does your state handle other acts evidence in sexual assault/child molestation cases? That is, how do you cope with “lustful disposition” evidence, as some states call it? I refer, of course, to evidence of similar acts.

Does your state have either a formal rule, like FRE 413 and FRE 414 that explicitly allows evidence of similar acts to prove the defendant’s propensity to commit such acts, or a court made exception, often referred to as the “lustful disposition” exception, to the general rule that evidence of a defendant’s character may not be introduced to prove he acted in conformity with that character? See FRE 404 for the usual codification of this rule.

Or do you fall back on the state equivalents of FRE 403 to generally bar such evidence as more unfairly prejudicial than probative?

This is a topic near and dear to the hearts of sex crimes prosecutors everywhere. Particularly those who specialize n crimes against children. When you’ve got a recidivist on trial for sexual assault on a child, evidence that he (it’s almost always he in these cases) has done the same thing before is a powerful tool in proving the case. That’s why the general rule is to bar such evidence. We worry that the jury may convict on less than proof beyond a reasonable doubt because the defendant is a very bad man and shouldn’t be walking around. This is the reason courts are leery of other acts evidence in the first place. Particularly when the other act is a similar crime. They worry about the natural tendency of jurors, as reasonable human beings, to say to themselves “well, he did the same thing before, it’s likely he did it this time, too.”

Two Days In A Row!

2006-02-11T17:42:00.000-06:00

Watchin’ The Tube On A Saturday

Yesterday was pretty laid back. Put the final touches on an appeal from arraignment court to the general trial court and then started on cleaning off several months accumulation of stuff from the ol’ desk. My desk is one of those ‘U” shaped numbers with the computer monitor in the middle of the base of the U. This gives me writing/stacking room on either side. This also means, that there is a fair amount of dead space to the extreme front right and left corners where low priority stuff tends to accumulate. Like training monographs, pocket part updates, bar journals, loose-leaf updates, etc. Part of the problem is I’m the clearinghouse for all the incoming library related stuff. Like half a dozen updates for the court rules pamphlets. Now the double sets (i.e. state and federal) are easy. I get one, my secretary gets one, and the library gets one. Three show up, I hand out three. The state only subscriptions are a bit harder. Anyway, I actually made some inroads into the various stacks.

Today, other than a load of laundry, has been devoted to watching old TV shows on DVD. Finished off the first season of Hill Street Blues and started in on the first season of X-Files. Now, I was a big fan of Hill Street when it first aired and managed to watch most of the episodes up to the point where I started law school. But that’s still over 20 years ago. Watching these episodes is just amazing -- you can see the beginnings of any number of conventions that have become so common in TV dramas that they are approaching the status of clichés. And then there’s the story and the acting. What a delight compared to so much of current TV fare.

After finishing Hill Street, I started on the X-Files, which I didn’t watch, other than one or two episodes here and there, when it first ran on Fox. Odd. Very much a series of slightly connected stand-alone episodes in this first year. And, surprisingly, not all that interesting. Other than finding out what weird damn outfit the consume designer is going to inflict on poor Gillian Anderson this time. My God, the woman is, like 5’3” and they insist on putting her in these pant suits with legs suitable to wear over waders and shoulders padded out to the point where she looks almost square. No wonder it took Mulder years to make a move on her.

I was watching a really bad episode involving NASA, the space shuttle, and the “face on mars” and efforts by some sort of ET to sabotage the shuttle program by either possessing COL Belt, the former astronaut who was in charge of the program and making him do nasty things (or maybe forget to do good things) or by becoming some kind of smoke wraith and actually flying up to orbit and physically damaging the orbiter. Query - if it can do that, what the hell does it need with Belt? I had to ask myself, how did this survive for almost 10 years on Fox when Firefly barely aired 10 episodes? (I only count the first pilot “Serenity” as one episode even though it aired as a two-parter.) Maybe the X-Files picks up a bit more substance in the later seasons. Maybe it picks up in the second half of season one. I guess I’ll find out.

What The Hell Was That?

2006-02-10T05:58:00.000-06:00

TGIF!

Well, it’s been one of those weeks. I kid you not! Take a look at Sergeant Saunders down there -- that’s pretty much my week. Except the boss frowns on submachine guns in the office. Between the drug prosecutor, the intern, and me, from Tuesday to today we finished four briefs on appeal, and one application for cert to our state Supreme Court. Not to mention the usual run of little things - like helping a trial prosecutor figure out how to approach a fairly serious witness problem, and installing the updated model jury instructions on our server.

UPDATE!

Forgot to come back and actually post this. Sigh. That was written on January 21, coming up on three weeks ago. Not much changed up to yesterday. Through yesterday, four more brief for me (two of them abuse and neglect appeals, so not so much work as a criminal appeal) one more for the drug prosecutor, and one for the intern. She gets to slack off a bit, having just passed the state bar and getting sworn in and all that. You may well wonder how the heck long it takes my state to grade bar results, assuming the usual summer and winter examination dates if she’s just being admitted. The usual time. Results showed up in November and she missed the cut by one point. So, rather than take it lying down, she wrote her own appeal to the bar examiners and contested nine of the points they marked off. She won five of them! So, a belated admission ceremony and congratulations all around. Now, if we can just find her a job.

I see law school applications are down for the second or third year in a row. Good thing, because the legal job market is pretty grim. This is the first time in my memory that our graduating interns don’t have jobs waiting for them upon graduation or bar admission. It doesn’t help that most of them want jobs in prosecution. While the economy, in a national sense, seems to be doing fine, government, as a rule, is not. I think I wrote about the county budget process a while back, in terms of how the county raids the departments at the end of the fiscal year. Expect to see some screedy rants on the subject of the whole budget process in the near future.

A BREAK IS IN SIGHT!

My in shelves are now empty save for one habeas petition the trial court wants us to answer. Which I’m going to foist off on the intern so she’ll be able to add that weird sub-set of appeals skills to her resume. Me? I may take a day off for something other than doctor’s appointments for a change. Spending today cleaning off my desk of the accumulated filing and library updates. And the usual junk from the trial attorneys.

At Times The Metaphor Is Just Too Real

2006-01-15T15:41:00.000-06:00

Some days would just be so much better with a M1A1 and a couple of spare magazines. You know?

Still Typing. . .

2006-01-07T08:46:00.000-06:00

Back To Work

Back to the grind, this last week. If you don’t do it (or haven’t done it), it’s hard to understand just how exhausting steady, heads down writing and research can be, physically as well as mentally. Needless to say, I’m happy I took advantage of the short, mid-Holiday week to decompress and catch up on things like putting stuff back in the library and the file room, but now I’m back in the middle of the wonderful world of appeals and it doesn’t look like the writing elves came in and finished up anything for me, so, once more into the breach. . . .

Epiphany

Not the Christian feast day (some times knows as the Twelfth Day of Christmas) which was yesterday, when I had this small ‘e’ epiphany, oddly enough. But rather “A sudden manifestation of the essence or meaning of something,” ss the American Heritage has it for definition 3a.

I’ve been watching the fourth season of The Shield, getting back up to speed for season five, which begins next Tuesday. Two things (maybe two and a half things) hit me:

1. Glenn Close is drop-dead gorgeous,
1.5. and a hell of an actor,
and
2. Michael Chiklis embodies to two archetypes of the American Police Officer. When the cops are dealing with us, we want the Commish to be the guy we’re talking to. When the cops are dealing with the bad guys, we want it to be Vic Mackey.
2.5 Chiklis is a hell of an actor, too.

2006

2006-01-01T09:00:00.000-06:00

Best Wishes for 2006

TWO DAYS IN A ROW!

2005-12-31T10:13:00.000-06:00

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.

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

2005-12-29T19:55:00.000-06:00

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.

Word Verification for Comments

2005-10-05T17:22:00.000-05:00

Sigh.

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.

The Working Poor

2005-09-06T08:26:00.000-05:00

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.

Still Here After All These Days

2005-08-30T15:35:00.000-05:00

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.

Nebraska man charged for sex with wife, 13

2005-07-26T18:59:00.000-05:00

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

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

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

2005-07-26T06:22:00.000-05:00

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

Fashion Editor Fired Over Blog

Requiescat In Pace James "Scotty" Doohan

2005-07-20T14:30:00.000-05:00

March 3, 1920 - July 20, 2005

The 36th Anniversary of Apollo XI Moon Landing

There Will Always Be An England

2005-07-08T07:25:00.000-05:00

As If We Needed Any More Proof

Click here to visit the UK Red Cross Site

From Dork Tower

Fathers Day 2005

2005-06-19T15:39:00.000-05:00

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 http://www.lileks.com/bleats and his Strib columns at http://www.startribune.com/stories/804/
(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: http://www.startribune.com/stories/1405/5462833.html See if your dad's there.

Yes, My Lovelies, I Have Not Forgotten You

2005-06-16T20:36:00.000-05:00

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.

So, What's A Lawyer Cost, Anyway?

2005-06-06T11:16:00.000-05:00

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.

Hypothetical

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.

Back To Those Comments

2005-05-28T20:21:00.000-05:00

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.

If You Read This

2005-05-27T10:53:00.000-05:00

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.

No, I Didn't Forget The Comments

2005-05-25T13:52:00.000-05:00

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?

2005-05-25T13:02:00.000-05:00

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.

Indigent Defense

2005-05-15T06:25:00.000-05:00

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 LandmarkCases.org 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.

There I Was. . .

2005-04-10T06:23:00.000-05:00

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.

If This Is Spring, Bring Back Winter

2005-04-03T08:43:00.000-05:00

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.

Once More Into the Breech

2005-03-29T17:33:00.000-06:00

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.

Back Again

2005-01-31T05:48:00.000-06:00

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.

What Does All This Have To Do With The Law? Hey! I’m A Lawyer And That’s Close Enough For Government Work.

2004-12-30T14:36:00.000-06:00

Missing In Action - Not Really

So, where the Hell have I been after making a big deal out of getting caught up and getting the ol’ writing batteries more or less recharged? To tell you the truth, I’ve been sort of zoning out over the holidays and not dong much of anything.

Work Is Still Work - Just Not Much Of It

Work has been at dead slow and steady as she goes for the last week and a half. Our Supreme Court sets the holiday schedule for all inferior courts and most counties just throw up their hands and adopt it, figuring "that’s one less thing to worry about in collective bargaining agreements." As a result, we generally have four day holiday weekends over the Christmas and New Year’s season. Our local courts pretty much go into stand-by mode for these two weeks. Even the crazed chief judge of arraignment court goes on vacation (I mean, consider - for six vacation days you get two full weeks off, with pay!) so no one is trying to do jury trials or anything too time consuming. The general rule of thumb for the assignment clerks is pre-trials, sentencings, pleas, settlements, uncontested divorces, and no-brainer motions only. Because our office is almost entirely court driven, this means a substantially reduced work load for these two weeks. We essentially go to half-staffing for the duration.

I’ve been doing some light adminstriva sort of work - figuring out how we’ll spend the intern budget for next year, reviewing a couple of requests for advice from local police departments, trying to sort out the implications of the Law Enforcement Officers Safety Act of 2004 for our concealed weapons charging policy, and generally wandering the halls with my coffee cup in hand, looking for people to talk to.

Home Away From Home

At home I’ve been house/dog-setting for the ex. She decided this was the last chance for a vacation with the kids before they are scattered to the four winds by all that adulthood stuff. Number 1 son graduates from high school this summer and will, we hope, be off to tech college. Number 2 son will be entering his senior year and, being a much more into high-school-as-a-life-style than Number 1, will probably be booked up for the entire school year. Number 1-and-only daughter is off on her own, in an east coast state with the current love of her life, trying to decide what she wants to be, now that she’s all grown up. So their mom comes up with a grand plan.

It starts with a call from one of those annoying time-share brokers. This one offers a cut-rate cruse to the Bahamas between Christmas and New Year’s with a couple of days in time-share condos in Daytona Beach and Orlando leading into dates of the cruise. She’s already booked the weeks of Christmas and New Year’s for vacation, so that’s no problem. The boys’ last day of school is the 19th and they don’t go back until the 3rd, so that’s no problem. What to do with the five days between the end of school and the beginning of the cruise? Visit Number 1-and-only daughter!

Now, to add to the merriment, Number 1 son is a typical 18 year-old high schooler. That is to say, he’d rather have multiple root canals without anaesthesia than spend more than four hours in a row with either of his parents, particularly his mother! So she bribes him by offering to take his best buddy, who is also kind of a pal of Number 2 son. Do you begin to see the picture? Mom, with three teenaged boy (a matched set of a 16, an almost 17,and a just 18 year old – the nadir of male adolescence) sets out on a whirlwind tour with four stops in six days before the cruise ship departs for the islands. When she explains this to me, I flash on "If It’s Tuesday, This Must Be Belgium" but years and years of experience allow me to keep my mouth shut. The only problem is what to do with the damn’ dog.

It's A Dog's Life

Well, Hell. I can’t take him because the condo association has a weird dog size rule - nothing more than 30 pounds - and Buddy, scrawny mutant Lab mix that he is, still weighs 50 or so pounds. The irony here is that I’m renting the condo from the ex, and the lease form she used for the previous tenants expressly stated NO PETS. (It’s a long and boring story, don’t ask.) Anyway, even though we don’t have a lease, and she’s willing to risk Buddy trashing the place, I’m not willing to start anything with the neighbors/association ‘cause we/she have been a little bit confrontational with them about non-owner occupation over the last four or five years. So, given that we live all of a mile, literally down the road, apart, I offer to stay with the mutt and run back an forth for a couple of weeks.

So far, it’s actually working out without driving either Buddy or me insane - well, more insane than when we started. My online classes went on break on the 22nd, so I only needed to use my own computer to access the online classrooms for three days - the grading and feedback I can prepare from any computer with Office installed. Which is what I should be doing instead of this. But it’s my break, too, so there.

The lovely thing about being here, rather than my place, is I don’t feel obligated to work on work or class stuff (other than the grading stuff mentioned above.) None of the working files for the upcoming classes or pending briefs are on her computer, and the work stuff probably shouldn’t be anyway. Nor do I feel any compulsion to do any of the dozens of little household tasks I have on my to-do list over at the condo. Out of sight, out of mind. I do swing by every day or so to swap out underwear and such and to check the email to keep the spam under control. And the regular junk mail, too. I’ll be going over shortly to post grades and feedback for the last week of classes before the break - thereby starting a week where I have no obligations at all, other than to the damn’ dog.

Goals, You Have To Have Goals (or is that Goa'ulds?)

I fully intend to take the opportunity to watch my backlog of DVDs so I can start the New Year with a clean coffee table. I’ve made a respectable start, if I do say so myself. I finished season 6 of Stargate: SG-1, the final chapter of my marathon re-watching of the entire corpus from season 1 on which was inspired by watching the season 7 DVDs when they came out a couple of months ago. Then I went through the first and only season of Eerie, Indiana. A remarkable effort that, were it offered on USA or TNT, might actually find an audience today.

After the surreal world of Eerie, IN, I watched the first season of The 4400, USA networks’ take on alien abductions and returns. I am currently watching set 1 of the recollected Rumpole of the Bailey consisting of series 1 and 2 and the made for TV movie "Rumpole Returns."(or maybe it’s "The Return of Rumpole" I forget.) Each "series" amounts to 6 episodes - a practice fans of English TV shows are quite familiar with. Set 2, consisting of series 3 and series 4 is waiting in the wings. Speaking of wings - I hope to follow that with season 3 of The West Wing. Sometime in there I’ll ,manage to get to The Office Special. God, life it good!

Hell Raising At Home For Fun And Profit -- Well, Fun, Anyway.

In between letting the dog in and out of the house 50 or 60 times a day and wearing a MisterDA sized depression in the new love seat in the TV corner, I’ve been rediscovering the mindless fun of Diablo II with the Lord of Destruction expansion pack. That and trying to figure out why it appears to make the wife’s computer randomly blue-screen-of-death-II reboot with an error generated by the CPU that indicates it involves a hardware or bus problem that may include the CPU itself. Wonderful. The first time it happens I recall Number 1 son complaining about the same thing when playing the online game Ruenscape on his mom’s computer.

He didn’t like playing on his computer, even though the problem didn’t occur there, because the 802.11b link was too slow. I suggested that he take some of his money from his horde and buy an 802.11g airport/router for his mom’s workstation to replace the 802.11b unit that was there, and an 802.11g network card for his computer. Seeing as that would mean spending about 70 bucks of his own loot, he asked for alternatives. I observed that there was a Cat-5 line running from one the router’s hardware ports down an air return, across the floor of this room to his X-Box. Yeah, says he, so what? So, take 20 bucks of your horde and buy an Ethernet card for your computer and I’ll help you install it. So we do that and Runescape runs fine on his computer. Still a tiny bit slow - the difference between an 860 MHz Pentium III with an 32 MB ATI Radon video card and a 600 MHz Celeron with a generic Nvidia card, I suppose. But no blue-screen-of-death-II crashes.

So, Diablo cause the same problem. I ran MemTest86 in standard test mode for 24+ hours with no RAM errors found. I opened the case an moved cards about to make sure the Radon card was getting air circulation - I even reinstalled the slot fan I’d used while waiting for a new power supply after the original’s fan died. I even tried returning to the onboard Intel video but the damn’ drivers won’t install properly and Diablo can’t find a video mode that it can use, so I’m left to conclude it is either the video card - a pain in the ass to replace as this is a PCI only mother board, or the CPU, an even worse pain in the ass to replace - tried to find a Pentium III lately?

More, later. I hear my 9th level Sorceress, Willow, calling. It's time to kick some more monster ass!

I'm Back!

2004-12-20T08:39:00.000-06:00

I admit, I’ve been a little remiss in updating this thing the past couple of weeks. As I think I’ve noted before, as an appellate specialist in a prosecutor’s office, I pretty much write for a living. Creative writing, in a way, on deadlines that really mean something.

Now, by ‘creative’ I don’t mean I get to make it all up! No, that’s what the other side gets to do. What I mean is that I often have to find ways to present fairly mundane facts and routine applications of well settled law in ways that will not cause the judges and/or law clerks reading my brief to doze off, smashing their heads/faces on various items of furniture. Well, not more than once an issue, anyway. This is harder than you might think.

Aside:

Contrary to the way it is portrayed in the wonderful world of mass market entertainment, much of the practice of criminal law is boring and routine. Take a look at this post by a public defender who is being introduced to drunk driving defense. Holdin' a Deuce? Then you're a pain in the ass. . . (Her title, not mine.) Trust me, it’s the same from this side. When I was doing arraignment court prosecutions we (and by ‘we’ I mean the APAs and defense attorneys) used to joke that the defendant’s were probably being honest when they said they only had two beers – the first one and the last one. Everything in between was just a golden glow.

Repetitive, unoriginal work of any sort is harder than unique, original work. I don’t care if it’s digging ditches or cranking out appellate briefs. That’s what I’ve been doing the last few weeks. Answering unoriginal, unimaginative criminal appeals. The sort where, when you strip away all the make weight issues, amount to a whine that the jury believed the victim (or the State’s witnesses) rather than the defendant (or the defendant’s witnesses). If I had a dollar for every time I have actually written that sentiment in a brief I’d be able to buy that Palm Tungsten I’ve been drooling over at Big Boxes R Us.

Anyway, once I manage to stagger home and up the stairs to the PC, check the dozens of spam emails that I have received in the preceding 12 or so hours, deal with the few real emails, and review and post comments to the two/three online classes I’m teaching this week, the last thing I want to do is write some more. Sigh.

Well, last Monday I finished the last of the October crop of briefs (with two days to spare) and have been occupying myself with things like returning everything to its proper place, filing the unending stream of newsletters, tracking down various treatises and practice guides so the current updates can be posted, and reviewing and making notes on the next crop of briefs. Amazingly, from nothing pending on Monday, I have gone to four due in February in the space of about three days. If anyone cares, the due dates are 9, 10, 11, and 15 February. What this means, is that I’ve had, in effect, three days off. So I actually have some energy to expend on the blog. Imagine that.

Plea Bargains

2004-11-27T06:36:00.000-06:00

Puzzled

So far, I haven’t been too vocal on some of the issues that float around the legal weblog world that are specific to criminal justice. I’ve spent a fair amount of time going into the how of prosecution decision making (i.e. all that stuff on warrants), a little bit on life in my world in the office and in the appellate courts, and some personal stuff. But a couple of things caught my eye and have apparently been churning around in my sub-conscious for a while. So I thought I’d share some thoughts on a prosecutor’s perspective on one of those topics - plea bargains.

Everyone knows what a plea bargain is, I suppose. Technically, it’s when the prosecuting officer determines that a bird-in-the-hand is worth two-in-the-bush and reduces or modifies the already issued charge (or charges) against a defendant in return for a guilty plea to the modified/reduced charge. The term is also used, somewhat loosely, to refer to sentence bargains and charge bargains.

In a sentence bargain, the prosecutor recommends a particular sentence to the court - depending on the state the court may or may not be involved in the negotiation and may or may not be bound by the recommendation. Note: In the federal system, pre-Blakely and pre-Fanfan and/or Booker, it looks to me like the US Attorney can pretty much guarantee a sentence bargain by careful manipulation of the "facts" submitted to the court for sentencing.

In a charge bargain, a potential defendant comes to the prosecutor, before a warrant is issued, and says something like ‘look, I did this thing and you’re going to find out about it. I’ll plead to a charge of {fill in the blank}’ and the prosecutor agrees and issues the warrant for the charge of {fill in the blank} and the defendant pleads guilty, as charged.

So, what’s the deal? Everyone knows about this, and, I suppose, the reasons cited for approving the practice. Heck, Chief Justice Burger even said,

"The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities." Santobello v New York , 404 U.S. 257, 261 (1971).

Well, this.

A while ago, a public defender blogging as Blond Justice posted a note about being a bit too busy to blog because she had been in a longish trial that her client had to do because there was no plea offer. Go here to see the post and the ensuing comments. Apparently this lodged in some hidden recess of what I like to call "my mind," and has been working away ever since. I woke up this morning at an ungodly hour, probably because I’d had two days off and my reptile brain figured it must be Monday! As I tried to return to the arms of Morpheus, one of the comments from that blog post jumped up and refused to leave me alone. So, here I am, at the keyboard, while the world is dark and cold and trying to make up its mind whether to rain or snow, thinking about plea bargains! You can read the initial post and the comments .

Now, what appears to have nestled into my sub-conscious and fermented (festered, you pick) are two things. First, Blond Justice’s comment about her client having no choice but tp do the trial, and, second, the comment "No offer? Shame." Well, three thing. The very first reply/comment about shouldn’t there be an offer to save the taxpayers the cost of a trial, also popped up this morning.

So what, exactly, is it that bothers me about this? I think it’s the sense of entitlement I get. When did the idea that there is a ‘right’ to a reduced charge become the norm in criminal law circles? Around here, it was sometime in the last 10 years or so. When I first started doing criminal law, as a law student intern in 1986, everyone I dealt with, prosecutors and defense counsel alike, knew that there were cases where an offer was routine (e. g. the offer on first offense possession of a personal use quantity of marihuana was almost always plead as charged with a delayed sentence and dismissal after a year’s non-reporting probation - or sometimes reporting if the judge didn’t like the defendant’s looks or something) and there were cases where no offer was the routine. For example, domestic violence, child abuse, destruction of public property, second or greater drunk driving cases. Of course, nothing is absolute in the real world.

The best defense attorneys would fly-speck a police report, maybe talk to a witness or two, and decide how likely a jury conviction was, based on their own experience. Note how much this is like the initial decision by the APA who reviews a warrant request. The difference, in misdemeanor cases, by and large, is that the defense attorney is looking at the case after having met with the defendant and evaluated his or her story first hand. Also, in my town it is not unlikely that the defense attorney will have more experience, sometimes significantly more experience, trying cases than the APA who reviewed the warrant request. Armed with this more intimate knowledge of the case and the client, defense counsel may very well be able to convince the trial APA that a better offer, or a below policy offer might be advisable. But if the APA determined that it wasn’t, no one complained about doing a trial.

When I did my basic course, years and years ago, that if an unrepresented defendant told me he didn’t do it and meant factually he didn’t do it, not that he just didn’t think he was responsible because he didn’t understand the law, I should not offer a plea bargain of any sort because to do so might induce an innocent man to plead guilty! Somehow, I suspect that particular idea may have fallen by the wayside in some jurisdictions. Indeed, raising this issue on appeal hasn’t been all that fruitful. See, for example, North Carolina v Alford where the Supreme Court essentially told Alford "tough luck. If you didn’t do it, don’t plead to it." And, ethics aside, there are other grounds on which to look askance at the whole idea of plea bargains. I’m not all that sure I follow the rational offered by this author , but it’s not all that far out, particularly in the situation the author seems most concerned about - lesser pleas offered to co-defendant’s.

All of which is a bit afield of where I started, isn’t it. I guess what bothers me is the idea that the criminal law has a built in reduction in culpability that a the defendant deserves. In my opinion that way of thinking leads, inevitably, to systematic overcharging by prosecutors is such a subtle way that no one notices until the charging standard slipped from can you prove this charge beyond a reasonable doubt to is it possible you can prove this charge beyond a reasonable doubt to there’s probable cause to charge this, and he’ll plead to this lesser/alternative charge. The de jure standard is still can you prove it beyond a reasonable doubt, but the de facto standard is something less. Not to mention that it doesn’t jibe with my ideas on what the purpose of the criminal law is. But I’m far from the mainstream there, so maybe I am getting worked up over nothing.

Consider this, though. If you do an illegal act, if you hit all the elements of, for example, drunk driving, why should you expect not to be held to account for exactly what you did? Why should your willingness to plead guilty induce me to give you a reduced charge just to avoid presenting the case to a jury and letting the facts be determined by your peers? Isn’t mercy, in the form of mitigating circumstances at sentencing the role of the judge?

And thus we come, by very roundabout means, back to Blakely and role of judges and juries. I suppose some of the urgency about plea bargains can be charged to the morass of mandatory minimum sentences and guidelines that have been forced on judges in the name of getting tough on crime over the years. In my state, at least, none of that nonsense applies to misdemeanor cases, so a judge can still be merciful within the dictates of his own conscience.

Intermission

2004-11-15T22:09:00.000-06:00

Now that you know more then you ever wanted to know about the genesis of an arrest warrant, I thought I’d take a break and natter on about some other subject for a while. What would be a good subject? I know!

What Mr. DA’s Been Watching Lately

Somewhere down in the mists of the first entries I think I mentioned I’m something of a TV addict? Well, addict is probably too harsh a word. I’m still getting by on one VCR and a pseudo-DVR lash-up with my ATI All-In-Wonder card hooked to splitter off the cable modem. And I’ve spent way less money on DVDs so far this month. The entertainment budget may be put to the test tomorrow. The seventh, final, season of Buffy hits the shelves, along with season 3 of Smallville and the complete Buck Rogers collection. Decisions, always more damn’ decisions. Based on a number of factors, mostly having to do with length of time since I’ve seen the original airings, I think I’ll have to go with Buffy. See if my logic is, well, logical.

On the one hand, Buck Rogers ran from 1979 to 1981, with 37 episodes. I watched pretty much all of them at the time. Call it 25 years ago. I have vague memories of Erin Grey as the hottest S-F babe up to that point, but that’s about all. On the other hand, Smallville Season 3 is last years first-run and I saw all of those in the original order and in random re-runs. I have a pretty good recollection of the season’s arc and the stand-alone shows alike. So, not really needing to catch up. On the gripping hand it’s been a couple of years without a Buffy fix on a regular basis. For various scheduling reasons I never got into the habit of catching the FX re-runs (scheduling and the way they cut to gain time for more and more commercials, that is) sooo. . . I’ve been too long without Sara Michelle Geller and Allison Hannigan, not to mention Emma Claufield. On, yeah, and the writing - always the writing. Yep, Buffy season seven it is.
Well, that takes care of tomorrow and that collection will go into the to-be-viewed pile with season three of The West Wing; We Were Soldiers Once; Tombstone; High Noon; Rocketship X-M (don’t ask); The Stone Reader; and Kingdom Hospital. Currently, Stargate SG:1, season seven, is working its way through my DVD player.

And here's an bit of trivia for you -- A Stargate SG:1 season takes almost twice as long to re-experience as any other show because every episode has an audio commentary, and if you have any interest at all in how the process of making a weekly television show works, they are well worth the time. That, and it is really clear that the people of this cast and crew like each other, a lot, and are having an amazingly good time doing both the show and the DVD commentaries.

Mr. DA's Pick Of The Law Shows

I have a very low tolerance for legal/cop dramas, for the most part. Of the current crop, the only one I care to spend time on is The Wire on HBO. Hands down, this is the best police show on the tube. The first season, available on DVD was excellent - every bit as good as the first four seasons of Homicide - Life On The Street. Not surprising seeing as David Simon provided the core for both shows. Simon wrote the book that Homicide. . . was based on. Called, oddly enough, Homicide: A Year On The Killing Streets.

The Wire is just great. It's like Joseph Wambaugh on steroids and crack. The second season, coming on DVD early next year, was even better than the first for showing the reality of serious, major crime investigation. The third season, currently in first-run, I don't know. I've been having a friend tape the shows and am just getting into the first couple of episodes, so things are still taking shape.

In second place for the cop shows is The Shield. Guilty pleasure. Pure and simple. Suspend your disbelief and sit back for the ride. This is like NYPD Blue on steroids and then some. Great acting, and just plain cool stuff. Favorite scene - Vic Mackey, in foot pursuit of a street punk, runs full tilt into a board fence across an alley -- and runs right through it in a very satisfying explosion of pieces of wood. Like I said, guilty pleasure.

General legal hijinks -- Boston Legal. The spirit if not the reality of the life of the law. Ally McBeal meets The Practice. Watch just one episode to see William Shatner chew up the scenery and demonstrate why he's had one successful series after another. Not to mention he's looking pretty good for a guy who's going to be 74 next year.

That's about it. I don't like Law and Order in any flavor, and I hate CSI whatever. I can watch NYPD Blue but it kind of lost its appeal for me when they offed Jimmy Smits. Loved The Job, Dennis Leary's first series, and really want the DVDs to come out real soon now. Next - Lawyer Movies!

Is It Soup Yet?

2004-11-12T13:42:00.000-06:00

Not quite yet.

OK. To recap: Request by police to charge someone; reviewed by an APA to determine whether there is a crime and, if so, which one; further review by the APA to decide whether the degree of proof represented by the police report satisfies the elected prosecutor’s criteria that the case, as it now exists, can be proved to a jury beyond a reasonable doubt; assuming it can, the request is marked up with the necessary statutory language selections and returned to Intake; paper warrant is generated and then signed by the APA, authorizing the issuance of the warrant; complaint portion of the package is sworn to by an officer, either before the clerk of the court or a magistrate. Hang on, we’re almost there.

Finally!

At this point we’ve almost got our warrant. The final step (usually) is for a "neutral, detached judicial officer" to review the basis for the complaint and decide if there is probable cause to believe the specified crime has been committed and that the named individual did it. Huh? You may well ask. What was all that rigamarole with the APA? Didn’t that amount to a determination that a crime was committed, etcetera, etcetera? Well, consider:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be eized."

Look familiar? Of course! It’s the Fourth Amendment to the U.S. Constitution. And, like much of that document, it assumes things that were so obvious to the framers that they didn’t bother to spell them out. Most importantly, for this discussion, that the person making that probable cause determination is a person who has no interest in whether the warrant does, in fact, issue. That is, someone other than the police or the prosecutor, usually referred to as a neutral and detached (or disinterested) judicial officer. In our case a misdemeanor court judge or a magistrate of that court. Most of the time, the magistrate will agree that the facts and circumstances demonstrate probable cause sufficient to begin a criminal prosecution. Sometimes they don’t. Then what happens?

In some cases, the magistrate simply thinks there is a missing element of the crime. For example, there is insufficient proof of the value of stolen property to support the degree of offense charged. Generally, these kinds of deficiency are easy enough to fix. In other cases, the magistrate disagrees that a crime has been made out. Those are a bit harder to resolve.

If the problem is that the magistrate doesn’t understand the law, that can be addressed in as politic a manner as possible. There have been occasions when the chief assistant or even the elected prosecutor have found themselves conducting a one-on-one seminar in some esoteric aspect of substantive criminal law for one of our judges. I mean, let’s face it – legislatures can get up to some real hijinks when they take a first run as things like identity theft, elder abuse, revisions to the drunk driving statutes, and so on. Not to mention the hilarity that can ensue when they attempt to revise statutes that have remained essentially unchanged for 150 years or so. In all fairness to the magistrates and judges of high volume courts, it can be a little difficult at times to keep up with 1) the volume of legislation relating to criminal law and procedure, and 2) the volume of case law on the same topics. When you explain changes in either the letter or the interpretation of the law, supported by real evidence that things are pretty much the way you claim, most of the time the problem goes away. Not always, though. That, however, is a highly unusual situation and will be considered at another time. For now, let's assume the magistrate takes a look at the complaint, reviews any documentation, and signs the warrant. That's the point where criminal process is said to have issued.

The warrant, authorized and issued, is returned to the requesting police agency and next steps in the process are up to the officers.

How long does this whole process take? Depends on the case and how badly the warrant is needed. I've seen attempt murder warrants issued in two to three hours. On the other hand, I've seen complex drug conspiracy warrants that spent weeks between the submission of the request and the issuance of the warrant. Average time for non-custody misdemeanors and low-grade felonies -- about a week.

The Saga Continues

2004-11-05T17:58:00.000-06:00

Is It A Warrant Yet?

No, not quite yet.

At this point, an APA has exercised her massive intellect and experience and determined, based on the information she has before her, that the specified charge can be proved to a jury, beyond a reasonable doubt. She has marked up the request packet with the statutory language of the charge or charges, making the language specific to this offense and this offender. She’s noted any special notices that need to be added. (E.g. habitual offender, felony involving a minor, felony involving a motor vehicle, etc.) She’s marked the witnesses to be subpoenaed for the probable cause hearing, and, finally, she has initialed and dated the authorization box. At this point the packet goes to a warrant clerk to be prepared.

Slight digression -- before the request is sent to an APA for review, the intake section has logged it in, assigned a tracking number, made sure all the required bits are there, and entered the basic information into the case management program. In fact, this is all done more or less at the same time. The unique tracking number is assigned by the program when the request is logged in. This number stays with this request/case from now on, come what may. After this administrative folderol is accomplished, the request is assigned to a screening APA.

Back to the main event. The APA has authorized the issuance of a warrant to arrest some poor unsuspecting criminal. How does that get into the hands of the folks who are charged with making that arrest? The warrant clerk takes the packet and calls up the initial case file using the tracking number. The defendant's name and basic information, along with the statutory citation for the requested charge, have already been entered so the next step is the fine detail. The actual charge as customized by the screening APA. Any notices that have to be included. The names and addresses and witness type for all of the listed witnesses. The ones the APA has marked for subpoenas are flagged. Any special categories of crime are noted at this point. E.g. domestic violence, firearm, major narcotics, etc.

Once the program auditor is satisfied that all the required information has been entered, a warrant set is printed. In our case, it's a plain paper warrant generated via an HP LaserJet. The warrant clerk assembles the whole packet in the proper order, staples it together and puts the whole thing back in the APA's box for final review and signature.

Generally, within a hour or two of the final packet being dropped in her box, the screening APA will review the warrant for correctness (no typos, no mis-marked variables, proper notices) and sign and date the authorization block. Then the whole thing goes back to the warrant clerk to be sorted in the holding bin for the appropriate police agency.

Are We There Yet?

No. The APA, acting on the authority of the Prosecuting Attorney, has authorized the issuance of the warrant. It's still not a warrant. Looks a lot like one, but it hasn't been issued because it's missing two important things. First, the signature, under oath, of a police officer (or other witness) attesting to the facts on a complaint. A complaint is part of the warrant packet, and looks a lot like the companion warrant. The complaint sets out the facts that show a crime was committed. The complaint is usually signed by an officer "on information and belief" but sometimes it's a civilian witness with actual, personal knowledge of the facts. Either way, that signature says that, to the best of the signatory's knowledge, the crime alleged in the warrant happened, and the defendant named thereon did it. This oath and signature can be administered/witnessed by a judge, a magistrate, or a clerk of the court. If the complaint is signed before a clerk, it's set aside for final review by a judge or magistrate. If it's sworn to and signed before a judge or magistrate, in the normal course of events they will review the warrant and determine if they agree with the APA that there is, at this point, probable cause to believe a crime was committed and that the named defendant committed it.

More Warrant Stuff

2004-10-29T21:41:00.000-05:00

Now, Where Was I. . .

Well, OK, after reviewing where I was when I last posted (really, I want to update this more than once a week, the day job just hasn't cooperated) we were talking about how a request for a warrant is review and authorized. So far, we've talked about two, general, standards for authorization of criminal charges. The first is mere probable cause that the suspect committed the crime. The second, and most common in my experience, is the likelihood of proving the case to a jury, beyond a reasonable doubt. There is a third standard that may be used, depending on the philosophy of the head prosecutor. In my own mind I call it the "certainty of conviction" standard.

Now, whenever a jury is involved, there is no such thing as a sure thing. There just isn't. In our system of adversarial trial there is this little doctrine that prosecutors hate to talk about called jury nullification.

Stand By, Digression Ahead!

What that means, essentially, is that the jury, as the conscience of the community, can ignore its oath and acquit the defendant regardless of how overwhelming the evidence against him is. The most famous example of mass jury nullification involves the fugitive slave law of 1850. This law required all citizens to assist in the recapture of fugitive slaves, regardless of whether slavery was legal in state where the alleged offense occurred or not. Northern juries routinely acquitted abolitionists who were charged under that law. There are legal historians who believe the modern judicial hostility to jury nullification originated in this era. But see this site for more than you probably want to know about the subject. Suffice it to say, a jury can acquit for any reason, or for no reason, and the verdict is immune to attack.

Brace For De-Digression!

As I was saying, there is no 100% certain verdict in any trial, let alone a criminal prosecution with the beyond a reasonable doubt burden of proof. But an experienced trial attorney, assisted by experienced investigators, can generally come up with a pretty fair idea of what a typical jury in her jurisdiction will do. When applying this standard, review and authorization may take substantially longer, but the final decision to charge is going to be as close to a lock as it ever gets. So, given the time and effort it takes to apply this standard, when would an over-worked, under-staffed government bureaucracy ever invoke it?

There are those cases where an elected prosecutor (and almost all of them are elected) will tread very carefully before authorizing a felony warrant. Some examples, cases where prominent local politicians or citizens are accused of particularly nasty crimes, cases where a bad guy winds up dead at the hands of a citizen under suspicious circumstances, cases were the victim is a popular or highly sympathetic figure, or the suspect is a popular or highly sympathetic figure, that sort of thing. Basically, cases where you need to win if you charge it.

On the other hand, some times the suspect is so well known, etc. that your discretion not to charge is severely limited. Does anyone think O. J. wasn't going to be charged with something after the slow-speed chase?

Next time: What happens after the darn thing is authorized?

Felony Warrants, Get Your Felony Warrants Right Here

2004-10-14T22:33:00.000-05:00

So What Really Happens

to turn Sammy Suspect into Danny Defendant? The short answer is that the cops convince the reviewing APA that s/he should authorize the issuance of an arrest warrant. The long answer follows.

There are, in practice, a number of different standards that can be used to determine whether a warrant should be authorized. They boil down to three, in my experience. The lowest, and the one I've never heard of being the official policy of any of the offices I'm familiar with, is probable cause. Probable cause is the standard applied by the judicial officer who issues the warrant once it has been authorized by the prosecutor. It would seem logical to use the same standard, more or less, for authorization in the first place, you'd think. But it's really not.

Most of the time, when a felony warrant request hits the desk of some lucky APA it's an indication that the police think the investigation is complete. There are, obviously, exceptions. But for the run of the mill felony, e. g. a breaking and entering or a serious assault, when the warrant request is submitted, the police don't expect to do much more than serve the warrant and any subsequent subpoenas for court proceedings. This belief is not always shared by the reviewing APA.

Sometimes the problems are minor administrative or clerical glitches like an incomplete witness list or a missing criminal history. Sometimes they are major administrative or clerical hitches like a missing report from an other officer or an assisting agency. And sometimes they are just plain screwed up. Examples of the last category are eye witnesses who were not interviewed, controlled substances with no weight, or stolen property with no description or value.

If the standard for authorization is only probable cause, the same probable cause that justifies an officer in making an arrest, then it is more than likely that warrants could be (hell, would be) authorized before the investigation is complete. And an authorized warrant most generally rings the final bell on any run of the mill investigation.

Don't misunderstand me on that. I'm not saying there is never any follow-up investigation once an APA puts her Joan Hancock on a warrant authorization. There often is. Serious felonies like murder, rape, large scale theft/embezzlement, major weight drug offenses, and the like are going to involve active investigations right up to the time the judge charges the jury. But a B and E of a store, a low grade concealed weapons charge, minor drug possession, petty theft and similar property crimes are not likely to inspire CSI-like investigative efforts. There is a lot of crime out there, and a limited number of police officers to investigate it. Add in local idiocies like a major department that does not allow uniformed officers to do any investigation beyond the immediate incident report, and you have a serious, on going resource allocation problem. This is just a fact of life for police supervisors and prosecutors alike.

So what does a canny boss prosecutor do to minimize the number of cases that are authorized without sufficient investigation? He institutes a policy of only authorizing cases that, at the time of authorization, in the opinion of the authorizing APA, can be proved to a jury beyond a reasonable doubt. The way our charging policy explains this is by directing the screening APAs to ask themselves this question: If you were to take this case, as it now exists, with the testimony of the witnesses, and the other evidence, conforming to what is represented in the police report, could you prove this case to a jury, beyond a reasonable doubt? If the answer is "yes" authorize the warrant. If the answer is "no" why is it "no" and what needs to be done to change the answer to "yes?"

When the answer is, in fact, "no" the reviewing APA writes a detailed note on the request to charge, explaining just what she thinks is necessary to get to "yes" and returns the package to the requesting agency.

More, anon.

So, What Do Prosecutors Do, Anyway?

2004-10-12T18:59:00.000-05:00

Other than crush crime, fight for truth, justice, and the American way, and help little old ladies across the street, you mean?

Based on questions I get from my business law students, I have the idea that a lot of people don't have a very good idea on how things work in the non-TV world of prosecution (law enforcement in general, for that matter) so I thought I would spend a few posts talking about how a typical mid-sized prosecuting attorney's office works. You have to keep a couple of things in mind. First, there are, generally speaking, 52 jurisdictions in this United States of ours. Fifty states, the federal government, and the District of Columbia. Maybe that's only 51.5 with DC. I don't know enough to know whether or not the District is really all that separate from the federal system in general. However you count them, that's a lot of different ways of doing things: defining crimes; setting procedural rules; establishing responsibilities for different functions -- heck, just deciding what the functions are and who is going to do what is a big deal.

Second, within most of those jurisdictions, there are smaller units of government that, in most cases, are the ones charged with providing front line criminal justice services. Most of us call these things "counties" (parishes in Louisiana, boroughs in Alaska, and they don't count at all in Connecticut and Rhode Island) and there are a lot of them. Three thousand and thirty-three of them, plus 33 city/county combined governments, according to the National Association of Counties. This means, in addition to the gross differences between states, there are at least 3066 different ways of doing everything involved in the criminal justice realm. And I'm only talking about prosecutions on behalf of the State of {fill in the blank}, or the People of the State of {fill in the blank}, or the Commonwealth of {fill in the blank}. This does not take into account the prosecutions initiated by City, Town(ship), Village, or what have you attorneys and the infinite number of ways those things can proceed. So, consider that what I tell you about a a typical office here in the vast Midwest may not even be close to what your county/parish/ borough/city/etc. government does.

Job One

So, what is the number one job of the prosecuting attorney? Well, like everything else in the wacky world of criminal justice, it's subject to debate, but my pick (and it's my blog, so there) is the authorization of criminal warrants. Every other core function of the office flows from this activity. And here's where your mileage may really vary.

And why is that, exactly? Because every state has different ideas of how to get from the police investigation to the formal institution of charges against a suspect. This is most obvious in the prosecution of misdemeanor charges. Some states allow the police to issue a citation and proceed on that up to the point where the defendant enters a formal plea of not guilty. At that point the prosecutor becomes involved. Some states allow minor offenses or offenses of a specified type (e.g. traffic, or fish and game violations) to proceed to completion without the prosecutor ever being involved. Usually, these are offenses where there is no right to a jury trial. On felonies, things tend to be more similar from state to state. In part, this is because of constitutional limits on how long the police may detain a suspect before they must bring him before a judicial officer, and what the judicial officer is supposed to do once the miscreant is before him or her.

More, later.

Still Not Dead

2004-10-12T18:45:00.000-05:00

Still Here, Head Down, Fingers Flying

Still doing heavy duty, production writing at work. Five co-defendants, convicted of felony assault. One of the five, the most egregious of the bunch, plead guilty. Four were tried in a single jury trial last year and convicted of various things. Three of the four claimed their right to appeal . This month, all three briefs trickled in. And the only thing they all have in common is a complaint about the scoring of one item of the sentencing guidelines. Well, there is some savings of time, over the long haul. I only have to do the statement of facts once, then adjust it based on which brief I'm replying to. But it can get boring in a hurry.

What's Up With Mister DA

2004-10-05T18:11:00.000-05:00

MIA No More

Geez, it's been awhile since I posted, hasn't it? To the one or two faithful fans, my apologies. I know how irritating it is to keep hitting a site and find it hasn't been updated FOREVER!

I've been doing head down writing the last two weeks, and the last thing I've wanted to do when I got home was strap on another monitor and keyboard and strain the eyes a bit more. If you know what I mean. Today, I finished 99% of a big deal application for leave to appeal to our state supreme court (all that's left is formatting stuff and getting the proofs of service right), so I took a little break and started to inventory the library. Ah, restful. At any rate, I feel up to a few lines here, so no one thinks I've died. Or gone over to the dark side, or something.

Ken Lammers sent me an invitation to guest blog on his CrimLaw blog while he was away, but something in my privacy software grunged it, so, I guess I missed my chance at fame and fortune. Thanks, anyway, Ken.

Let me tell you about last Friday. You might remember my comment about some days you eat the bear. . .? Well, Friday last was clearly one of those days the bear looks forward to.

Recall the two day adventure I described at the Wonderful World of Oz we like to call our intermediate appellate court? Well, the opinions showed up in the morning e-mail last Friday. This is all of what, three weeks since oral argument? If that's what you can call it. Actually, this is about a week longer than usual. More proof that the panels write the opinions well before the argument. but let me back up a step.

Friday was the day set for my augment in one of our felony parts, regarding an appeal of a arraignment court decision on a probable cause hearing. In brief, our defendant either clotheslines or grabbed and threw on the ground a genial drunk who was wheeling by on his bicycle. The drunk hits the ground, head first, and doesn't move. Defendant runs off and bystanders call 911. The victim is messed up -- a lot. He's currently a resident of an extended care facility and will probably be there for a long, long time. The magistrate declined to hold our defendant for trial on the felony assault charge, opining that he didn't believe there was any intent to injure the victim. Sigh.

In our state, intent is almost always a jury question. As long as there is some evidence that there was a felonious intent, the magistrate is supposed to send the matter to the felony court. Or, in this case it could have been held as an aggravated battery, a one year misdemeanor. That is, the maximum sentence of confinement could not exceed one year in the County jail. Our least favorite judge did neither, dismissing the whole matter out of hand. At that point, we have an appeal of right to the general trial court. Friday was our day to argue.

Opposing counsel is a mellow general practice lawyer who is one of my contemporaries from undergraduate days and who actually married one of my high school classmates after we graduated from college. We lost touch, except for one or two high school reunions when he would accompany his wife back to the glory days of our misspent youth. Then, here he is, practicing law, right where I wind up, practicing law, 27 years after college.

Like I said. He's pretty mellow about it, as is the judge, another more or less contemporary of mine, by age if nothing else. We're the only thing on his docket this morning so, after we run down the court reporter, we get on with it.

A lovely, civilized 'argument' with the dispute clearly stated and a pretty good possibility I'm going to win. What a lovely start to a slow day. Ha!

I'm back in the office about 20 seconds before my secretary and the juvenile secretary (she's the secretary for the juvenile division, if you were wondering) corner me and want to know if I've seen the opinions. Now, I went from the parking lot to my office, picked up my case file, and went directly to the judge's chambers and from there to the courtroom and now I am standing in the door between the victims' rights office and the main corridor of the suite. When, exactly, I am to have seen anything is a mystery. At least to me.

Anyway, no surprise on the parental right termination case - reversed, remanded, etc., etc. On the evasive drunk, kind of disappointing - drunk driving convictions reversed, resisting arrest reversed, failure to report a serious accident, affirmed. Sigh. I wish they would have asked questions. Apparently, the panel felt if the officers had time to get a blood draw search warrant after they winkled the defendant from his den, they had time to get a search warrant for him before prying him out of his hole. Not a lot of weeping and wailing and gnashing of teeth on this one - the judge lo-balled the sentence and, as far as I know, defendant was discharged from probation a couple of months ago.

Today, the bear seems to be tucking in his bib and settling in for a good meal. Ah, well.

Once More, Into The Breach Dear Friends

2004-09-23T20:37:00.000-05:00

Day Two In Wonderland

So, here I am, back in the land that law forgot, for the second day running. Today’s case is a felony drunk driving were the defendant managed to get charged with two counts, which just seems to have irritated retained appellate counsel beyond all reason.
The argument on appeal is that it is not fair that the witnesses, friends and neighbors of the defendant, fingered him for the sheriff’s deputy who investigated his one car rollover accident. That it’s not fair that the police information network was able to tell the deputy where he lived, according to his drivers’ licence information. That it’s not fair that the same police information network was able to provide the deputy with the dates of his several previous drunk driving convictions so the deputy was aware that he was investigating a felony. And that it is really, really not fair that the deputy, less than 30 minutes after arriving on the scene, having found and identified the vehicle the defendant had been observed driving away from the scene of the accident, in the driveway of the address on his drivers’ license, and having knocked on the door and then asking his mother if he was at home, and having been told he was, could enter the house and make an arrest after the defendant had taken the trouble to get into bed and pull the covers up over his head. (Apparently I’m going for the Leo Tolstoy sentence length award here.)

So, two counts? After he flipped his own car (mind you, this was in the middle of the afternoon) in front of three or four witnesses, two of whom knew him personally, the defendant called a relative to come get him. Relative came and was walking up and down the side of the road with the defendant, trying to get him to calm down. At this point, the defendant sees the approaching emergency flashers of a volunteer firefighter/EMT and thinks the cops are after him. Well, they were, but not for another ten minutes.
Realizing that he is going to be in deep trouble (not only is he drunk, his license is revoked for the previous set of drunk driving convictions) he decides to make a quick getaway - in his relative’s car. When the relative realizes what is going on, he wisely declines to either ride shotgun or attempt to subdue his bigger, younger, drunker relative, opting to wait for the authorities. The defendant drives off in front of even more witnesses who know him, including the just arrived chief of the local volunteer fire department. Thus, once the defendant is hunted down and a blood alcohol analysis shows he’s, oh, twice the old limit (almost three times the new limit) two, count ‘em two drunk driving charges.

This was a three or four day jury trial. The defendant retained some out of town hot shot who papered the trial court with motions seeking to suppress everything but the color of the arresting officer’s eyes. Some of them even had merit. Eventually, the thing went to trial and the jury convicted on both counts in about 15 minutes.
Anyway, like I said, some of the arguments made by trial counsel had merit and the appellate attorney, also retained, parroted them. I think I’ve covered the law and the real facts fairly well, but my confidence is just a tiny bit shaken by the caviler attitude this panel displayed yesterday. At least today opposing counsel blew the deadline for preserving argument and hasn’t moved for special argument.

Once again I am the first case with anyone endorsed for argument. After the PJ makes his introductory remarks (identical to yesterday’s, as close as I can tell) I head up to the lectern and start my pitch. "May it please the court, . . ." at which point the PJ interrupts and says "Good to see you again, Mister DA. I just wanted to let you know we really appreciated your argument yesterday, it was very helpful. Now, is there anything special we should know about this case?"

OK, obviously, there is some sort of space/time warp on the expressway between my county and the big city! Right! Thanks to extensive training by the United States Army in the days of my misspent youth, I have a finely honed sense of when to quit while I’m ahead. "No, Your Honor, I think I’ve covered everything in my brief, so, unless there are any questions, I’ll let the court get on to the rest of the docket." No questions (thank God!) and I’m on my way to the parking lot. Some days you eat the bear, some days the bear eats you.

We don’t have opinions in either case, yet. I expect them this week or early next week. Any bets on which way they come out?

Ignore The Agenda Behind the Curtain

2004-09-19T13:37:00.000-05:00

Sometimes It's Hard To Tell If You're In Oz Or Through The Looking Glass

One of the most pleasant parts of going to the in between court, for long-term appellate practitioners, are the court officers. Blazer clad, retired state and city cops to a man (I think there are one or two women in the capital, but I don't know for sure, because I haven't been there in a couple of years) they run the screening point and perform the traditional court crier/bailiff duties in the courtrooms. The same guys have been working this particular office since I started coming down on a regular basis, about 12 years ago. Seeing as I'm down here once or twice a month, 10 or eleven months out of the year, it makes for an odd kind of serial acquaintance. The nice thing about being friendly with the court staff is you sometimes get a heads up that can save you a lot of trouble. Tuesday, for example.

Because I try to be in the courtroom well before the appointed time, I usually have half an hour or so to kill. Unlike some of my brothers and sisters who I see around the court, I do all my preparation the night before. I'm too keyed up the day of oral argument to wade through the briefs again, even the scintillating gems of legal reasoning I produce. So I chat up the court officer assigned to the bailiff station in the courtroom.

Like I said, these are the same four or five guys I'm been seeing for the last 12 years, so, while we may not be too clear on each other's names from time to time, we remember the broad stroke stuff - who retired from the city PD, who bought military time and retired early from the staties, who's a football fan, that sort of stuff. Today, we're talking about, of all things, how the judges react to the wildly varying styles of the attorneys who appeal in this court. How we got on this topic, I'm not sure. Something about working indoors on really great days led to being able to get away from the bosses every now and then, to the kind of bosses we had worked for, to the judges as bosses rather than judges.

Currently, I think six Judges have their primary offices in this particular state building. Those of the six the court officers are really concerned with keeping happy. But, because of the panel rotation, all the judges spend time in all the courtrooms/state buildings. So the court officers, over time, get to know all the judges in the same why the know me. Only a little better because the judges visit in two week blocks. So, anyway, we're chatting about the judges and how they are to work for, when I ask how this panel, which is in its second week, is doing. And receive a bit of information that really helped me in my argument. Actually, it may have kept me from alienating the whole panel.

According to the bailiff, this panel has had a hard time with a bunch of parental termination cases that it set on for oral argument. Which is interesting in itself. Most termination cases are put on the no-argument docket, more or less automatically. So, even though I was the only termination case on for today, the panel had heard a number of them last week. There appears to be a rumor that because of some problems with the assigned counsel system for termination cases in a couple of our larger counties, the Chief Justice has informally told the Chief Judge of the intermediate court to take a closer look at some of the termination cases, including getting the parties into court for oral argument if there is anything like an ineffective assistance of counsel claim being made on appeal. A light goes on. Now I have a good idea why this case is on the argument calendar. The bailiff goes on to tell me that last week's call had several termination cases, but none of the parties had preserved oral argument by either a timely filing or by motion.

This is one of my boss's hot buttons, probably because he was the Chief of Appeals for many years, before becoming the elected PA. Our goal is to always preserve argument by either a timely filing or by a motion for argument. In this case, opposing counsel prepared a cut and paste brief with an incomprehensible statement of facts, but, as an after thought, accused the trial attorney of not discovering an alleged fact that defense counsel on the separate criminal charges claimed to have discovered. He was well within the time limit for preserving oral argument. We, as a matter of routine, were also timely. So, here I was, with the first case before the panel with argument preserved on both sides, after the Chief Justice has indicated a little more examination of these matters was in order. Lovely. Maybe I should be rereading those briefs.

We are the first case on the call. After the presiding judge tells the crowed the usual "we've read your briefs, don't read them to us; go for your best points or any new authority, etc, etc" we move to our respective tables before the bar and worthy opposing counsel, representing the Respondent-Appellant mother, gives his pitch to the panel. This is not the same attorney who filed the original brief in the matter. The trial attorney from the separate criminal trial who has been retained by the family to prosecute the appeal. He essentially recaps the two briefs and attempts to expand the record by brining in the police reports and testimony from the criminal trial. For those of you who are not appellate attorneys, this is highly improper. The appellate court is supposed to review the record that the lower court relied on in making its decision. One blindingly obvious problem is that the defense called different witnesses at the criminal trial because the witnesses used in the termination proceeding were locked into their testimony and couldn't, conveniently, change that testimony to answer the issues raised by the family court judge in his opinion and order.

It seems clear now, although we were more than a little puzzled at the time, that counsel's goal at the criminal trial was two-fold, to get an acquittal if possible, but to also lay the ground work to have arguments on appeal to refute the family court's opinion. Wonderful. It shouldn't have worked. But this particular panel of judges seems to have swallowed it, hook, line, and sinker! The only, highly improper, question they ask is what was the result of the criminal trial. You see why this was improper, don't you? First, the burden of proof at a criminal trial is beyond a reasonable doubt, not clear evidence as it is in a termination case. Second, the criminal case was held months after the termination hearing. The family court judge had no way of knowing the result, nor even if we would continue the case once he terminated mom's parental rights. The fact that a jury acquitted her on the child endangerment charges has no bearing on the family court's decision. None.

So now, it's my turn. I tell them that I am surprised they would entertain the unauthorized expansion of the record and am about to actually make an oral motion to strike the offending material when the PJ interrupts me and asks if I don't think, given the gravity of the issue, that they should consider all the evidence. I have to admit, I was left speechless for several seconds. Then I remembered that all three of these judges were former felony court judges, in counties with separate family courts. Not a one of them had ever sit as a judge in a termination case, nor likely participated in one as an attorney -- it is, after all, a very specialized field in our bigger counties. Wonderful, again.

After I regain the power of speech, I attempt to make my theory of appellate review clear, without saying what I really feel, remembering the bailiff's tip that this panel has been having a frustrating time with termination cases this month, and not wanting to provoke a contempt citation. I don't recall being able to get more than a dozen words out an any point without being interrupted by one of the three with a questions or a sarcastic comment.

One of the judges asks about some fact that was alleged in the criminal case. I point out that the only problem was that the Respondent and her witnesses testified to just the opposite of this fact at the termination trial. But didn't the jury at the criminal trial rely on this fact to acquit. I throw up my hands. How do I know what the jury relied on? The record before the trial court, that is, the family court, was x, y, and z. After seeing what a poor result that had in the termination trial, counsel produced new witnesses to testify to a, b, and c at the criminal trial. Whoa! Dead silence from the bench as they digest the implications of that. We go on to a different issue.

The PJ asks about how long DSS worked with mom before bringing the petition to terminate. Several months longer than the statute requires, I tell him. Well, how long is that? Thirty months, I tell him. Does that seem like a reasonable time to me? He misses the point, and exposes his own ignorance of the law, and his law clerk's, too, for that matter - under the massive revision to our child welfare laws in the late 1990s, DSS has far less leeway than they used to in dragging abuse and neglect cases out for years and years and years. If they haven't reunited the parent(s) and the child(ren) within 24 months of the initial court hearing taking temporary custody, they have to bring the petition and let the family court decided if they get more time. In this case they received one extension from the hearing officer. When they took the matter to the family court judge for review, in addition to finding the extension not justified on the record, he explicitly found that even considering what had taken place during the extension, there was no reasonable likelihood of putting the family back together. We go back and forth on my opinion of this, that, and the other thing, for awhile. I mean, things that have been decided by the legislature after literally year of commissions, reports, studies, hearings, and debate. I begin to wonder if somewhere on the drive down I haven't sipped through a wormhole to an alternate reality where the massive reforms of the 1990s never took place.

The crowning bit of surreality comes when one of the other judges asks me, in all seriousness, if I don't think a baby (the child in question was less than a year old at the time of the termination) belongs with its mother, rather than with strangers in foster care? I mean, how do you answer that question? Of course I think babies belong with their mothers, unless, of course, mom's conduct seems to be aimed at killing the baby - what we alleged at both trials, and proved to the termination standard in the family court.

At this point, wonder of wonders, my 30 minutes were up. Thank God. Opposing counsel didn't bother with rebuttal, his black robed co-counsel having already taken care of that.

This is probably the worst manhandling I have ever had by an appellate court. I've argues before out federal circuit, our state supreme court, and, I think, every judge currently on the intermediate court, and I can't ever recall the law being so completely ignored and the appellant being allowed to pretty much change history. Maybe this happens in civil cases, but I've had to sit though a fair number of them, now that we don't have pure criminal dockets anymore, and I don't think so.

On the drive back to the office, one though keeps running through my mind. I've got this same panel tomorrow on a felony drunk driving case. Wonderful!

Off To The Emerald City

2004-09-15T18:30:00.000-05:00

But The Wizard Seems To Be Out

Well, this has been a great week, so far. Sick on Monday, but that's another story. Today and yesterday were visits to the big city to do oral argument in our intermediate appellate court. Same panel of judges, one case on each day. You'd think they'd find someway to try and match attorneys to cases so we aren't hit with this sort of thing. Ah, well, I've had the other problem, too. That is, two panels running and I've got cases on same call in both of them. Happily, the courtrooms are only about 50 yards apart and the court officers, all retired cops, are very helpful in getting you from one to the other, and keeping the judges calm.

Anyway, it's not all that uncommon to have argument on two different days. The court sets arguments on the first and second Tuesday and Wednesday of the month with two calls each day. The first starting a 9:00 a.m. and the second nominally at noon. That one really begins after the panel takes its morning break, usually 20 minutes or so between 11:30 and 12:30, depending on how verbose the parties in the first call have been. In theory, each endorsed for argument party gets half an hour if there are only two parties, less time the more co-/cross/third-parties there are. If only one side has argument, they get 15 minutes.

Because of the shear size of this Midwestern wilderness, we have several divisions of our intermediate appellate court. While they may not pay much attention to what they've done to you on the actual day of your call, they do keep you close to home, if they can. I never argue in the courtrooms that are actually for the district my county is in -- to far away. Easily twice as far in time, even more in distance, than the state building in the big city. So, a couple of days a month I get out of the office for a little field trip to a real downtown in a real metro area.

Did I mention my law school is within nice day walking distance of the court? Well, it is. And how big an appeals geek am I? Well, sometimes, when there is nothing pressing back at the office, I'll spend a hour or two at the law library. It's amazing what you can find in the collections of a major law library. Ever hear of "The Green Bag"? My alma mater has an almost complete run of the original magazine, bound in yearly volumes. A window into the practice and live of the law from the 1890s to the 19-teens. I discovered them one rainy day in first year while on one of those sadistic treasure hunts legal research and writing instructors are so fond of. It made the silly TH worthwhile.

Anyway, two cases this week, one on each day of the call. Tuesday's was a termination of parental rights appeal. Which was a little odd. Those are almost always decided by summery panels because there is almost nothing to argue about. Of course, there is, in the abstract. But it's always the same. The judge committed clear error when he found one of the statutory grounds for termination. If the judge was correct on the grounds, then the judge committed clear error in finding that the best interests of the child required termination. So why did this one draw a oral argument shot?

Going into the argument, all I could think of was that, procedurally, the case was a little unusual in that it was initially heard by a family court hearing officer who had denied the DSS petition to terminate. Our assigned APA had requested a de novo review by the judge assigned to juvenile cases. Some what unexpectedly, he won and the judge ordered mom's rights terminated.

More tomorrow. I'm going to get this posted so you all don't think I've died, or something.

Mister DA Kicks Back - Part II

2004-09-12T21:12:00.000-05:00

Now something that just irritates me. Not a lot, but more than I like. And that's

The Bush Memos

When I first read about these in my local papers and on the web, the day after the 60 Minutes II report, I didn't think much about it, one way or the other. You see, I'm a veteran of the Army Reserve of about the same era, and the one thing I know for a fact is that neither Dan Rather, nor Terry McAuliffe, nor any of the other reporters or politicos working this story, at least the couple of dozen that I have seen or heard, have the faintest idea how the Guard and Reserve work today let alone thirty to thirty-five years ago. Clueless, each and every one of them. Nor do they have much idea how the active military works. So, non-story to me.

Then the hoo-rah about the provenance and the authenticity of the memos begin to intrude on a number of news sites and weblogs I monitor. So, I cast around and found the .pdf files of a couple of the memos. Well, heck, didn't look like any military memo I ever saw. Let me explain bit about that.

I was commissioned from ROTC in June of 1971 and entered active duty in March of 1972. I was a combat arms officer and that delay in my initial entry should give you some idea of what a glut on the market combat arms lieutenants were at that time. It got worse, from my point of view. About half way through my branch basic, my orders were changed from a two year active duty (AD) tour to a 90 day active duty for training (ADT) assignment. That sucked, for a number of reasons.

First off, I really wanted to do the full two years and maybe more. I was so gung-ho, 22 years old, invincible and sure I was going to be the next Omar Bradley or George Patton, that I'm not sure who that guy was. Second, on a more practical level, because I had expected to do at least two years AD, I had no real civilian career plans. Third, because I wasn't going to do a full AD tour, my active reserve obligation was something like six years. And by active reserve I mean monthly drills and two-week annual training for six years! And trust me, we (the couple of dozen of us in the class that got hit with this) knew damn well that there were many, many officer vacancies at the O-1 to O-3 level in the active Army Reserve. In those days the rule was something like you could be required to drill some insane distance from your home - I don't recall exactly, but something like 50 to 100 miles comes to mind. Anyway, I lived in a major metro area that, according to the counselor they had explaining all this to us, was crawling with Army Reserve and Army National Guard units, all eager to welcome us with open arms.

Anyway, to make an incredibly long post as short as I can, I mustered out and found a unit. I also found my degree field, Communications Arts, was flooded with people with more experience, willing to work cheap. So I ended up taking a civilian technician job with a reserve unit about 50 miles from home. Unlike the National Guard, the Army Reserve didn't link military grade with civilian grade. I was a GS-07 Administrative and Supply Technician-Recruiter.

In the unit I worked for, I was the de facto Battalion S-1(Adjutant, that is, the chief paper pusher) although nominally assigned to a company as a Platoon Leader. During the week, I kept the paper work flowing, during drills I supervised the training and work product of the battalion and company clerks. I gained an intimate familiarity with the mixed bag of manual Royal, Smith-Corona, Underwood, and electric IBMs we used. Trust me on this. There was no money to spend on fancy cold typesetting IBM Composers. For that matter, I don't think the unit ever got a Selectric, ball type machine until sometime in the early 80s.

For the first several years I was in the unit, we cut the annual training orders on mimeograph stencils and sent them to brigade to be run off. We typed letters, memos, individual orders, you name it, on manual typewriters (we had one electric per battalion, mostly to cut the mimeographs stencils) using white and yellow manifold paper for copies. The other thing I distinctly remember, and I can't say whether the Air Force and Air Guard were the same way or not, was the paper was smaller than regular letter size in the civilian world. I seem to recall the letterhead size being 8" x 10.5" that is, half an inch smaller the the civilian standard. Some genius of procurement no doubt calculated just how much this would save in paper costs.

When I looked at the pdf files of the alleged memos, I had a hard time believing this wasn't a joke. During my 12 years with the active reserve, four of them as a full time employee, I handled hundreds of these sorts of things. I created hundreds for the battalion staff, my fellow company commanders, and myself to sign and put in personnel files or send up or down the chain-of-command. These things don't look right and the over all feel, as much as a .pdf on the screen lets you feel anything, is wrong. Enough.

The thing that irritates me is no one seems to have thought to find someone like me from the Texas ANG of that era. If someone produced a supposed memo or order from my brigade, I would think, from a forensic standpoint, that someone much like me would be the person you'd want to talk to, at least to begin with.

OK. So that's how my weekend went. A little trip down memory lane. I hadn't thought about those days for a long time. Now I'm going to go down and watch episode 5 of Alias, season 3. Later.

Mister DA Kicks Back

2004-09-12T17:37:00.000-05:00

Sunday

And it's going up on Sunday, too!

Spent yesterday decompressing from the week, more or less. Unless I'm the on-call APA, I try to avoid going into the office on Saturday or Sunday. Not always as easy as it might seem. My job has a pretty steady flow of things-to-be-done that have immutable deadlines. My brothers and sisters on the trial staff, of course, have deadlines, too. But by and large, our trial courts (well, except that one) are flexible on things like responsive motions. So, for that matter, is the local defense bar. Sort of a "we're all trial geeks here, together" attitude. The various courts of appeal are not. Even when the felony court sits as an appellate court to the misdemeanor court, the court rule deadlines are the deadlines, like it or lump it. Which is a long winded way of saying, once the swarm of interns return to law school, I either spend a couple of evenings at the office or a day or two on the weekend. We really need another APA doing appeals, at least part time, but the county board is looking to cut 4+ million from the 2005 budget, so we're doing well to stay where we are, in fiscal terms, without drawing attention by asking for more bodies.

So, what did I do yesterday? Well, as number two son had a football game Friday night, I had to tape my Friday night required viewing. By the time I got the video camera back to my ex, set up it up to view the footage of our pride and joy in his first appearance of the season, and got myself home, it was too late to watch what I'd recorded. Not if I wanted to avoid the dread slept-three-hours-in-the-recliner neck/back. So I worked the online class I teach for a bit and went to bed.

Saturday, after the usual make and mend session with the vacuum cleaner and the scrubbing bubbles, I made a bowl of popcorn and watched my shows. (God, I'm channeling my grandmother! My shows, like I've got a couple of points or something.) So what constitutes must see TV for a hard-core prosecutor on a Friday night/Saturday morning?

For now, well, until next week when the "summer finales" run, it's Stargate: SG-1 and Stargate Atlantis. Yeah, SF geek here, reporting for duty. I "discovered" Stargate: SG-1 by accident. I'd seen the movie, with Kurt Russell, and thought, good concept, mediocre execution. Then, oh, sometime in late '02 or early '03, in the winter, anyway, I came across the first season of the Showtime 'SG-1 on DVD for something like $10. So, $10 is pocket change, right? And I was bored out of my mind so. . . I was hooked. Happy days, indeed. Seeing as seasons 2, 3, and 4 were already on DVD, and season 5 was due out, real soon, and season 6 was underway on the SciFi channel, I almost ODd on Amanda Tapping -- I mean Stargate. Right, Richard Dean Anderson, Chris Judge, Michael Shanks, and how about that Don S. Davis!? Can that guy play a general or what? Anyway, that's my Fridays, except for high school football season.

Once the new seasons get rolling, things will get interesting. Let's see - got the VCR, got the ATI All-In-Wonder capture card on the computer and the cable drop for the broadband conveniently close to hand -- humm - Joan of Arcadia, Enterprise, Stargate (two), and whatever the WB comes up with for its Friday lineup. Rats, looks like I may have to buy that Tivo after all. Well, it's only money.

Toward the late afternoon, I managed to drag myself to the store for provisions, then made a Best Buy run to check out the new DVDs. I am a DVD junkie. TV shows, in particular. I admit it, and I think I have it under control, now. I limit myself to two movies or one TV set per payday. Yesterday I picked up Alias, Season 3. And that's what I've been doing today. Well, that and doing the weekly grades for my online students. It's my own carrot and stick approach. I do one grading chore, I get to watch one episode.

I've just finished the bulk of the grading chores, and thought I'd ramble on here, a bit. Some other things, not really work related except in the most tenuous way, that I've been thinking about:

The Kobe Bryant Case

Only because a number of my students, knowing what I do for a living, asked how the heck can this happen. All of you reading this who are in the biz, regardless of side, know the answer, more or less. I don't make it a habit of second guessing prosecutors in other counties, let alone other states, but the court out there. . . I've heard at least one of our judges refer to it as Keystone Kourt, a phrase that was picked up by a number of the APAs. You know, we get lawyers from the "big city" who come here and act like they expect to find Pa Kettle on the bench and Li'l Abner running the prosecutor's office. Indeed, one of my favorite judges, now retired, once inquired of a particularly obnoxious specimen "Counsel, where do you think you are, Dogpatch? It doesn't matter. Here in my court we use the same rules of evidence as the rest of the State. I assume they use them in your county, too." Much innocent fun can be had with these guys. But, gee willikers, how many times did that court manage to leak information? Dahlia Lithwick over at Slate has what strikes me as the best summary of what she calls "an epic debacle" that I've come across. Of particular interest is her commentary on the district judge.

Was it all District Judge Terry Ruckriegle's fault, then, for allowing his staff to leak—on four separate occasions—humiliating details as well as the name of an accuser who had already endured a year of abuse and death threats? No. His was a tiny little courthouse, staffed by honest guppies and bunnies, overmatched by the wolves of cable television.

You really need to read the whole thing. I'm never quite sure with Ms. Lithwick, is she being overly cute, or just sarcastic as Hell? Click here to judge for yourself.

Friday In A Week In The Life Of An APA

2004-09-07T08:35:00.000-05:00

Friday

Well, as they say, TGIF! Summer Friday's are normally pretty slow around the courthouse. Lots of people take Fridays and/or Mondays off in July and August to maximize their use of vacation time. Or to get a jump on a longer vacation. Friday is also catch-all and catch-up day in the arraignment courts, which means APAs out of the office, most of the day. On rotation one unlucky junior staffer gets to cover the one located in the courthouse. This is where our least favorite judge sits, A man who can take a two hour docket and stretch it to cover most of the day. This is also the only judge on earth (or at least my corner of it) who will start a jury trial on a Friday.

Now, most misdemeanor/ordinance cases will take less than a day of courtroom time. Even the drunk driving cases, where there are legitimate technical evidence and police procedure questions to be raised, take less than a day. Heck, voir dire on a typical misdemeanor may take longer than both the cases-in-chief combined. In a typical, contested misdemeanor jury trial, the parties have rested by the time noon rolls around. Closing argument and instructions after lunch, and the jury has the case by 2:00 p.m. or so, giving them almost three hours to come to a verdict. But that estimate of time contemplates getting started about 9:00 a.m., not spending three hours doing sentencings, show-cause hearings, guilty pleas, and pre-trial hearings left over from earlier in the week before even starting jury selection.

Of course, it's our fault, you understand. If those darn prosecutors would just quit authorizing so many cases. . . . Well, God would return to his heaven and all would be right with the world! Sorry if I sound a bit peevish. The other arraignment judge just declined to bind a case over as attempted murder after the preliminary hearing. He said something like,"If that's what you wanted, why wasn't it authorized that way? Bound over as charged!" Sigh. Sometimes the facts in the police report, which is all the warrant attorney has to go on, don't quite spell out all the tiny little details. Sometimes, and I know this is going to be a shock to some of you, the officer rushes the report! Or, sometimes the clerk typist doing the compilation/transcription of the raw field reports misses a page or a Dictaphone tape! And then everyone gets a surprise when the preliminary hearing isn't waived and we put on the witnesses.

This particular case was a self-help attempt to collect a drug debt. Already, your eyes are starting to glaze over -- who gives a tinker's dam about shots fired between a bunch of druggies? On the night in question, a car with two or three people inside cruised the victim's street a number of time, apparently look for the right house. Then it made a final pass with one person sitting in the passenger side window, leaning across the roof of the car. When the car was directly across from the target house, a series of shots were fired, into the front of the house, from an de-militarized AK-47. The car sped away, into the night.

After some really fine police work (I'm dead serious, here.) Three suspects were arrested. Two of the three couldn't wait to confess. One actually admitted to being the shooter! The one these two pegged as the driver/mastermind lawyered up within seconds of his arrest. Fine. The case could be made against all three of them for a charge of felony discharge of a firearm. At the time the warrant was authorized, the investigating officers thought there was no one at home when the shooting occurred.

As a rule, these probable cause hearings are held within two weeks of a defendant's first appearance. In that time, the police report is finalized (if it wasn't already). Most ofter, this means supplemental reports from officers who were only slightly involved in the investigation or arrest are transcribed and placed in official form. It this case, the one guy who was at home, watching our suspects cruise up and down the street, from the front porch, took off (can we blame him?) after dodging several bullets and didn't come back to town until almost a week later. But come back he did. And, seeing as he appears to have nothing to do with the drug-deal-gone-bad, he was willing to testify! Testified that he thought the shooter saw him on the porch just before he opened fire!

At the close of the proofs, our APA moved to bind two of the three boyos over on attempted murder as well as the firearms charges. The judge says, "I don't think they had the intent to kill anyone."

Well, things vary from jurisdiction to jurisdiction, but around here, at a preliminary hearing on a felony case, the standard to set the case over to the felony court is probable cause as to the crime and the identity of the criminal. Questions of fact are, as a general rule, to be left for the the trier-of-fact, be it judge or jury, in the higher court. Intent is almost always a question of fact. This is not an uncommon problem. Some examining magistrates have a hard time with letting the great mass of citizens make these decisions. A fact that has always puzzled me. Sigh.

In practical terms, because the case was sent up, following a full hearing, our remedy is to move the felony court to amend the charges. The standard of review on these sorts of motions (and the defense equivalent, the motion to dismiss for insufficient evidence) is abuse of discretion. Anyone with any appellate experience at all will tell you that this is a difficult standard to meet. Well, if the magistrate is wrong on a question of law, then that's abuse of discretion, more or less per se. That's the argument I anticipate making. As long as there is some, credible evidence of intent, the ultimate question is for the jury. We'll see whether the evidence supports an argument that it was credible and sufficient to put the matter in issue when I get the transcript.

After lunch, I spend the rest of the day trying to clean up all the little stuff that tends to pile up while I deal with the more interesting or pressing issues. Two more Freedom of Information requests. For some reason an insurance company thinks the best place to get a copy of the Sheriff's report is our office. Sorry, no. Police reports in our files are marked up by, first, the warrant attorney, and then by the trial attorney. This tends to turn them into attorney work product, which is exempt form disclosure under the act. They also have the contact information for victims and witnesses, which is also exempt. The Sheriff, on the other hand, maintains a properly redacted, free from comment copy of all the reports that have been forwarded to us for review. So, I spend more time advising these folks that if they want a copy of the Sheriff's report, their best bet is the Sheriff.

I finish the day by setting up the appeal files for the felony-murder that was returned to us by the intermediate appellate court and the shooting case set out above. Monday I'll get started on shaping the application to our Supreme Court on the one and the motion to amend on the other. And maybe I'll get a chance to work on the Blakely memo, again.

Leaving the courthouse on Friday is always a little different, especially during the summer months. Almost all of the prosecutor's staff, attorney and support staff alike, stay until after the official quitting time. Not long, after, for the most part, but 10-20 minutes on average, but long enough that the rest of the building, except for the custodial crew, are in their cars and out of the parking lot by the time we start to trickle out. On Fridays, this odd discrepancy is even more pronounced. Sometimes I reach the parking lot and it looks like the only cars left are prosecutor's staff and the second shift Sheriff's Deputies who arrive half-an-hour before the official quiting time. More on this later.

Thursday In A Week In The Life Of An APA

2004-09-04T06:21:00.000-05:00

Thursday

Normally Thursday is just a marking time kind of day. This is the second/third day of trials in both "adult" courts and the second pre-trial hearing day in the juvenile court. Today, however, sucks.

I get into the office about 8:10 and find a message on voice mail from one of the senior trial attorneys. Have I heard anything about the O'Brian case? O'Brian was the defendant in a double murder case he tried a couple of years ago. It had been pending in our intermediate appellate court for almost a year when we finally had oral argument just over two weeks ago. And, no, I have heard nothing. So I track him down to find out what' on his mind. Instead of answering me, he plays be a message he found on his voice mail when he got in just before 8:00.

The message is from the court beat reporter at the local newspaper. It was recorded, according to the time stamp, at 10:30 the previous morning. She'd like a comment on the reversal of O'Brian and if he calls her back by 5:00 it'll be in the story she's doing for Thursday's morning edition. Wonderful! My colleague goes down to the lobby to get a paper and check my interoffice mail to see if anything, like a copy of the opinion, got dropped off early this morning. (Our county has the most half-assed mail system you're likely to see, but that's a story for another day.) Empty. Just like I left it.

I get on the court's website to see if the opinion has been posted yet, and, sure enough, there it is, in all it's evil glory. Unpublished, un-authored, and released Tuesday! What the Hell? I print off the slip and skim the high (low) points. Wonderful. Two of the three judges appear to have lost track of what is and what is not a jury question. Not to mention the concept of separation of powers and the basic meaning of "rational view of the evidence." Sigh.

Damage control time - I brief our victims' rights coordinator on just what this all means. (Not to brag [well, maybe just a little] but reversals are few and far between for our office) With just a little bit of luck, we'll be the ones to tell the families of the victims, before they see it in the paper.

The only bright spot? The smartest judge of the three dissents on the two key issues and writes a solid opinion explaining why the majority is wrong. This is useful in framing the issues for the petition to our Supreme Court.

We will be asking the supremes to take the matter up. Both a petition and a motion for peremptory reversal. That's a long shot, but I've had it happen before, when the lower court just plain gets it wrong. Anyway, the rest of the day is spent fly-specking the opinion and bouncing the alleged case law support for the evil holdings off the law as we know it.

I'm able to come to a couple of conclusions. Before I go into that, you should know this was a double felony-murder charge that involved a breaking and entering and a police pursuit, ending up with the deaths of two innocent bystanders when the defendant went the wrong way on a series of one-way streets attempting to shake off the officers. So, lots of issue were decided by the trial court and the appellate court is really reviewing the trial judge's decisions.

First, on the felony-murder question, it appears the majority really did overstep by holding that the trial court abused its discretion in not dismissing the charges as a matter of law.

Second, on the instructional issue, whether the jury should have been instructed on manslaughter as well as murder, it seems clear the majority really did misread a recent opinion by our Supreme Court on when such an instruction should not be given.

And that takes care of Thursday.

Wednesday In A Week In The Life Of An APA

2004-08-23T15:14:00.000-05:00

Wednesday

Morning routine well in hand, I finally get a chance to reply to my out of county colleague about Blakely and its effect, if any, on our sentencing law. My first reaction was to brush his fears off. We do indeterminate sentencing, pretty much, where the sentencing judge sets the minimum and the maximum is whatever the legislature set for that class of crime. It seems to me that there is plenty in Justice Scalia's opinion (and his previous concurrences and dissents in this area) to justify my complacency. Yes, I've received a bunch of supplemental authority briefs for cases pending in the court of appeals, but everyone of them raised the same issues in their main brief, relying on Apprendi. All but one of the supplements, so far, has done nothing beyond, in effect, whiting out Apprendi and inserting Blakely. More on the exception in a few days.

As I consider things, particularly some of the reporting from the truly excellent Sentencing Law and Policy weblog of Professor Douglas A. Berman, I begin to wonder if Blakely might not have some effects beyond the routine imposition of prison sentences. For example, restitution. Mostly of the time this is part of a guilty plea, but not always presented in detail during a trial. If a monetary loss isn't an element of the offense, we tend to downplay it, lest we be accused of improperly playing for sympathy for the victim. Also, the determination of whether to sentence a juvenile as a, well, juvenile or as an adult. The statutory rubric for the trial judge is shot through with considerations and phrases like "shall determine" that would probably start Justice S. twitching. Interesting. My out of county colleague and I are scheduled to present as mini-symposium on Blakely and its effect, or lack of same on our guidelines at the annual prosecutor's appellate forum in October, so I'll probably bore you with more than you ever wanted to know about another state's sentencing law.

Well, this all takes me up to lunch time, the best time of the day, particularly on Wednesday when it represents the hump! Half way through the week and no one's read me Miranda yet!

Lunch is always a big decision - go home or downtown or out to the north end commercial strip? Home is cheap, but pretty monotonous, downtown is not bad, easy walking distance, good selection of eating joints of all sorts (e.g. greasy spoon, Thai, New York style Chinese [whatever that is], Subway, Greek Coney, classic 'Family' restaurant, couple of bars with food, a genuine brew pub, a coffee house [not a chain], a deli, and so on) but it tends to be crawling with city and county and state employees and I see enough of them at work. The north end commercial strip is loaded with national brands (McD's, Arbys, Burger King, Wendy's', Pizza this-that-and-the-other, Chinese Buffets, Sveden House, Bonanza, another Coney [this one basic American], a brace of Darden Restaurants restaurants, a chain steak house, the mall food court, an Italian joint, a couple of non-buffet Chinese places, more Subways, and so on and so on.

So, I do what a almost always do, go home and do the soup and san or soup and salad routine. I get so tired of making decision.

After lunch, fighting the need for a post prandial nap (and let me tell you, strapping yourself to a PC and trying to do legal research after lunch is just asking for a keyboard imprint on the forehead) I work some more on the Blakely article. Then, for a change of pace, start researching our appeal on the question of whether arraignment court judges have any discretion in granting nolle prosequis without prejudice. It is clear the general trial court judges do because there is a statute that deals with indictments being nolle pros'ed, but there is substantial case law that says statutes that specify indictment don't apply to complaints, which is how misdemeanor or ordinance case are prosecuted. Interesting question, mostly because there is very little (for all practical purposes no) case law on this issue. There is ample case law on the question as pertains to indictments, but virtually nothing on complaints. I suspect this is because our arraignment court, as a court of record, has only existed for a handful of decades, having replace justice of the peace courts not all that long ago in terms of legal institutions.

As a final wrap up for the day, I knock out a pair of answers to freedom of information requests. Oh, yes. That's another little job that just sort of devolved on me - Deputy Freedom of Information Coordinator. By statute, the boss is the FOI Coordinator for the office, but he can appoint a Deputy - i.e. a minion, that is to say, me. The problem with FOI requests to the prosecutor is that most of our file is attorney work product and is exempt by court rule. That, and the statute requires a specific description of the 'document' or 'documents' the requester is looking for. Way too many requests are on the order of 'I request 'the prosecutor's file on the case against my son [name]' Today, I have one of those and one for a case that is pending on direct appeal with a court appointed attorney. Two polite rejections, one for lack of specificity and one passing the baton to the appellate attorney and I'm out of here!

Tuesday In a Week In The Life of An APA

2004-08-20T22:17:00.000-05:00

Tuesday
Maybe I need to cover more ground with fewer words? It's taking me longer to post this week than it took to live it!

Tuesday is high volume day in our courts - preliminary hearings and bench trials and formal hearings (traffic tickets) in misdemeanor court, jury trials in felony court, and pretrial hearings in juvenile court. Our courts have never quite twigged to the fact that it's not 1960 any longer. That being the last time anyone has any recollection of the courts' docketing and general conduct of business being changed. That's not quite correct. In 1960 there was no misdemeanor court, only a couple of dozen justices of the peace and the felony court. That's the last time the felony court changed anything. Misdemeanor court has had its scheduling and order of events changed so often in the past eight years, only a few of us remember how efficiently, how orderly it used to run.

Did I mention that our least favorite misdemeanor court judge is also the chief judge of the three judge court? Well, our Supreme Court appoints the chief judges for all the multi-judge lower courts. The immediate past chief judge got the appointment as a political favor eight years ago and proceeded to demonstrate why his law practice partners were so happy to see him ascend to the bench. After six years, he pretty much wore himself out and declined to be reappointed. As is pretty much traditional, when no favors are being called in, the supremes appointed the judge he recommended as his successor in the job. So, not only is our newest judge totally unqualified for the job, both by experience and temperament, now he's running a court with a (roughly) $2,000,000 annual budget with about 25 employees with four departments in two locations after spending more than 25 years in private practice with with an annual cash flow of about $200,000 and never more than 1.5 employees at any given time.

The problems may not be obvious to those of you who are not lawyers, so let me explain, briefly. The judge does not have a clue as to how a criminal defense attorney or a prosecutor, for that matter, works. Reviewing the record of the dismissal case I talked about in the Monday rant, I find the amazing statement, as the judge attempts to impose attorney fees on my office for the dismissed case - knowing full well it will be reauthorized as a felony- because he doesn't understand why the defendant should be held to his contract with the court to reimburse his appointed attorney fees when the attorney never had a chance to defend him! the illogic is stunning and is as good a demonstration of the problem as can be. Essentially, he doesn't believe the defendant received any benefit from the representation because there will be no trial on the misdemeanor charge. Really. We may very well not reauthorize the domestic violence count - a significant fact given the disabilities a DV conviction can cause - based in large part on defense counsel's maneuvering.

He is also at a loss as to how plea bargaining works. Hell, he doesn't understand probable cause or how a warrant can be issued on information and belief. Having no experience in dealing with criminal defendants as clients (or routine civil litigants, either) he has no idea of how the attorney-client relationship works in those sorts of cases. He also lacks any real idea of the value of other people's time.

For me, this means a lot of my day gets spent listening to APAs vent about silly rulings, failures to have cases bound over for trial in felony court, personal attacks on the PA and the entire staff, etc. etc. My work load has increased quite a bit over the past two years - more appeals of this judge's rulings than the other two combined. What's significant is the number of times we are successful. The usual standard of review in the typical bind over or evidence decision is abuse of discretion. In practice, what this means is it is very hard to get a ruling reversed. The decision has to be so obviously wrong that no reasonable jurist would agree with it. Before our least favorite judge began his reign of cluelessness, I'd win maybe one out of four or five of these appeals. It's now running about 50-50.

Of course, these appeals don't take as much time as responding to a full blown appeal of a jury verdict, or an interlocutory appeal to the court of appeals, but they do take some appreciable amount of my time and my secretary's time. During the summer, interns handle a lot of the research and writing of these appeals. But when they return to school and to a day or two a week schedule, the time limits imposed on these actions require my full participation.

A Week In The Life Of An APA

2004-08-18T19:42:00.000-05:00

With apologies to Ken Lammers, Jr., author of the truly excellent Crim Law weblog. Another Blogspot weblog, which I will link to as soon as I figure out how to do that. Maybe I need a new template? Well, that's half the fun. As I tell my kids, If it's not hard, how would you know you've accomplished anything? Sometimes I tell them If it's not hard, how can it be any fun? They always look at me it this really odd way, like a sprouted a spare head, or something. Anyway, I figured it out, so you should see "Crim Law" in the first line underlined or highlighted or however your browser shows hyperlinks. Anyway, enough of this drivel. The following is a typical week for me, which may be pretty boring as I am currently assigned to appeals and that's pretty much like being on the AV squad in high school. Or at least when I was in high school, many and many a year ago. In the coming weeks I'll try and give you a look at what goes on in the professional life of the trial attorneys in our various courts. But for now, you're stuck with me.

Monday
Stumble into the office, more or less on time. Fire up the trusty desktop and log in. See if the IT gremlins have bothered to let any of the pending critical updates install. Humm. Not yet. Get Outlook running and check mail -- 14 spam messages and, for a change, an actual email from a colleague in another county. Delete, delete, delete, etc. Read the real message. He's still at bit worked up over Blakely v Washington, Justice Scalia's latest attempt to do something radical (reactionary) to the criminal justice system. Flag for later response as it is now time to leave for the weekly staff meeting. Get coffee from the break room on the way.

Our staff meetings are held in the new (well, three years ago) conference room around a massive conference table which just barely has room for all the APAs on the handful of Mondays when we are all free to attend. The previous Friday the Chief Assistant or a designated senior assistant will have reviewed the felony cases authorized the previous week, setting aside any that are sufficiently odd or interesting to bring to the attention of the APAs. This is also the time for APAs to being problem files to the attention of the office as a whole. Both the elected PA and the chief assistant attend these meetings, so policy decisions can be made, if necessary. The weekend felony warrants are also reviewed, briefly. This is also the time problem authorizations are discussed.

Even though we have a designated warrant attorney for felony requests, we all get requests directed to us because of either designation by the PA (e.g. all felony drug cases are reviewed by one APA, child sexual assault cases by another, oddball computer crimes by me, political hot potatoes by the Chief, etc.) or familiarity with co-defendants or companion cases. Or, sometimes, blatant warrant shopping by a cop. That's been pretty much beaten down by the current and previous PA, but it still happens from time to time. Almost by definition these rogue requests are problem requests. If there wasn't something weird about the case, why waste time tracking down a favorite APA? This morning, the only file of interest is one of these problem warrants.

It's a criminal sexual assault request where the complaining victim is the live-in girlfriend of the suspect. That's pretty uncommon in and of itself, but it gets better. These two middle-aged folks have been living together for a few years, they have a child in common, and if common law marriage still existed in this state, they'd probably be married by now. The problem started about two months ago when the female half (as our cops like to say) woke up to discover the male half having intimate relations with her. Something she seems to have strongly disapproved of. She says she told him that was disgusting, she wouldn't ever consent to that, and not to do it again. You know what the problem is, of course.

Last week, she goes out with her girlfriends and gets a little tipsy and comes home and just drops down on her bed, fully clothed. When she wakes up, she's been undressed and she thinks something of an intimate nature happened. She goes ballistic. She calls a friend and goes to the ER and has a rape kit done. She calls the police. Now, you have to understand that if he did, in fact, have sexual relations with her while she was unconscious, he's committed a serious felony with a 15 year maximum. Even if she had never told him she did not want to participate in that kind of sexual activity. The problem, as I see it, is not did a crime occur - taking the victim's statement at face value, a crime occurred - but whether this case meets our criteria for authorization. That is, is there a reasonable likelihood of obtaining a conviction at trial? Or, put another way, can we convince a jury, beyond a reasonable doubt, that this guy should be convicted?

To my surprise, I find myself engaged with another senior assistant in a old fashioned, school yard pissing contest over whether there has been any crime at all! The problem seems to be that the victim didn't pack up and move out the first time this happened, but stayed with the suspect. The nerve of the woman, expecting her significant other to accede to her wishes in this matter! That may be a consideration in the decision to issue a warrant, but not in determining if a crime was committed. Jeez!

Once the Chief Assistant calmed everyone down, we discussed the latest stupid judge tricks by our least favorite misdemeanor court judge. A person who ascended to the bench after an expensive (total expenditures by all candidates, over $300,000, and we're not a very big county) acrimonious, just plain nasty campaign and a 25 year career specializing in domestic relations law (i.e. divorces), one of two areas of law that will never be seen in our misdemeanor court. (Juvenile law is the other.) This person was over their head the minute they swore the oath and slipped on the black dress. Now the judge has the idea that s/he can stop us from dismissing a misdemeanor and force a jury trial.

Our County's misdemeanor/first appearance court has, as of the last through audit by the State, a case break down of roughly 75% criminal-traffic and 25% civil. The civil cases are the usual mixed bag of contract, minor tort, and landlord tenant. The criminal-traffic cases cover everything from 30 day trespass to preliminary hearings on open murder cases. The bulk of the court's business being drunk driving, domestic violence, unlicensed driving, bad checks, minor drug possession/use, and minors in possession of tobacco and/or alcohol. 25 years of breaking up marriages is just the preparation you need to jump into this mix. Sure. It's been two years and the judge is just getting started on some sort of power trip. We'll file the preprinted motion for dismissal and see what happens.

Meeting over - more coffee on the way back to my office. Meet with Interns (second and third year law students) and check the progress of their appellate projects as they are fast approaching the dreaded return to school. This pretty much kills the rest of the morning.

In the afternoon it's heads down writing and research. I alternate working on a Blakely memo that is fast turning into a major article with doing the initial research for a reply brief to an appellant's brief that is setting the standard for boring and unimaginative. And killing spam as it comes in.

The end of the day finally rolls around and I depart the halls of justice for another day.

At the Threshold

2004-08-07T16:08:00.000-05:00

Well, I suppose I should write something to get this weblog started. Otherwise someone might wind up here and wonder what the heck is going on. He's got a neat title, but no content, other than that profile. Can't have that,can we?

So, why "Mister District Attorney" aka misterda? It says right up there on top that I'm an assistant prosecutor, not an assistant DA. Well, as Robert Traver, another prosecuting attorney, said, introducing his collection of short stores Small Town DA, he used the term DA because that's the more familiar title, across the United States. Because of that familiarity, It sort of covers us all, the prosecuting attorneys, the state's attorneys, the county solicitors, the city attorneys, the township attorneys, and, of course, the district attorneys.

So, why a weblog, anyway? Because I've had the itch to do something like this for a while. Because Blogger enticed me with its ease of set up and maintenance. Because there are so few prosecutors (if any) doing weblogs. More defense attorneys than you can shake a stick at, darn few (none I've found, anyway) prosecutors. Prosecutors can be fun and amusing, too. Plus, we've got these great white hats. . . .

If I'm wrong, and the Internet woods are crawling with APAs, ADAs, etc., posting away, will someone let me know?