Requiescat In Pace James "Scotty" Doohan

March 3, 1920 - July 20, 2005

The 36th Anniversary of Apollo XI Moon Landing

There Will Always Be An England

As If We Needed Any More Proof

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From Dork Tower

Fathers Day 2005

Why Dad's Are Important

Just got around to reading James Lileks Backfence column for today and I had to share a bit of it with whoever stops in here today. For those of you who don't know, James Lileks is, among other things, a columnist for the Minneapolis Star-Tribune and a hard core blogger - one of the sort who was doing this before it had a cute name. You can find his blog-like activity at 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

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?

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

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

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

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

Indigent Defense - Who Does It?

Is It Always Three Ways?

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

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

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

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

Indigent Defense

Neither Simple Nor Easy

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

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

So, in law speak, indigent defense is the defense of very/extremely poor/needy people. Seems clear enough at first blush. But. . .

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

The place to really start is the Supreme Court's 1963 decision in a case called Gideon v Wainwright, 372 U.S. 335 (1963). For a detailed review of this opinion take a look at the entry at 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. . .

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

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

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

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.

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!

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

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

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?

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

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.