La Peine Forte et Dure

Long time, no post

2008-06-17T22:58:00.002-04:00

I've got a jury deliberating on a rape case, just now. They went out on Monday at 1:45 and by 3:30 they sent out a note saying that they were deadlocked. They twice sent out notes that they were "deadlocked," today. In the last, they even said that they were "hopelessly deadlocked."

The thing is, the split is 9/3, and I think it might be in my favor.

Belated update

2008-01-28T21:08:00.001-05:00

The jury was out for about 8 hours. They convicted my guy of 3 counts of robbery by intimidation, 4 counts of aggravated assault, hung on the possession of a firearm during the commission of a crime, and acquitted on the 3 armed robbery counts. The verdict is inconsistent, at the least -- they convicted on the robbery by intimidation, but still found that a gun was involved in the aggravated assault counts. I will not complain too loudly: at least my guy has is afforded the possibility of parole and will accrue good-time credit.

The Judge sentenced my guy to 20 do 15. No history. No one hurt. All property was found at the scene. That seemed awfully steep to me, given the circumstances, and put me in a tail spin for a while. I'll blog more on that later.

I'm getting really, really tired of losing.

Jury's out

2008-01-10T23:34:00.000-05:00

I tried a armed robbery/aggravated assault this week. I think it is a fairly good case, despite what the story sounds like at first blush. Four guys get robbed, allegedly by three other guys, and a cop just happens to roll buy and interrupt it. My guy runs. But everything was very confused in the witness statements and descriptions, the evidence wasn't collected very well, and one guy pled guilty.

The jury went out today at 1:30 and will be coming back in the morning.

On another note, this is my 100th post.

Boggled

2008-01-03T22:48:00.000-05:00

Client: Well, are they going to dismiss the case?

Me: No, no, I don't think so. They want a trial or a plea.

Client: There's no way that they're going to win -- they know that they don't have any evidence. I need to get home.

Me: Well, what concerns me is that the dude is going to say that you pointed a gun in his face and took his stuff. And, if we lose, the Judge is probably going to give you 15 to serve. That's 15 years to the door -- no parole, no good time.

Client: We'll just have to crank it up.

And the Judges always think we're nuts

2007-12-22T18:40:00.001-05:00

An officer in a neighboring jursdiction started a blog and it apparently lies now in neglect, as it seems most blogs do.

What's interesting about this blog is that it is written from the perspective of the cop out on the street. It traces his journey through the academy and his application for a job through his first three months on the street. Along the way, he drops little nuggets like this:

We do a lot of mexican raids. You know the spots where all the illegals hang out in the morning looking for day labor. Well we have a lot of fun harrassing them. The other day we played the cops theme song "Bad Boys" across the PA system as we rolled up in there. It was hilarious.

Just as I always suspected. The emphasis is mine.

On Friday, I represented a man from Mexico, who happened to have a social security card and a permanent resident I.D. in a false name. This fellow is an itinerant agricultural worker. He has come to the U.S. to work the fields and send money back home to his three kids. He is a religious man and was extremely polite. He is not: (1) a terrorist; (2) a gang member; or, (3) a drug addict. He's just a hard-working guy.

I am sure that the stop was exactly as Officer Beck describes in his blog -- my report said that the arresting officer saw some men drinking along a woodline and arrested my guy for public intox (although there was no indication that he was disorderly), criminal trespass, and a county ordinance violation of having an open container. Now that's reaching deep. Upon searching my guy, he found the fake ID cards. My guy entered pleas to two counts of Forgery and is now awaiting deportation. I begged the ADA to come down to misdemeanors, but he would not budge. There was some poetic justice, however: after the plea, the Judge asked why the illegal immigrants were being arrested solely for false identification, when there were no other charges. The ADA got to squirm a little, which was nice.

My guy is still in jail.

Ugh.

2007-12-17T21:41:00.000-05:00

My Residential Mortgage Fraud client is scheduled for sentencing tomorrow. Apparently, the Attorney General's office is going to recommend two years to serve, followed by eight years of probation. (10 do 2, in local parlance.) That seems a bit excessive to me. But then it probably should, given which table I sit at in the courtroom.

I talked to my client today on the jail phone, and after we discussed many things, the last words she said to me, just before hanging up, were, "and thanks for everything you've done." Those aren't words you hear very often as a public defender and it is very rare for them to be heartfelt. But these were and I got just a little bit choked-up.

I also have six probation revocation hearings scheduled for tomorrow morning. There's nothing quite like easing into the holidays.

UPDATE: The Judge and I were on the same page -- 10 do 2, suspended on completing the Detention Center (which is a 90-120 day program), no restitution, first offender status. So, as long as she gets through the Detention Center, which is basically a boot-camp program, then she won't have to do any prison time. That's extremely fair, although I would have preferred straight probation. On the same page, but not in the same paragraph.

Progress and disappointment

2007-12-16T10:06:00.000-05:00

The past six weeks have brought a whole new layer of sophistication to my practice. I have

made widespread use of our investigators, and thank god for them
hired a private psychologist to perform a competency evaluation on a client, concerned not about mental illness but about mental status
hired a polygrapher to examine a client

Having someone else to actually get stuff for you, whether its witness interviews, documents, or whatever, is a such a luxury. I've been a public defender for over five years now, I guess. But, in the past, I've never had access to investigators. I was the one that hunted down witnesses, obatined documents, etc. There really is now way that you can effectively investigate a case when you have 30 cases on a trial calendar each month. Sure, you can get your client to help you, but that is less than effective. Their friends may or may not call you back, and there is no way that I can serve subpoenas in 30 cases. As a result, a lot of one's work becomes processing cases -- getting a dismissal, because the victim doesn't show up, or the best deal that you can. There are always regrets when you try a case, because there is more that could have been done. Having someone on the team, though, who does that work full-time is an immense help. It makes me feel like a lawyer again.

Speaking of, I tried my first felony case here. Before I came Down South from the Rust Belt, I was in a felony defender's office back home. I tried several there, but that was over seven years ago, now. (For those astute readers, I took some time off from defending and worked in the courts -- I moved unexpectedly to the South, and got a job where I didn't need a license right away.) I've second-chaired a couple of felonies since I joined this office, but this was my first without being under someone's wing.

The charge was Residential Mortgage Fraud, and I had a lady that was just trying to buy her first home. The mortgage broker and home owner were charged as well, and were represented by retained counsel. I suspect, though, that I've had the most experience actually in the courtroom. The mortgage broker paid a lot of money, I suspect, on a retainer on a fairly new attorney. We are all inexperienced at some point, so I am not faulting the lawyer. But, the situation spoke volumes about the "real lawyer"/"public pretender" myth. Of course, I'm not claiming to be Barry Scheck or F. Lee Bailey or Johnny Cochran.

I didn't believe that the jury could find my client guilty of what the State charged her with. We picked a jury on Monday, and slogged through all week and closed on Thursday morning. Of the two dozen trials I've had, this was one of my better closing arguments, so I was feeling pretty good about the whole thing. I began to get worried, though, when the jury went home Thursday night without a verdict. On Friday afternooon, after 10 hours of deliberations, they jury let us know that they disagreed with my take on the facts. My lady was taken into custody immediately, of course. She's facing a mandatory 1 to 10, although the 1 can be probated or suspended. Sentencing is Tuesday.

Losing really sucks.

No Comment

2007-12-01T11:02:00.000-05:00

The truth is much, much stranger than fiction.

Sucks

2007-10-30T22:07:00.000-04:00

The client that I've written about in the last few posts entered a plea today. We had a pretrial, and I had hoped to talk her down, but the Judge ended up following the prosecutor's recommendation.

My client was involved in three armed robberies which happened over the course of two days. In addition, his brother, who was a co-defendant, ended up getting shot by the police. You'd think that these were bad guys, but they weren't. All three of the co-defendants were still in high school, and the two brothers of my clients were doing very well. My client is a soft-spoken, sweet kid, who I don't think really understood the gravity of his situation until this morning. He always knew in the abstract, but today it all became real.

The Judge sentenced him to serve 15 years in prison. At the age of 18. It is an entirely fair sentence for three armed robberies committed in less than 48 hours. But it seems like such a waste. Here, there is no parole, there is no good-time credit, there is no early release for armed robbery.

He will be 33 when he walks out the doors of the prison, finally a free man. He will have lost the entire decade of his twenties. He had plans to go to college following high school, which now will not come to fruition. He will not know living in the dorm, all of the tangled social webs that are woven in freshman and sophmore year. He will not know football games, he will not play in the school's marching band, which was his dream.

A few instances of extremely poor judgment have led to him missing the heart of his youth.

Update

2007-10-24T07:51:00.001-04:00

I'm in, but now I'm a little pissed. Before the calendar call, the D.A. was interested in what the client had to say about a co-defendant. But now, since that co-defendant is set up for a plea, the D.A. isn't interested anymore.

The delay in resolving this issue, at this stage of the proceedings, has cost my client the opportunity to lower his sentence. Which doesn't mean much in the abstract, but does when you realize we're talking about years in prison. And I do mean "years."

I met with his mother last night, and everyone seems pretty well resolved about what is going to happen, which is good. Still, I feel bad for her.

Waiting

2007-10-17T23:40:00.001-04:00

The first week of the trial calendar is nearly half over, and I've got a problem.

I represent one guy that's charged with a series of offenses, and he's one of three co-defendants. The conflict defender is already handling one, and the second co-defendant is being represented by another attorney in our office. Looks like there might be problems with the joint representation and we have made motion to appoint outside counsel.

Here's the problem: Brian Nichols. Well, indirectly, anyway. I don't think that there is any money left to pay appointed attorneys. Anywhere. Our budget is pathetically small, and the Brian Nichols case has exhausted the state offers, as has been discussed ad nauseum elsewhere. So, we've tried to handle our conflicts inhouse when we can, but sometimes you just can't. And I think that's the position that I'm in now.

And I'm now stuck in this sort of limbo -- if I'm going to represent my guy, there are certain things that I need to do right now, but everything is sort of on hold and it's getting to be just a little frustrating.

I'm left in a quandary.

Testing

2007-10-11T22:28:00.000-04:00

Does this thing still work?

I've been awfully, awfully busy lately. As you might imagine. I second-chaired a child molestation case, which we won. That was incredibly sad -- our client was 13 when the alleged incident occurred. I have all kinds of respect for people that represent juveniles charged as adults.

I got through my first trial calendar in big people's court just fine. I'm on the cusp of another, which will start Monday. I think I have all 15 of my cases worked out, though. We shall see. There are one or two which have potential.

And I have my first case set tomorrow with real exposure set for pre-trial. There is a motion pending that will make a huge difference in the case. We shall see what tomorrow brings.

Caesura

2007-08-11T18:09:00.000-04:00

My daughter was born this past Tuesday. Everyone is healthy and good.

However, I am on paternity leave for the next week and a half and won't have much of chance to write anything here. Do not despair, oh faithful readers.

(*crickets*)

I'm returning to work somewhere right around the 21st, I think, and will be confronting a trial calendar when I do. Woohoo!

Another promotion

2007-07-30T20:20:00.000-04:00

Today, I found out that I am being reassigned to felonies, which are prosecuted in the uperior Court, here. I defended felonies before I came to the South, six years ago. I've almost forgotten what it's like, now.

I've been pretty well unsettled for the past month and a half, first going to the supervisor's position a week early, while I still had trials set. Then getting used to the role of supervisor. I had planned on covering for a friend who will be going on maternity leave next month, so I was beginning to get my mind wrapped around that.

And now I am where I wanted to be when I first started. I think I just need to let the dust settle some. It's going to be a great position -- the Judge, I hear, is on senior status and has a reduced caseload. So, while a lot of my colleagues have 150+ open felony files, I'll have less than 100. Not a bad way to get reaquainted.

Bomb threat update

2007-07-26T17:21:00.000-04:00

Well, I came to work today to be greeted by a very visible police presence. There were deputies in the parking lot, turning non-employees away. Which was nice, because there aren't ever any parking spots, because of the probationers. There were police officers inside of the building, just hanging out and observing. And I understand that there were undercover FBI officers present.

Of course, nothing happened. I did happen to bump into one of the fellows in charge of terrorism preparedness on the local police force this morning. He pretty much affirmed what I was thinking, pointing out that the threat wasn't specific.

I was kinda hoping we'd get a new building out of the deal. Alas.

Empty threats

2007-07-25T09:00:00.000-04:00

Our office is located in a building across the street from the courthouse, which is nice, in many ways. It reduces the appearance that we're "working for the State" and keeps us a little bit out of the loop, in a good way. We're in a big county, the second most populous in the State, I'm guessing. And we're located in a relatively major urban area, so its a good thing to lie low on the radar.

Pre-trial services is on the same floor as us. They monitor folk who are on bond, but need a little more supervision than the average criminal defendant. They get a fair amount of foot traffic. Oddly, the county's family law clinic is also on the same hall.

Last week, an employee of either the family law clinic or pretrial services discovered a legal pad which had a relatively long, rambling letter written on it. A warning, of sorts. I read a copy of the letter myself, and the writer stated that he was ready to die, and would be carrying out a suicide operation in which "hundreds of thousands of white people" would be killed. The date of this supposed operation is tomorrow, July 26. The person signed the letter with an Arabic name.

I call bullshit.

Title change

2007-07-17T21:44:00.000-04:00

In my haste to begin blogging, I couldn't think of a good title for this space, so I went with the obvious. I'm a public defender, I'm writing about day-to-day work, hence, "A Public Defender's Journal." However, this title was always provisional, until I could think of something better. I've finally found something that I think fits. Granted, it is going to change where I stand in the listings at Public Defender Stuff, but sacrifices must be made.

As I blogged about last November, I have become interested in the things that lie under our daily practice. I have become intensely interested in the Common Law as we inherited it from England. Granted, this project is moving very slowly. And I mean very slowly.

Nonetheless, I was reading about Henry Bracton, a systematizer of the Common Law in the thirteenth century, and a forerunner of the more famous Blackstone, in my old copy of Bryce Lyon's Constitutional and Legal History of Medieval England, when I ran across an old Common Law procedure designed to encourage the accused to embrace trial by jury.

It is also known as crushing. If the accused elected to stand mute, then he would undergo La Peine Forte et Dure. According to Lyon, the accused

were loaded with heavy chains and placed on the ground in the worst part of the prison; they were fed a little water one day and a little bread the next. We also learn that more iron or stones were put upon the individual to make his imprisonment more painful and to persuade him to accept trial by jury. Under such hideous conditions many men chose to die rather than to take their chances by trial with jury.

You see, if the defendant lost at trial, his entire estate would escheat to the King. Because his family would be left without any means of support, the accused often opted to be crushed to death.

Thus are the origins of our most hallowed institution in the criminal justice system, the trial by jury. Needless to say, the next time I hear a client demand that I "crank up the jury," I will be chuckling silently at the irony.

Promotion update

2007-07-16T08:08:00.000-04:00

Things with the new position are going swimmingly. Mostly, I backup inmate arraignments and arraignments, and triage mental health clients. And, of course, I am a sounding board for the division attorneys on motion and trial tactics.

I've had this position for three (?!) weeks now. The first week, however, I was finishing up my division assignments, including trials, which made for a very busy week. But, since then, I'm settling into a groove.

Oddly, I had a stress dream this morning. I dreamt that I was in bed and sleeping, and I had to get to the office to prepare jury charges for the trial that I had today! I remember thinking to myself, "well, its awfully late -- I guess I'll wing it!"

Things not to wear to court

2007-07-11T21:20:00.000-04:00

Walking passed security and out of the front door the courthouse yesterday, I saw a lady walking in with a t-shirt that caught my eye. It was black, very tight, and across the chest said, "I WOULD NEVER FUCK YOU." I had to take a second glance, because the "NEVER" was in much smaller print than the rest. My first thought was, "why the hell would you wear that to the courthouse?" Then I heard a deputy say, "she can't wear that" and my second thought was, "First Amendment issues?!"

I kept walking.

Trial update

2007-06-27T19:52:00.001-04:00

My boss re-tried the murder case last week. The child who died was horribly abused in his short life. He had multiple broken ribs and over 30 healing bruises on his body. One of the bruises was in the shape of a little hand. The big question, of course, was who did all of this to the child.

Our client was not the biological father, but the mother's boyfriend. He never disciplined any of her three children. And, the two-year old had been with his grandparents for the two weeks prior to this death. They dropped him off around 4:30 or 4:45, and he was dead by 5:30. The mother arrived home around 5:20, perhaps a little before, and the call to 911 was placed at 5:26. The poor little guy died because someone had hit him so hard that his heart was compressed between his chest and his spine and ended up tearing. That sort of injury is extremely lethal, and could have resulted in death in as little as five minutes. No one saw our client hit the child, and the mother was subsequently charged with abusing the child. The timeline here was absolutely critical.

The case went in much better last week, and the jury ultimately acquitted the client of both charges. He was released last week, and is now free, for the first time in over a year.

Drama! Controversy! Juror Misconduct!

2007-06-13T20:02:00.000-04:00

Our murder trial ended unexpectedly today. More on that in a minute.

Jury selection finished up yesterday morning, and we executed our strikes. Here, peremptory strikes are silent -- a piece of paper is passed back and forth between the parties and they either accept or reject the veniremen. When the clerk called the names of those selected, I had to suppress a giggle when I heard one of the jurors mutter, "shit."

The Chief Assistant gave a good opening, laying the groundwork for closing arguments, without giving too much away. I actually crossed two witnesses, a little nervous because the Chief Assistant is one of the Bosses. And, she's really, really good. We were chatting last week, and she laughingly told me that she has tried 100 murder cases. That's just murder cases.

When I wasn't listening to the evidence yesterday, sharing thoughts on the evidence with the Boss, or fine-tuning the areas I wanted to cover in cross, I was desparately trying to console our client. He cried horribly yesterday after opening statement. He began to cry when the State played a videotape that was taken inside the house where the death occurred. He cried when the State published the hospital photos of the decedent. A person, a cynical person, would say that he was crying because of guilt. I truly believe that he was grieving, two years later, and grieving deeply.

Although we stayed late, we did manage to get through five, unimportant witnessess yesterday afternoon, which was good progress. They were the responding officer, two officers who executed search warrants, the emergeny room nurse, and the EMT who first arrived at the house. The Judge was pleased with where the case stood and was talking about more reasonable hours for the rest of the trial.

After the other jurors left, a lone juror came forward and shared that another juror was expressing her opinions about the case. After being pressed by the Judge, the juror said that she had told them, "he's guilty, he's guilty, I'm telling y'all he's guilty." That's after five witnesses who were largely peripheral to the case.

This morning, the Judge had a hearing and individually asked the jurors if they had heard anyone express opinions about the case. 7 of the 14 said that they had. Oh, but wait! That same blabbermouth-juror also happened to recognize the mother of the decedent this morning, and had a little chat with her in the courthouse hallway. The mother, who is a witness, told the juror that she was there because "my ex-boyfriend killed my son." Did blabbermouth keep this to herself? Of course not! She shared that too! Another 7 of the 14 had heard her say that she knew the witness, with varying degrees of intimacy with the full facts about why the juror knew the witness. So, we had a total of 10 tainted jurors. (Most had heard her on both topics.)

Despite the fact that there is caselaw directly on point in this State, the Judge ruled that merely expressing an opinion about the ultimate issue is not juror misconduct. Hey -- who cares about structural error? However, because the State acquiesced in our motion with regard to the extra-judicial conduct, the Judge granted the motion on that ground. So, we were back in the office by 11:00, trying to figure out how we had landed in space court.

In all seriousness, but for the courage and integrity of one lone juror, we never would have known that one of our jury members was flagrantly violating the Judge's instructions not to (1) talk about the case or (2) form an opinion, until the evidence was concluded. That is scary as hell.

Tired

2007-06-11T23:48:00.000-04:00

I'm "helping" our Chief Trial Assistant out with a murder trial that started just today. We spent all day today on preliminary motions and voir dire. And we didn't even get a jury picked.

Anticipation

2007-05-31T07:07:00.000-04:00

Part of the Big City Next Door actually lies in our county. For whatever reason, it is almost impossible to get the officers from that jurisdiction into our court. Last year, I had a vehicular homicide case that was dismissed for want of prosecution because the investigator never bothered to return phone calls, either from the State or from us.

I have a little prostitution case this morning. She was allegedly soliciting in the City, and the prosecutors offered her pre-trial diversion. Unfortunately, she wasn't able to complete the diversion, and I picked the case up when it was falling apart, of course. Initially, I was a little upset that she didn't just finish what she needed to do. Until I realized where the incident occurred. Now its an entirely different story. These kind of cases are good for my stats.

EDIT: The officer didn't show and the case was dismissed for want of prosecution.

Promotion

2007-05-29T19:21:00.000-04:00

Well, starting in July, I'm going to have a new position in our office. The Big Boss has seen fit to make one of the two supervisors in our misdemeanor court. It will be a nice change of pace -- I will no longer have my own trial caseload, but will be helping out at jail pleas and arraignments. In addition, I will be putting out various fires, most of which will have to do with mental health clients.

I have never really supervised before. I mean, there has been the odd law student intern from time to time, but that's really more mentoring, in my book. Hiring and firing decisions are, thankfully, left to others. So it will be a nice opportunity to develop skills on helping others reach solutions to their problems.

In that vein, I have already told one of my colleagues that I intend to abuse my powers by randomly making him drop and give me twenty. His reply was much less than respectful.

Things I Like

2007-05-22T22:22:00.000-04:00

Writing an appeal brief while listening to Slayer.