woman in black

I May Take the Last Post Down

2008-07-02T18:30:00.000-07:00

So read it now;-) It makes me angry.

My small child is out of town. He has been gone with two of my sisters since Saturday. He won't be back until Sunday or Monday. It is very strange without him here. As usual, I was very excited by the idea of "free" time and after about 48 hours of it, I wanted him to come home. But he is having a blast; visiting my brother and his family on their big place in the country, catching bass and catfish and swimming in the pond (I am from country-folk - my brother has a big old deer blind at the back of his property), going to the zoo, playing with his cousins...it's all good.

Without my small child, I went to see "Wanted." Oh, my. Oh, my. Very thin plot, very stylized action, laugh out loud funny in places, very bloody. I liked it. I went out with one of my friends for dinner and spent two hours swapping stories about our very questionable romantic lives, while drinking margaritas. I shopped at Target and looked at all the stuff on sale (which small child will never let me do - "Don't get distracted!" he yells at me.). I attended two softball games.

I also discovered I have a whole additional room in my basement I never knew about. Isn't that something? My house is big and ancient (and it was cheap, and I thought I would sell it and move, and then I married my bad second ex-husband, and here I am, lots of equity on paper, with this drafty barn around me, and my daughter going to college in two scant years...big sigh. But it's all good. I love my old drafty house.) Anyway: Next to my big covered patio in the back, there is a roof. I assumed the roof covered an old dirt cellar (yes, my house is THAT OLD). The roof rotted. I began to fear the dogs or the small child would fall in. I offered to pay graffiti-boy (I mean, my daughter's very nice, higher education bound boyfriend) to build a new roof. I'm not good with fixing or building things. We bought the stuff, he ripped off the old roof and there was a room. Probably 8 by 10, 6 feet or more deep, concrete floor, nicely finished walls. It is freaky. It had a full-sized door into my basement which had been boarded up. I may use it for storage. It was totally dry in there. But isn't that freaky?

Some Things Speak for Themselves

2008-07-02T18:09:00.001-07:00

This is a real summary, from a real decision this week:

Facts/Discussion: A jury convicted [client] on two counts of first degree sexual assault. He appealed claiming the evidence was insufficient to support his conviction for sexually assaulting a “physically helpless” victim; the prosecutor committed misconduct by misinforming the jury concerning the effect of its verdict and by using victim impact evidence to inflame the jury’s passion; and the district court erred in refusing to address the issue of his mental competency before sentencing.

Sufficiency of the Evidence: The Court’s task was to determine whether evidence was presented from which the jury could have found that each element of first degree sexual assault was proven beyond a reasonable doubt. The jury heard testimony from which it could have concluded that the victim was asleep and therefore physically helpless when the assault occurred. The jury also heard testimony from which it could have concluded that the victim woke during the sexual assault. The evidence was sufficient to support the jury’s verdict.

Prosecutorial Misconduct: The Court agreed with the district court that the prosecutor’s question of the forensic psychologist regarding whether the State could detain [client] if he were found not guilty by reason of mental illness was highly improper. The prosecutor’s question raised the specter that a verdict of not guilty by reason of mental deficiency would result in [client's] release, a matter that was not within the province of the jury and had the potential to distract the jury from its fact-finding responsibility. The Court continued with its review considering whether a reasonable probability existed that the jury would have returned a verdict of not guilty or not guilty by reason of mental illness if the prosecution had not asked the improper question. After the Court reviewed the record, it stated that a reasonable possibility did not exist that the jury would have returned a verdict of not guilty or not guilty by reason of mental illness. The Court strongly cautioned [my state's] prosecutors from questions and arguments that inform or misinform the jury concerning the consequences of its verdict.
The State waved a photo of the victim in front of the jury during closing argument. The record reflects that the statement made and the photo shown occurred during closing argument. The law is clear that victim impact evidence is inappropriate during the guilt phase of a criminal prosecution. The Court referred to their non-exhaustive list of factors (from another case) for evaluating whether material prejudice resulted. The comment was isolated in the instant case and there was nothing in the record to suggest the prosecutor made the remark or used the photo to divert the jury’s attention.

Mental Incompetence: A sex offender risk assessment was made of [client]. Within the report was a statement that indicated that [client] functioned at the level of a six or seven year old child. The record reflects that the district court compared the statements contained in the risk assessment with the earlier testimony presented on the competency issue and found that no new evidence was presented.

Holding: The State presented evidence from which a jury could reasonably concluded the victim in this case was asleep and therefore, “physically helpless” as required under the first degree sexual assault statute. [Client] was not materially prejudiced by the prosecutor’s improper comments during witness questioning and closing argument. The district court appropriately considered the issue of [client's] mental competence throughout the proceedings, including sentencing.

Affirmed.

SO: it is fine to present the wrong evidence at trial, tell the jury (totally falsely and wrongly) that if you find the client NGMI he will walk, wave around a pic of the poor child victim, and then send a kid who functions at a six or seven year old level off to the pen for an eternity. Right? Now, the appellate court did say in a footnote something like: "BAD, BAD prosecutor! Do that again and we may report you to the bar!!!"

If You Read Your Cases...

2008-06-28T12:12:00.000-07:00

You have read Giles v. California. So tell me: if, hypothetically, a person conspires to murder someone so that person will not testify against them in a pending criminal matter, can you admit testimonial statements of the decedent in the original pending matter, the conspiracy case, or both? The original pending matter, definitely. But if the conspiracy and the original matter are not tried together, then would the testimonial statements be admissible in the conspiracy case?

Addict Poetry Because...

2008-06-24T20:37:00.000-07:00

I had two additional examples today of why judges need to walk a mile in someone else's shoes. That's all.

Addict Poetry (if one uses the word "poetry" broadly)

2008-06-24T20:33:00.000-07:00

Installment one:

Dad

My head hurts
My hands shake
I don't remember.

She has red eyes
full of what?
Anger, disgust -
some bad thing.

Kids are in their room
They come down to breakfast
only after I yell, loud,
up the stairway.

My daughter's arm is cut
little slices, over and over
I leave for work.

Things We Have Done for Fun this Week

2008-06-22T14:45:00.000-07:00

1. Went to see Under the Same Moon at the dollar theater. I did not realize so much of it was subtitled, but about three-fourths of it was in Spanish. Nonetheless, my small child enjoyed it (as did the teenager and myself). Two thumbs up! The commentary on the Mexican radio station about Gov. Arnold was very funny.

2. Went to see Mountain Collegiate baseball (our team plays literally two blocks from my house). Lots of college boys playing pretty serious baseball. Also two thumbs up!

3. Went to a bbq where I drank someone's homemade lemon cello (sp?). He makes it with everclear. When was the last time I had everclear? College perhaps? I almost had a hangover (and my superpower is never, ever having hangovers).

4. Played basketball.

5. Watched softball.

6. Went to a cowboy festival (don't ask).

7. Baked brownies.

That's a lot of fun. I am glad it is finally summer.

I Become More Geeky Every Day

2008-06-18T20:39:00.000-07:00

I got all excited this afternoon because I got a trash-pull case and I have never done one. After all my long (mostly) non-conformist life, I am becoming a stereotypical nerdy lawyer. Really, though, the trash-pull case is quite interesting. The trash was curbside, but still on the client's property; it was not in town, it was in a privately owned trailer park; and there are questions about who was allowed to carry away the trash. VERY interesting stuff.

In other, totally non-related news, that I can never tell people I actually know, I was horrified tonight to discover that my daughter's boyfriend had her name tattooed on his back. Big. Colored. Like graffiti art. He had it done two months ago, and just told her today. My thoughts: (1) At least he is a really nice boy, so the likelihood of this being listed on the "tattoo, scar and distinguishing marks" sections of a pre-sentence report are slim; (2) He is going to college in August, and when they break up a month later, he is going to be REALLY sorry; (3) After (2), what the HELL will cover up something of that size???

Happy Dance

2008-06-16T21:29:00.000-07:00

I traveled a long way for a hearing last week. I was the client's fifth or sixth public defender. He was a difficult client. The result of the hearing was the big score, the thing that never, ever happens in real life: he walked out that day. I would like to say it was due to my fabulous legal skills, but it was really the judge doing the right thing in a difficult situation. True story: when we got back to the jail, and I talked to him before he was released, he actually did a happy dance in front of me. That was a first.

Here is the thing about the client: he is the only client I ever had that grieved me to the state bar. I did not have to answer the grievance; because I knew his history, I did not get particularly uptight about it. I just kept doing my best for him, and eventually, it all worked out (and very well). But I have had a couple people say to me "How could you keep representing him after he did that?" I did not see it as a problem. I guess if the state bar had made me answer, and explain myself, maybe I would have been more upset about it. What do other people do?

Anyway, it was a good, productive trip. I took my children with me, since they were out of school, and after I got done with jail and court and more jail, we did lots of fun things, including exhausting national park touring, a Ripley's museum (that was some big fun) and bungee trampoline-ing (yes, I see it was awkward to try to make that a verb).

I Forgot Something Important

2008-06-11T21:07:00.001-07:00

Yesterday while at the prison, I composed a prison haiku:

Sunshine bright on razor wire
Wind blows dust rises
I am glad I am outside.

Not as good as Japanese death haiku but I like it. Someday, I will post my addict poetry. I have a bunch.

Bikes and Snow

2008-06-11T20:59:00.000-07:00

So, I started riding my bike to work on Monday. I ride to my little boy's day camp with him (a couple blocks from my house) then to my office, then home at lunch, then back to work, then to pick up the boy, then home. That is a lot of bike riding. But I did not drive my car at all yesterday. Nowhere. It just sat.

But people on talking on the cell phones: I gotta say, you really DON'T pay attention to cross-walks, bicycles, pedestrians, etc.

Tomorrow, however, I have to drive about seven hours northwest of here for a big (well, big to my client and me) hearing on Friday morning, and it SNOWED there today. IT SNOWED. It is freaking June 11, and I am cold. It was only in the 40's here today, and windy. And yet I rode my bike. I am impressed with myself.

Observations from this Week

2008-06-06T20:55:00.001-07:00

(My observations don't deserve to be called "words of wisdom.")

Work-related:

1. Clients on bond always cause more havoc to your schedule than incarcerated clients.

2. Clients on bond need rides.

3. They live in trailer parks.

4. You know a lot of people in the trailer park.

5. You should avoid the trailer park.

6. Sometimes, you just have to file something that is not going to be successful, and is going to make people mad, simply because that is the right thing to do.

7. If you use the word "oxymoron" to a judge, the judge does not hear the "oxy" part.

Personal:

1. You should not stay at the baseball field once the hail is as big as the baseball.

2. You should go see Mamma Mia if you like ABBA (and don't mind being in a theater with thousands of 40-something women and gay men).

3. Ice cream is not love, but you can pretend.

I Got Tired Last Night

2008-05-29T21:22:00.000-07:00

So I generalized in my post. My specific complaint, about the confrontation issue, is that many criminal defense lawyers do not file detailed motions, saying "Here, Judge: This is the issues. This is the test, mandated for you by the United States Supreme Court. Here are all the ways the State lacks the evidence to meet the test. If you do not rule for Defendant, here are all his constitutional rights that will be violated, and here are all the ways that my Defendant will be prejudiced. And by the way, I am requesting specific findings well in advance of trial on every single one of these points." That is not hard. You don't need to be a good writer to do it. But you have to do it, or your client loses the matter pretrial and then loses it again on appeal. That's all.

I recently filed a motion about a speedy sentencing issue. The prosecutor whipped out a response; sadly, his response could not contend with my pages of law and facts, and he admitted one of my essential facts. Whoopsy daisies. I should win in the district court. If I don't, I should win on appeal.

I started my Kurt Vonnegut book...it is a bunch of never-before-published stuff, like the letter he wrote to his family when he was no longer a prisoner of war, and his fairly contemporaneous description of cleaning up the dead bodies of women and children in Dresden. I'm still sad he died, no matter how old he was. I leave you with his thought: If Jesus were among us today, we would execute him by lethal injection. And for all the same reasons. He is just too liberal.

Today, I Must Talk about Law

2008-05-28T21:33:00.001-07:00

And Indiana Jones. We went to see it tonight. Very fun. Loud. Kind of gives you a headache. But an enjoyable headache.

Anyway: child witnesses being allowed to testify by tape and not appear in open court. Bad idea, even when the defendant is allowed to be at the taped examination and assist his attorney. I don't know anyone who agrees to such a procedure (from the defense side) but I have seen plenty of judges who allow it, upon the most minimal showing by the prosecution. Sometimes, the showing is as little as the prosecutor reciting what some counselor thinks may happen if the kid has to come to court. So today, I read all those damn cases (Coy and Craig from the U.S. Supreme Court and the progeny from my circuit), and it is actually a pretty high standard that the prosecution is supposed to meet. I have yet to see one case which would meet the standards set out in those cases. So that's a battle for another day.

I Had a Long Dream

2008-05-25T14:04:00.000-07:00

about swimming across the sea. Name that tune. Actually, that IS the name. About 6 minutes of very minimal lyrics and lots of good guitar melody. I had to take a road trip awhile back with one of my trippy co-workers. He makes me listen to all kinds of things that are outside my comfort zone (I once thought about killing him because he made me listen to an entire White Stripes CD), and one of those was "A Long Dream About Swimming Across the Sea." Makes you want to go lay down in some tall grass and stare at the clouds.

He also made me listen to some compilation from the Brian Jonestown Massacre (that is the name, right, of the group with that crazy guy who has gone through like 40 bandmates over the years?). That was pretty darn good too.

Today, I took my bike to the C-store and put air in the tires. I am going to start riding my bike to work in two weeks, and I am going to do it all summer. Today, I paid $46 to fill up my smallish SUV, and we have some of the lowest gas prices in the country. This reminds me of the Reagan years - I will be nice and skinny because I will have to walk and ride my bike everywhere. Just like Michigan during the great depression of the 70's and 80's.

So I was unhappy this week because I have a kid doing 30 to 45 years for something, and (a) he really is just a kid; and (b) nobody even died. If nobody died, you just should not be in prison for that long. NOBODY DIED.

One of Those Weeks

2008-05-23T20:54:00.000-07:00

This week has convinced me that, without question, if you want to be a judge or a prosecutor you should have to do a mandatory month in prison. A REAL prison, with real inmates, living a real prisoner's life. I wonder if I could garner any support for that movement...

It's just the way that those in authority toss around years of incarceration like chump change is grating. And scary.

Anyway, I had a rough week at work.

Plus, all these tornadoes. What's up with that? The freaking tornado siren has gone off three times in the last 24 hours, and twice tornadoes have touched down close by my house. Icky. But I have the children well-trained on the drill: take the dogs and the telephone and go to the basement.

I Read Trash

2008-05-19T19:50:00.000-07:00

And I'm proud of it. I got stimulated by the government (i.e. the Bush Admin. graciously gave me some of my tax dollars back) (and I should never, ever, ever, use the word "stimulated" in the same document, let alone paragraph, as "Bush Admin."). Anyway, my small child and I went to Barnes and Noble and spent $80 plus on books (books written in English are printed in America, right? I mean, I would really hate to not be a good American and spend my stimulated money elsewhere.). He got a big Goosebumps anthology and a pirate book; I got some Kurt Vonnegut short stories and...teen vampire romance!!! Twilight, New Moon and Eclipse. And I have finished the first two and enjoyed them thoroughly.

Civil Standards in Criminal Cases

2008-05-15T19:35:00.000-07:00

Here is what is bothering me currently; why is it ever okay, pre-conviction, to use a "preponderance of the evidence" standard to decide something in a criminal case? It should not be.

Forfeiture: you are alleged to have killed/conspired to kill/helped to kill someone. Prosecution wants to use the statements of the dead someone against you at trial. The doctrine of forfeiture exists; that is, if you removed the witness so they could not testify against you, you don't get to cry foul on confrontation grounds. Or so said the United States Supreme Court in a BIGAMY case a zillion years ago, where no-one was dead. So the Reynolds case survived Crawford; neither case defines the limits of the doctrine. Giles v. California was argued on April 22; but that is a much more specific question: if you kill someone without the intent to remove them as a witness, is there forfeiture? Why have so many states (not necessarily mine, but people here seem to think it implicit) adopted the preponderance standard? And the judge gets to decide? What if the person is not connected to the crime by any physical evidence? Just a co-defendant who got a deal? Is that a preponderance?

I think using a preponderance standard pre-conviction undermines the process.
Just my opinion.

I Haven't Been Posting Much

2008-05-08T22:10:00.001-07:00

Because it is soccer AND baseball season at the same time. Almost every night, I am at a practice or game.

My small child is going through a very coordinated spell. Monday night (when the weather was quite pleasant) he scored three of his team's four goals. Last night, when it was cold as a well-digger's - parts - he went three for three batting, scored once, had a couple RBIs, and did a very decent job catching and at short stop.

Road Trips Are FUN!!!

2008-05-08T21:05:00.000-07:00

Today, I drove a very long way to a minimum security facility, to interview a person there (not directly pertinent to this, but somewhat, what the hell do people do to deal with what I call "psycho spouse accusation cases"??? As in, you have a very floridly crazy - redundancy alert - angry spouse who spews a bunch of stuff that is not verifiable by physical evidence and someone ends up convicted of two or three felonies. I see several such cases a year; always erodes my faith in the jury system a trifle.).

ANYWAY: I was not really happy about the long drive because it was through radio wasteland (like, Nebraska radio stations, and those are just SAD). After awhile, though, I woke up, and realized that I was driving a brand new car from the state motor pool, and it had Sirius!!! Then, my day was all good. I listened to E Street Radio the whole rest of the time (so about seven hours). I heard a live concert from Atlantic City in August 1975; I hear three different versions of Saint in the City; I heard two different versions of I Came for You (both only accompanied by a piano); I heard an insane version of Tenth Avenue Freezeout, which included a bit of Redheaded Woman; two version of Growing Up (which I just put on one of my Itunes cds); and on and on and on. It was very exciting. Sadly, we speculate that the Sirius came as a trial with the new cars, and the state will not continue to pay for it. But still.

Question re: NCIC

2008-04-30T20:35:00.000-07:00

Do your prosecutors routinely give you NCICs in discovery? If they don't, why not?

Consensual Encounters Gone Awry

2008-04-28T22:00:00.000-07:00

Types of cases or problems seem to come in waves, batches, or groups of some sort (once, I had a long run of a certain sort of sex offender; one after another. Finally, I had to say, "I can't do the next one. I need a little break from that." Except that is not how I said it.).

Twice, recently, I have seen consensual citizen/police encounters which went bad fast. Law enforcement people: you can't drive by the guy on the street and stop and demand info from him if you do not have reasonable suspicion that a crime has been or is being committed. You cannot. You can ASK. But if the person does not want to answer, you cannot DEMAND.

Hypothetical scenario: Guy walking down the sidewalk. Cop pulls up.

Cop: Nice weather.

Guy: Yup.

Cop: What's your name?

Guy: George.

Cop: George what?

Guy: Why?

Cop: I SAID GEORGE WHAT?

See, right there, you have yourself a problem. If you then make George stand there and answer you, it is a detention. In my humble opinion only, of course.

I am (A) very well-adjusted and self-confident

2008-04-27T21:07:00.000-07:00

or (B) a big, geeky loser. You decide. I spent the afternoon driving to another town (45 minutes away) in order to see Shine a Light - by myself. Amazingly, I could not find one person in my fairly broad and diverse circle to accompany me. Well - actually, I didn't try very hard. I did not want to worry about anyone cramping my enjoyment of watching the Stones in concert.

I have seen the Stones in concert three times. Loved them every time. I think Exile on Main Street is one of the best albums ever made. Anyway, I enjoyed it. Scorsese is amusing on-screen. The clips of Mick and Keith when they were young are fabulous. In a more recent interview, someone asked Keith what he does before a concert and he says, "Wake up." There is also a discussion between Ronnie and Keith about who is the better guitar player; Ronnie says he (himself); Keith essentially says they both suck, but together, they are better than anyone. There is some truth there.

Two thumbs up.

I Miss My Blog

2008-04-25T20:40:00.000-07:00

I deleted my blog. A year of hard blogging, down the tubes. It made me sad.

But lots of people had started reading my blog, from my very own area. That sort of freaked me out.

I would never, ever, ever want to do anything to jeopardize my job. Not because I could not practice another kind of law. I could. But because I love what I do, and there is a whole lot of meaning in what I do, and that's not something you find every day.

I would never, ever, ever want to do anything to cause a problem in my office. My office is great.

Then, I thought about all the great people I have cyber- or e- met while blogging, and how helpful it has been in getting my job done, and done well. So for now, I think blogging is good.

Here is today's hypothetical:

Suppose you tried a case and lost. Suppose you had a tip and discovered that the prosecutor had consulted an expert who told the prosecutor things unfavorable to the prosecution and favorable to the defense; whereupon the prosecutor never used the expert and never disclosed his opinions to you. Isn't that straight up Brady? It has to be. Even if, again hypothetically, a medical professional was involved, there is no privilege. I don't think work product privilege could ever trump Brady in this situation, nor any rule of procedure.