Appellate lawyers

A couple of years ago I went to a seminar on defending death-penalty cases. The first panel discussion was about improving relations between trial and appellate counsel. The speakers tried to set the stage for a "collegial" discussion, but it quickly degenerated into a floor fight. I had always assumed that if it should ever come to it, I would fall on the sword if it would help my client. I sympathize with the appellate attorneys trying to pull our clients out of the fire and I understand that we, as the trial attorneys, have to understand that there is no such thing as a perfect trial. If they can find a way to undo a conviction, we ought to just swallow our pride and go with it.

Today I got my first phone call from an appellate attorney. I was immediately set on edge by the nasal New York accent coming through the line. He was calling about my Rosa. Rosa is doing 40 to life for shooting her husband to death.

This fucker had the temerity to ask me why I argued for an aquittal instead of a manslaughter. It was obvious to him this was a manslaughter case, and in his estimable opinion I lost the jury when I argued for an acquittal.

Why did I argue for an acquittal? You must be fucking kidding me! I could not believe this!

Pinhead: "I mean, you told the jury that manslaughter was an option, but then you told them not to go down that road. What made you think you had a chance at an acquittal."

Me: "Well, shit Mr. B. Maybe it was because I thought she wasn't guilty. Call it a tactical decision. If you can make hay with that, go for it."

Pinhead: "Hey, hey, no I'm just trying to understand here. We're just having a collegial discussion.

Me: "I think you need to look up 'collegial'."

Then he asks me: "Did you advise her to testify?"

(I practically dragged her to the stand and chained her to the witness chair.)

"I think you had a much better case for a manslaughter before you had her testify, but I guess you had to put her on to make a case for self defense...."

"Did she really turn down 18 to life?"

By the time he was done, I wanted to rip his head off. In the end, I wished him luck.

12(b)(6)

Periodically, I like to take pot shots at the "Baker Boyz" - fancy-pants toadies at a high falutin' D.C. law firm who periodically surface long enough to defend the Bush administration in Op-Ed pieces, but not long enough to actually benefit from some sunlight.

http://doubtslinger.blogspot.com/2008/12/conservative-legal-scholar-or-asshole.html
http://doubtslinger.blogspot.com/2008/06/inferiority-complex.html


A while ago, they busted out their department of justice credentials in defense of Professor John Yoo. I took issue with their position that Mr. Yoo was just doing what lawyers do when he provided the legal framework for indefinite detention and torture of "enemy combatants."
I charitably conceded that the issue of Mr. Yoo's culpability was complex, but uncharitably called "bullshit" on the Baker Boyz.http://doubtslinger.blogspot.com/2008/04/drivel.html

Mrs. Doubtslinger and I have had spirited debates about the propriety of, and the chilling effect of holding lawyers criminally (or civilly) accountable for their legal advice. Several bottles of cheap chardonnay have been consumed wrestling with the issue -- Mrs. Doubtslinger advancing the considerable public policy arguments and measured practical considerations against such a course while I spew venemous invective and hew to an inflexibly rigid moral compass and say "bullshit!" between swigs from the bottle. Shit, there was more lawyerin' done in our bedroom than in the hallowed halls of Baker, Hostetler and Ghoul.

So anyway, I found this interesting:

http://static1.firedoglake.com/28/files//2009/06/padillayooorder6-12-09.pdf

United States District Court Judge Jeffrey White denied Professor Yoo's motion to dismiss the civil suit filed against him by Jose "Dirty Bomber" Padilla. Federal Rule of Civil Procedure 12(b)(6) allows a defendant to kill a lawsuit at its inception if the complaint fails to state a claim upon which relief could be granted.

Apparently, the arguments posited by the Baker crowd didn't play too well in federal court. Remember what the Baker Boyz said....(flashback music and wavy fade......)

"In truth, the critics' fundamental complaint is that the Bush administration's lawyers measured international law against the U.S. Constitution and domestic statutes. They interpreted the Geneva Conventions, the U.N. Convention forbidding torture, and customary international law, in ways that were often at odds with the prevailing view of international law professors and various activist groups. In doing so, however, they did no more than assert the right of this nation – as is the right of any sovereign nation – to interpret its own international obligations."

Well, not so fast fancy pants......

Judge Jeffrey white seems to think the law was pretty well established when Mr. Yoo penned his memos. (Which might be why the law professors and activist groups had their panties in a twist.)

As for the "don't blame me, I'm just the lawyer" defense, well let's review shall we?

Baker Boyz: "This is madness. The lawyers were not in any chain of command, and had no theoretical or practical authority to direct the actions of anyone who engaged in abusive conduct. Those who mouth this argument are engaged in a kind of free association which, if applied across the board, would make legal counsel infinitely culpable."

Judge Jeffries: "Like any other government official, government lawyers are responsible for the
foreseeable consequences of their conduct."

Well said, Judge Jeffries. I'll drink to that. Looks like we're goin' to trial, boyz.

This is odd.

California's notorious Prop 8 is now being challenged in Federal Court. Opponents of the initiative (now "law") are arguing that it violates federal due process and equal protection.

Whatever the constitutional issues, this is going to be a pretty remarkable case. Not one public official from the state of California will be defending the suit. Not the governor, and not the Attorney General (who, in fact, will be arguing that the amendment IS unconstitutional!). The proponents of the amendment are left to swing away by themselves.

Recollecting my constitutional law, the courts will be applying a "rational basis" test, I believe, to the question of whether depriving gays of the right to marry is a legitimate state interest that justifies singling out a class of people for disparate treatment. (Sexual preference is not a constitutionally protected class like race or gender). So the state of California will have to set forth at minimum, a rational basis for allowing opposite gender marriages but forbidding same sex marriages.

But, here's where it gets wierd, officials from the state of California won't be making those arguments. They'll be arguing the opposite. So it will be left to the Mormons (and others)to argue that the state has a legitimate interest in defining "marriage" as between a man and some women, I mean a woman, and that the reasons for doing so are "rational." I'm sure "exhibit A" will be the Official Voter Information guide - in which we are warned that teachers will be FORCED to instruct our children that there is no difference between gay and straight marriage! And that "Humankind" has ALWAYS defined marriage as between a man and woman, blah, blah, blah -- in other words - no "rational" basis here. Just a lot of fear, hate, and prejudice against gays and, even worse, "activist" judges.

Also, since even the proponents of Prop 8 concede that domestic partnership laws are appropriate -- what rational reasons are left for the STATE to ban gay "marriage". The government's only legitimate interests in the institution of marriage are property arrangements and taxes, (all the other aspects of marriage are personal, moral, and religious -- i.e., none of your damned business).

I will be very interested to see what "rational basis" the proponents of prop 8 will put forth on behalf of (and in opposition to) the State of California. Even more curious, what rational basis exists to permit those gay couples already married to remain so, but to preclude others from the same right?

Stay tuned.....

Oh, boy. I'll pay for that one.....

So, I'm sitting in my office today, a rare "office day" caressing a cup of piping hot coffee. I just finished clearing out my in-box, and was experiencing one of those rare moments of peace and quiet. I was pondering which murder case to ignore today, when a page came over the speakers asking for "any attorney" to call the front desk.

I picked up the phone before my brain engaged.

"Can you come down here and talk to this guy?" which means, "There's an asshole down here that won't go away..."


I sat for a few moments, wondering how it was possible that I was dumber than Pavlov's mice. Nothing good ever happens when you pick up the phone. Ever.


Waiting for me in the lobby was, in fact, an asshole. I knew he was an asshole because he was wearing a backwards baseball cap.


The secretary handed me his file, and I could see that he had been convicted of domestic violence. We began to converse. I don't mean "converse" in the way you or I might converse, where there is a series of appropriate responses progressing in a linear and logical fashion toward a mutually agreed upon conclusion.

By "converse" I mean he made no sense, and I would periodically interject "...but I thought you said your counselor had no problem with that..." and "...WHO told you it would be okay if you didn't go to counseling?' and "...what is it, exactly, that you want me to do?"

Fortunately he brought his girlfriend to translate. Apparently our office was the last in a series of go-talk-to-your (someone else not me). He'd been blown off by his counselor, his probation officer, and now it was the lawyer's turn.

He was going into rehab. Tomorrow. He needed someone to tell him that it was okay to blow off his domestic violence classes. That someone, apparently, needed to be a judge.

So I said I would try to get him on calendar, but he needed to stay in touch with us so that we could let him know his court date. The problem was, he was going into rehab tomorrow, and could not make contact with the outside world for 30 days. Also, if he didn't show up to his classes tomorrow, he would be terminated from the DV program (a condition of his probation.)

So I said that we would try to appear on his behalf and ask for the leave of absence. And then I told him, of course, it could happen that, upon learning he had been terminated from his program, the judge might instead revoke his probation, and issue a bench warrant for his arrest.

To which, this genius exploded: "For what, getting myself into FUCKING rehab?"

My resting pulse from 60 to 120 in less than a heartbeat. "No" I said. "...for not going to your FUCKING classes."

Now we were no longer "conversing." I don't think he liked being challenged in front of his punching bag. He started pointing his finger at me and yelling at me in that special way that people with anger management issues do.

"Look," I said. "I'm trying to help you. You need to shut up and listen to me." He startedpacing around the lobby, so his girlfriend interjected and told me that I needed to understand his frustration. He is trying to do the right thing, but keeps getting the runaround.

I took a deep breath, and said that we would put him on calendar, that it could all work out fine, but that this particular judge could also just as easily issue a warrant."

Genius in the backwards cap: "So I'm doing this for NUTHIN?!"

I think I just kinda blinked at him in disbelief. What do you say to that? This fucker woke up and decided to go to rehab, like it was his TREMENDOUS gift to humankind. Humankind must now get down on our knees and bow before He-who-did-not-hit-the-pipe-this-day. Why did I not see what a favor he was bestowing upon me and offer to wipe his ass for his troubles?

I told him I wouldn't doing him a favor if I just told him what he wanted to hear, and that I could not promise that the judge would not issue a warrant. And then he spat out this pearl: "Why not, I'm PAYING you!"

........

I then had two choices. I could have let that slide. But I thought that it merited a wise and measured response:

"You are not paying me shit, asshole."

........

Yep. I said it. I got four witnesses.

These were probably the most gratifying words I ever spoke in a public defender uniform.

Evil III

So after we lose our motion, Evil pleads in his two new cases, admits the strike prior and three prison priors. Sentencing is continued until Tuesday and he is granted a stay to go see his sick mom Mrs. Evil before doing his prison time (six years). His exposure if he fails to show up is 11 years on one case, nine on the other. But guess what? Evil has a stale parole hold (by now he had already served all his time for his parole violation waiting for our cases to resolve), so I gotta trail his case to the afternoon, and I spend my lunch hour trying to move heaven and earth to get parole and jail to drop the hold so this fucker can go smoke a bowl of crack and say goodbye to Mrs. Evil

I get the run around from both ends, each person on the other end of the phone completely unmotivated to get off their ass, go down the hall, and pull a file. I come back to court, and let the bailiff know what was going on. The Deputy gets on the phone to the jail, and the ball starts rolling. Evil agrees to go ahead and plea, after extracting a promise from me to keep haranguing parole.

I get back to my office, and get the Parole supervisor on the phone. He says "You guys are gonna let him OUT!!!!!???" I've got three agents here who say your guy is a runner. He's going to be dust in the wind." But the hold gets lifted.

Evil is out on the streets tonight.

My best friend in the office, one of our most senior attorneys puts his feet up on the desk and says: you know, all that brilliant lawyering you did.... probably not the smartest idea you ever had.

Evil II

Oh, and why is it that you inevitably do your best lawyering for the clients you can't stand?

Evil

My client "Evil" and I had a big day in court. Today was the final round of briefing and argument in our everlasting gobstopper of a motion to withdraw his 1996 plea to a strike. (Writ of Error Coram Nobis for those of you impressed by arcane procedural drama....) Of course we eventually lost our motion after three rounds of argument and two separate briefs. . . but we went down swinging hard.

Back stage, Evil says to me: "You know, I hate that fucker Mr. [DA] cuz he won and shit. But he argued his ass off!"

You're welcome, Evil.

"Empathy"

Empathy is the ability to understand what someone else is feeling. It is the ability to put yourself in another's shoes, so to speak. Apparently, empathy is a dangerous quality in a justice of the Supreme Court? Those clamoring against this (and any) Obama nominee have railed against the president's call for empathetic justices. It has no place in jurisprudence, they say.



Really? Do you know what we call people without empathy? Sociopaths. Is that really the marker of a good judge? That she is a sociopath?



Empathy is a good thing, isn't it? It's what we look for in our friends, partners, and leaders. It's what we look for in our law MAKERS, isn't it? Why, then is it a "bad" quality in a judge.



A justice has to "interpret" the law in light of the given the set of sometimes unusual circumstances (facts) before her. Doesn't"empathy" improve her ability to do that? How does it interfere?



I think a more interesting question is, what are the screeching right-wing (yes you Ann Coulter) really afraid of? An empathetic justice would have a better understanding of both sides of the argument presented to her, would she not...? What then, is so terrifying?

I think what it boils down to is this: aside from sociopaths, who rarely find themselves arguing before the supreme court, there are another class of people who operate without empathy. When they get together, we call them "corporations." Corporations exist to make money for their shareholders. Empathy gets in the way of profit. Empathetic decisions are grounds for lawsuits from shareholders who see profits frittered away.

Corporations are threatened by "empathy". You think cigarette companies, drug companies, insurance companies, etc are gonna want an empathetic judge on the Supreme Court?

That's where all this "empathy" bluster is coming from. http://rawstory.com/08/news/2009/06/05/corporations-behind-efforts-to-label-sotomayor-racist/

Jerry Springer

I had a Jerry Springer incident the other day. I had the pleasure of telling my client that what she had been trying to smoke didn't turn out to be cocaine. As we sat together in the holding cell, I said I had some good news for her. She starts jumping in the air, bouncing off the walls, chains and all, screaming "THE DOPE AIN'T REAL! THE DOPE AIN'T REAL! THE DOPE AIN'T REAL! THANK GOD ALMIGHTY, THE DOPE AIN'T REAL!"

Some days are like that.

Anatomy of a burn out

I've been tasked with training our summer interns. It has caused me to think a lot about why I became a public defender in the first place. It has caused me to think about whether those reasons still exist.

The truth is, I am still evolving. When I first began my career, every cop was a liar, every punk-ass DA was a chump, and every judge had shit for brains. (I have since tempered my opinion of cops and DAs. ) If you wanted to convict my client, you had to go through me and my goal-line defense. Like many public defenders, it wasn't long before I lost track of my wins and losses. They have all blurred together in the fog of war.

Soon it will be 10 years since I first sat down at counsel table. I feel a lot different about what I do now. I used to get a charge out of every victory, and every defeat felt like a dagger blow. Now the victories are fewer, and the rush is fleeting, then gone. The defeats are more crushing, and more frequent. I had an epiphany this year, and it has left me unsettled. Actually epiphany is the wrong word. It's more of realization that is percolating slowly up towards the surface of my consciousness...

Although I never would have admitted it, I used to do this job for me. I linked my successes to my own personal abilities and skill as a lawyer. While my successes outnumbered my defeats, I gained a lot of personal satisfaction because I was operating under the delusion that if a jury acquitted my client, it was because of me. If they convicted, it was in spite of me.

As the losses piled up and the cases became more and more serious I either had to conclude that I was a shitty lawyer, or that the outcome is, for the most part, already determined by the time I get involved. I was still winning enough cases to sustain my ego, but the losses were hurting more and more.

For the past few years, I've been struggling. I have at times hated my job. Lately I've been doing a lot of self-reflecting, and searching for ways I can continue doing what I do. This year, I took a couple of shots to the chin, and as I stare up from the mat, I'm thinking there might not be many more rounds left in this fight.

This past year I lost a murder case (acquitted on 1st degree, but guilty of 2nd). I will probably never recover fully from it. I just wanted to protect my client so badly. I believed that I could, and in the end, I couldn't. I tried the shit out of that case, I had several jurors and some court staff crying during my closing. Afterwards I was approached by a DA and by a PD who told me it was the best they had ever heard... but it made no difference. I took a month off after that trial. I didn't want to come back.

My very next trial was a child molest, where the jury convicted despite the evidence: victim caught in a lie on tape, an eyewitness who saw nothing, and a preposterous story of how and when it happened which defied logic, and was physically impossible. (The judge has taken a new trial motion under submission). When the clerk read the guilty verdict, I laughed. I literally laughed.

I am part of a joke that has taken me 10 years to get. I am starting to get it. It isn't about me at all. The realization has been painful, but liberating - like when you find out the man behind the curtain isn't a "wizard" and you really had a heart, brain, and courage (and home) all along. The realization has also been extremely humbling.

I realize what an ego-centric fool I am (though Mrs. Doubtslinger has known it for years, and loves me anyway.)

I can only say this: I am deeply ashamed of myself.

I have spent 10 years sorting through the rubble of human tragedy in search of a little personal glory. My motivation has been, in large part, selfish. My career has been self-indulgent. While I have cried for my clients, I have also cried for myself. I regret that part.

As I said, I am left feeling unsettled. I am not sure what will motivate me to continue in this endeavor. Pride and satisfaction in a job well done? Shit, I might as well go back to painting houses. At least when I'm done, my client has a painted house instead of a lengthy prison sentence. My clients? Some of them yes, but more often than not they break my heart.

I'm still working on a new internal motivation.