Anxiety Analyzed

I have this case that's bugging me. I don't know why. But every time I even somehow remotely thing about this case, I feel like I'm going to have a panic attack or cry.

And, before you ask, yes, my client is guilty. But, that's nothing new. Most of my clients are "guilty" in the factual sense, if not the legal sense.

It's not a very serious of a case. I've had hundreds of more serious cases. It's not a very complicated case, factually or legally. My client isn't facing a particularly harsh sentence.

He's not really a jerk of a client. He's not particularly nice, but he's relatively polite, for a client.

I severely dislike the prosecutor. As in, she makes my skin crawl. But that's not such a bad thing. At least I'm guaranteed that the jury will like me better than her.

And I don't have a judge to dislike. The judge had previously ruled in my favor but the case is supposed to get sent to another judge for trial. So far, I've got no reason to believe that judge will be any worse for me.

So, umm, I don't know what it is about this particular case that makes me want to puke. I guess the only remedy is to prep the case and prep it some more. And then to get it over with, as quickly as possible.

More Sad Irony in Crash That Killed Prosecutor

Just a follow up on last week's post. Sad Irony in Crash That Killed Prosecutor and the ensuing comments.

I think there are probably certain readers/commenters (yes, prosecutors, you know who you are) who aren't going to be swayed by anything I have to say here. You know, it's like me watching Nancy Grace. But, for the rest of you...

Well, you probably got it the first time. But in case you didn't, I guess there are two things.

1. I wonder what went through this prosecutor's mind before she drove home drunk. Yes, it was probably a drunken slurred thought, but I wonder what it was. Was it, "I'm not that drunk," or was it, "I'll get home safe," or "I'm not like those fuck-ups I send to prison," or "I'll never get caught."

I guess it doesn't matter, because the end result is the same. But it interests me the same way I wonder how prosecutors view my clients when they choose to pursue a case.

Do they ever say, "Hey, this guy probably just made a mistake, the same way my friends and I sometimes make a mistake?" No, I don't think so. And, yes, there will be some prosecutors who comment and say, "Yes, I do. I'm very reasonable." Well, good for you, but I submit that most of your colleagues aren't so reasonable.

When I was a rookie I had a few cases that warranted a phone call to the prosecutor that went, "Hey, look, he made a mistake, it was a pretty mistake, the kind of thing that I could see almost anyone doing." And I honestly had prosecutors, again and again, respond, "Well, if you make a mistake like that, you go to prison."

Which leads me to point 2.

2. What would have happened if she had lived? Would she have been prosecuted just as harshly as the defendants she prosecuted? I'm not sure. I personally know of 2 cases here in which prosecutors were caught in compromising situations. Both cases were quietly swept under the rug.

Tom McKenna, a prosecutor, submits:

If I myself engage in those crimes, I would hope that I would be treated as any other similarly situated offender: in fact, I should perhaps be punished more severely since I oughta know better!

And I agree. I think that ninety percent of my sympathy for my PD clients comes from the fact that they aren't in the same position to "oughta know better," because of deficits in their community, their parenting, and their education.

But it seems to me that, in this particular article, the State's Attorney is, to some extent standing by this prosecutor, saying, "She paid the ultimate price—she's dead. That doesn't change the impact of what she has accomplished in the state."

How many times have I said about a client, "He is a good guy who made a mistake. He did this, that, and the other thing for his community?" Some prosecutors will take that into account and offer a better plea bargain, some prosecutors will say, "I don't care if he was the pope."

Maybe the state's attorney is cutting her some slack because she's, well, dead. And it's considered impolite to speak ill of the dead. Maybe if she had survived, the prosecutor's office would be distancing itself from her.

We will never know. But it seems to me that the, "She's a good person who lived a good life and just mad a mistake," is kind of hypocritical. I bet her summations in drunk driving trials didn't include statements like, "He's a good person who has lived a good life, and done good things, and he made a mistake that we could all make." Sure, that's not a prosecutor's job. But I just wonder if she ever even thought it.

Top 10 Criminal Defense Blogs : A Poll

Austin Criminal Defense Lawyer is taking a poll of the top criminal defense blogs.

Don't feel obligated to vote for me. You know, just because I'm so sensitive and all.

No, seriously, just check it out.

Sad Irony in Crash That Killed Prosecutor

A reader forwarded this case to me: Official's blood-alcohol level was found to be triple the legal limit

The Deputy Chief of Prosecutions, Jane Radostits, who had previously prosecuted drunk driving cases, killed herself while driving with a BAC of 0.25, three times over the legal limit. She also broke the arms and legs of another driver in the 4 car crash.

Radostits also put Aurora motorist Randall Visor behind bars for 13 years for the deaths of three Waubonsie Valley High School students and another woman while he was driving with a blood-alcohol level of 0.14 in 1997. She told the jury that "calling this a tragedy is insufficient" because "the tragedy is that it could have been avoided."

I don't know what to make of this. Every now and then I get an article emailed to me in which a prosecutor gets caught in the very act they prosecute.

Do they think they're above the law? That they could talk their way out of it if they were caught, in a way that other defendants couldn't? Did they think they wouldn't be caught?

Did she think it's ok for her to drive drunk, that maybe she could do it safely, unlike the defendants she prosecuted?

In both this case and this previous one I posted, the prosecutors killed themselves (in one case apparently intentionally and in the other apparently accidentally), so we'll never know. Not that we would necessarily know otherwise.

I don't take any pleasure from these cases. (I invariably get an email to that effect.) I don't like to see anyone hurt or killed or even just put in a bad situation. But I do hope that maybe it gives other prosecutors pause - who are "the bad guys?" Are they that different from you? Or your friends and colleagues?

The family member of a drunk driving victim Radostits had previously prosecuted made a statement. The father of one of Visor's victims said he was saddened at the news. "It just shows that even good people can make a mistake," said Sheldon Anderson, father of Jenni Lynn Anderson.

I just wonder if he thought that the man who was responsible for his daughter's death was a good person who made a mistake. That man (Visor) was sentenced to 14 years in prison and, as a result of that "lenient" sentence, the law was changed to allow a maximum sentence of 30 years in a drug or alcohol related reckless homicide that that causes more than one death.

The State's Attorney, Joseph Birkett said of Radostits, "She paid the ultimate price—she's dead. That doesn't change the impact of what she has accomplished in the state." He was able to look beyond this horribly reckless act to what she had already accomplished in her life.

I don't know anything about Visor or the other defendant's Radostits prosecuted, but I wonder how much it mattered what else they had accomplished in their life.

Like I said, I just don't know what to make of this.

The Honorable, and the Slightly Less Honorable

Alright, alright, settle down, I'm back. Just trying to avoid the internet and avoid finding out who won Survivor until I can clear off my Tivo.

Sometimes people find this blog in some random way or another and stumble onto a very old post. Sometimes they leave a comment there, but no one is unlikely to ever see it. And who knows if they bookmark the blog and come back or if they leave their question and never come back to see if there has been any reply.

Anyway, an anonymous commenter left a question on this very old post that I thought was worth addressing.

WHAT CAN BE DONE WHEN A JUDGE ACTS IN WAYS, SOMETIMES SUBTLE, THAT SUGGEST S/HE'S NOT GOING TO GIVE ONE AN UNBIASED RULING? IF JUDGES LAUGH AT AN OPPOSING ATTORNEY'S DISRESPECTFUL MOCKING OF COUNSEL, FOR EXAMPLE, AND MAKING DEMEANING COMMENTS ABOUT COUNSEL OUT LOUD, TOO, DOESN'T THAT MAKE HIM/HER SEEM LESS LIKELY TO BE FAIR? IF COUNSEL BEHAVED LIKE THAT, HE'D BE IN CONTEMPT.

I've been dealing with a very biased and unfair judge lately, and, the truth is, judges can get away with a lot that opposing counsel can't.

A smart judge also knows how to present his opinion (and let the jury know too) without having it reflected in the record. (For example, by laughing or rolling his eyes.)

One judge that I actually like has a tendency to play "on the record, off the record," usually while trying to persuade a defendant to plead guilty. He'll say, "Now, Mr. Smith. You don't have to plead guilty. You have the right to a trial.

Off the record: I can't possibly tell you whether you would win or lose at trial. But I can tell you that juries believe the police, and there's no reason a police officer would lie to say that you were selling drugs when you really weren't.

Back on the record: At that trial you would have the right to remain silent or the right to testify in your own defense.

Off the record: But, really, that would be a stupid idea, because you have a criminal record a mile long. And if you testified, I would make sure the jury heard all about it, even this attempted murder back in '75. Oh, is that just an assault? Oh well, just a technicality. Anyway...

Back on the record: You will have an opportunity to call witnesses and to confront the witnesses against you. Your lawyer will have an opportunity to cross-examine those witnesses.

Off the record: Not that she can just ask whatever the hell she wants. The prosecutor will object, and I'll sustain those objections. In the end, the jury will just hear what the respected police office have to say about you, and they'll believe the police officers, and you'll be convicted, and I'll get to sentence you, and I won't be happy that you wasted my time with this trial.

Back on the record: Knowing all of these rights, do you wish to plead guilty now?

You want to guess what my client says?

I think the only way to deal with a judge like that, is to beat him at his own game. Obviously, he's very concerned with making sure the record reflects him as fair and impartial. So, you could respond, "Yes, knowing that his record will be unfairly used against him, and any of defense objections will be sustained, and that he will be sentenced more harshly because he chose to invoke his right to trial, my client will plead guilty." I guess you have to decide whether it is worth it. If your client is pleading guilty anyway, maybe it's not worth it, I don't know. That's a decision you have to make - are you the kind of lawyer who sticks her neck out? For every client?

And you can do the same thing at trial. You can say, "Judge, I don't appreciate you laughing (or whatever he's doing)," so that at least the record reflects what he is doing.

But I have to add one more caveat. Sometimes, not always, but sometimes, the judge is trying to do you a favor. Just think about this, keep it in mind. I posted here back in November that I tried a case with a terribly inept co-counsel (here and here.) In that case, the judge made a few comments like, "Move it along," or "I'm not sure you want to ask that."

My co-counsel thought the judge was picking on her, but I believe the judge was trying to help her (and her client). And, I guess you could say that the "on the record, off the record" judge was just trying to help my client by telling it like it is - saying the things most other judges are probably thinking. At least that client knows where he stands.

So I guess that's the long-winded answer on how to deal with biased judges. I'd love to hear what ideas the rest of you have.