Blonde Justice

Your Attention Please:

noreply@blogger.com (Blonde Justice) — Thu, 29 Nov 2012 03:33:00 +0000

"I have this reputation for being a mean old bitch," Berkman, 70, said just before lunch, after hearing her last case, a gun possession, and stepping down from the bench.

Take Pause, Anonymous

noreply@blogger.com (Blonde Justice) — Thu, 22 Mar 2012 02:15:00 +0000

My previous post, The Cops Show You a Picture of Yourself raised a good question from an anonymous commenter, who wrote:

Your comment "they don't have to show me the video" makes me take pause. Aren't individuals accused of criminal behavior entitled to be confronted with the evidence? Doesn't the Sixth Amendment entitle them to see the video?

Just to clarify before we go any further, I wrote in the original post, "I'm placed under arrest and they don't have to show me the video. They can save the video for trial..." Meaning, there is no right to see the video during the interrogation, before my arrest.

Let's start by taking a look at the Sixth Amendment and the Confrontation Clause briefly:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The question is referring to the Confrontation Clause, meaning the right "to be confronted with the witnesses against him." And I agree, absolutely, that would include the right to see the video... at trial. The Confrontation Clause is a trial right, not a pre-trial or investigation right.

Ultimately, if this case went to trial, you would likely see this video at trial if the prosecution was using it as evidence against you.

Notice the two "if"s in that sentence.

First, if the case went to trial. If you took a plea deal, depending on the discovery rules in your jurisdiction and the timing of the plea, it is possible you would not see the video before your plea. Some states have very late discovery (for example, everything has to be turned over before the trial begins) and certainly, some defendants take a plea bargain well before the case proceeds that far. I think that most defense lawyers, if the video was the key evidence in the case, would ask for an opportunity to view the video before advising their client whether to take a plea deal. On the other hand, though, I can imagine a scenario where the prosecutor says, "Look, the deal is ____ today. Your client knows what he did. If I have to present the case to the grand jury and turn over evidence, the offer is going up." And, we're back to my assertion, they don't have to show you the video.

The second "if" is if the prosecution uses that video against you. Sometimes the prosecution has evidence that they choose not to use, particularly if there's a way to prove the case and protect that evidence. For example, imagine that same robbery case with the video. Let's imagine the prosecutor finds ten different people who were on the street that day. They all come in, pick you out of a mugshot book, pick you out of a line-up, and describe you perfectly. One of them even got a picture of you on his cell phone camera as you ran away. If the prosecutor decides that he feels pretty confident the jury will be convinced based on these ten witnesses and the cell phone camera photo, he may decide he doesn't want to use the video and may never have to turn it over.

On the contrary, if the prosecutor was using the video as the evidence against you, you would have a chance to confront it. To argue to the jury, for example, that the video may have been tampered with or that the footage doesn't show what it is alleged to have shown. The officer can't testify, "I saw the video and it showed the defendant committing the robbery," without showing the video for the jury - and letting the jury decide for themselves whether the video really shows what the officer says it does.

Bottom line, I agree, anonymous. It gives me pause too. A lot of the things that police are allowed to do, and a lot of things that prosecutors are allowed to withhold, give me pause too. Hopefully, you and all of the other readers will feel that same hesitation just between the officer asking you a question and you asking for a lawyer.

Preach On, Gideon

noreply@blogger.com (Blonde Justice) — Wed, 21 Mar 2012 01:08:00 +0000

I had two goals:

First, to find some new defense blogs to link to as I clear out some apparently-abandoned blogs.

The other was to try to write a meaningful piece on the Dharun Ravi - Rutgers - cyberbullying - "hate crime" - "bias intimidation" - "Tyler Clementi" case. But I had too many thoughts spinning around in my head, and I just wasn't ready to organize them all yet.

Instead, I found this excellent blog post When hard cases make bad law: Why the Rutgers Conviction is Wrong that says it all much better than I could. And in the process, I've found Gideon Speaks - a new (to me) defense blog!

Two birds, one stone.

The Cops Show You a Picture of Yourself

noreply@blogger.com (Blonde Justice) — Sun, 18 Mar 2012 14:52:00 +0000

This happens every day, so let's deal with it.

The police come to your house or a detective calls you into the police station, and they show you a photo. It's a photo of you, but you're not doing anything bad, just walking down the street, let's say.

The police officer asks you, "Is this you?"

You should respond, "I'm not answering any questions without a lawyer present."

Yes, even though that photo doesn't show anything bad and maybe the officer says something like "We just need to clear possible suspects," or "As soon as we know if this is you, we can exclude you as a suspect." But, you should know by now that the police are allowed to lie to a suspect during their investigation.

So, what happens if you say "Yeah, that's me," thinking that it can't possibly hurt you to admit to being the guy in the photo doing something totally innocent, like standing on the sidewalk? Let's be clear, the police didn't ask the question for no reason. They asked because there is some way to incriminate you with that photo.

Perhaps you're wearing the same distinctive hat they recovered from the crime scene. Or, more likely, the photo is actually a still shot from a video that shows you leaving the scene of the crime or committing the crime.

Over and over, I tell this to my clients. "The police says they have a video of the robbery, and they showed you a photo from it and you admitted that was you." And over and over, my clients say "That wasn't a video of the robbery, it was just a picture of me. There was no robbery in that picture."

But that's the point. The police don't show you the photo of you actually committing the crime. Then you would never admit it was you, and that would not make their job any easier.

Let's imagine, for a moment, that I killed someone. I walked right up to a woman on the street and stabbed her in the back. I dropped the knife and walked off. If the detective showed me a photo of me stabbing the woman in the back and said "Is that you?" I would say, "No, of course not!" Because I'm at least that smart. But if the detective showed me a photo of myself two minutes earlier, or two minutes later, when I'm just walking down the street, no knife in my hand, I might say "Yeah, that's me. Why?"

I'm placed under arrest and they don't have to show me the video. They can save the video for trial and say "Here's the photo Ms. Justice admitted was her. And here's where we got that photo from." Then the prosecutor could play the video that shows me stabbing the woman and walking away, and pause it at the spot that they printed and say "And is that the same scene you printed and Ms. Justice admitted was her?" The detective would say "Yes it is." And they have just proven my identity.

That's not to say I don't have some other defense. Maybe there's a self-defense argument or a causation argument. But, if I didn't have the knife on me when the police arrested me, and the police didn't find my clothes with the victim's blood on them, maybe my lawyer would have an easier time arguing, "That could be any female with blonde hair! That could even be a man in a blonde wig!" Now that argument is gone, and my lawyer better be able to come up with something else.

So, that's my advice: When the police show you a picture and say "Is that you?" do the same thing you should do when the police ask you any question. Say, "I'm not answering any questions without a lawyer present." And then keep your mouth shut.

Prison for Profit

noreply@blogger.com (Blonde Justice) — Sun, 26 Feb 2012 14:38:00 +0000

Here's an interesting article:

Basically, this corporation, Corrections Corporation of America, has offered to buy states' prisons, in exchange for a 20 year management contract, plus an assurance that the prison would remain at least 90 percent full.

So, what happens if crime goes down? What happens if prosecutors aren't getting those convictions and are pleading people out to non-incarceratory sentences? What about "alternative-to-incarceration" programs? Would the pressure be on judges to look for excuses to violate people on probation or in programs to keep the jails full?

There are other concerns pointed out in the article, including the fact that the plan doesn't necessarily save the states any money, but I have a really hard time with the idea that we, as a society, want to keep our prisons full. Shouldn't the goal of law enforcement and the court system be a decrease in crime, however utopian that may seem?

Drug of Choice

noreply@blogger.com (Blonde Justice) — Mon, 20 Jun 2011 02:06:00 +0000

If you were handed a hundred cases that are all serious felony trial cases, some of which need extensive motions or briefs, most of which need legal research and investigation, and they're all on for trial in two weeks, and you were supposed to be on vacation next week, I think there are a two approaches to choose from.

First, is what I think of as the "xanax approach." Take a deep breath, fight the anxiety, tell yourself, "I'll do what I can do, but I can't do any more than that." Chill. Use your favorite stoner as a role model. It's just a job. No matter what happens, you won't be the one to go to prison. And, perhaps, keeping a cool head will allow you to approach will help you pull through it with a cool head.

Second is what I think of as the "speed approach." Use your anxiety as a tool to work without food or sleep. Get to the office earlier and stay later. Rethink that vacation. Hey, going into the office when you're supposed to be on vacation isn't so bad, is it? It's kind of fun when you go to the office for a few hours on a Saturday, think of it that way. Even better, you can work at the beach, or wherever you were planning to go on vacation, it sure beats working in the office, doesn't it? Forget your family or friends you were planning to spend time with. If you are cranky or rude to your family or friends, that's ok, it only goes to prove that you take your job seriously and you care about your clients.

So, which are you?

I'll admit, my approach is generally the "speed approach" but I strive to find the "xanax approach," or at least a little bit of the xanax approach. Aside from an actual prescription for xanax, I don't know how to find that zen mindset. I guess you try to take it day by day, remind yourself to calm down and take a deep breath. If someone has more tips for finding that balance of productive tranquility, I'd love to hear it.

To be fair, there may be a third approach that I have seen. That involves just whining and complaining about how unfair it is, and how must work they have to do. I suppose that maybe that's part of the speed approach, but I think their time spent whining may be better spent getting the work done. Or, you know, blogging about it.

Flirting Longer and Harder

noreply@blogger.com (Blonde Justice) — Thu, 14 Apr 2011 00:53:00 +0000

I first met my client a few days ago. He is kind of homeless-looking and had a long rap sheet full of long prison bids. He had just been arrested and he was very angry. He didn't want to talk, he wanted to shout at me. Among the things he shouted at me was, "I DON'T TRUST COPS, I DON'T TRUST JUDGES, AND I DON'T TRUST LAWYERS!" It seemed we had a lot in common, if only he'd stop shouting. He banged on the walls, he banged on the desk, and I waited patiently through quite a bit of shouting when finally he cut the interview short, walking out of the booth and insisting the guards come and take him out. That was ok with me, I needed to meet with other clients and this meeting was not productive. I figured I'd see him in a few days (there was no chance of him getting out) and maybe at that time he'd be a little calmer and able to communicate.

I saw my client again today. The first thing he said to me, to his credit, was "Were you the same lawyer I met a few days ago? I really owe you an apology. I was so angry, I just really needed to calm down. I'm really sorry I was so disrespectful. Can you accept my apology?" I told him I accepted his apology, and I was happy to start off with a clean slate and talk about his case. As I was talking about his case, though, he had other things on his mind. "You've got a nice smile. I can't believe I yelled at a nice lady with a beautiful smile like that. Are you married? I could take you to dinner sometime. When I get out." I was able to redirect him and we talked a little about his case and the plea offer the prosecutor was extending.

"I'll take that plea," he told me, "but see if you can get it down a little lower. A little lower would be better." I told him that I'd talk to the prosecutor and see if we could get the offer a little lower. Satisfied, my client went back to asking me if he could take me to dinner.

After a few minutes, I told the client that I would step out to talk to the prosecutor to try to get the sentence he was looking for, and I'd come back to let him know how it went.

The prosecutor was willing to go along with our counteroffer, after just a little persuasion. I went back into the jail pens to give my client the good news. He was happy, and even more eager to take me to dinner.

"Listen," he said, "I was serious about taking you to dinner when I get out. I really am. I know that will be a long time from now, but you never know where life will lead you. You know, we don't always find love where we're looking for it. Sometimes it's right in front of our eyes and we don't even see it."

I tried again to redirect his attention to the case, "Alright, we're going to go see the judge soon, and you can take the deal today if you want to get this over with. Or we can get an adjournment, if you want more time to think about it."

"No, no, I want to get this finished today." Then, finally, my client made his last ditch attempt. "I didn't get a chance to tell you what I do for a living. I know, it's my fault, because I was yelling at you. But I want to tell you. I make pornos. That's what I was actually doing in the city when I got arrested. I make pornos. I was here to make pornos. You might not recognize me, but some people recognize me. Can I take you out to dinner when I get out?"

Oh, well now that you put it that way... why didn't you mention that sooner?

Assisting by Being "Ineffective"

noreply@blogger.com (Blonde Justice) — Sun, 10 Apr 2011 04:19:00 +0000

This week, the blawg world was abuzz about incompetent and ineffective criminal defense attorneys.

I'm not excusing the practices of attorneys [accused of being ineffective], but all of this talk of ineffective assistance of counsel has me wondering - Is it always a bad thing to be called "ineffective," if it potentially helps your client? Or, to put it another way, is it ever a good thing to be ineffective, or at least called "ineffective," for your client's sake?

For example, not that long ago, the appellate court overturned a case that an an acquaintance of mine had tried. I think my acquaintance is a good lawyer, and the decision didn't specifically name him or call him out. However, the court overturned the conviction, finding the attorney ineffective for failure to investigate the defendant's alibi. In fact, the decision was kind of confusing, I think that even if this defendant's "alibi" had been proven, it would not have been impossible for the defendant to commit this crime, just less likely (if you believe that you're less likely to commit a crime when you're coming from somewhere legitimate, like work). I may not have investigated that alibi - it doesn't prove the defendant didn't commit the crime, so I'm not sure that it would have been helpful.

Should the trial lawyer have been embarrassed that his case was overturned? After all, the defendant will get a new trial, and there's always a chance that if witnesses or evidence have disappeared, he may get a better plea offer or his case may not be retried at all. If it helps your client, and doesn't provide much more than embarrassment to you (my acquaintance won't lose his job, so the only other consequences I can imagine are bad publicity and maybe an increase in malpractice rates), is that worth it?

Moreover, what if my acquaintance did, in fact, investigate the alibi? What if the attorney did speak to one witness who said "We can't be sure that your client was at work that day - he missed a lot of days, and we don't keep those kind of records." How would the appeal lawyer know that? And, hence, how would the appellate court know?

I know that sometimes trial attorneys are called by appellate attorneys and are asked if they made certain decisions strategically or if they advised their client of certain things. But if you don't know, you don't remember, or you didn't make any note of it, and it can help your client, is that a bad thing?

If I was called now about a case I handled a few years ago (pre-Padilla), and asked "Did you advise this client of the immigration consequences of this plea?" I would probably go through the file to refresh my recollection. There are some cases where I would have to answer in the affirmative, if I had made specific notes to my file. But there would be some, or many, files that would be silent as to the issue. If I honestly don't remember, and it could save my client from deportation, is it a bad thing if the appellate court calls me ineffective for not advising my client or not making adequate notes?

I also don't know (and maybe a lawyer who handles appeals can tell me) whether raising this kind of issue on appeal invalidates the attorney-client privilege. I believe that if a client sues you, you have the right to violate privilege to tell the court exactly what you and the client did or did not discuss with the client. I haven't had either of these situations (knock on wood) so I haven't reviewed the ethical rules for these circumstances since law school. So, what if the reason why you didn't investigate the client's alibi is because the client told you "Don't bother digging up that video, it will only show me committing the crime and I wouldn't want the prosecutor to find out about it." Then, years later, he says on appeal, "If only my trial lawyer had gotten that video, that has now been destroyed, it would have shown that I didn't do it." What is your role as the trial attorney? Do you expose your conversation with the client, showing him to be a liar? Or do you let your client get a new trial even if you'll take a beating from the appellate court, and possibly in the press and the blogosphere?

Don't Call Me Sugar

noreply@blogger.com (Blonde Justice) — Wed, 09 Feb 2011 03:06:00 +0000

A few weeks ago, I got really overwhelmed. I have this case in which my client is facing a lot of prison time, a case that will probably go to trial. The first plea offer I got in the case is about four times more than I've ever had a client get. Unless you count when I've worked with a more senior lawyer on a murder trial or something. But, as far as my very own clients, this is my first client who is facing decades.

That particular night, I didn't sleep well at all. I just kept thinking about this case, about the family that calls me begging me to get their son out of this, and, like I said, I was just really overwhelmed. And sleep deprived.

The next morning, walking to the train, I just cried. I just stopped walking and started crying. I really thought, "I just need to go in and resign, because I can't do this."

The whole day I thought about it. Am I in over my head? Can I really handle this? Am I doing my client a disservice by not somehow stepping down and letting him have a real lawyer? Am I perpetrating some kind of fraud?

At some point, I thought about that baseball movie Sugar. Did you see it? Spoiler alert. Here the short version:
Kid comes up through the rookie leagues in the Dominican Republic. His whole life is baseball. He lives at the training camp during the week, he practices all day and studies baseball related English vocabulary at night. He finally makes it to AAA ball in the U.S. and basically realizes he can't hack it. He's in a foreign country, he doesn't speak the language, he gets in fights without really knowing what's going on, and most importantly, the batters can hit his pitches. He goes AWOL from his team, goes to New York City, and gets a job as a dish washer in a diner. He never gets his big break. When I watched the movie, I can't say that he did the wrong thing. He wasn't going to make it, if he stuck around he would've been shipped home, so he decided to take his chances as an undocumented worker in N.Y.C. Most kids don't make it. Statistically at least, he probably made the right decision.

But I realized that, like Sugar, everyone reaches some kind of testing point, where either you put on your big girl panties and say, "ok, I'm going to give this the best I've got," or you cry and resign. For every Sugar that quits and doesn't make it, there's got to be a Hall of Famer who sticks with it through his jitters, right? No matter the player, they had a day when they faced someone better than them. They had their first day in the majors and thought "Am I going to be able to handle this?" and decided that they had to. Every lawyer who has ever tried a murder case must have had their first murder case where maybe they had some doubt as to their own ability.

Or maybe they never did. But then that's just cockiness. It's not like anyone can know whether they can hack it until they really try.

So, I decided: I'm here, this is what I came to do, and even if it's difficult, I'm going to do it. When I committed to the path of a public defender career a decade ago in law school, it wasn't because I wanted to handle misdemeanor drug possession cases for the rest of my life. I wanted to do to the juicy stuff. So, now the time has come. It's time to put up or shut up, fish or cut bait, shit or get off the pot. Try the case or wash dishes.

Am I the smartest or the best? I guess I'll just never be the arrogant kind of person to say that I am. But I'm pretty good. And I'm a hard worker and a fast learner. So, if I can't do it, who can?

And that is how I've reached this turning point in my career. I've decided to be a little less intimidated, a little more ready to take on challenges.

Don't get me wrong, when a client is facing a number in the double digits, maybe a number almost as long as the life I've already lived, it still bothers me, it doesn't sit well with me, maybe it never will. But I have stopped looking around for the more experienced lawyer who can rescue me, and instead realized that I am becoming that more experienced lawyer.

Lunch Lady

noreply@blogger.com (Blonde Justice) — Sun, 23 Jan 2011 03:07:00 +0000

I usually eat lunch at my desk, but yesterday I grabbed lunch at a place near the courthouse. While I ate, two men sat down at the table next to me. I wasn't trying to listen to their conversation, but, well, our tables were really close together. I quickly figured out that they were finance-types, and then tried to block out their finance-related conversation (because I wouldn't understand it anyway). But then I just happened to hear one of the men drop the words "public defender" at the end of his sentence. I tuned back into the conversation to hear the other man reply:

I knew two lawyers who were public defenders. They were really great lawyers. Really smart and really hard-working. You know, they just have to keep fighting for justice. It's like, they're always the underdogs, and they just always have to keep fighting. They really have to be persistent. I would say public defenders are the best lawyers. They have to be.

I'll tell you, that may have been one of the best lunches I've had in a long time. It may have been more expensive than bringing a sandwich to gulp down at my desk, but, as they say, it was priceless. I hope to be back to that place.

One Two Princes Stand Before You

noreply@blogger.com (Blonde Justice) — Sun, 26 Sep 2010 03:57:00 +0000

When I was in college, one of my favorite things to do, when I came home to my room drunk, was to blast my stereo (I had a pretty nice stereo) and sing aloud to the radio. I thought I had a really good voice when I was drunk. (It never occurred to me that I had the auditory equivalent of "beer goggles," of course.)

It was more fun that my friends' idea of drunk fun, which was to stop at the computer lab (yes, we had those, no, most people did not have their own computers in their rooms) and send drunk emails that they didn't remember the next day.

I thought of that tonight when I came home tonight and heard Spin Doctor's Two Princes on the radio. And before you do the math and figure I must have been 18 or 21 (depending on the legal drinking age wherever you are) in 1993, let me just say that I wasn't. It's just that sometimes radio stations play song from a few years earlier.

But, seriously, I was really good at singing that song.

..that's what I said now...

Yo-Yo Papa

noreply@blogger.com (Blonde Justice) — Thu, 26 Aug 2010 01:08:00 +0000

Something WotL wrote pulled me from my writer's block and reminded me of a story from earlier this summer. I was in the courthouse, late in the day, sitting in the hallway outside of a courtroom, waiting for the prosecutor to come out so we could talk.
A guy sat next to me, with a big instrument in a case. He asked me, "Let me ask you something, is this judge a good judge?"

(I hate that question. If I say "Yes, he's a good judge," and this guy or his family or whoever he's there for gets thrown in jail, it looks like (1) the lawyer, who is probably my public defender colleague, did a bad job and couldn't even get a good disposition out of a "good" judge and (2) I support, and think a judge is "good" who puts people in jail. On the other hand, if I say "Not really, he's bad," I risk the guy (a) freaking out, worried that he or his family member will be going to jail, leading to many more questions for me and/or (b) saying something like "Even that blonde lawyer in the hall thinks you're an asshole, Judge.")

So, I said, "They say that he's fair."

I figured the next question would be something like, "Let me you ask this, if someone got arrested for..." so I preempted that question with "What do you have there in that case?"

"My cello," he said.

"You going to play a little concerto for the judge? Music soothes the savage breast?"

The guy laughed, "Not a bad idea, but really I'm playing in a wedding tonight. If this judge lets me out of here. If he doesn't, well, I hope they'll at least let me find someone to take my cello home."

"Maybe you can tell the Judge that if he puts you in jail some poor bride's wedding will be ruined. Or offer to play for him as your community service."

Just then, the prosecutor I was waiting for walked out, and the man I was talking to said "They're calling me, I'd better go in there." I wished him luck as he dragged his cello into the courtroom.

The prosecutor and I stood there in the hallway, discussing an upcoming case, when a few minutes later we heard the beautiful sounds of the cello come pouring out of the courtroom.

And, amazingly, everyone in the busy courthouse hallway stopped, for just a few seconds, to look toward the courtroom door and to listen. A couple that had been arguing quieted. Their kid, in his stroller, stopped crying for their attention. For a minute, the sometimes inhumane courthouse seemed like an almost heavenly place.

I hope that the cellist got to leave the courthouse that night, and made it to the wedding. Making the courthouse a kinder, softer place seems like an invaluable community service to me.

Tin Foil Apartment

noreply@blogger.com (Blonde Justice) — Sun, 18 Jul 2010 21:12:00 +0000

I had a client once who lived in a Tin Foil Apartment.

The foil, of course, helped to keep the Jews from reading his mind. Or so he told me. I kind of figured that if they had mind reading technology, a thin layer of aluminum foil probably wouldn't matter, but what do I know.

(image from Apartment Therapy)

My client ended up in a hospital, not on the Apartment Therapy website.

I'm not quite sure where he went wrong. Maybe because he didn't "tuft" the walls.

Stop Sign

noreply@blogger.com (Blonde Justice) — Thu, 24 Jun 2010 02:36:00 +0000

One time, when I was in college, I was driving a friend in my car. When I stopped at a stop sign, she said, "You stopped? You didn't have to. The ones with the white borders are optional."

I thought about it for a second. Could she be right? Were there other kinds of stop signs? Wouldn't an optional stop sign be a yield sign?

I quickly figured out that she was kidding.

Here's my problem. My client actually believes it. Well, not about the stop sign, but about whatever ridiculousness they're telling him in the jail law library. And it is ridiculous.

I've tried to tell my client how ridiculous it is. But, the thing is, he likes what he hears from them better than what he hears from me. They tell him "Look here, here where the cop wrote 3rd Steret? That means they have to throw this case out. You're going home!" I tell him things like "The fact that they spelled the word 'Street' wrong in one place on your paperwork does not really change the fact that they're going to be able to prove that you committed this robbery, and you're going to do prison time." No wonder he believes them more than he believes me - he wants to. Maybe deep down even he knows that this is too good to be true, but if he does, he doesn't let on.

So, now we're at a point where my client is turning down a pretty good plea deal because he's still caught up in the idea that this typo issue is going to somehow break his way. In fact, he may be so caught up in this idea that he misses his chance at the plea deal completely, and ends up going to a trial that he's going to lose, and get stuck doing more time.

I've tried reasoning with him. I've explained the trial to him. I said, "You're right, I can ask the cop about that typo when he's testifying. But the jury is going to hear from the old man who says you robbed him. They're going to hear from the witness who says he saw you throw the gun. And they're going to have the cop who searched you and found the old man's wallet in your pocket. And they're going to have your videotaped confession where you talk about how you robbed that old man and you saying, nah you don't feel bad about it, 'because it's a dog eat dog world out there.' And then I'm going to get up there and say 'See here where it says 3rd Steret? What did Officer O'Brien mean by that? Where is 3rd Steret? Because my client was arrested on 3rd Street.' I can call the cop sloppy, and say that maybe he put the same care into this investigation as he did into writing the report, and that means that they got the wrong guy. But at the end of the trial, when the jury is deliberating, Street vs. Steret isn't going to be a big enough to discrepancy to outweigh all of the other evidence. And the jury is going to find you guilty, and you're going to be facing more time that what you're looking at right now. Right?"

My client seemed to be listening intently, maybe I was getting through to him. He paused, like he was processing what I was saying. Maybe he was going to come around. But then he said, "Yeah, but the case will get overturned on appeal. You see, there's no jurisdiction. Because there's no such place as 3rd Steret anywhere in this state."

Cooking with Blonde Justice

noreply@blogger.com (Blonde Justice) — Fri, 30 Apr 2010 17:43:00 +0000

A friend of a friend is a lawyer with a cooking blog. I'm jealous. I mean, I can cook a few things, but I'm more of a throw-together-whatever-is-in-the-fridge kind of cook. I can't really see myself writing down the ingredients and typing it up and photographing the results. I make a salad that comes together great, but it's like all week's leftovers thrown together, you know?

I'll give you an example of a recipe I've perfected this week.

Ingredients:
1 packet Kashi GOLEAN Hot Cereal Hearty Honey Cinnamon
1 TB Nutella
1/2 cup water

Steps:
Make the Kashi oatmeal the way it says in it the packet.
When it says to stir it, use a metal spoon. This is important.
At the end, you have to stir it again. Use the same metal spoon.
Then, take the warm metal spoon, and dig out a spoonful of Nutella.
Plop that same nutella filled spoon into the bowl and stir it all up.
You can use a little less nutella if you're not a nutella addict like me, maybe a teaspoon.
But if you're not into nutella at all, then obviously this recipe isn't for you.

Bonus:
Because the spoon is hot, it can even be used to scrape nutella from the almost-empty jar.
You might consider just scooping your hot oatmeal into the almost-empty jar of Nutella and eating it out of the jar, scraping the nutella off the sides as you go. But, I'm warning you, that would be going too far.

No photos available because I ate the whole thing. No, I did not eat it out of the nutella jar. But, yes, I thought about it.

See what I mean? My lawyer blog is just never going to blossom into a cooking blog, is it?

How to Prepare for Trial: A Note

noreply@blogger.com (Blonde Justice) — Thu, 22 Apr 2010 02:19:00 +0000

(An occasional/sporadic series, with Parts One, Two, Three, and Four.)

Here's a tip, it's not really a step. And it's something you already know, but it bears repeating.

Start early. Stop procrastinating.

Sometimes you'll hear lawyers say, "Well, we'll get through jury selection and opening arguments today, so I'm ready for that, and tonight I can prepare my cross-examinations for the first few witnesses." Yes, there are times when you get stuck "winging it" like that, but that should be the exception, not the rule. That should be the last resort, not the plan.

Because things happen. And if you leave your cross-examination until tonight, that means that if an unexpected issue comes up out of nowhere, and the Judge asks you "Why don't you write a short memo on that for tomorrow morning?" Then you will spend the night frustrated, staying up later than you should, writing that memo and thinking "I still need to write my cross-examination!"

Or, when your expert flakes on you, and you have to spend the night finding a new expert, or going out to check the scene for one more thing you hadn't thought of the first few times you visited it, or when your client starts talking crazy things during the trial (like "I think I'm going to have to testify, because you're not saying what I want you to say!" but you've only gotten as far as voir dire!), it's good to know you're already at least as prepared as you can be.

Sometimes trials don't start. We've all been there for the appearances when the cop doesn't show up, the DA is out sick, and finally the Judge has some lame excuse of why the case can't start, and you start thinking, "Blonde Justice, I followed your advice and I wasted my time. This case is never going to start and I didn't have to write my cross-examination written yet." But, the truth is, it can always be improved upon right? Each time the case is on, you will read through your trial prep materials and edit them and find something you can do, something you can investigate, something you can research, a question you can tweak to make it a little more descriptive. And, if you end up spending a few hours researching something you can't use in this trial, you'll use that information that you learned somewhere, someday, for some other trial. That time was not wasted.

And if you truly are completely prepared, and nothing unexpected happens, God bless you, you are luckier than me. Get some good sleep, knowing that you are as prepared as you possibly can be. Make something delicious to sustain you through the trial - I recommend a spicy soup like tom yum gai. The way I see it, it's the perfect trial food: It makes your throat feel good when you're doing a lot of talking, it unstuffs your sinuses so you can hear the witnesses, you can make a big batch and easily reheat it as needed when you're busy and hungry, and, well, if you don't have time to make it, you can pick it up fairly cheaply at the nearest Thai restaurant.

There you have it, two tips for the price of one: don't procrastinate and eat spicy soup.

The Non-Existent Appeal

noreply@blogger.com (Blonde Justice) — Thu, 01 Apr 2010 00:06:00 +0000

I've mentioned it before, but it doesn't hurt to mention it again. I love this new blog Public Defender Revolution. This latest post is basically about how all the trial mistakes and regrets don't matter once you get an acquittal.

I tried a case about a year ago where anything and everything that could go wrong did. I kept thinking, throughout the trial "Gotta remember this for the appeal." Of course, I also made written notes of all of the really bad (and wrong) rulings the judge was making. In my mind, while the jury was out, I could already envision the appellate court giving this trial judge the scolding he deserved.

The case ended in an acquittal. A really surprising acquittal. Surprising to both my client and me. And the judge. And the prosecutor. The court officers, who always at least act like they knew what verdict was coming, later confided it me that they were really surprised too.

To this day, I still have moments where the trial issues creep into my mind in an I-almost-forgot-about-something-important way, and I think "Oh my god, I forgot to note that issue for the appeal lawyer! Oh wait, did I ever write the memo for the appeal lawyer? WHAT? DID I FORGET TO DO THAT? DID THE DEADLINE PASS? Oh wait... he got acquitted."

Followed, of course, by "How the hell did that happen?"

Reading Random

noreply@blogger.com (Blonde Justice) — Mon, 29 Mar 2010 01:59:00 +0000

Last week, I was sitting in court, waiting for my case to be called, when I happened to watch another case that the judge was handling. From what I could hear from my seat in the audience, the defendant had been arrested for vehicular homicide. It was unclear to me whether he had been intoxicated or otherwise driving recklessly, but he had apparently hit a young woman, and she had died. The man had already pleaded guilty and was before the court for sentencing.

At a sentencing, the victim or their family may appear in court to make a statement to the judge. The judge can take the victim's feelings or opinions or requests into consideration when deciding the sentence.

In this case, the victim had died. For a reason I couldn't hear, her family did not come to court. Sometimes in that situation, the family members might write letters that the prosecutor could read aloud to the judge at the sentencing. Or, if they didn't, the prosecutor may just make her own speech about the loss the family had suffered, about the potential the victim had, about a life cut short, even without the judge hearing directly from the victim or her family.

In this case, the prosecutor did none of those things, but instead stated that she "would like to read something the victim had written prior to her death." She then proceeded to read something that went something like this:

I like milkshakes, chocolate milkshakes are my favorite.
I took piano lessons in fourth grade, but I never got very good.
I want to paint my bedroom red.
If I ever get a tattoo, it will be a butterfly on my ankle.

This went on for a few minutes as I tried to figure out where the prosecutor was getting this from. What had caused the victim to write this list of completely random things before her death? Then it occurred to me, this was a "Random Things About Me" list from her facebook page, myspace, or blog. And this was no list of ten or twenty things, it must have been a list of one hundred.

As she continued...
I'll do anything for a chocolate chip cookie.
I have been to Disney Land twice.

I looked up and saw a look of confusion on the judge's face. I have a feeling that this judge, who is probably in his sixties, has never heard of a 100 Things About Me list, and had no idea how the prosecutor came up with these random things that weren't particularly sympathetic or convincing, in terms of a sentence. The prosecutor continued...

I prefer men with shaved or waxed chests.
My favorite class at the gym is stripper aerobics.

Finally, the judge's expression went from confused to angry and he stopped the prosecutor, "Ok, I've heard enough. Let's proceed."

The lesson here? Ten things about any one person are probably plenty. The other lesson? Know your audience.

Now, feel free to go back and read the list of things about yourself that you've published and imagine the prosecutor reading it to a judge after your death. Because that's a pleasant thought.

Fantasy Living, the update

noreply@blogger.com (Blonde Justice) — Thu, 04 Mar 2010 02:48:00 +0000

Guess what. My realtor never wrote back. Guess I'm stuck in my "real life" for the time being. With a bathtub instead of an indoor pool.

Fantasy Living

noreply@blogger.com (Blonde Justice) — Sat, 20 Feb 2010 16:32:00 +0000

I have this town, well, city really, that I imagine I'll move to. Maybe everyone does this. But when things get stressful, I like to load up Trulia Real Estate Search and search for the house I'm going to live in, when I move.

Maybe it's like when you go on vacation, and of course you think "I could move here." It's kind of come to be an ideal, maybe even a fantasy. If I moved there, things would be perfect, and my life would be better and I could own an ice cream maker. (My current tiny apartment is much too small for me to reasonably purchase an ice cream maker, which will take up a substantial amount of my kitchen storage only to be used a few times a year.) And a fancy cake stand with a glass lid.

So, of course, the house has to be pretty perfect, to fit this fantasy lifestyle and all of the kitchen gadgets and accessories that come with it. Which is why, I was super excited when I found a house with an indoor pool. Yup, an indoor pool. Indoors. I can just imagine pool parties in the middle of the winter. Swimming laps during a thunderstorm. And, seriously, even the worst day in the world has to seem pretty good when you can come home, no matter the weather, and take a quick swim. Right? Right.

And while I can plan my pool parties ignoring the fact that I don't know anyone in town to invite to my pool parties, I can also avoid googling "cost of maintaining indoor heated pool." Which I imagine might be great, both financially and environmentally. But we're not there yet. I'm still in the excited-about-swimming phase.

I was so excited, I even emailed it to my friend who is on my plan with me. I don't know whether I'm her enabler, or she's mine, but the plan is that we can both move to this city, and that makes it even more fantastic. And if she moves there too, I have someone to invite to my pool parties, of course.

Anyway... bad news in fantasy world. My house with the indoor pool is gone from the real estate search. It doesn't appear to be sold because the home information says "Last sold August 2005." But it could be in the process of being sold. Or, maybe the homeowners decided to hold onto the house a little longer, maybe paint it pink, so it could be ready and available for me when I'm ready to move.

Here comes the part where you can call me crazy... I emailed the realtor. Luckily, because I had emailed it to my friend, I still had the agency info. I just inquired whether it sold or whether it is off the market. Maybe I'll get some more information. Does emailing the realtor on a house I have no intention to move to right away qualify me as delusional? Probably.

But keep your fingers posted for me and my indoor pool. Hey, a girl's gotta dream, right?

PD Revolution

noreply@blogger.com (Blonde Justice) — Wed, 17 Feb 2010 00:51:00 +0000

Thank you, Sancho, for introducing me to this fantastic (new?) public defender blog:

Public Defender Revolution.

So good.

Hypothetical No More

noreply@blogger.com (Blonde Justice) — Fri, 12 Feb 2010 20:20:00 +0000

Somewhere shortly after, "How do you defend someone if you know that he's guilty?" the conversation with curious friends and strangers sometimes proceeds to, "What if you defended someone, and he got off, and then he killed someone or something? Wouldn't you feel responsible?"

Well, there's no more need to hypothesize. It has happened to me, to a small extent at least, and now I can tell you how I feel.

First, the background. I represented this client a few years ago. I represented him on something where he wasn't really facing jail time. It was more like a probation or parole hearing - if we lost, the terms of his parole would have been stricter, and if we won, the terms would have been more lenient.

The client had a very bad criminal record. If I remember correctly, there was some kind of sex assault on his record, and there was also a homicide of some sort. I don't remember if it was murder or manslaughter or whatnot that he had pleaded guilty to, but I remember that the homicide was related to the death of a witness in the original sex assault case.

Personally, this client was always nice to me - he was always a respectful, kind client. And he was always accompanied by his girlfriend. She was very pretty and nice, and just seemed to have it more "together" than he did. If I relayed an instruction or a court date to her, I knew the message would get through or that my client would show up.

Throughout the case, I wondered if she knew how bad his criminal past was. But, finally we had the hearing, and she sat in the audience through the whole thing as my client's whole criminal history was reviewed in great detail. We won, and at the end, when we walked out, she thanked me profusely and was very appreciatively, and didn't seem the least bit shocked or confused at what she had heard.

I heard recently from a former colleague that the client's girlfriend had been found dead, and that my former client had been arrested for her murder. I haven't heard any update whether he has taken any guilty plea or whether he is going to trial. I would guess, that, given his record, there probably isn't any plea offer on the table, but I don't know for sure. Now, obviously, he's presumed innocent, and I don't know whether he actually he killed her or not. But, at this point, it's the closest I've ever come to the hypothetical, "represented someone . . . then they killed someone..."

So, how do I feel? I feel sad. The client's girlfriend seemed like a nice person. I don't like it when people die, especially nice people. I feel disturbed. I guess even though I have represented a few people who have previously been convicted of murder or manslaughter (including this client), I still imagine that it takes a different kind of person to be able to kill someone, and that somehow I could recognize such a person. That seems silly, I knew he had previously been convicted to killing someone (I never asked him whether he did it, or whether he felt that he had been falsely convicted, or anything like that), so it would be a fair assumption that he was capable of killing someone - but I guess that's just a false assumption that most people have - that if we met a murderer, we would know. That every murderer would look like Charles Manson with a forehead tattoo or something.

Do I feel responsible? Nah, not really. It's hard to say whether I'd feel differently if my case had been responsible for him being released from jail, and that, but for my defense, he would have been in jail or prison and unable to kill his girlfriend. But that wasn't the situation here. (And I don't think the stricter restrictions he would have faced if we had lost the hearing would have made any difference either.)

I feel curious about how much she knew about his record, what explanations he gave her, and why she made the decision to stay with him even knowing about his record. Obviously, she could have been killed by him even if he had no record, but it seems like she took more of a risk knowing his record. She was a pretty girl, I'm sure she could have had a nice boyfriend without such a past, so who knows what went into her decision to date him. Maybe she was blinded by love.

How fitting for a Valentine's Day post. Have a good holiday, everyone.

Checking In

noreply@blogger.com (Blonde Justice) — Mon, 01 Feb 2010 02:31:00 +0000

I have a little less to say recently. I find that as I handle more serious cases, there is less to joke about.

I have this funny case, where my client broke into this guy's house and... See, there's just not that much set up for a joke there.

The other problem is that I receive about 30 comments a day I need to moderate, almost all spam. A while back, someone suggested that if I'm going to moderate comments anyway, I don't need to have the "type in the blurry word" mechanism, since I'm going to sort out the junk anyway. So, I eliminated the blurry word thing, and there wasn't much of a problem. But now the spam comments have increased exponentially. Now when I have a few minutes, I log in to check on Blonde Justice, I spend ten minutes deleting spam, and then I've hit my wall or used up my time for that day. So I think I'm going to have to try bringing back "type in the blurry word" if I have any plans to keep this blog going. (I wish blogger would do more to figure out what the spam is, and somehow sort it out for me, but it doesn't.)

So, that's all for today. Oh wait, I did have one stupid case, that inspired a funny exchange. My client was charged with vending in a public park without a permit. I noticed that the complaint said he was selling CDs, and I wanted to know if perhaps they were his own CDs, meaning his own performances, in which case I might have a First Amendment exception to the charges (I didn't know if it would fly, since the rule seems to be a content-neutral time, place, or manner rule, but I figured it didn't hurt to ask.)

"Yeah, I'm a rapper," he said, and told me his rap name.

"Oh, that's cool, I have a rap name too," and I told him my rap name.

I don't think I've ever had a client look at me with such respect before. Ok, so it's not really a "rap name," it's really just a nickname, but isn't that all a rap name is, really?

Hoarders Nightmare

noreply@blogger.com (Blonde Justice) — Wed, 09 Dec 2009 04:26:00 +0000

I had a dream, a nightmare really, last night. In the dream, I was going to sleeping in a dorm room. As I fell asleep, I realized that the next morning I was supposed to move out and I hadn't packed yet. So I got up to pack and I realized my dorm room was filled with garbage, like the episode of Hoarders. I was trying to throw out all of the garbage and pack up the things that were most important to me, in a rush. But I just kept coming across more garbage.

I can't remember the last time I had a nightmare from a TV show. Thus proving, Hoarders is the scariest TV show.

Hoarders

noreply@blogger.com (Blonde Justice) — Sun, 06 Dec 2009 22:02:00 +0000

Scariest show on TV: Hoarders on A&E. It's like Intervention for Hoarders.

It is like a nightmare for me. I just can't imagine anything so terrible. On this one episode, they found two dead cat skeletons under piles of garbage. She had her kid taken from her. She had no plumbing, no running water. It is so disturbing.

I consider my mother a pack-rat. Not a hoarder, not as bad as the people on the show, but someone who keeps things for no real reason, buys things for no real reason. I can relate to the adult children of the hoarders on the show.

I guess I have a bit of a backlash. I struggle with what to keep and what to toss. Sometimes I have an urge to keep something ridiculous and then worry "Is this the first step to turning into a pack-rat?" and throw it out. I figure it's better to throw something out and either have to buy another or live without than to find myself buried in trash.

And yet, I can still relate, just a tiny bit. I live in a tiny apartment. Sometimes I have a pile of clothes that doesn't fit into my dresser or my closet. Books that don't fit on the book shelf. I guess I can imagine a scenario where, over the years, it just grows worse and worse over the years and you just don't know where to start. Especially if you add in some kind of mental illness.

Clearly, the Hoarders are a whole different category. It kills me to watch it, and yet I need to watch until the end to see the house clean.

It makes me want to go clean something, to throw something away. But if you haven't watched it, you probably need to see at least one episode.