Alaskablawg

How To Be Excused From Your Trial

Interesting decision from the Court of Appeals today. A defendant was so rude and obnoxious that the court ordered that he not be present during the trial, even if he wishes to testify. The Court of Appeals upholds this decision. Now, I'm a fairly pro-individual rights kind of person, and I think that as a rule, you should be allowed to attend your own trial. In this case, though, I think the trial court made the right decision. It is a long decision (65 pages) in part because of the numerous excerpts from the record. The COA, recognizing this is an extreme step, quotes so much from the record to show just exactly what one has to do to be ordered out of the courtroom for your own trial. Some of the things he says to the prosecutor are just beyond belief.

Part of the issue is that this defendant was charged with a sex assault. He was tried and convicted for that crime. This appeal stems from witness tampering charges from when he called her trying to get her to change her story on the sex assault charges. Before his sex assault trial, in a jury-out hearing, his lawyer on the previous case tells the court that her client wants to ask a question. That's always a bad sign, when the lawyer won't ask the question but instead lets the client ask it.

So, this guy looks at the judge and says, "I hear that some judge down here is fucking [the complaining witness] and writing her love poetry and shit. I can't get a fair trial if the judge is fucking her. So I got to ask, are you fucking [the complaining witness]?"*

The judge, who used to be the head of the criminal division of the Dept of Law and is a well-respected judge throughout the state, calmly leans forward and says, "Mr. Douglas, I don't write love poetry."

In the sex assault trial, a treating doctor testified that the complaining witness had marks that appeared to be cigarette burns near her ano-genital area. Upon hearing this testimony, the defendant yells out, "That's bullshit! She's got herpes!" **

If you are facing criminal charges and you are frustrated with your attorney, the prosecutor, the court, or whatever, I would strongly urge that you read this decision and realize that this is a great demonstration of how to NOT demonstrate your frustration. It is my opinion, and I could be wrong here, but its my opinion that outbursts and language such as the defendant used might not help create a lot of sympathy with either the court or the jury. Just a little suggestion.

*I heard this story from three different sources and that quote is pretty much verbatim from all three of them.

** Again, this story and this quote were confirmed by all three sources.

Post Acquittal Crime?

There's an interesting story developing in Anchorage these days. A local nurse, Mindy Schloss, disappeared in early August. The news has been filled with stories about all of the search efforts to locate her. In the past couple of days, though, the police have publicly stated that they are looking for a 'person of interest': Joshua Wade.

In 2003, Joshua Wade was acquitted of murder charges in a very high profile trial. Between 1999 and 2001, there were a number of violent rapes against Alaska Native women. Many felt that police were not doing what they could to solve the crimes because of the victims' race. In the midst of this, police found the body of a murdered woman who was also sexually assaulted. Several people told cops that Joshua Wade had bragged about killing her. It seemed from all public information that a conviction was a sure thing.

There were a couple of problems, though. For one, none of the DNA on this woman's body matched Mr. Wade. Secondly, fingerprints at the scene did not match Mr. Wade. Actually, the cops did not even test the fingerprints until the middle of the trial. The modus operandi matched the man ultimately convicted of the multiple rapes. It appeared that M. Wade did tamper with some evidence at the scene. His attorneys argued that he came upon her body after the sex assault and murder. Mr. Wade was acquitted.

Now, though, the cops want to talk to him about the missing nurse. This makes for some interesting water cooler discussion in Alaska. The mother of the previous victim has stated that this would not have happened if the jury had done its job and convicted Mr. Wade the first time. The not so subtle subtext to the news reports is that Mr. Wade was obviously guilty the first time. He just had some really good lawyers. An even subtler subtext is that perhaps those attorneys should be embarrassed or ashamed. That if maybe they had not defended Mr. Wade so hard, this nurse would now be alive.

Bullshit. First, as briefly noted above, there was plenty of reason to believe that Mr. Wade did not commit the murder for which he was previously charged. Secondly. there is no realistic way to predict the future. We have no way to know who might commit a crime in the future. Imagine the closing arguments in that trial:

Prosecutor: Well, the DNA evidence might not match. The fingerprints might not match. And all of the State's witnesses are dirtbags who have very good motives to tell the cops what they want to hear. But if you let Mr. Wade go, who knows what he might do?

To put it like that shows how ridiculous all of this is. Anybody in this business has a case in which a client whose case was successfully resolved has gone on to commit further crimes. But anybody in this business also has cases in which clients whose cases were resolved successfully went on to improve their lives and do good things. Some people take advantage of the breaks life throws them and some people don't. As a defense attorney, my job is to zealously defend my client on the charges that he is then facing. If the prosecution is so dead certain that my client is dangerous, they should work hard to develop a case and prove it.

I don't know whether Mr. Wade actually committed the crime for which he was acquitted. I don't know if Mr. Wade had anything to do with the disappearance of Ms. Schloss. What I do know is that there was plenty of reasonable doubt in his first case. And in our system, that means he should have been acquitted. Part of the price of that may, and I emphasize may, be that he was somehow involved in the death of Ms. Schloss. But even assuming that to be the case, his lawyers did an outstanding job and have nothing to be ashamed of. I also know that very few, if any, of us would want to live under a system where someone's potential future conduct is grounds to convict them when there is otherwise reasonable doubt.*

* I recognize some states allow civil commitment for individuals convicted of certain crimes. I also recognize that the Supreme Court has upheld this practice. That situation, as anti-thetical to liberty and a free society as it is, is inapposite here. Those commitments come after a conviction and a hearing. There was no conviction in this case, which means that the state could not have civilly committed him as dangerous anyway.

Michael Vick, Part II

There's another point that keeps going through my head about Michael Vick: people generally ignore cruelty to other people but, in this country at least, get up in arms about cruelty to animals. I have represented people who have been charged with unbelievable cruelty towards other people, children even. These cases have, in some cases, gotten tremendous publicity. But public reaction is generally muted.

But somebody is charged with cruelty to animals and public reaction is swift and vitriolic. I know of several animal cruelty cases that have gotten publicity from up here in Alaska. The prosecutors have gotten letters from people all across the country demanding the maximum penalty, even if it is a first offense. Some horses haven't gotten enough food and all of a sudden, people across the country think the owner needs to do years in jail. Courtrooms are full at sentencing to make sure the judge knows the 'community is watching'. But someone tortures a child and nobody says anything. The judge sentences someone in an empty court.

Is that because moral outrage is higher in cases involving animal cruelty? Why? I can honestly say that if Michael Vick is indeed guilty, nothing he did even compares to people who torture other people. But those cases do not draw near the outrage. Is it because there is some cadre of animals lovers out there that keep an eye out for these cases, writing to DAs and urging high jail sentences? If so, some people need to get a life. Is it because this country is a bit nuts about our pets?

Again, I have no idea. What I do know is that it makes no sense.

Michael Vick, Part I

I've been watching Michael Vick's legal troubles and two main thoughts keep rolling around in my head. The other point, since it is so disparate, is in another post. I also want to say that, while I do not know whether he's guilty or not, I think dog fighting is disgusting. I think it is cruel and despicable, but it is well worth pondering why it is illegal.

It should be no surprise to those who know me that I have strong anarchist tendencies, but animals are considered property under law. The law does nothing if I decided I want to burn up my car providing that I do not harm anybody else by doing so. That includes harm to lienholders. So if I pay cash for a new Ferrari, drive it to the middle of my property and then set it on fire, legally, what have I done wrong? Nothing.

So why are animals different? Because they're alive? Realistically, such activity is outlawed because of our collective moral outrage (more on that in the next post). Is that a sufficient reason to outlaw something? Why? I don't really have an answer. I just keep mulling it over in my head. If moral outrage is philosophically sufficient to outlaw something, where is the line between society's moral outrage and individual rights?

Robert Bork argued that moral outrage is sufficient to outlaw some behavior and, ironically, he used dog abuse as his example. I have some rather profound disagreements with Bork's political and constitutional philosophy (this disagreement is probably crystallized in his description of the Ninth Amendment as an 'ink blot'). Yet to dismiss an argument because of who makes it is a genetic fallacy and as such, logically insupportable.

It seems to me that if animals are merely property, then dog fighting should not be outlawed. It may be disgusting and immoral, but there are lots of things that are disgusting and immoral that are legal. I think that the moral approbrium directed at Vick should show that not all social regulation has to originate with the government. Consider that Vick has lost every single one of his major endorsements, effectively costing him more money than most of us will ever see in our lifetimes. Further, Vick's employer has not yet decided whether it will allow him to keep his job. All of those are legitimate decisions between private parties and show that there are a lot of ways in which behavior can be regulated without any government rules.

If animals, though, are more than property, then there may be justification for such laws. But if animals are more than property, what would they be? To elevate them to the legal status of human beings, a la animal rights, is absurd. Its absurd because a brown bear, even in such a skewed legal system, will never be convicted for killing and eating a moose, even in the most brutal manner. Thus, animals would not ever be required to recognize and honor rights of other animals. Rather, it would only be humans who would be required to respect rights of animals. Such inconsistency demonstrates why animal rights is ultimately a philosophical dead end.

If animals are deemed to be legally more than property, what would that intermediate step be? What would it be based upon? I don't think the mere fact that animals are alive would be sufficient. Somehow, I do not think that the outrage against Vick would be as high if he went to see a demonstrate of a cobra and a mongoose fight. If it were snakes that were being destroyed, people might look askance at him but I doubt he would be facing federal charges or the loss of his endorsements and his job. This means that it is not merely an animals status as a living creature that generates the desire to protect animals.

So why the protection for dogs but not snakes? Is it because we find snakes repellant and dogs companionable? Is that a sufficient reason to distinguish? If so, how would we codify the distinction? Reptiles are deemed to be property and can safely be exhibited in fights, but displaying fights between mammals can result in jail time?

Maybe I am just a bit off by pondering this situation too much. Maybe I just think too much. I don't know. But I don't really have any good answers to the questions above, either.

Prison

Why are so many people in prison? This article tries to get to the bottom of that question. Very thought-provoking. Key passage: This situation raises a moral problem that we cannot avoid. We cannot pretend that there are more important problems in our society, or that this circumstance is the necessary solution to other, more pressing problems—unless we are also prepared to say that we have turned our backs on the ideal of equality for all citizens and abandoned the principles of justice. We ought to ask ourselves two questions: Just what manner of people are we Americans? And in light of this, what are our obligations to our fellow citizens—even those who break our laws? Read the whole thing.

Prosecutorial Misconduct

Out of Washington comes an interesting story about a prosecutor who was sleeping with a defendant's mom. The prosecutor says that the relationship ended when the kid (it's a juvenile case) was arrested. The mom says that the prosecutor tried to find out about the defense strategy and control the case. Whatever the case, I think the best course of action once it was known the kid was being investigated would have been for the prosecutor to recuse himself and his office.

Wrongful Convictions

1 out of 6 juries in criminal cases decide cases incorrectly according to a new study in The Journal of Empirical Legal Studies. The study is online here, but it costs $29 and I haven't spent the money yet.

1 in 6. Hhmmmm. That would seem to suggest that maybe, just maybe, political responses to crime such as:

increasing the number and types of crimes
increasing jail sentences
mandatory minimum jail sentences
reducing probation/parole options
increasing public defender caseloads
limiting defense access to discovery
sex offender registries
reducing ground for bail
the drug war in general

(to name a few) are potentially misguided. Just a thought.

American Prisons

Radley Balko has a sobering note that, last year, the US gained more than 62,000 prisoners. Worst part of it: the US incarceration rate for black men is over five times higher than South Africa's incarceration rate for black men at the time of apartheid. Think about that. A black man in America today is five times more likely to be behind bars than he would have been if he lived in South Africa in the late 80's.

Legal Humor

I generally don't post portions of the flotsam and jetsam I receive in email, but I thought this was sufficiently humorous I would make an exception. It's about how to pronounce "Daubert", as in the famous case on Evidence Rule 702. For non-attorney readers, all I can say is that you sort of have to have a working knowledge of Daubert to get the full humor.

The Daubert Worldview

Prolegomenon: A Pronunciation Gazetteer
Q: Before we get to what it all means, how is "Daubert" pronounced?
A: "Dow-burt."

Q: How do you know?
A: From published, peer-reviewed literature authored by a duly licensed attorney who developed his views in the regular course of his professional duties. See Michael H. Gottesman, Admissibility of Expert Testimony After Daubert: The "Prestige" Factor, 43 Emory L.J. 867, 867 (1994).

Q: What makes Gottesman an expert on this subject?
A: He represented Jason Daubert before the Supreme Court and listened to his client pronounce the name.

Q: So Gottesman's opinion on the correct pronunciation was developed for litigation purposes?
A: Yes.

Q: Is "dow-burt" the generally accepted pronunciation? A: Not universally so. Many lawyers and judges say "dough-bear."

Q: Well, what about the methods Gottesman used to arrive at his conclusion? Is listening to the client a prevalent methodology in the legal field?
A: To a point.

Q: So did Gottesman take any courses on listening to the client during law school?
A: Almost certainly not.

Q: Has the technique of listening to the client been tested?
A: Informally.

Q: Does it have a known error rate?
A: The error rate is thought to be fairly high.

Q: Has Gottesman been consistent, at least, in the position he has taken on the proper pronunciation?
A: No. When he was arguing the case before the Supreme Court, he pronounced the name "dough-bear."

Q: Why?
A: The Justices seemed to prefer that pronunciation.

How to Hire A Criminal Defense Lawyer

Being in private practice, I encounter a number of people who are looking for a criminal defense attorney. Many times, the need is urgent because someone in their family was just arrested, or they hear that there is a warrant out for their arrest. In those circumstances, there can be almost a panic to hire a lawyer. So how do you do it?

There are several things to look at. First, and this may seem obvious but it is surprising how many times people miss it, make sure that the lawyer you are talking with handles criminal cases. Just because some attorney handled your divorce or the closing on your house does not mean that lawyer would do well in a criminal case. Nevertheless, one of the best places to start is with lawyers that you may know. Ask them who they would hire for the type of case.

This part is also important. Not all criminal defense lawyers handle all criminal cases. Federal law, for example, is generally dramatically different from state law. Make sure the lawyer can handle your type of case.

If you do not know a lawyer, check out some attorney groups focusing on criminal defense. NACDL (National Association of Criminal Defense Lawyers), for example, has a membership directory. Many states have their own state organization. (Alaska's is the Alaska Academy of Trial Lawyers.) A google search would easily find those groups. Use their membership directory. Membership in such an organization, while certainly not necessary to practice, shows that the lawyer at least has enough interest and focus in the area to spend money to be a part of the organization.

Start calling people that come up in the member search. Ask if they handle these types of cases and if they can handle your case. There may be legitimate reasons they cannot. The lawyer may not have time right then or there may be a conflict of interest. Make an appointment and go visit the potential lawyer.

Should you find out the fee before you go to see the lawyer? That depends. If you are pressed for time or you know that you are going to hire a particular lawyer, it is a good idea. On the other hand, if you have some time, I would recommend seeing several lawyers. Law is an art, not a science, and there are several different ways to approach the same problem. You should go with a lawyer you are comfortable with. To know who that is, you should visit a few. You should also hire a lawyer whose direction or outlook is the same as yours. Stay away from lawyers that try to push you into a particular choice of action, such as pleading or trial, without knowing a great deal about the case.

Also stay away from lawyers that promise really good results. Good results can happen, but even the best lawyers do not always get the results they want. The reality is there are three types of cases: cases easily won (acquittal), cases easily lost (conviction), and cases in the middle. Every client wants to think that their case can be easily won. That is not the case. Good lawyers will have higher winning percentages, all things being equal, of the cases in the middle. Cases easily lost are cases in which the evidence is rather strong and you might want to really consider a plea bargain. Some lawyers are better at trial than at negotiations. If you are not familiar with the evidence that will be presented against you, you should be prepared for all possibilities. Sometimes it is better to hire a lawyer who can negotiate a good deal for you rather than a fire-breathing trial monster. If the evidence is overwhelming, you may want someone who can minimize potential jail or prison time. A trial monster may not be such a person. On the other hand, you may decide that you are going to trial no matter what. In such a case, get the trial monster.

This is one reason why asking, "What is your record?" is not really helpful. What do you mean by 'winning'? Straight acquittal? Does not always happen. Further, the less serious the charge, the greater chance at an acquittal. There are several reasons for this, but a lawyer with a high winning percentage handling misdemeanors may not be as good as a lawyer with a low winning percentage in homicides.

So how to lawyers charge? Depends upon the case. Lawyers generally charge either a flat fee or an hourly rate, depending on a number of factors. For smaller cases, DUIs, misdemeanors, maybe low level felonies, it is quite common for a lawyer to charge a flat fee. There are many stages of a criminal prosecution. Your lawyer should explain the general procedure for your jurisdiction. If she charges a flat fee, make sure you understand what that covers. Does it only cover initial proceedings or does it go all the way through trial? If it goes through trial, would you get a refund if it settles? The answers may not always be so clear. I know of an attorney who charges a certain fee for a DUI. Whether there is a trial or not, that is the fee. On one hand, it can be nice to know that you won't have to pay extra money for a trial if you want it. On the other hand, maybe you don't want to pay for a service that you don't use.

Hourly rates are generally used for more complicated or expensive cases. In these cases, money is deposited into a special bank account lawyers keep called a trust account. The rules governing trust accounts are very specific and strict. There are few ways to lose your license to practice law as fast as taking money from a trust account without proper authorization. The lawyer keeps track of his time and at agreed upon intervals (once or twice a month), notifies you of the time he spent and what he will be withdrawing from the trust account.

Expenses for cases are also paid by the client. Common expenses include experts, investigators, transcripts, paralegal work, travel, and copying charges. Your lawyer should explain how those expenses are tracked and how you are to pay for them. Be wary of lawyers that try to push a great deal of expenses without explaining them to you. But also be careful of lawyers that do not spend money that needs to be spent, such as an investigator. If you cannot afford an expert or an investigator, you should consider another attorney or appointed counsel. Hiring an attorney without providing funds for such is going into a fight with one hand tied behind your back. It is not smart.

If you do have some time and have been able to talk with several lawyers, you will most likely wind up with more than one lawyer you are considering. If that is the case, go with the lawyer that you felt the best about. You (or a family member or a friend) are about to go through a pretty traumatic and rough experience. While the tips I've given above will help you decide who is qualified, there is realistically no way I can tell you who you would be best hiring. You would do well to go through this experience with someone you get along with.

I hope this helps. If you have any questions about what I have written, feel free to email me. Please do not, though, email to ask about a particular attorney.