Wednesday, March 31, 2010

Revolution is Patriotic!

"Lawyers who accept our professional responsibility to protect the rule of law, the right to counsel, and access to our courts – even when this requires defending unpopular positions or clients – deserve the praise and gratitude of all Americans. They also deserve respect. Those who reaffirm our nation’s most essential and enduring values do not deserve to have their own values questioned. Let me be clear about this: Lawyers who provide counsel for the unpopular are, and should be treated as what they are:  Patriots."

--Attorney General Eric Holder, March 19, 2010

Friday, March 19, 2010

But Why Are Jurors Coming In?

One of the downsides of Trial Chicken, is that occasionally one ends up sitting with the client at the counsel table as the jury files in, thinking, Holy Shit, this wasn't supposed to go!

Since a not-guilty verdict should eliminate the attendant malpractice problems, I'll continue this confession, to comfort those of you who have found yourselves in this spot, or serve as a cautionary tale, or at least remind everyone to always stick a couple of yellow pads and a trial notebook in your briefcases.

No, I didn't walk into court and meet my client for the first time on the day of trial--it was a DV case--assault in the third degree, as close as you can get to a misdemeanor and still be charged with a felony--and I had interviewed the witnesses, who all agreed that no assault had occurred, but I burned up all of my trial preparation time writing a trial brief which I thought should and would result in dismissal of the case.(You'd think I'd know better by now.) Since I worked on my beautiful trial brief until 2:00 a.m., I slept as late as I could in the morning, and went straight to court, where I had arranged to meet my client.

Problem Number One:  My female client was wearing a frayed sweatshirt and jeans, with rubber Croc-style shoes that had broken straps that trailed behind her like tails.  I had discussed "nice clothes" for court with her, but I've learned over the years that "nice clothes" means different things to different people, and I usually make my clients show me what they plan on wearing to trial.  But it didn't matter--there was no way the state was going forward with this lame case, and even if it did--the judge would dismiss it based on my motion  (yes, I realized how stupid this sounds now).

Problem Number Two:  The prosecutor showed up with a cop in tow.  Which seemed strange, because why would she need a cop for a case that she was going to dismiss?

Problem Number Three:  The judge would not listen to anything I had to say.  I moved to preclude the state from calling my gal's husband as a witness for the sole purpose of impeaching him with otherwise inadmissable hearsay.  I have refined my method on this motion over time, and had a certificate from the "victim"-husband, stating what he would testify to at trial, and my client and I were prepared to stipulate to all other elements of the offense in order to prevent the state from squirreling out of the rule by claiming that it doesn't know how its own witness would testify or that its primary purpose for calling him was to show venue or something.

I was a little surprised when the judge, looking weary and annoyed for having bothered to read my brief, said, What is the purpose of this motion?  Isn't this just a garden-variety DV case where the victim recants and then the state uses the 911 tape?  

Well, Judge, my brief cites the cases ...

I haven't had any other lawyers bring this motion in my court.  

Oh, the things I wanted to say.  Finally, I managed, I don't know quite how to respond to that, Judge--I've supplied the court with legal authority, both state and federal, for my motion, and I am asking the court to analyze the facts according to the law rather than what happens in this courtroom every day.  If the court has contrary authority, I'm sure it can provide it to the state, and then the state can argue against my motion. (I imagine you can see where this was going ... )

Problem Number Four:  I didn't have any notepads.  I normally have a couple of yellow pads in my giant brief-case-y-purse-thing, but I had driven over to a CLE in Seattle on Friday, and my briefcase only had the CLE notebook and my case file in it.   Luckily, though, the pages of my brief had two sides:

While the bailiff went to round up the jury panel, I ran down the hall to the Conflict Public Defender Office, which still has its office tucked in the corner of the courthouse.  (Ten years ago, our office was in this same space, so I still know the nice ladies there--and where they keep their candy.)  The nice ladies let me rummage through their client closet until I found a cream-colored satiny blouse, which I made my client change into in their file room.  (As I am writing this, I am a little horrified at how my client must have felt through this scrambling, but at the time there wasn't any time for freaking out, we just had to get shit done.)  I persuaded her to let me braid her hair, and we were ready to go back in the courtroom.  I even realized that I could use the CLE notebook for a quick trial notebook.  I checked the cover to make sure that it didn't refer to the CLE I had been to, but it looked fine:

OK, maybe "Continuing Legal Education" wasn't ideal, but it was better than the trial cyclone my uncontained papers would create.

As in every trial, many, many funny things happened, but my favorite was a question my client asked me on the second day: "How come the judge sleeps only when you're talking?"

We finished closing arguments at 5:00 p.m. on Tuesday, and I had another trial to start on Wednesday at 9:30 a.m.  I stayed up almost all night, again, writing a trial brief, this time to exclude the 911 tape, which was the only evidence the state had in a brother-on-brother fight involving a guitar.

The second case was assigned to a different judge.  The new judge said, "Thank you Ms. Defender, for providing the court with this trial brief and the transcript of the 911 tape (which took me forever to type).  I know you just finished another trial, and probably had to stay up late, and I appreciate your efforts as I'm sure your client does."  Now, this same judge sometimes thanks the in-custody clients for coming to court, but at that point I was so grateful to be treated with respect that I almost cried.

The new judge excluded the 911 tape and dismissed the case (this is how trial chicken is supposed to work), just in time for the first judge's bailiff to come and find me and tell me that the jury had a verdict, which was, as I mentioned, not guilty.  Best trial morning ever.

After the verdict, I was rearranging my materials in my briefcase, and pulled the trial notebook out, noticing for the first time the message on its spine that had been facing the jury the entire trial:

I'm really glad I saw that only after the verdict, or I might have shot myself.  A not-guilty verdict can cure a lot of fuck-ups, which is why you learn a lot more from the trials you lose and subsequently beat yourself up over. But this particular fuck-up did give me a good idea for my next trial:

Wednesday, March 17, 2010

I love this rock; I love this rock ...

Back-to-back trials this week:  one jury out and I start picking a new one tomorrow.  At least I'm all warmed up!

Thursday, March 11, 2010

Will Not Brake

Sometimes it's worth coming to work just to read the police reports.  Yesterday I ended up crawling around under my desk, due to a missing evidence DVD.  Instead of the DVD (which I found later in my car's CD player), I found an old police report that had somehow escaped my tidy drawer.

The paragraph circled in red reads: 

"I then proceded to the assault in progress running code (emergency overhead warning lights activated).  While traveling west on Ford-Wellpinit Road at a high rate of speed of approximately 80 mph or more I encountered a large Porky Pine in my lane of travel."

(Just in case you think I mis-typed some of the above:)

"At approximately one hundred feet or less I attempted to scare the animal off the road way by using the siren/horn.  This attempt failed causing the animal to stop and look directly at me, as it appeared to stand up."

"I struck the animal with my patrol car and it seemed to be stuck under my vehicle for a short distance then it became free from my vehicle. I advised dispatch of the collision and continued to monitor my gauges, which did not indicate any signs of serious damage."

No, Mr. True Purr, I'm fairly certain Mr. Pine got away.


While I was crawling around under my desk, a friend came into my office, to make sure I hadn't completely lost it. I showed her the Porky Pine story, which reminded her that she had recently found some old papers stuck in the back of a drawer.

This first picture is a sign her 9-year-old daughter (now in graduate school) drew while waiting for her mom's first jury verdict. The sign reminded me when when my own (then six-year-old) daughter came into the house crying after a walk with a friend and the friend's dad.   She told me that they had seen a man offering to work because he didn't have any money. (I wanted to ask, Exactly why do you think I go to work?) She said that the friend's dad told her that the man was offering to work because he was poor, and didn't have enough money to buy food and clothes for his family. (Or he needed to fuel his meth habit, I refrained from adding.) 

Figuring that this was a moment a good parent would capitalize on, I said, "It's true--some people are poor and don't have enough money to have a home or feed their families."  Then, feeling a bit righteous, "You know, a big part of my job is to help poor people."

"Yeah," she said, crossing her arms, "When they kill other people!"

My friend's daughter, a more mature age eight, had a precocious understanding of the beauty of the words "not guilty" and "jail break":

Next is an after-school project made by the same gal's son, then 8, with the theme, "Things I Like." On first glance, the work seems, while adorable, fairly typical--"My pet bird is a parakeet," and "In my free time I like to play with my friends and play soccer," and "The thing I like about school is math because I like to do it."  But the pink corner is worth checking out:

"The Thing I like about myself, I'm not a Republican."


I also found under my desk a large glossy booklet I had stolen accepted as a free gift from the lobby of the prosecutor's office.  It is also possible that I accepted three or four of these, but purely in the name of continuing legal education.

This booklet, designed for children who are forced to testify in court, is a creepy combination of propaganda and games.  At least it's fairly honest about the prosecutorial function. (click to enlarge)

I think I should invite the book's illustrator to our Friday Pre-Trial docket, because the following picture appears halcyon by comparison.  Friday Pre-Trials ("the crazy docket") are held in a courtroom with a capacity of 50 people despite the fact that 200 people need to be in the room.  The fire marshall has shut it down before, and there is a lot of mooing as cranky lawyers try to push their way through the crowd.

The best part of the booklet, though--definitely in the attractive nuisance category--is the game board and game pieces. I hoped that if I played, I could finally find the answer to "What's My Job in Court?"

So I cut the pieces out:


We have 12 Superior Court (our felony court) Judges in This Here County and there are 12 game pieces. Coincidence? I think not.

Velcro will help keep all of the judges in their places!

I think they look happy, don't you?

Finally, we can all agree upon rules for the game, publish these rules in an impressive treatise, and then play the game, even though some of the players refuse to read the rules. Almost as fun as real life, but without the mooing! 

Thursday, March 4, 2010

Chicken Shit Bingo, and Other Stories

I know:  I abandoned all you lovely public-defender types last week.  In my defense, I'd like to say:  I didn't mean to; I couldn't help it; and, it was Austin, man.

I started my Austin trip wide-eyed and brimming with good intentions. I arrived a day early to catch some of the Texas Indigent Defense Summit on Wednesday, the 23rd. My agenda for the week envisioned inspiring and informative seminars during the day followed by quiet evenings in my hotel room.  I planned on having a couple of pleasant dinners with old friends from The Daily Texan (I went to undergrad and law school at UT), but mostly I planned on spending my evenings holed up in my hotel room, reading and writing. Reading and writing are what I like to do.

Regarding my friends from college, only two are left in Austin: Lee Nichols, who writes about local politics for the Austin Chronicle and Scott Henson of Grits for Breakfast.  Scott isn't featured much in this story, except that I did have a fantastic dinner at his house--not only are Scott and his wife my heroes in terms of the criminal justice reform legislation they have spearheaded in Texas, but also because Scott makes a fine vegetarian lasagna.  

Lee, though, is a prime example of how Texans can fool you. On first glance (and second, third, and maybe fourth), Lee may seem an ignorant redneck--he has all the earmarks: a drawl so slow it says, "I moved to Austin from a very small town"; a penchant for cowboy boots and Western shirts; 

(This is a picture of Lee and his purely platonic friend Bret on the morning after Lee's birthday in 1993, the year I graduated from law school.  Notice the cat.)

and a pithy way of expressing himself ("The first thing I noticed about my wife when I met her was her tits"). Lee is also one of the happiest people I know--he knows what he likes--Austin music, beer, and writing; he pursues the things he loves with zeal (please check out his blog; he is an ardent supporter of public transportation; he obviously adores his wife (and her, um, tits) and she him; and he managed to produce children with burnt orange hair:

Tuesday, March 2, 2010

Back Tomorrow!

I just got back from Austin late yesterday, and there will be a new "Austin-ish" post tomorrow, and then on to serious stuff for the rest of the week.  If you have commented, emailed, or asked to join the Facebook Group, I'm working on getting back to you  ...  Let's just say that I now remember why it was so damn hard to get to my classes when I went to UT.  Until tomorrow, then, I leave you with this moment of Zen:  Still Life with Banana Pudding and Hot Sauce, Sam's BBQ, Austin's East Side--