Monday, October 18, 2010

Mayor Adams Do You Hear Me?

When I read the story my instant reaction was, “this is politically brilliant. The average citizen who reads this story is instantly going to be afraid…they will either put pressure on the legislature to give more money to the DA’s office or vote for whatever tax levy feeds money into the district attorney’s budget.” 

As someone who has worked as a criminal defense attorney in Multnomah County for 11 years (six of those years as a public defender), I’m here to call bullshit. 

If the average taxpayer had any idea just how much money is WASTED in the criminal justice system, I have no doubt that there would be an outright revolt. 

You want examples? Here are just a few (and remember, I could list a dozen more):

1.    Anyone who works in the system will tell you that drug addicts are only going to successfully complete treatment and stay sober if/when they are READY to get sober. You can send an individual to the Betty Ford Clinic or any other super-fancy, cutting-edge treatment program; but if they’re not ready to get clean, it will do no good. Last time I checked, the Multnomah County DA’s office (as well as DA offices in countless other counties) refuses to acknowledge that fact.

I have represented hundreds of addicts who have said, “I’m not ready for treatment, if given probation, I will violate, just get me a straight jail sentence.” What this means is that these defendants know that they will never make it through probation. So they just want to do jail time.

If they could get a straight jail sentence, once it’s up, they are free to go about their business. Nine times out of 10, that is not an option. The DA offers only probation, plus treatment, plus fines/fees, etc. And judges are usually not inclined to impose straight time sentences.

So you know what happens? That’s right: The person takes the deal, gets out of jail, and starts using the minute they step foot on the outside. You know what happens next? A warrant is issued for their arrest. Tax payers then pay for law enforcement officers to find these individuals and once they do, they go back to jail, and usually spend a week or so locked-up before a Judge finds they violated their probation for not doing the treatment they said they were not going to do in the first place. Repeat the scenario two to three times per drug defendant.

Oh, there’s more. Once a judge finally decides, “Okay, clearly this isn’t going to work. I’m going to revoke your probation and GIVE YOU JAIL TIME,” that individual ends up spending the time in jail they would have spent had they just been given the “straight time sentence” in the first place.

Now I don’t have the exact figure of the average daily amount spent to house the average Multnomah County defendant – but it’s a lot. I promise you that. In fact, I’m willing to bet that if we just allowed these people to serve their straight time sentences, there would be more than enough money to prosecute all crimes in the county. 

Einstein said, “The definition of insanity is doing the same thing over and over again and expecting different results.”

Well, yeah.

The thing that gets me more pissed off than anything? Yeah, the $58 million Wapato Jail, which has been EMPTY since it was built because there is no money to staff it. Oh, the irony.

BUT WHERE IS THE OUTCRY? We spent $58 million dollars of tax payers’ money to build a jail that has never been used. Sam Adams, are you listening? Oh right, you’re at your bike meeting with bike people about special bike things. Sorry to interrupt. 

2.    Prostitution “stings”: There’s a reason people say that prostitution is the oldest profession. Men always have and always will buy sex, and there will continue to be women (mostly) to provide it.

I’m happy to have a conversation about the fact that it is often the weakest, most vulnerable women who end up as prostitutes. I agree. But again, that’s an entirely different conversation, which requires a meaningful dialogue about sexism, bad parenting, self-esteem, drugs, etc.

In the meantime, I will tell you that police departments around the country spend hundreds of thousands of public money setting up stings. They put female police officers on street corners pretending to be prostitutes. Once they engage in the legally required exchange, “If you give me your money, I will give you my vagina.” The men they encounter are arrested.

At times, the reverse happens. But does it help things? No. Has prostitution gone away? No.

For every man who is arrested and shamed into not repeating his behavior, there are countless other men who will go out and seek prostitutes. But remember, we’re spending hundreds of thousands, if not millions of dollars on such police stings. Don’t the police have better things to do with their time and OUR MONEY?

You’ll read stories in the newspaper telling you that, due to budget cuts, our streets aren’t safe.

Violent predators will be let loose.

Lock your doors.

Don’t let your children play outside.

But think about the waste. 

There’s no politician in the world who’s willing to step up and tell the truth. These are not popular topics. No one wants to admit that drug addicts will continue to be drug addicts until THEY are ready to get clean.

No one’s willing to admit that men from all socio-economic levels will continue to pay for sex. 
But that’s our reality, and I challenge anyone who’s worked in the system to say differently.

And yes, I call bullshit. 

Tuesday, October 12, 2010

Teen Mom

A couple of weeks ago I was watching TV with my wife when she recommended that we watch a reality show on MTV called Teen Mom. Now, I am not above reality television but am also not one to tune into a show that appears aimed at a different demographic than mine, aka teenagers. Further, it has been quite some time since I have watched anything on MTV - sorry to say, that I figured I was just too old for their least since they stopped showing Van Halen and ZZ Top videos (and I'm talking old Van Halen, none of that Sammy Hagar crap - though he does make damn good tequila). While that may date me, I can't hide from the truth - I am just not an MTV guy anymore.

Having said that (thank you Jerry Seinfeld), I may have lightly protested watching this show, but not longer after it began. I was taken in by it. Unfortunately, this is not because this show is a thing of beauty - its more akin to rubber necking that accident on the freeway. (And, if you have been in an accident, I know a really good personal injury attorney who can help you.) But, lets be honest, isn't that what reality television is all about? Its voyerism on crack.

So, now having watched a few episodes of this show, I am not only still taken by it and its characters (as is much of the nation), but there have been some surprising legal issues or circumstances that led me to want to discuss them here, in our forum.

First, in episode 1, it was amazing to see MTV show a terribly unfortunate and very serious incident involding Farrah and her mother in which the mother assaulted her teen. While the show did not make this completely clear, it appeared that at least at some point, a knife was involved. This is a serious situation that is unfortunate for all those involved. While, as a criminal defense attorney, I never advocate to get the police involved because it rarely ends up good for anyone, this certainly seemed like the appropriate time to call them.

The interesting part is the relationship that appeared to continue between Farrah and the prosecutor after Farrah's mom eventually pleaded guilty to whatever she was charged with, presumably a felony. The show certainly didn't seem to address this and I don't blame MTV for glossing over it as it really is not an important part of the show, but again, as a criminal defense attorney, I could not help but notice that on multiple occasions, Farrah referred to the prosecuting attorney as "her attorney."

Again, defense lawyers (and prosecutors) know that a prosecutor is NOT the alleged victim's attorney. S/he works for the "people" as a collective - not anyone specifically. And I don't know how things work in the jurisdiction where Farrah resides, but that is certainly not the case here in Portland, Oregon. What became even more interesting is that as this storyline continued in future episodes, Farrah kept visiting "her attorney" aka, the prosecutor. And, it wasn't only to discuss Farrah's ongoing issues with her mother and the mother's compliance with her probationary terms, like treatment and counseling. They also discussed obtaining social security for Farrah's baby. What the audience eventually learns is that the baby-daddy perished in a drunk driving accident sometime in the past - we're not sure when, just that it was after conception.

I do not have a problem with Farrah rightfully applying for these benefits for her child - the system exists, she deserves to access it. And, this is not the place where I would argue the point of our country providing those benefits. What sparked my interest, as an attorney here in Portland, is that when Farrah needed advice on applying for these benefits (and then going through the process itself), MTV certainly made it appear that the prosecutor was the lawyer who helped her get these benefits. Again, from my experience as a criminal defense attorney, this is not the job of a prosecutor. Certainly, here in Multnomah County or other areas of Oregon and Washington that I am familiar with, that would not occur.

District Attorneys or prosecutors work for the state or the "people." They are supposed to investigate and prosecute alleged criminals. They are not supposed to spend the people's money (by spending their time while on the job) to help an individual obtain social security benefits. It was just interesting and not sure if MTV just edited the footage to appear that way or if that was how it actually happened. The prosecutor's job is not to do this - and, s/he definitely shouldn't get paid to do it. That would be the job of a civil lawyer retained to obtain those benefits on behalf of the child. Further, even if he did it pro bono, i.e., for free, he still isn't supposed to be spending his time working for any one individual. However, I only bring this up as a lawyer as it is of interest - things could either be different where they live, or MTV may have performed some creative editing for the sake of time savings or plot arcs. I guess that is their prerogative.

The second intersting event from this criminal defense lawyer's perspective is what appeared to be more criminal activity that appeared on television. Again, this comes from someone who did nothing more than watch the show - I have no idea what happened behind the scenes. But, in episode 10, another teen mom named Amber clearly assaults her boyfriend/fiance, Gary by punching him in the face. Then, as Gary is leaving, she kicks him in the back as he is walking down the stairs - something that really could have injured him had he fallen. Amber and Gary clearly have a volatile relationship, and I'm sure an audience member doesn't see the whole story - one never does in reality television, right? Having said that (thanks again, Jerry), from the perspective of a lawyer, was this an event that was prosecuted?

There is no getting around the event took place - see the video here. And, not only did Amber punch Gary squarley in the face, she did it in front of their young daughter which here in Oregon would be considered a felony. I bring this up for a few reasons. Again, was Amber prosecuted? Even an experienced criminal defense attorney would have a tough time defending these actions caught clearly on video - something that is rare in the world of criminal justice. If not, why not? Did MTV get some deal ahead of time from the local prosecutor's office that if they aired this footage Amber would not be prosecuted? Was she but MTV buried it? Its not something that was hidden from the audience as Amber and Gary even discussed it again in its on-line wrap up shows.

And, if she wasn't prosecuted and it wasn't because of some deal that MTV obtained, why wasn't she? Is it because she is a girl and the alleged victim was a boy? In my experience here in Multnomah County, that would not be the case. I have handled domestic violence cases where the female was alleged to have assaulted the male (and even won a jury trial obtaining an acquittal for my female client, thank you very much). But, in other jurisdictions (as explained in a previous post), maybe those cases aren't prosecuted because the district attorney has prosecutorial discretion to charge or not charge any case or incident of which they learn. Is that fair? Would the DA simply turn a blind eye simply because the events occurred on MTV?

Just food for thought - do any attorneys, criminal or otherwise, have an opinion or inside information about this? Should girls get a free pass when they beat on their boyfriends? Does it matter who is bigger or how badly the other person is hurt if at all? (FYI, getting "hurt" or what "physical injury" means becomes a legal issue when one gets charged with assault in Oregon.) What about any laypeople out there whether you watch this show or not - do you have an opinion? Give us a shout out and let us know....

Tuesday, October 5, 2010

Angry Dad threatens school bus bullys

Saw this interesting story today(see below) - what do you think? As an experienced criminal defense attorney, I can tell you that I have seen much sillier cases filed by district attorneys.

What the news I have seen hasn't made clear is whether we are talking about the cops charging this guy with disorderly conduct or the local district attorney's office. If you don't know the difference, see our previous post that explains what the police charge you with and what the district attorney later decides to officially charge you with (if anything) don't have to have ANYTHING to do with each other.

So, if it's just the cops, this, in my humble opinion, is a perfect case that has no business being issued. Sure, it may be ok that the police arrested this guy to "investigate" the crime though that was probably also unnecessary.

As a criminal defense lawyer, I am always hopeful that we can return to the days of actually investigating these things before charging them and then making a reasoned decision on what to do based on all the facts obtained. What often happens these days is that someone makes a report (or sees a video) and they are immediately charged, investigation to come later (if at all). I'd like to think the cops could actually do their jobs and investigate the case before arresting someone. However, even if they don't, or can't (a premise that I am unable to statistically refute though I have my doubts), and angry dad does get arrrested, there is supposed to be another level of checks and balances in our fair society based on what the creators of our goverment initially thought would occur.

The district attorney, whomever they are or employ to work under them, has what's called prosecutorial discretion to decide to issue a case or not. Sure, they can listen to anyone they want before making that decision - bosses, cops, alleged victims, defendants, criminal defense attorneys, the guy on the corner, their barista, anyone, but, most importantly, they don't HAVE to listen to anyone. It is entirely up to them!

So, then the district attorney decides to issue the case - if they decide to. If they issue it, a defendant is now facing jail time and has to hire a lawyer - well, is an idiot not to (is that too blunt?). Then the criminal defense lawyer does the investigation and tells the DA what they think happened based on their investigation. But, initially at least, all a lot of DAs want is a plea, "I issued the case, I think I can prove it, plead to it and/or lets haggle about the terms, but one way or another we're talking a plea." Unless the criminal defense attorney can convince the DA that their wrong - they head to trial, if the defendant doesn't plead to something.

What no one seems to understand in this process (besides the DA and the criminal defense lawyer), is that a jury can be a real crap shoot depending on who is in the jury pool that day. So, on a bad day (and believe me, they happen), many innocent people could be convicted. Trust me, all you people out there saying, "that would never happen to me" - it can, and it does all the time.

Those are the same people who say, "I would never confess or plead guilty to something I didn't do" - that's another good one - a lot of those people change their mind when they find themeselves in that position. Hopefully, if you do find yourself there, you can afford a good criminal defense attorney or get lucky with a good public defender to help you with your situation. But, I digress.

The problem is that what happened to this guy's daughter may not give him the legal right to act the way he did - morally? maybe...but, legally? Depends on the state and statute under which he is charged. But, you also have to ask yourself - does that make him a criminal? Does he need a lawyer? Because, I can tell you, its not up to the dad, or his lawyer, to decide - the DA and the DA alone is the one who gets to make that call. And, in a lot of jurisdictions (again, assuming these are misdemeanor charges), then that decision could very likely be in the hands of some junior, newbie DA who just passed the bar...

So getting back to our media obsession of the day, if this is a story that hit the internet before the DA had made a charging decision, this certainly seems like a case that, with some investigation, maybe even some negotiation, could go away without that waste of a process. If these kids really stopped bullying angry dad's daughter, is he still a menace to society? Or will he go back to his law-abiding ways (if that's from whence he came)? If so, then, from this criminal lawyer, I say take care of it on the front end, nip it in the bud, and save everyone a big headache. What do you think?