Public Defenders

A blog that I like to follow is The Library of Defense. It's no coincidence because my old employer publishes it. Regardless, it is informative, especially to a criminal defense attorney like me.

Anyway, The Library of Defense linked to me this editorial in the New York Times. An interesting piece about the difference between a public defender - employed and trained by a public defender's office; and, a court-appointed defense attorney, who is often a sole practitioner who may have some experience, but......may not.

As someone who was a public defender, trained at one of the most organized public defense offices in the nation, I can't argue their point. And, for criminal defendants, they will usually be better off with someone from an office like my former one than most other situations. But, there are no guarantees - someone who is good at their job, is good at their job.

What I find strange about this editoral, and many like them, is that they look at murder cases as the example. If you really want to know what kind of service people are getting from their free lawyers, look at the misdemeanors and the low-level drug and property felony cases - the battle in the trenches, if you will.

The one constant for both is that they will be woefully underpaid for what should be expected to represent someone charged with murder. And, regardless of their employer, they will surely be outresourced, outmanned, and paid signficantly less then their counterparts on the side of the prosecution. When I was a public defender, I was consistently paid about 1/3 less than the prosecutor. And, in my humble opinion, my job was a lot harder.

Anyway, another thing I find interesting is that the editorial measured success by the difference in sentences between the well-represented and the others. In other words, if you got less time, you had a good lawyer. I guess that makes sense but wouldn't the crime and punishment defenders say - "all those muderers got less time, how is that better?" Just something to think about....

TIS’ THE SEASON OF DRINKING AND DRIVING

It’s that time of year again:  the holiday season.  The season of a. awkward company Christmas parties; b. aggravating family gatherings; c. serious financial stress

        

          With all of it comes an increase in DUII arrests. 

While everyone has fundamental constitutional right to fight a criminal case and require the state to prove them guilty beyond a reasonable doubt, when it comes to DUII, diversion is often the most sensible resolution. 

Bottom line:  if you are eligible for diversion and you enter and complete the program, your case is dismissed.  The consequences you avoid by successfullycompleting diversion include:

·         Not having your driver’s license suspended for an additional year (on top of the initial DMV suspension that comes with a failed breathalyzer or refusal to blow)

·         Not having to purchase SR 22 insurance or pay for an interlock device installed in your car

·         Not having a DUII conviction on your record

·         And so on, and so on

We are often asked, “If I’m eligible for diversion should I even bother paying for an attorney? Can’t I just do it myself?”

My answer is always the same:  anyone facing a criminal conviction and the consequences that come with such a conviction should retain an experienced lawyer to:

·         Review and evaluate the State’s case

·         Advise on all possible options (including diversion when applicable)

·         When applicable, put on a hearing for the Court arguing to allow diversion entry on those occasions when the  State objects;

·         Assist the client through the process

·         Advocate on behalf of the client and/or

·         Force the state to prove the client guilty beyond a reasonable doubt when trial makes the most sense

In short, yes. Even those who are diversion eligible and want diversion should still retain an attorney.  If my brother/mother/friend was arrested for DUII, my advice would be that they retain counsel regardless of whether or not they are diversion eligible.

And here’s the thing:  even if you’ve never been arrested/convicted/accused of DUII in the past, there is no guarantee you will get into diversion.

Example:  in Oregon, if you possess a Commercial Driver’s License at THE TIME of the incident, you are disqualified from diversion.  It makes no difference whether:

·         You were driving a commercial vehicle at the time

·         You had stopped driving commercially ten years ago and didn’t even need the CDL

I realize it’s counterintuitive to think “hey, I don’t use my CDL anymore and if I get a DUII in the future I won’t be able to do diversion if I still have it, so I’m going to go to the DMV to get a regular driver’s license.”

But that’s exactly what you should do:  if you no longer use your CDL, go to DMV and get yourself a regular driver’s license. 

Here are the basic criteria regarding Diversion entry in Oregon.

(1) You have no charge of an offense of DUII or its statutory counterpart in any jurisdiction, other than the charge for the present offense, pending on the date you file the petition for a DUII diversion agreement;

(2) You have not been convicted of an offense described in paragraph (1) within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;

(3) You are not participating in a DUII diversion program or in any similar alcohol or drug rehabilitation program, other than a program entered into as a result of the charge for the present offense, in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement;

(4) You did not participate in a diversion or rehabilitation program described in paragraph (3), other than a program entered into as a result of the charge for the present offense, within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;

(5) You have no charge of an offense of murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle pending in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement;

(6) You have not been convicted of an offense described in paragraph (5) within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;

(7) You did not hold a commercial driver license (CDL) at the time of the offense;

(8) You were not operating a commercial motor vehicle at the time of the offense; and

(9) The present DUII offense did not involve an accident resulting in:

(a) Death of any person; or

(b) Physical injury* to any person other than yourself;

(10) You have not been convicted of a felony DUII in Oregon or elsewhere. 

          You see, all this lawyer talk is confusing, isn’t it?  It’s why you should consult with an

 experienced criminal attorney if charged with DUII or any crime. 

          Happy Holidays, stay safe, don’t drink and drive.

          But if you do, give us a call….we can help.

*physical injury in Oregon means “substantial pain or impairment of physical condition.”  In other words, it’s subjective and arguments CAN be made to the Court proving that physical injury was not caused.  So don’t just give up on diversion if a victim alleges injury.  Discuss it with your attorney. 

SHOULD I HIRE A LAWYER TO FIGHT A TRAFFIC INFRACTION?

We routinely represent individuals charged with moving violations or traffic infractions in Oregon and Washington.  Often, our clients will be so angry at the overzealous police officer, the amount of the fine, or a combination of the two, that they decide “I don’t care how much it costs, I want my day in court!”

Our firm has been successful in negotiating these cases with either the citing police officer or the attorney for the jurisdiction who can make decisions regarding dismissal, reduced charge, diversion, etc. 

Here’s what you should know in dealing with a moving violation charge and evaluating whether it’s worth it to “lawyer-up”:

• ·         Moving violations such as running a red light; speeding; failing to signal, etc are NOT crimes which means that the penalty cannot be jail.  HOWEVER, if you ignore the information on the citation in terms of responding within the designated time frame, a bench warrant will likely be issued and you could be held in jail on the warrant.  So read the citation carefully and if you are handling things on your own, make sure to respond within the designated response time. 
• When the officer pulls you over, you are obligated to cooperate, provide your driver’s license and proof of insurance/registration but you ARE NOT obligated to provide statements which help the officer’s case.  So if he or she says something like “do you know why I pulled you over?”, the answer should be “no” – the end.  Don’t go in to a long sob story acknowledging that you messed up but…our experience has sadly been that unless you’re a very attractive woman, the sob story angle never works.  Seriously.  Ask one of your very attractive female friends if they’ve ever gotten out of a ticket and they will unanimously say yes. 
• If you are one of the said very attractive women, good for you for escaping the wrath of “the man”.
• ·         If you decide to hire a lawyer, do your homework:  these cases are tricky and you should find someone who routinely handles traffic matters, is familiar with the traffic code and understands the tactical complexities of the jurisdiction bringing the citation against you.  In other words, don’t hire Uncle Ralph, bankruptcy lawyer extraordinaire, to represent you in a traffic trial.  Hire a lawyer who knows what they’re doing: an experienced defense attorney. 
• ·         Every city/county has their own rules regarding traffic offenses.  Some jurisdiction’s have diversion programs that will result in dismissal of the violation at the conclusion of a time period (usually one year).  Other jurisdictions don’t have such programs so you or your attorney need to try to resolve the matter pretrial or go to trial, cross examine the police officer and fight.  The other side has the burden of proof – not you.  With weak cases, sometimes the best option is to challenge the citation in court and let the judge decide.
• ·         The rules are often different for individuals with commercial driver’s licenses.  So if you have one, let your lawyer know right away
• ·         Finally, in Oregon if you get too many tickets within a certain period of time, the DMV will suspend your license.  Really. They Will.

Whether or not to hire a lawyer to defend a moving violation is really case specific: 

·         Do you have a good case?

·         What are the implications of a conviction?

·         Do you have prior convictions?

·         Does the jurisdiction have a history of negotiating/working things out with defense attorneys?

·         Are you willing to spend the money on a lawyer with the understanding that you may end up getting convicted and being forced to also pay a substantial fine?

As we approach the holiday season, I will close by saying please do not drink and drive.  But if you do, and you get charged with a DUI, give us a call…we can help.  

Portland Trial Lawyers Blog: WILL THERE BE RIOTS IN DOWNTOWN PORTLAND?

Portland Trial Lawyers Blog: WILL THERE BE RIOTS IN DOWNTOWN PORTLAND?: In a few, short hours, the Portland Police Bureau will likely forcibly remove those individuals who have been camping at two parks in dow...

WILL THERE BE RIOTS IN DOWNTOWN PORTLAND?

In a few, short hours, the Portland Police Bureau will likely forcibly remove those individuals who have been camping at two parks in downtown Portland for more than a month. If protestors refuse to leave, police officers likely will arrest them on charges such as: criminal trespass, disorderly conduct, interfering with a police officer, resisting arrest and unlawful camping, to name a few. 

If media reports are accurate, some of the protesters intendto stay put and will resist their eviction. We know that several area civil rights attorneys plan on being present downtown when the eviction starts to advocate on behalf of the protestors, advise them of their rights and assist them with representation if necessary. 

As a criminal defense attorney who greatly values fundamental constitutional rights such as the rights to assemble and speak freely, I must confess that I’m torn on this one. 

I definitely support the concept of the Occupy Movement. Like so many others, I too am fed up with an unmanageable student loan debt, crazy-high property taxes, and the requirement that I pay for my daughter’s full-day kindergarten at a PUBLIC ELEMENTARY SCHOOL.

 And the list goes on.

While corporations, banks and big business continue to get break after break, exemption after exemption. 

I get it. 

But I’ve been down to Lownsdale Square and Chapman Square. From a pragmatic standpoint I’m confident that the majority of the people living down there are not representative of my struggles. Frankly, I’m not sure what most of them are protesting.   And because of the poor decisions our city leaders have made over the past month about these sites, the police officers who are there tonight are in anunwinnable situation. 

So here are my questions:

·         If overnight camping in Portland parks is illegal, why has there been an exception here?

• ·         Why did the city publicly sanction these activities by providing services to the campers? 
• ·         Why do the rest of us bear the burden of paying what it will take to repair these beautiful public parks and pay the hundreds of thousands of dollars in overtime to city employees?
• ·         If the campers have been warned and warned for days about the forced eviction,  if representatives from homeless and social service agencies have taken the time to provide the campers with alternative resources, and if the police have taken every possible measure to avoid conflict, and the campers still resist/fight/commit crimes, should I have any empathy?

And no.  I’m not a Republican.  I’m a grown-up.  And yes, there is a difference.  

Penn State University Controversy

In regards to the terrible tragedy for the alleged victims should these allegations prove to be true, not much can be said - it is a catastrophe of epic proportions; lives were forever marred by the abuse at the hands of a figure of trust. Coach Sandusky should be punished to the fullest extent of the law for what he allegedly did to these young boys - and that comes from this writer who is both a father of a young boy, and a criminal defense attorney. For those that are interested, you can read the full grand jury report of the horrific allegations here.

What is of interest and the purpose of this post is what people think should happen to those that knew of what had occurred and didn't do what was either morally or legally required of them as witnesses to these atrocities. And, is what was morally required of those with knowledge of what had or was occurring the same as what their legal obligations were or should be?

I can tell you that as an attorney, at least here in Oregon, we are what is called "mandatory reporters" of child abuse. This is a responsibility that must be taken seriously but, thankfully, is not one that I have had the unfortunate circumstance of having to participate in as of now. However, as a mandatory reporter, we can be held liable for abrogating our duty in this regard. While I have had my questions about how I feel about this responsibility being forced upon me by my local legislature and profession, this is a case that clearly illustrates why. How many children's lives, now forever scarred, could have been saved by someone stepping up and reporting Coach Sandusky? And then ensuring that that report was followed up on halting the abuse by either incarcerating Coach Sandusky and/or treating his illness. So, where do those who were aware of what had or was occurring stand now? Should they be criminally prosecuted? Civilly sued? What is the appropriate sanction, if any? And where does that line get drawn depending on their level of knowledge, ie, whether they witnessed it themselves, were told about it by others, etc etc. While some of this case is black and white (should Sandusky get prosecuted for example), a lot of is not? Or is it? What should happen, for example, to the legendary Jo Pa?

Another interesting wrinkle for us attorneys or, more importantly, criminal defense attorneys, occurs when we become aware of allegations of abuse or potential abuse, especially ongoing abuse, when we have a duty to our clients of confidentiality. The law, and more importantly, the attorneys involved have a difficult time reconciling this for obvious reasons.

And, what about when the "abuse" is less clear than what Coach Sandusky has now sort of admitted to doing. As a parent and a mandatory reporter, what are we supposed to do with the situation when you see a parent "disciplining" their child in the grocery store? Where is that line drawn with discipline, pulling, squeezing, slapping, spanking, or other physical contact between a parent and their child - as you can see, these are not easy questions to answer. I do not look forward to the day where I am faced with having to make such a judgment call. I know from my years of work in criminal defense that I have seen first-hand how these allegations can ruin the lives of the accused in immeasurable ways regardless of the veracity of the allegations.

In addition, I am not a perfect parent. I get mad at my kids when they misbehave. Who is to judge what I do in anger or discipline of my children? Do we all agree at where that line is between discipline and abuse? Obviously, we are not talking about sexual abuse like what occurred here, but we attorneys are mandatory reporters of any "abuse". If I drag my misbehaving child out of of the grocery store by their ear (WARNING: purely hypothetical situation, this has never actually happened to my children), should someone report me if they witness this and are mandatory reporters? And, who should these mandatory reporters be? Everyone? If not, why not? Why are some of us charged with this duty while others are not?

What say you?

Stacy Schular and Insanity

I recently stumbled upon this story and just read here that good old Ms. Schular's pleas of insanity were rejected by her Ohio jury who convicted her of many, if not all, of the allegations made against her. I have to admit that I was a late comer to this one so I can't intelligently weigh in with an opinion about the case itself - and the legitimacy of her defense. But, as an experienced criminal defense attorney, I can say that sometimes you either have to go with the best defense you have or the only defense your client is willing to present regardless of the chances of success. This is not an enviable place to be as the defense attorney (not to mention the client/defendant), but if your client doesn't want to plead, you gotta try their case to the best of your ability....roll the dice with the jury, and see what comes up. Apparently for Ms. Schular, it was seven-out, craps, a loser.

Reading about this case, and part of the reason for this post, was that it reminded me of a book I read recently that I thoroughly enjoyed (recommendation and explanation to come immediately below). I thought of it due to one piece of testimony I heard about in the Schular case. Specifically, it was reported that one witness testified at trial that long ago, Ms. Schular had admitted most of the allegations to her saying that if she (Ms. Schular) got caught, she had her defense already all planned out. What was that defense you eagerly ask? Yup, insanity. Well, you can't say that sex crazed, alcohol-providing, gym teacher, Ms. Schular isn't true to her word.

And, where were all these teachers when I was in school?? My gym teacher was always some old dude in Bike shorts screaming at us to change our clothes and "get out there" - no booze, no sex, thankfully. Now, there was one creepy science teacher who was clearly gay and possibly a pedophile. He would take a liking to some students each year, not me, again, thankfully. But, he was known to provide some booze and maybe even some pot if you were lucky....I never heard about anything sexual, but he sure was creepy. But, I digress.

ANYWAY, if this witness was telling the truth, it is interesting to me because it tells me one thing about Ms. Schular - she may or may not be insane, but she surely is a psychopath. And, that brings me to the book I read. I originally heard about this book while watching The Daily Show. The author of the book was a guest on the show, see here.

So, when I saw that, I decided since I was a criminal defense attorney, I should probably educate myself some more and read this book. My only point is that regardless of how you feel about Ms. Schular, her defense, or her conviction, you should read this book whether you are a criminal defense attorney or not. It was fascinating, and here's a little sneak peek from the author himself, Mr. Jon Ronson.

In totally unrelated and yet still interesting news, a local Portland attorney has made a fantastic film that I have not yet seen but want to because in addition to my work in criminal defense, I also handle personal injury cases. It is called Hot Coffee and it's a documentary about that famous McDonald's coffee case and the bigger picture of the ongoing debate about tort reform. Rather than bore everyone with a lengthy discussion about the pros and cons of this issue, here's my take:

Everyone can get on their soap box and talk about tort reform all they want. The bottom line is this: if they, or a loved one of theirs, was seriously injured or harmed by someone else (negligently or otherwise), you better believe that person would be none too happy about their damages being capped or their case being barred from court or a jury of their peers because of tort reform. That, to me, is the whole issue and kills any arguments in favor of so-called tort reform. Its analagous to the pro-lifers who, when faced with an unwanted pregnancy of their own, or of a loved one, would privately advocate for an abortion.

Anyway, this Portland attorney, Susan Saladoff, was recently on The Colbert Report, and, in my opinion, did an excellent job. See that here, and see the movie!

Finally, in somewhat related news, another Portland attorney got a record setting verdict against the State of Oregon for abuse suffered by a young boy while in the foster child system. Again, I cannot claim I know much about the facts and the tort reformers may say this is terrible for our financially floundering state, but, while all that money won't change what happened to that little boy, it sure could help and I'm not about to say that after all he's been through (and will have to go through in the future), he doesn't deserve it.

Amanda Knox FREED!

Many of us have followed the Amanda Knox case for years.  It's hard to believe that in this day and age, a factually innocent defendant could still be convicted of murder and spend years of her life incarcerated.

Knox is one of the lucky ones.  Her conviction was overturned and she's going home to Seattle after serving four years in prison for a crime she did not commit.

I guess you could say that the West Memphis Three, who spent nearly two decades in prison for crimes they did not commit are lucky as well - they didn't die in prison.  Sadly, the prosecutors  required the three to plead guilty in exchange for their freedom - despite the fact that the evidence overwhelmingly proved that they had nothing to do with these crimes.

Troy Davis, on the other hand:  not so lucky.  Despite countless witnesses recanting their testimony. Despite, weak and shoddy evidence, the state of Georgia executed him anyway.  138 innocent people have been released from death row.     Unfortunately Troy Davis was not one of them.

So my question for you:  if you execute an innocent person.  If you insist on carrying out an execution despite there being solid evidence supporting innocence.  If you are too arrogant to admit that you made a mistake and someone is put to death because of that arrogance, shouldn't you be charged with murder?

Congratulations to Amanda Knox and her family.  Congratulations to the West Memphis Three.

Condolences to the Davis Family.

Get This Camera Phone Thing Figured the EFF Out!!

Saw this article (and the video above) in follow-up to a previous post. We have a recurring issue here that the courts (or the legislature) needs to figure out fast.

The frequency in which these events are occurring are getting a bit out of hand. People are being charged or threatened with charges (or their phones are being confiscated) at an alarming rate. And, no one seems to know what the correct and current state of the law is at the local, state or federal level.

As discussed in our previous post and in the article linked above, federal or state wire-tapping laws prevent the surreptitious recording of someone's voice without their permission. Clearly, in my humble opinion as an experienced criminal defense attorney, these laws were aimed at preventing people from recording private conversations without permission - a well-intentioned law now, as always happens, being abused. Again, as an attorney who practices both civil and criminal law, I am not sure how one could interpret these wire-tapping laws to mean that video or audio taken in public like the one above (or many like it) fall within what the legislature intended when it passed these laws - how could it?

And, what's worse, is that police - who work for US mind you, the citizens who pay taxes and hence their salaries, claim the authority to stop us from videoing or recording public displays of police activity under the auspices of these wire-tapping laws. This is just wrong (in my opinion, some may differ - do you?). If you watch the video above, near the end, you'll hear an officer say that very thing. And, if you read this blog post and accompanying comments, you'll see that no one who's reporting these events (ore reading the articles) really seems to know what is legal and what is not.

As the article linked above explains, the ACLU has now stepped in to file suit (or threaten as much) against the police for doing just this. A private citizen recorded this event at this year's Preakness Stakes near Baltimore, MD. This is, obviously, someone else's video of the same event. The police confiscated his camera and deleted ALL his videos including video of things he had done with his children that he can never recover. Not the world's biggest crime, but as a parent of two youngsters, I would be big time pissed if this happened to me. These are recordings of things his children did that he can never get back.

My understanding of the law is that it would be illegal to record someone when they have an "expectation of privacy". So, who can claim an expectation of privacy when doing anything (short of dropping some kids off at the pool in the bathroom) at the effing Preakness!! Especially the police who say that they have an expectation of privacy as they beat the $*!#@ out of some sloppy drunk girl who (allegedly) took a swing at one of them. Does this pass the smell test? Or, as we used to say in law school, can you make that argument in the mirror without laughing? If not, I think you know what that means....

Please fix this! While I am all for recording everything (in public, mind you), especially as a criminal defense attorney, if the legislature wants to outlaw this, then do it!!! Take everyone's camera phones away. Otherwise, we need to realize that applying these laws to these circumstances is poppycock (yes, I did just use that word).

Have a great weekend everyone - and please, if you see me doing something ridiculous, please do not record it. However, if that's me getting pummeled by the authorities, video away! I know some great lawyers to help both of us.

We miss Big Love as much as the next guy...

But this dude is no Bill Henrickson.  The problem with misogynistic, abusive religious zealots who convince their followers that they are a prophet, is that they ruin it for the average middle-America hardware store entrepreneur  who just has a lot of love to give.  


Mr. Jeffs, we wish you the best in general population.  Please don't drop the soap. 

Cellphone Technology Continues to Change the World

Saw this article today. As a criminal defense lawyer, this is exceptionally upsetting and yet brings me some optimism too.

I have practiced criminal defense representing the accused for a good part of my ten years practicing law. So, I have seen first hand the slimy tactics and abuse of power the police practice on a daily basis. And, way too often, those practices are then passively endorsed when the agencies responsible for policing the police - be it the local district attorney or some police watchdog or internal affairs agency - allow those practices to continue without penalty, rebuke, sanction, or reprimand. This is one of the most offensive things to occur in a civilized society where the police are charged with protecting and serving the constituency, not taking their tax dollars and abusing them.

What occurred in this case is akin to what we sit back and judge those dictatorships and theocracies in the Middle East and elsewhere for doing to their people. I'm here to say, as an experienced criminal defense attorney in the alleged most free country in the world, this shit is happening right here in our beloved country and its jacked up, really jacked up!

To explain if you don't want to click on the above link and read it for yourself - Chicago police responded to a routine domestic violence call. Per normal routine and policy, the officers separated the occupants to interview them. The officers brought the female into her bedroom where she alleges she was groped and sexually assaulted by the officers. (This, btw, seems to be an ongoing problem with the Chicago PD - see here.)

The issue here is that when the victim of the police-groping went to file a complaint with the Chicago police watchdog organization, she was (I'll keep my criminal defense attorney hat on here and say, allegedly) discouraged from doing so. Unhappy with the way she was being treated during this internal affairs meeting, the woman began recording her conversation with the agency representatives.

So, get to the point, right? Well, the point is not what happened to the alleged domestic violence charge, or the allegations of sexual assault against the officers - the point is that this woman is now being prosecuted for taping or attempting to tape this conversation without the consent of the other parties. And, the real fucked up part of this equation is that she's facing the same amount of prison time for taping a conversation as the officers alleged to have sexually assaulted some women. In other words, the offense of recording an on-duty police officer is a Class 1 felony in Illinois - the same degree as rape. Are you shitting me!? Gotta love those legislatures!

In related news, this article linked to this article. Here, our beloved officers of the law opened fire on passengers in a vehicle for, as of now, unknown reasons. As the officers approached the vehicle and drew their weapons, a bystander in his own vehicle began filming them with his cellphone. After the shots were fired, the officers pointed their guns at the innocent bystander ordering him out of his vehicle. They threw him to the ground and snatched his cellphone from him. They then destroyed the cellphone.

After taking the filmer to the station, taking his photo and interrogating him, they released him. What they didn't know is before they took and destroyed the phone, the guy removed the memory card and hid it. He showed the video to the local newspaper - it has not yet been released. Four other innocent bystanders were shot in the original hail of bullets.

Without sounding repetitive, as a criminal defense attorney, my colleagues and I have often wondered why all police interactions, especially interrogations, aren't filmed or otherwise recorded. This is no argument about the ability to do this - or the cost as the technology to do this is certainly readily available and well within the mammoth enforcement budgets most police departments have....so, why not, right? There is some reason the police don't want to record these interrogations, right? Anyone out there posit a guess as to why? From my previous blog post, found here, we know that a huge percentage of alleged confessions are later found to be false, right? So.....what do you think?

Protect and serve, eh?

Edie, you are a professional and a mother. How could you?

How could I religiously watch The Real Housewives of New Jersey? I’m a feminist. I’m a criminal defense attorney. I typically cringe at television shows that depict women as frail, dumb, boy-crazy, inept, greedy or shallow. Such women are pathetic. Such women have TERRIBLE taste. They literally get into fistfights in front of their young children. WTF, Edie? WTF?

I can’t get enough of this show.

Perhaps it’s the defense attorney in me. Throughout each episode, I find myself thinking about the various crimes these women could be charged with and convicted of: child endangerment, DUI,  fraud (declaring bankruptcy while driving a Mercedes, keeping a hair and makeup person on staff, living in a 10,000-square foot god-awful mcmansion), assault and harassment, to name a few.

Perhaps it’s the fact that the show confirms my theory that mothers who find ways to talk about their incredible mothering skills are in fact the very worst mothers. Am I really the only one who hates Caroline?

Perhaps it’s the fact that I feel better about myself as a mother whenever I tune in to this show.

Perhaps it’s that age-old quote “you can’t buy taste.”

Perhaps it’s the adorableness of gay, Jewish, Andy Cohen attempting to “moderate” these nutjobs.

Or perhaps it’s simply the opportunity to dish with my dear friend, the incomparable Scented Glossy. 

Or perhaps it’s just about my hatred for Caroline and my love for Jacqueline (the only semi-normal woman in the bunch).

Regardless, I profess to you all: This professional, educated, mother loves me some Real Housewives of New Jersey. 

See you at the reunion show!

Police Brutality

Saw this article in the news today. For most people who read this story and see the video, it is pretty shocking. Unfortunately for us criminal defense attorneys, it is an all too familiar story. Most likely when this girl ended up in custody and was appointed or retained a lawyer, she will tell them about the excessive force used by the officer. But, most cases do not have video evidence of it like this one. In those cases, a criminal defense attorney like myself can do little with that information unless there are independent eye-witnesses or medical reports detailing the abuse.

Otherwise, at trial we can cross-examine the officers about what occurred that day but I have a funny feeling that this push, will not be part of the officers' testimony, nor will it be included in their police reports about the incident. More often than not, these incidents occur without recourse, retribution, and worst of all, do not even make it into evidence in the defendant's trial, if they are charged.

Now, if one reads the entire story, they will find this girl was not some poor innocent teen attacked without reason. In fact, she is pretty unsavory herself. The officers arrived at the scene that day because the teen was being kicked out of school for being intoxicated and serving alcohol to other students. And, other parts of the video show her wrestling with her poor mother on the ground and even punching her mom in the head and face a few times. But, the story seems to indicate that this all occurred before the officers arrived and the video clearly shows a teenager calmly walking away from the scene.

Was she being insubordinate? Probably. Obnoxious? I would believe it. Had she done something wrong? I would certainly believe that and the video clearly shows it. Does any of that justify what the officer did to her? I wonder if opinions on that last question would differ? If so, please watch the video again. By the time the officers arrive (around the 1:30 mark), the scuffle between daughter and mother is over and she is walking away. Most likely the officer told the girl to stop and she did not listen. Having said ALL that (thanks again, Jerry Seinfeld), does any of that justify the tactic the officer used?

Apparently the "technique" is called an "impact push" which means that the officer not only used all his force to push this teenage girl down, but he was trained in how to do this. These criminal defense attorneys, have no objection to the technique used properly and in the appropriate situation, but was this the type of incident envisioned for its use? I think not; and I bet my partner would agree.

The other interesting part of this story is that the video was uploaded to You Tube in March - we don't even know when it was shot or when this incident occurred but it was at least a month ago. That begs the question, why are we just finding out about this now? Publicly at least, the local police department claims they were unaware of the situation. So, going back to my original point above, do you think this girl told anyone what happened? And, did anyone outside of the witnesses themselves believe her? Was anyone taking any action on her behalf or against the officer himself before the video became today's media sensation?

Finally, the current story is that the officer was placed on paid leave? This, I cannot understand but is always what occurs in this type of incident. In other words, Joe Q. Officer, you acted completely out of line and used unnecessary and excessive force on a teenage girl - how about a paid vacation?!? This is like suspending the truant student - does this make any sense?

Hopefully, this girl now has an attorney working for her. Some personal injury or civil rights lawyer should have a field day with this one now that the video surfaced and the media is involved. The problem is that this officer is going to end up with a slap on the wrist and will be back to his policing at his, or some other department, real soon. And, if not, he'll get a job as a security officer at a mall which leads me to my last piece of unfortunate but true advice: stay away from the cops at all costs and avoid other security too as best you can unless you absolutely need help (and even then watch out). Simply put, if you feel the need to act like an asshole, do it at home and if anyone else is home, make sure they don't have a phone or won't call the cops on you. If they do, this guy might be coming to "help". This might seem extreme but I can tell you, as criminal defense and personal injury lawyers, we have seen cases upon cases of people getting hurt or mistreated by those authorities who were supposed to be there to help. It's hell out there people...

WTF?

Our firm is located in Portland, Oregon, a.k.a., Disneyland for the most liberal of liberals.  Fiscally conservative Portlanders are like the gay and lesbian Catholicsof the 1950s, i.e., in the closet, staying in the closet, and never coming out of the closet.

So you can only imagine that when the shit hit the fan in Wisconsin a few weeks ago (i.e., Governor Scott Walker’s proposal to limit/eradicategovernment employee’s ability to collectively bargain in an effort to reducebenefits to state employees), Portland’s fiscal conservatives kept their mouths shut. 

Nothing will make you a social pariah in Portland faster than expressing your views that, perhaps, benefits provided to government employees are ridiculous and part of the reason so many states are bankrupt.

How, you ask, does this have anything to do with today’s blog topic? Um…well…Oh! I remember my point:

I don’t know anyone on this planet, even the most fiscallyconservative, who won’t be appalled by today’s U.S. Supreme Court decisionoverturning a $14 million dollar judgment awarded to a wrongfullyconvicted/incarcerated man.

Not only was he innocent, the district attorney who prosecuted and convicted him was aware of DNA evidence proving his innocence, yet failed to provide that information to the defense – and deliberately withheld exculpatory evidence.

Honestly, I think $14 million is a steal. Because let’s be honest, if this wrongfully convicted man had been white, rich, and connected, the judgment would have been more like $14 billion and would not have been overturned. 

Another Wrongfully Convicted Person Freed

I saw this article in the Washington Post the other day. As a criminal defense attorney, I continue to be amazed by these stories on several levels.

First, the level of technology, science, and sophistication that our society has reached continues to rise almost daily. And yet, we still have (most likely) thousands, if not more, prisoners serving extensive sentences for crimes they did not commit. How can this be? How is our criminal justice system still so flawed?

Having said that, the incredible work of the many innocence projects around the nation also amazes me. If you don't already know, the innocence project is using today's technology, usually DNA evidence, to indisputably prove that many of these convicted people are innocent and obtain their release from prison after years and years of incarceration. The toll this takes on the individual is impossible to understand unless you have lived through this yourself, or watched a loved one endure it.

However, there is also a toll on society. The costs of incarcerating these individuals in astronomical. And, that is only the beginning because when these innocent victims of our system are freed - many have rights of actions against the municipalities that put them there costing our taxpayers even more money. Or, several states have passed legislation that sets the automatic compensation due to these wrongfully convicted people. Not to be callous to the individual stories, but the taxpayers are double-paying first to incarcerate and then after they are freed! Doesn't this warrant putting a little more effort into getting it right the first time simply for economic reasons? Especially in this day and age of shrinking budgets and states on the verge of bankruptcy.

The other amazing part is that many of these individuals were convicted based on one of two things: a confession or eye-witness testimony. What we are quickly (though it should be quicker) learning is that these two seemingly sure-fire and reliable kinds of evidence used to gain convictions are actually two of the most-flawed as evidenced by what DNA is showing us. This, I believe, is the hardest pill to swallow for lay people or the uninformed. As a criminal defense attorney who has seen this first-hand and argued with these uninformed individuals, the idea that false confessions and eyewitness misidentification not only exist but are rampant is a very hard idea to accept intellectually. I do not mean to demean the uninformed, but only wish to point out the importance of educating the public on a more widespread level.

Several films have been made illustrating these issues, both fiction and documentary. These are always amazing and triumphant stories, but are full of tragedy as well. And, for every one film or innocent person exonerated, how many countless ones still remain in custody with no hope and at exorbitant societal costs?

While I know our system will never be perfect, and it beats the hell out of a lot of other societys', is it wrong to expect a little more? We certainly don't think so - do you?

Teen Mom 2

Well, we first discussed this show in a previous post. Since then, a lot has happened. Without getting into all the nitty gritty details, suffice it to say that MTV returned with its second installment of this disturbing reality TV hit.

To remind you, the show follows a handful of teenage moms as they navigate the difficulties of real life with the added bonus of caring for a child after an unplanned teenage pregnancy. The show is actually a spin off of 16 and Pregnant.

This season, just like last season, is a series of uncomfortable scenes showing how the added responsibility of caring for a child significantly changes the lives of these young mothers. The cynic in me wonders whether the lives of these teens would be all that normal even without the babies, but that's a discussion for another time.

What, you may ask, does this have to do with a blog about lawyers and the law? Well, the legal issues these shows manifest through the lives of these young teens are limitless.

For example, similar to Season One, we have a domestic relationship that borders on abuse. Last season, it was Amber and Gary who displayed their dysfunctional and abusive relationship for all the world to see. In our previous post, we pondered whether Amber, who appeared to be the aggressor, would be prosecuted for her abusive behavior towards her baby-daddy, Gary. Turns out, she was.

In Season One, we also witnessed the prosecution of Farrah's mother, who abused her daughter, and was arrested for hitting her and, possibly, threatening her with a knife.

This season, we have Jenelle and her mother. We have already seen several instances of what could be considered criminal harrasment, at least here in Oregon. Some of their interactions border on assault and, as a criminal defense attorney, I would not be surprised to see some district attorneys try to prosecute some of these disputes as domestic assaults.

While Jenelle's behavior towards her mother is nothing but distasteful, my opinion of her is saved by the fact that her mother seems even more awful than she. And, as we all know, the apple doesn't fall far from the tree, right? Jenelle is clearly not excelling in her role as a teen mother, however, her mother is such a terrible control freak, it is almost impossible to even witness her behavior towards her daughter and how she uses the baby as silk in her web of misery - mostly against her daughter.

Now, I'm no family lawyer - I do criminal defense and personal injury, remember? - but, Janelle's mother threatens to take her to court for custody of the baby and, in so doing, forces her to voluntarily give up temporary custody of the child. Normally, and even somewhat in this case, this is a benevolent maneuver for the welfare of the child. However, here, as we see in all the episodes since, Jenelle's mother uses the custody situation against her, and does so vindictively.

Not to be outdone, in last night's episode, Jenelle steals her mother's credit cards to take her and her deadbeat boyfriend (who is strangely likable in his supporting role though he does nothing productive for the duo), on a road trip to New Jersey to see the boyfriend's older brother. WHAT IS SHE THINKING!?!??! This maneuver is a shining example of what medical science has proven about teenagers brains not functioning properly as they have not completed their judgment determinative growth - in other words, they are unable to make appropriate decisions at this age which is only exacerbated by these dysfunctional relationships and, obviously, the additional pressure of parenting an infant or toddler.

I can tell you, as an experienced criminal defense attorney, Jenelle's behavior could easily qualify as theft here in Oregon. The show does not provide the audience with just how much she rings up in credit card charges (gas and food) for this little adventure before her mother catches wind of the game and cancels the cards so its impossible to know whether this behavior would rise to the level of a felony or simply a misdemeanor. And, any criminal defense attorney could tell you, those levels vary from state to state. But, clearly, she has stolen from her mother. What is interesting, at least to this attorney audience member, is will the local district attorney attempt to prosecute Jenelle since their entire case is laid out in living color on television. I always knew that DA's had it easier than criminal defense attorneys, but this is ridiculous.

Finally, the other legally, intriguing couple this season is Kailyn and Jo. This is any normal human's worst nightmare scenario. When the season began, we learned that Kailyn was living at Jo's house out of the charity of his parents when Kailyn (for currently unknown reasons) had nowhere else to go. Then, Jo impregnated Kailyn and after she had the baby, she remained in their house. The brutal part is that when she and Jo stopped getting along, she could not escape because to leave this house would render her (and her baby) homeless. And, Jo's poor parents who are trying to do the right thing are stuck in the middle of two teen parents who no longer like each other. This is one of the more miserable human scenarios I have ever witnessed.

The legally interesting part is during a surprising moment of generosity, Jo lends Kailyn $600 to start college. Then, last night, after Kailyn reveals that she wants no part of any relationship with Jo, she is asked to leave their house. Suddenly, Kailyn's mom who has been around in previous episodes but was extremely unsupportive for unknown reasons, now offers Kailyn a place to stay for her and her child. So, Kailyn moves out, but when she tries to recover her belongings from Jo's house, he refuses until he gets his money. The unfortunate parents are stuck in the middle of this mess of trying to support their son and their grandchild. Eventually, the cops are called.

Again, I'm not a property lawyer, but the cops presumably listen to both sides of the story and eventually send Kailyn away without her stuff claiming that Jo is allowed to hold it until he gets his money back. What do the other lawyers out there think about this? What about the non-lawyers? Discuss....