Why We Hate Arbitrary Caps On Damages

Saw this article today about the very sad story of a little boy who suffered (and continues to suffer) due to the admitted negligence of his treating doctors and facility at which he was treated.  As a trial attorneys who represents those injured because of others' negligence, we see and hear about these cases all the time - maybe not on such a traumatic level but people are damaged by others' negligence on regular basis and, I believe, we as a society have decided that those who are injured deserve to be compensated for their damages.

Listen, I understand the plight of the insurers and treating doctors but there has to be some other way to solve this problem.  It is clear that statistics dispel the notion that "frivolous lawsuits are ruining the system" as the propaganda that it is - asserted by business and insurance company interests who seek to maximize profits over justice for individuals legitimately harmed by someone else's mistakes.

And, even if I'm completely wrong about the above, i.e., frivolous lawsuits are ruining something/anything - does limiting the caps on damages for those that really, honestly deserve and need it justify the stated goal?  I think of it more like this:  the American criminal justice system stands (or at least is supposed to stand) for the proposition that it is better to have 100 criminals go free than to convict one innocent person.  (Boy, as a criminal defense attorney, I sure wish it really worked that way; but, I digress....hey, if you need a criminal defense or personal injury attorney, come see us here!)

Extrapolating that to this scenario, this is how I see it - better that we have to deal with 100 frivolous lawsuits and their associated headaches than to have THIS happen to even one family.  Before I'm willing to hear ANYONE's allegedly legitimate economical arguments in favor of caps on damages for medical malpractice (or anything for that matter), I want ONE FRIGGIN' PERSON to honestly tell me that if they found themselves in the position that this family found themselves in which, for those who don't want to click on the link to the story, let me explain:

a jury, presumably fairly chosen by attorneys representing both sides; attorneys hired by the parties presumably because those parties felt these attorneys were qualified for the task at hand; these attorneys presented this case to this jury.  The jury, for whatever reason (again, I think only fair to assume that it was for the right reason), determined that $12 million dollars was fair compensation for what happened. 

Regardless, because some pinhead, paper-pushing legislator who had nothing to do with any of this (or more likely the lobbyist(s) who had those legislators in their hip pocket(s)) arbitrarily decided $3 million dollars was the most a person can get NO MATTER WHAT HAPPENS, then this family gets $3 million and not a penny more.  Of course, that is the case, as I said, no matter what happens including in this case where this family has already paid $2.5 million in medical bills and still owes much more, not to mention the ongoing and future care this kid will need.....how can we, as human beings, support this result?!?  DOES THIS MAKE ANY EFFING SENSE!?

Hit me with your thoughts, support, critiques, criticisms, what have you...but, trust me, no matter what anyone says, if this was them, their child, their relative, their friend, they'd be screaming bloody murder when they learned that they can only have 1/4 of what a jury awarded them because of some arbitrary number picked by a legislator years before having nothing to do with their case...OY!

Drug Epidemic(?)

Saw an interesting article in yesterday's paper (see, here). Essentially, a local Multnomah County DA has proposed a new bill to the Oregon legislature to drastically alter drug prosecution laws - at least in regards to heroin. As a criminal defense attorney, this is piqued my curiosity.

Now, I haven't read the actual bill but the article says the proposal would amend the definition of "mentally ill" to include heroin addicts and allow a hearing to "commit" those addicts to treatment instead of the standard penalties for possession.

First, I applaud the idea of someone on the prosecution side of things thinking outside the box. This country needs to come to the sobering (yes, pun intended) reality that the current "War on Drugs" is an unmitigated disaster, and total failure. Simply put, it is not working and all the research and statistics prove that. So, on that end, bravo Mr. Prosecutor.

Having said that (my favorite phrase courtesy of Jerry Seinfeld and Larry David), this plan won't work for several reasons. First, as a criminal defense attorney, my experience is that there simply is not enough treatment beds or facilities. I have had numerous clients desperately wanting to get into inpatient treatment spending months in jail or prison waiting for an opening. So, unless the bill is going to fund new facilities, we simply do not have the room for these "commitments". The article says that the bill would pay for the treatment with money currently used for incarceration but it doesn't explain how or if enough money would be funneled from incarceration costs to treatment costs.

Second, and this is simply my personal and anecdotal experience, drug addicts often won't stick with a treatment plan until they are truly ready to quit - and that is a personal issue the timing of which cannot be measured in statistics or attacked with a broad brush or macro-analysis.

Further, my other problem with this plan is the terms. The article says that anyone with two drug possession convictions in the last five years would (or could, is this a decision left solely up to the individual prosecutor?) be subject to the new law. Listen, I'm no heroin addict, nor have I used heroin, but we need to have some serious discussions about the difference between an addict and a recreational user. I know there's little question about the powerful affects of this drug and, no doubt, anyone using is at-risk for an overdose - but two times in five years! To me, that doesn't sound like someone knocking on death's door. The real desperate junkies must have more contact with the criminal justice system than that. When you're using on a somewhat regular or daily basis, it's simply unavoidable.

Just like with so many other things, the system would take a broad-brush approach with this new law, rope way more people into its purview than is appropriate, and then miserably fail to deliver as all these people "committed" to treatment would be sitting around (in jail?) waiting to get into treatment without access - sound familiar? It does to me in my experience with the criminal justice system. Can't we take more pragmatic approaches to systemic changes and actually accomplish something?

Obviously, this whole discussion eschews all the significant constitutional and legal issues that would abound in forcing people into treatment but the article, and my former colleague, addressed those and I agree with his sentiments. But, maybe, this is the start of a discussion of moving drug addiction from the criminal justice system to the public health and mental health systems which is, in my humble opinion, a step in the right direction. However, we have got to properly fund those areas of society before we even begin to make that transition - moving some of the prosecution and incarceration funding in that direction would be a start. And, for all those who think taking money away from prosecution, enforcement, and incarceration is a terrible idea - do some research. The crime statistics over the last twenty years show a steep and steady decline. Any recent crime and drug epidemic discussions (at least on a macro-level) are mostly the products of political maneuvering and propaganda.

Finally, and most telling to me, is the statistic buried in the last line of the article. Of course, Mr. Crusading Prosecutor probably failed to mention this (and it certainly seems to fly in the face of the "problem" presented at the article's outset, i.e., the "epidemic of heroin overdose deaths") but the Oregon state medical examiner reports show that heroin-related deaths acutally dropped from 2009 to 2010 (the numbers for 2011 are not available yet)...hmmm....interesting.

Holy S*&#!!!

Stumbled across this story yesterday. And, I have no idea what to say about this besides it doesn't really reaffirm my belief in humanity.

The story is that, apparently, this guy got arrested for driving under the influence and then proceeded to spend two years in solitary confinement without so much as appearing before a judge let alone having a trial on the charges. Now, as an experienced criminal defense attorney, it is baffling to me how this could happen. There were a couple of factors that appear to have complicated his case but nothing that explains this mistreatment.

First, he was apparently arrested in what was allegedly a stolen car. But, the article says, he borrowed the car from a friend. So, his friend lent him a stolen car or it was a mistake by the police? Not sure. Unfortunately, the story leaves out a lot of details that I would like to know. Maybe they are things only an experienced criminal defense attorney would ask, but things I would like to know anyway.

Another thing was that he was apparently not well mentally upon his arrest. He was placed in a padded cell for a few days, and then transferred to solitary. Again, my experience tells me that plenty of mental ill people end up in the jail system and get, how do we say, misplaced(?) for a time...but I have never heard of anything like this....two years?! And all without having a trial or seeing a judge!

Where was his family? I want to say where was his lawyer, but if he never saw a judge, he probably never had a lawyer. See, your criminal defense attorney, usually a public defender for those in custody, are appointed when you first appear before a judge so....

The other part is who was in charge of this jail? Are you telling me that ALL (or at least a lot) of the guards working in this jail must have known something about this guy and no one did anything!? Scary....

Finally, going back to an earlier post I wrote about people wanting tort reform and/or a cap on damages - what say you about this case? Would justice be served if he got capped damages? What are two years in solitary confinement worth? Read the article before you answer that question....Apparently this jury thought it was worth $22 million. But, if his damages were capped, the county (or whomever was in charge of this mess) could just offer him the maximum and be done with it. Nothing would ever have been publicized - there's much less deterrence for someone really evil or just sick in the head to do terrible things (things that some of us may have trouble believing people would do, but look above for the unfortunate proof that some people are just awful).

As an attorney, it would be hard to advise a client to try their case when they are being offered, pre-trial, the most a jury could award. So, these cases are supposed to deter others from doing these things....sorry, it's too bad taxpayers of that jurisdiction may be paying that money (though, hopefully, the county had at least some insurance), but I don't see how the system could work any differently. Can someone explain to me what else this guy should have done in this circumstance? How is the system to be set-up to properly rectify this? (I'm talking the civil system, not criminal - clearly the criminal justice system miserably failed this guy but that's a different story.) The bottom line is this - who among us is to decide how much two years of mistreatment in solitary confinement is really worth? The founding fathers thought a jury of his peers was who....and, until I hear something better, I wholeheartedly agree.

Oh, and if you happen to get arrested for drinking and driving (or anything else for that matter), call a lawyer for god's sake! I know some good ones if you need a referral...

War on Drugs

A quick note about something I read in today's paper. It was a Leonard Pitts, Jr. editorial about this book (pictured right). Apparently the book is about how the War on Drugs has essentially become the new Jim Crow because of how it has unevenly been applied to the black population.

I have not read the book but these topics have always fascinated me - perhaps even why I became a lawyer. I studied them in college and continued studying them in law school. Now, I see the War's affects on people first-hand as a criminal defense attorney. I am not saying anything about this book - I have not even read it. But, Mr. Pitts so believes in the book and its premise that the editorial urged people to email him and he would send you the book free of charge (including shipping!). (Of course, after I emailed him, I saw his disclaimer - at the end of the month, he will draw 50 names from the emails he receives and those 50 people will get the book.) So, here's hoping I win...

The interesting part of the article was that he claimed, "Although white Americans are far and away the nation's biggest dealers and users of illegal drugs, African Americans are far and away the ones most likely to be jailed for drug crimes." While I have not seen any official statistics on that, I would not be surprised to find that this statement is backed up by the numbers. The interesting part is why...and, although there are plenty of obvious fallacies in the logic (there are many more white people for starters so it's not a proper comparison or does that make it an even stronger statement?) there is still plenty to discuss about why it is a true statement...and, what, if anything, we should do about it. As a lawyer, I have plenty of ideas about why this happens and what we should do about it...but, I'll save those for now and read the book to see what it says. But the War on Drugs is a topic that I love to debate.

In other interesting and related news, the Canadian liberal party voted to legalize marijuana. No, Canada is not legalizing marijuana; but, a bunch of people there think they should...

Oh yeah, as for winning the book....don't worry about it. I went straight to the Multnomah County Library's website and ordered it from them for free (including shipping!) - they'll email me when it arrives...(btw, my love for the Multnomah County Library could encompasses a year's worth of blog posts).

News of the Week

So, I get the Oregonian delivered to my house during the week. Sadly, I rarely get the chance to sit down and actually read the paper (yes, I have two young children) even though it doesn't take long - let's be honest folks, the Oregonian is not the most dense publication around; for me anyway...Not to be a snob but I grew up right outside Washington, D.C. in Maryland and was raised on The Washington Post so I was spoiled at a young age - something I was not aware of until I began my slow migration west starting in college.

Anyway, last night I had a chance to look at Tuesday and Wednesday's Oregonian and cover stories from each day interested me for very different reasons.

First was Tuesday's front page story. Apparently, for the FIRST TIME this year, police officers are going to be drug tested. ARE YOU EFFING KIDDING ME!?!?! Now, I guess I was out of the loop here, but cops weren't being drug tested before now? Now, as a criminal defense attorney, I have my own issues with the police, but that's a whole different subject. I am just shocked that this wasn't occurring before now. I mean I would have to guess that a majority of people I know with myriad jobs are drug tested unless they are self-employed. For example, someone I know was looking at applying for a human resources job and the job posting said that candidates and/or employees of the company would be subject to drug testing. A friggin' human resources position!! And, I know, don't forget I'm a lawyer, you don't need to explain the difference between public and private employees to me. I know, a private company can do pretty much whatever they want on this issue and that's fine.

My point is that years ago our society slid so far in the direction of paranoia about "drugs" that all these companies just said we're going to drug test everyone, even for simple desk jobs. My clients are forced to deal with this all the time. These people aren't driving school buses, operating heavy machinery, or doing anything of concern to the general public. I mean human resources?! I have always been of the mind that if someone is doing drugs enough to cause a disruption in their job, their employer should be able to tell. It can then take action and test that employee, fire them, what have you. But if the human resources person wants to smoke a little weed on their day off from work, that's not ok? Is that going to put this company in danger? Are they going to misplace someone's personnel file? Forget to update the employee handbook? Forget to change your health care decision during open enrollment? What is the danger here?

And, on the public/private side, I know someone else who works for the government - the feds mind you. He manages property that the government owns or leases for office space. It's a good gig - I think he likes it. But, he gets drug tested. I know, really important that this guy isn't smoking weed in his free time - that could be really dangerous. He could mess-up a government lease and the government might end up paying more than it needed to for something - scary right?

The point is, he's getting drug tested. And, all these years, Portland Police weren't? He's managing property for the government and getting tested, but cops don't? Do I really even need to explain why it would be more important to drug test the police more than other jobs?

The other story that caught my eye was this - more of a personal pet peeve of mine. But, finally, there's some press on this incredibly annoying and frustrating part of air travel. Thank you, NPR. Not to sound uppity, but I do a fair amount of flying and, since I had kids, I travel with them - not often by choice. For years, I have done everything in my power to ensure that when I do fly, I get to seats together with my kids. Listen, I don't want to sit with my kids. I would love a friggin' break from them. This desire was a wholly unselfish effort to appease my kids, and, even more importantly, the poor bastards that may get stuck sitting with my kids instead of me.

So, do the airlines help with this AT ALL!?! Of course not. My most recent flight, just days ago, not only did I reserve seats together when I bought the tickets over three months before our departure date, but because of my constant struggle with this I spent over an hour on the effing phone with some lady in Bangladesh the night before our flight desperately trying to confirm that we are sitting together. She assured me over and over again - "Don't worry about it, sir, you are sitting together."

So, I show up at the airport the next morning and guess what? Then, I have to argue with the ticket counter people, the people at the gate, and what do I get? They expect me to fall over myself thanking them for getting us within rows of each other. And then they tell me there's nothing else they can do - the flight is booked, I'm SOL (no, not "statute of limitations"). So, I pay them way too much for a crappy seat on this flight and I have to get on the plane and beg some stranger to switch seats with me so I can have an infinitely less enjoyable cross-country flight and sit with my annoying child who won't let me read more than two sentences in my book without asking for something!

And, the real rub about all of this? You get on the plane and the majority of people are flying alone - many don't care where they are sitting as long as it's not a middle seat, right? Wait, all these people are flying solo and the airline can't have figured a way to shuffle these people around so I can sit with my family!?!? AAAAARRRRRRGGGGHHHHH!!!!!!!! Next time I fly, I may really lose it....at least I know some good criminal defense attorneys who can help me.

The airline's solution? Pay more to sit with my kids? Good luck with that. No way am I paying more for that - let some unlucky putz sit with my kids and let the flight attendants arbitrate that one. I'll be in the back with my i-pod on full blast....

Sandusky Sabotage(?)

Let me start out by apologizing in advance for being way-dated - and by that I mean almost 30 days late - this part of this national story is less than 30 days old and it feels like an ETERNITY, in fact, I had kinda already forgot about it....as an aside, it makes blogging really effing hard b/c who can keep up with all this shit? Not with 2 kids during the holiday season....

Regardless, what I wanted to comment on is the (at least) apparent mess, Mr. Sandusky's defense is making of his case...at least from this criminal defense attorney's point of view.

Let's start out by explaining that there are 2 basic systems almost all states use in order to charge someone with a felony and remain in line with state and federal constitutions - either you have a grand jury indict someone; or, you have a preliminary hearing. Either way, its pretty easy - in fact the old story goes you can indict a ham sandwich...and, it's mostly true. A grand jury is a panel of laypeople from the community who are empaneled and then hear from the prosecutor about the evidence they have to convict someone. But 99% of the time, they only hear from the prosecutor - can you imagine? You are the "grand juror" - a cop gets up and testifies that he saw this guy, drunk and disorderly, sell some drugs, and then get in a fight and beat someone up (or down)....that's it, end of story....so, then the prosecutor says, I think we should charge this scumbag with all these crimes, blah blah blah blah blah...and that's it....end of story....so, are you going to charge him with this stuff? Of course you are, why wouldn't you? What have you heard to make you think otherwise?? NOTHING!

A preliminary hearing is similar - a prosecutor presents what they have that they think proves the crimes they want to charge. Now, it's often early on so it's not the complete picture, but it's something. And, from this defense attorney's perspective, you're not showing your hand this early, so that's what the judge hears, again, completely one-sided story....then the judge has to decide if that is enough evidence for any juror to convict you - or, if there was probable cause to charge this crime...in other words, not whether you are guilty beyond a reasonable doubt, but just that you seem guilty...if so, charges filed and the case moves forward....if not, the case is temporarily dead until more evidence can be uncovered; or, the statute of limitations runs.

As a defense attorney, you can waive either one, and agree to be charged with a felony but, more often than not, there is little reason to give up this formality and fall on your sword - since we're talking about being charged with a felony, this is a pretty jagged and ugly sword.

Bottom line, it's not hard in either case to get an indictment and charge someone with a felony. So, it's not surprising to see someone waive this hearing. Yet, at the same time, why not see what the prosecutor has?? It's a free shot at part of their case, if you will. In this case, the only reason I can think that Sandusky waived this hearing is that he (and his criminal defense lawyer) didn't want this story told again, and again, and again, by the parade of (alleged) victims and what they say Sandusky did to them when they were little boys. No one wants to hear that, least of all, Sandusky himself....he knows exactly what these guys are going to say. The only reason being that the court of public opinion has convicted this poor bastard a million times already (and from this criminal defense attorney's perspective, it appears rightfully so)....so, what I'm saying is, waiving this hearing?.....only in desperation....

Same with that weird interview he gave - to Bob Costas? Live? With almost no warning? Who knows, maybe Sandusky's attorney is a genius, but if you're doing this last minute I'll let my client talk to the world thing, maybe he shouldn't sound like a freaky pedophile who can't say he's not attracted to young boys...not a great call from the defense attorney.....all I mean is that, from an experienced criminal defense attorney's point of view, letting your client talk..AT ALL...is a huge move and one only taken when necessary..so, letting your client talk, in that situation? on national TV? ballsy...and then to have it crash and burn like it did? That's a very questionable maneuver...

So, that's the part that amazes me...this guy....he must be getting paid...a LOT! And, what I can't figure how is this - is he just stupid? Or, is he SO desperate, that it doesn't matter and he might as well try what he's trying.....we'll eventually know....maybe....

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....

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.

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.

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?

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?

We thought we'd seen everything...

Well this is certainly a first.

 

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 programming...at 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....

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?

How can the district attorney bring MORE charges than what I was arrested for?

One of the most common frustrations we hear from clients facing criminal prosecution goes something like this: “The police only arrested me for one misdemeanor. When I showed up for my arraignment, I learned that the district attorney indicted me on that misdemeanor PLUS three felonies. How can they do that?”

They can do it. And they do it.

Police officers investigate crimes, and when those police officers believe they have probable cause to do so, they arrest people for those crimes. But make no mistake about it; it is the job of the district attorney or prosecutor in the county where the alleged crime occurred to determine for which crimes, if any, the individual should be prosecuted. Often, a prosecutor will review the police reports and determine that there are additional or more severe charges to be prosecuted. On the other hand, a prosecutor may review a police report and determine that the police officer’s arrest was unwarranted or that if brought before a jury, they could not prove beyond a reasonable doubt that the defendant was guilty of such charge so they dismiss or “no complaint” the charge(s).

It is important to understand that initially the police officer holds the power: to arrest you; to take you to jail; to initiate the charges; to set the stage for prosecutors and judges to ultimately determine custody release, plea offers, and sentence. 

But you’re not done there. And you shouldn’t be surprised to show up at an initial court appearance and discover that you are facing much more than initially thought.

Sound complicated? It is. That’s why, if facing criminal prosecution, you need an experienced criminal lawyer to help you navigate the system. A seasoned defense lawyer will have a solid understanding of A) who the assigned prosecutor is; B) whether that prosecutor typically overcharges or is a reasonable person to work with in terms of plea negotiations/settlement; C) any unique or novel defenses for those particular charges (e.g., an experienced drug lawyer will be up to speed on any and all drug-offense-related constitutional defenses, and an experienced DUI lawyer will recognize the unique scientific challenges to a DUI arrest).  

Remember, an arrest or indictment does not equal game over. It’s just the beginning.

But the best criminal attorney will always be your secret weapon.

We've All Thought We've Known a Bride From Hell - Until You Meet this Bride From Hell

According to the sassy crime victim news correspondent diva, otherwise known as Nancy Grace, 23-year-old Jessica Vega pretended to have terminal cancer so she could attract sympathy from friends, relatives and strangers alike who stepped in to give her a dream wedding - FOR FREE! The rings, the wedding dress and the photos all were donated. The catering hall was heavily discounted, and the (awful) bride and her (dumb as a doornail) groom flew off to their honeymoon in Aruba with donated money, using plane tickets bought by well-wishers.

Apparently, the jig was up when Vega's rocket scientist husband, Michael O'Connell, finally realized that his long-time partner (and mother of his child) didn't appear to be ill.

According to various news sources, a criminal investigation is pending.

So our question to all you Matlock wannabes: What could she be charged with and/or convicted of?