Let's talk about sex, baby

Well sort of.  My good friend and attorney mentor, Ryan Scott, gives us the break down on a fascinating case being decided by the Oregon Supreme Court tomorrow.  

In a nutshell, this case exemplifies why our justice system is at times, INSANE!  Or as my people like to say:  Mishuganah!

Bojack Attacks Art Tax

Our esteemed colleague, fellow attorney, and friend, Jack Bogdanski has filed a lawsuit against the City of Portland over the recently enacted art tax.  The lawsuit, filed in Oregon Tax Court, claims that the tax violates Oregon's Constitutional (see, Article IX) ban against a head or poll tax.  Read more about the lawsuit here, or here, or here.  Read Mr. Bogdanski's fantastic blog here.

While the Mayor's office has remained mum on the lawsuit thus far, they apparently have been working to amend the tax to address some of the same issues raised by the lawsuit.  While another esteemed colleague, fellow lawyer, and excellent Judge, The Honorable John Wittmayer, already ruled on a similar argument last summer, we here at RG, LLP have little doubt that Bojack knows what he's talking about.  (Though we also must admit that Judge Wittmayer's smart as whip, too.)  All I can say is if it wasn't for Jack, I never would have passed the tax portion of the bar exam.  By the way, thanks for that Jack, not sure I ever got the opportunity to properly thank you for that one. 

As criminal defense, personal injury, and employment trial lawyers, we try to stay away from the tax stuff, but good luck!  If it violates the Oregon Constitution, it should be fixed.  Let's hope that between the mayor's office, the tax court, and whomever else is supposed to be in charge, we can get this right.

Suspect Drops Jailhouse ID While Fleeing from Bank Heist

I heard this story over and over on the news this morning.  This is one of those times, as a criminal defense attorney, that you wished your clients were a little smarter.  In all honesty, this guy probably has a serious addiction or mental health problem and expecting people similarly afflicted to have cogent, rational thoughts is even more ridiculous than his actual behavior.  Or, is he just that stupid?

What do you think?

Interesting Legislative Issue

An interesting legislative debate is underway concerning medical billing, health care, and patient safety issues. I cannot claim to be knowledgeable enough about the situation to intelligently comment but here are some thoughts from someone who is:

http://www.davidsugerman.com/2012/02/08/memo-to-the-oregon-legislature-healthcare-transformation-starts-with-patient-safety/

Please click, read, and tell us what you think.

Thanks,
The RG Blog Team

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.

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....

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.

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?

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

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?

Women Sports Journalists in the Men's Locker Room





Before the “Jets' locker room incident”, Ines Sainz was not a familiar name to many of us.  Now, she seems to be the #1 topic of conversation around the water cooler.

For those of you hiding underneath a rock for the past week, Ines Sainz is a Mexican journalist who was recently the target of inappropriate and suggestive comments made by some New York Jets' football players while waiting to interview Jets' quarterback Mark Sanchez.  According to reports, while Sainz was waiting for the interview, several Jets players made inappropriate and suggestive comments to her.  Another journalist, who was present but not the target of the comments, complained about the behavior.  Since the complaint, the Jets have apologized, and just this week the NFL issued a memo with the following statement:  "Women are a common part of the sports media…By law, women must be granted the same rights to perform their jobs as men.  Please remember that women reporters are professionals and should be treated as such."  

Professional athletes and sports journalists alike have felt the need to comment on the incident.  Washington Redskins' running back Clinton Portis shared his view on air by saying,  "I think you put women reporters in the locker room in position to see guys walking around naked, and you sit in the locker room with 53 guys, and all of the sudden you see a nice woman in the locker room. I think men are going to tend to turn and look and want to say something to that woman."  Really, Clinton???     

It's no shocker that this recent incident has fueled many discussions, including debates on what constitutes sexual harassment, whether woman journalists should be allowed in men’s locker rooms, and whether male journalists are allowed in the women's locker room.  All very interesting issues that undoubtedly foster strong views.  DRG is interested in hearing your position on one or all of these topics.  We are looking for both male and female perspectives.  So, please do share! 

A twenty-five year prison sentence for stealing food?

For those of you who think only hardened, violent criminals are subjected to the harsh mandatory minimum sentences enforced across the country (including Oregon), let us introduce you to Gregory Taylor, a homeless, hungry Californian sentenced to 25 years in prison for trying to break into a church kitchen to find something to eat.

Thanks to the work of Stanford University law students and the law school’s “three strikes project,” a Superior Court judge amended Gregory Taylor's sentence to his eight years already served. The 47-year-old, who was sentenced in 1997 to 25 years to life, will be a free man in a few days.

Due to two prior robbery convictions in the 1980s (one for stealing a purse containing $10 and the other for trying to rob a man on the street—neither of which involved the use of a weapon, and neither of his victims was injured), Taylor was convicted under California’s notorious three-strikes law.

While Oregon’s mandatory minimum statute is not exactly the same as California’s, the result is the same. In Oregon, for certain offenses, the circumstances of the case are irrelevant and judges have no discretion with regard to sentencing. Regardless of the individual’s background, age, criminal history (or lack thereof), or the role he or she played during the criminal act, if convicted of one of the specified crimes, that person will be sentenced to prison for a very long time. If the District Attorney is unwilling to reduce the charge, even the best Portland criminal attorney will have few strategic options if their client is convicted.

Stated simply, the mandatory minimum-sentence requirement does not work. It sends homeless people to prison for years for trying to steal food. It prohibits judges from using their training, experience, knowledge and common sense when sentencing defendants.

Ask yourself why we should have judges if they’re not allowed to make the decisions that would best serve our communities?