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?

The.Death.Penalty

A letter I wrote to the editor of the Oregon State Bar Magazine.  We would love to hear your thoughts on this very compelling subject. 

Why Chance It?

I write this in response to the article about the death penalty debate in Oregon (June 2012). In the interest of full disclosure, I am against the death penalty. I do not believe a civilized society should be in the business of killing its citizens.

From a pragmatic perspective, having represented hundreds of criminal defendants, I do not believe the death penalty is a deterrent. If there is a legitimate study that shows otherwise, I have never seen it.

The bottom line is this: The death penalty is an inherently flawed system that unnecessarily costs the state of Oregon billions of dollars. And when was the last time Oregon executed someone? What comes with a death sentence is the constitutionally required appellate process. And that process is very, very expensive.

We pursue death penalty convictions knowing that we really never execute anyone; and we do so fully aware that the process that comes with a death penalty sentence is incredibly expensive. I once asked a prominent district attorney, “Why does your office pursue the death penalty when you know we don’t end up executing in Oregon?” His response: “Because death row is a miserable existence.” So, given such a mindset, wouldn’t it make more sense to give people true life sentences and simply impose the same prison conditions as those on death row?

Lastly, and most importantly, in recent years this country has witnessed hundreds of death row inmates exonerated for the crimes for which they were convicted. Sadly, many of those innocent individuals were exonerated after they were executed. So why would we ever chance it? How can you tell me that some unquantifiable benefit of the death penalty outweighs the fact that at times we get it wrong?

Everyone loves to blame the lawyer

Last week the Oregon Department of Human Services agreed topay 1.5 million dollars to the heir of Jeanette Maples, a child who was brutallyand savagely starved and tortured to death FOR YEARS by her mother andstep-father. 

The mother is currently on Oregon’s death row (while I’m still 100% anti-death penalty, Mother Maples certainly makes me have a greater appreciation for those who support it).  The step-father is serving 25-years. 

What this child endured is unimaginable.  Like most parents, when my child scrapes herknee or is sick with the flu my heart hurts.  It is physically, intellectually, and emotionally impossible for me to comprehend how a mother could do this to her child. 

As a citizen, the fact that DHS received repeated reportsof abuse yet failed to intervene is shocking; stunning; unfathomable. 

As a lawyer, the fact that DHS did nothing is truly mind blowing.  Why? Because I can’t count the number of cases I’ve handled where DHS has immediately intervened despite having:  1. little or no evidence supporting the allegations; 2. obvious improper motivation by the accuser (i.e. wronged dumped spouse trying to get back at ex).  

In these cases, DHS holds incredible amount of power and autonomy.  It takes months if not years for these parents to be reunited with their children and often that happens only after the parents agree to do whatever DHS asks.  Once DHS opens a case? Well….good luck. 

My point:  HOW DID THEY GET IT SO WRONG IN THIS CASE?  The step-grandmother reported abuse against her own son!  Mandatory reporters reported abuse! This girl was tortured for years.  She was starved. She was murdered.  And DHS missed it? 

And all I keep hearing about is the outcry that the attorney for the estate is going to receive a third of the settlement.

“No one should profit from this horrible crime.”

“That lawyer should donate all the money he receives to an organization that prevents child abuse.”

“Greedy lawyer”

Are you kidding me?  This lawyer is the reason DHS is being held accountable.  This lawyer’s advocacy will prevent future instances of child abuses – this lawsuit and the resulting settlement will force DHS to change things. 

This lawyer is being compensated for the hundreds of hours of time he put in to this case.

Like the lawyer in Jeanette Maple’s case, my firm takes cases on contingency.  What this means:  if we recover a settlement or prevail at trial we get a percentage of the recovery. If we lose, we get nothing.  Doesn’t matter how many hours we invested in case.  Doesn’t matter howmany nights we were away from our families. We get nothing if our client loses. 

Don’t you think it’s only fair that we get compensated if our client wins? 

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....

Ah, politics...

A friend pointed out this story (ABC News video) to me today. Apparently, one of the knuckleheads (see, Rick Santorum) running for the GOP nomination who, like many if not all of them, is pro-tort reform might not put his money where his mouth is. But, this post isn't about being a Dem or a Repub. It's about tort reform and hypocrisy. And, from this attorney's point of view, tort reform is not only unconstitutional, it's stupid.

The story is that a few years ago Santorum's wife was injured by her chiropractor's negligent treatment resulting in back surgery. Well, that was what she alleged anyway. And, guess what? She filed a lawsuit against that doctor! And, guess what else?! She sued that doctor for $500,000! (The jury awarded her $350,000 so one might say her claim was valid - at least the jury believed it.) When confronted by ABC news, Santorum whined that not all that $350,000 was for "pain and suffering" - what all those tort reformers hate. Yeah, thanks Rick, your wife had $18,000 in medical bills. You're right, not ALL of that was for pain and suffering. Rick, even I haven't filed a lawsuit asking for $500,000 with only $18,000 in medical bills.

The reason that this is funny is that Mr. Santorum is going around the country touting tort reform and demanding a $250,000 cap on cases like this - or 1/2 of what his wife sued this chiropractor for...and that was 1999 dollars! In fact, this website says $500,000 then is more like somewhere between $640,000 and $777,000 in today's money. Whoa!!

Now, this might be an oversimplification....in fact, I'm sure it is but that doesn't change the fact that by almost any definition this is hypocrisy, plain and simple. As someone who works in this field, I can tell you it's ridiculous for him to take this position under these circumstances.

And isn't that our politicians favorite trait these days, hypocrisy? Is there any candidate from any party that isn't?!? If we could just find one.....(cue dreamy music)

This situation smacks of those politicians who are staunchly pro-life. (Oh, hello again Rick.) These people are unyielding in their views - there is no talking to them, right? I mean under no circumstances can abortion be justified, right? And then, guess what? Their wife, daughter, mother, aunt, good friend, ex, whomever becomes saddled with an unwanted pregnancy for whatever reason and guess what they're doing behind closed doors? Are they are having a discussion about having an abortion - you better believe it! Effing hypocrites...you make our world so much more difficult!!

Really, the point is that just like the abortion situation, and tort reform, and frying Santorum for his hypocrisy because his wife sued a chiropractor for lots of money - they are all oversimplifications. Life is just too complicated - it doesn't fit neatly into a scheme, or a box. The number of scenarios or factual nuances in anyone's story is endless and that's what our jury system is for - to have someone arbitrate these disputes who is not constrained by anything but the current state of the law as described to them by the court. 12 members of your community will make that final decision, for better or for worse, right or wrong. It's not perfect, in fact it's extremely flawed and,...that's the point. Well, at least that's what this attorney thinks.

Same reason that sentencing guidelines do not work or make sense. Every person's situation is different. If someone is convicted, a judge needs to have discretion to determine that individual's appropriate sentence. Again, it's not perfect. Perfection is just not attainable in our complicated society and better to let the chips fall where they may then have some legislature, totally removed from the situation, make some decision based on what a lobbyist sold them on? Over the trial judge who just heard all the facts about what happened?! Does that make a shred of sense?!?!

You better believe when those legislators' sons, daughters, nephews, fathers, wives, neighbors, what-have-you, are convicted of some crime, they'll be wishing there weren't sentencing guidelines determining their sentence, especially if there's a nasty mandatory minimum. They'll be the first one in front of the judge explaining why in this situation, just this once, this situation is different and they should get different treatment than all those other awful criminals out there.

Well, I for one, as a criminal defense attorney as well as someone who represents those injured by others negligence, I say, screw you!! Keep your hypocritical views out of my life and leave the system alone already. Sure a tweak here or there is fine, but stop trying to get rid of the jury system in favor of the flavor of the month.

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....

WILL THERE BE RIOTS IN DOWNTOWN PORTLAND?

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

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

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

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

 And the list goes on.

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

I get it. 

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

So here are my questions:

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

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

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

Penn State University Controversy

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

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

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

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

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

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

What say you?

Stacy Schular and Insanity

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

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

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

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

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

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

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

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

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

Amanda Knox FREED!

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

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

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

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

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

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

Condolences to the Davis Family.

Get This Camera Phone Thing Figured the EFF Out!!

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

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

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

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

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

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

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

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

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

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


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

Cellphone Technology Continues to Change the World

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

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

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

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

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

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

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

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

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

Protect and serve, eh?

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

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

I can’t get enough of this show.

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

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

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

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

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

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

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

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

See you at the reunion show!

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.