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...

Sandusky Sabotage(?)

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

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

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

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

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

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

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

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

Public Defenders

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

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

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

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

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

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

Penn State University Controversy

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

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

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

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

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

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

What say you?

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?

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

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

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

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

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