Hindsight, etc

I had a suppression hearing this morning, my first one.  Now comes the fun part, waiting for the judge to issue his ruling.  Having never done one, I have no idea how long until it will be.

So now it’s time for second guessing myself.  What if I had asked this question, why didn’t I argue this case stronger, and on and on.  I like to win.  I know that being a defense attorney is not good for one’s batting average.  Unless you’re Gerry Spence, I would imagine over the course of their career, a lot of defense lawyers are at the Mendoza Line.  And that’s just the nature of the game.  The prosecutor has the full power of the government behind them, that can be tough to beat.  But that’s the fun of it.

However, all I can do now is play the waiting game.  No matter what I could have done, it’s too late now.  Time to look ahead, there’s always more people to help.

Adding Insult to Injury

Back in March of this year, Derek Copp, a student at Grand Valley State University in Allendale, Michigan (Go Lakers!) sold 3.3 grams of marijuana to an undercover officer working with the West Michigan Enforcement Team and became another victim in the War on Drugs.  The WEMET was one of those multi-county drug teams that we in Texas have fortunately gotten rid of.

Now the police have made their buy, they know who Copp is.  He apparently doesn’t know that this new buyer is an undercover, what would be the best way to handle this?  Now, far be it from me to second-guess the infinte wisdom of our drug warriors, but here’s what I would do.  Get an arrest warrant, park an unmarked car in the parking lot, and wait for Copp to leave for class.  No fuss, no muss, right?

But, what’s the fun in that.  The WEMET must have been watching DEA on Spike TV and saw all the fun that the DEA officers had kicking down doors in Detroit.  So instead they staged a raid on his apartment.  On March 11, 2009 at around 9:00 pm, the WEMET comes in heavy.  Even though the officers planned to go in with guns blazing, the rest of the residents in the apartment complex were not evacuated or apparently even warned.

The police do the whole nine yards, they get to have their fun.  Kick in the door and shine a bright light on the kid.  When Copp raised his hands to shield his eyes from the light, Ottawa County Sheriff’s Deputy Ryan Huizenga fired one shot, hitting Copp in the chest.  Copp was unarmed and no guns were found in the apartment.

The shooting set off several protests at GVSU, along with protests at Michigan State and Michigan.  The protests at MSU and UM didn’t really surprise me, but GVSU is in rural, conservative law & order west Michigan.

Thankfully, Copp has seemly made a full recovery and has returned to classes.  He plead guilty to delivery of marijuana and received 18 months probation, and the chance to have his record expunged if he succesfully completes it.

Now, that part isn’t terribly interesting in the whole scheme of things.  Just another shooting in the War on Drugs, where the police have to kick down doors to rid a college campus of the dangerous scourge of marijuana.  What’s one more unarmed kid getting shot as long as it keeps people from getting high?  I’m sure there’s still people in west Michigan who believe Reefer Madness is a documentary.

The interesting part is what happened to Deputy Huizenga.  It seems that 99% of the time, the Sheriff (or Chief) dutifully sends the officer to desk duty for a few weeks and then issues a report saying “policy was followed” and that’s the end of it.  When I first read about the shooting back in March, I fully expected that to be the end result, that the deputy reacted the Copp’s sudden movement (caused the police crashing through his door) and that the deputy was justified to protect himself and his fellow officers.

But, I was wrong.  Hey, it happens.  Instead, Deputy Huizenga admitted he exercised a “lack of due caution” and plead guilty to reckless discharge of a firearm.  He was sentenced to six months probation, 80 hours of community service, and a $400 fine.  Copp had stated he supported the plea bargain agreement.  The Ottawa County Sheriff has reinstated Deputy Huizenga and he is back to his normal job on road patrol.

Maybe something positive can come out of this.  In a move that really surprised me, Judge Brad Knoll noted that the police bear some of the burden in causing this whole mess.

The judge said Wednesday that Huizenga is not the only one to blame for the shooting.

“Frankly, there is a degree of blame that could be spread around here,” Knoll said.

He noted Copp’s decision to sell marijuana and ignore drug laws, but also the practice of conducting nighttime drug raids. Knoll said the case offers “some cause to consider the advisability of nighttime drug raids” and said judges bear some responsibility as well when approving search warrants.

“I’m hoping we can all learn from this incident and be grateful something more serious didn’t happen,” he said.

Still, he said Huizenga ultimately has responsibility over his weapon.

“It was your gun, your bullet that struck Mr. Copp,” he said.

One could make a reasonable argument that this story has a happy ending, or at least as happy of an ending as you can get when the story involves the police shooting an unarmed college student.  Derek Copp is alive and will have the chance to get this cleared off his record.  Deputy Huizenga was actually forced to face the music, but happily (at least for him) he gets to keep his job.  Considering how many abuses of police power get written off as “proper policy”, the fact that he was brought up on charges is pretty amazing.

And in the end, the Drug War will rage on.  How many more Derek Copp’s will there be before we end this nonsense?

Always Look on the Bright Side of Life

There’s a lot of things wrong with the American justice system as it stands today.  This is a view of both people who are part of the system, and the general public.  Lawyers on our side of the bar see an increasingly pro-state mentality both from people and the government.  When soon to be Supreme Court Justice Sonia Sotomayor is introduced by Sentaor Chuck Schumer by him touting that she votes for the government a lot as a selling point, it’s easy to get frustrated.

“She has agreed with Republican colleagues 95 percent of the time,” Schumer said. “She has ruled for the government in 83 percent of immigration cases, against the immigration plaintiff. She has ruled for the government in 92 percent of criminal cases. She has denied race claims in 83 percent of the cases and has split evenly on employment cases between employer and employee.”

On the mysterious side of civil law, the attorneys in the class action lawsuit against Ford for their Explorers that rolled over walked away with $25 million.  Consumers got a coupon good for either $500 off a new Ford SUV or $300 off any other Ford vehicle.  Approximately one million consumers were part of the class.  To date, 75 coupons had been redeemed.  Not 750,000.  Not 75,000.  Not even 750.  75.

Which leads to my next question, why on earth am I not a class action plaintiff’s lawyer?

I do have a point here, in case you’re wondering.  And it’s this.  Japan is having it’s first jury trial in 60 years.  That’s a long time ago.  It’s not really an American style jury trial either.

Six jurors are working with three judges to decide a verdict in the case of 72-year-old Katsuyoshi Fujii, who has been charged with murder.

Until now Japanese trials have been decided by a panel of judges.

Some might argue the system has it’s benefits.

In the past the justice system in Japan has been notoriously secretive, with a system of judge-only trials and private police interrogations.

Criminal trials currently have a 99% conviction rate, and there are increasing concerns that the system of judge-only trials and private police interrogations leads to false confessions and the conviction of innocent people.

I’m sure prosecutors dream of the day they don’t have to bother with those pesky juries or worry about such silly things as “Miranda” and “the rights of the accused”.  Express-lane justice, that’s the dream.

This was a bit of news that surprised me.  We all know there’s plenty of countries out there that don’t offer their accused the right to a jury trial.  Places like North Korea, Cuba, China and other totalitarian regimes.   As an ignorant American, I would have just assumed that a first world country like Japan would have a jury system.  Reading about the jury system on Wikipedia was quite interesting.  In Canada, the accused only has the right to a jury trial if the punishment is greater than five years.  India and Israel do not have juries.  In Germany, lay people act with professional judges to decide the verdicts.

So no matter how bad we think we have it in the USA, no matter how pro-government the sentiment is, everyone accused of a crime still gets their day in court.  From a speeding ticket to capital murder.  Whether you’re a homeless guy living on the streets or the CEO of a Fortune 500 company, you (in theory) are all equal in the eyes of the law.  Whether or not you actually have that equality is another topic for another day.

Now, that is not to say that as criminal defense lawyers, we should just sit back and think that because we have it comparitively good in here, we should just roll with the punches.  Not at all.  As criminal defense lawyers, it’s our job to keep the government in check.  Even if the defendants in the US have more rights than most other countries in the world, that doesn’t mean that they can’t be ignored.  It’s up to us to never take this rights for granted and to make sure the rights of our clients are preserved.

Backed Up Worse Than Houston Traffic

On Sunday, our local newspaper had a story concerning the backlog of cases each of the five Brazos County courts has.

On Friday, District Judges J.D. Langley and Steve Smith presented commissioners with a stark reality in regard to their caseloads. Each of the five courts housed in the Brazos County Courthouse — the 85th, 272nd and 361st district courts and the two county courts at law — has more than 1,400 pending cases on its docket.

The result, the judges said, is that defendants in criminal cases sometimes must wait in long lines to stand trial. If they cannot afford to post bail, they could spend years behind bars before being convicted or acquitted of a crime.

Some of that delay is caused by procedural motions and intentional efforts by defense lawyers to drag out the process, the judges acknowledged, but the cases should be moved through the legal system faster.

There are five courts in Brazos County, three district and two county courts.  My first thought was that there’s no way each court has 1,400 pending cases.  Then I remembered that there is a whole other side of the law that I don’t mess with.  There are plenty of civil cases out there, and when those are factored it, the 1,400 number sounds very reasonable to me.

My problem with the story is, how do you define a backlog?  A case that has been pending for more than 6 months?  Maybe more than a year?  Would a year-old, Class B Theft case be considered part of the backlog when a year-old capital murder isn’t?

The other problem with there’s no comparison to anyplace else in Texas, either counties roughly the same size or a comparison to bigger or smaller counties.  There might be a backlog here, but how does it compare to the rest of Texas?

Now, there’s no doubt that Judge Langley and Judge Smith are absolutely right.  If you want to take your case to trial, be ready to wait.  That’s not always a bad thing, but it can be incredibly frustrating for defendants.  Especially if they’re not out on bond.  One solution proposed is a new magistrate court.

The judges have asked the county to fund either a new magistrate court or an impact court to help get control of the docket. A magistrate judge would handle items on the judges’ dockets that do not require a jury trial, including hearings on temporary orders, pleas and motions to revoke probation.

I can get behind this idea.  Brazos County currently has one magistrate court.  That court handles duties for the county courts four days a week, and district court one day a week.  An additional magistrate that would save the district court judges a lot of time to try cases and move cases through the system faster.

The problem is, of course, money.  But the powers that be seemed to be supportive of the courts.

“We are going to look at what we want to be able to do,” he said. “The district judges have wanted another magistrate for probably the last two years, and I have put it off for the cost factor. And I think now we are getting to the fact that the population is growing so much in Brazos County that we have got to handle those cases.”

He said the current commissioners court meeting room in the County Administration Building or an unused old justice of the peace office in the courthouse could be used to hold trials or hearings.

Sims indicated that helping the courts was a top priority and that he would make room for the additions in the budget.

Hopefully with the remodeling of the courthouse, Brazos County will get some additional courts as well.

The Lawyer Fashionista

It never fails to amaze me what some people think is appropriate attire for their court date, especially for criminal court.  I would think that if you’re going up in front of a person in a black robe with the power to send you to TDC if you get wise, you might want to dress like you’re going to church as soon as you get done with court.

I imagine, that back in the day everyone went to court wearing a suit.  Attorneys, clients, baliffs, court reporters, etc.  Like when you watch footage of an old baseball game and everyone in the stand is wearing a suit.

Sidenote, I’m watching the Tigers and Rangers right now.  Grandy had a great homer in the top of the first.  How on earth did people sit in the stands during a ballgame in August wearing a suit, and not die of heat stroke?  Even in a northern state it still gets plenty hot during the dog days of summer.

Back on topic, I was in court the other day.  There was a girl there, probably in her early 20’s who was representing herself.  I always wonder about people who represent themselves, but that’s another topic for another day.  This girl was pregnant, and wearing a shirt that said: “I’m Popular With Boys.”

I’d love to know the train of thought that lead to her deciding that shirt was appropriate to wear for her court date.

Shutting Your Pie Hole

The smartest thing any defendant can do.  It doesn’t matter if you’re in the back of a police car, in jail, or in the courtroom.  Talking with the State is usually the quickest way to make sure you stay a guest of the State.  From Simple Justice and the Pittsburgh Post-Gazette, comes a story of why telling your side of the story might not be the best idea.

“All I really wanted to do was express myself,” the defendant began, launching into an incoherent diatribe about his life and the circumstances surrounding a Hill District homicide.

His testimony Tuesday — during which Mr. Williams, 40, admitted to the killing and revealed that he was a “swinger” with 17 girlfriends — sealed his first-degree murder conviction.

If you want to express yourself, try writing some poetry or painting a picture.  Don’t do that in the courtroom though.  Yes, you do have the right to get up and tell your side of the story.  But saying, “I’m sure if the Judge would just hear what I have to say, this would all go away,” usually isn’t a sound legal strategy.

The story reminded me of something I witnessed as a young lad.  My senior year of college, I did an internship with the US Attorneys Office in Grand Rapids, Michigan.  While I was an intern, there was a federal death penalty case taking place.  This was a big deal, since the state of Michigan does not have the death penalty.  The US Attorneys Office in Michigan must not get a lot of death penalty cases, since it was the first one in the state of Michigan since 1846.  It was also the first time a federal death penalty case took place in a state that doesn’t have the death penalty since the death penalty was reinstated.

The defendant was accused of killing the girl who accused him of raping her and dumping her body in a national forest.  For three days a week, I sat in the back row and watched.  It was there I learned that real life is not nearly as exciting as Law & Order.  Even a big case like this.

At one point, one of the defendant’s attorneys stood up and told the court that his client would like to testify.  The defendant took the stand, the attorney asked him to tell the jury what happened (or something to that effect), and off the defendant went.  I don’t remember a whole lot of his testimony.  He probably testified 30 minutes or so.  The one thing I remember clearly is that he accused the Assistant US Attorney who was the lead prosecutor, and the father of the victim, of dumping the victim’s body in the lake from a Michigan State Police helicopter.

Needless to say, the prosecutor picked him apart on cross examination.  He’s now on death row in Terre Haute, Indiana.

Would it have made any difference whether he testified or not?  I’m not sure, if I remember correctly, the case against him was pretty strong.  The defendant wasn’t a very likeable guy either.  And he projected a Hannibal Lecter type of vibe.  I don’t think the jury ever really warmed up to him.  But taking the stand, and punching his attorney during the punishment phase, certainly didn’t help him one bit.

Think of the Children: Hoosier Edition

I have never liked the idea of Sex Offender Registration Lists.  Mostly because I don’t understand the point of them.  I mean, I understand the point of the politicians who support them.  It’s a great way to look tough on crime without actually doing anything substantial.  And the sex offenders that have to register aren’t exactly a politically powerful group, I doubt they have much of a lobby.

My biggest problem is there’s no way to measure whether sex offender lists work.  Probably because other than have a website where you can check up on your neighbors, there’s no easily discernible goal of the sex offender registry.  The Think-Of-The-Children Crowd would probably say if citizens, namely parents, know where these sex offenders are living, they are better prepared to be able to protect their children.  It’s always for the children.

I understand where they are coming from.  If you have an 8 year old son, I can understand wanting to know if the guy next door likes 8 year old boys.  Personally, I’d rather know who in my neighborhood has been arrested for a home invasion or burglary of a habitation, but that’s just me.

Which is why this case (opens as a PDF) out of the Indiana Supreme Court is such a surprise.  The in the case, Wallace plead guilty in 1988 to one felony count of Class C child molestation.  He was given five years probation and completed his probation in 1992.  Indiana passed a sex offender registration act in 1994 and then amended it in 2001 to require anyone who had been convicted of certain sex offenses to register, regardless of the date.  Wallace never registered, and was eventually convicted for failing to register.  He challenged the registry as an Ex Post Facto violation.

The traditional rational to get around an Ex Post Facto challenge is that the registry is administrative and not punitive.  I’m guessing the guy who has to register on the list views it as punishment.  But he’s a criminal and we’re doing it for the children, so his opinion isn’t valid.

In the opinion, the Indiana Court runs through seven factors from Kennedy v. Mendoza-Martinez, 372 US 144, and (spoiler alert) determines that the sex offender registry as applied to Wallace violates ex post facto laws.

I believe this is what the talking heads on TV and the radio refer to as judicial activism.

I’m not expecting this to catch on around the country, and the ruling keeps the registry in place, this only applies to a small group.   Besides, the Do-It-For-The-Children lobby is way too powerful.  Everyone loves kids and nobody loves sex offenders.  But maybe, just maybe this can be a small step in the right direction in calming the sex offender hysteria.

Victimhood

This week has been National Crime Victims’ Rights Week.  It would have been very easy to miss this, since it has been Killer Panic Inducing Swine Flu Week as well.  President Obama issued a proclamation urging all Americans to participate in activities that would raise awareness of victims’ rights.  I’ve never really understood “raising awareness,” but that is another topic for another day.

Making sure victims of crime get compensated or otherwise recieve support for whatever they went through is a noble cause.  In doing some reading before writing this post, I learned something I hadn’t before.  There seems to be a movement to give the victims of the crime a place at the table, along with the prosecution and the defense.

University of Utah law professor Paul Cassell wants to expand the Crime Victims’ Rights Act (CVRA) and create new rights for victims which would include,

2. Providing for victim participation in the plea bargain process (Rule 11);
6. Considering victims’ interests when cases are transferred or when a bench trial is ordered (Rules 21 and 23);
7. Integrating victims into the sentencing process (Rule 32);
8. Articulating victims’ right to discretionary appointment of counsel (Rule 44.1);
9. Giving victims the right to be heard at bail decisions (Rule 46);
10. Requiring victims’ views be considered before a case is dismissed (Rule 48);
11. Protecting victims’ right to a speedy trial (Rule 50);
14. Guaranteeing victims the right to be heard on bail, plea, sentencing, and other issues important to victims (Rule 60(a)(3)).

Professor Cassell apparently wants a complete overhaul of the criminal justice system and to create a third “side” for lack of a better term.  Letting victims be heard at every stage of the case?  Letting victims participate in plea bargain discussions?  There’s so many problems with this I don’t even know where to begain.  I suppose the eroding of the defendant’s rights would be a good place to start.  All of these great ideas to benefit the victim seem to come at the expense of the defendant.  If number two is implemented, not only does the defendant have to deal with the prosectuor, as he would in every other case.  He has a third party (with the taxpayers possibly footing the bill thanks to #8) that is going to have a say as well?

Or how about the additional backlog of cases this would create.  I don’t think there’s a Court in America that doesn’t have a backlog of cases (thank you War on Drugs).  Adding a third party to the table is only going to slow things down even more.  Especially when the victims are not represented by an attorney and are attempting to figure out the criminal justice system on their own.

By allowing victims a seat at the table, you’re going to inject irrationality into what is supposedly a rational process.  Recently I was involved in a hit and run accident with a drunk driver.  I was the sober hittee, not the drunk hitter.  If I were given a place to speak and get involved in the plea bargaining, I would probably demand that the prosecutor find the biggest book he can and throw it at the defendant.  That’s me speaking as a victim, not as a defense attorney.  The defense attorney in me knows what I would say if I was defending him, and what I would consider a fair punishment if he gets convicted.  But, I was pretty pissed off when here I am, minding my own business, driving home, and this guy runs into me.  Fortunately no one was hurt and insurance covered everything.  But I was still angry.

And if I’m angry enough to throw the book at someone for my situation, imagine someone who was raped, or robbered, or was hit by a drunk driver and was seriously injured.  Now imagine that both the prosecutor and the defense have to contend with a third party who has far more emotionally invested in the case.

Making sure victims are crime aren’t forgotten and are compensated if needed is a good thing and something the criminal justice system should work for.  Giving them a place at the table is only going to further erode the rights of the defendant and clog the courts even more.

H/T to Defending People and Simple Justice for making me aware it was Crime Victims’ Rights Week