Friday, September 26, 2008

More Like This

A couple weeks ago Scott Greenfield wrote about a Ninth Circuit case, Garcia-Aguilar v. U.S. Dist. Court, (link to opinion).

I remembered the judge's bold description that the case "show[s] why the ten most terrifying words in the English language may be, “I’m from the government and I’m here to help you.” In fact, I find myself repeating the phrase out of frustration often, so often, in fact, that I went back to read the case. Since there's no way to improve on Judge Kozinski's introduction, here it is in full:

We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.

These consolidated cases show again why the ten most ter-
rifying words in the English language may be, “I’m from the government and I’m here to help you.”
Defendants pled guilty to re-entering the country illegally after having been previously removed, in violation of 8 U.S.C. § 1326. Their guilty
pleas were taken by magistrate judges, who conducted the plea colloquies required by Rule 11(b) of the Federal Rules of
Criminal Procedure, and who thereafter recommended that the district court accept the pleas.

When the cases came before the district court for acceptance of the pleas, the U.S. Attorney objected on the ground
that the magistrate judges had erred in conducting the Rule 11(b) colloquies. The district judges agreed and refused to
accept any of the defendants’ guilty pleas.

We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.

Rule 11(b) is there for the defendant’s benefit, so it seems quite noble at first for the U.S. Attorney to stick up for defendants’ rights. But this generosity comes at a steep price: The
U.S. Attorney has already arraigned defendants on superseding indictments that specifically charge a violation of 8 U.S.C. § 1326(b)(2), which is punishable by twenty years in prison.

This is eighteen years more than the two-year maximum sentence available under defendants’ original indictments, which
did not charge any conduct that could increase the maximum penalty above two years. Defendants reject the government’s help and petition for writs of mandamus directing the district court to accept their unconditional guilty pleas.

After that excellent introduction, the opinion ends like this;

Due to the U.S. Attorney’s oversight, defendants may well avoid the enhanced sentences to which they may have been subject under section 1326(b)(2). “So be it.” United States v. Velasco-Heredia, 319 F.3d 1080, 1087 (9th Cir. 2003). The district court shall accept defendants’ unconditional guilty pleas to the original indictments.

One role of the defense lawyer is to educate the judge about the necessity of ensuring that the law is applied to the government as it prosecutes people for breaking it. It's much easier when judges grasp the necessity of this role and so much more enjoyable when they demonstrate it so eloquently.

One other phrase I often think of is that bureaucracy and justice are like oil and vinegar: If not constantly agitated, they naturally separate.

Tuesday, September 23, 2008

A DUI Defender's "Perry Mason Moment"

On Friday I was able to attend an excellent seminar on Cross Examination put on by the NCDAA which featured Terry and Terry MacCarthy of Chicago. Terry, Jr., was my instructor at the National Criminal Defense College and is both an excellent teacher and lawyer. Terry, Sr., is the nation's leading expert on cross examination. I'll write more on the seminar later, but thought at the end of it that I love to go to these things both for the information and the opportunity to meet with other criminal defense attorneys from across the state and nation.

Bell Island, an excellent criminal defense lawyer from Scottsbluff, NE, described learning a lot about defending DUI cases after joining the NCDD (I know, there are a lot of similar acronyms!) which stands for the National College of DUI Defense. I first heard of the college after attending a seminar that Troy McKinney conducted a few years ago. Since then, I've intended to join but haven't yet. Bell, as well as five or six other Nebraska attorneys, joined the College after hearing Troy's presentation, which was fortunate as just a few years ago there were no members from Nebraska.

Bell told me how much he learned from the college, but it was a story he told that brought this home. He described being in trial, cross examining the State's expert on the Datamaster breath testing device. During the cross, the expert, in front of the jury, blurted out a statement criminal defense lawyers aim for but rarely hear. He said:

"I don't know. You know that machine better than I do."

Guess who the jury listened to? They listened to the expert, who told them to listen to Bell, who later heard two other words: "Not Guilty."

Troy McKinney's presentation a few years ago made me want to join the NCDD, but Bell's story made me finally write out the check. Hopefully I'll know that machine better than their experts in the future.

When you look for a DUI lawyer, ask yourself if they know the machine this well. If they do, you're in good hands.

Thursday, September 18, 2008

Switching Hats

Today I appeared in court in a new role for me: Guardian Ad Litem for a "Child" in a child neglect case. A child in Nebraska is a person under 18 and this case involves two teenagers. I won't go into a lot of details as it's both on-going and personal for the family involved. Like most of my cases, it's meth-related but I look at it differently as I'm wearing a "different hat."

When the attorney for the father turned in court and asked the kids whether they were afraid of their father, I didn't object because I knew both what they would say and what I would say later. What would you have said if you hadn't seen your dad in a couple months, had been pulled from your home and were now living in a relative foster care placement?

They said what I would have said, what almost all of us would have said: "No, I'm not afraid."

But there are plenty of reasons to be skeptical of this, none of which I list have anything to do with this particular case but with all meth related cases in general. One reason is that even if you combine a reasonable person with a lack of sleep for a few days, they quickly devolve into unpredictability. Another is that it's easy to fake sobriety when there are no "UA's" to verify that a person is staying "clean." A third is that, at least in my experience, even a few weeks away from meth doesn't eliminate the "tweaking" behavior and irrational decision making that tend to accompany an active user.

Just yesterday a client of mine graduated from Adult Felony Drug Court, earning a dismissal of his felony charges. A month or so ago, a former hard-core user client of mine graduated, along with his wife, successfully from a Juvenile Court Drug Court Program for parents.

I got a chance to speak and I told a story. It wasn't very uplifting but I thought it was appropriate. I told how I got a call from my favorite client, who successfully broke away from heroine, whose appearance changed so much it would bring tears to the eyes of people who saw how great she looked after looking so close to death as she came to court. I told about meeting this client at the jail and watching her collapse on the floor there, of her then falling on the floor of the "arraignment courtroom" a few days later, screaming out the name of the last person who could help her, her public defender.

And then I told about getting a call from her a few years later and her wanting to say thank you. It wasn't the content of the call that got me down, it was the background noise that made the thank you not be very welcome. You know the sound. The universal jail background noise.

So my story wasn't to uplift but to remind these people, who were graduating after less than a year of being clean and sober, that they weren't out of the woods yet. I almost invoked a story from "Deep Survival" in which Laurence Gonzales describes telling people who were setting out to climb mountains that their goal wasn't to reach the summit but to reach the car again. This would remind them that the work wasn't done once you started back down as most accidents seemed to happen not when your guard and senses were up but when you let them down, thinking your work was over and your goal achieved.

It didn't go over very well, but I didn't care. I was sick of seeing "frequent flyers" come back to see me on new charges shortly after their other case ended. I was a little disheartened that after having about 30 trial on termination of parental rights cases and losing about 29, the one client whose case I "won" or who rather cleaned herself up enough that the judge was convinced she deserved another chance, ended up, a few years later being my first case involving possession of meth with intent to distribute.

As depressing as that story is, it's not over as she just entered inpatient treatment and will, if everything goes well, enter Adult Felony Drug Court in a month or so. Maybe this will her "bottom." This time if it isn't, she'll go to prison. But if it is, her first felony will later be dismissed.

So I enjoyed my new role as Guardian Ad Litem. I've heard so much b.s. over the years from active addicts that I just consider if symptomatic and ignore it, believing my eyes and not my ears.

I'm grateful for this past experience, however, because it helps me in this role. I know that asking the kids if they were afraid of their actively-using dad right in front of him and the judge may have convinced the father that his kids have forgiven him but it didn't convince me of anything. It's what Seinfeld would call a "must lie situation": only the most scared or most manipulative teenager would have said "yes."

It's interesting though, to wear a different hat, to have to think of what's in the best interests of two teenagers who are mature enough to take care of things like feeding and cleaning up after themselves but who really need their parents to be both sober and there for them in their teenage years.

I spoke to a judge once who described requiring parties in Juvenile Neglect cases to "switch hats" periodically. He said it was good for them to think of the cases differently, to walk in the shoes of a different party once in awhile.

Great idea as I do see things differently, wearing this hat and having to look out for these kids.

Friday, September 12, 2008

Now That's A Sports Fan!

Tony Romo needed 13 stitches in his chin after the Cowboys 28-10 win over Cleveland last Sunday. Then, on his way home to Dallas:

A couple says Romo helped them patch a flat tire on the side of a busy street last weekend after the Dallas Cowboys star returned home from a season-opening win at Cleveland.

Bill and Sharon White told the Fort Worth Star-Telegram that at least 100 drivers ignored their broken-down Mercury before someone stopped late Sunday. Sharon White said a well-dressed man "with something strange on his chin" walked up and offered a hand.

Sharon White said she asked twice before Romo told her who he was and then "screamed real loud, and then jumped up and hugged him."

But the husband had a different reaction as he told Romo:

"Don't tell me how you guys did," he said he told Romo. "I'm going home to watch it."

Sunday, September 7, 2008

The "Reality Based Community"

What scares me about Sarah Palin is her willingness to lie and the media’s attention to “how she did” as opposed to “what she said” and whether it was true. Reminds me of a former Texas governor who was portrayed as “someone you’d like to have a beer with” and who ended up pissing all over the Constitution the next morning. Forget Hockey moms, the only difference between Palin and Bush is lipstick and that's likely what attracted Dick and Karl to her!

There is a difference between Palin’s words and the truth, however. Consider what she said about the “Bridge to Nowhere.” She claimed to have said “thanks but no thanks” to the money but the NYTimes reported in Nov. ’05 that “ House and Senate negotiators... eliminat[ed] a requirement that $442 million be spent to build the two bridges... [and it] will be turned over to the state with no strings attached.”

Notice the date: Nov. 2005. She wasn’t elected Governor until one year later, in Nov. 2006! She didn’t say no to anything but just did what Congress told her to do: spend the money on something else. Congress said “no thanks” to the remote bridge. She said “thanks” to the cash and “no” to the truth.

So what scares me isn’t Sarah Palin so much her as the people who picked her and who write the lies she delivers, and the fact that the press isn’t pressing anymore. As Twain said, “a lie is halfway around the world before the truth gets its boots on.” With the election so close, it better hurry.

Consider how well these people use propaganda and how bad the press is at cutting through it: Just two years ago a Harris poll showed that 64% of Americans still thought Saddam Hussein had “strong” links to Al Qaeda. WTF?

I agree that Obama has momentum, and that’s something to be encouraged about and fight for. But let’s not misunderestimate these Machiavellian Mayberrys.

That’s why they play the games, I guess.

With that in mind. I was reminded of the quote below that Ron Suskind reported in the New York Times magazine back in 2004:

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.'

Doesn't this quote tell us not only about Bush's "faith based" Presidency but also about Sarah Palin's Vice and possible presidency? She, or whoever wrote the speech she delivered, could have honestly pointed out that she didn't actually sell the former Governor's jet on ebay or that she wasn't in office when the "Bridge to Nowhere" funds were given to the state, but it's better for them to "create their own reality" by allowing this half-truth to continue its bullshit-fueled journey. "Truthiness" is what Stephen Colbert calls it.

It's not "lying"see; it's "creating their own reality." And it's pretty terrifying actually, with a "shock and awe" quality. It's like they're carrying out a disinformation campaign not in enemy territory but in their own country. Or maybe, seeing themselves as "history's actors" and "us" as the sheep who are left to study what they do, they see voters as livestock to be tended but not respected.

Laws and morality are for suckers who haven't figured out how to obtain immunity, who still believe in "quaint" laws like the Geneva Conventions and, in doing so, show that they're not "history's actors."

I'm excited about Obama's rise but don't know what we'll do if their tactics work this time. The stakes are very high and the empire knows how to strike back. Just look at the way they dress a wolf up in sheep's clothing.

Thursday, September 4, 2008

The Bread of Heaven

Last weekend I drove back to my hometown and met up with some old friends. I hadn’t seen these guys for near decades, and thought how sad it was that we only get together for weddings and funerals anymore, most of us with kids and other responsibilities that keep us close to home.

The last time we got together was for a wedding, but this time it was for a funeral, my friend John’s dad Jack. Jack was 80, was a veteran of the Korean “Conflict” and a person I remember well from the afternoon he spent helping me fix my car, a 240Z, during college. Nothing like working on cars for men to bond, except I still don’t do much more than change oil and hand the guy who knows what he’s doing the right tools, which are occasionally beers.

It was great to see my old friends but also a bit scary to realize how quickly the last fifteen years have gone. Although Jack was exactly twice as old as me, 80, the forty-year difference seemed, well, not quite as long as it did when I used to hang out with these guys in college a couple decades ago.

But as scary as it is to realize how fast the years go, it’s also a good reminder of how important it is to live “in the moment” and enjoy now rather than fearing later.

So with my mortality in mind and my good, old friends around me, I went to the funeral, an early morning mass in the Catholic Church my wife spent every Sunday in after being adopted through Catholic Social Services.

I didn’t attend church much growing up, my family being a little like the one Jim Harrison described in the first lines of “A River Runs Through It,” which said “in my family there was no clear line between religion and fly fishing.” When I read that, I wasn’t drawn to the story, but felt like I was finally reading about a family who took nature as seriously as we did. (That’s what probably what led to my family’s first write up in the New York Times as my brother worked his love of hunting and fishing into a job at Cabela’s)

So most Sundays I spent outside while my friends were inside, in church. I went a few times, to different churches, but never really learned the proper etiquette, which will be obvious here in a minute.

When the priest offered to allow “all Christians” to come forward for communion (at least I think that’s what he said!) I decided to step up, it having been years since my last one. It seemed like a great idea until I looked into the young priest’s eyes and heard him say, “The Body of Christ.” I froze, not knowing what to say, but finally, as if from on high, the right words came to me, from somewhere back in my diverse but sparse church experience. When I said the right phrase, I didn’t even stick around to see the priest’s (congratulatory?) response, but just moved along, proudly thinking that I “nailed it.”

When I got home and told my wife this story, describing the funeral, I told her how I slurred the phrase, wanting to move away from the awkward pause my bad memory created. She, of course, remembering that the last time I took communion in the Catholic Church I said “thanks” when the priest handed me the wafer, she pressed me for details, asking me to back up and describe the phrase I slurred to the priest before moving, pridefully, along.

“The phrase you’re supposed to say,” I said, “You know, ‘the Bread of Heaven.’”

I never finished my story about how sad the funeral was as she stopped me, nearly wetting her pants, laughing hysterically. Before long, she’d called almost all her Catholic friends, like some kind of perverted church phone chain, and each thought my phrase (that I still stand behind!) was not only incorrect but somehow hysterical.

Then, later, they laughed even harder for some reason I’ll never understand. When she asked me what I would have said if I’d made it to the “wine line” ( I just went back and sat down) if the priest had said to me, “The Blood of Christ,” I thought about it for awhile. Finally, after deep thought, the right phrase came to me again. I said, “Well, I’d probably have just finished the sentence.”

“How would you have finished the sentence,” she said, smirking, as if I was about to admit to some other supposed “gaffe.”

“You know,” I said, an air of self-satisfaction creeping across my face, as if I was about to destroy the witness on brutal cross examination.

“Shed for you,” I said, walking away triumphantly.

But, for some reason, they all seem to think this is funny too. Just goes to show you the type of people I have to deal with on a daily basis.

So I guess if I get a chance to go fishing this weekend, there’s only one correct response: