IOWA CHAMPION

Life on the farm.

2009-06-17T13:13:07-05:00

I was flipping through the channels before bed last night and caught part of a great documentary about Angola (Louisiana) prison on the National Geographic Channel. Angola is one of the largest prisons in the country both in terms of inmate population (5,000 ) and physical size (500 buildings spread over 18,000 acres). It is also one of the most notorious prisons in the country, once called the bloodiest prison in the south. You might know it as the setting for Sister Helen Prejean's book Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States.

A Decade Behind Bars: Return to the Farm revisited the Louisiana State Penitentiary at Angola ten years after the Oscar nominated documentary The Farm: Life Inside Angola. The film focused not only on the day to day of life on the farm, but the efforts that the prison has taken to change the lives of its prisoners, which for the most part are the "worst of the worst". Because Angola is the only maximum security prison in Louisiana, its population is almost entirely made up of violent offenders, 50% of which are serving life. 85% of the prisoners that are sent to Angola will die there due to the length of their sentence.

The part of the film that I found most interesting was the genuine efforts put forth by the warden and the State of Louisiana to transform the prison from a warehouse of criminals into a reformatory, someplace that changes behavior and thinking. There was a big emphasis on teaching the prisoners to think and act in a "moral" way. Obviously religion played a big part in that, there were several large churches on the prison campus, but the warden explained that it is not just a "religious" thing and even an atheist prisoner can be taught to behave morally. You may ask: why are any such programs in existence if most of the prisoners are going to end up dying behind bars? The answer is that the programs have had a huge impact on the quality of life for the prisoners by lowering prison violence. Less violence inside the prison is also a good thing for the staff. When the prisoners are less violent towards each other and towards staff, fewer guards can be used and it creates opportunities for the institution to be financially self sustaining through its industries like farming and ranching.

On the whole the prison seems to have come light years from its checkered past. I encourage anyone interested in corrections, criminal justice, or even human rights to watch it. The original 90 film can be seen without interruptions on the National Geographic website, but don't start it at work because you will want to watch the whole thing.

Pottawattamie County Case Highlights Procedural Requirements of Iowa's Forfeiture Statute

2009-06-08T12:36:22-05:00

There was an interesting decision handed down from the Iowa Court of Appeals at the end of May. The case arose out of the seizure of $22,600 cash during the July 2^nd arrest of Duane Lovelace by the Pottawattamie County Sheriff’s office on drug charges.

The same day that Lovelace was arrested he was given a notice of seizure pursuant to Iowa Code section 809A.6(2). On July 26^th the Pottawatamie County Attorney filed a second document they titled "Notice of Seizure for Forfeiture" and served notice on Lovelace by publication on August 15^th. The case was dormant for over 90 days, during which time Lovelace was never given notice of a pending forfeiture proceeding or served and In Rem Complaint pursuant to Iowa Code section 809A.8.

Anyone who defends a fair amount of drug cases or does a lot of forfeiture work can see where this is headed, but for the lay people or the attorneys that don't practice these areas much I'll give you a little primer.

Property that is "seized for forfeiture" is kind of like a person that is arrested. The "notice of seizure" is just the initial notice to the claimant that the police believe the property is subject to a later forfeiture proceeding. It is kind of like a preliminary complaint for property instead of a person. Once that the property is seized it is considered to be held in the custody of the District Court. It can be kept for as long as it is needed as evidence for the prosecution of a related criminal case, or as long as they as long as nobody asks to have the property returned.

If somebody asks for the property to be returned, the County Attorney has to file a forfeiture complaint within ninety days from the date of seizure. This is like the Trial Information of forfeiture proceedings. If the County Attorney fails to file the complaint within ninety days the property MUST be returned to the claimant if he or she has requested its return.

The catch here is that the return of the property doesn't mean that the County Attorney is barred from filing a forfeiture complaint past the 90 days. They have up to five years from the last date of conduct giving rise to forfeiture to commence the In Rem proceeding (Iowa Code Section 809A.20 - Statute of limitations). The only effect returning the property would have, is that while they are deciding what to do, the property is in the possession of the claimant.

SO...the defense attorney in this case was smart and waited until after 90 days had passed. He knew that the prosecutor never filed the In Rem Complaint so the the request for the property to be returned, would have to be granted. That is, it gets granted if everyone is playing by the same rules.

Instead we come to the really interesting part of this case. The prosecutor not only chose to disregard the law and ignore the request to return the property; they used some downright underhanded tactics to illegally forfeit the property to the State.

The day after being personally served a letter by the claimant's attorney requesting return of the property due to the procedural defects, the prosecutor prepared an order forfeiting the property that misstated the prosecutor's compliance with the requirements for forfeiture. The prosecutor then got a judge to sign the order without claimant's attorney being present. When the claimant's attorney got a copy of the order about a week later, the shit hit the proverbial fan. A series of motions were filed and the claimant asked for sanctions to be imposed for the prosecution's tactics. The Court of Appeals found that the prosecutor's actions strongly suggest an intent to deceive the District Court and the claimant.

The second low blow was dealt when the County Attorney's Office contacted the Feds and had them file their own In Rem proceeding. Ordinarily, referring a case to the Feds is within the right of the County Attorney, but in case the Court found it to be more than a coincidence that the referral came only AFTER a hearing was set on the claimant's Motion to Vacate. What's more, had the proper procedure been followed, the claimant's money would have been returned six weeks before the referral ever occurred.

The Court of Appeals ordered $22,600 in substituted funds to be paid to the claimant and held that the prosecutors actions warranted sanctions being imposed. The case was reversed and remanded for a determination on the amount of attorneys fees and costs to asses to the State.

What criminal defense attorneys need to take out of this case is the need to be familiar with the procedural requirements of Chapter 809A. They can be somewhat confusing, especially if you don't practice this type of law regularly. Apart from Polk County, I've found a general lack of knowledge about chapter 809A among prosecutor's offices. If you keep your eyes open you can use this unfamiliarity to your advantage.

My guess is that even though there is a five year limit on forfeiture actions, the County Attorney would be barred from filing the In Rem Complaint due to several factors (forfeiture statutes are disfavored, prosecutorial misconduct, and the previous procedural defects).

The case is also another fine example of one of the "good guys" thinking that the ends justify the means.

Budget Cuts May Impact Court Reporters

2009-02-14T21:13:08-06:00

The judicial system is not immune from the economic woes that have hit the country. Because of the State budget crisis, the Iowa Judicial Council is considering eliminating court reporters. Instead of having certified reporters to make a record of court proceedings, digital recording equipment would be used. The idea will be discussed on Monday in a closed door meeting.

The proponents of the switch believe that it is the best way to reduce the expense associated with court administration. The vast majority of the cost of court administration is in personnel expenses, specifically salaried positions. There are about 190 jobs at stake with the shift, each with a salary of $45,000 to $70,000 plus benefits.

Currently, only Alaska relies completely on recordings, but other States have eliminated court reporters from certain types of cases. In my practice only traffic cases and small claims proceedings use recordings, otherwise the record of the proceedings is produced by a certified reporter.

It don't like the fact that the meeting on Monday is "closed door". Usually that's a signal they will be doing something unpopular and don't want to listen to the dissenters. I also have serious concerns about any proposed switch away from our current system and think there are a lot of questions that need to be addressed. First, I am not convinced it will save any money. Outfitting all of Iowa's 99 counties with the kind of technology needed to record court proceedings would seem like a terribly expensive proposition. Would the larger counties, with larger dockets get better equipment? Who is responsible for making sure the equipment is working properly during a trial? What happens if there is a technical difficulty; is the record just lost? I cannot imagine criminal case going up on appeal just to discover the record doesn't exist because someone forgot to turn the microphone on. What happens when the attorneys move about the courtroom, will they still be heard? Will transcripts still be available or do we now reference a time code on the recording? If we are to still use transcripts, who makes them and who pays for that?How do you tell who is saying what, especially if people are talking over one another? One great thing about court reporters: they will let you know when you are doing something that makes the record unclear.

At this point it is probably too early to worry too much about this. It is all very preliminary. My hope is that our courts don't suffer because our government can't balance a budget and our economy is in the toilet. In criminal cases especially, we cannot afford to cut corners when it comes to justice.

The wise lawyer

2009-01-13T20:03:55-06:00

The older I get (I'm 36 now - still relatively young) and the longer I do this job (closing in on ten years) the more clear my understanding of world becomes. In one of my favorite movies, Groundhog Day, Bill Murray makes a particularly deep comment about God. "Maybe he's not omnipotent" ponders Murray, "Maybe he's just been around so long, he knows everything." A stand up comedian that is escaping me at the moment (maybe Bill Cosby or George Carlin) explained wisdom the same way. It can only be gained from being around a really long time, like 50 or 60 years. A 25 or 26 year old recent law school graduate may be smart, but they are not wise. It takes time to become wise. You have to experience some of life's highs and lows to become wise; get in the trenches and lose a case you should have won, and win a case you should have lost. After ten years at this I am just starting to get the feeling that I have some wisdom, maybe that's part of the reason I wanted to start blogging.

One piece of wisdom I've acquired is that perhaps the most overlooked aspect of what criminal defense lawyers do is interpersonal interaction (deal with people). Sure we have to know the law and be able to spin creative legal arguments from whole-cloth. But the personality makeup of your client, the witnesses, the judge, and the prosecutor can all have as important an impact on the case as any Supreme Court case or surprise witness.

Along those lines I am also coming to the realization that as far as dealing with the lawyer on the other side of the case (prosecutors mostly for me), you have to remember that you are dealing with a human being, and sometimes you have to deal with a defective one. If you start with a person that is thoughtful and friendly, you are generally going to have a thoughtful and friendly lawyer on the other side of your case. Really, that is about 80% of the lawyers out there. It doesn't mean they aren't trying to crush you and send your client to prison for life; but they will play nice and follow the rules. The same is then true of negative personality characteristics. If someone starts out a belligerent, short-tempered, bully, they will probably act that way as opposing counsel at some point.

Another way to think about this is this: The lawyer that refuses to call you back is probably the same person that always lets his cell phone ring through to voice mail. The lawyer that lies to you is the same guy with a full shopping cart of groceries in the express checkout lane. The lawyer that tries to bully your client is probably the same person jumping the case of the 14 year old McDonald's drive through clerk for not giving him enough ketchup. Granted everyone has a bad day, some people a bad year, but when its all said and done the lawyer in the courtroom does not suddenly change his personality when he goes home.

Obviously, this fact of life can sometimes present difficult situations to deal with in your cases. So what do you do? Honestly, I'm not sure I'm wise enough to know. Currently, I try to practice the forgive and forget method. You deal with the situation as best you can and then try to start fresh on the next case. I'm not sure criminal defense attorneys have much choice but to go this route. There has been a substantial decrease in the turnover rates in prosecutor's offices here in Iowa and as a result you deal with the same prosecutor on half a dozen cases or more every year. As time goes on I am finding that method is becoming increasingly harder to practice because I see the same problems continually crop up with certain attorneys. Most of the time I'm not alone. The frustration is often magnified when you hear your colleagues going through the same problems with the same attorneys too. Other than learn some new deep breathing exercises I'm not sure there's much else you can do. I'm hoping that in the next ten years I get a little wiser in this area.

The Best Defense Possible

2008-10-18T21:33:36-05:00

The recent reversal of Heidi Anfinson's murder conviction on grounds of ineffective assistance of counsel has me thinking about the strategic choices criminal defense attorneys have to make when choosing a defense.

Generally speaking I think you can characterize defense theories into two categories. The first would be an outright denial: an "I didn't do it" defense. The second type would be mitigation defenses: "I did it, but...".

Which type of defense you choose shapes not only the strategy you take in defending the case, but the tone in which you do it. It is much easier to be aggressive in the defense of a client that is basing his defense on "I didn't do it". There isn't a lot to think about with that defense. Expert witnesses are generally not needed, maybe in an OWI case or if you had an issue with a false confession or misidentification of the defendant by a witness.

With a mitigation defense, you are often times only attacking a portion of the State's case and evidence against you. You are admitting that you may have done most, if not all of the actions that you are accused of, but you are saying that because of some intervening reason, you should not be held criminally responsible for your actions. Because you are fighting fewer issues with these defenses it focuses your discovery issues (production of evidence by the State) and generally makes for a less confrontational pretrial process. Often times these case become a "battle of the experts".

So which defense is right for you and your case? It depends completely on the facts of the case. Criminal defense lawyers (believe it or not) are ethically bound to not present evidence that is not truthful. I mean that with all seriousness. If a client comes to me and tells me he did do it but he's got some friends that will say that he was with them at the time of the crime, I am not going to put that defense forward. Its a lie. If the client comes to me and says he didn't do it and he has friends that will say he was with them at the time of the crime I will put that defense forward, even if the State has some evidence against that. Obviously the more evidence the State has that will overcome a particular defense can make you think twice about whether you want to put on that defense, but you aren't ethically prohibited. So the facts are the key. I will always review the affirmative defenses listed at Iowa Rule of Criminal Procedure 2.11(11) no matter what the allegations is. If it is an assault case, drunk driving, theft, or murder, I will always look at those defenses. Granted, in an OWI case, the review is much quicker, since those defenses are almost never used, but you always do it to be sure.

Where Heidi Anfinson's attorney ran afoul of his responsibilities as a criminal defense lawyer was that he ignored evidence that would assist a particular defense. If people around the defendant are saying that there were mental issues with the defendant you have to look into it. If you do nothing you are not effectively representing your client. If Anfinson's attorney would have looked at the information, requested medical records, and done a thorough investigation before rejecting that defense, this case would nothave been reversed. Lawyers are permitted wide discretion in selecting the defense to present at trial. If they decide that there is a reason not to go with a particular defense, then that is their call. If the defendant disagrees, they need to get a different attorney. But the discretion granted to an attorney to choose a defense is based on the assumption that the attorney has looked at ALL of the defenses available and has done his job. When you ignore defenses or don't do the work needed to make an informed decision on what defense to choose, it calls into question the result in the case and whether or not justice was really done.

Pierre Pierce Cleared to go France

2008-09-23T20:49:08-05:00

A 2-1 split decision from the Iowa Court of Appeals went in favor of former Iowa Hawkeye basketball player Pierre Pierce, allowing the convicted sex offender to travel to France to play basketball. A District Court judge had previously ruled that Pierce should be allowed to live in work in France while under supervision in Central Iowa. The Iowa Attorney General had filed for an emergency stay of that order, which was denied today.

While many people may see this ruling as special treatment, it really isn't as bad as it would appear. It is not uncommon for a person placed on probation to be supervised in another jurisdiction, or even to remain on probation in Iowa when they live in another state such as California or Texas. The difference with Pierce is that his conviction included a felony, Burglary in the Third Degree. So is that special treatment?

In every felony case that I have ever done, if the defendant is on probation in Iowa and wants to move to another jurisdiction, he must apply for a transfer of the probation through a process called an "Interstate Compact Transfer". That does not appear to have happened in this case. But, if you look back on Iowa Courts Online, it appears that other previous requests for travel have been denied. It is hard to say for sure without reading the order from the District Court and knowing what evidence was presented to the Court, but it is certainly unusual.

The real issue for me is that high profile cases with "unusual" results do two things. First, it creates the appearance of impropriety because the general public and media are not going to know all of the facts and makes people generally lose confidence in equal justice. Second, it makes it harder for all criminal defense attorneys because it creates unreasonable expectations in their cases. Everyone now wants the same thing "that basketball player got". One of the hardest things that a criminal defense attorney has to deal with is unreasonable expectations on the part of some clients. I always try to put each defendant's unique situation in perspective, but cases like Pierre Pierce, where someone has heard about them but knows nothing of the facts, law, and legal issues involved can make that difficult.

The case is under an application for further review, so it is not completely settled yet. The Iowa Supreme Court may review the Court of Appeals ruling or they may let it stand as is.

Taking the easy way out

2008-08-20T09:50:27-05:00

It is that time of year again. I saw the kids walking out to their bus stops for the new school year today. The start of classes are usually a good time for that refresher course on what you are supposed to do when the bus stops to pick up kids. I may try to sort through that for you, but I wanted to talk about the statement released from the 100 university and college presidents that asked for the legal drinking age to be lowered to 18.

First a little background: There technically isn't a national drinking age. Each State is responsible for setting the age at which alcohol can be legally consumed. What Congress did in 1984 was tie highway funding to the minimum drinking age chosen by each State. Chose to set your minimum age below 21 and you lose 10% of your federal money for roads and bridges. Of course, nobody wants to have the government tit put out 10% less milk, so by 1987 every state set 21 as the minimum drinking age. For me this is just like the V-chip in your television: another example of the government having to step in and be the parent because a large part of its population is too stupid or lazy to do it themselves.

The argument for 21 as the drinking age is based largely on the "fact" that it saves lives because of fewer drunk driving deaths. There has been a 13% reduction in traffic fatalities among 18-20 year olds since 1984, or about 900 fewer deaths per year. There a couple of problems: (1) The methodology is suspect due to the subjective process that police use to determine if something is alcohol related; and (2) the law doesn't exist in a vacuum so you can't say that the minimum age of 21 is the cause of the reduction. During that same time frame laws against drunk driving were strengthened with much more severe penalties, there was an increase in public education and awareness of drunk driving, there was an increase in vehicle safety standards, and the use of seat belts. The groups like MADD claim that the statistics are "filtered" or "corrected" to take these other changes in laws or technology into account, but whenever you have a group that is so closely identified to a particular position, WATCH OUT FOR THE STATISTICS!

While there is certainly is some small reduction attributable to the change in the law, there are certainly other factors that contributed more (seat belt usage).

So where is the harm in a minimum age of 21? What does it cost? To me, the harm comes in the erosion of respect for the law, the criminalization of normal adult behavior, and creating a culture that glorifies binge drinking. It makes no sense to me that we allow an 18 year old to enlist in the army to fight and die in Afghanistan or Iraq and we tell them they aren't mature enough to go down to the bar with their friends for a beer. I also can't understand why we are criminalizing normal adult behavior. I know of several of my clients that have had to worry and fret over whether they will be able to get a job after college with a PAULA (Possession of Alcohol Under Legal Age) ticket on their record. It is a scheduled violation, so you can't get most judges to give you a deferred judgment on it.

I believe that anyone vested with the rights and obligations of adulthood should be able to legally drink. If you can serve on a jury, serve our country in time of war, get married without anyone else's approval, buy a house, or sign a contract, you should be able to drink. I believe that most parents are lazy. They don't want to confront their children (read: under 18) on anything, let alone drinking. They don't want to take the time to talk with their kids about alcohol abuse. By a legal prohibition for anyone under 21, they get off the hook (unless they are one of the "cool parents" that let their kids drink at home). The government is also taking the easy way out. Instead of an education program aimed at younger persons they preach total abstinence by anyone under 21. That always works. Look at teen pregnancy, STD's or street drugs.

The United States has a higher drinking age than all of western Europe and Canada. Those countries have achieved the "results" of fewer traffic deaths through education and safety initiatives. We could do the same if we weren't so lazy. The bonus is that we would have a law that matched reality and made sense. It reminds me of a quote from The Simpsons when Ned Flanders' hippie parents are at a loss for his hyper behavior...."You gotta help us, Doc. We've tried nothing and we're all out of ideas".

Gerry Spence begins blogging

2008-07-23T11:24:40-05:00

Many people consider Gerry Spence the greatest attorney of our time. He is certainly among the top five. Although he has won an enormous amount of civil trials, with the accompanying millions and millions of dollars, a lot of his most memorable victories have come in criminal cases. Spence proclaims to have never lost a criminal trial in his 50 years as a defense attorney. Although I always question those types of claims, nobody seems to be able to prove otherwise.

Spence has previously stated that he will retire now that the Geoffrey Fieger trial is over (another not guilty verdict on all counts). Maybe as a signal of the winding down of his trial practice, he has now started blogging. You can find his wisdom at the appropriately named Gerry Spence's Blog.

The posts have intriguing titles like: What if freedom is a myth? and The pain of chains. After discovering the Blog this morning I am anxious to find the time to read them. The reason I like Gerry isn't for his record or for the big name cases he's won. I like him because despite his legendary status he has always been a genuine and humble man, or as he calls it, a country lawyer. You can tell he cares deeply and passionately about both the issues in criminal defense (our liberty and freedom) and his clients. I think that a large part of his success comes from his ego not getting in the way of his message.

Defending criminals not as dangerous as crab fishing

2008-07-11T09:55:36-05:00

If I could be someone else for a day, it just may be Sig Hansen from Deadliest Catch. He's a combination of daredevil and savvy businessman, with a kick-ass boat, working in what must be one of the coolest (but deadliest) jobs around. When people find out I practice criminal law, they sometimes give a reaction as if I was a crab-boat captain. "How can you go into a jail and sit next to a murderer....I'd be so scared". This is one of those situations where the initial thought (that your in danger because you're in room alone with an accused murderer) is completely wrong. You are actually extremely safe, because at that point you are the only one that is sworn to help that person...you are their lifeline.

Houston Criminal Defense Lawyer Mark Bennett recently asked us whether criminal defense work is a dangerous profession. His reflections on the subject were initiated by this post from the Blog, Judgment Day:

While many attorneys—especially those practicing criminal defense—have received threats from clients, more often than not it’s just empty talk. I think many attorneys become numb to threatening phone messages and letters, primarily because everything has worked out fine in the past. Two stories over the last week, however, remind us to take these situations seriously.

Mark's conclusion is that we are not in a dangerous profession, and I agree. Criminal defense attorneys are mostly spared their client's ill will and/or hostility. I would bet they deal with far fewer violent clients than attorneys practicing family law or personal injury. As a criminal defense attorney I have never had a client make even a veiled threat to me, and have never been assaulted (although there have been a couple times when I thought it could happen). I got more abuse as a drug prosecutor than a criminal defense attorney, including being spit on and outright threatened. As Mark said, criminal defendants usually mind their P's and Q's because of the situation they are in; it is different in something like family law, where the nature of the case drives people to insanity.

I went to law school at Drake University with a gentleman from El Paso, Texas. His older brother had graduated from Drake Law about ten years earlier and was a general practitioner back in Texas. The older brother practiced some family law, and in a divorce case he was handling, his client was murdered right in front of him at a deposition. The husband stood up in the middle of the deposition, pulled out a gun, and blew his wife away right in front of everyone. Then he walked out the door and fled to Mexico. The real shocker came a few months later, when the man was captured and returned for prosecution. He actually called my friend's brother, who witnessed the murder, and asked if there was any way he could represent him. He declined; it was a conflict of interest because he was a witness (and the guy was freaking crazy!). There have been many high profile cases where the outcome was more than just the client getting killed, usually the attorneys are next in line. That is one of the reasons I don't practice family law: it is way too emotional.

Now, I have heard of some defense attorneys getting punched, it does happen. Usually it is with a defendant that is very outspoken and demanding, the one that will claim that there is a general conspiracy to convict him and everyone is in on it: cop, judge, prosecutor, and defense attorney. If a defense attorney is assaulted it is usually not because of performance issues, but a bid to get different counsel appointed. Two of my colleagues were assaulted in the jail by one of their clients a few years back for that very reason.

The bottom line is that doing criminal defense in Des Moines, Iowa, is a heck-of-a lot safer than fishing crab in Alaska. While I'm happy about that, I'm kinda bummed we don't get our own cool reality t.v. show on the Discovery Channel. Deadliest Brief? Ice Road Lawyers? .....its just not that sexy.

Better to be judged by twelve than carried by six

2008-07-10T09:48:35-05:00

I've had two or three recent assault cases that my clients have wanted to pursue the affirmative defense of justification (self-defense). The justification defense is a hard defense to prove. Although it adds an element to the State's case because they now have to prove that the defendant was not justified in using force on the other person, it is can be an easy task because of the law requires you to seek an alternative course of action if available.

The Iowa Bar Association's Criminal Jury Instructions spell out the requirements of self-defense:

If the State has proved any one of the following elements, the defendant was not justified:

The defendant started or continued the incident which resulted in [injury] [death].

An alternative course of action was available to the defendant.

The defendant did not believe he was in imminent danger of death or injury and the use of force was not necessary to save him.

The defendant did not have reasonable grounds for the belief.

The force used by the defendant was unreasonable.

In lay mens terms they can be thought of like this...

You started it, so you can't claim self defense.
You should have run away.
You didn't REALLY think you were going to be killed or injured and didn't really NEED to use force to protect yourself.
You shouldn't have used force because the average person in your situation wouldn't have felt there was an imminent threat of injury or death.
You shot an unarmed man, kicked him when he was down, or threw one punch too many.

As I said earlier, the one that typically sinks the claim of self-defense is #2. That is the one I see prosecutors arguing most, and the one that comes up most when talking to clients. The reason it causes problems for claims of self-defense is that the law does require you to attempt to avoid the confrontation. The instructions on self-defense further state that:

if a defendant is confronted with the use of unlawful force against him, he is required to avoid the confrontation by seeking an alternative course of action before he is justified in repelling the force used against him.

That is all well and good, but many times with self-defense cases you are talking about situations where a threat is suddenly present and the defendant is put in a situation of having to make a snap decision about how to handle it. The classic bar fight is a good example:

You are at a bar when a drunk patron spills his drink on you and then starts cursing you out for "bumping into him". You try to calmly talk to him or even outright ignore him but he persists. After a few seconds he grabs your shirt...what do you do? Do you collapse into the fetal position, cover your ears, and scream for help? Do you attempt to bolt for the nearest exit hoping he won't get any punches in on the back of your head? No...most people probably either break his grip forcibly, which probably leads to punches being thrown, or they just start punching.

The prosecutor though will say you should have ran, screamed for help, or tried to call 911 on your cell phone. Usually I will then try to explain to the jury that a defendant has a short amount of time to make a decision about what to do, and that there are no perfect choices. You ether use force on the person or risk them using it on you....as Booker T. Washington once said....It is better to be judged by twelve, than carried by six.

Dealing with disappointment 101

2008-07-02T22:35:59-05:00

I had a bad day today. A client didn't get the outcome we were hoping for at sentencing. He's not going to prison, so that's a plus, but I wasn't able to convince the sentencing judge to grant the client a deferred judgment, so he's now a 21 year old convicted felon. I knew it was going to be an uphill battle, but that doesn't lessen the impact. After we were done I had to explain the situation to his mom and dad...and grandfather....and aunt.....and uncle. Not a fun afternoon.

This line of work can be very unfulfilling sometimes. There are days when it is all you can do to convince yourself that being a criminal defense attorney does matter. Its the nature of the beast I guess. The criminal justice system is adversarial in nature, so there is always going to be a "winner" and a "loser". Even where the parties agree on a recommendation, the cases where the defendant or the State doesn't feel that there was some issue that didn't go their way are few and far between.

One of the hardest things to learn as a defense attorney (or a prosecutor for that matter) is how to deal with a bad outcome in a case. It is not taught in any classroom at law school. Even in the clinical programs it isn't something that most law students get exposed to. I was lucky enough to get a lot of those experiences (good and bad) as a prosecutor. I can clearly remember a crack cocaine case where I took a bad beat. I was still a fairly new drug prosecutor with Polk County and I nearly cried when I was talking to the case agent afterwords. I was at a loss to explain what happened and had no answers. It basically came down to...sometimes you lose when you should win.

When you are a criminal defense attorney, a bad beat is even harder to take, and endlessly harder to discuss with the client. The conversation will go something like this:

Defendant: So, what happens next?

Defense Attorney: Well, I go back to the office...and you go to prison.

You can just about imagine how hard that is to explain. It's also emotionally draining, because you know that the client was relying on you. You tell yourself that the facts make the case, and that is true, but it still stings. It is clearly my least favorite thing about this profession. The only thing to do is to pick yourself up, dust yourself off, and get back on the horse. There are other people out there who need someone to fight for them. Besides, if you can't handle disappointment, you shouldn't have gone to law school in the first place.

Cities get the police force they deserve

2008-06-24T21:15:45-05:00

The City of Creston fired Police Chief James Christenson Monday after the city reviewed the sexual assault allegations against him. The Assistant Police Chief, John Sickels, was fired earlier this month after a similar review. The case has obviously caused the citizens of Creston a great deal of concern and a loss of confidence in their police force.

When I was a Sociology major at North Dakota State University, one of my professors talked about communities "getting the police force they deserve". The comments were in relation to the infamous beating of Rodney King, which happened shortly before my freshman year. The first trial occurred during that freshman year of classes. My professor's belief was that citizens have to stand up for tougher standards for the police in their communities. It starts with citizens that are willing to report the officers transgressions, but after that, it comes down to making sure that your elected officials not only hold the police department up to a high standard of conduct, but give them the tools to do their job effectively.

Politicians hate to confront law enforcement. They worry that they will look "weak" on crime issues and that can sometimes be a make or break deal in an election year. They also don't like to admit that there is a problem with their police force. It is easier for them to conclude that the "criminals" are the ones complaining and nothing needs to change. The only way the community can overcome this attitude is to be vocal about police misconduct; to convince politicians that they will pay a higher price for not addressing the issue. It takes an active community, one that cares about these sorts of things. If you have a community that is willing to tolerate police misconduct, a community that doesn't complain or seek reform, they will have a police department that reflects that inaction.

I don't want to somehow shift the blame of this situation onto the citizens of Creston. But I do wonder about what was going on down there before this earthshaking event. Had people ever heard their co-worker complain of getting pulled over for no reason at all? Did people feel like they had a responsive, community oriented police force? My guess is that this was not the first time people had a reason to question the quality of service, but that is just my speculation.

In the 1990s, Los Angeles and New Orleans were two cities that had very well publicized problems with police corruption and brutality. They eventually turned their departments inside out in order to correct the problems (In New Orleans, they needed the F.B.I. to help). One of the methods that New Orleans adopted was a strict "zero tolerance" policy for corruption of any kind. If any officer was accused of misconduct, it was investigated. If the allegations were substantiated, the officers were suspended or fired. The program purged the department of dozens of corrupt officers, and sent the message to the department and the community that corruption would not be tolerated.

In addition to the aggressive stance on internal corruption, police also need community support. This is how the idea of "community policing" came about. Police need to be decentralized and have more of a personal connection to the areas that they police. They need to be given the money for professional training and developement, good pay, and they need to have high standards for persons that are hired as officers.

In the case of small towns like Creston, I know that a lot of this is pie-in-the-sky talk. There simply isn't the budget for a lot of training, and the pay probably doesn't attract the most qualified candidates for the job. That's fine, but when this story first broke, I recall seeing an interview with one of the city officials that caught me off guard. The person being interviewed stated that they couldn't believe the allegation and that she was standing by the officers. It was a reaction I've seen a lot as a defense attorney. I've seen that reaction in the prosecutor when I explain that my client is upset because the police were too rough with them, or that the cops that executed the search warrant stole property from them. It is blind allegiance to the badge; the officer can do no wrong. I am somewhat relieved that the City of Creston has taken the action that they did. I think it sends a good message to police officers around the state that misconduct won't be tolerated. Hopefully, after the dust settles the people of Creston will hire some very qualified, professionals, agree to expand the police budget for better pay and training, and hold these new officers to a high standard. If they do, I am sure they will get the police force they deserve.