I don’t know what the world of civil law is like: so far, I practice only criminal defense. I have resisted repeated encouragement — you could even class some of the encouragement as entreaties – to give in and practice some form of civil law, because I think if you want to be expert at something, you have to focus on doing that thing. Thus, I have been fairly fanatical about the defense of adults and juveniles accused of having committed crimes. I read enough civil law to ensure that I’m not missing something which would make me a better criminal defense lawyer, but I have no wish to practice it.¹

What I do know is that the world of criminal defense does not — neither in my own experience nor in stories I hear from other criminal defense lawyers — function as my friend believes it does.

The world of criminal law has much to do with criminals — both those enrobed and those accused — and not so much to do with law.

A case in point comes from a juvenile case I handled this past week. Since I intend to writ the result, I (again) won’t be going into any specific details on the case. Nor do I need to, because I’ve had more than one juvenile case over the past few years with the identical result.

The case involved what is known in the literature as a “fitness hearing.”

Myself, I refer to them as “fuck you” hearings. We could perhaps call them “fuck you and the attorney you rode in on” hearings.

A “fitness hearing” — and remember that I’m a criminal defense attorney practicing in the area of Fresno, California, so I’m always discussing California criminal law — is allegedly a hearing held when a juvenile has committed a crime and a specific set of circumstances are alleged. The details are unimportant for a blog post. According to statements of California courts, including the California Supreme Court, the purpose is to determine “whether the best interest of the minor and of society will be served” by keeping the child in the juvenile system. In other words, the purpose of a fitness hearing is supposed to be to determine whether a juvenile is “fit” to be tried and convicted — because, as you’ll see, if a fitness hearing is considered, there will never be a question of finding the allegations not true — within the juvenile “justice” system.²

In reality, the purpose of a fitness hearing is to transfer a juvenile to the adult court, to be tried and convicted, or plead out by his attorney, and punished, as an adult.

Because, again, the question of guilt never really is considered.

In fact, under California law, for purposes of a fitness hearing, guilt is presumed.³ You cannot even argue it. However specious the evidence may be against your client, the best you could possibly do is use evidence tending to show innocence as hopefully also capable of showing that your client — the child you defend — is still fit for adjudication in the juvenile “justice” system.

As you will soon understand, only in the extreme case where somehow, some way, the prosecution screwed up and actually charged a juvenile who everyone quickly realized was probably one-hundred-percent innocent — only then could you possibly successfully utilize the evidence to also show that he was fit to remain in the juvenile system.

This, as I said, has nothing to do with the law. It has everything to do with those enrobed and entrusted to apply the law. But the days when the judiciary cared about the law — if they ever existed (and a frequent criticism I hear from many older lawyers is that I pine for a time that never existed) — are long gone.

Today the judiciary is just another arm of the government, coterminous with law enforcement and the prosecution. Only in the most egregiously obvious or easy of cases will the judiciary deviate from the co-extensive governmental bounds to which it has adapted itself.

There is more than one way a juvenile — a child — can come to a fitness hearing. Under certain scenarios, the prosecution will have to prove that the child is unfit. The scenarios I’ve always had to deal with require that the child is presumed to be unfit.⁴ Then I have to show by a preponderance of evidence, that my client, the child, is actually fit; in other words, that the prosecution and probation departments are wrong.⁵

There are five criteria to assess in determining fitness.⁶ The child must prevail — using the preponderance of evidence standard — on each of the five. Lose one, and you’ve lost the whole enchilada.

Or child, as the case may be.

The factual findings made by the juvenile court judge will be upheld on appeal if supported by “substantial evidence.”⁷ Surprisingly, to those who speak English instead of courtspeak, this is a significantly lower standard than “preponderance.”⁸

So what are these five criteria?

As defined by Welfare and Institutions Code section 707, in each of the subsections which cover them, they are:

1. The degree of criminal sophistication exhibited by the minor.
2. Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.
3. The minor’s previous delinquent history.
4. Success of previous attempts by the juvenile court to rehabilitate the minor.
5. The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

In virtually every fitness hearing in which I’ve been involved so far, the Probation Department writes a report in which it recommends that the child be found fit in regards to numbers 2, 3, and 4 above. In virtually every fitness hearing in which I’ve been involved so far, the Probation Department writes a report in which it recommends that the child be found unfit in regards to numbers 1 and 5.

Remember: lose on one, and the child is gone. History. Thrown away. The court washes its hands. The child ceases to exist. He is now an adult.

Even when he’s not.

I almost always write my own fitness hearing brief in which, naturally, I disagree on the recommendation for a finding of unfitness. My points are nearly always variations on the same thing: the law doesn’t allow it.

Why? Because in virtually every case in which I’ve ever been involved, the Probation Report finds the child unfit based on the fact that he committed the crime. For example, in the last fitness hearing I lost, probation had stated, “The minor should be found unfit as to criminal sophistication on the basis of having used a weapon alone.”⁹

But, as I said, the law does not allow that as a basis for finding the child unfit. As multiple courts have noted:

If we were to accept this reasoning, which we do not, all fitness hearings involving a minor charged with any of the offenses enumerated … would reach a foregone conclusion and thereby be deprived of purpose. Such a result is impossible to reconcile with the language of [the statute], which clearly does not create a mandatory or irrebuttable presumption.¹⁰

As I have said in more than one argument to a trial judge:

“Clearly, the legislature intended that the court should exercise its discretion on the facts of the individual case….” William M., 3 Cal.3d at 30.

In doing so, the court should take into account not just the nature of the offense in the abstract, but also the facts specific to the crime alleged against the individual. See, People v. Dillon, 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697 (1983) (emphasis added). The California Supreme Court stated that a juvenile can use police reports and other submissions to the court “to argue that his participation was not as grave or serious as the charge would initially lead a court to conclude.” Jones, 18 Cal.4th at 682, quoting People v. Superior Court (Zaharias), 21 Cal. App. 4th 302, 307, 25 Cal. Rptr. 2d 838 (1993)(emphasis added).¹¹

This argument, however, has never swayed a judge before whom I’ve appeared yet.

In one case I handled, where a child was charged with first-degree murder, the child in question had been born nearly dead.¹² So deprived of oxygen was he that his intestines began to rot and sections of them had to be cut out within days of his birth. You can imagine the impact the original insult had on his brain. The subsequent “short bowel syndrome” meant further insult due to nutritional inadequacies. The child was alleged to be part of a group which killed a man. The murder was a terrible crime. Horrific. Ugly. Most decidedly uglier than your typical murder. But eyewitnesses at the scene saw two figures — they could not identify anyone — standing apart, not participating, who then ran away. My client was interviewed and — there’s no other way to put this — tricked into saying that he actually hit the man “once.” During one part of his “confession,” he alleged he hit the man “once” on the leg; during another part, after the interviewer had repeatedly rubbed his own belly while asking the question, he said he hit the man “once,” but this time his “once” was on the abdomen. My world-known expert testified for two days concerning the child’s mental capabilities. If you cobbled together one million children, you could find approximately a thousand who were as bad off as my client. A thousand sounds like a lot, unless you remember you have to go through a million to find the thousand. Oh, and if you believed all the evidence, he was given beer by the other kids, which he drank until he threw up. After which they teased him mercilessly and had a good laugh. According to the expert, who had authored over 225 peer-reviewed journal articles and led symposia over 80 times in numerous countries throughout the world, my client was probably so overwhelmed as to be frozen in his tracks while the murder occurred before him. And remember, I had eyewitnesses that at least two figures appeared to be standing back, not moving. Just standing there frozen.

But this was not enough to overcome the preponderance of the evidence standard. Because someone killed a man. The child was present when it happened. Whatever the degree, whatever the level, of his own involvement, the circumstances and gravity of the offense were horrific. However mentally impaired he was, his level of criminal sophistication was too high, because he did not run away soon enough.

The prosecution never bothers with a brief. There’s no need. The law as I stated it above is crystal clear, but no judge I’ve ever seen will follow it. So why should a busy prosecutor waste time, energy, and paper writing a brief, even to refute my points and authorities?

Which brings me back to my friend, the civil law attorney. Based on what she’s told me, I agree that the case is as good as they get on the issues involved in it. As I said, I won’t give details. I will only tell you that it involves medical marijuana. I agree with my friend that if ever there was a case that shows law enforcement is not only pursuing criminals who cover their illegal activities under the guise that they are exempt, but is going after anyone at all who possesses marijuana, this is the case. It’s possible — possible – that because the individual being targeted is destitute and because it’s such a clear-cut case, I might be willing to take it on pro bono.

But I’m not at all certain it’s the no-brainer that my friend thinks it is. I’m not at all sure this will be the “poster child” for all that law enforcement is doing wrong in going after individuals like the one she is referring to me.

It’s not because the law is against this person. Not all all. Not even remotely.

It’s because I’ve been a contestant a number of times already on The Judicial Reality Show.

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• We’re Are All Truman Burbank
• Ignorance of the Sausage

1. Maybe this will change one day. It’s becoming harder and harder to make a living in this economy based on doing only criminal defense. Potential clients have less money and, unlike the world of civil law, they have the option of going with a public defender.
2. People v. Superior Court (Ronald H.), 219 Cal.App.3d 1475, 1479, 269 Cal.Rptr. 4 (1990), citing People v. Chi Ko Wong, 18 Cal.3d 698, 718-719, 135 Cal.Rptr. 392, 557 P.2d 976 (1976).
3. Rene C. v. Superior Court, 138 Cal.App.4th 1, 10, 41 Cal.Rptr.3d 71 (2006).
4. Rene C., 138 Cal.App.4th at 10.
5. Id.
6. People v. Superior Court (Jones), 18 Cal.4th 667, 682, 958 P.2d 393 (1993).
7. Marcus W. v. Superior Court, 98 Cal.App.4th 36, 40, 118 Cal.Rptr.2d 919 (2002).
8. I can’t point you to a case that actually states this. You have to look at the results of cases where “substantial evidence” is considered. Oh, and be sure to look at the ones where the burden is on the prosecution, or where a lower court judge’s decision is in question. If you look at cases involving “substantial evidence” where the burden was on the defense, you will find that “substantial evidence” is suddenly a very, very high standard. If I made my living studying linguistics, or if I were independently wealthy and could devote the time to it, I would write an article on the way these standards, defined by exactly the same labels, change, depending on whether you’re a government agent, or a defendant.
9. Without pulling the file, I believe that is an exact quote. It was so stunning to me that they would actually say such a thing that it was seared into my brain.
10. Jones, 18 Cal.4th at 682-683, quoting and citing Edsel P. v. Superior Court, 165 Cal.App.3d 763, 777, 211 Cal.Rptr. 869 (1985)(emphasis in Jones); In re William M., 3 Cal.3d 16, 30, 473 P.2d. 737 (1970).
11. The internal cites here may be “incomplete” in the traditional sense, because this is an extraction from one of my own briefs.
12. The details of this case are now a matter of public record, since I lost the fitness hearing and the child’s family subsequently told him to accept a plea agreement that resulted in 11 years for manslaughter.

But what someone has — or, rather, a few very rich someones have — been trying to do is a crime.

So today, I’m writing about SOPA/PIPA. Sounds like some kind of disease, doesn’t it? Soh’-pah pih’-pah. Maybe a virus.

And it is, actually. It’s the most powerful Internet virus yet.

SOPA/PIPA are bills being debated in the House of Representatives and Senate respectively to make it easier for the entertainment industry — essentially those wonderful folks from the MPAA — to shut down Internet websites that they think are infringing on their intellectual property.

Download pirates strike fear into MPAA and the U.S. government, causing them to become insane.

The MPAA, for those who have been living under a rock, is the company that likes to sue grandmothers, even dead grandmothers,  homeless people, filed thousands of other lawsuits, some of which were utterly ridiculous, targeted downloads of movies they for which they might not even own rights, and even hired hackers — because the MPAA is all about making everyone 100% legal – to go after its enemies.

You can read more about how wonderful the MPAA is over at TechCrunch.

So they’ve tried using lawsuits. They’ve tried using hackers. They’ve tried co-opting law enforcement agencies to work as their own private police force. (They’ve had some success, as some police forces even use deadly force to stop movie pirates.) Now they’ve decided it’s necessary to give the entertainment industry control over who can access the Internet.

All this, for nothing.

And now they’re pissed that people are fighting back.

I think Ken at Popehat put it best. Ken quotes an MPAA press release, which states:

Only days after the White House and chief sponsors of the legislation responded to the major concern expressed by opponents and then called for all parties to work cooperatively together, some technology business interests are resorting to stunts that punish their users or turn them into their corporate pawns, rather than coming to the table to find solutions to a problem that all now seem to agree is very real and damaging.

As Ken explains,

Only the MPAA and a used-up ex-Senator like Dodd could imbue “technology business interests” with a mock-populist sneer whilst lobbying for one of the titans of American business interests. Note also the sneer at internet users, who are mere “pawns” of sites participating in the blackout.

The only thing I can add to that analysis is to explicitly point out the irony Ken impliedly notes: the MPAA complains that people opposing the MPAA attempt to turn everyone (and the Internet) into mere pawns of the MPAA are doing so only because they are “mere ‘pawns’” of those who oppose being made into MPAA pawns.

Okay. Maybe I could have said that better.

It is, however, that convoluted. The MPAA wants control of You, the Internet, and Everything. They want to ensure it all exists for their benefit alone. Anyone who protests is a mere tool of…um…those who protest.

Well, I’m fine with that. I’d much rather be my own tool than to be moved about as an MPAA pawn. As I understand it, if SOPA/PIPA were to pass, my own website might one day be shut down on a trumped-up infringement charge. (For the record, most of the media I use here is purchased by me from iStockPhoto; some is created by me with my own camera and Photoshop; some may come from other sources, but, so far as I know, via linkage or by virtue of being in the public domain.)

And speaking of tools, SOPA/PIPA could become a mighty-fine tool for the government to use to shut down websites whose speech they dislike, while pretending not to violate the First Amendment.

Don’t believe me? Ask people who get arrested after shoplifting pens and pencils, or packs of gum, and charged with felony burglary because misdemeanor petty theft doesn’t satisfy the government. In my own experience, these are what I call “tonal crimes” — if your skin is the wrong tone, you’re a burglar; if it’s the right tone, you’re charged with petty theft.

In any event, SOPA/PIPA is why a number of websites, including this one, will be offline for at least part of the day on January 18, 2012. Want to know that the potential impact of SOPA/PIPA could be?

When you see all the sites that go offline tomorrow, just imagine if we were shut down not by our voluntary protest, but because we’d pissed off the wrong people, and they had SOPA/PIPA in their toolbox.

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• Stop SOPA
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Take these two cops, for instance.

Green says he and his fiancée couldn’t believe what they were seeing and he videotaped the incident.

I couldn’t believe it. He seen me taping. He looked up at the camera a few times, and he still hit her like that, and I can’t believe he didn’t try to diffuse the situation at all,” Green said.

Unlike Green, though, I know why the cop “looked up at the camera a few times, and…still hit her like that.”

It’s because he figured that video would never see the light of day. Across the country, police are striking citizens, giving “beatdowns” to citizens, even killing citizens and then, in addition to burying citizens, they work to bury any evidence. In the old days, this was called a “coverup.”

Today, it’s Standard Operating Procedure.

Don’t take my word for it, though. You can see it for yourself:

• Police Arrest Illinois Man for Videotaping Traffic Stop
• Rochester Woman Arrested After Videotaping Police From Her Own Front Yard
• Cooper Gets Arrested for Videotaping Cop
• NH Man Arrested for Videotaping Cops…Again
• Police inquiry reveals violations in arrest, beating of videographer
• Navy Vet Arrested After Videotaping Police In Tampa
• Growing Number of Prosecutions for Videotaping the Police
• Wis. man sues police over arrest for videotaping event
• Loyola Professor Detained For Videotaping Teen’s Arrest

They aren’t afraid of going after the press, either.

• News photographer arrested on Long Island for videotaping police
• Clint Fillinger, Photojournalist, Arrested For ‘Resisting’ Milwaukee Police After Filming At Fire Scene
• Three-time Wisconsin ‘Photographer of the Year’ arrested during Occupy rally
• [Journalism] Faculty member handcuffed: Videotaping sparks police incident
• Insane Cop Arrests ABC News Reporter For Filming Traffic Accident
• Police vs Reporter, US – ABC TV Crew Pulled Over, Gunpoint

This is happening despite the fact that the courts have repeatedly ruled in favor of those doing the videotaping.

• Norfolk Man Who Refused to Stop Videotaping Police at Demonstration Is Not Guilty of Disorderly Conduct
• Court upholds ‘citizen’s right’ to film cops
• First Circuit Upholds Right To Videotape Arresting Officers
• Judge says recording police stop OK

There’s one thing this boneheaded cop didn’t count on, though:  Jermaine Green is a United States Army veteran who had just returned from six-years in Iraq and Afghanistan. The cop obviously did not know that when he tried to intimidate Green into giving up the video.

Among the other things the big bad cop who has to beat up on mentally-challenged women wasn’t aware of, one was the Army motto: “This We’ll Defend.”

The police are nothing, however, if not resourceful.

A sheriff’s department spokesman told NBCLA over the phone the department would not…look at the videotape….

You know the old saying, “Out of sight, out of mind.”

The thing is, it’s not out of our sight: the cop is out of his mind.

This is the world police state in which we now live. Anytime anyone sees the police approach a citizen, cameras should be whipping out all over the place.

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• Naked Power Play
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Let’s see if that helps me give form to my thoughts in a way that you, dear readers, might begin to develop a similar, hopefully less-inchoate, irritation on the issue. Perhaps we can even arrive at a place at least more solid and substantial than President Obama’s backbone.

Americans these days have amazingly short memories. It wasn’t always so. In fact, had it been so, the original United States of America would never have come into being.

The Founders of the original United States of America, not this bastardized version that has supplanted it and in which I now find myself stuck living, had a rock-solid historical ground from which they drew the greatest ideas to use as building blocks for the federal republic they constituted.

Nearly every one of them appears to have been well-read in the ancient political and philosophical treatises of Greece and Rome, as well as much else of what we might today call “The Great Books of Western Civilization.” They didn’t just know of them, as one might if one paid very, very close attention in an American university these days; they had digested them.

In addition to this “book-learning,” they had a ready grasp on the historical failures of nation-states that opposed freedom, including particularly the one against whom they had fought for their — for our – independence. The history of the country from which they had broken included both positive and negative lessons, from Magna Carta to the Star Chamber.

When you “listen in” on their own discussions, by reading the letters they were always writing one another, you clearly see how the best ideas and the worst mistakes combined to bring about something new, something that became known as The Great American Experiment.

As the Experiment was being announced, Alexander Hamilton, writing the first of many Federalist Papers, noted:

[I]t seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

In all the history of the world before then, there had been much discussion, much learning from mistakes, but no one had ever before come up with a plan calculated to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to [a People] and [its] Posterity” by establishing a limited government which was, nevertheless, “democratic.”

The Constitution of the original United States of America, the Great American Experiment, was the first.

I’m fond of pointing out that Nazi Germany did not spring fully-armored from the brow of Hitler. A counterpoint is true regarding the United States Constitution: it did not spring fully-formed from the minds of the Founders.

It had a history. Experiments in democracy — though not quite like ours — had existed before. Athenian democracy was known at least 2500 years ago. Maybe longer. It was probably about the closest thing to a “true” democracy that there ever was. As far as the Founders of the United States were concerned, it was most instructive for demonstrating how unlimited, unchecked power was harmful even when exercised by the People, instead of oligarchic leaders.

There are many other examples in the history of democracy.

Before their government formed an Empire, the Romans made an attempt at something similar to a democratic form of government. Ironically, in many ways it more closely resembles what the United States has become today: a show, with all the appearance of a democracy, where the true power lay in the hands of a few wealthy elite.

But while I’m here to talk about the importance of history in helping us all remain free — while I’m writing about the importance of history, or, more properly, the importance of our knowledge of history — I’m not really here to give a history lesson. I’m afraid I’ll have to leave that as a highly-recommended exercise for the reader.

My point is not to teach history, but to make an argument for its importance. If we wish to remain free People.

That history I wish you all knew was debated in the constitutional convention and hammered into the original United States Constitution which finally emerged therefrom — still not fully-formed. Like a child, both the original United States and the Constitution itself had what we might call “formative years.” The ideals it laid down, however tightly-woven they were, still needed to be shaped to direct the flow of a growing democracy and keep it pointed in the right direction.

And for much of the early history of the early pre-bastardized United States of America, leader who were equally well-educated lovers of freedom assisted in its formative years.

Then along came the first in what was to be a line of dictators beholden to big business: Abraham Lincoln, the railroad lawyer.

Oops! Did I catch you by surprise? (To be honest, I caught myself by surprise a little bit: when I started writing this blog post, I didn’t expect to talk about Good Ol’ Dishonest Abe.)

And while what I just said is very much true, I’m going to skip over all the supporting history — again, consider it an exercise for the reader — to end with this: the reason that a bastardized version of the United States, one which does not deserve to survive, has taken the place of the real United States of America, is that you — all of you — have forgotten history.

In particular, you’ve no clue about the history our Founders knew. The Star Chamber. The Magna Carta. The Romans. The Greeks. For all but about one percent of you (and that’s no coinkydink), those are just so many words.

There’s a reason for that. Believe it or not, it goes back to Dishonest Abe’s bosses, before he became President. I’ll let George Carlin explain, but I hope you’ll think about what he and I have to say, and do something about it.

Comments

• January 9, 2012, Eric L. Mayer writes: Rick, this is really a great post. It has passion, the issues are ripe, and your heart shows-through. But, I think it is wrong. Our system, like every other system of government created, ever, is made by those who have all the power. Generations of those with power bequeath it to the next generation. They do this until the system breaks or they are overtaken by others who have more power. There are highs and lows, dissent and occasional revolution, but the system always returns to its natural, harmonic states. Those privileged enough to create a system of government also have the privilege to create it in a way that satisfies their needs. Those founding fathers were the ruling class of the colonies. They didn't like the then-existing government because it put limits upon their ability to increase power. They were all in debt to those who controlled the British government (both financially and otherwise). Were they truly kindly and seeking to make everyone equal, there would be no electoral college, and their obvious issues with brown people.....well.....you know. The fact is that those with all the power (whether drunk, sober, sane, or insane) know two important things about the masses, and they have known these things through and throughout: 1. We all have something to lose. 2. When we are comfortable (in whatever ways comfort us), we stop paying attention.

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I hate that people use it; I hate to hear it. It’s pointless, usually slanderous, and in almost all cases — except perhaps in Kings County, California, where it is said contract attorneys will lose their contracts if they upset the prosecutors in their black robes judges  – unwarranted.

I’ve never been a public defender. But when people ask, “Are you an attorney, or a public pretender?” my reaction is “a what?! what’s that?” I know exactly what they mean, of course, but I ask it in a tone that (I hope) communicates that I’m wondering if it’s some street performer, maybe a homeless actor or comedian.

And that I’m quite amused that there’s a name for such persons.

After they explain, I actually take some time to try to disabuse them of their erroneous beliefs regarding public defenders. I ask them: if you had to have difficult surgery, would you want the person who did your kind of surgery at most a few times a year, or the one who does it perhaps a few times a month?

That’s what you get, when you get a public defender: someone who sees more criminal cases in a month than most private attorneys see in six — possibly more than most private attorneys see in a year.

They certainly do more trials. While everyone loves — at least I think all us defense attorneys do! — being in trial, trials are expensive, and not just for the client. First, there is a significant amount of preparation that goes into getting ready for trial. Trying to figure out how to get the client, who has already paid a bundle for representation, to fund the investigation, can be difficult. If, as is often the case, your client was barely able to pay for representation, you’re going to be trying to convince the court to foot the bill for your suddenly “indigent” client.

Trials are tough in another way, too: the intensity of focus that must be maintained — listening to your client whisper suggestions (or complaints) in your ear, or reading the notes they insistently thrust at you; observing the witness for visual cues, in addition to whatever he or she is actually saying; watching jurors, trying to divine what’s working, what’s not, and where to place the emphasis in your client’s story; watching the prosecution to see if there’s anything you can pick up from them; and, of course, making sure the judge stays awake.

But finally, there’s the biggest hit of all: private attorneys are nearly always not just attorneys; we’re also business owners. When we’re in trial, though, we’re not tending to the business of law. We’re not meeting other clients, or potential clients. We’re not (usually) making our other, “minor” court appearances. We’re not working on anything pertaining to our office itself. While you’re in trial, you’re usually not doing anything else. You’re sure as hell not blogging!

You’re going to be at the courthouse usually from the time it opens until it closes, working the trial.

Then you’re headed back to the office or home to prepare for the next day of trial.

Public defenders don’t have to worry about such things. When they have to do a trial, they just go do it. (Well, okay. Never having been one, I’m guessing on this.) They have colleagues who are tasked with covering for them.

For all that, plus the “extra coverage” from which an indigent client benefits by virtue of there being more than one public defender, clients are not going to be charged thousands, or tens of thousands, of dollars. So the attorney isn’t hampered in doing a trial and the client can afford to go to trial, if that’s what he or she wishes.

That adds up to one thing: public defenders are more likely to go to trial than private attorneys, more often.

Which gives them more “practice” at the practice of law.

Then why hire a private attorney at all? Why not just go with the public defender always? Why do they get such a bad rap? Why do the people who benefit call them “public pretenders”?

There are really three reasons. One is that they’re free. The second is that public defenders are overburdened with work. The third reason is related to plea bargains.

People typically do not value what is free. Even if you hire a private attorney and he does as bad a job as — or worse than — you think the public defender is doing, you’ll tend to believe your attorney is better. This is because not only do people not value what is free; they hate to admit they made a mistake and gave a ton of money to someone who is not better than what they think they would get for free.

The fact that public defenders are overworked doesn’t leave them a lot of time for “extras” — what some call “hand-holding” and some of us just think of as an open line of communication and accessibility for our clients. A public defender and a private attorney may handle the case nearly identically, but public defenders are so busy with the number of cases that they don’t have time to chit-chat with clients. This kind of goes back to the point made above, that private attorneys aren’t just attorneys: we’re also business people. Any business person who doesn’t remember that happy clients are necessary if you want to stay in business — well, that person isn’t going to stay in business long. Clients who feel abandoned by their attorneys are not happy clients. Clients who don’t understand what’s happening in their cases are not happy clients. The sad truth is that the public defender may be working the case better than the private attorney, but the lack of time means they don’t tend to clients’ psychological needs which may have little to do or nothing to do with the legal issues themselves.

The third thing I noted — plea bargains — has always struck me as interesting. On more than one occasion, I’ve noticed that when public defenders talk to clients about plea bargains, the clients think they’re being sold out. If a private attorney later comes in with the same offer, it’s accepted — and the client sometimes even acts as if the private attorney did some wonderful magical thing for them which no public defender would ever do. Note what I said: same offer.

Obviously, this is also a perception problem. I’m just not sure why it occurs. It could be related to the same thing that gives public defenders all their experience: they just have more cases. More cases also mean more cases that are going to end in plea bargains. A private attorney’s client doesn’t usually get to see her interact with her other clients, whereas clients sit there for hours sometimes watching the public defenders deal out case after case. Or maybe it’s just the same as the other perceptual issue noted above: maybe the public defender workload means they spend less time explaining and eliciting questions when communicating offers.

Whatever the reason, the fact of the matter is that, for the most part, public defenders are selfless, hard-working, committed individuals. Many of them could work less hours and make more money if they left the public defender office and became private attorneys.

I’m sure there are some bad public defenders, just as there are bad private attorneys. I don’t personally know any bad public defenders (I do know some bad private attorneys). I tell people who say things like “public pretender” that those who are bad probably can’t last long in an office. They have oversight, a.k.a. bosses, who can remember from one case to the next. That’s not really the case for private attorneys.

“You know what happens to public defenders who screw up and do a lousy job?,” I ask people. “They become private attorneys.”

Now, if you can afford to hire a private attorney like me, then you should. For one thing, public defenders are already overworked; they shouldn’t be stuck working on cases they weren’t intended for. They weren’t intended to be gladiators for those who have the money to hire their own. They were intended to ensure that even the poor have their cases fought by a trained gladiator.

For your part, you’ll get someone who has more time to spend with you, even when it isn’t important to your case for that to happen. And you’ll perhaps help free up a public defender so that he or she has more time to spend helping people who aren’t as well-off as you.

Whether you are able to hire a private attorney, or not, know this: none of the public defenders that I know — with the aforementioned exception in Kings County (and I’m sure not all of them are bad) — are pretenders.

Comments

• January 13, 2012, Robert Goodwin writes: Mr. Horowitz, I just want to say thank you. I am a public defender in Washington state who just stumbled onto your blog and I am truly impressed and appreciate what I've just read. It is clear from what I've just read that unlike many private attorneys, you have integrity and do not compromise the truth in order to sell yourself to a prospective client. Reading this was a breath of fresh air and even though I do not practice in California I look forward to reading your blog posts in the future. Wishing you and your clients the best, - Robert Of the Pierce County Department of Assigned Counsel
• January 13, 2012, Rick writes: Thanks for your comment. It's not necessary to thank me for being honest, but I still appreciate the sentiment. Clients and potential clients know that I will be up-front and honest about their cases, as well, and that while I will work hard to bring about the kind of result they (we) want, I won't mislead them, either. I see no reason to be different when it comes to anything else, like talking about Public Defenders.

Related posts:

• Are Americans Just Mean and Stupid?
• A Judge’s Duty to Public Safety
• The Mosh Pit of Non-Adversarial Convictions

Don’t look for it: I’ve de-published it.

The post was a wonderfully fulfilling piece of venting.

I woke several times in the night, however, thinking about it and considering that it might not be what I wanted for my blog.

What I want for my blog is to use it to explain and to show that what is happening in the world of criminal “justice” is not at all what you — and I’m hoping by “you” that I’m targeting ordinary people; not just attorneys; not just the choir — really want.

I think I have some idea of what you want because, believe it or not, I’m a human being. I really do want the same thing. I’m no different from other human beings when it comes to my desire to feel safe, to have my family be safe, and to have the world we live in be a better place.

The real difference between us is that I’m not the manager at Sears, Roebuck. I’m don’t stock shelves at Target. I’m not the Human Resources Manager at Valley Yellow Pages. I don’t work as the cashier at the Von’s down the street. I spend part of my day in a Prius; none on a tractor. I don’t greet people at the door of the AT&T store on Blackstone. And I’m not a forklift driver at any of the many companies, large and small, scattered throughout the Central San Joaquin Valley.

These are all fine jobs. You are all good people. As am I.

But I am a criminal defense attorney.

As a criminal defense attorney, I see things you never see. I see things you don’t want to see.

Believe me.

Believe me also when I say that I didn’t become a criminal defense attorney because I thought it would be really cool to defend some guy accused of committing “hot burglaries” and — well, let me first explain that phrase.

For those who don’t know, a “hot burglary” is similar to a home invasion robbery, with a little less violence. It’s similar to an “ordinary” burglary, except that the people who own the place being burgled are usually sleeping in the burgled place while it happens.

Sometimes, if you believe the accusations, things other than burglaring happen to those who sleep.

Even if they are only 10 years old.

But I see other things, too, that you do not see. I see that sometimes, after these things I just mentioned have happened, the police are eager to arrest someone.

Anyone.

It might be the guy who did it. It might not be.

There is an old saying that there are two things you do not want to see being made. One relates to the law.

If you work at the local 7-Eleven — and there is absolutely nothing wrong with that; I use it as an example because it’s hopefully “normal” — you probably don’t see a lot that is really, truly odd. If, on the other hand, you are a police officer, a social worker, or a criminal defense attorney, the “odds” that what you see are just that — odd – go up astronomically.

Criminal defense attorneys, though….

You might pity us because of our clients. “Oh, god!,” I hear more often than not. “How could you defend that person? How hard that must be!”

The truth is, though, that sometimes our clients are not guilty. Even those who have committed some crime have often not committed the crime of which they are accused. And even when they have — yes, please think about this! — even when they have, it was an accident. A one-off incident that will never recur again.

That’s not at all to say that it’s okay. It’s not to say that all should be forgiven. However much it might actually be as effective in preventing future crimes, I know of no one who will say, “Go, and sin no more.”

Well, okay. Maybe I’ve heard of One. But we know what happened to Him.

Regardless of our reaction, though, most of the time the person who committed a crime is never going to commit another. It’s true. So I have no real problem fighting to ameliorate the destruction the rest of society wishes to visit upon them and their families.

(And please remember that some of my clients will actually be innocent; arrested by accident, because the police honed in on the wrong “suspect”. Suspect, suspect, suspect! The word doesn’t even rhyme with “guilty.”)

But you know what’s harder to stomach? The people who commit crimes — and they are crimes, however much many of you might approve them — on a daily basis. We see it. We the criminal defense attorneys. We know about these crimes.

I’m talking about planted evidence. I’m talking about dishonest police reports. I’m talking about lies.

I’m talking about cops.

The police, like us, they see these really nasty things happening every day. Unlike us — I don’t know why — they adapt by seeing the world as black and white.

More often than not, if you’re black, you’re on the losing side.

But whether you’re black or white, the point is that once the cops hone in on you, you’re going down. You’re guilty. You did it. They know it.

And so they lie.

We defense attorneys see this.

I don’t know what makes me different from some of them. (Not all of them succumb. Not all of them are liars.) I know, though, that I am different. It’s not that I’m necessarily smarter. I’m not going to tell you my IQ. For one thing, I’m not sure how much that matters. But there are people who think it does. I’ll just tell you that the average IQ of lawyers has been trending downwards and isn’t that much different from the average police officer these days.

I do know that, on average, they would rather err on the side of putting an innocent man in jail. They don’t do it on purpose. Hell, I seriously wonder if they even think about that as a possibility. Do they stop and wonder about how many innocents they lock up by lying? I don’t know. Maybe. If you ask them, they’re all about the safety.

Like Benjamin Franklin.

I couldn’t live with myself if my desire to be safe meant innocent people had to spend their lives in cages. But maybe they comfort themselves by thinking that sometimes the innocent have to go to prison, to make sure other innocents (like 10-year-old girls caught up in hot burglaries) don’t suffer. I understand it, but I couldn’t do that. I don’t see that the 10-year-old, already traumatized, is made better by wrongfully convicting someone who the police focused in upon for all the wrong reasons.

A bird in the hand may be worth two in the bush, but two wrongs do not make a right.

In a way, though, this has been a huge digression. I started off telling you about a post I made last night, but deleted in the wee hours of this morning. I didn’t tell you the rest of the story. I didn’t show you the post.

And I’m not going to now. Maybe that will bother you. I don’t know.

But I hope you will stop to realize, there are things I know, about our police officers, that you will never know.

Those things drive much of what I write.

What you can know is this: that now-de-published post was born — and was borne — out of the pain of knowing.

Comments

• January 5, 2012, TJIC writes: Excellent post.

Related posts:

• If It Saves Just One
• Three Daughters Lost
• Shocking? Only to the Constitution…and to the Humane

As with his statement that “it’s wrong,” I can find no support for calling it Corollary 92, but at least the latter claim is funny.

The former — plus the claim that it is “unhelpful” to make such statements — is not only unconvincing because similarly unsupported, but demonstrates why the mere statement of Godwin’s Law itself should not be considered the talisman it has become for discounting those with whom we disagree.

Since I am one of those who frequently claims that the Constitution is dead and since I think the position stated above is the one which is unhelpful, and even harmful, it is only fair that I respond.

An honest and engaging response is, after all, the way to address arguments and speech with which one disagrees.

[This is one] way to expose an idea as fallacious. That is to speak out against it — to drown out the hatefulness of the wrongful idea with rationality, facts, and human concern. This is the response of strength, not weakness. It says, “We’re not afraid of your ideas, because in any fair contest, ours will win and yours will lose.” This is the first positive answer the First Amendment gives to those who would ban speech that appears bad. Speech isn’t the problem; it’s the solution. In the words of Supreme Court Justice Louis D. Brandeis, the remedy is “more speech, not enforced silence.”¹

In reading this blog entry, let’s keep something in mind. First off, I did not start this blog entry off with a lie. I do very much respect the opinions of the man whose blog entry inspires this one. So let’s also note that while I think the above-quoted passage from Sableman is applicable (or I wouldn’t have used it), it isn’t a perfect fit. The blog entry to which I am responding doesn’t — at least I think it doesn’t — qualify as “hatefulness.”

I do think it presents a wrongful idea.

The wrongful idea I take it to present is that statements that our Constitution is dead, or that our nation is either already — or on the way to becoming — a police state, are themselves unhelpful and wrong.

In arguing this, though, I recognize that there are points to be made by both sides. Life and death, as well as other states delineated by the labels used to characterize what is happening in our nation, exist on a continuum. The nation, or a thing like the Constitution, or concept like “our criminal justice system,” is not limited to being either “dead” or “alive”; those are the endpoints in the process of dying. To a certain extent, the claim that the Constitution is either dead or not dead is a judgment call. Some doctors might continue heroic efforts to salvage a patient before conceding death, while others with either less patience, more experience, or simply more faith in the correctness of their own decisions might call it sooner.

On the issue of the Constitution, I appear to have less patience than others. I’ve already called it more than once. I’ve done this because I believe the exceptions carved out by the courts to the rules laid down in the Constitution have swallowed those rules. The protection the Constitution once promised from a too-strong, unlimited government is gone.

I say the Constitution is dead because it is applied not as intended. Not only is it not applied the way it was intended, shielding us from an over-intrusive government, but it was intended to be applied all the time. Now, it is applied rarely. Terrorism? No need for constitutional protections of any kind. Drugs? No Fourth Amendment. DUI? The DMV isn’t part of the government subject to constitutional limitations.

The Constitution has become like Swiss cheese, full of holes; and just like Swiss cheese, sometimes it works, and sometimes it doesn’t.

There is another reason, though, that intelligent minds might disagree with my assessment. I live and work in Fresno, California. Sure, I read a lot about what’s happening elsewhere, but my daily exposure is to the criminal “justice” system in this area. Maybe where some other lawyers live, the courts are more supportive of the Constitution. I have my doubts about that, but it’s possible. Germany’s democratic republic didn’t fall to fascism in a day. Someone practicing in New York might have different experiences, providing a different perspective, than someone living in — oh, I don’t know — maybe Maricopa County.

Godwin’s Law and “its corollaries” (and let’s not forget Henderson’s Corollary) are sometimes funny. Maybe they’re even humorous most of the time. But if you believe that all you have to do to shoot down a thought or an idea is to shout out Godwin’s Law, you’re just fooling yourself. Worse, you may fool others, and there is a very real danger in trying to make a laughingstock of someone just because he warns of fire when he spots smoke, while you prefer to wait until you see flames.

As alluded to above, even Nazi Germany didn’t spring fully-armored from the brow of Zeus. There really was a time in Germany, before the reign of the Nazis, in which there were constitutionally-protected freedoms. As Ingo Müller has pointed out, the German legal system was brought down not overnight, but over a period of time, by “the doctrine of ‘national emergency.’”²

Sound familiar? There really is a reason to be concerned when a democratic republic with constitutionally-protected freedoms shows signs of going down the path of horrors traveled by that former democratic republic with constitutionally-protected freedoms. As Ingo Müller’s work lays it out, the path from freedom to fascism doesn’t happen in a heartbeat.

The problem that makes the assignation of Godwin’s Law funny is that too many people too quickly draw comparisons between something they dislike and the Nazis, or Hitler. Similarly, in arguing about the Constitution, or the criminal justice system, not every incident will rightly count towards “proof” that one is dead and the other warped. Or even that both are warped. To jump too quickly from some minor aberrant episode to the negative conclusions about the health of either is sometimes to engage in a logical fallacy. (Sometimes it is merely a mistake of inductive reasoning based on incomplete data sets.)

But that’s just my variation on “the real problem,” so you can just wave Godwin’s Constitution at me and ignore my whole argument.

Until after the flames consume us.

Comments

• January 2, 2012, shg writes: I don't know why you would think the feeling isn't mutual. In any event, I always read your posts. Sometimes I agree. Sometimes, not so much. Either way, your posts are always of interest to me and I respect your views, even when I disagree with them.
• January 2, 2012, Rick writes: Thanks, Scott, I'm glad to hear it. I guess I've misinterpreted your action in removing me from your blogroll and refusing me any link-love. ;) I thought it was because you disagreed with me so strongly over one of my positions.
• January 3, 2012, John David Galt writes: Godwin's Law has been known on Usenet for decades, but seems to have mutated multiple times. When I first ran across it about 1986, it said roughly: "Every flame-war [loud debate in a Usenet newsgroup] will continue, as long as necessary, until one participant compares another to a Nazi. When this happens, the side that made the comparison immediately loses the debate." This "law" seems to have been intended as more funny than serious. If taken seriously it has several flaws, including the fact that some arguments *are* about Nazis, or about actions or beliefs similar enough to those the Nazis actually performed that such a comparison is valid and helpful. For instance, if we were arguing about what forms of interrogation should be allowed, and what forms should be outlawed as "torture," it is certainly quite relevant to compare them to things we know were done by the Gestapo, or for that matter the Kempeitai or KGB.
• January 3, 2012, Rick writes: Exactly. I'm familiar with the original form. I was one of the founding moderators of the USENET group soc.culture.jewish.holocaust. Imagine the fun with Godwin's Law there. ;)
• January 4, 2012, Keep Shooting Each Other | RHDefense: The Law Office of Rick Horowitz writes: [...] right, Scott Greenfield. The United States of America no longer exists. (Invoke Godwin’s Law here.) In its place there is some other country — a freedom-hating country — and a [...]

Related posts:

• The Importance of History for Freedom
• The Limits of the United States Constitution
• The More Things Change: Why the U.S. Constitution Should Not Survive the Internet

1. Mark Sableman, More speech, not less: Communications law in the Information Age, p. 10 (1997).
2. Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, p. 24 (1991).

The fact that they aren’t crushing everyone (after all, I’m writing this, right?) yet, doesn’t really mean much. As Scott Greenfield put it in a slightly different context, “The laws are already in place, and continuing to be developed….”

I read something this morning which, if I had been wearing socks at the time, would had literally blown my socks off. Scott mentions it in his post, too, but I read it before, after following a link from Twitter. Apparently, the government hasn’t gotten around to shutting down @RadleyBalko yet either.

The State of Massachusetts has decided to officially abandon the Constitution and re-establish the Star Chamber.

As is appropriate for a Star Chamber, it was done without a vote. Just a judge and a prosecutor who cooperatively refused to conduct a public hearing in what is said to be a criminal case, as required by the Sixth Amendment of the United States Constitution.

The Star Chamber, for those who don’t know and don’t want to bother with the Wikipedia link,

was an English court of law that sat at the royal Palace of Westminster until 1641. It was made up of Privy Counsellors, as well as common-law judges and supplemented the activities of the common-law and equity courts in both civil and criminal matters. The court was set up to ensure the fair enforcement of laws against prominent people, those so powerful that ordinary courts could never convict them of their crimes. Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses. Evidence was presented in writing. Over time it evolved into a political weapon, a symbol of the misuse and abuse of power by the English monarchy and courts.

The Star Chamber — an interesting mix of executive and judicial character whose primary goal was to prevent a defendant from being able to defend himself against secret charges¹ – had a huge influence upon the United States Constitution. You might say that the entire idea of limited government, as well as the idea of the necessity of a Bill of Rights and certain specific Amendments within that Bill, were informed by the memory of the Star Chamber.

The historical abuses of the Star Chamber are considered a primary motivating force behind the protections against compelled self-incrimination embodied in the Fifth Amendment to the United States Constitution. [footnote deleted] The meaning of “compelled testimony” under the Fifth Amendment—i.e., the conditions under which a defendant is allowed to “take the Fifth”—is thus often interpreted via reference to the inquisitorial methods of the Star Chamber.[footnote]

As the U.S. Supreme Court described it, “the Star Chamber has, for centuries, symbolized disregard of basic individual rights.”

But it’s not just the Fifth Amendment that was inspired by the abuses of the Star Chamber. The Sixth Amendment, too, grew out of that experience. The secrecy of the Star Chamber and other secret tribunals was described as “a menace to liberty.”²

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Generally speaking, courts in the United States have upheld this right.

A number of court cases in the United States have — proudly, from appearances — proclaimed:

[We] have been unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country. Nor have we found any record of even one such secret criminal trial in England since abolition of the Court of Star Chamber in 1641, and whether that court ever convicted people secretly is in dispute. . . .³

But the right to a public trial does not mean that people can see someone is talking to a judge.

Massachusetts Secrets

It means that they get to hear what is said.

Massachusetts says,

Fuck that. We don’t give a flying fuck what the United States Constitution states. The Star Chamber had it right.

Massachusetts cannot find escape in the idea that this was not yet a full-fledged criminal trial, either. For there is yet another Amendment contained in the Bill of Rights that carries in its DNA remnants of the collective revulsion our Founders felt for the Star Chamber.

[W]hile the Fourth Amendment was most immediately the product of contemporary revulsion against a regime of writs of assistance, its roots go far deeper.⁴

As the United States Supreme Court goes on to say, those roots spring from the use of general warrants by the Star Chamber.

As the Boston Globe has noted, the case involves political speech and the speaker — who for the moment remains anonymous — is the subject of a criminal investigation possibly somehow connected to Occupy Boston. The several newspapers in the courtroom were prevented from hearing what was happening. In fact, at one point, the defense attorneys were prevented from hearing what was happening between the executive and judicial branches of government.

Thus we learn that the Massachusetts case is no different in any other respect from those which for centuries have been considered inimical to freedom. To return to Supreme Court case cited just above,

What is significant to note is that this history [of the Star Chamber] is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eighteenth centuries. In Tudor England officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent.

The United States, no longer the Star of Freedom that shines brightly on the world. In its place, Massachusetts has resurrected the Star Chamber.

Comments

• December 31, 2011, Mark Draughn writes: If the article blows your socks off, the comments will make your eyes bleed.
• December 31, 2011, Rick writes: Assuming there ever are any other comments besides us chickens.
• January 1, 2012, Mark Draughn writes: I meant the comments on the aclu.org site. But given your recent heart problems, it's probably just as well that you didn't look at them.
• January 1, 2012, Rick writes: Oh, those. Yes, they were horrible. After reading them, I seriously considered stopping all my heart meds so I wouldn't have to pay attention to them anymore. (Ok. I'm kidding. They just pissed me off and made me want to fight that much more.)
• January 9, 2012, The Importance of History for Freedom | RHDefense: The Law Office of Rick Horowitz writes: [...] fond of pointing out that Nazi Germany did not spring fully-armored from the brow of Hitler. A counterpoint is true regarding the United States Constitution: it did not spring [...]

Related posts:

• The Importance of History for Freedom
• Orin Kerr’s Fourth Amendment & The Internet: Foundations

1. Faretta v. California, 95 S. Ct. 2525, 2534-5, 422 U.S. 806, 45 L. Ed. 2d 562 (1974).
2. In re Oliver, 68 S. Ct. 499, 505-6, 333 U.S. 257, 92 L. Ed. 682 (1948).
3. Richmond Newspapers v. Virginia, 100 S. Ct. 2814, 2826 fn. 9, 448 U.S. 555, 65 L. Ed. 2d 973 (1980); Levine v. United States, 80 S. Ct. 1038, 1045, 362 U.S. 610, 4 L. Ed. 2d 989 (1960); In re Oliver, 68 S. Ct. 499, 504, 333 U.S. 257, 92 L. Ed. 682 (1948); Oxnard Publishing Company v. Superior Court of Ventura County, 68 Cal. Rptr. 83, 97 (1968); and possibly others.
4. Stanford v. Texas, 85 S. Ct. 506, 510, 379 U.S. 476, 13 L. Ed. 2d 431 (1965).

I don’t give a sh*t. It’s not meant to be that way. But after you read the post, maybe you’ll understand why I’m grateful my year can end on such a note.

This post is about how it feels sometimes to be a criminal defense attorney and about the occasional need to stop and remember that, no matter what, I have to keep going.

This last year has been a rough year in my area for criminal defense attorneys. At least, that’s what I’ve been told — and, yes, to some extent, experienced myself — but if you are a criminal defense attorney practicing in my geographical area, reading this, and thinking, “huh?,” well, all I can say is, count your blessings.

The economy has taken quite a toll this year. People don’t have much money. Typically people who are accused of criminal activity tend to have even less. For one thing, it’s true what they say that “crime doesn’t pay.” But not all people accused of crimes are criminals. Some of them are just people who made mistakes — although I guess they’ve still committed crimes, so the adage still fits. Others, though, are innocent; their only crime is that of being poor, or brown, and so they come into contact with nasty law enforcement types who abuse — and accuse — them for no other reason than that. For these innocent poor or brown (or both, as if often the case), nothing pays, even though they’re smart enough not to try crime.

In any event, it adds up to the fact that fewer people can afford adequate legal representation this year than last.

That not only reduces the number of potential clients who can pay, it sometimes forces defense attorneys to lower their fees to try to catch the few. I’ll confess I try very hard to avoid that myself, which can add to my pain as I see clients run off the hire someone not because he’s a better attorney than me — oftentimes I know that’s not true — but because he offered to do the case for less money.

Sometimes a lot less.

And I don’t feel the better for being able to stop and think of another adage: “You get what you pay for.”

To make matters worse, my practice is 100% criminal defense. I don’t take personal injury cases. I don’t do family law. So far, I don’t even take civil rights or prisoners’ rights cases, although the former is certainly tempting me these days, because I do enjoy “fighting the man,” as we used to say when I was younger.

What I have done more of this year is take more cases “on payments.” When you think about it, that amounts in the long run to the same thing, I guess, as bidding out the case at a lower price, because lawyers have an adage I’ve heard repeatedly, but seem unable to learn: “Make sure you get enough up front, in case that’s all you get.”

Or something to that effect.

As I was saying, it’s not necessarily been a great year — some attorneys with greater longevity than me say they haven’t seen anything this bad in 30 years of practice. I’m certainly not homeless, dying, or even, when I sit down and think about it, really suffering. I maybe didn’t give my office person as much of a bonus as I’d like, but hey, I have an office person. (She was quite happy with her bonus.) Many of my friends had to shut down their offices this year; I’m the last private attorney left on my floor of the building. I’m still here.

Money, of course, is not everything. When it comes to sometimes feeling worn down, it’s not even necessarily the biggest thing. Let’s face it, criminal defense attorneys don’t always get to defend innocent people. As I’ve said before, the police — *ssholes though they too often may be — don’t always arrest innocent people. There may be a trend in the direction of arresting people for nothing, but it’s still not the norm. (Dear current or future juror, as I mentioned last time I said this, please remember that until you hear all the evidence, you don’t know which people were rightly charged and which were not.)

At any rate, people who break laws also have no scruples that prevent them from abusing their attorneys. If you win, they love you. They might even thank you. If you’re very, very lucky, they’ll remember you long enough to recommend you. Usually, they just move on with their lives.

And there’s nothing wrong with that.

When you don’t win — and for reasons that should be obvious, even the best criminal defense attorneys lose more cases than they win — they’re less kind.

Hell, some of them can’t even wait that long. They’ll harangue you while you’re trying to defend them. They’ll occasionally curse and yell at you in front of large crowds of people, claiming they are in the mess they’re in not because they were accused of a crime (whether they did it or not), but because of you. If they’re still in jail the day after you were hired, it’s because you aren’t good enough. If they’re convicted because of fingerprints, DNA, eyewitnesses, or confessions, it’s your failure.

Not all clients are like this. Not at all. If they were, I really would quit, however much I believe in what I do.

I’m just saying you don’t necessarily get the same kind of love doing this job as, say, being Tom Hanks.

But every once in awhile, perhaps just about the time you’re really needing it, you get what happened to me today.

The local judiciary is playing musical chairs. Most, if not all, appear to be getting moved to different courts than where they’ve been sitting. Some of these judges, I’ve been appearing in front of for years, and now they’re moving to courtrooms where I won’t see them again (remember, so far, I only do criminal defense).

Today, a judge called me to bench after my case was concluded. I won’t say who he is, but I’ll tell you he’s someone with whom I’ve more than few times butted heads. (Anyone who knows me knows that number is large enough that it doesn’t help you figure out who the judge is.)  He told me he was leaving. He said,

I wanted you to know you’ve taught me a lot. And I’m not just talking about law. One of the things — for example — is that sometimes you have to be a burr in someone’s side to change things, like what you did with the shackling issue.

It’s been awhile since I had to deal with the shackling issue. For the record, I wasn’t the only one who worked on that shackling issue. I may — may – have been a bit more forceful and vociferous than some. But I wasn’t the only one. And after we nearly shut down the courts by constantly challenging the shackling of juveniles, the policy was changed to comport with the law.

That’s not the point, though. The point is, he remembered. The point is, in spite of our butting heads, he said this and, by saying it reminded me of another adage which all defense attorneys probably need reminding of from time to time.

Hold out, Cossack, thou wilt become Hetman.

I don’t know if I’ll ever become Hetman — defense attorneys only rarely even get judgeships! — but I’m going to hang on and keep fighting.

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Frankly, I think it’s actually the combination of the three; they are all symptoms of the breakdown of the rule of law, our grossly dysfunctional society, and demonstrative of the fact that there are many more criminals amongst us than anyone cares to admit. Many of them are sitting judges, practicing prosecutors, or are busy leaving inane or ignorant comments on news websites.

Let me address each of the issues I mentioned in order.

First, the crime: I’ve no idea what it actually was, but I know that it isn’t something I would even remotely condone. I love dogs. Concomitantly, I dislike people who would hurt a dog very much.

But I can’t tell from the story what this guy did to the dog, other than that he apparently stuck something — not what some of the commenters apparently think — somewhere into the dog, causing damage. He also apparently tried to strangle the dog.

The dog is now “extraordinarily fearful of men, ‘like many victims of sexual assault,’” according to the woman now taking care of the dog.

As I mentioned, I love dogs. I happen to have a couple of small dogs. I’m protective enough of them that when one — a dog who apparently has an issue with men of which we were unaware at the time — ripped my nose open because I tried to kiss my wife while he was in her lap, I did not take him to be euthanized. A number of people seemed surprised at that, but to me it was a no-brainer: he was a dog who misunderstood what was happening and reacted based on his protective instincts.

I got the dog when I was in law school. A fellow student was living in a trailer and was told he had no choice but to get rid of the dog, or move. He couldn’t afford to move and Tucker (renamed Avi) came into our lives.

Why, like many victims of sexual assault, he appears to be fearful of men, I’ve no idea. But I’m pretty sure, unlike the case with many victims of sexual assault, he was never sexually abused.

In the story reported in the Fresno Bee, I’m not exactly sure why the judge thinks the defendant’s behavior was “inherently sexual in nature,” but I’m pretty sure that if it truly were, there’s a California law against bestiality for which the man could have been convicted.

And it is not a registrable offense.

Which brings us to the prosecutor and the judge. Knowing – or at least being responsible to know – the law, they nevertheless work in tandem (as judges and prosecutors usually do, to the detriment of defendants and, more importantly, the law) to force what appears to be an illegal requirement on this defendant for what is, in essence, an arbitrary reason. It’s arbitrary by definition because the judicial officer can’t just legally dish out any old punishment not authorized by law that he wishes.

And what we have here is an offense for which there appears to be neither a mandatory nor discretionary registration requirement.

There are other crimes codified in California Penal Code (for example section 311.4) mentioning bestiality which are registrable offenses. But they require that the offender somehow caused a minor to engage in bestiality. The registration requirement almost certain devolves from the involvement of the minor, rather than an animal. There’s nothing in the Fresno Bee story to indicate that it applies here.

I can find no case law in California that supports a registration requirement based upon bestiality.

And, again, the defendant does not appear to have been convicted of bestiality, anyway.

So right off the bat here, we have a prosecutor arguing for a punishment not authorized by law, and a judge blindly following along, despite the valid legal argument of the defense attorney to the contrary because — as far as the judge is concerned — the crime is “inherently sexual in nature.” The judge can be forgiven for not understanding the rule of law, however. He is, after all, a judge. These days most judges wouldn’t know the law if it bit them on the ass.

And if it did, they’d probably deem it a registrable offense.

So now we move on to the hoi polloi.

If the judges get it wrong, I suppose I can’t be too concerned about the modern day visitors to the modern Amphitheatrum Flavium whose primary thirst has always favored blood over the law. The level of ignorance that accompanies their attempts to justify their bloodlust, however, always gets to me. For example,

Jesus christ who sticks it in a dog?  This dude is clearly a threat to humans.  Lock him up for a nice long time

The commenter should be forgiven the difficulty in spotting the difference between dogs and humans. After all, the name of the commenter is “uberkitti” — what the hell is he or she doing defending a dog, anyway?

What I find much more reprehensible than the normal bloodlust for the defendant — after all, that’s old news and, given the allegations, some animosity (no pun intended) is understandable — are the attacks aimed at the attorney. Take this example, from someone who felt so strongly about it, he (or she) had to post it twice:

Where in all of these “rights” is the attorneys right to say “Hell NO, I will not defend this pile of s**t”? Their sworn oath excuse allows them to prostitute themselves without the wrath of society.

As I said in my response to him,

Bad attorneys sometimes do say such things. Then they are no more worthy of being called defense attorneys than many commenters here are worthy of being called human beings. Good attorneys do the job of defending the Constitution, keeping their oaths, and providing the best defense possible under the circumstances.

Personally, I have little patience for defense attorneys who forget their jobs and take the same approach towards the defense of an accused person that the unschooled and ignorant mobs take. I know some defense attorneys find some crimes so reprehensible that they just cannot defend people accused of committing them. I consider that a weakness, a failure, an abdication of the high calling of a defense attorney. I get it, though — as defense attorneys, we sometimes know our clients are guilty — some of us just cannot stomach the person who commits certain crimes and just cannot remember that how we feel about the client is irrelevant to the issue of doing our jobs.

Our system of justice does not depend upon criminal defense attorneys liking their clients. I would be lying if I said that I liked all mine. (Particularly the ones who cheat me out of my earned fees!) But that doesn’t change my duties, my responsibilities, and the requirement of professionalism in the performance of them.

That, I think, is a necessary, if not sufficient, requirement in our system of jurisprudence.

It’s just too bad that, increasingly, judges, prosecutors, and the general public disagree.

For down that road lies the end of the rule of law.

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