When I moved to L.A. in the Fall of 1964, I was more than 20 but less than 21. Draft age, but 2S, which meant safety as long as I was enrolled in school. So I enrolled fast.
At UCLA I took a Poli. Sci. class from Bill Gerberding (who later became Chancellor of U of Washington for 16 years). He was an impressive guy up there on the auditorium stage. Many of his lectures ended in shouting matches with students about Topic A.
Viet-Nam, of course.
As I remember it, Gerberding was pretty down on arguments that talked about the immorality of the war, or those about violations of international law. The question, he kept insisting was simply whether the war was in our national interest or not.
Although many protested this coldblooded approach to a war perceived as evil, I decided to take him on his own turf.
I wrote a term paper arguing that it was not in our national interest to pursue a war that was not essential to our survival, and that made us ashamed of ourselves as a nation.
I relied on Gerberding’s favorite author, George F. Kennan. The assigned reading included two of Kennan’s books: “Russia And The West Under Lenin And Stalin” and “American Diplomacy, 1900 - 1950.”
And for a change I read it all. Gerberding gave me a grudging “A.”
Ever since then, I’ve thought about Kennan, who died at the age of 101 in 2005.
When Kennan wrote about diplomacy and history, he knew what he was talking about. He had been ambassador to USSR, his ideas had helped formulate the containment policy that Truman relied on as an alternative to nuclear confrontation. He had helped develop the Marshall Plan, which was central to his thesis that the central focus of American interest lay in Europe.
Kennan argued that our entry into World War I was justified on the wrong basis. Rather than a war to save democracy from tyrants, it was a war to restore a balance of power in Europe, which was essential to our continuing development as a world power. The false premise on entry made post war disillusionment and disappointment inevitable.
Kennan, in fact, opposed our involvement in Indochina, and later supported Eugene McCarthy in 1968.
In September 2002 at the age of 98, he was interviewed by Alfred Eisele, editor of “The Hill.” The article appeared in the History News Network, 9/26/2002, “George Kennan Speaks Out About Iraq.”
A reminder: the war began in March, 2003.
In the September, 2002 article, the 98 year old Kennan was reported to have said:
1. The evidence of a Saddam Hussein link to Al Qaeda was “pathetically unsupportive and unreliable” and a second war — one against Iraq — would “bear no relation to the first war — against terrorism.”
2. Regarding Bush’s proposed doctrine of pre-emptive war: “Congress is there for the exercise of that responsibility. I think our Constitution and our tradition are quite sufficient here. [Bush] should not do what he’s planning to do without a clear congressional mandate. This is against all American tradition.”
3. The failure of Democratic congressional leaders and the party’s would-be presidential candidates to question Bush’s war plans as “a shabby and shameful reaction.”
4. There is no evidence that Iraq has succeeded in developing nuclear weaponry, and even if they had, it would be targeted on Israel and not the United States.
Prophetically, he said the following, as a lifelong diplomat and historian:
“Anyone who has ever studied the history of American diplomacy, especially military diplomacy, knows that you might start in a war with certain things on your mind as a purpose of what you are doing, but in the end, you found yourself fighting for entirely different things that you had never thought of before...
"In other words, war has a momentum of its own and it carries you away from all thoughtful intentions when you get into it. Today, if we went into Iraq, like the president would like us to do, you know where you begin. You never know where you are going to end.”
Yes, you never know where you are going to end ... or when ... or if...
Kennan also said at the time:
“[T]here is a very, very basic consideration involved here, and that is that whenever you have a possibility of going in two ways, either for peace or for war, for peaceful methods of for military methods, in the present age there is a strong prejudice for the peaceful ones.
"War seldom ever leads to good results.”
Thursday, March 08, 2007
Monday, March 05, 2007
Name Calling
Ann Coulter's "joke" at the Conservative CPAC convention, calling John Edwards a "faggot" should not have been a shock. She has shown previously that she has no sense of decorum, propriety, or an understanding of the need for civilized discourse. Besides, she's just a dumb blond bull dyke.
Friday, March 02, 2007
Generation WHY
This is a mea culpa, a confession. Don't worry, I advised myself of my rights before this admission. It is voluntary, but it does hurt a little.
There has been a lot of media blather about a study that concluded that the current generation of 20 Somethings are too narcissistic. Parents, these sociologists concluded, went overboard raising the self-esteem of their children way back.
As a result, kids today think their shit don't stink.
(That's not exactly the way the Ph.D's put it. They had a grant.)
That puts me in the embarassing position of defending another lost cause:
my parenting. The first and only witness and exhibit is my son.He is not only smarter than I am or ever was, he is better in almost every other way. He is also healthier, wiser, has more of a grasp on how to be happy than I ever did. He has more understanding of how the world works, what's important and what is trivial.
I am the first to admit that he is not perfect. He has a lot to learn and I worry about the inevitable pain he will have to overcome in his life.
And his shit does stink.
Other than that, I think he turned out okay.
Case closed. I win.
Friday, February 16, 2007
Snitch Law & Iraq
The PBS show Frontline has done some good reporting, in depth truth telling about issues that the media glossed over in first editions.
It is now running a multi-part series about the problems of journalism which it calls “News Wars.” The second installment analyzed the mess journalists made of the Wilson / Plame Affair. (“Secrets, Sources & Spin”)
Their focus was what the story revealed about the problem of journalists allowing themselves to be spun by government sources who leak information to influence public opinion. The report distinguished this from the whistle blower source who needs confidentiality to protect from retaliation by superiors.
Reporters see no difference, insisting that preserving the confidentiality of sources is a principle on which the First Amendment and therefore a free society depends.
The report delved into the history of this claimed privilege, the cases and arguments that surround it, and the evils of the government “going after” journalists doing their job of informing the people.
I have little quarrel with them up to that point. However, as part of their argument, they quoted Bob Woodward, a journalist who knows something about keeping sources confidential. Woodward was also involved in the Wilson case because his source, which he willingly revealed (Deputy Secretary of State, Richard Armitage) had mentioned Plame’s CIA status to Woodward in an almost off-hand way at the end of a long interview that occurred before Libby, Rove or Chaney leaked the information to reporters.
In Woodward’s view, the fact that Armitage did so without any motive to spin for the Administration which in fact Armitage opposed on the Iraq war, showed that the entire issue was a tempest in a teapot, no Watergate at all.
In my view, the Frontline report and Woodward miss the point entirely by their narrow minded defensive claim that the issue’s chief effect was to sully journalism.
I see the affair as evidence of a governmental cover-up that is as dark and scary as Watergate. To paraphrase Deep Throat, in this case, follow the motive.
The four best arguments the government had for war against Iraq were the imminent threat to the US from Sadam Hussein's: (1) stockpiles weapons of mass destruction; (2) including chemical and biological weapons; (3) and nuclear weapons; plus (4) a direct Al Qaeda connection.
Chaney’s motive in discrediting Wilson was obvious.
- Prior to the war, Chaney had asked CIA Director George Tennant to get evidence of Iraq’s attempt to buy nuclear material from Niger.
- The CIA, at Valerie Plame’s urging, sent her husband, a retired diplomat who had served in both Niger and Iraq, to investigate.
- Wilson reported to the CIA that there was no evidence of Iraq’s seeking of nuclear weapons from Niger.
- Despite the negative report, Chaney continued to argue that it was fact. It would up in Bush’s State Of The Union Address after Wilson had issued his report.
- Later, CIA Director George Tennant took the heat for the faulty intelligence about WMD but has equivocated about the nuclear issue. It has been reported that in fact he asked Bush to remove the reference from the Address, but Chaney put it back in.
When Wilson spoke up, Chaney discussed it with Rove and ordered Libby to leak to reporters that Wilson’s wife got him the job, implying that it was a trivial lark to an unqualified person.
The journalists on Frontline insisted that this was standard operating procedure for all Administrations, retaliating against enemies with inside information.
Okay, I’ll buy that. But here’s the kicker. Libby lied about it when interviewed by the FBI, Special Prosecutor and to the Grand Jury, claiming that he had not told it to reporters, but had heard it from them.
Why lie? The only reasonable inference is that Chaney did not want it revealed that he knew the nuclear claim was “cooked.”
Recent reports have shown that the claim of an Al Qaeda connection with Saddam Hussein was also cooked. The CIA had discounted the information as unreliable, but Douglas Feith, Rumsfield’s assistant, had reported it as if it was fact.
In my trade, we often deal with confidential informants in the area of probable cause to investigate, search and or arrest. Statutes and case law specify when and how such information can be used.
- The law distinguishes between “reliable” and “unreliable” informants, depending on proof of past performance and independent corroboration to justify reliance.
- Information that contradicts a confidential informant must be disclosed.
- The “motive” of the informant must also be disclosed if it tends to reduce his reliability.
You would think that arguments supporting war are at least as important as those supporting the search of a suspected drug dealer’s house.
Wednesday, February 14, 2007
Laws Of Love
The LA Times Business section isn’t the place you’d expect to see wry social humor, certainly not the kind that smacks of absurdist commentary on the trends that foretell cultural ruin. But then again, maybe it is.
A recent article notes a corporate trend that involves lawyers in creative problem solving in a new and potentially lucrative field.
Fact: The corporate workplace is fertile ground for coupling between employees. 43% of office workers surveyed have had at least one romantic relationship with a co-worker.
Problem: Some of these affairs crash and burn, leaving raw emotions that lead to law suits against the company and former lover, claiming sexual harassment.
Solution: Dating employees are asked to sign a “consensual relationship agreement” that acknowledges the risks and frees the company from liability in case of a break-up.
The issue reminds me of my thoughts some years ago when I viewed a TV magazine piece about the Brown University dating policy.
A male student was in his dorm room cramming for an exam. A female student entered, asking him to join the beerfest that was going on elsewhere in the dorm. The male demurred. He needed to study to preserve his scholarship. The female drunkenly teased him and they wound up in his bed.
The morning after, the female related the incident to her sisters, and discovered that she had been victimized. Even though she had been the aggressor, had “consented” to the sex act, her intoxication negated her consent according to the Brown policy. Since he knew she was intoxicated, he should not have relied on her consent. He took advantage of her inebriation and was liable.
In fact, there is solid legal ground for this view. In California and most other states, "date rape" is similarly defined according to the enlightened interpretations that respond to Feminist complaints about sexist laws. The burden has been shifted almost completely to the male in such cases.
Consent once given can be withdrawn. A consent to kiss is not a consent to intercourse. Consent must be unequivocal; implying consent based on actions is risky.
Applying a “reasonable man” test to figure out if actions can infer consent is an oxymoron, given that no male or female (especially college students) acts reasonably in the heat of such passions.
Even in the midst of consensual intercourse, consent can be “withdrawn” by a “No” or its non-verbal equivalent. Ambiguity or equivocation may not be a defense when the event is later evaluated objectively.
When consent is withdrawn, so must the male, so to speak.
The Brown incident alarmed me. My son was a college student at the time and the threat it implied replaced AIDS in my mind as something I had to warn him about.
I toyed with creating a form contract to send to my son, for him to use when dating. It contained paragraphs covering the incremental contingencies of dates as I dimly remember them from my own barely survived youth.
Here's a partial draft:
1. I hereby give my consent and voluntarily agree to participate in the following:
A. Kissing ______________
1. With / Without tongue (circle appropriate word)
1. On lips _____
2. On neck _____
3. On breasts ____
4. On labia _____
5. Other (specify) __________________________
B. Hands touching of
1. Breasts ________
2. Labia __________
3. Other (specify) _________________
C. Upon completion of or in conjunction with any or all of the foregoing acts as enumerated in clause A and / or B, supra, I also voluntarily consent and agree to the following acts:
1. Fallatio _____________
2. Cunilingus ___________
2. Penile penetration _______
a. Vaginal _____________
b. Other ______________
The contract would be submitted to the potential datee along with flowers or candy and a Number 2 pencil.
The datee would be asked to initial, check, circle, and sign the paper, keep a copy and return a copy to the dater. He would file the original with the University.
But that would not end it.
Because the datee has the right to withdraw consent at any stage, the parties would have to initial each interval as the date progresses before performing any of the specified acts.
To be completely safe, I recommended the presence of an impartial witness and notary, and audio / video recording of the encounter.
(Today, I would update that proviso to itube uploading of the date - with the appropriate confidentiality waivers, of course.)
In order to prevent later claim of coercion, the contract would suggest that the datee seek independent legal advice before signing.
If the datee wished modification of any clause, each party’s lawyers would meet with them and hammer out their differences.
A 24 hour legal aid hotline would have to be funded for emergency legal advice if issues should arise during dates.
I am also working on post date contracts.
The party trying to contact the other by phone or in person risks claims of “stalking.”
To alleviate this, my proposed "Morning After Contract” would cover all such contingencies.
A recent article notes a corporate trend that involves lawyers in creative problem solving in a new and potentially lucrative field.
Fact: The corporate workplace is fertile ground for coupling between employees. 43% of office workers surveyed have had at least one romantic relationship with a co-worker.
Problem: Some of these affairs crash and burn, leaving raw emotions that lead to law suits against the company and former lover, claiming sexual harassment.
Solution: Dating employees are asked to sign a “consensual relationship agreement” that acknowledges the risks and frees the company from liability in case of a break-up.
The issue reminds me of my thoughts some years ago when I viewed a TV magazine piece about the Brown University dating policy.
A male student was in his dorm room cramming for an exam. A female student entered, asking him to join the beerfest that was going on elsewhere in the dorm. The male demurred. He needed to study to preserve his scholarship. The female drunkenly teased him and they wound up in his bed.
The morning after, the female related the incident to her sisters, and discovered that she had been victimized. Even though she had been the aggressor, had “consented” to the sex act, her intoxication negated her consent according to the Brown policy. Since he knew she was intoxicated, he should not have relied on her consent. He took advantage of her inebriation and was liable.
In fact, there is solid legal ground for this view. In California and most other states, "date rape" is similarly defined according to the enlightened interpretations that respond to Feminist complaints about sexist laws. The burden has been shifted almost completely to the male in such cases.
Consent once given can be withdrawn. A consent to kiss is not a consent to intercourse. Consent must be unequivocal; implying consent based on actions is risky.
Applying a “reasonable man” test to figure out if actions can infer consent is an oxymoron, given that no male or female (especially college students) acts reasonably in the heat of such passions.
Even in the midst of consensual intercourse, consent can be “withdrawn” by a “No” or its non-verbal equivalent. Ambiguity or equivocation may not be a defense when the event is later evaluated objectively.
When consent is withdrawn, so must the male, so to speak.
The Brown incident alarmed me. My son was a college student at the time and the threat it implied replaced AIDS in my mind as something I had to warn him about.
I toyed with creating a form contract to send to my son, for him to use when dating. It contained paragraphs covering the incremental contingencies of dates as I dimly remember them from my own barely survived youth.
Here's a partial draft:
1. I hereby give my consent and voluntarily agree to participate in the following:
A. Kissing ______________
1. With / Without tongue (circle appropriate word)
1. On lips _____
2. On neck _____
3. On breasts ____
4. On labia _____
5. Other (specify) __________________________
B. Hands touching of
1. Breasts ________
2. Labia __________
3. Other (specify) _________________
C. Upon completion of or in conjunction with any or all of the foregoing acts as enumerated in clause A and / or B, supra, I also voluntarily consent and agree to the following acts:
1. Fallatio _____________
2. Cunilingus ___________
2. Penile penetration _______
a. Vaginal _____________
b. Other ______________
The contract would be submitted to the potential datee along with flowers or candy and a Number 2 pencil.
The datee would be asked to initial, check, circle, and sign the paper, keep a copy and return a copy to the dater. He would file the original with the University.
But that would not end it.
Because the datee has the right to withdraw consent at any stage, the parties would have to initial each interval as the date progresses before performing any of the specified acts.
To be completely safe, I recommended the presence of an impartial witness and notary, and audio / video recording of the encounter.
(Today, I would update that proviso to itube uploading of the date - with the appropriate confidentiality waivers, of course.)
In order to prevent later claim of coercion, the contract would suggest that the datee seek independent legal advice before signing.
If the datee wished modification of any clause, each party’s lawyers would meet with them and hammer out their differences.
A 24 hour legal aid hotline would have to be funded for emergency legal advice if issues should arise during dates.
I am also working on post date contracts.
The party trying to contact the other by phone or in person risks claims of “stalking.”
To alleviate this, my proposed "Morning After Contract” would cover all such contingencies.
Wednesday, February 07, 2007
Female Trouble
There are all kinds of female trouble for a man. It doesn’t matter if you have one or more than one or none. It’s all trouble. This was my day for too many.
My client (call her ‘She’)is only 20 and to me that means She’s still a kid. She’s a sociological case study, this one, charged with helping her boyfriend (call him ‘Dog’) and his homies jack another kid’s cell phone and ipod, this year’s Air Jordans, my era’s lunch money. Dog and his bro’s snatched a few others that night along with a watch, an A’s cap, and some other loot. Then they called her, cuz She had a sweet ride, her daddy’s Cad.
So She picked them up and they cruised and She stopped to get gas and on the way out, the boys saw another fool so they got out and jacked him too. When the cops found them kickin’ it at the park, they found all the stolen shit and they were all busted.
The boys are charged with three robberies and She with abetting the last one.
Daddy bailed her out and he’s with her in court. So is Mummy and Mummy’s Sister. They’re nice people, still strangers stranded in The American Valley, though they’ve been here many years. They speak in that clipped Indian accent I like to listen to, so polite and Englishy. Civil and civilized in an uncivil and uncivilized world. Like the Chinese and the Jews, the Sikhs thrive in many alien worlds by tenaciously preserving their ways.
They’re supportive of their daughter, got her into counseling immediately. She’s on hiatus from nursing school, where She’s going because Mum’s a nurse. Daddy takes her to work with him. Mummy is an attractive woman, dressed & coifed American. Daddy sells cars and has that glad hand personality that goes with it.
Daddy makes pronouncements but Mummy just shoots looks that end discussions. He is big on “respect,” and they both are convincing me that their daughter is full of it, deep down.
“This is not how we raised our daughter,” they keep reminding me. The usual rap: theirs is a “good home,” their child is kind, trusting, loving – too kind, too trusting and too loving to the wrong friends and that’s the problem.
The girl has that Indian look — overly generous eyes, nose, lips, figure. But she’s done what she can with it: she wears startling sky blue tinted contacts, nose and lip studs, too much make-up, has squeezed into faux Paris Hilton rags. It’s a new Her. It doesn’t work for me, but she must have something for Dog, cuz she’s hooked.
All too soon, with my penchant for cross-examining women that endeared my to mine, I strike a nerve with Mummy. “You didn’t approve of her boyfriend?”
“Of course not.”
“Because he’s a thug.”
“Because he’s Black. If she marries him, we’ll disown her.” A simple straightforward declaration, as if it didn’t have to be discussed. “In our culture, it is impossible.”
“So, what about a Muslim?”
“The same.”
“And a Hindu?” That brought about some equivocation. Seems that to Sikhs, Hindus are only marginal, worth a hesitation.
So, I launch into my sermon, my argument for tolerance. First, I assure them that I get them.
“Its the same with us Jews,” I say, with some hyperbole. “For us, the grandmother’s first question was, ‘Is she Jewish?’ They used to want to know more: Orthodox, Conservative, Reform, what part of Europe her people came from?” That gets me on their team.
Then I think of a cool analogy. “You know Vice President Cheney?”
They nod somewhat vaguely. I proceed with a fable: “Well, he’s a strict Christian Fundamentalist and when his followers found out his daughter was homosexual, they asked him about it. He said, ‘I don’t approve but I love her.’ Then they found out she was marrying her lover, they asked him again to denounce her. He said, ‘I don’t approve but I love her.’ Then she announced that she was pregnant. (This stumped my listeners and I had to explain how this could be done without miracles.) Cheney’s followers were outraged. Still, he insisted that though he disapproved of his daughter’s ‘choices’ he still loved her and would love her child too.”
They listen with respect, but my little fable sermon didn’t persuade.
All this while we wait and wait for another woman, the lawyer appointed for defendant #2. She sweeps in around 10:30, stammers an apology to the judge and enters the lock-up to talk to her client. I wait for her to get around to me.
When she does, I’m ready for her. “I don’t appreciate being cross-examined,” she snoots.
That’s enough for me to go off. “Listen, sweetheart,” I whisper loudly, choking on my words, my finger poking at her. “I called the panel to find who was assigned and they gave me your number. So I called you and it was obvious you’d forgotten this case. Then you ask me to stand in for you but you hadn’t even met your client yet.”
She’s fazed. “I tried to call the court but I had the wrong number.”
“Yeah. I heard you tell the judge that. But you found it quick enough after you hung up on me, didn’t you?”
“I don’t have to answer that.”
“Not to me, you don’t. Not today.”
“Is that a threat?”
My glare answers her.
The two custodies are brought out and my client sits in the third seat. I’m standing with my calendar out and we’re talking about next date. I glance around and She’s whispering to her “man” whose cuffed next to her. I shush her.
Then she twists around and mumbles something toward the audience. There’s two Black girls in the second row. They’re smiling at her in that nasty way girls have with rivals. The female mad dog. My client says aloud, “Bitch, you ain’t nothin.’”
“Young lady, turn around and be quiet,” the judge says before I can. He rolls his eyes and I shake my head. I repeat the order to her but she keeps returning the looks and curses at the girls. I want to slap her. The bailiff sees my look and orders the spectators to move. He fears a fight in the making.
After court, I take my client aside, another cross-exam. She’s been taking Dog’s calls, putting money on his books for a calling card. Her look is her Mummy’s but She’s talking about the girl in the audience. “She thinks he’s hers, but he’s not. He loves me.”
“And you love him.”
She doesn’t have to answer.
“Okay, here’s the deal. You tell me if you love him enough to go down with him. He’s going to the joint.”
“I’ll wait for him.”
“You might go with him.”
“No, I won’t go that far.”
“That’s a start. But you are jealous.”
“No,” she insists. “He don’t care about her. She’s the one that’s jealous.”
“How did she know to come to court?”
She shrugs, but the answer is obvious.
“Your boy’s a player. That’s what you’re worried about.”
“I’m not jealous. I’m insecure.”
“Okay, insecure. Here’s the thing. To defend you I have to dump on him.”
“He’ll say I didn’t know anything.”
“That won’t cut it with the DA or judge — and his lawyer may say he was stealing shit for you.”
She knows that.
I tell her something she also knows. “If he loved you he wouldn’t have gotten you into this shit.”
“He said he was sorry.”
Its no use but I instruct her anyway. “No contact with him or with those girls and if they stalk you call me or the cops. After the case, you can do what you want. As to your parents, you’ll be 21 soon. You don’t have to live with them or take their money.”
On the drive home, I’m listening to the news. The astronaut triangle story is churning. I’m thinking, where’s the next screenplay coming from? “Romeo And Juliet’s” been done. And “Fatal Attraction,” too. I’m too fatigued to write this one. The bitches have taken me down, dude.
My client (call her ‘She’)is only 20 and to me that means She’s still a kid. She’s a sociological case study, this one, charged with helping her boyfriend (call him ‘Dog’) and his homies jack another kid’s cell phone and ipod, this year’s Air Jordans, my era’s lunch money. Dog and his bro’s snatched a few others that night along with a watch, an A’s cap, and some other loot. Then they called her, cuz She had a sweet ride, her daddy’s Cad.
So She picked them up and they cruised and She stopped to get gas and on the way out, the boys saw another fool so they got out and jacked him too. When the cops found them kickin’ it at the park, they found all the stolen shit and they were all busted.
The boys are charged with three robberies and She with abetting the last one.
Daddy bailed her out and he’s with her in court. So is Mummy and Mummy’s Sister. They’re nice people, still strangers stranded in The American Valley, though they’ve been here many years. They speak in that clipped Indian accent I like to listen to, so polite and Englishy. Civil and civilized in an uncivil and uncivilized world. Like the Chinese and the Jews, the Sikhs thrive in many alien worlds by tenaciously preserving their ways.
They’re supportive of their daughter, got her into counseling immediately. She’s on hiatus from nursing school, where She’s going because Mum’s a nurse. Daddy takes her to work with him. Mummy is an attractive woman, dressed & coifed American. Daddy sells cars and has that glad hand personality that goes with it.
Daddy makes pronouncements but Mummy just shoots looks that end discussions. He is big on “respect,” and they both are convincing me that their daughter is full of it, deep down.
“This is not how we raised our daughter,” they keep reminding me. The usual rap: theirs is a “good home,” their child is kind, trusting, loving – too kind, too trusting and too loving to the wrong friends and that’s the problem.
The girl has that Indian look — overly generous eyes, nose, lips, figure. But she’s done what she can with it: she wears startling sky blue tinted contacts, nose and lip studs, too much make-up, has squeezed into faux Paris Hilton rags. It’s a new Her. It doesn’t work for me, but she must have something for Dog, cuz she’s hooked.
All too soon, with my penchant for cross-examining women that endeared my to mine, I strike a nerve with Mummy. “You didn’t approve of her boyfriend?”
“Of course not.”
“Because he’s a thug.”
“Because he’s Black. If she marries him, we’ll disown her.” A simple straightforward declaration, as if it didn’t have to be discussed. “In our culture, it is impossible.”
“So, what about a Muslim?”
“The same.”
“And a Hindu?” That brought about some equivocation. Seems that to Sikhs, Hindus are only marginal, worth a hesitation.
So, I launch into my sermon, my argument for tolerance. First, I assure them that I get them.
“Its the same with us Jews,” I say, with some hyperbole. “For us, the grandmother’s first question was, ‘Is she Jewish?’ They used to want to know more: Orthodox, Conservative, Reform, what part of Europe her people came from?” That gets me on their team.
Then I think of a cool analogy. “You know Vice President Cheney?”
They nod somewhat vaguely. I proceed with a fable: “Well, he’s a strict Christian Fundamentalist and when his followers found out his daughter was homosexual, they asked him about it. He said, ‘I don’t approve but I love her.’ Then they found out she was marrying her lover, they asked him again to denounce her. He said, ‘I don’t approve but I love her.’ Then she announced that she was pregnant. (This stumped my listeners and I had to explain how this could be done without miracles.) Cheney’s followers were outraged. Still, he insisted that though he disapproved of his daughter’s ‘choices’ he still loved her and would love her child too.”
They listen with respect, but my little fable sermon didn’t persuade.
All this while we wait and wait for another woman, the lawyer appointed for defendant #2. She sweeps in around 10:30, stammers an apology to the judge and enters the lock-up to talk to her client. I wait for her to get around to me.
When she does, I’m ready for her. “I don’t appreciate being cross-examined,” she snoots.
That’s enough for me to go off. “Listen, sweetheart,” I whisper loudly, choking on my words, my finger poking at her. “I called the panel to find who was assigned and they gave me your number. So I called you and it was obvious you’d forgotten this case. Then you ask me to stand in for you but you hadn’t even met your client yet.”
She’s fazed. “I tried to call the court but I had the wrong number.”
“Yeah. I heard you tell the judge that. But you found it quick enough after you hung up on me, didn’t you?”
“I don’t have to answer that.”
“Not to me, you don’t. Not today.”
“Is that a threat?”
My glare answers her.
The two custodies are brought out and my client sits in the third seat. I’m standing with my calendar out and we’re talking about next date. I glance around and She’s whispering to her “man” whose cuffed next to her. I shush her.
Then she twists around and mumbles something toward the audience. There’s two Black girls in the second row. They’re smiling at her in that nasty way girls have with rivals. The female mad dog. My client says aloud, “Bitch, you ain’t nothin.’”
“Young lady, turn around and be quiet,” the judge says before I can. He rolls his eyes and I shake my head. I repeat the order to her but she keeps returning the looks and curses at the girls. I want to slap her. The bailiff sees my look and orders the spectators to move. He fears a fight in the making.
After court, I take my client aside, another cross-exam. She’s been taking Dog’s calls, putting money on his books for a calling card. Her look is her Mummy’s but She’s talking about the girl in the audience. “She thinks he’s hers, but he’s not. He loves me.”
“And you love him.”
She doesn’t have to answer.
“Okay, here’s the deal. You tell me if you love him enough to go down with him. He’s going to the joint.”
“I’ll wait for him.”
“You might go with him.”
“No, I won’t go that far.”
“That’s a start. But you are jealous.”
“No,” she insists. “He don’t care about her. She’s the one that’s jealous.”
“How did she know to come to court?”
She shrugs, but the answer is obvious.
“Your boy’s a player. That’s what you’re worried about.”
“I’m not jealous. I’m insecure.”
“Okay, insecure. Here’s the thing. To defend you I have to dump on him.”
“He’ll say I didn’t know anything.”
“That won’t cut it with the DA or judge — and his lawyer may say he was stealing shit for you.”
She knows that.
I tell her something she also knows. “If he loved you he wouldn’t have gotten you into this shit.”
“He said he was sorry.”
Its no use but I instruct her anyway. “No contact with him or with those girls and if they stalk you call me or the cops. After the case, you can do what you want. As to your parents, you’ll be 21 soon. You don’t have to live with them or take their money.”
On the drive home, I’m listening to the news. The astronaut triangle story is churning. I’m thinking, where’s the next screenplay coming from? “Romeo And Juliet’s” been done. And “Fatal Attraction,” too. I’m too fatigued to write this one. The bitches have taken me down, dude.
Thursday, February 01, 2007
You've come a long way, baby, er, Ms.
In 1963 Britain’s conservative government fell because a cabinet member, John Profumo, had been having a long term steamy affair with a 21 year old party girl named Christine Keeler, who was also sleeping with a Soviet spy among other men.
In 1998, President Clinton was impeached after lying about whether “sexual relations” with an intern included oral copulation.
Now, the L.A. Times reports, the Israeli government has been shaken by the sexual harassment conviction of a cabinet member who committed the “indecent act” of kissing a 21 year old female army officer which the woman convinced the 3 judge panel was “unwanted.” The culprit may get a 3 year prison sentence.
In 1998, President Clinton was impeached after lying about whether “sexual relations” with an intern included oral copulation.
Now, the L.A. Times reports, the Israeli government has been shaken by the sexual harassment conviction of a cabinet member who committed the “indecent act” of kissing a 21 year old female army officer which the woman convinced the 3 judge panel was “unwanted.” The culprit may get a 3 year prison sentence.
Saturday, January 27, 2007
The Joys of Procrastination
Some time ago I read an L.A. Times article about a recent study concluding that the 218 earlier studies on the causes and cure of procrastination were incomplete. This one concluded that “perfectionism” and “anxiety” are less important than “impulsiveness.” Seems that most procrastinators aren’t as much interested in the future as in immediate pleasure, so they put complicated things off.
I like this idea because it conforms to my general thesis based on my own experiences which I modestly call “Borenstein’s Law.” Most criminal defendants are not deep thinkers. They mean well, intend to finish school, get that job, treat their addiction. But somehow they never quite get around to any of it. A homie calls, a party awaits, a girl text messages. And they are lured from that never ending freeway that leads to the straight life. All those sexy off ramps are irresistible.
There is another twist that appeals to me. I theorized that our clients are not all that much different from the rest of us. We all act in a way contrary to our best interests for many reasons, not the least of which is the impulse for pleasure. And I also deduced that for most, this is not always a bad thing. Taking risks can lead to happiness, as our pop culture often remind us. Who finds love and happiness in the movies? Not the workaholic but the free spirit.
Many of the studies were done with college students of course with an eye toward giving advice though I find most of it not very helpful. They give suggestions like:
make to-do lists,
be satisfied with rough drafts,
start with the easiest task,
avoid distractions,
keep trying,
These are like telling an insomniac to get some sleep. Actually, I imagine many procrastinators are also insomniacs and they’ve heard all this many times before.
Having been a procrastinator most of my life, I have my own takes on the subject. Thinking about the reasons for procrastinating is one of my favorite ways to procrastinate. For me, anxiety is a great reason to avoid less pleasant tasks.
My brother who used to espouse Freudian psychotherapy back when pipe smoking and crew cuts were also in fashion parroted a mantra about “the path of least resistance.” I don’t remember whether that was intended as a pejorative term, but I have always found that path easier on my back than the bumpier “path of most resistance.”
When I was a public defender faced with a stack of case files, each representing problems with varying degrees of insurmountability, I tended to deal with the easier ones while putting aside the harder cases until a later day. If I was lucky, that later day might never come. I could be transferred to another assignment and my hard cases would be re-assigned to some other fool. I considered that a winning strategy, except that the cases I inherited in my new assignment always turned out to be my predecessor’s chronic backaches. Yet, that often turned out well, because my “fresh eyes” were able to dispose of these hard cases more easily.
Then too the process of delay often benefits the system. Justice delayed can be justice served, to coin a phrase. Old cases are everyone’s sores and a properly aged case can ripen into a good result because everyone in the process — defendants, judges, prosecutors, witnesses, etc. — simply runs out of passion and wants finally to get it over with at any cost.
The same dynamic works with tasks that have deadlines far away. Putting them off until the night before forces an efficient use of time and concentration. Some people simply work better under the gun.
I have found that some especially difficult problems demand radical approaches — like doing nothing. I can’t tell you how many times I have anticipated storm clouds, spent sleepless nights devising strategies to confront them, and then found that they are solved or have disappeared or turned out to be mere sprinkles without any action by me. This works as well with personal issues as with work problems.
But there is a caveat: doing nothing is risky. It can work with banks and governments who sometimes “forgive” slackers more easily than conscientious customers. In matters of the heart it is not always a good idea. For instance, I am thinking about that nettlesome problem of gift choosing. I have always found that issue to be one of the hardest to face and therefore tend to put it off, a dangerous non-strategy. It is ironic that those you love are less forgiving to procrastination than cold hearted institutions, but there you are.
I like this idea because it conforms to my general thesis based on my own experiences which I modestly call “Borenstein’s Law.” Most criminal defendants are not deep thinkers. They mean well, intend to finish school, get that job, treat their addiction. But somehow they never quite get around to any of it. A homie calls, a party awaits, a girl text messages. And they are lured from that never ending freeway that leads to the straight life. All those sexy off ramps are irresistible.
There is another twist that appeals to me. I theorized that our clients are not all that much different from the rest of us. We all act in a way contrary to our best interests for many reasons, not the least of which is the impulse for pleasure. And I also deduced that for most, this is not always a bad thing. Taking risks can lead to happiness, as our pop culture often remind us. Who finds love and happiness in the movies? Not the workaholic but the free spirit.
Many of the studies were done with college students of course with an eye toward giving advice though I find most of it not very helpful. They give suggestions like:
make to-do lists,
be satisfied with rough drafts,
start with the easiest task,
avoid distractions,
keep trying,
These are like telling an insomniac to get some sleep. Actually, I imagine many procrastinators are also insomniacs and they’ve heard all this many times before.
Having been a procrastinator most of my life, I have my own takes on the subject. Thinking about the reasons for procrastinating is one of my favorite ways to procrastinate. For me, anxiety is a great reason to avoid less pleasant tasks.
My brother who used to espouse Freudian psychotherapy back when pipe smoking and crew cuts were also in fashion parroted a mantra about “the path of least resistance.” I don’t remember whether that was intended as a pejorative term, but I have always found that path easier on my back than the bumpier “path of most resistance.”
When I was a public defender faced with a stack of case files, each representing problems with varying degrees of insurmountability, I tended to deal with the easier ones while putting aside the harder cases until a later day. If I was lucky, that later day might never come. I could be transferred to another assignment and my hard cases would be re-assigned to some other fool. I considered that a winning strategy, except that the cases I inherited in my new assignment always turned out to be my predecessor’s chronic backaches. Yet, that often turned out well, because my “fresh eyes” were able to dispose of these hard cases more easily.
Then too the process of delay often benefits the system. Justice delayed can be justice served, to coin a phrase. Old cases are everyone’s sores and a properly aged case can ripen into a good result because everyone in the process — defendants, judges, prosecutors, witnesses, etc. — simply runs out of passion and wants finally to get it over with at any cost.
The same dynamic works with tasks that have deadlines far away. Putting them off until the night before forces an efficient use of time and concentration. Some people simply work better under the gun.
I have found that some especially difficult problems demand radical approaches — like doing nothing. I can’t tell you how many times I have anticipated storm clouds, spent sleepless nights devising strategies to confront them, and then found that they are solved or have disappeared or turned out to be mere sprinkles without any action by me. This works as well with personal issues as with work problems.
But there is a caveat: doing nothing is risky. It can work with banks and governments who sometimes “forgive” slackers more easily than conscientious customers. In matters of the heart it is not always a good idea. For instance, I am thinking about that nettlesome problem of gift choosing. I have always found that issue to be one of the hardest to face and therefore tend to put it off, a dangerous non-strategy. It is ironic that those you love are less forgiving to procrastination than cold hearted institutions, but there you are.
Sunday, January 14, 2007
FAQ's
A FAQ from clients to their lawyers: “Do you believe I’m innocent?”
My mind races. Here’s what I want to say.
“It isn’t a matter of belief. I’m neither an athiest nor a fanatic. I’m an agnostic - not enough proof either way. But whatever, I’m here to represent you regardless of what I believe. My job is to evaluate the evidence against you, gather evidence for you, make the best arguments for yours and against theirs."
That doesn’t satisfy too many defendants facing jail or prison. What they want to hear is that you are committed to their side no matter the evidence, that you have a strong faith in their innocence no matter the facts against them.
Defendants have no faith. They are cynics - their only core belief is that the system is bent against them and the right lawyer can bend it in their favor. If it breaks, that's okay, too.
The problem is insoluble and quite sad, really. Faith is a plus, maybe even a necessity for some of life's issues - like love and God - but not others - like the ones lawyers have to struggle with.
And probably not in formulating a foreign policy, either.
I can’t help applying my legal experience to the debate over Iraq. Lawyers are taught to argue effectively by using a more or less rigid form of logic that includes concepts like evidence, inferences, and burden of proof. We are taught to approach problems by examining facts, framing issues, and stating rationales for conclusions.
Over the years, I’ve learned to distinguish plausible arguments from bad ones. When I hear Bush and his supporters argue that opposition to the current policy should be ignored unless accompanied by an alternative policy, I can’t help imagining how this argument would apply in a courtroom.
I imagine a D.A. arguing that although all of the evidence supporting his case has crumbled, his witnesses impeached, his evidence rebutted, the judge should still rule in his favor unless the defendant can prove his innocence by showing who really is guilty.
I hear the argument that although every rationale for the invasion and occupation of Iraq proved false, the policy should be continued because the consequences of withdrawing might be disastrous.
It reminds me of the old joke about the lawyer for a son who killed his parents arguing for mercy because his client is an orphan.
Jurors are instructed that a witness who has lied or been proven wrong in one part of his testimony should be distrusted in others.
Imagine a DA arguing that although all the evidence on which he based his assertion of the defendant’s guilt in his opening statement proved to be false, the judge should still convict the defendant because the consequences might be disastrous.
In fact, this argument is one that DA’s do make. Convict this gang member despite the lack of evidence of guilt in this particular case in order to “send a message” to the community and to deter others from gang crime.
Don’t get me wrong. The Law doesn’t have all the answers to life’s problems. And lawyers aren’t necessarily better than others in solving them. But I find it interesting that many of the proponents of the above arguments are not lawyers, Bush and McCain among them.
My mind races. Here’s what I want to say.
“It isn’t a matter of belief. I’m neither an athiest nor a fanatic. I’m an agnostic - not enough proof either way. But whatever, I’m here to represent you regardless of what I believe. My job is to evaluate the evidence against you, gather evidence for you, make the best arguments for yours and against theirs."
That doesn’t satisfy too many defendants facing jail or prison. What they want to hear is that you are committed to their side no matter the evidence, that you have a strong faith in their innocence no matter the facts against them.
Defendants have no faith. They are cynics - their only core belief is that the system is bent against them and the right lawyer can bend it in their favor. If it breaks, that's okay, too.
The problem is insoluble and quite sad, really. Faith is a plus, maybe even a necessity for some of life's issues - like love and God - but not others - like the ones lawyers have to struggle with.
And probably not in formulating a foreign policy, either.
I can’t help applying my legal experience to the debate over Iraq. Lawyers are taught to argue effectively by using a more or less rigid form of logic that includes concepts like evidence, inferences, and burden of proof. We are taught to approach problems by examining facts, framing issues, and stating rationales for conclusions.
Over the years, I’ve learned to distinguish plausible arguments from bad ones. When I hear Bush and his supporters argue that opposition to the current policy should be ignored unless accompanied by an alternative policy, I can’t help imagining how this argument would apply in a courtroom.
I imagine a D.A. arguing that although all of the evidence supporting his case has crumbled, his witnesses impeached, his evidence rebutted, the judge should still rule in his favor unless the defendant can prove his innocence by showing who really is guilty.
I hear the argument that although every rationale for the invasion and occupation of Iraq proved false, the policy should be continued because the consequences of withdrawing might be disastrous.
It reminds me of the old joke about the lawyer for a son who killed his parents arguing for mercy because his client is an orphan.
Jurors are instructed that a witness who has lied or been proven wrong in one part of his testimony should be distrusted in others.
Imagine a DA arguing that although all the evidence on which he based his assertion of the defendant’s guilt in his opening statement proved to be false, the judge should still convict the defendant because the consequences might be disastrous.
In fact, this argument is one that DA’s do make. Convict this gang member despite the lack of evidence of guilt in this particular case in order to “send a message” to the community and to deter others from gang crime.
Don’t get me wrong. The Law doesn’t have all the answers to life’s problems. And lawyers aren’t necessarily better than others in solving them. But I find it interesting that many of the proponents of the above arguments are not lawyers, Bush and McCain among them.
Friday, December 22, 2006
Advice For The Lovelorn Law Student
In the past few months, several of my friends have told me that their children have decided to become lawyers, and even more terrifying, criminal defense lawyers.
Since I am nearing the end of a long, dismal career in that field, I feel qualified to advise the young in this one area. More than that, I feel it is my obligation.
Don't make the same blunder I did, please!
Thirty six years ago I entered into this quagmire still flushed with that optimism that JFK had inspired when I was a Junior in High School - you remember: “...The torch has been passed to a new generation ... Ask not blah blah blah, but what yada yada yada ...”
In law school I was brainwashed by the hope that the legal system might change the world. Courts had discovered civil rights and civil liberties, corrected past injustices, led fights against discrimination, abuses of police power, narrow mindedness of all brands.
My mistake was to believe that this era of enlightenment was the norm, would progress. In the telescope of years, I see now that it was a kind of Golden Age, a tsunami that comes rarely and yields to the bitter reaction that is society’s norm.
By the way: "tsunami" is a better metaphor than "pendulum" because experience teaches that return to balance is not inevitable - once given up, liberties are harder to win back. Societal stasis favors Order over the chaos of freedom. Take a poll among your peers. How many would agree that it is better to release a guilty person than convict an innocent one?
In my time, the tide receded almost immediately, at first impelled by good intentions as always. In the Seventies, the feminist movement raised consciences about injustices in rape laws. Then came the Drug War, spousal abuse, child abuse, gangs, guns, victims’ rights - hysterical responses to increasing crime rates then blamed on the progressive reforms of the previous decade.
That the real causes of the upswing in crime were demographics, economics, drug technology, not the basics of the legal system hardly mattered. Perception counts more than truth. Every change was perceived as needed reform, not dangerous tampering with Justice.
Nonetheless, The System has crashed. Judges from top to bottom, drawn from the ranks of prosecutors, now see themselves as prosecutors in robes. Draconian laws, many passed through our “democratic” Initiative Process mandate long prison sentences while also making it easier to convict. Prisons are hellholes, overcrowded with hopeless exiles, death row packed with waiting skeletons. Ghetto streets are filled with a permanent underclass of guys with rap sheets.
Most of the advances of the Golden Age have been cancelled.
Appellate courts - federal and state - permit most hearsay and illegally seized evidence. The most egregious violations of rights and rules in trials are deemed “harmless error” if the appellate judges make up their own minds that the defendant was guilty anyway. No matter that the prosecutor withheld evidence, jurors lied, the defense lawyer slept. “Strict interpretation” of The Constitution and the “will of the voters” uphold laws that would have been struck down 30 years earlier.
It is not much fun to be a defense lawyer anymore, especially a public defender.
The L.A. Office grew enormously over the years and evolved into a cog of The System. The old motto was: Provide the most effective lawyers for the lowest cost. Now, it is: Provide cost effective lawyers, period. The change in emphasis is subtle but disastrous. Morale is at an all time low.
Imagine being assigned to defend a shoplifter with two prior felony convictions who can be sentenced to life in prison. A one day trial with no issues to argue, before a judge who last week was prosecuting these cases. The trial DA may sympathize - she’ll go to her supervisor for permission to offer a plea bargain - “strike a strike” and take a plea for six years in prison.
Back in the day, we felt we were the “best and the brightest,” winning against The System because we were smarter, more dedicated, more prepared than anyone in the courtroom. It was still hard to prevail, we lost more than we won, and it took a psychic toll. Now, it is impossible. Not only is The System stacked against the defense, prosecutors are the perceived heroes of The Culture. Most believe that it is noble to defend victims, not criminals.
So here's my conclusion:
I know now that nobility for lawyers is a snare and a delusion. But if you must become a lawyer and still want to think yourself noble, save the environment, or a doomed animal, or an artist ... but most of all, make lots of money and save some so you can tell them all to screw themselves.
Since I am nearing the end of a long, dismal career in that field, I feel qualified to advise the young in this one area. More than that, I feel it is my obligation.
Don't make the same blunder I did, please!
Thirty six years ago I entered into this quagmire still flushed with that optimism that JFK had inspired when I was a Junior in High School - you remember: “...The torch has been passed to a new generation ... Ask not blah blah blah, but what yada yada yada ...”
In law school I was brainwashed by the hope that the legal system might change the world. Courts had discovered civil rights and civil liberties, corrected past injustices, led fights against discrimination, abuses of police power, narrow mindedness of all brands.
My mistake was to believe that this era of enlightenment was the norm, would progress. In the telescope of years, I see now that it was a kind of Golden Age, a tsunami that comes rarely and yields to the bitter reaction that is society’s norm.
By the way: "tsunami" is a better metaphor than "pendulum" because experience teaches that return to balance is not inevitable - once given up, liberties are harder to win back. Societal stasis favors Order over the chaos of freedom. Take a poll among your peers. How many would agree that it is better to release a guilty person than convict an innocent one?
In my time, the tide receded almost immediately, at first impelled by good intentions as always. In the Seventies, the feminist movement raised consciences about injustices in rape laws. Then came the Drug War, spousal abuse, child abuse, gangs, guns, victims’ rights - hysterical responses to increasing crime rates then blamed on the progressive reforms of the previous decade.
That the real causes of the upswing in crime were demographics, economics, drug technology, not the basics of the legal system hardly mattered. Perception counts more than truth. Every change was perceived as needed reform, not dangerous tampering with Justice.
Nonetheless, The System has crashed. Judges from top to bottom, drawn from the ranks of prosecutors, now see themselves as prosecutors in robes. Draconian laws, many passed through our “democratic” Initiative Process mandate long prison sentences while also making it easier to convict. Prisons are hellholes, overcrowded with hopeless exiles, death row packed with waiting skeletons. Ghetto streets are filled with a permanent underclass of guys with rap sheets.
Most of the advances of the Golden Age have been cancelled.
Appellate courts - federal and state - permit most hearsay and illegally seized evidence. The most egregious violations of rights and rules in trials are deemed “harmless error” if the appellate judges make up their own minds that the defendant was guilty anyway. No matter that the prosecutor withheld evidence, jurors lied, the defense lawyer slept. “Strict interpretation” of The Constitution and the “will of the voters” uphold laws that would have been struck down 30 years earlier.
It is not much fun to be a defense lawyer anymore, especially a public defender.
The L.A. Office grew enormously over the years and evolved into a cog of The System. The old motto was: Provide the most effective lawyers for the lowest cost. Now, it is: Provide cost effective lawyers, period. The change in emphasis is subtle but disastrous. Morale is at an all time low.
Imagine being assigned to defend a shoplifter with two prior felony convictions who can be sentenced to life in prison. A one day trial with no issues to argue, before a judge who last week was prosecuting these cases. The trial DA may sympathize - she’ll go to her supervisor for permission to offer a plea bargain - “strike a strike” and take a plea for six years in prison.
Back in the day, we felt we were the “best and the brightest,” winning against The System because we were smarter, more dedicated, more prepared than anyone in the courtroom. It was still hard to prevail, we lost more than we won, and it took a psychic toll. Now, it is impossible. Not only is The System stacked against the defense, prosecutors are the perceived heroes of The Culture. Most believe that it is noble to defend victims, not criminals.
So here's my conclusion:
I know now that nobility for lawyers is a snare and a delusion. But if you must become a lawyer and still want to think yourself noble, save the environment, or a doomed animal, or an artist ... but most of all, make lots of money and save some so you can tell them all to screw themselves.
Saturday, October 21, 2006
More Adventures In Crime - The Tender Gender
The signs of a decaying civilization may be subtle. Like temblors that merely rattle glassware for an instant, they foreshadow a cataclysm to follow. Case in point: an article buried on page B-5 of the L.A. Times of Saturday, October 21, 2006.
A Riverside County judge dismissed an “indecent exposure” charge against a woman. The controversy that made it news in the eyes of the Times editor was the judge’s reverse sexism, holding that the statute only prohibited conduct by males.
Whether the judge is right about that is of less interest to me than the underlying (no pun intended) facts, which the article didn’t get to until the 8th paragraph. A lady (age 40) complained that a neighbor boy (no age given) was making too much noise playing basketball in his yard. When he ignored her demands, she went onto her sundeck and “’He looked up at her, she looked down at him, and she disrobed.’”
What happened next is the scary part. “The boy ran inside and told his parents, who complained to [the woman]. When she threatened to do it every time he played basketball, his parents called police…. The family has since moved out of the neighborhood.” The “D.A. spokeswoman” commented, “’The whole incident is strange.”
Uh, yeah. Sure, the lady should have complained to the parents instead of taking such drastic action, but the misdemeanor the DA filed (P.C. §314.1) would require the lady to register as a sex offender for life.
Yet, even that is not what I worry about. My concern is for the boy’s well-being. It reminded me of a case I ran across as a public defender years ago in Pasadena. An 18 year old “woman” working as a playground counselor was charged with child molestation for fondling a 12 year old boy on a swing.
I place these stories in the same file as scandals about middle and high school teachers having affairs with students.
I try to imagine myself as a boy faced with these situations. Things were certainly different way back then. Sexism was not even a word. No one’s consciousness was raised above a leer. Sex was a mystery shrouded in an enigma, barely discernible through innuendo and snickers.
If I had been exposed to any of the situations set forth above, I believe we would have told my pals about it. Indeed, I dimly remember whispered hyperbole about such subjects. Someone would claim – to the awed, but skeptical listeners – that he had seen a naked lady, or been groped by “an older” woman. There were teachers whose endowments inspired soaring fantasies, sometimes related as facts.
But try as I might, I cannot conceive of any such event which would have impelled me to rush home after school or play and tell my parents. I can’t imagine a dialogue like this:
“Morty, how was your day? What did you learn?”
“Well, mom, it was a great day. Miss Smith, the substitute, er, taught me a lot, and then at the park, a girl gave me a, whatchacallit, a hand job, and – you know, Mrs. Anderson, she, er, complained about the noise we were making, and she took off all her clothes.”
Now that I think about it, I don’t think my mother would have rushed me to the local shrink – I doubt if she even knew of one – or the principal – and definitely not the police. My mother was - well I guess the word would have been - “earthy.” She delighted in telling a story about how my brother finally beat up the neighborhood bully in front of the kid’s mother who hit her son every time my brother did.
She might have giggled, been a bit shocked, but then might have bragged about it to her friends.
I’m not saying that it was a better world back then. Consciousness raising, over all, is probably a good thing. Adam and Eve had theirs raised – the old “knowledge of good and evil” idea. We were sexist – and racist – and a lot of other evil assumptions.
But I wonder sometimes about lost innocence.
Sunday, October 15, 2006
Parannoyed
Paranoia is one of the prime constants of Borenstein’s Law. The Fates and The System all too often conspire to bring our clients down despite the righteousness of their cause.
We are attuned to this defense because we understand paranoia all too well. From the very start, we have felt its force. When we enter courtrooms for trials, the shock wave of contempt directed our way is palpable. Court staff – judge, clerk, bailiff, D.A. – irked that our presence means work and stress, often a tedious trial with a recalcitrant defendant making spurious arguments that must be tolerated.
Yet, the finest rage is directed at the lawyer, not the client. We are to blame. We have failed to “control” the client, to make the case go away by accepting the generous sentence offered. And we will be reminded of it and punished for it all the time we are there.
So I get it when I’m appointed to represent Horace. He threatened to kill his girlfriend and her (probably imaginary) lover, who he thought had come through the bedroom wall and was hiding in the mattress. Horace has been pro per for months beating his weary head against the legal wall. The police, DA, judge, and his public defender had formed a cabal to help the lovers get rid of him.
Horace has made another fateful choice. In a moment of coherent thought, he’s conceded his ineptitude. In a moment of extreme mental fatigue, I accepted the case.
Like most pro pers, Horace has made a hash of all the documents in the file. They are soiled, dog-eared, a mess. I spend too much time putting it into a semblance of order.
Horace has serious problems. He’s charged with PC 422, which used to be called “terrorist threats.” That title was a bit hysterical, so the legislature changed it to “criminal threats.”
It is a crime to threaten harm, even if you don’t really intend to carry it out. If the target thinks you mean it, you’re a felon.
Horace has a bad record. In 1994, he tried a “till tap,” a grand theft of a mini-mart clerk. He got probation. Two years later, he tried it again, and this time there was a struggle. That was a robbery, and he got 2 years for it.
The prior “serious felony” carries a mandatory 5 years consec, and it is also a strike, which doubles any base term and requires doing 85% of the time before parole. His max is therefore 11 years.
At the prelim, his girlfriend Alma, the victim of the threat, testified that on Saturday, Horace had accused her of her tryst with the wall invading mattress hiding guy. Horace had been drinking, and she assured him that he was deluded. Horace then ordered her to leave, saying he would get a gun and shoot her.
Sensibly thinking to spend the night at her mother’s to let Horace sober up, Alma called her mom, who panicked and called the cops. When the cops arrived, Alma didn’t tell them about the threat, because, she testified, she didn’t want Horace arrested. But when she came back the next morning and noticed that Horace had slashed the mattress, she was angry and concerned. So she called the cops and told them about the threat from the day before. The cops came and arrested him.
Alma testified that Horace was not a bad person. He only got crazy when intoxicated, and that hadn’t happened until he lost his job and got depressed. They’d been together for 4 years and he hadn’t been abusive toward her.
I get along well with Horace. He’s been chasing his tail trying to prove tangents. I pursue his diversions, but keep my eye on the crux – the guy needs help, not prison. No history of domestic violence or abuse. He was depressed and went a little nuts. Who hasn't, in a fit of momentary anger, yelled "I could kill you" to a lover ... or a teenager ... or a client?
The calendar DA agrees. He’s been coping with Horace for months and knows he’s more cracked than bad. But his office wants the 5 year prior, so he offered low term (16 months) + 5 years. The law forbids judges from discretion. The DA has all the power and they won’t budge. The DA’s office is suffering from its own paranoia. If they are lenient with this crime and the defendant goes OJ, they might look bad.
I do some investigation, research, subpoena records from prison and his job, verify both his mental illness, drug & alcohol problem, and his work history. I get a shrink appointed. His report is no help. Horace hears voices, hallucinates when loaded, but he’s sane and if he did the act he must have had the intent to do it. Thanks.
So we go to trial. It is a short one. One day to pick a jury, one day for the DA’s case, a half day to argue. They go out at 11 and return at 12. NG.
The trial DA says, “See, I told you there was nothing to worry about. Justice prevailed.”
Sure. No problem. Just a few sleepless nights worrying about every decision. A sore neck from keeping Horace from screwing it up. Second guessing myself every inch of the way. Thinking something was going to go wrong. Hoping for the best and preparing for the worst takes it out of me. The NG is a relief, not a thrill.
Horace can get his own help. Maybe. I’m beyond help. So is The System.
Tuesday, September 26, 2006
A Real Noir Life
The investigator I use most often is a retired LAPD detective. I’ll call him Nate Markowitz, because the name fits his nose. Nate tells a good story, and like many of his sort, any reference is likely to trigger one. Today I’m telling Nate about the James Wayne case, when I notice a sparkle in his eye.
Nate chortles. "Did I ever tell you about Johnny Fuck Fuck?"
I tell him no, because I am certain that if I heard that name, I would remember.
"Johnny was a character who I ran into a lot in those days. He was a small time crook and sometime snitch, doing us little favors to get out of his many jams. He had Tourette’s and when he got excited everything he said was punctuated by "fuck fuck."
"Well, you mention Wallich’s Music City. It was at Hollywood and Vine. And right next to it was Stuff, a seedy bar that for some reason became an in place when I first made detective, I think it was in ‘66.
"It’s my first week at the Hollywood Division as a detective and this senior detective, Van Vleck, says to me, 'hey kid come with me, I got to make an arrest.'
"Van Vleck was one of the old timers, and I'm new so I just tag along. He’s looking for this guy who’s supposed to be a big receiver of stolen goods in Hollywood.
"We go into this little bar, Stuff, and it’s real seedy, but it’s jammed. Van Vleck goes over to the bar and asks for a particular bartender, who’s not on duty yet. Then the owner, Johnny Vera was his name, he comes over and he obviously knows Van Vleck real well.
"He invites us up to his office to wait. I follow the two of them up these winding stairs that are like hidden near the restrooms, and we enter this office. I swear, the office was like the size of one in the White House, and furnished like for a king. Right above this tiny seedy little bar.
"Johnny Vera points to his private bar, and its bigger than the one downstairs. He says, 'Drink?' Van Vleck says, 'Sure.'
"Well, we’re sipping our drinks and guys are coming in and out, Vera gives them orders, and time goes by. Then two big guys come in carrying these marble pedestals, that must have weighed twenty, thirty pounds each. There were three of them, and these wrestler looking guys set them down in the middle of the floor of the office.
"Vera says 'Ok,' and he continues to talk with Van Vleck. I don’t remember what they were talking about. I was just a kid, and I was just soaking in the atmosphere. Some time goes by.
"Then, three girls come in, each one more gorgeous than the other. And Vera nods at them, and they take off their clothes. Right there in the middle of the room.
"I don’t know what’s going to happen. I look at Van Vleck and he’s got a big shit-eating grin on his face. So, I’m wondering. There’s three of them and three of us. And my first thought is, Gee, being a detective is gonna be a lot more fun than I thought.
"Then the girls get up on the pedestals and just stand there smiling. And some guys come in with paint cans and start painting their bodies. Swirls and flowers, you know, in these da-glow colors, red, blue, green. All over their bodies.
"We’re just sitting there, I’m sipping my drink and Van Vleck and Vera are talking away, and the girls are turning around and lifting their arms and spreading their legs so the painters can get into all the nooks and crannies, and then the phone rings. Vera says to Van Vleck, 'He’s here.'
"The three of us go downstairs to the bar and the new bartender gives Van Vleck a piece of paper and we leave, go to the address on the paper, which is a boarding house on Fountain.
"Van Vleck knocks and a guy opens the door. He’s dripping wet, just out of the shower. Van Vleck grabs him by the wet hair and drags him into the room, asks him if he’s got the goods, which are a bunch of men’s suits stolen from a store.
"The guy is scared of Van Vleck. He says, 'No, I don’t have any.'
'What do you call these,' Van Vleck says, pointing to some suits in a closet.
'They’re not hot, they’re mine,' the guy says.
"Van Vleck grabs him by the throat and pulls him up from his seat, puts his nose up to the guy's and says, 'You better not be fuckin’ lyin’ to me.'
'The guy says, I’m not fuckin’ lyin.’
"Van Vleck makes a phone call and ten minutes later a uniformed cop comes in with the owner of the store, the victim of the heist. He checks out the guy’s suits and says, 'They’re not mine.'
So then Van Vleck puts his nose in the victim’s face and says, 'You better not be fuckin’ lyin’ to me.'
"The guys scared, and I have to step in because Van Vleck’s face is red.
"Finally Van Vleck stalks out, really steaming and cursing, and I follow him down the stairs. 'Where we going?'
'That fuckin’ bartender fuckin’ lied to me.'
"By the time we get back to the bar, I have Van Vleck calmed down a bit so that at least he’s not going to kill the bartender. We go into the bar and it is really jumping. Lights are flashing and music is playing and on top of the bar are the three girls dancing like go-go dancers, but they’re not in cages, they’re on top of the bar naked but painted all over and everybody’s having a good time.
"I go over to the bar and there’s Johnny Fuck Fuck, grinning at me. 'Hey, Nate, that’s somethin’ ain’t it? Fuck. Fuck.' I shrug and watch the show.
"Then Johnny Fuck Fuck whispers, 'Hey Nate, watch this.' He pulls out a piece of red cellophane and puts it up to his eye then to mine and when I look at the girl with the red & pink body, she’s naked.
"Johnny Fuck Fuck giggles and gives me a blue cellophane and then a green cellophane and they work the same with the other two girls which Johnny thinks is great. He keeps mumbling, 'Fuck fuck.'
"Some time later I ran into Johnny Fuck Fuck again at the station.
"His brother had been hired to kill someone, got a couple of hundred for it. But they guy who did the hiring was working both ends and had told the guy who was supposed to be shot about it in return for more money. Johnny’s brother went to do the deed and the supposed victim shot him. Didn’t kill him, everybody was trying to figure out if it was a case, who to arrest and such.
"And Johnny Fuck Fuck was hanging around putting in his two cents or at least his two fucks."
Nate chortles. "Did I ever tell you about Johnny Fuck Fuck?"
I tell him no, because I am certain that if I heard that name, I would remember.
"Johnny was a character who I ran into a lot in those days. He was a small time crook and sometime snitch, doing us little favors to get out of his many jams. He had Tourette’s and when he got excited everything he said was punctuated by "fuck fuck."
"Well, you mention Wallich’s Music City. It was at Hollywood and Vine. And right next to it was Stuff, a seedy bar that for some reason became an in place when I first made detective, I think it was in ‘66.
"It’s my first week at the Hollywood Division as a detective and this senior detective, Van Vleck, says to me, 'hey kid come with me, I got to make an arrest.'
"Van Vleck was one of the old timers, and I'm new so I just tag along. He’s looking for this guy who’s supposed to be a big receiver of stolen goods in Hollywood.
"We go into this little bar, Stuff, and it’s real seedy, but it’s jammed. Van Vleck goes over to the bar and asks for a particular bartender, who’s not on duty yet. Then the owner, Johnny Vera was his name, he comes over and he obviously knows Van Vleck real well.
"He invites us up to his office to wait. I follow the two of them up these winding stairs that are like hidden near the restrooms, and we enter this office. I swear, the office was like the size of one in the White House, and furnished like for a king. Right above this tiny seedy little bar.
"Johnny Vera points to his private bar, and its bigger than the one downstairs. He says, 'Drink?' Van Vleck says, 'Sure.'
"Well, we’re sipping our drinks and guys are coming in and out, Vera gives them orders, and time goes by. Then two big guys come in carrying these marble pedestals, that must have weighed twenty, thirty pounds each. There were three of them, and these wrestler looking guys set them down in the middle of the floor of the office.
"Vera says 'Ok,' and he continues to talk with Van Vleck. I don’t remember what they were talking about. I was just a kid, and I was just soaking in the atmosphere. Some time goes by.
"Then, three girls come in, each one more gorgeous than the other. And Vera nods at them, and they take off their clothes. Right there in the middle of the room.
"I don’t know what’s going to happen. I look at Van Vleck and he’s got a big shit-eating grin on his face. So, I’m wondering. There’s three of them and three of us. And my first thought is, Gee, being a detective is gonna be a lot more fun than I thought.
"Then the girls get up on the pedestals and just stand there smiling. And some guys come in with paint cans and start painting their bodies. Swirls and flowers, you know, in these da-glow colors, red, blue, green. All over their bodies.
"We’re just sitting there, I’m sipping my drink and Van Vleck and Vera are talking away, and the girls are turning around and lifting their arms and spreading their legs so the painters can get into all the nooks and crannies, and then the phone rings. Vera says to Van Vleck, 'He’s here.'
"The three of us go downstairs to the bar and the new bartender gives Van Vleck a piece of paper and we leave, go to the address on the paper, which is a boarding house on Fountain.
"Van Vleck knocks and a guy opens the door. He’s dripping wet, just out of the shower. Van Vleck grabs him by the wet hair and drags him into the room, asks him if he’s got the goods, which are a bunch of men’s suits stolen from a store.
"The guy is scared of Van Vleck. He says, 'No, I don’t have any.'
'What do you call these,' Van Vleck says, pointing to some suits in a closet.
'They’re not hot, they’re mine,' the guy says.
"Van Vleck grabs him by the throat and pulls him up from his seat, puts his nose up to the guy's and says, 'You better not be fuckin’ lyin’ to me.'
'The guy says, I’m not fuckin’ lyin.’
"Van Vleck makes a phone call and ten minutes later a uniformed cop comes in with the owner of the store, the victim of the heist. He checks out the guy’s suits and says, 'They’re not mine.'
So then Van Vleck puts his nose in the victim’s face and says, 'You better not be fuckin’ lyin’ to me.'
"The guys scared, and I have to step in because Van Vleck’s face is red.
"Finally Van Vleck stalks out, really steaming and cursing, and I follow him down the stairs. 'Where we going?'
'That fuckin’ bartender fuckin’ lied to me.'
"By the time we get back to the bar, I have Van Vleck calmed down a bit so that at least he’s not going to kill the bartender. We go into the bar and it is really jumping. Lights are flashing and music is playing and on top of the bar are the three girls dancing like go-go dancers, but they’re not in cages, they’re on top of the bar naked but painted all over and everybody’s having a good time.
"I go over to the bar and there’s Johnny Fuck Fuck, grinning at me. 'Hey, Nate, that’s somethin’ ain’t it? Fuck. Fuck.' I shrug and watch the show.
"Then Johnny Fuck Fuck whispers, 'Hey Nate, watch this.' He pulls out a piece of red cellophane and puts it up to his eye then to mine and when I look at the girl with the red & pink body, she’s naked.
"Johnny Fuck Fuck giggles and gives me a blue cellophane and then a green cellophane and they work the same with the other two girls which Johnny thinks is great. He keeps mumbling, 'Fuck fuck.'
"Some time later I ran into Johnny Fuck Fuck again at the station.
"His brother had been hired to kill someone, got a couple of hundred for it. But they guy who did the hiring was working both ends and had told the guy who was supposed to be shot about it in return for more money. Johnny’s brother went to do the deed and the supposed victim shot him. Didn’t kill him, everybody was trying to figure out if it was a case, who to arrest and such.
"And Johnny Fuck Fuck was hanging around putting in his two cents or at least his two fucks."
Monday, September 18, 2006
Intervention: what friends are for
The other night I visited the home of old friends because their son was in deep trouble. That’s what friends are for. The couple were, like many of our generation, hopelessly confused by the impending tragedy.
They had done everything right, more than right, ideally. Better parenting skills were not possible. Not just by the book, they could have written the book.
Affection, discipline, attention, values, nurturing, education, opportunities, appropriate positive approval with rewards for good behavior and immediate and appropriate punishment for misbehavior. They were strict, yet loving. They had provided a balanced environment, made none of the mistakes their parents had made, fell into none of the traps of either permissiveness or callousness.
And now, it seemed it might all have been useless. If this child went wrong, the implications were enormous — there is no hope for any conscientious parent.
And yet here he was. Sitting across from me, smiling a benign smile, seeming oblivious to the decision he was contemplating that might lead him on a disastrous path.
When I arrived, the tension was palpable. The Mom and Dad were pathetic in their apparent despair. It was like an ER.
My strategy for this intervention was to strike quickly, a sudden slap in the face, a punch in the gut, the shock treatment.
"What the fuck are you thinking?" I spit as I enter.
He is shocked, he reels, but retains his goofy smile.
"I’m not kidding, kid, if that’s what you’re thinking. I’m dead serious."
"But, like what’s wrong? What did I do?"
Good start, he’s on the defensive.
"You don’t even know you’re on the edge of a cliff, the rim of a volcano, one foot on a slippery slope to destruction."
My metaphors wound him. I feel a pang of guilt.
My friends feel their son’s pain, but steel themselves. They knew it would hurt, but it is almost too much. All their protective impulses must be stifled. This is the toughest tough love.
The kid begins to well up. But he counterpunches, gets me right in the stomach, completely unprepared.
"But you, it’s what you do."
I stagger. I’m the one who is shocked.
I look to my friends, his parents, for help, see the looks in their eyes. Me. It’s my fault. All their work was ruined because of me.
But how? Sure, I’ve known this kid all his life. Watched his growth, along with my own son’s, envied the skills his parents had shown. Yet my kid turned out okay, hadn’t made this fatal turn. So why is it my fault?
"You made it sound great! All those stories, man. And, and, like fighting the good fight, man. Its like awesome, dude."
I’m dizzy now with terror. I sputter.
"Kid, you can’t be serious. You didn’t believe all that bull, did you? You weren’t listening. Sure there’s laughs and highs. But for every high, there’s ten lows that are way lower than the highs are high. In the end you lose, you get crushed. You want to end up like me? Look at me. Take a good look, kid."
It may have worked. For the first time, the kid blinked and saw me for what I really was. Not the cool, terribly witty dude, but the old, bitter hulk, the residue of a wasted life.
He wept and his Mom enveloped him in her loving arms. His Dad grasped my hand and my shoulder.
Tearfully, "Thanks, mort, I know that wasn’t easy."
"Its okay." My breath returns. "Growing up is hard. The heroes have to be toppled. But how did it get this bad?"
"I didn’t see it coming," the Dad said.
"When he started law school, I actually supported it. I guess I wanted to believe. When he talked about criminal law being cool, I thought, okay, he could be a DA. But then, all of a sudden, he starts talking about defending, and now he applied to the public defender. I was stunned."
"I’m so sorry, pal. I blame myself."
"No, I think its okay now. Now that he sees you as you are. That took guts."
"Hey, what are friends for."
They had done everything right, more than right, ideally. Better parenting skills were not possible. Not just by the book, they could have written the book.
Affection, discipline, attention, values, nurturing, education, opportunities, appropriate positive approval with rewards for good behavior and immediate and appropriate punishment for misbehavior. They were strict, yet loving. They had provided a balanced environment, made none of the mistakes their parents had made, fell into none of the traps of either permissiveness or callousness.
And now, it seemed it might all have been useless. If this child went wrong, the implications were enormous — there is no hope for any conscientious parent.
And yet here he was. Sitting across from me, smiling a benign smile, seeming oblivious to the decision he was contemplating that might lead him on a disastrous path.
When I arrived, the tension was palpable. The Mom and Dad were pathetic in their apparent despair. It was like an ER.
My strategy for this intervention was to strike quickly, a sudden slap in the face, a punch in the gut, the shock treatment.
"What the fuck are you thinking?" I spit as I enter.
He is shocked, he reels, but retains his goofy smile.
"I’m not kidding, kid, if that’s what you’re thinking. I’m dead serious."
"But, like what’s wrong? What did I do?"
Good start, he’s on the defensive.
"You don’t even know you’re on the edge of a cliff, the rim of a volcano, one foot on a slippery slope to destruction."
My metaphors wound him. I feel a pang of guilt.
My friends feel their son’s pain, but steel themselves. They knew it would hurt, but it is almost too much. All their protective impulses must be stifled. This is the toughest tough love.
The kid begins to well up. But he counterpunches, gets me right in the stomach, completely unprepared.
"But you, it’s what you do."
I stagger. I’m the one who is shocked.
I look to my friends, his parents, for help, see the looks in their eyes. Me. It’s my fault. All their work was ruined because of me.
But how? Sure, I’ve known this kid all his life. Watched his growth, along with my own son’s, envied the skills his parents had shown. Yet my kid turned out okay, hadn’t made this fatal turn. So why is it my fault?
"You made it sound great! All those stories, man. And, and, like fighting the good fight, man. Its like awesome, dude."
I’m dizzy now with terror. I sputter.
"Kid, you can’t be serious. You didn’t believe all that bull, did you? You weren’t listening. Sure there’s laughs and highs. But for every high, there’s ten lows that are way lower than the highs are high. In the end you lose, you get crushed. You want to end up like me? Look at me. Take a good look, kid."
It may have worked. For the first time, the kid blinked and saw me for what I really was. Not the cool, terribly witty dude, but the old, bitter hulk, the residue of a wasted life.
He wept and his Mom enveloped him in her loving arms. His Dad grasped my hand and my shoulder.
Tearfully, "Thanks, mort, I know that wasn’t easy."
"Its okay." My breath returns. "Growing up is hard. The heroes have to be toppled. But how did it get this bad?"
"I didn’t see it coming," the Dad said.
"When he started law school, I actually supported it. I guess I wanted to believe. When he talked about criminal law being cool, I thought, okay, he could be a DA. But then, all of a sudden, he starts talking about defending, and now he applied to the public defender. I was stunned."
"I’m so sorry, pal. I blame myself."
"No, I think its okay now. Now that he sees you as you are. That took guts."
"Hey, what are friends for."
Sunday, September 10, 2006
"Squeezing The Lemon": The Holistic Approach
On September 9, I gave a lecture at the 24th Annual Homicide Defense Seminar hosted by the California Public Defenders Association (CPDA) in San Francisco.
At the urging of my son the internet guru, I am posting a version of that lecture here. While my blogging is not usually aimed at criminal defense lawyers and includes observations about a lot more than those that occupy my profession, it is offered here as a glimpse into our little world.
HOMICIDE CASE PREPARATION
I learned more in the lunchroom and halls of the Public Defenders office than I had in 3 years in law school --- by listening to the "war stories" of PD's who became legends in our profession -- Dick Buckley, John Moore (the "Onion Field" lawyer), Bill Littlefield, Paul Fitzgerald, Stu Rappaport, and Charley Gessler, among them.
So Charley comes into the lunchroom with his brown bag and ever present styrofoam coffee. There are the usual winks and snickers around the table. Charley is in the midst of trying a case the press had dubbed "The Skid Row Slasher Case," a brutal series of murders of pathetic homeless people. Rather than pitying Charley for this miserable assignment, the attitude of his peers in the Office is to needle him unmercifully. Like soldiers in battle, these guys are glad he had been chosen to volunteer for this particular hopeliss cause and not them.
"How's it going, Charley," they chuckle, knowing that Charley is being pummeled every day by piles of evidence. Charley chews his sandwich and says earnestly, "I had a good morning session. I think I see an argument on the weapon use allegation in count 26."
The lesson I learned that day was that in the toughest cases --- the real lemons that make us groan when they're dumped on our desks --- our job is to get the best result possible - whether that is walking the client out the door or only striking the use allegation in count 26. The skill of defense lawyers is to squeeze every drop out of the lemon.
And that usually means knowing more about the case than anyone else. That's where "Discovery" comes in. That is the term applied to the process of gaining information in lawsuits.
In 36 years of defending in homicide cases, I've developed some of my own ideas, which I now share in this "lunchroom."
OVERVIEW: “The ANTI-checklist approach”
Lawyers are fond of "checklists" to remind them of the tasks they need to perform. Here's one of them.
At the urging of my son the internet guru, I am posting a version of that lecture here. While my blogging is not usually aimed at criminal defense lawyers and includes observations about a lot more than those that occupy my profession, it is offered here as a glimpse into our little world.
HOMICIDE CASE PREPARATION
I learned more in the lunchroom and halls of the Public Defenders office than I had in 3 years in law school --- by listening to the "war stories" of PD's who became legends in our profession -- Dick Buckley, John Moore (the "Onion Field" lawyer), Bill Littlefield, Paul Fitzgerald, Stu Rappaport, and Charley Gessler, among them.
So Charley comes into the lunchroom with his brown bag and ever present styrofoam coffee. There are the usual winks and snickers around the table. Charley is in the midst of trying a case the press had dubbed "The Skid Row Slasher Case," a brutal series of murders of pathetic homeless people. Rather than pitying Charley for this miserable assignment, the attitude of his peers in the Office is to needle him unmercifully. Like soldiers in battle, these guys are glad he had been chosen to volunteer for this particular hopeliss cause and not them.
"How's it going, Charley," they chuckle, knowing that Charley is being pummeled every day by piles of evidence. Charley chews his sandwich and says earnestly, "I had a good morning session. I think I see an argument on the weapon use allegation in count 26."
The lesson I learned that day was that in the toughest cases --- the real lemons that make us groan when they're dumped on our desks --- our job is to get the best result possible - whether that is walking the client out the door or only striking the use allegation in count 26. The skill of defense lawyers is to squeeze every drop out of the lemon.
And that usually means knowing more about the case than anyone else. That's where "Discovery" comes in. That is the term applied to the process of gaining information in lawsuits.
In 36 years of defending in homicide cases, I've developed some of my own ideas, which I now share in this "lunchroom."
OVERVIEW: “The ANTI-checklist approach”
Lawyers are fond of "checklists" to remind them of the tasks they need to perform. Here's one of them.
- ___ Discovery
- ___ Investigation
- ___ Motions
- ___ Experts
- ___ Negotiations
- ___ Defenses
- ___ Argument
The problem with checklists is that lawyers treat each task as something to be completed, put into a folder, and then ignored.
My approach is more --- excuse the expression --- holistic.
All the tasks are interreleated and continuing, Like grief, discovery is a process, that continues and affects the whole case.
Every murder case is a mystery - not always a thriller, and not always a "whodunnit." It can also be a "whydunnit" or a "howdunnit." But there is always some mystery - a story to unravel.
ASSUMPTIONS
My talk made some basic assumptions. First, most in my audience (of about 250) were public defenders. The most common homicide cases they would be assigned would not be like Agatha Christie novels in which Lord Twit murdered Lady Nitwit with rare poisons in her tea or a movie about a Mafia hitman from the Badabing.
Most homicide case involve the following:
Gang confrontations, the sort of common street encounter that begins with the audacity to look someone in the eye - called "mad-dogging" - an offense that can be fatal.
Impulse killings - triggered by quarrels after simmering passions: lovers, parents, babies, druggies, barflys, crimies - people who know each other - often too well.
Killings during crimes: drug deals gone bad, burglaries, robberies, carjacks. The "felony murder" law says that any death - whether accidental, negligent or intentional - during certain felonies is first degree murder. Others can trigger 2nd degree murders. Misdemeanors can lead to manslaughter or in some cases (like DUI) murder charges.
My lecture was not designed to explain the law. I assumed that my audience knew the law or at least how to find it. The law of homicide cases is the most complex in criminal law, maybe in all of legal scholarship.
It was also not designed to prepare for capital defense, the top of the pyramid of homicide defense. I merely reminded them that the pressure of focusing on penalty issues often blinds lawyers to the reality that the facts of the crime often determine the penalty outcome. Even after a guilty verdict, the jury often votes against a death sentence because of "lingering doubts" about guilt, which might be the result of issues raised very early in the case by the hard work of the "discovery" process.
One of the most important ideas I emphasized was that:
HOMICIDE CASES ARE NOT FOR DILLETANTES
A reporter preparing a series about capital defense lawyers asked me why most were grey haired old men and women. The implication was that we are a dying breed. I ducked the question of 'where is the new generation going to come from' and told the reporter that gray hair (or the absence of any) is needed because it takes a lifetime of experience and survival to be the best at it. You don't spring from the shell knowing how to do it well and you have to be dedicated and make sacrifices of time, energy and stress.
Analogizing the legal profession to medicine, a lawyer doing a civil case or a DUI is like a dermatologist, while a capital murder case is brain surgery.
HOMICIDE DISCOVERY IS DIFFERENT
I mentioned this lecture to a judge who was a former DA and he said, "How is it different?" He was trying to impress me with how scrupulous and ethical he perceived himself to have been - and to be honest, this guy was - but not all DA's are.
The trend is to "hide the ball." Emboldened by appellate neglect, defense laziness, the impulse to win the big ones, many prosecutors and police agencies give up the goods grudgingly, if at all.
Prosceutors are torn between their ethics and their ambition. DA's often are involved in the investigation and continue their work until their target is dead. Homicide detectives view themselves as a breed apart. They act like stars with presence, stalking crime scenes and courtrooms with their "187" belt buckles and western boots.
The pressures include the publicity that often swirls around murder cases, true regard for families of the deceased, the implications for the community.
These cases are complicated, generate reams of paper (now also filling CD's). The facts are dispersed among many official and private sources of information. Unearthing them requires knowing what to look for and where. It requires subtlety, experience, and imagination.
My lecture included a startling revelation that runs counter to popular belief:
LAWYERS ARE PEOPLE TOO.
In law school we were trained (brainwashed) to "think like a lawyer." This was meant to force an orderly and rational approach to legal problems - find the facts and the inferences, spot the issues in the case, determine the applicable law.
But homicide cases are unique in popular culture. The subject of murder is so pervasive that everybody thinks they know something about it. Everybody's heard about "malice aforethought," "self-defense," "alibi."
The judge is going to give the jury a set of complicated legal instructions to give them some legal education. They're not going to be able to do it.
What's a juror going to make of the difference between 1st and 2nd degree murder? What's the difference between "premeditation" and "express malice"? A manslaughter means "intent to kill" but no "malice aforethought"? How can manslaughter be "involuntary? How can self-defense consider "fear" but not "anger"? Who is this imaginary "reasonable person"?
What are they going to think about the "victim," the witnesses, your client.
Every defense lawyer gets a chill that moment when the jury panel crowds the courtroom and the judge reads the charges for the first time. "The defendant is charged with murder." You feel those hundreds of eyes bore into your back. What are they thinking at moment?
Our skill is to translate "legal" into English for the people who are going to decide our client's fate. We have to learn to think like jurors, not lawyers.
My approach is more --- excuse the expression --- holistic.
All the tasks are interreleated and continuing, Like grief, discovery is a process, that continues and affects the whole case.
Every murder case is a mystery - not always a thriller, and not always a "whodunnit." It can also be a "whydunnit" or a "howdunnit." But there is always some mystery - a story to unravel.
ASSUMPTIONS
My talk made some basic assumptions. First, most in my audience (of about 250) were public defenders. The most common homicide cases they would be assigned would not be like Agatha Christie novels in which Lord Twit murdered Lady Nitwit with rare poisons in her tea or a movie about a Mafia hitman from the Badabing.
Most homicide case involve the following:
Gang confrontations, the sort of common street encounter that begins with the audacity to look someone in the eye - called "mad-dogging" - an offense that can be fatal.
Impulse killings - triggered by quarrels after simmering passions: lovers, parents, babies, druggies, barflys, crimies - people who know each other - often too well.
Killings during crimes: drug deals gone bad, burglaries, robberies, carjacks. The "felony murder" law says that any death - whether accidental, negligent or intentional - during certain felonies is first degree murder. Others can trigger 2nd degree murders. Misdemeanors can lead to manslaughter or in some cases (like DUI) murder charges.
My lecture was not designed to explain the law. I assumed that my audience knew the law or at least how to find it. The law of homicide cases is the most complex in criminal law, maybe in all of legal scholarship.
It was also not designed to prepare for capital defense, the top of the pyramid of homicide defense. I merely reminded them that the pressure of focusing on penalty issues often blinds lawyers to the reality that the facts of the crime often determine the penalty outcome. Even after a guilty verdict, the jury often votes against a death sentence because of "lingering doubts" about guilt, which might be the result of issues raised very early in the case by the hard work of the "discovery" process.
One of the most important ideas I emphasized was that:
HOMICIDE CASES ARE NOT FOR DILLETANTES
A reporter preparing a series about capital defense lawyers asked me why most were grey haired old men and women. The implication was that we are a dying breed. I ducked the question of 'where is the new generation going to come from' and told the reporter that gray hair (or the absence of any) is needed because it takes a lifetime of experience and survival to be the best at it. You don't spring from the shell knowing how to do it well and you have to be dedicated and make sacrifices of time, energy and stress.
Analogizing the legal profession to medicine, a lawyer doing a civil case or a DUI is like a dermatologist, while a capital murder case is brain surgery.
HOMICIDE DISCOVERY IS DIFFERENT
I mentioned this lecture to a judge who was a former DA and he said, "How is it different?" He was trying to impress me with how scrupulous and ethical he perceived himself to have been - and to be honest, this guy was - but not all DA's are.
The trend is to "hide the ball." Emboldened by appellate neglect, defense laziness, the impulse to win the big ones, many prosecutors and police agencies give up the goods grudgingly, if at all.
Prosceutors are torn between their ethics and their ambition. DA's often are involved in the investigation and continue their work until their target is dead. Homicide detectives view themselves as a breed apart. They act like stars with presence, stalking crime scenes and courtrooms with their "187" belt buckles and western boots.
The pressures include the publicity that often swirls around murder cases, true regard for families of the deceased, the implications for the community.
These cases are complicated, generate reams of paper (now also filling CD's). The facts are dispersed among many official and private sources of information. Unearthing them requires knowing what to look for and where. It requires subtlety, experience, and imagination.
My lecture included a startling revelation that runs counter to popular belief:
LAWYERS ARE PEOPLE TOO.
In law school we were trained (brainwashed) to "think like a lawyer." This was meant to force an orderly and rational approach to legal problems - find the facts and the inferences, spot the issues in the case, determine the applicable law.
But homicide cases are unique in popular culture. The subject of murder is so pervasive that everybody thinks they know something about it. Everybody's heard about "malice aforethought," "self-defense," "alibi."
The judge is going to give the jury a set of complicated legal instructions to give them some legal education. They're not going to be able to do it.
What's a juror going to make of the difference between 1st and 2nd degree murder? What's the difference between "premeditation" and "express malice"? A manslaughter means "intent to kill" but no "malice aforethought"? How can manslaughter be "involuntary? How can self-defense consider "fear" but not "anger"? Who is this imaginary "reasonable person"?
What are they going to think about the "victim," the witnesses, your client.
Every defense lawyer gets a chill that moment when the jury panel crowds the courtroom and the judge reads the charges for the first time. "The defendant is charged with murder." You feel those hundreds of eyes bore into your back. What are they thinking at moment?
Our skill is to translate "legal" into English for the people who are going to decide our client's fate. We have to learn to think like jurors, not lawyers.
Wrapped in the legalisms and procedures, we must not forget what jurors can't forget: somebody died and your client probably did it.
FOR THE DOCTOR WANNABE
Another cool thing about homicide cases is that they will make your parents and loved ones, for once, proud because you can finally be that doctor or scientist they always wanted you to be, instead of the career you foolishly chose. At the very least, you can impress your friends by knowingly complaining about the defects in "CSI: MIAMI."
You are going to become expert it any or all of these sexy fields:
weapons, medicine, DNA, bodily fluids - blood, semen, criminalistics - ballistics, fingerprints, psychology and all forms of perverse behavior.
Discovery is part of the process that allows you to become an expert, which you need in order to create credibility with the jury so that they will listen to the points you raise on cross-examination, with your own witnesses, and to your argument. Discovery is your continuing education essential to your preparation.
Discovery comes from many sources. The first is from your opponent, the DA, who as noted, is your adversary, the advocate for The People.
DISCOVERY – From DA: INFORMAL FORMAL DISCOVERY
To insure that the DA will be forthcoming, you have to establish an "attitude" at the start and consistently apply it throughout the case. You will appeal to the DA's sense of ethics about his noble profession:
BUT you're going to appeal to his (her) ambition, by citing the many cases excoriating prosecutors for misconduct when they concealed evidence. You're going to remind him that the law requies disclosure, even without request, of "relevant exculpatory evidence" and that he can't hide behind a policy of "don't ask, don't tell" when it comes to what the police know that they haven't told him.
The 6th and 14th Amendments make discovery a constitutional right of the defense and no state laws are needed to enforce it. California, like most other states and the feds, have statutes governing discovery.
The truth is that most of these laws are designed to do two things. First, they are aimed helping prosecutors to "discover" the defense case. For most of our history, the 5th Amendment protected the defense against the need to disclose its case to the prosecution. The People have the burden of proving guilt without assistance from the defense, and discovery to the prosecution was recognized as "lightening the burden."
As the Supreme Court escaped the Golden Age of Enlightenment, however, talk began about discovery being "a two way street." Alibi statutes were passed and upheld, requiring the defense to disclose witnesses and what they were going to testify to so the prosecution could be prepared to rebut it at the trial. The rules were then extended to all defense witnesses.
Sounds fair, but it poses a dilemma for defense lawyers and fairness. Your witnesses and other evidence that you gather may provide a defense, but may also contain harmful evidence. Suppose, for e.g., that the DA's case placing your client at the scene of a crime is weak - questionable ID's. You uncover witnesses who put your client at the scene, but say he acted in self-defense. If you give this to the DA, can they use your witness to bolster their case, while attacking the self-defense idea?
This dilemma is a subject for a lecture series and much debate among defense lawyers. Most of the issues have not been resolved, and my present lecture merely touched on some of them.
The second goal of new statutes was to streamline the discovery process by reducing the judge's involvement. Informal discovery between the parties was urged, detailing what is and is not discoverable, defining the parameters, and sanctions for non-compliance.
In California, the law is in Penal Code Section 1054, et. seq.
My strategy is to take advantage of what the law gives by making informal discovery as formal as possible. I prepare detailed informal discovery letters requesting every possible item that they (or any member of the prosecution "team") might have, insist on a certain date for compliance, and file a copy with the court. I follow up the letters with more letters as the case progresses, referring to my previous requests and their degree of diligence in responding so that a record is kept in the official file.
This reinforces the "attitude" of dogged determination that encourages the DA to give up the goods. I provided my audience with several samples of letters I used in past cases.
KEEP A LOG
Some years ago I was appointed to defend in a case involving 10 murders, 7 defendants, thousands of pages of documents, photos, recordings of interviews, many police agencies. I had to keep a log of the reams of discovery because the trial was going to take 8 months to complete. The "table" function of my computer's word processing program generated lists of material which I sorted by number, date, charge, and could retrieve by the name of witness, subject, crime, expert, defendant, etc.
SOME AREAS OF DISCOVERY FROM DA
I gave samples of some of the areas of discovery obtainable from the DA, mostly about the deceased and their prospective witnesses.
They include the seemingly obvious: names, addresses, but sometimes the DA wants to conceal even this most elemental information. Witnesses, especially in gang cases, may be in danger.
I need the information and have a right to it, so I scrupulously follow the law's demand that I keep the information from my client.
I do that in my client's interests. There is no more powerful evidence of guilt than attempting to intimidate opposing witnesses. I don't need that kind of help from my client, his family or friends.
Facts about witnesses you need to get include statements, their gang affiliation, whether they are informers who've been offered or requested inducements to testify. Do they have pending cases, recent arrests, probation or parole or immigration problems that motivate their "cooperation"?
PRIORS
You need to know details about their criminal history. The law entitles you to impeach the believability of a witness by telling a jury about crimes of moral turpitude, those that relate to honesty, but you need to know more.
A deceased's propensity for violence or substance use can affect a self-defense issue. Confronting a known gangster or meth freak can trigger a reasonable reaction of violence.
The holistic approach means that discovery of these facts will lead to investigation, consultation with experts, and then lead to further need for discovery.
INVESTIGATION & DISCOVERY & INVESTIGATION
Crim Law 101 demands viewing the crime scene. That's basic, but even more crucial in homicides. "The 'hood" is where the everything can be found. The street tells you whether the identification of your client in a drive-by was accurate. Word on the street will tell you more about who the supposed victim was, who else hated him and the same about the witnesses who fingered your client.
Was he a snitch? A drug dealer? Did he owe money to a dealer? Was he a liar? Is there a spurned lover who knows the real story?
DISCOVERY FROM POLICE AGENCIES
By now, everyone knows the basics of CSI.
Typically, when a violent crime is called in, uniformed cops show up. They do a preliminary investigation and prepare a report. They find a body, set up a crime scene, call paramedics, and try to identify potential suspects, witnesses.
Eventually the homicide detectives are called. They direct the collection of evidence, measurements, photos, diagrams.
We've all seen the elements of the mystery: the cop tells the detective, "I canvassed the neighbors. Nobody saw or heard anything." "Of course." What can you expect in this part of town? They generate Field Identification (FI) cards or notes. Name, address, "saw nothing."
But what they didn't tell the cops, they might tell your investigator, maybe with assistance from your client's family member who knows the 'hood, speaks the language, and isn't a cop. It may take time as word on the street permeates about the "who" and "why" of it. People may disappear and re-appear weeks or months or even years later, who know the truth and are willing to talk to you.
The homicide cop has his sources, too. Informers and other cops, other agencies who get the word, or at least a version of it. They have gang experts, narc units, vice, specialists in ethnic groups. They will search for patterns, histories - other shootings in the area, motives, retaliation for grudges, enemies. People who die violently have often caused violence to others, many others.
ABANDONED SUSPECTS
Before they focused on your client, they may have traced other lead that they abandoned when your client came up. Then, typically, they stopped going down these other roads.
That's a defect in the police investigation system. Once they gather enough evidence to convince them that they have PC to arrest, they usually stop looking for others.
But your job may be to keep at it, do their job for them, and show what the law delicately calls, 3rd Party Culpability.
DISCOVERY FROM OTHER SOURCES
Other quasi-independent agencies, not labeled as "police," are always involved and their work needs to be discovered, often by subpoena of records and follow up with face to face interviews.
They include the EMT (or Paramedics), which are often employees of the Fire Department. They come to the scene to aid and transport victims.
I gave the audience an example of a case I had. Two Hispanic men leave a store carrying bags. They are confronted by a man who runs up to them shouting something while pulling a shotgun from his sleeve. As he nears them, the gun goes off, killing one. The police report says that while the victim was being transported to the hospital, he told the detective that it was a robbery. A "dying declaration." That makes it 1st degree murder.
Discovery and investigation led me to interview the EMT worker who told me that the victim understood only Spanish and said that the assailant spoke only English. It was the victim's conclusion that it was a robbery, and the judge dismissed the felony-murder charge, reducing it to manslaughter.
MEDICAL EXAMINER
The coroner does an autopsy, determining cause of death and prepares a report with photos of his findings. Interviewing the doctor is essential. Separate speculation from science, eliminate prejudicial information that can disgust a jury.
For a self-defense case, you need to know lots about the deceased. His tattoos, his scars, his size, and the toxicology report of what was in his system: drugs and alcohol level.
A psycho-pharmacologist will interpret the behavioral effects - perception, propensity for violence, irrational behavior that provoked an assault.
And you better see ALL the photos before the jury does.
911 TAPE
Often more than one person calls in. What descriptions were given, how to they vary, when were they made.
CRIME LABS
Many jurisdictions farm out their forensic work and the degree of expertise varies widely. Notes, tests, protocols, c.v.'s can make the difference for your own experts to rebut.
CELL PHONE RECORDS
With cell phones more prevalent, another source of critical data is available. Records can establish not only when a call was made, but also from where it was made. Records include the location of the nearest cell and can buttress an alibi if your client made a call at the time of the crime from a location too far away to put him at the scene.
HOSPITAL RECORDS
When the victim arrives, he is attended by nurses, aides, ER docs, and others who generate notes, reports of exams, tests, drugs, procedures, interviews, conclusions.
In one case, my client was charged with murder of his girl friend's infant. She told police she had left the house briefly and returned to find the baby dead and her boyfriend drunk. The cause of death was "Shaken Baby Syndrome."
I dug out hospital records, not just of the night the baby died, but previous visits and those led to other hospitals to which the mother had brought the child, many times since its birth, most long before my client had been around.
I shared the records with the DA on the case, who later dismissed the case, after recognizing that the mother was suffering from (or guilty of) "Munchausen Syndrome By Proxy." She had caused the injuries to her child in order to get attention and assuage her need to fabricate her own victimization.
GANG BOOK
Every police agency keeps this data about gangs in their area, including photos, monikers, rap sheets. Your client may be the "Mousey" who did it, but there may be 5 other guys who fit that description. Gangsters aren't very original.
UNOFFICIAL SOURCES FOR DISCOVERY
AUTO LINE-UPS
Car manufacturers and dealers can provide sales figures and descriptions of similar vehicles that more closely fit than the one your client was caught in.
STREET MAINTAINANCE
Records of the lighting, trees, pavements, graffiti removal, construction can make a difference in identification.
THE TROUBLE WITH CO-DEFENDANTS ... AND THEIR LAWYERS
Among the hundreds of decisions you have to make are the many that arise when there are other defendants. Do you want to share discovery and or investigation? Present a joint defense?
You are going to consider many theories. Is there one shooter and one accessory? What about the "conspiracy" law, which makes any participant equally guilty? Do you want a joint trial or a severance. Which defendant made statements implicating the others? Are any going to testify?
I know of one case in which there were 4 defendants accused in a drive by killing. There had been 2 cars and shots came from only one of them. Each lawyer tried to prove that his client was in the other car, allowing the DA to discount all of the defenses --- "apparently the shots came from an empty car!" All 4 were convicted.
You have to identify which defendant is likely to "roll over" on the others, accept a deal to testify. That means more discovery and investigation.
THE TROUBLE WITH CLIENTS
The question I am most often asked by laymen is "How can you defend someone if they confess their guilt to you"? The fact is that most clients confess to everyone BUT their lawyer. They think you won't fight for them if they confess to you.
Instead, they talk to the police, to their friends, their jail mates, their co-defendants. They whisper on buses, over monitored phones, in the presence of bailiffs, in lock-ups.
Given any chance to make incriminating statements they will do it, even if they really are not guilty. Even the innocent feels compelled to "help" his case by setting up a false alibi - in a letter or phone call to his wife or homie from jail.
The worst feeling is to be suddenly confronted in the middle of trial with a tape of your client's latest statement in conversation during lunch.
You must make a motion to keep him away from co-defendants at all times. You need to make continuing discovery demands for any statements.
Without thorough discovery you can't make one of your most critical decisions: whether your client can testify. If you can, it may be a great advantage - though risky. A client with a good family, good character witnesses, employers, ministers, can win a case.
But you need to prepare: does he have any blemishes that can destroy his credibility?
FINALLY, TWO RULES TO REMEMBER:
ONE: HFTB BUT PFTB: Hope For The Best BUT Prepare For The Worst.
TWO: Good old Borenstein's Law. If you have forgetten, it is the Universal Law that seeks to explain many common phenomena, including why our clients cause trouble.
In essence, it is this: EXPECT YOUR CLIENT TO ACT AGAINST HIS BEST INTERESTS.
The reasons they do so is explained elsewhere in great detail in my post titled Intro to Borenstein's Law. Suffice to say that they wouldn't be your client if it wasn't true.
FOR THE DOCTOR WANNABE
Another cool thing about homicide cases is that they will make your parents and loved ones, for once, proud because you can finally be that doctor or scientist they always wanted you to be, instead of the career you foolishly chose. At the very least, you can impress your friends by knowingly complaining about the defects in "CSI: MIAMI."
You are going to become expert it any or all of these sexy fields:
weapons, medicine, DNA, bodily fluids - blood, semen, criminalistics - ballistics, fingerprints, psychology and all forms of perverse behavior.
Discovery is part of the process that allows you to become an expert, which you need in order to create credibility with the jury so that they will listen to the points you raise on cross-examination, with your own witnesses, and to your argument. Discovery is your continuing education essential to your preparation.
Discovery comes from many sources. The first is from your opponent, the DA, who as noted, is your adversary, the advocate for The People.
DISCOVERY – From DA: INFORMAL FORMAL DISCOVERY
To insure that the DA will be forthcoming, you have to establish an "attitude" at the start and consistently apply it throughout the case. You will appeal to the DA's sense of ethics about his noble profession:
“THE DUTY OF THE DISTRICT ATTORNEY IS NOT MERELY THAT OF AN ADVOCATE.HIS DUTY IS NOT TO OBTAIN CONVICTIONS, BUT TO FULLY AND FAIRLY PRESENT THE EVIDENCE.” PEOPLE V. KASIM (1997) 56 CAL.APP.4TH 1360, AT 1378.
BUT you're going to appeal to his (her) ambition, by citing the many cases excoriating prosecutors for misconduct when they concealed evidence. You're going to remind him that the law requies disclosure, even without request, of "relevant exculpatory evidence" and that he can't hide behind a policy of "don't ask, don't tell" when it comes to what the police know that they haven't told him.
The 6th and 14th Amendments make discovery a constitutional right of the defense and no state laws are needed to enforce it. California, like most other states and the feds, have statutes governing discovery.
The truth is that most of these laws are designed to do two things. First, they are aimed helping prosecutors to "discover" the defense case. For most of our history, the 5th Amendment protected the defense against the need to disclose its case to the prosecution. The People have the burden of proving guilt without assistance from the defense, and discovery to the prosecution was recognized as "lightening the burden."
As the Supreme Court escaped the Golden Age of Enlightenment, however, talk began about discovery being "a two way street." Alibi statutes were passed and upheld, requiring the defense to disclose witnesses and what they were going to testify to so the prosecution could be prepared to rebut it at the trial. The rules were then extended to all defense witnesses.
Sounds fair, but it poses a dilemma for defense lawyers and fairness. Your witnesses and other evidence that you gather may provide a defense, but may also contain harmful evidence. Suppose, for e.g., that the DA's case placing your client at the scene of a crime is weak - questionable ID's. You uncover witnesses who put your client at the scene, but say he acted in self-defense. If you give this to the DA, can they use your witness to bolster their case, while attacking the self-defense idea?
This dilemma is a subject for a lecture series and much debate among defense lawyers. Most of the issues have not been resolved, and my present lecture merely touched on some of them.
The second goal of new statutes was to streamline the discovery process by reducing the judge's involvement. Informal discovery between the parties was urged, detailing what is and is not discoverable, defining the parameters, and sanctions for non-compliance.
In California, the law is in Penal Code Section 1054, et. seq.
My strategy is to take advantage of what the law gives by making informal discovery as formal as possible. I prepare detailed informal discovery letters requesting every possible item that they (or any member of the prosecution "team") might have, insist on a certain date for compliance, and file a copy with the court. I follow up the letters with more letters as the case progresses, referring to my previous requests and their degree of diligence in responding so that a record is kept in the official file.
This reinforces the "attitude" of dogged determination that encourages the DA to give up the goods. I provided my audience with several samples of letters I used in past cases.
KEEP A LOG
Some years ago I was appointed to defend in a case involving 10 murders, 7 defendants, thousands of pages of documents, photos, recordings of interviews, many police agencies. I had to keep a log of the reams of discovery because the trial was going to take 8 months to complete. The "table" function of my computer's word processing program generated lists of material which I sorted by number, date, charge, and could retrieve by the name of witness, subject, crime, expert, defendant, etc.
SOME AREAS OF DISCOVERY FROM DA
I gave samples of some of the areas of discovery obtainable from the DA, mostly about the deceased and their prospective witnesses.
They include the seemingly obvious: names, addresses, but sometimes the DA wants to conceal even this most elemental information. Witnesses, especially in gang cases, may be in danger.
I need the information and have a right to it, so I scrupulously follow the law's demand that I keep the information from my client.
I do that in my client's interests. There is no more powerful evidence of guilt than attempting to intimidate opposing witnesses. I don't need that kind of help from my client, his family or friends.
Facts about witnesses you need to get include statements, their gang affiliation, whether they are informers who've been offered or requested inducements to testify. Do they have pending cases, recent arrests, probation or parole or immigration problems that motivate their "cooperation"?
PRIORS
You need to know details about their criminal history. The law entitles you to impeach the believability of a witness by telling a jury about crimes of moral turpitude, those that relate to honesty, but you need to know more.
A deceased's propensity for violence or substance use can affect a self-defense issue. Confronting a known gangster or meth freak can trigger a reasonable reaction of violence.
The holistic approach means that discovery of these facts will lead to investigation, consultation with experts, and then lead to further need for discovery.
INVESTIGATION & DISCOVERY & INVESTIGATION
Crim Law 101 demands viewing the crime scene. That's basic, but even more crucial in homicides. "The 'hood" is where the everything can be found. The street tells you whether the identification of your client in a drive-by was accurate. Word on the street will tell you more about who the supposed victim was, who else hated him and the same about the witnesses who fingered your client.
Was he a snitch? A drug dealer? Did he owe money to a dealer? Was he a liar? Is there a spurned lover who knows the real story?
DISCOVERY FROM POLICE AGENCIES
By now, everyone knows the basics of CSI.
Typically, when a violent crime is called in, uniformed cops show up. They do a preliminary investigation and prepare a report. They find a body, set up a crime scene, call paramedics, and try to identify potential suspects, witnesses.
Eventually the homicide detectives are called. They direct the collection of evidence, measurements, photos, diagrams.
We've all seen the elements of the mystery: the cop tells the detective, "I canvassed the neighbors. Nobody saw or heard anything." "Of course." What can you expect in this part of town? They generate Field Identification (FI) cards or notes. Name, address, "saw nothing."
But what they didn't tell the cops, they might tell your investigator, maybe with assistance from your client's family member who knows the 'hood, speaks the language, and isn't a cop. It may take time as word on the street permeates about the "who" and "why" of it. People may disappear and re-appear weeks or months or even years later, who know the truth and are willing to talk to you.
The homicide cop has his sources, too. Informers and other cops, other agencies who get the word, or at least a version of it. They have gang experts, narc units, vice, specialists in ethnic groups. They will search for patterns, histories - other shootings in the area, motives, retaliation for grudges, enemies. People who die violently have often caused violence to others, many others.
ABANDONED SUSPECTS
Before they focused on your client, they may have traced other lead that they abandoned when your client came up. Then, typically, they stopped going down these other roads.
That's a defect in the police investigation system. Once they gather enough evidence to convince them that they have PC to arrest, they usually stop looking for others.
But your job may be to keep at it, do their job for them, and show what the law delicately calls, 3rd Party Culpability.
DISCOVERY FROM OTHER SOURCES
Other quasi-independent agencies, not labeled as "police," are always involved and their work needs to be discovered, often by subpoena of records and follow up with face to face interviews.
They include the EMT (or Paramedics), which are often employees of the Fire Department. They come to the scene to aid and transport victims.
I gave the audience an example of a case I had. Two Hispanic men leave a store carrying bags. They are confronted by a man who runs up to them shouting something while pulling a shotgun from his sleeve. As he nears them, the gun goes off, killing one. The police report says that while the victim was being transported to the hospital, he told the detective that it was a robbery. A "dying declaration." That makes it 1st degree murder.
Discovery and investigation led me to interview the EMT worker who told me that the victim understood only Spanish and said that the assailant spoke only English. It was the victim's conclusion that it was a robbery, and the judge dismissed the felony-murder charge, reducing it to manslaughter.
MEDICAL EXAMINER
The coroner does an autopsy, determining cause of death and prepares a report with photos of his findings. Interviewing the doctor is essential. Separate speculation from science, eliminate prejudicial information that can disgust a jury.
For a self-defense case, you need to know lots about the deceased. His tattoos, his scars, his size, and the toxicology report of what was in his system: drugs and alcohol level.
A psycho-pharmacologist will interpret the behavioral effects - perception, propensity for violence, irrational behavior that provoked an assault.
And you better see ALL the photos before the jury does.
911 TAPE
Often more than one person calls in. What descriptions were given, how to they vary, when were they made.
CRIME LABS
Many jurisdictions farm out their forensic work and the degree of expertise varies widely. Notes, tests, protocols, c.v.'s can make the difference for your own experts to rebut.
CELL PHONE RECORDS
With cell phones more prevalent, another source of critical data is available. Records can establish not only when a call was made, but also from where it was made. Records include the location of the nearest cell and can buttress an alibi if your client made a call at the time of the crime from a location too far away to put him at the scene.
HOSPITAL RECORDS
When the victim arrives, he is attended by nurses, aides, ER docs, and others who generate notes, reports of exams, tests, drugs, procedures, interviews, conclusions.
In one case, my client was charged with murder of his girl friend's infant. She told police she had left the house briefly and returned to find the baby dead and her boyfriend drunk. The cause of death was "Shaken Baby Syndrome."
I dug out hospital records, not just of the night the baby died, but previous visits and those led to other hospitals to which the mother had brought the child, many times since its birth, most long before my client had been around.
I shared the records with the DA on the case, who later dismissed the case, after recognizing that the mother was suffering from (or guilty of) "Munchausen Syndrome By Proxy." She had caused the injuries to her child in order to get attention and assuage her need to fabricate her own victimization.
GANG BOOK
Every police agency keeps this data about gangs in their area, including photos, monikers, rap sheets. Your client may be the "Mousey" who did it, but there may be 5 other guys who fit that description. Gangsters aren't very original.
UNOFFICIAL SOURCES FOR DISCOVERY
AUTO LINE-UPS
Car manufacturers and dealers can provide sales figures and descriptions of similar vehicles that more closely fit than the one your client was caught in.
STREET MAINTAINANCE
Records of the lighting, trees, pavements, graffiti removal, construction can make a difference in identification.
THE TROUBLE WITH CO-DEFENDANTS ... AND THEIR LAWYERS
Among the hundreds of decisions you have to make are the many that arise when there are other defendants. Do you want to share discovery and or investigation? Present a joint defense?
You are going to consider many theories. Is there one shooter and one accessory? What about the "conspiracy" law, which makes any participant equally guilty? Do you want a joint trial or a severance. Which defendant made statements implicating the others? Are any going to testify?
I know of one case in which there were 4 defendants accused in a drive by killing. There had been 2 cars and shots came from only one of them. Each lawyer tried to prove that his client was in the other car, allowing the DA to discount all of the defenses --- "apparently the shots came from an empty car!" All 4 were convicted.
You have to identify which defendant is likely to "roll over" on the others, accept a deal to testify. That means more discovery and investigation.
THE TROUBLE WITH CLIENTS
The question I am most often asked by laymen is "How can you defend someone if they confess their guilt to you"? The fact is that most clients confess to everyone BUT their lawyer. They think you won't fight for them if they confess to you.
Instead, they talk to the police, to their friends, their jail mates, their co-defendants. They whisper on buses, over monitored phones, in the presence of bailiffs, in lock-ups.
Given any chance to make incriminating statements they will do it, even if they really are not guilty. Even the innocent feels compelled to "help" his case by setting up a false alibi - in a letter or phone call to his wife or homie from jail.
The worst feeling is to be suddenly confronted in the middle of trial with a tape of your client's latest statement in conversation during lunch.
You must make a motion to keep him away from co-defendants at all times. You need to make continuing discovery demands for any statements.
Without thorough discovery you can't make one of your most critical decisions: whether your client can testify. If you can, it may be a great advantage - though risky. A client with a good family, good character witnesses, employers, ministers, can win a case.
But you need to prepare: does he have any blemishes that can destroy his credibility?
FINALLY, TWO RULES TO REMEMBER:
ONE: HFTB BUT PFTB: Hope For The Best BUT Prepare For The Worst.
TWO: Good old Borenstein's Law. If you have forgetten, it is the Universal Law that seeks to explain many common phenomena, including why our clients cause trouble.
In essence, it is this: EXPECT YOUR CLIENT TO ACT AGAINST HIS BEST INTERESTS.
The reasons they do so is explained elsewhere in great detail in my post titled Intro to Borenstein's Law. Suffice to say that they wouldn't be your client if it wasn't true.
Subscribe to:
Posts (Atom)
