Tuesday, October 31, 2006
The district court judges (the courts of general jurisdiction) are a little better. They, at least, are required to have law licenses. They are determined by an odd mixture of appointment and election. They are initially appointed by a selection committee, which gives a list to the governor's office, and the governor appoints who he wants. The first election cycle thereafter, the judge runs in open elections, and for "retention" (a yes or no vote) every 4 years afterwards. I guess this system was set up in the hopes of getting the best of both worlds in terms of election vs. appointment. However, it's still extremely political. The reporters tend to show up more in court as Election Day approaches, and no judge wants to see his name in the paper next to a story about releasing criminals or rampant crime.
I so dislike politics! I would think there would be some way judges could just look at case and the law, and make his decisions only based on those things, without thinking about what the paper would say, or what the public thinks. When has the public ever understood the law? It's arcane and picky, with all kinds of nuances that escape the understanding of anyone not trained in it. This is why one must be licensed before practicing.
But, alas, if judges were not elected, they would have to be appointed. This would mean we could never get rid of a bad judge, and they would never be answerable to anyone except their political cronies. So, I will wait out this storm, and, come November 8, many judges will find Motions to Review Conditions of Release on their desks.
Sunday, October 29, 2006
I think people should know something of what they are speaking about before purporting to give advice on a topic. Especially legal advice. After all, this is what lawyers are for. This woman seems to be something of a cross between Martha Stewart and Dear Abby, given her other articles, e.g. edible craft projects for kids and tips for washing walls. Her knowledge of public defenders and criminal defense in general can be seen from the title of her article, "Should I Hire a Public Defender?" One does not hire public defenders, as they are free by definition. While different jurisdictions have different rules about qualification for a public defender, they are required not to charge people with no money to pay them. One of my favorite lines was, "Unless you want to risk spending time in jail, hire a lawyer directly, even if it means making payments to the lawyer, charging the expense, or borrowing the money to secure good legal help." Now, if a person charged with a criminal offense actually has any of those options open to them, they are obviously not indigent, and therefore should not have the services of a public defender in the first place. Additionally, if they are not facing the risk of jail time, they also are not entitled to free legal representation. I would also like to know her basis for the assertion that, "Since a public defender is paid by the state, a public defender isn't earning as much as a lawyer hired directly. A public defender earns about $65 an hour on average." If anyone knows any public defender making that much, could they please let me know where they are working so I can apply with that office? Now, I'm pretty bad at math, but according to my off-the-cuff guess, that's at least three times what I make.
The article then goes on to say what we in the profession are used to hearing: "Public defenders push their clients to plead guilty, even when guilt is in question. A client pleading guilty is an easy case for a public defender." Now, obviously, a case that results in an early plea is an easier case and takes up much less time than a case that goes to trial, especially if it goes to trial with many witnesses and exhibits. It's not just an easier case for a public defender, it's an easier case for any attorney. The difference is this: We get paid the same, whether we spend all weekend preparing a case for trial, or if it pleads. I have told my clients in the past, especially on cases where there really isn't a viable defense, but he's not that thrilled with the plea offer, that I honestly don't care whether we have trial or not. I like trials. This is part of why I do this. On the other hand, private attorneys charge by the hour. If your case goes to trial, he gets more money. But usually not enough more to make it worth while spending the billable hours on a drug possession case, when he could be doing a will, or a divorce, or a bankruptcy for which he gets a flat fee and they take about 10 minutes. Further more, if you can't afford to pay him enough to make it worth his while to do the trial, see how fast you end up pleading! Or he'll withdraw from representing you.
Now I know some public defenders who do push clients to plead guilty. They put in their 8 hours, and take home their paycheck like this was some kind of factory. I know public defenders who haven't had a trial in 3 years. I also know private attorneys who behave this way. They take all they can get from the client on retainer, spend 10 minutes with them going over they plea, and then 10 more doing the plea, and then they're done. I've known private attorneys who promise people that if they are hired, they can get the defendant out of jail.
All this being said, I've never felt offended by a client who asks if I will fight for them. He has a right to know. I've never felt offended when a client hired private counsel. I have felt sad on occasion, because I knew what kind of lawyer he hired, but never offended. One of my sweetest juvie clients came into my office for his initial appointment with his mother. The case was going to trial because both the kid and the mother were adamant that the kid was innocent, and he probably really was. His mother kind of grilled me, but in a nice way. She asked me how long I'd been practicing law, how many trials I'd done, and things like that. She asked me forthrightly whether it would be better for her son if she hired a private attorney. I told her it depends on the attorney. I also told her that yes, I do have many clients, and it sometimes does take a while to return phone-calls, etc. If what she wanted was daily updates on the status of the case, I cannot provide that. But I will take the case to trial, if that is what the son wants, and I will prepare for trial, and do everything I can do to see that we win. I then went into specifics on the steps I would take on her son's case. She was happy with that explanation, and we did win the trial. Now it is true that I'm not the best at the hand-holding aspect of this job. I'm simply too busy. But I don't hold it against someone if they think that is what they need. Or if they think an attorney they pay will work harder for them.
What does really tick me off about this public pretender reputation is when people who should know better spread this around. There was a incident not too long ago in which a well-know private attorney informed a full courtroom that the reason one of my clients was in jail was because she hadn't hired him, but had me. And I was only a public pretender. I honestly thought I was going to slap the man! It also looked like the judge (who likes me) was considering hitting him as well.
Saturday, October 28, 2006
It's just that I get so tired of doing my job in addition to so many other people's! I wish I could just answer for things that are within my control, instead of answering for other people all the time. I mean how is the court's calendar my problem? How am I supposed to get prosecutors to produce discovery and negotiate pleas with me in a timely fashion when they can't manage to look at their files more than a week before trial? Why am I held to answer for how other attorneys handle their cases? How is any of this my fault? Why must I spend half my time trying to fix all of this?
Well, that was quite the rant. I'll be better tomorrow.
Thursday, October 26, 2006
Another good thing occurred when one of our newbie attorneys got her first competency case and made contact with the client's caseworker. The caseworker, it turns out, is involved with the beginnings of a state-wide coalition of various court, law enforcement, and mental health agencies to try to find a solution to this problem of the mentally ill who are indigent and keep ending up in the court system. The newbie gave my name to the guy and I am hoping to be able to get involved in trying to address some of these issues. You know, I do like helping my clients. But, it is good to sometimes be more involved in the "big picture" when one has the opportunity.
Now, I am going to leave work behind and watch the rest of Game 4 of the World Series! (My word, it looks like the Tigers are ahead 3-1 at the end of the 3rd inning!)
Saturday, October 21, 2006
I therefore, for better or worse, volunteered to give a sort of mini-tutorial to our office on how to handle competency cases. Perhaps once our attorneys all understand how this works, we can get these cases dealt with in the proper way, rather than this hit-or-miss approach that seems to occurring now. In addition, maybe we can get the new judge to understand how this works also, and in this way avoid these unnecessary status conferences she has been scheduling to find out why these cases seem to take forever. There is even an off chance we could avoid our clients being in limbo indefinitely while waiting for the proper paperwork to be filed, or having their cases take forever due to competence being raised when there was no need for it to have been.
This all seems good on paper (or the computer screen). I guess we'll just have to wait and see what happens. Now all I have to do is try to find a way to explain to 10 lawyers (most of whom think they know more than me) how this all is supposed to work. Wish me luck!
Wednesday, October 18, 2006
Generally speaking, I like my "crazy" clients. They generally aren't what one thinks of as criminals. And, even if they are with it enough to figure out who I am, they like that I am trying to help them, even if they can't figure out what I actually do for them. The idea that someone is on their side is usually fairly foreign to most of my mentally ill clients.
Under the Constitution, and the laws of New Mexico, a person cannot stand trial if they don't have a sufficient concept of what is going on, or if they are not grounded in reality sufficiently to help their attorney. If they think I am a member of an anarchist society the purpose of which is to hurt them in some way, or if they have no idea (and cannot learn) that the reason that man on the tall throne is wearing a dress is that he is the judge, the State is prohibited from proceeding in the criminal matter. When this occurs the judge can either dismiss the criminal case, or send the defendant to the state mental hospital to be "treated to competence." Usually, the "treatment" consists of medicating the person (with or without his consent) until either he is capable of understanding what's going on or 9 months have passed and the person still cannot understand the proceedings or assist his attorney. Either way, the person then is sent back to jail and the judge can do one of four things: He can dismiss the case if the person remains incompetent to proceed. He can proceed with the case if the person is now competent. He can commit him "civilly" to the state mental hospital, i.e. with no disposition of his criminal case, if he remains incompetent but is dangerous. Or, if the client remains incompetent and is charged with one of 8 very serious crimes, the judge can have a mini-trial about whether the person committed the crime he's charged with and sentence him to the "criminal" side of the mental hospital if found guilty.
The problem is this: If the criminal case is ultimately dismissed, the court no longer has authority over the client. The court cannot supervise the person to help him apply for disability, get to a doctor, get his medication, check that he's taking his medication, or find a place to live. The client is back in the same position he was in when he picked up the criminal charges in the first place, whether for things like loitering or vagrancy, self-medicating with illegal drugs, or wandering into other peoples' houses thinking it was their house.
Even if the person becomes competent through this process, either by a trip to the mental hospital or just getting on medications while in jail, there's definitely no guarantee that he will remain on his medications. I had one client that was fine when she got back from the mental hospital, so the judge let her out as soon as she got back and ordered the criminal case to proceed. She immediately quit her meds, and picked up new charges. So, before the case could progress through the system at all, she was incompetent again, and is now set for another trip to the hospital. This could go on indefinitely! And it probably will.
I like my incompetent people. But there has to be some way that we can get services in Podunk, New Mexico so indigent mentally ill people can get medication, stay on medication, and not have to resort to stealing or pan-handling for their livelihoods!
I mean I've had one guy three different times in 4 years. When he's off his meds, he beats up his girlfriend and the cops when they come to arrest him. His girlfriend can keep him on his meds for about nine months at a stretch. After that, he either picks up battery charges against his girlfriend or the cops. Then he goes to jail. Then he goes to the hospital. Then he comes back from the hospital and his case gets dismissed, because if the medicate him to the point he's not talking to invisible people, he's unable to sit through court. Then he stays on his meds for a while. Then he gets off them. Then he picks up new charges. Repeat process ad nauseum.
It's so frustrating that the "system" is unable to cope with this poor guy, and all my other clients like him.
Monday, October 16, 2006
Our momentary bliss, however, was not to be. I come in after court this morning to the familiar high-pitched beeping noise. Now, not only is our server down, but something is up with the T1 line as well, meaning we have no access to the internet. So, when our clients ask when their court date is, why they got picked up on a warrant, whether the judge granted their motion, or any other thing that they like to call and ask about, no one can tell them! The receptionist cannot even tell them who their attorney is!
This in addition to the fact that we have been waiting for phones for 2 new attorneys and an intern for 2 months, we've been out of yellow pads and accordion files for 3 months, and personnel has switched to computer-based time-sheets that can never manage to pay anyone the proper amount.
Now that I have vented a while, I feel better. On the plus side, I have had lots of time to file my files, put the papers into the files, return various phone-calls, and catch up reading the bar-bulletin. If only that insane beeping noise would stop.
We finally have a server and the internet! Will wonders never cease. This, of course, doesn't fix the shortage of pens, yellow pads, phones, or the paychecks that keep getting messed up. But it is progress!
Saturday, October 14, 2006
2. Listen to no one at the office except for the one person who blows everything out of proportion so that you think that the entire office is collapsing when, in fact, it is not.
3. When people try to tell you that the entire office is not collapsing, yell at them for wasting your precious time, which should be spent fixing problems that are not there or dealing with cases that you delegated to someone else.
4. When employees do come to you with a real problem, yell at them for complaining too much and avoid fixing the problem until it becomes impossible to avoid.
5. When there is a problem with another employee, speak about it with the one person who can do nothing about it and thereby ensuring that the problem never gets taken care of.
6. Never listen to suggestions about how to solve problems, and instead throw up your hands and resign yourself to the fact that no problem will ever be solved.
7. When you come up with a brilliant new plan to make everything work better, and other people explain to you certain problems with your plan, ignore the nay-sayers and go ahead with your plan anyway. This way when your plan fails, you will be able to blame it on people not being behind your plan.
8. Above all, never try to solve problems yourself. This both ensures that there will always be a problem to complain about, and that there are plenty of other people to blame for not solving the problem.
Friday, October 13, 2006
One drawback to living in New Mexico is that there are no sports here. So, I continue to cheer for the teams I grew up cheering for. The home team! Unfortunately, the "home" is in Michigan, where the only routinely good sports team plays hockey. They don't tend to televise (or care at all about) hockey in New Mexico. Nonetheless, I continue to watch football whenever I can, and groan at the fact that the Lions seem unable to win a single game. I look for the scores of the Pistons and Tigers in the paper every week and cheer when they break .500. (The Pistons tend to be somewhat hot-and-cold, and the Tigers tend to be plain horrible.)
Wonder of wonders, miracle of miracles!! The TIGERS! The very ones that my grandfather called "that bunch of clunky lunk-heads!" (Well since that was fifteen years ago they aren't really the same ones, but they still tend to play like a bunch of clunky lunk-heads.) The Detroit Tigers are now one win away from the World Series! I can actually cheer for them! Out loud, and in public! They put the games on t.v. and I can watch them. This year was the first year I actually watched a baseball game all the way through since the late 1980's.
It's kind of nostalgic, really. I used to watch baseball games on Saturdays at my grandparents' house. My grandfather drank Old Milwaukee and I drank coke. My grandmother made popcorn in a big pan and put lots of butter and salt in it. My grandfather got the great-big bowl, and I got a little one. At that time, I knew almost the entire line-up of the Tigers. Somewhere in that time two Tigers had over 50 home-runs in one year: Mickey Tettleton (catcher) and Cecil Fielder(1st base). Alan Trammel (shortstop) had one of the best batting averages in the majors.
I now know why baseball is always so popular. It really does make you feel like a kid. It takes you back to summers spent outside at the playground. Getting to stay up late for church picnics or softball games. A time when a hot-dog was absolutely the most wonderful food, and popcorn was a treat.
Well, here's to the Boys of Summer!
Sunday, October 08, 2006
I am a public defender, and very proud of it. I love what I do, and would not do anything else for any money. I do what I do because it is in me to do it. I've known it is what I was meant to do since the age of 13, an age where most kids do not know what a public defender is. My work controls much of my thoughts, emotions, and time.
However, there is much more to me than being a public defender. This is a blog about my life, hence the title, not only my job. Being a public defender has formed and shaped much of who I am, and will continue to do so. It does not encompass all of who I am. Therefore, do not be surprised when the occasional political rant appears, or I digress about other things that are important to me. I hope that this does not discourage anyone from reading what I have to say. That being said, I will continue to post what I like, whether it is related to being a public defender or not. I began this blog for myself: to say what I want to say, with little thought to making any type of public statements or pleasing anyone else. If anyone doesn't like what I have to say, or is offended by it, I am truly sorry. You have a right not to like it. But I also have a right to write it.
U.S. Const. Amend. I
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble...
Saturday, October 07, 2006
Immigration was a large part of the political scene as early as the 1820's. It was thought that the United States would be overrun by those from other countries. It was feared that such an influx of people would destroy the economy by providing cheap labor (thereby taking jobs that those born citizens "deserve") and draining the food supply and that, as a result, the country would be unable to sustain itself. It was also feared that the influx of impoverished people would result in rampant crime. Sound familiar? This was 190 years ago! None of these doomsday scenarios have happened yet. I don't see any reason to believe that all of a sudden this country will collapse as a result of a growing immigrant population.
Here's another reason this fence idea bugs me. Even if a mass exodus from Mexico and other Central and South American countries to the United States were to occur, and even if the result would be a complete destruction of this country as we know it; what makes anyone think a fence will stop it? Would it have stopped the airplanes on 9/11? People now are so desperate to cross the border that they are willing to risk being shot by border guards, dying of starvation and thirst crossing the desert, and being robbed, raped, or killed by coyotes. If people are that desperate to come into this country now, they will find a way or die trying, fence or no fence.
My question is this: What is so wrong with the people who are trying to come to this country that the greatest country in the world cannot accommodate them? Are they not people, same as any citizen of this country? Don't they also have the same inalienable rights that we do? When that phrase was written into our Declaration of Independence, no one was a born citizen of this country. This country did not exist! All were citizens of a different country. Wasn't the point and purpose of this country to allow a place for everyone to try to find a better life? Including the Pilgrims at Plymouth Rock, Irish trying to escape the potato famine, Southeast Asians trying to escape their war-torn countries, those from behind the Iron Curtain, and everyone else who comes to this country just looking for a better life.
"Give me your tired, your poor, your huddled masses yearning to breathe free!"
Thursday, October 05, 2006
This lady shows up in our office, all in a flummox. She had a warrant from 2002 on a case that should have been dismissed in 2000 and was pending extradition from Arizona (where she now resides) on that warrant. So, in a nutshell, she needed the warrant from 2002 got rid of so she doesn't have to sit in jail in Arizona waiting for New Mexico to come get her when she was here in New Mexico to try to get the matter (that she had no idea was still around) resolved.
So, I spent this afternoon calling the court here, calling the court in Arizona, calling the sheriff's office in Arizona, driving her to the court here, arguing with the judge here, and faxing an Order Quashing Warrant back and forth to everyone, all to get this poor lady out of having to sit in an Arizona jail for 30 days. In the end, the judge here quashed the warrant, the Sheriff's Deputy (a very helpful woman!) promised to dismiss her extradition case in Arizona and get her off the Arizona judge's court list for tomorrow, and she won't have to go to jail either here or in Arizona.
This makes me feel good. She wasn't my client, but I helped her anyway. I fixed her problem. She was so appreciative she almost cried. And she was trying so hard to do the right thing. Maybe this is why I do this after all.
Yesterday begins with probable cause hearings in Magistrate Court. Most of those set do not happen for a variety of reasons. As I only had one client with two cases, I assumed I would be finished by 9 or 9:30. Ten at the latest, if the DA is slow to make a decision. This would leave me plenty of time to prepare for whichever of the two trials set for today was going. They were in front of the same judge, so both of them couldn't go. The DA at magistrate court immediately agrees to dismiss one case if my client waives the hearing on the other. This seems fair to me. The one he's willing to dismiss is completely silly and my client is caught on video in the other. Also the DA's witnesses are present and ready to testify.
So, that being resolved (or so I thought) I see two DA's that I have been trying to get to speak to each other for the past six weeks in the courtroom. The reason I had been trying to get them to speak to each other is that one of my clients has two cases, one with each prosecutor, and we would like a plea deal that covers both cases. Preferably one that involves pleading to only one felony. One of the cases was set for trial today. So, I talk to one DA, that one says to talk to the other, the other one directs me back to the first! Finally, all three of us get a plea deal worked out. It wasn't what I'd hoped for, but it would do.
Next task: To see about getting rid of the trial setting for today. So a phone-call to the court clerk to see if we can set a change of plea prior to trial at 8. She wants a promise that my guy will plead. However, I don't know at this point, as I can't speak to him about the plea until I can get to the jail and I'm still in court. Furthermore, I can't speak to him at all without an interpreter, seeing as he speaks only Spanish and the only Spanish I know is "come to court Monday at 8:00," and other necessary phrases. I certainly can't explain a plea to him, never mind all the rights you give up when taking a plea. So, the clerk says we leave the trial setting and change his plea at that time, assuming he still wants to do it, otherwise we have the trial. She had a note in the file that the interpreter was informed about the trial date.
Meanwhile, back at the Magistrate Court, my client decides he does not want to waive the hearing without some guarantee that he's getting out of jail, regardless of the video. I argue with the prosecutor and the judge about getting him out of jail, but his bail remains the same. Thus, the prosecutor will not dismiss the silly case, and we let the judges know we need hearings on both of his cases. Naturally, he has two different judges, one on each case. Also, I now find out that neither the DA nor the police have the video, which they need to ID my client. They "can get it" while we do the hearing on the other case
As this is occurring, I see the interpreter at court. She wants to know whether the trial is happening today, because she is interpreting in another court on the other side of the state on that day. So another call to the clerk to find out what she wants to do, given that we have no interpreter for either trial or plea today. She schedules the change of plea for 1:30 yesterday. I say I assume the interpreter can make it, as it's already about 10:00 and the other court is about 10 minutes away. I talk to the interpreter. She can't make it. So I talk to the clerk again. She tells me if I fax over a signed plea agreement, she'll vacate the trial setting. Of course, this still leaves me to find someone to translate the plea offer to my client and go to the jail and get the plea to the court before close of business yesterday.
Back to the Magistrate Court: We have the hearing on the silly case, because the police officer is not back with the video on the other case. We lost, but it was close. I forgot to mention that I did not have any files that day because I completely spaced when I left the office Tuesday, thinking yesterday was Tuesday and that I didn't have court. Fortunately I remembered when I woke up that I had court! In any case, the police officer comes back and informs the DA that the video (which is actually on disc) will not play in a normal DVD player. It will play on the equipment in the police cars and on the equipment it was recorded on, but not in the courtroom. We can't go outside to his police car to watch it because the court's recording equipment cannot be moved out of the court. (They don't record court proceedings with a stenographer anymore, they use digital audio equipment.) So the DA decides, rather than just letting my guy out of jail, that he will try to get the equipment the disc was recorded on brought to the court. This doesn't work, it's the person's day off who can authorize the court's borrowing the equipment. So the judge reschedules the hearing for Friday, within the time-limits, so she doesn't have to let my client out of jail. By this time, it's 1:00.
I make it back to the office by 1:30, giving me an hour in which to get my Spanish-speaking client on the phone from the jail with our receptionist to translate. The jail's phone system is such that we cannot call in and get our clients brought to the phone, we have to get the guard to get them a message to call us. The down side is that assuming the guard actually delivers the message, the entire pod hears this message and calls, once word gets out that I'm in my office. Anyway, after spending 20 minutes on the phone with a different client, I finally get the one I need to speak to. He says he will take the plea, and now my hour's up.
Back to court for a probation violation hearing at 3:00. On the way there, it occurs to me that I haven't heard anything about the other guy whose trial is also supposedly set for today. Come to find out, this one was originally set in error and was re-set. My 3:00 guy doesn't show up. So, while waiting for him, I call to see if our receptionist can meet me at the jail to translate the plea for my other guy. She can't get permission from her boss, so I figure I can get the jail to bring out my guy's friend, who has been translating on the phone for him.
So, I make it to the jail a little before 4, and the jail will not bring my guy's friend. Some kind of odd procedure, I guess, wherein anything that is convenient for us is prohibited. Luckily, one of the nurses at the jail used to be a court interpreter. So, after waiting around for half an hour, she shows up and my guy signs the plea. I tried to get the jail to let me use their fax machine to get the plea to the court, but that is not possible either. For whatever reason. So I lead-foot it back to the office, get there at 5 til 5 and fax the thing!
So, that is the R-r-r-rest of the story about how my 2 trials today did not actually happen and I learned the art of multitasking. As well as putting a heck of a lot of minutes on my cell phone. (Our office is too poor to get us cell phones.)
Monday, October 02, 2006
In court, I got one of my clients sentenced. Normally not great since he got sent to prison, but since he'd been waiting to be sentenced since mid-July and had mandatory time coming to him, it was quite a relief. I got another guy out of jail, and did lots of re-setting of things. None of my clients was rude to either me or the judge, which is always a plus. I had a suppression hearing, which I lost, but it wasn't that unexpected. The hardest part was actually getting the judge to give the basis of his ruling, since he rambled a bit and got himself side-tracked. I have a fair chance to win on appeal, and the guy's out of jail. And he actually showed up to the hearing, which is always a question-mark in my line of work. Both the judges I saw today were in a fairly good mood.
At the office I actually made it through my phone-calls without any of my clients cussing me out. I also was able to remain patient with all of them, while explaining for the fourteenth time what was happening in their cases. And no one cried at me or yelled at me. I was also able to get through almost my entire stack of paperwork and get them into their appropriate files. (It's been a while since I've seen my desk.)
This was my day. While it may not seem normal to some of you, it is quite uneventful for me. Excitement and trials are fun, but it's nice to get back into some sort of rhythm. I don't expect this to last too long. Especially since I have 2 trials set for Thursday. I'll enjoy it while it lasts.