In Memorium

Bo: November 1991-August 29, 2007

Loyal friend

Faithful guardian

May you be young and free

Be at peace

Forever.

On Prosecutors Who Shouldn't Be Prosecutors

I've been wondering lately when some of the ADAs I work with are going to figure out how to do their jobs! There are a couple of young-ish ones who have absolutely no clue how to figure out the strength of their cases. Now, you may say I'm being unfair and that they will get the hang of it in a few years. They've both been at the DA's office for over two years now! When are they going to get it together? They don't even start looking for their civilian witnesses until the day before trial. They don't interview any of their witnesses at all. They just take it for granted that what is contained in the police report are the "facts" and those people on the computer-generated witness list will show up at trial and parrot what is in the report. Never mind that I've been telling them for months that their victim is out of town, has recanted, or whatever. You know it's bad when they call me to ask if I know where their own witnesses are!

Cases in point: I got a case a couple of weeks ago with an Aggravated Fleeing and receiving a stolen vehicle plus a mess of traffic violations. We go to the preliminary hearing and the ADA happily tells me that two officers had come to court and he was ready to proceed with the hearing. I tell the ADA that the officers clearly did not follow the procedures for a high-speed chase (an element of agg fleeeing) and that he had no one who could testify that the vehicle was in fact stolen, much less that my guy had any reason to know it was stolen, so my guy would plead to failure to pull over for the officer and the traffic tickets if he'd dismiss the felonies. The ADA then argued with me about whether the pursuit procedures had been followed, so I told him fine, we'd sort that out at trial, but for now, I'd be ok with waiving the prelim on the agg fleeing if he'd dismiss the receiving and release my guy on his own recognizance. No, he didn't want to do that either, as my guy has a host of prior felonies. So, after waiting another half-hour for the ADA to finally make his decision, we have the hearing. Why it took 3 hours to get to this point, I have no idea, but there we were. An hour and a half into the hearing I realize neither of the cops could even ID my client as the person driving the car! Apparently, the ADA hadn't even asked them before the hearing! The whole case then gets dismissed, and the ADA gets a lecture from the judge on preparedness.

Next case: We were set for trial today on a domestic violence case where the victim has both disappeared and recanted. She mailed both me and the ADA a letter months ago explaining that she had lied to the officer and my guy didn't touch her and if she were required to testify that he did, she would be committing perjury. The case drags on. Yesterday, the ADA calls me saying she was (just now!!) reviewing the file and did I know how to get a hold of the victim? I said no, but it wouldn't do her any good anyway, in view of the letter we both received. I asked whether she was now going to dismiss. No, she has to think about it. What is there to think about?! She has no case! Further, why wasn't she thinking about this prior to the day before trial?! She dismissed the case this morning while a jury panel was waiting.

I guess the thing that bugs me is that this kind of indecision is so time-consuming and wasteful of resources. We routinely receive plea offers where it's clear that the ADA has not looked at the cases. The ADAs sometimes offer extremely lenient pleas (which I take in a heartbeat) and then they get in trouble with their supervisors. Or we have nonsensical trials or dismissals the day of trial where the plea offer is extremely harsh and not at all in line with what they can prove. A good ADA is able to look at a case, gauge its strength, and dispose of it accordingly; either by offering a plea that is on par with what they can prove or by dismissing the case. This mamby-pamby procrastination drives me crazy! Why can't they just make a decision, based on the facts of the case, and then they would be able to back it up! Without wasting every one's time with trial settings that everyone knows won't happen. I do like both these ADAs on a personal level, but I can't help thinking they're in the wrong line of work.

Tandem-Socks and Sweater-Parts

I've been meaning to start my "tandem-socks" for quite some time. See, a while back, my knitting buddies (Y and MD) and I all decided we would knit a pair. (Tandem-socks in tandem, as it were...) According to the instructions, you knit both socks of a pair simultaneously on two circular needles, from the toe up. As I'd already done individual socks on two circulars, I figured two socks would be exactly the same. The only difference would be the toe-up factor. So the three of us dutifully bought our sock yarn and our two circular sock needles. And then we waited. Both MD and Y had other projects they wanted to finish, so I started my lace scarf while waiting for them, having yet to finish the sleeves of a green cable sweater. I vowed that I would in no way have more than two projects going at one time, as this would likely lead to an ever-increasing number of partially finished projects. So, a couple weeks ago, I finished the sleeves of my cable sweater, stitched the shoulder seams, and did the neck. It's now drying in preparation for seaming together and weaving in the ends.

When I finished my sleeves, I decided to look at the tandem socks again and dive in! Y was done with her project, and MD couldn't really get enthused about the Aran sweater she's started (it's still getting over 90 degrees pretty much every day here ) or about ripping out this really cool looking camisole. (It's always depressing to rip stuff out.) Her camisole problem was that while the yarn was gorgeous and the pattern was gorgeous, the two didn't really work together well. (She called it her chain-mail camisole because the yarn knit together quite tightly, while the pattern was light and airy.)

Anyway, while looking at the instructions for the tandem-socks, I became quite alarmed. I just couldn't picture how to start the things! For those of you who knit, you know that you usually have instructions like: Row 1: this stitch, that stitch, do this and that; Row two: do these other things, you now have X stitches; etc. Or you have a chart that grids out the various stitches or colors in a stitch-by-stitch, row-by-row fashion. Never have I seen directions like these! They were written in paragraphs! It began with this long explanation of the concept, then it would tell you what you were actually supposed to do. There were poorly illustrated pictures of needles with stitches on them, that I could not make heads or tails of. (And I'm fairly good at figuring stuff out.) Finally, I just guessed.

It's actually pretty cool how they work. Instead of doing a "provisional" cast on thing with short rows (as is usual when you start at the toe of the sock) you simply pick up stitches along the cast-on row by holding the knitting upside-down! Very unique! And at knitting night yesterday, I helped Y figure it out, so the two of us have begun... (MD couldn't make knitting night.) Now, I'm all excited about my tandem-socks. It's just so cool! And my wool is quite pretty. (As well as machine-washable!) While at the moment, they seem to look more like the ears of a kitten than anything else, I am confident that they shall form ...SOCKS!

If At First, You Don't Succeed...

Sometimes, I am just stubborn enough to be good at this! I just wish it didn't always take so **** long! In the past two weeks, I've received three favorable rulings from the Court of Appeals.

One was a meth possession case that was reversed and remanded because the State did not have either their drugs or the person who analysed them. The judge simply allowed the report into evidence and the lab guy testified over the phone from his car. The lab guy didn't have the drugs or his report, either, he was just testifying from notes. Of course these notes were in his car with him, so neither counsel could see them. The Court of Appeals ruled that this violated my client's right to confront witnesses against him. (Ya think?) At the time, the judge had told me in chambers that the lab guy wasn't that important, as I didn't have any real questions to ask him! Alas, in spite of the judge's quest for efficiency, we now must re-try a case that's over 2 years old. (And he's served all his time.) But, maybe we won't have to re-do it. I'll take odds on the State being able to locate either the lab guy or the drugs!

The second was the result of a relatively new law called "Aggravated Fleeing," which no one, least of all police officers, seem to understand. It's written in an immensely convoluted fashion. Basically, it makes leading cops on dangerous high-speed chases a felony, rather than just the misdemeanor resisting or evading an officer. The cops, however, need to be conducting said chase "pursuant to the Safe Pursuit Act," yet another confusing statute, which tells law enforcement to make a pursuit policy and gives guidelines on the policy they should have. Anyway, to make a long story short, the cops following the guidelines laid out in the Safe Pursuit Act is an element of Aggravated Fleeing, the state didn't prove the cops did this, so back it comes. This one doesn't much matter, though, since this charge was run concurrent with my client's 7th DWI, which carries twice as much time as aggravated fleeing, anyway.

Last, and my favorite: (This one's published, and they quoted a whole chunk of my cross of one of the cops! They didn't name me, though, I'm just "defense counsel.") The Court of Appeals determined that in a DWI trial, the State has to lay some minimum amount of foundation to show the breath machine was actually functioning properly before admitting the results. The cop just saying, "they regularly check it" does not suffice. I like this one best because it was a very memorable trial in which the judge was constantly overruling my objections without letting me explain them, yelled at me for trying a case with "no defense," and even yelled at my client for not pleading guilty and maxed him out because he didn't plead guilty. (He said this on the record.) This case is now 3 years old, and my client's almost done with his parole by now.

The down side of all this is that the judge was immensely pissed. Normally, I don't care, but he said today he was going to issue warrants to all my clients whose cases got reversed and make them sit in jail for 6 months pending re-trial. Then sentence them to the max again. I felt like telling him that if he'd just conducted the trials properly the first time, he would have nothing to be mad about, but I restrained myself. The sentencing doesn't matter much, since they've already served their maximum time. It just bugs me that he can't get it through his thick head that an "efficient" docket is not one that convicts people as quickly as possible with little effort on the State's part! How efficient is it to still be dealing with these cases 2 or 3 years later? If he had just done it right the first time, they probably would have been convictions that would have stuck! Even if there were acquittals, he could always blame the juries and the cases would still be concluded. And if he really does keep them in jail pending trial specifically because their convictions got reversed, that's appeal-able too! (And very likely to win!)

When We Were Young

What strange creatures we were when we were young. It's something of common knowledge that children are honest. Perhaps brutally so. But I think that when we were younger, we were highly observant, as well. I look back on observations I made at the age of eight. Or nine. Or ten. At the time, they were perfectly obvious and unremarkable. To me, anyway.

I remember my father taking me to orchestra concerts, beginning when I was about eight. I saw Nadia Salerno-Sonnenberg play Bruch's violin concerto around that time. She was probably in her early 20's then. My father asked me what I thought, as was usual. I said that she was wonderful and I loved the Bruch, but why was she so angry? And she was angry. I knew this in the incredibly certain way that kids have. And I'm still quite certain that she was. I hear some of her stuff now, and there is a completely different, more relaxed feeling. Maybe she's grown up a bit from those angst-ridden early 20's years.

There was another time, when I was yet again riding with my father to a concert, but this time we rode with his friend, who played French horn. The French hornist was seeing someone that would be sitting with me in the comp ticket section. She was quite in love with him. (And this was obvious to a ten-year-old!) My father and I drove back alone. (Looking back, I guess that the French hornist rode back with her boyfriend or stayed there.) My dad asked me, as always, what I thought. I remember quite clearly that the thing that stuck out to me most was not the music that was played. I don't even know what was played now. What struck me most was that my dad's friend's boyfriend was exceedingly chatty. He talked about absolutely everything. Except he did not talk about her at all. That struck me as odd, as she was the only thing the two of us had in common in the world! So, I told my dad that I didn't think he loved her as much as she loved him. This was quite obvious to me. But sadly, not to the French hornist until a little while later.

Would that I had that same observational skill now! And that honesty. Now, I would possibly know these things. I would be able to hear and see them, but not speak them. I would second-guess myself. How do we lose this confidence in what we know to be true? Is there a way to get it back? Will I ever again be able to look at a person and know that they are angry or happy or in love? Is there a way to re-learn how to look at a situation and describe it in so succinct a manner? In this way, I guess, I was much smarter when I was ten, than I am so many years later.