Home Sick (blah!)

So, I've been home sick since Monday, and it's getting really, really old! There are some illnesses that you can have and go to work anyway, and there are some that you can't. This particular stomach problem is one that I can't take to work! My stomach finally has settled down today, I just feel all weak and wobbly. Might have something to do with not being able to eat much all week. Mainly crackers and tortillas. Still not a good idea to drive to work or stand in a courtroom, but better than the last three days. Hopefully, I can get to work tomorrow. My office will be a mess!! And as much fun as it is to play on the computer, watch t.v., and knit all day long, it really is getting old. Even I can't sleep all day!! I did start working on a cool felted bag. And I've spent lots of time cuddling with doggies. But I'm dreading my voicemail. If I were very good, I'd check it from here. But I'm really not in the mood to hear my clients yelling at me for not being there. It's not my fault I have a malfunctioning stomach! I have at least been checking my work email, to make sure nothing catastrophic has occurred in my absence. And I assume someone would call me on the phone if there was an emergency. Anyway, I don't really have anything exciting to say, as you can probably tell, I'm just bored. I do like this high-speed internet! I can actually watch video without waiting a half hour for it to buffer. Now that you're all at least as bored as I am, if you've managed to make it through this post, I'll leave you alone now.

The Woes of Treatment Court

I blogged some time ago about the mental health court a judge was intending to start. Well, it has been started, more or less. The basic premise of the thing (contrary to my suggestion) is to make the mental health court a "special condition" of probation, similar to drug court. The participants are required to come to court weekly, attend individual and group counseling sessions throughout the week, show proof of taking medication as prescribed, do community service or keep a job if able to, and take drug tests. Initially, they are required to see a psychiatrist who would (hopefully) prescribe medication and/or adjust it as needed. As we initially had no (read "zero") funding from any source for this program, we began with five participants. Of the five participants, three were "non compliant" with the program. Two went to a 28 day drug treatment facility, and one disappeared before he actually began the program and is pending probation violation procedures.

Now, warning bells should go off. If 60% of the participants cannot "make it" in this program, there is either something wrong with the screening process to admit them into the program, or something wrong with the program itself. There are a couple reasons I see for what is going on. First, the most successful of those in the program (the 2 who both showed up and didn't end up in drug treatment) have traumatic brain injury, as opposed to an illness related to brain chemistry such as schizophrenia or bipolar disorder, which can be treated with medication. The only reason the two of them could not make it in regular probation is that they have memory and cognitive problems and just cannot process how to show up once a month at probation. These people do not need their medications monitored, etc. Further more, we (the committee) had decided at the beginning that a mental health court would not be of assistance to people with such a disability. They probably could make it through the program fine, but the program would not help them.

The people the program is intended to help are those other three people, two of whom are bipolar and one is schizophrenic. They get into trouble because they either self-medicate (usually with meth), or steal (for the thrill when they're manic, because they believe the things to be theirs, or because they can't hold a job due to their disability), or both. So, the program intended to help the mentally ill get back on track with their meds and housing and SSI is turning out to be simply drug court with extra conditions. The irony is that the service provider is the same as for drug court. My question: Why not just put them in drug court, since that's what's happening anyway? The personnel involved are exactly the same, it's just the participants that are different. This way, the federal grant we just got can be used for a diversionary type of program, which is much more acutely needed anyway.

Here's what I think a mental health court should look like: When a criminal defendant is transferred to district court "on competency," they might be referred to mental health court, especially if they are only facing charges for resisting an officer or battery on an officer. (Many of my competency clients have the police called on them because they are acting strange or creeping people out, the cops show up and they freak out.) If it is decided that such a defendant would be fine if properly treated, they would start the program. Their criminal case would be dismissed without prejudice. They would get a caseworker (which we do have available) to help them apply for SSI and set up housing. They would see a doctor to give prescriptions and monitor the meds and check in with someone to be sure they're on their meds. They would only have to give drug tests after they're meds are fully adjusted and have been allowed to take effect (say a couple or 3 months). Only then would they be punished for using meth or other drugs. The program would last 6 months to a year, and if they completed, their criminal case would remain dismissed. If not, it would be refiled, and we would deal with the competency issue at that point. The incentive to the client would be that they wouldn't have to sit in jail for 3 to 9 months waiting for evaluations or risk a 9 month trip to the state hospital to be treated to competence. (i.e. forcefully medicated) (Note: SSI is discontinued if a person is incarcerated for more than 30 days. Thus, if they had SSI before their arrest, they no longer have it when they're finally released.) The incentive for everyone else would be that we would save the county money by not having them in jail, we would save the state money by not sending them to the hospital, and (with any luck) we would help them break the cycle of committing new crimes as soon as they get released from jail on the old ones. If a defendant is found incompetent, the cases are ultimately dismissed anyway, except for the most heinous.

I mean, it makes no sense for my little competency guys to keep getting arrested, their cases (mostly misdemeanors, property crimes, or tangling with police or jail guards) dismissed once they're found incompetent, released from jail, then arrested again for the same or similar charges with no treatment in the interim. The best example I have of this is my guy that steals cars. He's clearly schizophrenic: he has auditory hallucinations (apparently quite a benevolent person, as my guy laughs a lot when listening to the voice). His cases (he stole 2 cars the same day) got dismissed when he was found incompetent and not dangerous (mandated by statute). Six hours after his release from jail, he stole another car, led the cops on a chase, and returned the car to the police parking lot. He also was arrested for the charge of "pedestrians in roadway," because he was apparently caught when whe was walking down the middle of the road, talking to his invisible friend after dumping the car. He has not been on meds since 2004, when he was committed to the state hospital. Now, there are two solutions to this: Either we can get the cops to quit arresting him no matter how many cars he steals, or we can give him an incentive to take his meds, and adjust them if they make him too listless (his problem with taking them is he doesn't like being sleepy all the time.)

Here's my main point (finally). We don't need "drug court plus" (as I've taken to calling it). We need some way to help my guy with the car problem to stay on his meds so he will quit stealing cars!

End of sermon.

Snow Day, Take Forty-Four

Well, not really forty-four, but that's what it seems like. You know, I never thought I'd get tired of having spontaneous days off work. But even I have to admit, this is getting old. You get all in gear to go to work in the morning, have planned the courts you need to be at, and the office work you're going to do, and suddenly you can't. Unless, that is, you feel like playing bumper cars with people who have no clue how to operate a vehicle in the snow. And then, you spend the rest of the week trying to catch up!

I compensated this morning by joining a "sock-of-the-month" club. Well, actually the sock of the every-other-month club, since I know I can't knit a pair every month! We'll see how it goes. (You can cancel any time.)

I believe I have now given up on trying to guess Betsy's ancestry. I even watched the Eukenuba National Championship dog show to try to figure it out. (And also because I like to watch dog shows.) She's still got mosly the coloring of a Rottweiler (her head's turning black again, like it started out), but she's much fluffier than either a Rott or German Shepherd. Her outer hair's coarse like a Rott, but a little curly, and she's got a double coat. So, she's pretty much her very own breed. I did figure out one thing from the dog show: The next door dog, Adagio, is almost certainly a Flat-Coated Retriever. Betsy's much more of a cold-weather dog than I would have thought. Her latest thing is flopping down in the snow, and then eating all the snow in reach, and then picking a new spot to lie down.

My Week in a Nutshell (More or Less)

Things have been quite busy here, so I've been unable to blog about them. We had our orchestra concert last night. It actually didn't go as badly as I thought it would. And that Puccini mass is really quite pretty. It made me wish our conductor was a little more experience, and more able to give cues as to dynamics and such, rather than just the beat. I was a little miffed that the program didn't say I was the "section leader," but I'm sure my ego can take it!

Work has been quite strange. I seem to have my caseload pretty under control (for once). We now have fifteen licensed attorneys and I only have about seventy-five active cases. That's fewer than I can remember ever having. I still am quite busy, though. I've got three mentees now, in addition to random other people coming into my office and asking me questions. One of my mentees is getting her first felony cases, so of course she has all kinds of questions since she is no longer dealing with only dwi's and domestic violence cases. Another of my mentees seems to have two hours worth of questions every day. The strange thing is that most of her questions are repeats. So I'm not sure if she really needs help or if she just wants to chat. Because if she really needs that much help, she has the shortest attention span of anyone I know. But if she just wants to talk to me about the same cases into eternity, I really am not that interested, and have work I could be doing on my own cases. The third, I haven't figured out yet. She's actually not my mentee, she's my boss'. I don't think he realizes that even though she did graduate from an ivy-league college and practiced civil law for 2 years, it doesn't mean she understands criminal defense in New Mexico. He gave her felony cases right off the bat (a bad idea, in my opinion), and seems to expect her to know how to handle them without assistance. So, I go over all her cases with her and tell her what to expect, etc. But it is quite time consuming!

Another strangeness is that my boss seems to hold me responsible for whatever everyone else does. For example, an attorney (not my mentee) forgot to do something on one of her cases. She told the client about it, and appealed the case based on ineffective assistance. Apparently someone at the da's office did not like this, complained to their boss, who then complained to my boss. My boss then yells at me for about 20 minutes. How I came to be involved in this at all, I don't know. The gist of the conversation was that he didn't believe the attorney should have appealed (why not, I don't know) and that this makes our office look bad. I asked, "to whom," and he said to the da's! Who cares if our office looks bad to the da's? The attorney did nothing unethical or even wrong, and if the da's don't want us to appeal cases, that's their problem. And again, how is it me that he's yelling at?

Betsy's doing well. We went to the vets again for more shots, and she's up to 18 pounds now. She gained 5 pounds in 4 weeks, and is much bigger. Probably 1/3 taller and 2/3 longer than she was when I got her.

Potty-training is still improving. She goes 4 days to a week without accidents! Her genealogical makeup is still quite the mystery. My bf thinks she is part monkey, which I think might be right. She's got a prehensile tail and a knack for mischief. She's also quite the acrobat. She's a great jumper and escape artist. (I noticed this when she stole a hair-tie off the coffee table and then escaped when I went to retrieve it.) She can move! And sometimes she just runs around because it's fun. And then it's bed time...

I will really miss her when I have to go for annual training next week. (No puppies allowed at the hotel.) I was going to board her at the vets, but this shot was only the first bordatella vaccine, and she needs the second one before they'll take her. So she'll be staying with my secretary and her herd of cocker spaniels in the country. She'll like it. The secretary breeds cockers and so knows how to deal with puppies. She's going to fence Betsy away from the cockers during the day, because she's worried the cockers will pick on her. I think Betsy can hold her own with a cocker spaniel!

Oh, and I finished my tandem socks. I just need to re-bind them off because I bound off too tight.

Court Craziness

So, my DWI trial for my deaf-mute client actually occurred yesterday. It was quite strange. First off, I was quite surprised when there appeared four interpreters to interpret the proceedings for him. (Too many cooks in the kitchen, anyone?) One of the interpreters had worked with him at all his prior proceedings, so I was comfortable that she would at least be able to communicate reasonably effectively with him. An additional issue my client has is that in addition to being deaf and mute, he does not read or write English. This is a problem, as a lot of sign-language has to do with spelling words where there is not an "official" sign for them. And obviously court proceedings have a lot of words without signs. (e.g. plead, witness, jury, testimony, etc.)

I knew this was going to be interesting when, before the trial even started, one of the interpreters expressed concern with my client's understanding of the proceedings. She told me she thought I should raise competency. She also expressed concern about interpreting for my guy's wife, who would be a witness, something about divided loyalties to the client. Now first of all, my client is not her client. Her client is the court, for which she is interpreting. (And I hate it when people uninvolved in the proceedings try to tell me how to handle my cases. Especially people who are not lawyers and who have known my client for about 3 minutes.) My second problem with this conversation was that there was no way I had a basis for raising competency, even had I wanted my guy to stay in jail another 6 months waiting for an evaluation. Now, the guy isn't a brain surgeon, but he had previously understood the basic concept of witnesses testifying, jurors making a decision about whether he was guilty or not guilty, and the roles of the prosecutor, the judge, and me. While he didn't necessarily know those terms, he could definitely grasp the concept once explained with terms he did know. He also had no problem assisting in his defense, as he had made it very clear that he was not driving, his wife was, and he was therefore not guilty of DWI. So, rather than taking the time prior to trial actually starting to help me explain to my client how things like picking a jury actually worked, they spent their time arguing with me about what my client did or did not understand and what I should do about it.

So, voir dire started without my being able to speak with my client at all. Then, in the middle of voir dire, it became clear that one of the interpreters could not use signs that my guy understood. So, rather than simply not using that one, the interpreters wanted to stop the proceedings to confer. The judge, of course, would not. So they had their conference after voir dire. I thought at that time that they were probably going to walk out. They were from an advocacy group for the deaf. Normally, in my opinion, a laudable thing. However, they seemed unable to grasp that their jobs as interpreters is to interpret, and not to advocate. That is my job. So rather than a conference to discuss a manner in which they could accurately convey what was occurring to my client, they apparently conferred about how they could yell at me for not getting the judge to dismiss the case. They kept trying to explain about the "bigger picture" and how I was violating my client's right to due process. Now, obviously the judge was not going to dismiss a case because the interpreters are unable to interpret. He might declare a mistrial, resulting in my client being in jail an extra 6 months waiting for retrial, which I don't want to have happen. He might also grant a continuance to allow the interpreters time to figure out how to interpret, again meaning my client is in jail longer.

So, as calmly as I could manage, I explained to them that if they wanted a continuance, they could ask, but I would not. The judge had made it clear to me that the trial was going to proceed, whether there were interpreters or not and whether they were effective or not. And that it was not my job to advocate for the deaf at large, it is my job to advocate for my client in his criminal case. It is also my job to get him out of jail as quickly as possible, and that would only happen if the trial occurred sooner, rather than later. So, no, I would not ask for a continuance, and I would not ask for a mistrial. If they wanted one, they could ask, but they would not do this. Given that, I told them that it would be better for my client if they got their heads together and figured out a way to interpret accurately, rather than how I should be handling the case. I mentioned that my clients due process rights would also be violated if his case kept being delayed due to ineffective interpreters who obviously had some other agenda, and that if they walked out there would be no interpreters, thus violating my client's rights even more.

Apparently, this was not an effective speech, as they actually did walk out after the first witness. They went on a rant to the judge about not having notice that my client is Navajo (which they did, as I had told his original interpreter before he even had his first appearance) and they would be violating their ethical code by interpreting in a way that my client did not understand. The judge threatened to throw them in jail for contempt if they left, and I reminded them that if they did leave, there would then be no interpreters at all, violating my client's rights even more. I almost wish the judge had gone ahead and thrown them in jail. Maybe that would have straightened them out on what their roles are as court interpreters!

In any case, we ended up getting my client's daughter to interpret, rather than having a mistrial and delaying the proceedings even more. She wasn't the greatest, but she did manage to convey enough of what was going on so my client was able to follow reasonably well, and the wife's testimony (who is also deaf) didn't go too badly, either. After all that, they ended up convicting my guy. According to the foreman, it was because my guy went into the drivers' seat to wait for his wife and daughter to get out of the Wal-Mart, rather than the passenger seat. Oh well. It's not like we don't have appealable issues in this one!

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.

Good News, Bad News

How about the good news first? The good news is that last week, the Court of Appeals reversed and remanded my client's felony DWI conviction. They agreed with me that yes, the State must subpoena the lab technician who tested my client's blood to testify in person, regardless of the inconvenience of making him drive half-way across the state. The bad news is that the case is unpublished, and therefore, we will probably have to appeal several similar cases before the judges all get the point. Also, my client will probably opt to keep the conviction, rather than go to trial, as he has now served all his time and probation. (He got a pretty good plea deal). The good news is that it gives one a pretty good feeling to say, "I told you so," to a judge who is so convinced all my clients are guilty, and who likes to by-pass all "technicalities" of the constitution in order to efficiently convict them.

More bad news: My trial on Thursday was a complete disaster. The charge was child abuse, and the facts to support it were that my client was drunk in the vicinity of her 18-month-old child. You know it's a bad sign when the Judge politely informs you prior to trial that it would be the best thing for your client if the jury convicts her! The only good thing that happened all day was that the judge excluded my client's "prior bad acts" that the State wanted to use to show that she is a drunk. The judge had at least three grounds on which he should have granted a mistrial, including the officer "accidentally" saying that my client had been to prison, the State saying in closing that since the child was not crying, he was obviously familiar with this situation, and that the jurors had a responsibility to "break the cycle" of something, I'm not even sure what! Oh, the best part was that all of a sudden at trial the child was lying and crawling around on broken glass. I still am not sure where that came from, other than the officer took a picture of the alley this happened in on Monday, and there was glass in the picture. (Of course, since the incident occurred 9 months before the picture was taken, the judge should never have allowed the picture in, but that's life in the big city.) Oh well. Can you say "cumulative error"?!

On Tragedy

One of the problems with blogging about a job like this in a town this small, is that there are some times when you can't write about what you want to. I'm semi-anonymous, meaning select people know who I am, but the general public does not. And I would prefer it to remain that way. For example, I'm not thrilled with the idea of someone at the local newspaper finding my blog, and linking it to me. (They haven't, yet). I figured you all deserve an explanation about why I haven't blogged much in the past few months.

It's mainly because what I really wanted to write about was a certain (quite serious) case that had been ongoing for over a year, and that is now finished. (Caveat: I'm not divulging confidences, this is all public record and most of it was in the paper.) The whole situation is immensely tragic. The original charge was an "open" count of murder, meaning the state could file for the death penalty. My client had stabbed a girl upwards of 30 times with a steak-knife and then shot her with a composite bow and arrow. She had been my client's best friend's girlfriend. They were to be married. She had a 3-month-old baby, who saw the whole thing.

My client had been released less than a week before this from a mental health hospital, in a town far from his home, with no money, no transportation, and his prescriptions. Not the actual meds, just prescriptions on pieces of paper for his anti-psychotic medications. He had begged them not to discharge him, he was afraid he would hurt someone. They discharged him anyway.

His hope for the outcome of all this was to be sent to the State mental health hospital forever, so this would never happen again. He was extremely remorseful, and initially wanted to receive the death penalty. The only way to get him to the mental hospital would have been to have the judge find him incompetent to stand trial and dangerous. However, by the time the competency evaluation took place, he had been stabilized and was competent.

Ultimately, he pled to second degree murder and tampering with evidence, and was sentenced to 26 years in prison. He absolutely did not want to put the victim's family through a trial, even though he had a viable insanity defense.

The sentencing hearing was gut-wrenching. Ten of the victim's family members spoke. I have never sat through a longer, more difficult hearing in my life. The most tragic part of this whole thing is that all of this could have been prevented. One life was extinguished, another destroyed, and innumerable lives were changed forever. All the result of the lack of proper mental health care.

Irked!

I'm home sick today, and so I thought I would use some of my down time trying to figure out where I went wrong with my knitting. I picked this particular sweater to try because it looks relatively fool-proof, and like I could finish it before the turn of the century. Of course, this only works if the instructions are correct! Not so much... This Suss Cousins person may be hot stuff in Hollywood, but if she spent a little less time name-dropping and a little more time measuring her patterns, this would all be much easier! Granted, I'm pretty new at this, but it stands to reason that if your gauge is correct (4 stitches to an inch, exactly!), then the measurements for the entire thing should be correct. Again, not so much. I just hope it comes out in the wash, as my mother says... Stay tuned!

My Trip to Treatment Court

Also called "mental health courts," treatment courts have been popping up throughout the country in an attempt to deal with mentally ill individuals who become involved with the criminal justice system, but really don't belong in it. I've had some experience dealing with mentally ill individuals in the context of my job within the criminal justice system, and I am in complete agreement that the courts, jails, and prisons are unable to either help the mentally ill people that come afoul of the law or protect the community. My personal feeling is that if there were some way to help the mentally ill become stabilized over the long-term and integrated into society, society would then be protected from them, and there would be no need to warehouse these people as is currently being done to a greater or lesser extent.

My view of this seems to be shared by our newest district judge, the chief deputy district attorney and our court administrator. As a result, we have been meeting to discuss creating a treatment court here. As part of our investigation into the viability of this, we took a trip to a treatment court in another jurisdiction yesterday. It was exciting to see the participants complying with their medications, and thereby complying with their probation, stabilized, and happy. The program we observed appears to be helping the people in the community, and I commend them for doing such a good job with it in such a short time. (The program is only about 6 months old.)

However, the more we spoke with the judge in charge of the program, the more frustrated I became with the lack of resources we have here. The program I observed would never have got off the ground if the treatment providers in the community hadn't backed the program immediately and enthusiastically. Virtually all the services in the area were on board and doing what they could to help, and that's great. But here we have almost no services at all. There is one program that provides caseworkers to help the mentally ill find residences, get on disability, etc., but they are so under-funded and overworked that the turnover is astronomical and the staff is poorly trained. I believe we have 2 therapists in the private sector, and it takes months to get an appointment, even if you can pay them or have insurance. I don't even know whether they take medicaid or medicare, but I doubt it.

Another concern I have is that the treatment court I observed is a part of probation. This means that the participant must have (at some point) been competent to stand trial or plead guilty to a crime. That's all fine, and everything. But the clients that I have had that I'm most concerned about aren't competent to stand trial or plead guilty, even when they are taking their medications. When they are taking their medications, they are no longer dangerous, so they don't have to be locked up. But when this occurrs, their criminal cases are dismissed, and there is no one to monitor whether they continue with their medications or not. So, as soon as they're off their medications, they get in trouble with the law again. The clients I have that are competent when they're on their meds are placed on probation (usually) and they're monitored by their probation officer. Some times this works and some times this doesn't, but at least they're not completely on their own, like those whose cases are dismissed.

What would be more helpful, I think, is a program in which someone whose case is pending is monitored by a treatment court, and then their charges are dismissed when they successfully complete it. It would be an alternative to them being found incompetent while sitting in jail for months and then going to the state mental hospital. The mental hospital would appreciate it, since they're always short of beds; and the client would appreciate it, since they wouldn't have to sit in jail waiting for a competency evaluation to be completed. I think there's a treatment court like that in a different town in the state, so I'm going to push to observe that next time our little team meets.

But our trip was a good learning experience!

The Blahs Have Passed

I guess the main reason I hadn't been posting much for the past month or two was that I couldn't find anything that exciting to write about. Has anyone had that feeling that everything you do you've already done hundreds of times before? Well, that's kind of what I felt like. I was bored. I was getting bunches of DWI and drug cases, with a few burglaries thrown in, but there was nothing exciting to do with them. Even the ones that went to trial were boring. I thought if I heard, "but the drugs weren't mine," or "I wasn't really drunk," one more time I was going to throw something at whoever said it. I'd gotten to the point I was just tuning out my clients who called me to complain that they needed to get out of jail because their mother was ill, or they had to support their families, or they were going to miss their kid's birthday. I just couldn't escape the feeling that I was doing the same things and having the same conversations over and over and over again. It was getting to the point I couldn't work up the energy to do the simplest tasks. I didn't want to file my files, speak with clients, or write the simplest motions that take all of 3 minutes. This, of course, made me feel like I wasn't doing my job well and made me more discouraged and frustrated.

Thank God for vacations!

It turns out that all I really needed was some time away from here with my family and some R & R. I didn't have to think about my clients, or the law, or anything at all for an entire week. Just what the doctor ordered! I've been back at work for two weeks now, and have been quite productive. I've been preparing my cases in a timely manner for trial, returning my clients' phone calls, and my desk is so clean that one of my co-workers was worried that I had quit. And I even got a great new toy for my birthday. My parents gave me a digital camera, so I can post pictures!


This is Bo. Bo, this is the blogosphere. He's in his favorite spot in front of the window. He's a sixteen-year-old chow-shepherd cross, and my best buddy. Ain't life grand?

On Micro-Management

Micro-management is the bane of any office. It is contrary to a productive and congenial working environment. It forces employees to spend their time and energy on minute and petty tasks as opposed to what their actual jobs are. It pits "management" and "workers" against each other because of "management's" desire to check up on and nit-pick every aspect of how the "workers" do their jobs. It breeds mistrust on both sides, since "management" always suspects that the "workers" are not following the rules and the "workers" are always looking over their shoulders to see if Big Brother is watching. It is a waste of time, resources, and energy with no benefit.

We are professional people. We are attorneys. We show up to court when we are supposed to, and we show up prepared. We file our motions on time. We communicate with our clients whenever possible. If we did not, getting written up by the Boss would be the least of our problems. Much bigger problems would include being held in contempt by judges, being sanctioned by the Bar Association, having bad reputations in the legal community, and being sued by our clients or their families.

As none of these things have happened to anyone in our office, why the sudden need to audit how many breaks we take, our computer usage, and our telephone calls? Why should anyone care if we show up to the office 10 minutes late, stop for coffee and a bagel on the way back from court, leave the office at 4:40 so we can get to the bank before it closes, or surf the 'net when our brains are too fried to accomplish anything useful? According to the Boss, he has Information that the attorneys are not working 40 hours a week! This strikes me as amusing, or it would if it were not so asinine.

When I went to the office last Sunday, an attorney and a paralegal were both there at the time I was. When I go in this weekend to write 2 docketing statements, I expect to see at least one other attorney there at the same time I am. I can't remember the last time I left the office at 5:00. I defy anyone to prove that I don't put in my 40 hours!

The thing that bugs me the most about this is that the issue doesn't seem to be whether we are doing our jobs competently. The issue seems to be how much time we spend at it. And this is just ridiculous! It serves no purpose! The issue should be whether we are zealously and competently representing our clients. It should not be whether we are at our desks from 8 to 5 Monday through Friday. Why can't the Boss just trust that if we are doing are jobs correctly, we are putting in our 40 hours? This way, he doesn't have to worry about checking up on us all the time, and we can concentrate on our actual work, rather than worrying about whether he'll notice that we got back from lunch 15 minutes late.

Probation Violations (or not)

Well, Friday was a fairly good day. I had only 2 probation violation hearings, and got both of my clients back onto probation. Both of them had been in jail awaiting their court hearings for between 2 and 3 months. This is due to the fact that they cannot have hearings until the prosecutor files a motion that explains why they want the judge to find that the client violated his probation. Usually this entails alleging that the client did not report to his probation officer, the client acquired new criminal charges, or the client won't stop using illegal drugs. However, prior to when this motion is filed with the Court, the probation officer files paperwork alleging the client violated his probation. This paperwork has the effect of holding the client in jail without bail pending a hearing on the probation violation. There is no set time limit for how long the prosecutors may wait before filing their paperwork, so this is why the clients end up sitting in jail for months awaiting the hearing. I have yet to find a way to get the prosecutors to file their motions in a timely manner. Obviously, I cannot file a motion asking the judge to find my own client violated his probation!

This is particularly annoying when you end up with cases like I had on Friday when there really is a legitimate question about whether they violated their probation or not. The first guy I had was living in a different town when he was first placed on probation and he was already on probation in the town he was living in. His understanding was that he would be unsupervised on his probation here, and supervised by his probation officer where he lived. He had been to rehab and in all other ways complied with his probation in the town he lived in. But, he did not check in with the probation officer here. Unfortunately, his understanding was incorrect. He was supposed to check into probation here and then get it transferred to the town he lived. His probation officer here, for whatever reason, did not believe him and thought that he should go to prison for this. In my opinion (and in the prosecutor's as well) this misunderstanding was not worth sending him to prison over, so both of us asked the judge to put him back on probation, which he did. However, due to the lag in filing the paperwork to get his hearing, he spent a little over 60 days in jail behind this.

My other guy was a little more complicated. He was arrested because the police got a call that he was threatening to blow up his house (and himself). He was off his medications at the time. This resulted in a 2 hour stand-off with 4 or 5 different law enforcement agencies. When they entered the house, there was no one inside, but there was gasoline everywhere. So, they issued a warrant for his arrest. But since they couldn't really charge him with a crime, the warrant was for violating his probation. How he violated it, we're not really sure, since there's nothing in the probation agreement that prohibits dumping gasoline throughout your house. So, he gets pulled over and arrested while on his way to his monthly check-in with his probation officer. It then took about 2 months for the prosecutor to figure out what to allege he did to violate his probation, during which time he was in jail without bail. They finally settle on failing to report to his probation officer. Of course he couldn't since, he was in jail. His probation officer just wanted him back on probation, but couldn't really say so due to the publicity that the stand-off situation received. It took another month to get him into court. Finally, on Friday, the DA decides to go ahead and dismiss the probation violation charge and let him out. He had been in jail for over 3 months at that point for not violating his probation.

It just bugs me sometimes that guys like this who are really trying to do what they need to do to get through their probation end up serving months in jail for no real reason.

Election Time

I dislike election time for more reasons than just the annoying commercials. In our state, judges are elected. Here, magistrates handle misdemeanor cases, probable cause hearings, and set bail for all cases. They are not required to be lawyers (or have any more education than a high-school diploma or GED). They run in open elections every 4 years. As a result, as the election gets closer, there is no longer any point to actually having the probable cause hearing, or arguing to lower a client's bail, which usually is set sky-high to begin with or denied altogether.

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.

Public Pretender

As I sadly have no baseball games to watch as a result of the most fantastic example of crash-and-burn I have ever witnessed in the Word Series, I have been amusing myself by keeping up with the public defender vs. private attorney debate on the blogosphere, and here, and here ,and don't forget this one, all brought on by this article. Rather than commenting on everyone else's blogs (although check out some of the comments already there, they're pretty good), or on this singularly uninformed woman's article (she seemed to get quite snippy at the comments of others), I figured I would say what I think in my own way.

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.

Scapegoat

I was wondering this week why it is that public defenders are always blamed when things do not go smoothly. I mean, it is hard to negotiate a plea bargain in advance of trial when the prosecutor refuses to return phone-calls until the week of trial. Nonetheless, it is somehow my fault when we must schedule a change of plea the day before trial. When the State provides a witness list with 6 new witnesses the week before trial, and I request a continuance to allow time to speak to them, the Judge becomes angry that I did not interview them earlier and denies the continuance. He then tells me, when I file a motion to exclude the new witnesses as they were not timely disclosed that I filed the motion in bad faith! When my client wants his day in court on a case he is likely to lose, the fact that the judge and the DA must "waste" time on the trial is my fault. Don't I know that my job as a public defender is to brow-beat my client into taking a plea that he doesn't want to? When the judge schedules trials every day for 2 weeks, it's my fault that he has to have trial every day! When the prosecutor submits incorrect paperwork to the court, it's my job to fix it. When the court loses track of a case and it takes forever to get resolved, it's my fault for not bringing it to the Court's attention. Never mind the fact that it was never my case to begin with. When a defendant never applies for a public defender, and does not come to court, it's somehow my job to get him notice for the next court date. Forget the fact I haven't got the foggiest notion where he might be or how to get a hold of him. When 10 new cases are added to the morning docket a half hour before court, it's my job to handle the cases for the attorneys who are not present because they had no idea those cases were going to be called. When the psychologist who does our competency evaluations is slow in getting the reports finished because she was in a car accident and required several surgeries, it's my job to get the reports to the court in a week, or else the court will hold the hearings anyway. Because, of course those public defenders are always raising competency to play some kind of game.

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.

Catch-22

In my line of work, I come into contact with a fair amount of people who are mentally ill. It may surprise some people that this is the case, but in a state like New Mexico, services for the mentally ill are extremely limited, especially if they are indigent. Thus, many people who are bi-polar, schizophrenic, and mentally retarded end up in the court system. They get arrested when, for example, they are asked to leave a restaurant and will not do so because they believe they own the restaurant. Or, they get into a fight with the manager of the restaurant because they believe the manager is trying to poison them. Or, the police try to write them a ticket for pan-handling but they believe the police officer is going to shoot them, so they fight with the police officer. Or they just simply have nowhere to go and no way to get there, so they are arrested for loitering.

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.

Making Do

One think I've noticed since becoming a public defender is that one is always making do with less than optimum circumstances. There are always too many clients and not enough resources. This can be quite frustrating. A case in point: Last week our server went out. We save all our documents to the server, rather than to the hard-drive, so that we all have access to each other's old motions. However, without a server, we had to rewrite whatever we needed like stock motions for transport, continuances, jury instructions, and the like. In addition, the printer runs through the server, meaning without the server, we could not print anything. Thus we couldn't file anything anyway, even if we did manage to complete it. Add to it, the server makes this high-pitched, continuous, beeping noise when it is not working. It drives one insane! We finally thought we were out of the woods when the IT guy showed up Thursday to fix it and our files were re-loaded to the server from the back-up on Friday at about 4:30.

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.

An Update:

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!

8 Ways to Make a Difficult Job More Difficult: or 8 Ways to Turn a Law Office into a Middle School

1. Come to the office approximately one week out of every 4, and get angry with the entire office when you feel like you are left out of the loop.

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.

An Addendum to a Note

Once again the filters on our computers at work leave me in a state of confusion. Inexplicably, I can now get to the blog every time (well, since yesterday, anyway) but apparently the headings in the sidebar are blocked. Not the links, just the headings. It leaves these white boxes, instead of "Other blogs" or "Recent posts," or whatever. Perhaps the words are the problem, or the font? No telling. That's the State of New Mexico in all its technological glory! I give up. But at least I don't have to waste time trying to figure out what happened to the code, since they appear on any other computer I use!