Cozy

So, it's gray and rainy and about 50 degrees outside today. One of those days where you want to curl up with some hot tea, jazz music, and a good book. Or maybe my knitting. It makes me think that it's almost spring-time, but I know not to get my hopes up. After all, we haven't had the Saint Patrick's Day blizzard yet. (It always seems to snow here in the middle of March, even if there have been a couple of days in the 70's or even 80's in February.) Normally gray days make me sleepy and depressed. Why else would I live in the middle of the desert, the land of perpetual sunshine? But today, the gray-ness makes me feel oddly good. Quiet, serene, and somewhat introspective. In a word: Cozy.

Appreciation Unlooked-for

Every year (mostly) the local bar association holds a dinner-dance party thing for all the lawyers in the county. It's usually kind of fun, since you get to talk to other lawyers who you don't necessarily see regularly, and you get to watch the older generation loosen up a bit. We younger-generation public defenders don't really frequent the same social circles as the older, more established attorneys do. There's usually a cocktail party thing prior to the actual dinner, and last night, a bunch of us went back to the cocktail party after the dinner to kind of hang out for a while.

Anyway, when we were heading out and saying our good-byes and thank-yous, an attorney I don't talk to very much began a conversation with me. I mean I know him to say hi to, but that's about it. He started out by informing me that civil practice isn't about chasing money. His practice has made him very comfortable, don't get me wrong. But nothing compared to what our host had, at least judging by the house we were in and the vehicles in the driveway! I honestly think that the lawyer I was speaking with really enjoys doing what he does, and would do it even if he wasn't going to have his father's practice handed over to him in a few years. Then, kind of abruptly, this attorney holds out his hand over the bar for me to shake it (he was acting bar-tender at the moment) and thanks me for doing what I do. I must have appeared a little confused, because he then tells me of a guy who called him this week needing an attorney to represent him in a criminal case, and it took him all of 2 minutes to realize that there was no way this guy could pay him. So the attorney informs the guy of this, tells him to get a public defender, and then hangs up the phone. I don't believe this was out of greed or anything, this attorney does take his fair share of pro bono cases. The attorney then reaches out his hand for me to shake it again, and tells me that he really appreciates what I do, and he thanks me again.

The first thing that entered my head in response to this conversation was that I don't do this for him, I do it for the guy on the phone. But then, the more I thought about it, the more I realized that maybe I do do it for him, in a way. I really am glad that he can practice the type of law he enjoys without feeling obliged to take this guy's case when he has no desire to do so. I'm also happy that he can refer this guy to our office without worrying whether he will receive good representation. I realized then that I not only do this to assist our clients, I do this to assist the community by fulfilling a societal need that most people would prefer to ignore altogether.

A Knitting Update

And so, my trip to the yarn shop was a complete success! I got bunches of cuddly blue yarn to make a sweater with. A nice easy one, with minimal complications. Below is my goal, except that it won't be orange:

I got some needles made of bamboo, and lo and behold, they're actually the right size! My mother always used aluminum ones, but they only had bamboo at the store. I think I like the bamboo ones better anyway. They're not so cold and slippery. I tested the gauge (how many stitches to an inch) last night, and I was right on target. That is, after the first couple rows where I was trying to remember how all this works. The only thing I had to ask MD for help with was the beginning part, where you put the stitches on the needles (casting on). She was even impressed at my speed and even-ness! I was so excited that I did 6 rows last night, and I think I'll do more while the Superbowl is on. I think this is going to be fun!

"Won't My Mommy Be So Proud of Me?"

Well, this may come as a shock to those of you who know me, but I'm planning to start knitting. I've never been anyone you could confuse with Martha Stewart. I tend to get impatient with picky crafty things. You know, the little mini-pom-poms that refuse to stay glued together, or needle-point where you have to count everything exactly and put the needle in precisely the right location, and what do you do with needle-point once you're finished with it, anyway? Knitting, though, seems like something I could handle. It's not so precise that you have to think about it that much, and you can do it while other things are going on without losing track of where you are. You see, my mother has always knitted, and she taught me how when I was very small. When my sister and I brought books everywhere with us, our mother brought her knitting. After supper, my sister, sometimes my father and I would be reading our books, my mother would be knitting. Granted, the last thing I recall knitting was a dress for my Barbie-doll. But it had a cable and everything (the little braid-looking things on sweaters). I'm pretty sure I remember how to do the basic stuff.

So, what brought this on, one might ask? Partly the realization that I need a hobby in the worst way. Something that's not just watching t.v. or playing video games. Partly, it's because my friend MD knits, and she's been talking about starting a group thing where a few of us go to a local coffee shop, help each other knit, and talk about anything non-work related. So, I'm on board. It sounds like a nice change of pace from going out to the same bar with the same people all the time, or secluding myself at home to watch the same movies over again.

So, I'm all excited about going to the yarn shop this afternoon with MD to get yarn, needles and a pattern book. (Preferably one that includes basic how-to instructions also, in case I can't remember as much as I think I do.) I'll keep you all posted on the progress, and maybe include a picture if I ever finish my project.

Happy Snow Day!

Now, normally, I'm not much of a snow person. I like sunshine and warm days. However, I can't deny that snow is pretty. And if it means I get to slack off for a couple hours while waiting for New Mexico's snow removal technique to take effect, that's even better. In case you're wondering, New Mexico's snow removal technique appears to be to wait for it to melt. No doubt that's the most economical approach, but it doesn't always work. This is especially the case on days like today, where it's overcast and not expected to get above freezing. If it were just the inch or so of snow, I'd go into the office and get some stuff done. But since there's about a quarter inch of ice under the snow, I think I'll wait and see whether they're going to call off the entire day. (The snow that fell yesterday melted a little and then froze again overnight, with more snow falling over it, and more snow is supposed to fall later today.)

I do have to go in at some point today, as I have a client getting transported from the jail to watch a video pertinent to his case. He's trying to decide whether to take a plea on quite serious charges that could result in his being sent to prison for 20 years or so. I've been trying to talk him into letting me try it, since there is a good defense, but his biggest fear is getting acquitted. How's that for strange? He's a sweet kid, too. Ah well. I should see whether we're still on a 2-hour delay.

On Empathy

As part of my new lease on life and my job, I have been thinking a lot about what may have caused my recent spate of burn-out, and in this way, hopefully, avoid it in the future. After meeting with several of my clients at the jail this week, rather than sending them letters or calling them on the phone, I think I may have figured it out. The root of my problem seems to have been that I had grown detached from my clients, and, as a result, I no longer wanted to help them. While pondering why this came to be, I began thinking of the difference between two nearly synonymous, but very different words. Empathy and Sympathy.

According to Marion-Webster, "empathy" is "the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner." "Sympathy," conversely, is "an affinity, association, or relationship between persons or things wherein whatever affects one similarly affects the other." In short, "empathy" is being understanding of and sensitive to the feelings and thoughts of another, whereas "sympathy" is sharing in and being similarly affected by those thoughts and feelings.

My conclusion is that I had previously been too sympathetic with my clients, causing me to become emotionally drained. One cannot survive long if one is constantly feeling the same things as so many troubled and down-trodden people are feeling. This exceeds my capacity and overloads my emotional resources. The answer is to be empathetic, i.e. understanding and being sensitive to my clients without sharing and participating in their feelings. Perhaps some are capable of sharing in their clients emotions. However, I have discovered that I am not. I cannot do my job effectively if I am constantly on this emotional roller-coaster of other people's problems. So, with this new understanding, I hope to be able to continue this noble work to the best of my ability for many years to come.

To Life!

So, I am currently sitting in my cozy house, watching snow fall outside, and drinking English Breakfast tea. This is the life! Even better, my recent episode of burnout has not returned. I'm anticipating going back to work on Monday to attempt to get justice for my clients. I was writing pre-trial motions in my head while cleaning house, and I'm looking forward to soup and Animal Planet this evening. It makes me wonder why I was spending so much time and energy being angry and frustrated. This is better by far!

To life, to life, l'chaim!

Happy MLK Day!

I never really thought before about the similarities between the fight for racial equality and the fight for justice for those accused of crimes. But the two battles are similar. As public defenders, we try to protect the rights of those who many people wish had no rights at all. Dr. King fought for equal rights for people whose rights were ignored because of their skin color. As public defenders, we do not fight in a battle field with armies, but in courtrooms across the land. Dr. King also did not use violence to make his point, but fought with demonstrations and marches such that he could not be ignored. Both battles involve standing up for what you believe in the face of overwhelming dissent. Both battles continue on as progress is measured in small, barely noticeable increments and both encounter numerous, seemingly insurmountable obstacles. I am proud to be part of this great battle the goal of which is to enable every person to have the protection of the rights guaranteed us in the Constitution of these United States.

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?

Home for the Holidays

As I'm writing this, I'm in the house I grew up in. I am spending time with my family for the holidays. It's always strange for me being home. Maybe because I've lived somewhere else for so long. I went as far away from home as I could get to go to college, and then I went even farther away for law school. I lost touch with nearly everyone I knew here. In a way, it seems like just last week I was sneaking in the door late at night, hoping not to wake my parents. And in another way, it seems like this is not really the same place I lived in at all. I mean, this is the same house, but the kitchen and both bathrooms have been re-modeled, and there is a lot of new furniture. Only one of the houses in the neighborhood contains the same family that it did when I lived here. They put in new, brightly colored play equipment in at the park a block away. They are about half-way finished demolishing the auto-body plant that I walked by every day on the way to school, picket-lines and all. Kids I used to baby-sit for when they were three years old are now juniors in college. It feels like I somehow fell asleep for ten years, like Rip Van Winkle.

But at the same time, it can't be that strange. I mean, throughout this post, I've been calling this house, this place I am now "home": a place I haven't lived since I was eighteen. They say, "Home is where, if you have to go there, they have to take you in." I didn't have to come here. I chose to. My family's here, and I wanted to spend Christmas with them. If "home is where the heart is" (sappy though that saying is), then I guess my heart, at this time, is here with my family. As it should be at this time of year.

A Mental Health Update

I'm apparently not the only one concerned with the mental healthcare (or lack thereof) in the criminal justice system.


*******

I was somewhat encouraged this week with regard to our new judge and competency cases. I had my 3 "dangerousness" hearings on Thursday, to which I referred previously. She actually agreed to dismiss two of the cases, as the State conceded that the clients did not meet the definition of "dangerous" in the statute, and the third she sent to the state mental hospital to treat to competence. I was surprised that she agreed to actually dismiss the cases, rather than wanting the State to dismiss them. I was hoping she would dismiss the third case, since the client had already been to the mental hospital on this case, and upon return to jail refused her meds and became incompetent again. But, at least, she's out of jail for a while. And who knows, maybe this time she will actually stay on her meds.

The really good development occurred after the hearings, when the judge asked the Deputy DA, me, and the court administrator back to her chambers. She wanted to discuss setting up a mental health court, and it seems that she really wants to go through with it. As I said in the post linked above, my only reservation with this is that we don't have a lot of services in this community for the mentally ill, and without adequate services, I don't see how a mental health court would work. But both the court administrator and the Deputy DA agreed with me that services in the community were required for this to work. So, I feel better about this now. The administrator is going to get us some procedures manuals from other mental health courts in the state in the next couple of weeks so that we can see how theirs work. He also wants to schedule a field trip to a mental health court sometime in January to see what it looks like. In the meanwhile, he's going to explore funding sources.

My boss even said I could represent our office in whatever committee gets formed to implement this. It is exciting to be able to help address a problem that the justice system is unable to adequately cope with, but that affects the justice system and those involved in it on a daily basis. I invite anyone to comment with ideas of what works or doesn't work.

'Tis the Season

Well, I guess it's officially the Holiday Season. I can tell this because the weather is cold, the mall is packed, plane tickets are expensive, there has been a marked increase in my shoplifting and larceny cases, and I have a cold. That's ok, though. I'm kind of in the mood for the holidays this year. Some years I'm really not that interested in Christmas. I mean it's kind of a hassle to do all the preparatory shopping, and I frequently end up with a lot of trials set for the first couple weeks of December because the judges want to go out of town for the holidays and they don't want to let the time-limits run. But for some reason, I'm actually "in the Christmas spirit" this year, whatever that means. It may have something to do with the fact I get to spend Christmas with my family this year. Or maybe it's because I had a whole bunch of trials set September through November, and there aren't any left for December. Or maybe I'm just fickle.

Whatever the reason, I think I'll just enjoy this feeling as long as it lasts. I will play Christmas carols on the stereo, surf the internet for Christmas presents (I never could stand the mall), try to be nice to everyone, and be happy no matter how many bah-humbuggers there are out there.

Happy Thanksgiving

I have been very bad about posting lately, partially due to being insanely busy at work, and partly due to my general slackerness. I am hoping for this to change in the days to come. I have now finished all of my docketing statements, and I don't have another trial set until December 8. The trial probably will plead out before that, if I can get the prosecutor to give me a slightly better plea offer. Docketing statements are the worst part about losing trials. They are a statement of what happened at the trial court and a list of issues you want addressed on appeal. Now that these are out of the way, all I have to do at work is deal with the immense pile of stuff on my desk that accumulated while I was losing trials and writing docketing statements. To give you an idea of how much that stuff amounts to, I have about 20 files waiting to be put back in the cabinet, about 10 new files to review and figure out what needs to be done with them, and about 50 that went to court in the past couple of weeks that need notes in them of what happened and also to be returned to the cabinet. (In case you're counting, yes, that's about 80 files sitting on my desk in addition to however many are still in the cabinet.) This is not mentioning the 5 or 6 inch stack of random papers that must be sorted and put in their proper files and a few suppression motions that should be dealt with at some point soon. It's amazing that as busy as I've been, my desk looks like I've been doing nothing for the past couple weeks.

All of that aside, I now have a nice four-day weekend in which to relax, not think about work, watch football, eat turkey, come up with vague ideas for Christmas presents, and remember friends and family. After all, isn't that what Thanksgiving is all about?

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.

Has it Really Been Five Years?!?

An Update:

My co-workers did make me a T-Shirt to commemorate. It says, "I've been a public defender for 5 years and all I get is a lousy T-shirt." It was sweet.

*******

Original Post:

Yes! Much to my astonishment, and to the astonishment of the former Chief Public Defender of New Mexico who said she did not think I was "sufficiently defense oriented" for this job, today is my fifth anniversary as a public defender here in Podunk, New Mexico. (Well, technically, it's not until Sunday, but I'm blogging now and may not be in the mood then.) I am not expecting a watch or a plaque or anything, because I doubt that anyone who would be in a position to give me those things has noticed. But that is fine with me. If I were doing this for recognition, I am in the wrong line of work!

Regardless, this has caused me to be somewhat introspective today. This was the first job I had out of law school. When I began, unlike many others who graduated with me wanting specifically to be public defenders, I was not interested in Making a Difference in the cosmic sense. I did not want to bring Justice to the world at large. I did not have an Ideology I wanted to put into put into practice. I did not want to Fight the Power. Those things were, and still are, too grand for me. I am a small person with a small reach. I do not have, nor do I want, power, fame, or influence. I cannot hope to Change the World.

I can, however, help people. Not People, as in all people, but individuals. I help them to navigate this bizarre and arcane world of courts and laws, which is hard even for educated and articulate people to deal with, much more so for the poor and uneducated. I speak for them, even when no one else will. Not to the legislature, or to the media, but to the man who has the big hammer and the power to take them from their homes and families. I cannot say I've made my clients into law abiding citizens. But I can say that I have changed some of my client's lives for the better. And that is plenty of reward for me.

I had one client a year or two ago, probably about 20 years old. All the police officers knew him and his family. The police were always so sure that he was using and/or dealing drugs (they were probably not wrong) that they would constantly question him, search him, and arrest him. They were so gung-ho about sending him to prison that they neglected such niceties as having probable cause to arrest and reasonable suspicion for searches. The first case I represented him on was dismissed by the prosecutor after I filed a motion to suppress an illegal search. While this was pending, he picked up another. This one the Judge dismissed because of an illegal search. While both of these were pending, he picked up a 3rd case with an illegal arrest. This one pled down to a misdemeanor with no jail time and no probation. When all was said and done, all his felonies were dismissed. The best part about this, though, was not the outcome of his criminal cases. He had somehow come through all this with a new lease on life. He resolved to get clean, stay clean, get a legitimate job, and support his new wife and child. He wrote me a poem. It wasn't Shakespeare, but it was sincere. In it, he thanked me for helping him. He wrote that if I had not stood up for him, he would not have had any desire to change. The idea that there were people who could help him on the right path showed him that the world was not always out to get him. He wrote that I helped him to see that there is more to this world than courts and jails and drugs and gangs. He hasn't been arrested since. This is why I do this.

Even if I never get another acquittal. Even if I never have another client thank me. I helped someone change their life. This makes it all worth it. This is why I am proud to be a public defender.

Of my friends who wanted so desperately to be public defenders in law school, only one is still a public defender in addition to me. All the others moved on when they discovered that to Change the World, you need more power and influence than you have being a public defender. They were frustrated by the perceived futility of what we do. They were depressed by how far reality can be from their shining ideals. I am not. I have known for a long time that this world, and the justice system, are not perfect. And as long as imperfect people are running the world and the courts, they probably won't be. But I am happy knowing that as small and insignificant I am, I can do things that sometimes make a large difference in the lives of individual people. And I do not care that no one has ever heard of the people I have helped. I do not care that it is rarely front-page news (and when it is, usually the headline is something like, "Criminal Gets Off on Technicality"). The bottom line is, this is fulfilling to me. And it does make a difference (small letters). And I look forward to posting in another five years how I have been doing this for a decade.

On Mental Health

As I have said before, I have a soft spot for my competency clients. Others have also posted recently on this subject, and I feel it is one that must be dealt with if, for no other reason, very few people seem to understand or care about it.

An example:

I had my first competency hearings in front of a brand-new judge yesterday. It was appalling! It was clear within minutes that not only had she not bothered to educate herself about how these types of cases are to proceed through the court system, she would not listen to me as I attempted to explain how they are supposed to work. And I wasn't using my own words, I was reading the statute book! "If a client is determined incompetent, charged with a felony, and not at that time determined dangerous, the case must be dismissed." Misdemeanors are dismissed on a finding of incompetence, period, regardless of supposed dangerousness. Instead, she found all my clients incompetent and set them all (including the misdemeanors) 3 weeks from now for "dangerousness hearings" (no such things exist in New Mexico), keeping the clients in jail in the meantime. This, of course, put them outside the statutory timelimits. I did have one client out of jail, and I was interrogated as to why he was out. He had bonded out on 2 misdemeanors and was released without bail on the felony. The judge was distressed that he was out of jail because, she said, we can't have incompetent people running around, she started to say, "when they are dangerous" and changed it to, "when they might be dangerous."

What are we, back in the 19th century, a time when the mentally ill were greatly feared and locked up for no reason other than a few chemical imbalances in their brains? Hasn't society progressed beyond that point?

I finally figured out what this judge's deal is when, after the hearings, she started talking about setting up a mental health court. I know these exist in other places around the state. And I generally think them to be an excellent idea. However, in order for them to work, there must be services in the community for the mentally ill. For what good is the court checking to ensure that someone is taking their medication when the person is homeless and unemployed and have no means by which to obtain either housing or an income and no one to help them get to a doctor and become stabilized on their meds? Upon voicing my views about this with the judge, she was not swayed, or even interested. So, if she has her way, we will soon have a court program that punishes the mentally ill for not remaining on their meds when they have no means to do so, and she will have set up an ineffectual program that will look good to her political higher-ups and help her climb the political ladder because she will have single-handedly gotten those "crazies" off the streets.

I hate politics. Especially when those sacrificed to it have no choice in the matter.

Democracy

As much as I complain about the state of our country: about how the "justice system" seems so rarely to dispense actual justice, and how politicians can be corrupt and petty and can seem to only care about furthering their political careers instead of serving the public; I am reminded today of how great it is to be a citizen of this country. We have a voice. We have a say in how we are taxed, who makes our laws, and who enforces them. Even though it often seems that my voice is swallowed up in the sea of those who view the world differently than I, I can still make my voice count. Because I can make known through the ballot box that I desire change; that I am not swayed by fancy, high-priced advertisements on t.v. I know who I want to represent me in the legislative bodies of this country. I know who I want to lead this country and this state. I know who I want to sit on the bench and make rulings that affect the lives of those who come into our courts. I can express this.

The ballot box is more effective in expressing this than if I were to stand on the street corner with a sign and a mega-phone announcing my views to all who would listen. Because the people who would listen to me on my street corner are not necessarily in a position to do anything about what I want. Through voting I, along with every other citizen of this country, can make this country into what we want it to be. My vote does not have more weight because I am somewhat educated. It does not have less weight because I cannot trace my ancestry to a king. We are all equal when we cast our ballots. This is what a Democracy is meant to be.

Even if a majority of people do not agree with my views and none of the people I voted for win tonight, I am still proud to be an American: A citizen of this great country. Because I know that an armed militia will not storm the capitol. I know that the people who are voted out will leave and go on with their lives, and that the people who are voted in will not be assassinated before they can assume their duties. I know that the Rule of Law will continue to be enforced. As long as the Rule of Law is enforced, the people will have a voice. This is Democracy. This is why this country, and the principles behind it, will endure.

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.