I respectfully dissent

As I read a Blonde Justice post about how much she loves her job, I kept thinking about Lou Grant's line (to Mary) on the Mary Tyler Moore show "You've got spunk ... I hate spunk."
Now the Blonde Justice blog is great and a near-daily read for me. But after being a lawyer for 10 years this month and seeing age 40 coming fast, I am in a different place. The honeymoon is over and I guess I am past the seven year itch. This was originally going to be one of those "100 things" posts, but I could only come up with 20 or so worthwhile things to say.

1. Practicing law is much harder than I expected.
2. I hate telling clients or potential clients, I agree you have been screwed but:
    a. The law does not provide you redress
    b. We can't prove it
    c. It will cost you more than it is worth to take to court
3. The system doesn't just work. You have to make it work. You can't wait around expecting justice, you have to demand it. Only the naïve go into court and expect to be treated fairly.
4. The courts are sometimes civilization's junkyard. When society fails the products of that failure end up somewhere in the court system.
5. Most of the people who have some easy solution to "the crime problem" have no clue what they are talking about.
6. Most of the elected officials who have a clue about the problems in the legal system spout the same old platitudes "tough on crime," "protecting our children," "frivolous lawsuits," because if you don't spout those platitudes you will lose the election to someone who does.
7. The lawyers I work with the most are dedicated, funny, hard workers.
8. I am less wealthy than I thought I would be, but it's not so bad.
9. Clients estimate that their case will take about 10% of the time and effort it actually will.
10. Nothing has less value than legal work that has already been performed (even a not guilty verdict - I am still awaiting payment for that one).
11. I have become far more efficient than I ever thought possible, but I still can't find enough time.
12. You cannot an argument with an ass.
13. Even though you spent three years in law school studying the law and have ten years of experience, many clients will disregard your logical, fact-based, considered legal judgment because their cousin worked with a guy once who had a friend who did the opposite and still won.
14. Everyone believes that justice should be firm, swift and fair (unless it is being applied to them, a family member or a friend).
15. The most overused words in legal writing: clearly, frivolous and meritless.
16. Technology has made me work far more efficiently but I have no idea what happened to all the time I am saving. There is never enough time to get everything done.
17. I hoped to accomplish more by this point. I'd love to be able to point to some great legal achievement. Mostly its been a slow slog, some wins, some losses. Most of the windmills I've tilted at are still standing.
18. If you wanted to design a system to produce the least amount of product while consumed the maximum effort, you would design our court system. The last serious reform was abandonment of legal size paper. There are still feelings of resentment about that one.
19. It always sucks to lose.
20. We are utterly indifferent to the needs and upbringing of young men but then we make up for that indifference by spending about $30,000 per year on each of them keeping them in prison.

This post (swiped from My Shingle) sounds great, but a program like that would be misguided:

Carolyn Elefant writes: Fact No. 1: The declining number of trials means that biglaw associates aren't getting the litigation experience they once did.

Fact No. 2: Massachusetts is facing a crisis with respect to indigent representation since private attorneys are refusing to accept more appointments until the (now) $37.50/hour rate is increased . Consequently, the courts have started forcing attorneys to take indigent criminal cases.
Solution: Appoint biglaw associates to handle Massachusetts' indigent cases. Associates get court time on real cases (as opposed to settling for mock trial training), biglaw can include court appointed work as part of its pro bono package and gain major PR points and indigents would get top of the line representation.

The only solution that will work is using attorneys who want to do criminal defense work and paying them fairly. That means either hire full-time public defenders and pay them just like prosecutors are paid or farm out the cases to private attorneys and expect to pay them $85 to $120 per hour.

Court-appointed criminal defense work is not a farm-league for the dark-suit-white-shirt brigade. If the lawyer is not experienced enough to turn loose on the defense of an insurance claim in a car crash, he is not experienced enough to solo on a case where someone could go to prison.

Criminal defense work is not always highly complex (did A stab B and was there any legal justification for it?) but that does not mean it is something you should dabble in. I'm not sure that most of what the big-firm associates would learn that would really be useful anyway. Civil and criminal cases (I do some of both) are very different.

Ever notice that the notion of costs comes into play mainly in criminal defense cases? The N.C. Justice Department would probably be the largest law firm in the state if you counted only attorneys based in North Carolina. Governments always find money to pay attorneys to represent them, but whine when forced to foot the bill for somebody else. For example my county recently agreed to pay $310,000 in legal fees for representation in a construction lawsuit. Where was the gnashing of teeth? Why was there no talk of forcing lawyers to represent the county? Where was the indignation at the hourly rate?

We can keep trying to come up with creative out-of-box solutions or we can resign ourselves to the truth of the bromide my dad loved to serve up, "Anything worth having is worth paying for."

It's just life... wake up and smell the thorns.

~From the movie Meet Joe Black

The enthusiastic, to those who are not, are always something of a trial. ~Alban Goodier

I've always been interested in people, but I've never liked them. ~W. Somerset Maugham

The Bible tells us to love our neighbors, and also to love our enemies; probably because they are generally the same people. ~G.K. Chesterton

Life is one long process of getting tired. ~Samuel Butler

I love mankind - it's people I can't stand. ~Charles M. Schulz, Go Fly a Kite, Charlie Brown

Shamelessly cut and pasted from Quotegarden.com

A highly placed government source suggested I help the convicted shoe bomber sue to get better treatment in federal prison. This would be a good time to say that I take no pleasure another's misfortune, unless it gives me a chance to write cheesy lyrics:

Hello mullah, hello fatwa,
I find myself in Colorada.
SuperMax is kind of draining,
So I'm suing, bitching, griping and complaining.

In Solitary here with Jerry
He keeps saying, we should marry.
And the guards here, each a sinner,
Join me for a nightly beat-down after dinner.

All the guards here, hate the inmates
and the food is not to my taste.
You know that warden mocks Osama,
and he always calls me the Shoe-bomma.

I don't want this, should I scare 'em
but I didn't get a harem.
You remember Noriega,
He was transferred all the way to San Diega.

Get me home, Oh Mulla, Fatwa
Take me back, I hate Colorada.
Please don't leave me here,
I've been here at least one year.

Dearest Mullah, how's that fatwa?
I'm so lonely in Colorada.
Get me out, you surely need me,
I would even let Abdulla kiss me.

Wait a minute, the blows stopped raining.
Guards are getting proper training,
Serving dinner that's much betta,
Dearest mullah just forget about this letta.

(With apologies to whoever wrote the original and thanks to Biff for the inspiration)

Ken Lammers at CrimLaw discovers yet another item banned in federal court buildings. It seems every time I go over there, I discover another item you can't bring in and you must either surrender it or return it to your vehicle. The following items apparently present a clear and present danger to federal court operations:

A book (so says CrimLaw).

A pager

A cell phone

Any sort of device that can record sound

A camera, or a device that includes a camera.

I'm chafing at these restrictions. I have a pager and I consider it a tool that lets my office find me. Why can't I bring it in a public building to conduct public business? I wear it in state court as I move from court to court so that I can get messages that say things like "the judge needs you in 5C." The pager is always on silent so it can't disrupt anything.

I know a cell phone ringing in court is annoying, but I'm not sure that banning them from the building is the answer. The reason for allowing the inspections in the first place was to screen for weapons and dangerous items, not things that could possibly annoy another person.

I don't need a camera in court but why can't someone take pictures outside the courtroom? I know the entire time I was in the courthouse the other day I was under constant surveillance (the place is bristling with security cameras).

And what about the book?

A month ago the head of the state agency that runs the courts resigned. Yesterday there was an explanation (sort of) of why. The chief justice asked for his resignation after a drug dog found "trace amounts of cocaine" in his desk. The former head of the agency, John Kennedy, denied using cocaine anywhere including his office in the Justice Building in Raleigh, according to the News & Observer.

The story contains the obligatory quote of how Kennedy is being treated the same is anyone else.

"We of all people -- the courts -- have to follow the rules," Wake County DA Colon Willoughby said. "How bad would it be if we apply a different set of rules to someone because of who they are? I can't think of any thing more repugnant to our system of justice. That means not being more harsh or more lenient, but following the rules."

After reading the N&O story and the judge's memo, I don't think justice would really be served by coming down particularly hard on Kennedy. But the facts are blurry so it is hard to tell if this is really business as usual or not. For example:

The chief justice is quoted in the N&O article as saying "my information is that they found trace amounts of cocaine."
The Wake County Sheriff, who brought the dog over personally for the search, would not tell the N&O anything other than he found something suspicious but not enough to launch a criminal investigation. He would not say what he found.
The Wake DA said there was no competent evidence of a crime and said he was not told about traces of cocaine in the desk.

If traces of cocaine is not enough to convict for cocaine possession, I've got a few clients in jail or on probation I need to get in touch with. It is not unheard of in Winston-Salem for the cops to charge based on residue. As long as any amount is provable a jury can convict. It may be that the dog alerted to the desk but there was no actual residue to collect for lab testing. It is not unusual, based on my training and experience, for drug dogs to alert but the search to come up empty because the drug smell can linger even where there is no collectible residue or "shake." It would be difficult to get a conviction based on a dog reaction alone, but anything is possible. If there was nothing other than the dog's reaction, I'd agree that prosecution is impossible.

Some questions still linger in the back of my (often too skeptical mind):

If there was no plan to keep this quiet, why did it take a month for the annoucement? The AOC has a website where it posts all kinds of typical PR puffery. The only news posted since the resignation was about court employees sending packages to the troops in Iraq. In June there was a story about a ceremonial visit by a bomb-sniffing dog. There was announcement that Kennedy was appointed in 2002. To date there is no mention on the site of the resignation or the new appointment.
Was there residue or not? With all the wrangling that went on behind the scenes that probably would have stayed behind except for those crazy meddling kids at the N&O nosing around why is there no consistent answer from the chief justice, the sheriff and the DA about what was found.
Why was the sheriff called instead of State Bureau of Investigation? Somehow that strikes me as odd. Usually the SBI is the agency that investigates misconduct by state employees on the job.

Blonde Justice has a interesting post on disagreeing without being disagreeable. I am not fond of dealing with cranky prosecutors. A pet peeve is badgering me to get my client to plead out. It is not unusual for a client to ignore my advice and decide to take his case to trial (one time a client did that, was found not guilty and escaped what I thought was a sure 6-year sentence). I decided a while ago that I would explain as best I can the risks and let the client decide. I have tried cases where my only "reason" for seeking a trial was the client wanted one, we both knew we were highly unlikely to win. I don't want to hard sell a plea and have a client in prison who sits around and thinks, "I should have tried that case."

I have argued with prosecutors and probably raised my voice at times, but I am not a yeller. I think you have to be true to your own style. Some aggressive hard-nosed lawyers can be very effective, but that is not me. Faking it doesn't seem to work.

They truly unethical usually crash and burn before too long. Much worse are the outright jerks. The jerk lawyer takes unfair advantage of every situation. He hand-delivers motions to your office on Saturday to shorten the time for response. She shops the case to several judges to get an emergency custody order. He tells his client to file criminal charges during a judical conference so no judges are available to set bond. The jerk stops just short of unethical behavior or makes sure that any that exists is untraceable. The jerk has memorized every rule of ethics because he is always trying to stay just inside the lines.

I am always tempted to try beat the jerks at their own game or to show them how it feels. That has never worked for me because the jerks are just too good at what they do. You can't win a pissing contest with these types, they are just too full of piss and vinegar. A jerk is a jerk 24 hours a day, always plotting, always looking for the angle. When I'm up against that, I know I'm no match.

I've run across two post-Blakely federal indictments and both contain "sentencing allegations," factors that could increase the offense level. It will be interesting to see how this shakes out. What if a client admits participating in a conspiracy but denies being "a leader or an organizer?" As a matter of constitutional law, according to Blakely a jury would have to determine the role in the offense. However the Federal Sentencing Guidelines and sentencing statutes do not provide a procedure for a sentencing jury. I wonder how the jury would be intructed on applying the Guidelines.

One thing that is handy is getting potential enhancements on the table earlier. Since I graduated from law school in 1994 federal defendants were instructed when they plead guilty that the precise sentence was unknown and unknowable until sentencing. They were also told that any advice from their attorney about their offense level was just an estimate. Most of the time a defendant could not withdraw his plea just because he was hit with several upward adjustments.

Knowledge is power and anyone outside of government with power is dangerous:

The American Library Association (ALA) today welcomed the Department of Justice's decision to rescind its request that the Government Printing Office Superintendent of Documents instruct depository libraries to destroy all copies of five Department of Justice publications addressing forfeiture. The Justice Department claimed that the documents are "training materials and other materials that the Department of Justice staff did not feel were appropriate for external use." ALA disagreed with this categorization of the public documents, two of which are texts of federal statutes, and with the instruction to destroy them. ALA trusts that there will be no repetition of such unjustified instructions to destroy government information.

Michael Gorman, President-Elect of the American Library Association, said, "We had concerns about the Department of Justice request to destroy documents that have been in the public domain for four years. To obtain an official rationale from the Department of Justice about the nature of these public documents, the American Library Association submitted a Freedom of Information Act (FOIA) request for the withdrawn materials, which will now be moot." Carol Brey-Casiano, President of the American Library Association added, "Our only interest in this issue is that we want to ensure that public documents remain available to the public."

The topics addressed in the named documents include information on how citizens can retrieve items that may have been confiscated by the government during an investigation. The documents that were to be removed and destroyed include: Civil and Criminal Forfeiture Procedure; Select Criminal Forfeiture Forms; Select Federal Asset Forfeiture Statutes; Asset forfeiture and money laundering resource directory; and Civil Asset Forfeiture Reform Act of 2000 (CAFRA)

How much of this stuff do the feds get away with just because no one bothers to raise a stink?