Meanwhile, At the Hall of Justice…

That damned word just won’t go away.

Justice.

It’s more relative than a prostitute’s preferences.

I talked about it before as a word defined by the beholder, not through universal understanding.

The Holiday Season stimulates some of the more needful members of our society to search for a lawyer to help with all the past injustices in their life. A good example is when they pled guilty in 1982 after giving a written sworn statement confessing to the crime. The confession came after watching the surveillance tape showing them earning a Best Actor Oscar. Now, they want something done since they were obviously the victim of unfair treatment.

They call. I say there’s nothing I can do for the conviction since it happened almost 30 years ago, they already received at least one look at an appeals court, and they lack evidence to merit an extraordinary writ. I politely decline to take their case.

“Put the money that you would’ve paid me into a savings account for your kids,” I say.

Out comes the anger. They accuse me of working for the government. I’m part of the conspiracy to make them miserable in life. They say I don’t want justice. I explain that I couldn’t, in good conscience, take their money in a case that would likely die a quick and quiet death. Out comes more anger. They state I don’t want justice, and how dare I even think about charging them for such a wonderful, glorious case.

Their definition of justice: Take my case for free and get me everything I want. Or else you suck.

I hate the use of “justice” in almost any context except the phrase “Meanwhile…..At the Hall of Justice.”

To some prosecutors, “justice” means getting the death penalty or life without parole.

To defense attorneys, it means an acquittal or the lightest possible sentence.

To some clients, it means getting a fair shake and fighting as hard as possible.

To others, it means getting whatever they want, logic and law be damned.

I sympathize. I try to be as kind as possible. I try to demonstrate the logic and math behind my declination. I try to explain that theirs is not the only sense of “justice.” I explain that my definition of the term involves not accepting their money in a case that is guaranteed to fail. Sometimes it works. Most of the time, it just causes the expulsion of bile.

It all solidifies my professional heart’s desire for “justice.” I wish the word would go away.

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Child Cross Examination?

Recent conversation in my household after school with early-elementary school child.

Me: How was your day?

Kid: Fine.

Me: What did you learn?

Kid: Nothing.

Me: What did you eat for lunch?

Kid: Chips and milk.

Me: That’s it? What else were you served?

Kid: Hey dad?

Me: Ummm, yes?

Kid: Did you know some people are killed when they do crimes?

Me: Yes. It is called capital punishment or the death penalty.

Kid: Dad?

Me: Yes?

Kid: Have any of the people you work with gotten the death penalty?

Me: No. Thankfully.

Kid: Dad?

Me: Yes?

Kid: Do you like the death penalty?

Me: No. Not at all. I think it’s wrong.

Kid: But, I heard you tell mom that you wanted to kill the kid who pushed me down on the playground.

Me: …

The Two Justice System

Jurassic Attack, based on a triceratops

Can we please focus public dollars on the more important things in life? Image via Wikipedia

If you consider what is written in the media and couple that with the experiences of CDLs with clients and their families, you see that the American public supports the construction two separate, yet coexisting, systems of justice.

1. The Fair and Compassionate System.

Available to: Themselves, Family Members, and Close Acquantances.

This is a system devoid of unfair practices and minimum sentences. It gives the accused a fair trial, the right to at least one very quality lawyer, and the chance to block all perceived unfair evidence from being produced and considered. This system gives huge rewards to first-time offenders, and it considers heavily the opportunity for a second (and even third and fourth) chance. It weighs factors from throughout the accused’s life and crafts the minimum sentence necessary to correct the wrongdoing and afford maximum chances at future success. Community service is preferred over incarceration. It understands that, for many, they’ve already learned a valuable lesson before trial begins. Victim rights/perspectives are considered, but, let’s face it, the trial is really about the guy/gal on trial. Appeals are automatically granted by all courts, and their main purpose is to reconsider the weight of evidence. Accused individuals and their families are allowed to communicate with the appellate authorities ex parte, and the appellate procedure is completely non-adversarial. Communicating a belief in christian ideals is considered proof of innocence.

2. The System For Everyone We Don’t Know/Don’t Give a Crap About.

Available to: Everyone Else (especially people we don’t personally know, the poor, and those whose cases are covered by mass media).

Trial occurs at the discretion of the prosecutor–but only if they feel like going through the trouble. This decision to waste time with a trial is often crowd sourced. Guilt is assigned at the moment of suspicion. The Death Penalty applies to all offenses, even jaywalking. Appeals are strictly forbidden. Any costs are assessed by selling the property of the accused and their extended family. Summary executions are allowed in NFL stadiums and can be purchased via pay-per-view. Proceeds fund monster truck racing and memorials on public grounds featuring a large christian cross as a centerpiece.

Got Bloodlust?

U.S. Army Major Nidal Malik Hasan, named as th...

Image via Wikipedia

Just a brief note about the death penalty in the military…

Note within a Note: If you want to know everything there is to know about the death penalty, please check out Gamso: For the Defense. It is written by Jeff Gamso, and I suspect he might be against the death penalty. Jeff is on my list of people I want to have a beer with.

Every now and then, I’ll see some writing or comment regarding an overwhelming desire to see MAJ Nidal Hasan (the Ft. Hood shooter) die via the death penalty.

Please, stop getting your hopes up.

I’ve already warned that this trial will be made as boring as humanly possible. It will take eons, and the trial is merely the beginning of years and years of time, expense, appeals, and waiting. Even if he passes through all those hurdles, you’re still not going to see him strapped to the Terre Haute gumby and pumped full of battery acid.

Quick, when was the last military execution per the Uniform Code of Military Justice?

If you answered 1961, you’d be correct. John A. Bennett was sentenced to death for premeditated murder and rape in 1955 and hanged in 1961.

Since then, several individuals sat on death row. Most recently in 2008, President George W. Bush approved the execution of Ronald Gray, and a date was set to visit Terre Haute later that year. A federal court stayed the execution to allow for more appeals, and no date has been set since. He was sentenced in 1988.

So, consider that Gray has been on death row for 23 years. Consider also that Hasan’s case will be complex, with mental issues dominating much of the proceeding (not to mention the damn-near impossible task for finding an impartial jury). Even if sentenced to death, Hasan will likely equal (and probably surpass) the 23 years of Gray’s never-ending appellate process.

Knowing this, go find something constructive to do with your time. Read a book, hang-out with the kids, volunteer in your community, or work a little extra at your job. Stop waiting for the blood-letting. Go make a difference.

For those of you who think the death penalty in this case will do some good, think again. Only two things can come from this. Disappointment and death.

They’s Gots to Be Some Killin’

Tucker Carlson’s misguided comments on national television reverberated a bit across the tubes as of late. In case you didn’t see it, here’s the video (H/T to Chuck Newton):

Execution for dogfighting? I suppose that may be popular in Suffolk County, NY, but I hesitate to think most decent folks would agree.

Why are harsh punishments so popular? Has there yet been a DA candidate who doesn’t run on a platform of “getting tougher on crime.” When candidates for any political office receive questions about crime and criminal justice, they all respond with some flavor of tightening the corset of justice just a bit more. It doesn’t matter the candidate. I guarantee that, if you asked a prospective candidate for Register of Deeds about criminal justice, he’d tell you that his goal is to use his position to make the county get tough on crime.

Have you ever heard of a candidate saying “I think we should take a close look at our criminal statutes and sentencing guidelines to ensure that people are punished appropriately, and not too harshly?” Never. A statement like that gets you the support of the CDL bar, a few civil libertarians and criminologists, and nobody else.

In my lifetime, statutory guidance on sentences (especially minimums) have skyrocketed. We hear about 3 strikes, 2 strikes, criminal recidivism, and the ever-specific-term “evil.”

What is to blame for the creep in harsh sentences? Why do some feel the need to institute the death penalty for intentionally killing a few pit bulls? I’ve got an answer. Movies did it.

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But, What About the Victim?

US Navy 040719-N-2101W-001 USS Kitty Hawk (CV ...

If they can build and maintain this behemoth, wouldn't you think they could get victim advocacy right? Image via Wikipedia

But, what about the victim?

I hear the question all the time when I represent a service member who is charged/convicted of misconduct that involves a human object of the crime. It arises in typical fashion after I advocate particularly hard on some issue involving my client. I must remind the asker that my duty is to represent the interests of my client, and that a multitude of others are charged with holding the tissue box of the (alleged) victim. These others include prosecutors, paralegals, investigators, special agents, and victim advocates. The latter, in particular, are responsible for handling all needs and wants of the alleged victim. Why do they insist upon asking why I’m not chipping-in my support? I have great confidence in the caring abilities of the prosecutorial/victim advocate team.

Perhaps my confidence is misguided or misplaced.

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I’ve never lost. Ever.

If another person asks me if I’ve ever lost a case, I’ll vomit. For extra effect, I’ll eat a chicken pot pie beforehand.

My response to this question is the same every time. “What do you mean by ‘lost’?”

For that matter, what do you mean when you say “win?”

News flash, folks. There is no such thing as a win or loss at a criminal trial. There are better results than others, depending on your perspective, but there is no such thing as a win or a loss.

Every now and then, someone will ask me “Have you ever heard of <attorney>? He never lost a case!” (Usually, he also has a book for sale on Amazon.) It makes me cringe. What does that mean? Who was keeping stats? Where is the list of cases and results? Did he also find ancient gold plates buried near Palmyra, NY? Is the Guinness Book involved?

Perhaps I’m bitter. After all, I’ve gotten my ass kicked in the courtroom. Maybe I’m just one of those brats who is bitter and envious of the gifted kids in the classroom. You know, the ones already reading Harry Potter while I’m still stuck on The Adventures of Tip and Zip. However, I think it actually stems from my holistic view of criminal procedure.

Pretend that you are a prosecutor, and assume you secure a conviction along with a life sentence. Is that a win? No. There is still a victim (or victims) whose lives have been changed irrevocably, not to mention the money spent by the state for prosecution, the time and opportunity cost for the oodles of people supporting and displaced by the entire affair, and the discomfort shared by all. You didn’t win. You merely mitigated the overall suffering of everyone involved, all in order to get a label for the person convicted and possibly eliminate them from the free human inventory for a period of time. Suffering still abounds. You merely mitigated it, a bit.  How is that a win? It’s not. It’s merely a more desirable result.

Now pretend that you are a defense attorney, and your client is found not guilty. Is that a win? Still, no. Your client just got shoved through the proverbial meatgrinder. For the last few months (or years), they laid awake at night wondering if they would lose their freedom and good name. They spent money, lived with the stigma of being the guy/gal being prosecuted for X, wondered how to ease the effects on their children, debated how to make ends meet after possible conviction, and suffered unbelievable stress. Their lives will never be the same, and they can only hope to regain their prior “normal life.” You merely got them the best possible result. When you aggregate the suffering and discomfort, it’s impossible to find the word “win.”

Looking at my career in an honest and realistic way, I can say two things:

  1. Have I obtained some good results for clients? Sure.
  2. Have I had my ass handed to me on a silver platter? You bet. (Oh no, I just ruined my online brand. Please mourn my loss. Social media gurus everywhere are cringing.)

But, when I use the fuzzy math applied by some, I suppose I’ve never lost, too. Go me.

Even with the strange calculus, one other thing rings true: I’ve also never won.

Alas, some folks are desperate to be winners. After all, they’ve never been losers. When they played sports, everyone got a trophy and pizza party. Regardless of the physical outcome of the race, everyone did wonderfully and gets a ribbon. Nobody kept score. At worst, everything ends in a tie. Our schools provide for “no child left behind” which also necessitates that no child will be allowed significantly ahead. It’s not until they are adults that they are told of their shortcomings. For many, the fall after being knocked from the Winner Pedestal is too much to bear. They look to shift blame. Life is unfair. They can’t do that to me. They are prejudiced against me. This isn’t possible, I’ve never lost!

Check out what one of my heroes, George Carlin, had to say about our dedication to winning. As always, he says it best.

So, for those of my peers who insist upon touting their win/loss record, I’ve been appointed by the rest of the group to tell you something.

Shut the hell up and get back to work.

Azimuth Check, Oct. 14, 2010

Time for another potpourri of things that pique my interest. Here are a hat-trick of things in my head–from the Hasan Trial to stumbling drunk through NYC.

Hasan, A Lesson in Being Careful, Very Careful

This picture is more exciting than the Article 32. Trust me.

It’s starting! Major Nidal Hasan faces the eagerly-anticipated Article 32 hearing. Please wake me when its over.

According to USA Today, it is anticipated to last up to 6 weeks. Be mindful that the Article 32 is an investigation. The hearing is merely a piece of the process. Essentially, the Colonel presiding over the Article 32 “investigates” the matter completely to determine whether reasonable grounds exist to move forward to a court-martial. This will be long, excruciatingly thorough, and anticlimactic.

Most Article 32 hearings last one day. This will be different because the death penalty is in play. Parties on all sides will show an amazing degree of care.

When the Army is careful about things, they go all-out. As an example, consider mowing a lawn. When you mow your lawn, you probably wear a t-shirt, shorts, and old shoes. Now, go to Ft. Leonard Wood and observe basic trainees mowing a lawn. They are forced to wear full Army Combat Uniform, hearing protection, eye protection, gloves, camelbak for hydration, a helmet, and even an occasional flak vest. For all I know, they may even wear a condom–just to be extra safe.

Update: As I wrote this, I read that Hasan’s attorneys requested a one month continuance. They may return this week to discuss their need for a delay. Ah, the excitement.

I can hardly contain myself.

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Azimuth Check, October 4, 2010

Liquid filled lensatic compass

Ah, the trusty old lensatic compass. I swore by one of these for years, and I still do. It's useful, literally and figuratively. Image via Wikipedia

What is an azimuth check?

When someone is navigating unknown territory using a compass, they often will check the it to make sure that they are going in the correct direction (the correct azimuth). That is an azimuth check, and it is something I did frequently (and literally) as an Infantryman while on patrol. Since leaving that life, I find myself continuing to do so on a figurative level as I navigate various paths in life.

Is it a bit cheesy? Perhaps. Is it appropriate for a weekly potpourri post? Sure.

One Video, 2 Issues

I found this video completely by accident while perusing news about the Ft. Lewis soldiers accused of murder while in Afghanistan. When I began watching it, the first thing that caught my eye was the extremely well-rehearsed and staged interrogation. For years, we CDLs have lamented the fact that interrogations were not videotaped despite the fact that technology made it possible and extremely cheap.

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For you, a special deal. Today only.

reserve enlistment

I do solemnly swear that, if accused of a crime while in the military, I will allow the prosecutors to punish me with minimal effort... Image by Robert Couse-Baker via Flickr

Mark Bennett, at his blog Defending People, recently published a poignant post concerning plea negotiations. Specifically, it addresses the tactic used by prosecutors where, early in the case, they say “We can deal this now for X-years, but tomorrow it goes up.” He compares this tactic with haggling for bangles and bracelets at bazaars in remote overseas vacation spots.

This happens in our military justice system in almost every General Court-Martial prior to the Article 32 Investigation (military grand jury equivalent). I hear it ad nauseum: “If we have to go to a 32, the deal goes up.” The warning does nothing more than piss me off.

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Initial Thoughts about the Hasan Murder Case

I thought I’d post initially on the case of the United States v. Major Nadal Hasan. In the next few months, that case will begin to heat up in the courtroom as well as in the public forums. Before I begin, lets open with a few ground rules on what might become ongoing commentary by me.

First, I will attempt to avoid second-guessing the lawyers assigned to the case. This, of course, is an extremely tall order considering that there will be times when I will remark on various decisions by Major Hasan’s retained and detailed counsel. For instance, today I will discuss the open posture that the retained defense counsel adopted in the case and whether being so open with the case and his representation is advisable at this point. My goal is to never condemn. Rather, I will discuss the pros and cons of various tactical decisions.

Second, I plan to provide commentary on the proceeding itself. The acts giving rise to the court-martial are of no interest to me except that they are the subject matter. I am focused more on the nuts and bolts of criminal representation–not on the fact that murder is horrible and that what happened at Ft. Hood is a tragedy. I acknowledge that. No argument here.

Third, I have been asked several questions about military trial procedure. I intend to use this case to highlight several key parts of the military trial process that may be instructive to those with interest. For instance, what on earth is an Article 32 hearing? Don’t worry, we’ll get to that eventually.

Fourth, I have no inside information. I am not friends with the defense counsel nor am I friends with the prosecutor. I do not know them. Like many of you, I know what I know from reading media sources and the internet. The only thing that separates me from the average Criminal Defense Lawyer (CDL) is my immersion in military law for the last 6+ years. If you are looking here for breaking news, you are looking in the wrong place.

Fifth, I have never tried a death penalty case, and I have no aspirations to do so. These are few and far between in the military. I may occasionally comment on my opinion of the death penalty (I don’t like it). Also, I may analyze the economical feasibility of the death penalty (its really, really expensive). While much of the trial procedure will be similar to any other court-martial, much of it will also be distinct. For instance, the judge in the case will likely be much more liberal in the granting of continuances and other relief for the defense, and there are logical reasons for this. We will, hopefully, have a solid chance to discuss these logical reasons. However, when it comes to the death penalty, I have not “been there, done that.”

So, lets move forward.

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