You know you're getting old when . . .

You know you are getting old when you are pulled over by a sheriff and told you are driving too slow. Yup. We were out on a beautiful Saturday afternoon and I came to a four way stop at an intersection. I had made a wrong turn so I didn't really know which way I wanted to go. I made a left and the sheriff pulled in behind me. The road turned into the on-ramp for Highway 2, a two-lane state highway. All of a sudden, the sheriff had his lights on. When he came to the window, he asked me if I knew why he had pulled me over. I had to admit, I had no idea. He then told me that I was creating a hazard because I had not accelerated fast enough onto the highway, and to make things worse, I had changed lanes (to the slow lane.) It was only after he asked me the next question that I understood that his stop had been a pretext. He asked: Have you been smoking marijuana today? I was thinking, do you know I work at a prosecutor's office and my fiancee is an attorney and we were out birdwatching and having a picnic! He said he smelled a "faint wiff" of marijuana. Really? In your imagination? Because I have a beard and S was wearing a bandanna, we were profiled as stoners.

While I understand what wend through his mind: they are driving slow and look like a couple who might smoke pot, as a prosecutor, it pisses me off when cops do things they are not supposed to do. What if I did have a trunk full of weed? A good attorney could have shown that his stop was pre-textual. Since when is it illegal to drive carefully?

We were just waiting for him to pull us out of the car and ask to search the vehicle. He stopped just short of crossing the line and let us go on our way. I guess he was hoping we would just confess, which a lot of people do. The people who could best take advantage of the fifth amendment really don't understand it. Just watch an episode of COPS and you can see that.

So, because I was able to keep my mouth shut and not make any smart-mouthed comment to the officer (which is a way you can get an officer looking for something, anything to cit you with) we were let off, but S has not stopped giving me a hard time for driving like an old man.

Back from Break

Just when I was beginning to enjoy school, I had to go work full time for a week during spring break. Now doing homework again seems dreary and uninspired. Now I am counting weeks until school is over, even if it means the bar exam is on the other side of graduation. When I am at work, I feel like I have a purpose. At school, I just feel there is a lot to do that just has to get done, and while the larger purpose of getting a law degree is at the forefront of my motivation right now, I know that as soon as I have it it will be pretty meaningless unless I have some work that gives me a purpose for using it.

One thing that is becoming clearer to me is that I really enjoy doing criminal law. It doesn't surprise me that the worst grade I have received so far in law school was in my criminal law class. The worst grade I received in all of high school was in German and I ended up with a Masters degree in German Literature. There seems to be some sort of pattern there. Now I just have to find a job that will pay the bills.

Funny Law

I am doing some research on what kind of implied consent warnings police officers are required to give to a person arrested for a DUI before the drunk driver submits to a breathalyser test. Basically, the law does not require that you be smart in making your decision, just that you have an opportunity to choose between taking the test and refusing. In fact, consciousness is the minimum requirement for determining your capability to reason. This is what the law says:

While the implied consent law requires that a motor vehicle operator suspected of being intoxicated be given an opportunity to make an intelligent choice as to taking or refusing a chemical test of his breath, there is no requirement as to such a person's capability of reasoning, so long as he is conscious. State Dept. of Motor Vehicles v. Riba (1974) 10 Wash.App. 857, 520 P.2d 942.

I thought that was pretty funny, and it is good for my argument.

"BA"

One of the most fun and amusing moments that I have had in court came last week. While in jail court, we had a stipulated bench trial that centered around one issue: does mooning a police officer after you have been arrested for DUI constitute lewd conduct. I had to keep a straight face as I argued that it is possible to have one's genitals exposed while mooning, because showing one's behind is not enough to constitute lewd conduct. After court, the judge and I continued the conversation and he thinks it is possible to moon somebody without exposing one's genitals, but the reason the city lost was because he didn't think that the intent of the lewd conduct ordinance was to punish people for that kind of behavior. He also did not think the officer was offended either. It was one of those fun arguments that I really did not care if I won because the defendant was already pleading guilty to the DUI, and it is exactly the kind of thing that makes me want to continue practicing criminal law.

The rest of my courtroom time this week was not nearly as fun. I did a jury trial on Tuesday on a charge of telephone harassment domestic violence. We had a weak case and he was acquitted, which has had me thinking all week about what I could have done better. I was again reminded how the most important part of a trial is getting your good evidence from your witnesses out in a simple understandable logical manner. Taking direct testimony is very difficult and it is so easy to get all tied up and have it come out in a jumble. It did not help that we had a recanting victim and I was handed the case 30 minutes prior to when I had to get up in front of the jury.

From a pedagogical perspective, it is really better to loose a trial. When I have won, I usually just enjoy the victory and forget about it. Loosing causes you to think about what you could do better. I would feel worse if there was a victim who really was on board; on the other-hand, I loath the fact that somebody gets away with hitting or harassing another person because the victim goes along with the perp's version of events. It kind of left me with a bad taste and I think I have been a bit harsher in plea negotiations this week. I wonder how a prosecutor balances that sense of punishing people for their wrongs and making sure that punishment is imposed fairly and not based on the whims of one's mood. Something to ponder. . .

Crime Strikes Again

When I am asked what my record is at trial, I have to admit that I have one 3 trials but lost 3. 50% does not really look that good, but what that figure does not reflect is the thousands of cases where the defendant plead guilty. Now, some of those people might have had a good defense and just plead guilty because they would rather not spend the weekend in jail or they want to spend the weekend in jail so they can get a warm meal. On the other-hand, the majority of people who are charged of crime are guilty of committing those crimes, such that most of what a prosecutor does is process paperwork for for people to plead guilty. That does not mean that there is not a whole lot of give in take in that game. Lots of people have gotten more time than they had hoped, because I just was not going to buy their excuse for why they were shoplifting with their kids (for example.) On the other-hand, a prosecutor's primary duty is to do justice, so I have gone easy on people who were stealing a ham sandwich because they were hungry.

But that was all really just a preamble to tell you that in my life, crime seems to be winning. Less than a week after my car window was smashed in and my law school study guides were stolen, I went to my car and found my car stereo missing. I can only imagine that the next time I will go out to my car and the whole care will be missing. I don't think it was the same people in the stereo theft as the smash and grab. It was a much more sophisticated job. There was no mess. They were able to get in my locked car, easily remove the stereo without any signs of distress or destruction and closed the car back up the way it was. They even re-locked the doors on the way out. No wires were cut and except for the missing stereo, there was no sign that anyone was in my car (one of the keyholes looks a bit pushed in, which may have been the result of shaved keys jammed in the lock.) The irony is that I had parked my car near the rental office because there is more light there, but the officer who came to investigate told me that I had just given them more light to do their work.

From my conversation with him, these kind of crimes are rampant and growing. Trying to see this all in a positive light, higher crime means more cops, which means more prosecutors, which means maybe there will be a job for me when I get out of school. Then I can get a regular paycheck and a new stereo.

Juries will do strange things

I lost a jury trial case last week. When I explain the facts to you you will wonder how it is possible to loose. A man, in a drug induced state, walks into a 91 year old womans house in the middle of the afternoon while she is taking a nap. He claimed at trial that he doesn't remember doing any of this, but after going into her house, he finds her bathroom, takes out his dentures (meth causes people to loose their teeth) and takes a crap on her toilet. When the 91 year old woman wakes up, she finds him passed out on her toilet with his pants around his knees.

How could he not be found guilty of Criminal Trespass? All I can say is that juries do strange things. When talking with them afterwards, they mentioned that we hadn't proved the case "beyond a shadow of a doubt." I guess we didn't discuss reasonable doubt well enough, but I am positive there was not a single mention of "shadow of a doubt" at trial or in the jury instructions. I guess I need to do a better job of explaining reasonable doubt.

I think the jury system is an amazing system of justice and criminal law gives defendants the benefit of the doubt, but sometimes it feels like it just does not work. That is why civil lawyers are so hesitant to take their cases to trial, and it is a good lesson to learn early on in my career.

Crim Law is Fun

Criminal law is a lot of fun. Before this is taken the wrong way, I am not talking about the horrible things that happen to people by criminals. I am talking about the craft of law practiced in criminal courts as opposed to civil. First, criminal law moves quickly. Civil cases drag on for years and then settle right before the case goes to trial. The state has to bring a defendant to trial withing speedy trial, which means cases don't tend to hang around for years waiting for one side to budge. Secondly, there are a lot of cases. This means that, for better or worse, you are not going to be able to always prepare for everything in every case. You have to fly by the seat of your pants in court. Motions are often done orally without ever filing any paperwork. You have to think quickly and have a good enough grasp on the law that you can make an argument on the fly. That's fun. Civil law is the practice of using the more paper than your opponent in hopes he will run out of money. Finally, the things criminals do is often funny, especially when we are talking about the type of street level crime that I see in misdemeanor court.

Think about the Larry Craig case. That would be fun to bring to trial. The prosecutor should not object to his recent motion to revoke his plea agreement. The prosecutor could set up a model of a public toilet in the classroom and asked Mr. Craig to show his "wide stance" to the jury. The other thing I find ridiculous is that Craig claims in his motion that he was not fully aware of the rights he was waiving. Yes, he did waive his trial rights by mail when he signed the plea agreement and a judge never got to question him about the rights he was waiving. On the other-hand, he is a United States Senator and has taken an oath to uphold the Constitution. If there was ever a person in a position to waive constitutional rights, I think it would be him. From what I can tell, this is a win-win for the prosecutor, and for the Senator, it seems to only continue to make him the subject of nation-wide bathroom humor.

And about him being gay. . .watch this video and tell me what you think:

Only a Fool

The saying that he who represents himself has a fool for a lawyer is certainly true. It seems like the people least capable of representing themselves are the ones who try and get rid of their public defenders. I that if you are paranoid schizophrenic you might be upset that your lawyer is speaking with other lawyers, but that is exactly why you need an attorney. I don't envy the public defenders. It is really nice not to have clients. As a prosecutor, our clients are the citizens of the city, but they do not call or miss their appointments.

what a week. . .

Where do I begin. So much happened this week. I cannot even begin to describe to you all of the new experiences, starting with Monday morning arraignments in a courtroom packed with defendants, attorneys, families, cops, crazy guys in cuffs. I mostly just watch and try to absorb as much as I can. I have not gotten to do much yet. I am restricted from speaking in court until my Rule-9 card is approved by the Bar association (a limited license to practice law.) I have been in court every day. I watched a whole jury trial, sat through lots of motion calenders, have already seen a criminal plead out on Monday and get arraigned again on new charges on Thursday, have been to jail twice, found out the punk-kid who got the not-guilty verdict in our jury trial lives in my apartment complex, and am researching about drug paraphernalia.

And that was just at work. I also had a chance this week to meet, and briefly chat with the governor at a fund raiser I was invited to. Also present were lots of lawyers from the county, city counsel members, the county prosecutor, and other politically involved citizens. After two years of relatively limited assimilation in Seattle, I feel like I am part of a community after only living here for only about a month.

Oh, did I say, I really like criminal law. Now, I know it is only the first week, but I think I am going to really enjoy this work. One of the things I like is that half the time you are still sitting at a desk, but the rest of the time you are standing up in court. I am still a bit intimidated. Things move fast. The judge gets through about sixty cases in just over an hour during a trial call or arraignment. I am definitely not ready to keep all the paperwork together on my own, but they seem to be phasing me in slowly. In fact, I am going to be on vacation next week. So before I can gather more stories from the world of crime, I will be back in Colorado for a week.

As for blogging, I am trying to set up mobile blogging from my cell phone, so look for that in the interim.

New Direction

I start my new internship tomorrow. I am a little nervous. Even though I was not completely happy with the work at my old job, I knew what I was doing, and I felt pretty successful in my work, but starting tomorrow, I am going to be in completely new waters. It is not correct to say that I know nothing of criminal law. I took the required criminal law class; my legal writing II appellate brief dealt with a criminal issue; and, I have been in law school now for two years. Even though I am starting at the beginning again in some ways, I more prepared for legal work now than I did at the beginning of last summer. On the other-hand, this is all speculation now. I will probably be writing here later this week about how I have absolutely no idea what I am doing.

Besides being a little nervous, there are a lot of things I am looking forward to:

1. short commute. I only commuted from Everett to Bellevue for three weeks and that was enough for me. I am trying not to think about the fact that next fall I will still have to go to school. Is there some way I can skip my third year?

2. lots of court time. From what I can tell, I am going to be in court almost every day. We probably won't get any Paris Hiltons in municipal court here, but I am sure there will be plenty of drama. The other prosecutors I have met have lots of stories about defendants (mostly the stupid things they do.) I don't know if it is possible to do this work and not get jaded about crime. One long time prosecutor told me a story about how he saw an old man talking to child on the street one day and he was thinking "child-molester," but when he walked by he heard the child say "ok, grandpa."

3. connections. They tell you at the beginning of law school that you get your jobs from the people you know. That was not the case on the first job I got, but I had a little help on this one (I'll keep my sources secret.) Since I will be interning in Snohomish County/Everett, I am going to get to know other lawyers here, and I hope after I graduate I can get a job near here too. Apropos connections, tomorrow night I get join my girlfriends firm to dinner with the Governor. Our first question for her is going to be why it takes two and one-half hours to get a driver's license in this state. (now you know what I did Saturday)

4. a break from convincing insurance adjusters that $500 in property damage, and a two month delay before an injured individual seeks chiropractic care can still mean a person was severely injured. Anything can happen, but I am just ready to advocate for some different clients.

Feeling Better

I am feeling much better today. I spent Thursday afternoon and most of Friday in bed again and by mid day Friday my fever had broken. I don't have my full energy back, but I no longer feel sick. All this means that I have to face law school again. I was able to get some work done while horizontal, but I am not sure how much actually stuck.



Mostly I read the trial transcript for the appellate brief I have to write in Legal Writing, which was pretty entertaining. It seems like criminal defense attorneys are the only attorneys who are pretty much allowed to blatantly lie in the court. The defendants were charged with methamphetamine manufacturing. Neither took the stand, but during his closing argument, the attorney for one of the defendant's kept going on that there were many other plausible arguments for the chemicals that were found in his small trailer. For example, he was a pack-rat on a mission to clean up the world, which explains why he had a mason jar full of coffee filters testing positive for psudophedrine residue. Also, it is equally as believable that the chemicals found that are normally used in meth production could have been used for cleaning rocks-a legitimate purpose; and my client could be a rock collector! Did the attorney really think the jury was going to buy that argument. I am sure the defendant was sitting in the courtroom and I doubt he looked like your rock collecting type. (come to think of it, isn't rock collecting a thing pot smoking hippies do? That association wouldn't help him though) Those two "other possible stories," which were supposed to raise a reasonable doubt in the jury came along in a string of possible stories, which would only lead me to think as a juror: "this guy is just making this stuff up."



Can you tell I am writing from the State's perspective? The interesting thing about the case, the real case, is that I am pretty sure the guy was cooking meth, but after being convicted by the jury, his conviction was overturned by the appeals court because of bad cops (improper search). This raises a question that we, as a nation and as lawyers, have been struggling with for a long time: why should we allow a criminal to get free just because the cops showed up at his place and entered inappropriately? On the other-hand, I like the idea of cops not being allowed to come into my apartment for no apparent reason. I guess in our constitutional balance we allow some guilty men walk so we don't innocent men are not charged and we can all be more secure in our person and possession.



Well, I better go start doing my research for this rather than just keep blabbing on. Happy weekend y'all.

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Voir Dire, Part I

My lack of posting is not the result of being impaneled on a jury; rather, after loosing two days down at the county courthouse, I have been playing catch-up. I did however get to sit through voir dire (the process through which attorneys and judges choose a jury from a pool of individuals) for two trials, one a murder trial and the other a drug possession trial. More than being a distraction from law school, my two days were very educational. I learned a lot by watching how the attorneys handle the pool of potential jurors, and in addition, I learned a lot about the cross section of my community that was randomly pulled for jury duty. I will try and sum up my observations in the next couple of posts:

First, more people than you would think have been victims of a violent crime. 65 people were called for the first trial, a murder/ robbery case. Around 20 people were released right off the bat because of hardship. Most of those individuals either had trips planned during the next three weeks (or so they said) or were small business people/ commissioned salespeople whose livelihood would be greatly affected by missing three weeks of work. From the 45 or so who remained, at lease five had had a gun pointed to their head at some point in there life. When one juror was asked, she replied "which time. . .I have had a rough life." The attorneys were asking these questions because there was a gun involved in the case. The former cop sitting in front of me described multiple occasion of looking down a barrel, and one tall bearded fellow had been an environmental activist who pissed off some loggers. Several others relayed their experiences in private, but this list only included those involved in gun crimes. There were others who had been kidnapped, beaten, robbed, held for ransom, etc. I must have led a sheltered life. I understand that this supposedly random section of society did not include those who had already found their way out of jury duty, but I think more people than we normally think have been victims of crime.

more to come. . .