Criminally Civil?

Remembering why I chose criminal practice.

There are times when “going private” seems wildly attractive.  This usually corresponds to making another student loan payment or planning another car repair.  Otherwise, I find criminal practice to be exponentially more interesting, collegial, and frankly, fun.  I was again reminded of this just last week.

As I sat in court waiting for the judge to call my case, the public defender and I were treated to a hearing in a hotly contested civil case.  Even after sitting through it, I couldn’t tell you what it was about.  It had something to do with a promissory note worth nearly a million dollars.  The hearing became a bit of a spectacle for all who watched.  This is what I’m sure I heard:

Plaintiff’s  Attorney:  “Your Honor, I filed a Motion that means I win.  Please declare me the winner.  By the way, the Defense has questionable parentage.” 

Defense Attorney:  “Your Honor, we filed a similar motion that proves they are lying and undeserving of any compensation.  I’m sure we can all agree that his sister is easy.”

Plaintiff:  “We were first, having filed on Friday, and my suit is more expensive.”

Defense:  “It was NOT Friday in Australia, they have lied again.  My shoes are nicer.”

Plaintiff:  “I would like a trial date as soon as possible to avoid additional costs and to avoid trampling my vacation to Bali.  My tie cost more than that prosecutor’s suit”

Defense:  We just received the response and need additional time to bill our clients before resolving this out of court.  My tie cost more than the public defender’s entire ensemble.” 

The exchange was so comically spirited that the public defender leaned over to me and commented: 

“Almost makes you feel like you and I are on the same team, doesn’t it?”

Yes.  Yes it does.

Our case was eventually called and his client was sentenced to 8 years in prison. 

For the record, I thought we were both dressed quite nicely.

Trial and Travail

Trial.  It is always a wonderfully bad experience.  Sweet bitterness.  Beautiful torture.  Horrific….well, you get the idea.  Trial is one of those things like High School or Basic Training.  When you’re in it, you can’t wait for it to be over.  When it’s over, you love telling the stories and wouldn't mind being back there again.  I mean it wasn't really THAT bad was it?

A trial is the apex of our judicial process.  It is a modern take on the gladiatorial arena.  We indulge the almost mystical belief that when information is thrown in to the crucible of two adversarial attorneys testing every fact with the fire of passionate advocacy, the truth alone will sit glowing and refined in the ashes of all falsehood.  While there may be no final death blow, lives definitely hang in the balance.  It is not just the defendant, but the victim, the families of both and the friends who love them who will be forever impacted by what happens.

Trial can also be funny.  In jury selection I've had jurors discuss everything from breaking and entering in the Philippines  to having their hot air balloon stolen (in what must have been the sloooowest getaway ever).  In our last trial, counsel ceased being adversaries and became professional colleagues for long enough to swear in the former law clerk now lawyer who’s Bar exam results had just been released… and then resumed waiting for a verdict.  Misplaced exhibits, lawyers getting the flop sweats, technology never working like it did two minutes ago before the jury walked in; all of it adds to the drama that is a trial.

My co-counsel and I had one go our way last week.  It was a tough case, but in the end, the jury did the right thing and convicted.  A trial victory is always a great feeling.  It is perhaps even more so when you think the lawyering might have actually made a difference (likely a rarer occurrence than we lawyers like to think).  Even then it is hard to wax triumphant.  Justice has been served, the victim is safer, and the defendant is headed for a much deserved prison term, but the family is still a wreck, the crime still happened, and all are left to deal with the aftermath as best they can.

Thus are the vagaries of trial.  On to the next one, we go.  The crucible awaits.

Hannah and Montana

(aka Twerking and Shirking)

A judge in Montana sentenced 49 year old high school teacher Stacey Rambold for the rape of his 14 year old student.  You can read the entire story here.  Though sentencing the rapist to 15 years, the judge suspended all but 30 days, meaning that this man will do 30 days in jail for having sex with a 14 year old girl.  The judge explained that the teen girl was "older than her chronological age" and "as much in control of the situation" as the male teacher.

Last week at the VMA awards, Miley Cyrus shocked everyone with her hypersexualized performance.  The entire nation began clucking like chickens, wondering how this could happen to Hannah Montana.  

You might wonder how Miley Cyrus’ performance on a VMA stage could be related to a sentencing case in Montana.  I’m not sure they are, but bear with me.

The case in Montana may seem to be isolated to a remote jurisdiction.  It is not.  I recently had a statutory rape case in which the defense attorney (yeah, yeah…doing her job) repeatedly referred to the 12 year old victim as a “mature minor”.  Even in his apology/explanation, Montana judge G. Todd Baugh reiterated that the victim really was “older than her age” when it came to sexual matters. 

How did we get here?  How is it that the hyper-sexualization of a child has moved from disaster to defense?

The answer in part is culture.  Using the terms loosely, life often imitates art.  Our children are bombarded with programming like the VMA awards.  It’s not just MTV, though they aim products like “16 and Pregnant” and “Teen Mom” squarely at our young people.  Statutory Rape is now commercial rather than criminal.  Lifetime has a series featuring a single mom who turns to escorting (read prostitution), Victoria’s Secret and Viagra advertise during primetime.  We adults then sit casually back and wonder how our fourteen year olds became so sexually mature.  How did they learn to talk like that?  Where did they learn THAT?  I also wonder if the presentation of children in this way doesn’t embolden perverts like Mr. Rambold by allowing them to feel that their desires just really aren’t that out of line.

Against that backdrop, is it any wonder that our young people fall victim to predators telling them that sexual behavior is “normal” for kids their age.  “What is age anyway?” they say, knowing it to be the siren song of every teen convinced of their own maturity.  Make no mistake, the Stacey Rambold’s are out there in our communities.

Statutory rape laws are there for a reason.  There are a lot of “adult” activities that children could do, but aren’t allowed because they don’t yet possess the cognitive or social ability to deal with the consequences.  They can’t drive.  They can’t vote.  They can’t drink alcohol.  They aren’t supposed to see R rated movies alone.  They also can’t consent to sex.  Not because they aren’t equipped, but because they can’t yet process the import of that decision. 

Mr. Rambold’s victim couldn’t.  This “mature minor” tragically chose to take her own life before the case came to trial.

Our job as adults should be more than picking up the pieces.  As adult consumers, we should expect more of the adult producers, agents, actors and marketers when it comes to our young people.  Culture has consequences.  Miley Cyrus (Hannah) isn’t responsible for what happened in Montana…but the culture that gave us primetime twerking might also have contributed to judicial shirking. 

THESE AREN’T MY POSTS

 Anyone associated with law enforcement (and likely emergency medicine) has both heard and said “You just can’t make this stuff up” countless times.  It’s true.  You can’t.  Among the most interesting things I  get to hear are the explanations offered by defendants.  Sometimes they are absolutely true.  Most of the time, they aren’t.  They are always interesting.  These “explanations” often follow a few common themes. . 

  

                Some other dude did it (SODDI)(Saw-dee). Always popular.  Law enforcement has clearly mistaken him for his evil doppelganger, twin brother, or one of the victim’s ex-boyfriends.  “He did what?  Who would do such a thing?  Surely not I” says the defendant.

                I have no idea what you’re talking about.  “Never mind the fact that my hand is wrapped in my now bloody t-shirt and the items stolen during the smash and grab robbery are on my coffee-table, I have never heard anything as outrageous as the crimes you’re now describing to me officer.  Who would do such a thing?”

                Its okay, the victim had it coming. “You see, officer/Judge, he stole a bunch of stuff from me back in college, so I figured it would be okay to break in to his house and steal his Xbox.  Besides this guy is a real (insert alleged expletive) and if I didn’t do it, someone would have done it eventually.

                Finally,  my personal favorite:

                These aren’t my pants.  This usually follows a pat down by officers which yields some item of contraband (i.e. a gun, joint, meth, or baggie of mushrooms.)  This usually involves a wild party or a roommate who is, you know…a criminal.    “As I rose to go to work and pay my taxes like  every other non-criminal, I obviously grabbed someone else’s britches—and can you just believe the crazy stuff they’re in to?  Outrageous.  Tell you what… just keep the pants, and I’ll be happy to walk home without them."

If you want to hear some good stories, just walk to up to your police officer friends and say  “these aren’t my pants.  After your pat down search, you’re gonna hear some good ones. 

Courthouse High

Do you remember that feeling?  The one you had back in High School.  The dance is coming up.  You haven’t asked her out yet, but you’re pretty sure that no one else has either.  You’re not even sure she’s noticed you, but being a man of action you have a plan.  Because you’re in High School, that plan likely involves two bottles of Axe body spray and a detailed wardrobe review…but it just might work.

Welcome to jury selection.  It feels exactly the same, at least for the attorneys.

Should I use product in my hair or is that too pretentious?  What if they don’t like product?  If I do use it, will they think I’m self-absorbed and not like me?  What suit should I wear?  Does the dark one make me look somber or does it make me look like an undertaker?  Will the lighter suit make them think I don’t take this case seriously?  Do I wear the “I’m a conservative prosecutor” tie, or do I go with the flashier “I’m gonna take you all to the SHOW!” tie.  Cologne?  No cologne?  We all know that at some point in the trial, I’m going to get the flop sweats, and maybe the cologne will help cover the scent of fear.  If I wear it, how much is too much?  Is there a sweet spot between “Hi, I’m a middle school boy borrowing my dad’s love mist” and “How YOU doin’ juror number 34?”  Tie bar, or no tie bar.  My watch is silver and my tie bar is gold.  Can I mix those two?  What if they notice?  If they DO notice, what will they think?  Am I gaining weight?  Is that a zit coming on?  Oh sweet heaven, not NOW.  Shoes, oh, the shoes…brown or black?  Do black shoes go with a blue suit?  I don’t think so…but then what about the belt?  Should I eat breakfast?  If I do, I could get gas.  If I don’t, my stomach will make objections in open court.  Is my collar shrinking?

All of these thoughts course through my mind in about a nanosecond on the morning of jury selection.  I’m not sure that any of this makes a difference.  Certainly I shudder to think that a juror’s decision could ever be influenced by my choice of tie.  On the other hand, I think I just caught juror 34 checking me out.  Awww yeah.  I hope my tie said “Guilty”.  

Cats in the Cradle

I’m going to do it again.  I’m going to not be funny.  I know I promised a slightly humorous take on things, but as soon as I said so, things took a turn for the serious.  Today, I have only an observation that leaves me with questions. 

Last week, a cat met an unfortunate end.  You can read about it here.  As it turns out, a wrinkle in Missouri animal abuse laws forecloses any criminal charge against the cat’s owners.  Once word of the cat’s demise got out, it spread like wildfire.  Facebook lit up.  Online petitions acquired over 1200 signatures.  Candlelight vigils were held.  The switchboard was clogged with concerned citizens.  People responded passionately in whatever way they thought best.

During the same week, a man was charged with trafficking for the purpose of sexual exploitation. In the last few weeks, defendants have been charged, pled or been found guilty of rape, statutory rape and child molestation among other things. There is a STILL an unsolved case in which an  infant was put in a plastic shopping sack and left on the side of the road.  No Facebook posts.  No online petition.  No candlelight vigil.  Why?

Don’t get me wrong.  I’m not trying to minimize what was done to this animal.  What is legal and what is right are not always the same thing.  It seemed to me an interesting contrast though.  How is it that the death of a cat elicits a more active, passionate response than the exploitation of our children, or sexual violence? 

Show me what a society finds outrageous, and I can tell you what that society values. 

If you want to get passionate.  If you want to DO something about sexual violence and/or child abuse…give your time, treasure and passion to organizations like this (MOCSA) and this (Synergy Services).

Zimmerman Telegram

I can’t resist.  I just can’t risk being the only human being on the internet that didn’t post about the George Zimmerman verdict.  Trayvon Martin’s death is a tragedy that could have been avoided.  The conviction of George Zimmerman is a tragedy that was avoided. 

The verdict doesn’t mean that Trayvon Martin’s death is acceptable.  It isn’t.  It doesn’t mean that George Zimmerman’s actions that night were okay.  They weren’t.  It doesn’t mean that racial prejudice, profiling and gun violence aren’t real issues to be addressed.  What it means is that the system of justice we created for ourselves worked.  We didn’t get the verdict that the media expected.  We didn’t get a verdict driven by popular opinion.  What we did get is a jury of regular folks doing their best to apply the law to the facts as presented in court.  They did what the rule of law and a free and just society demand; they held emotion in check, ignored the media frenzy, and did something that was likely uncomfortable for all of them.  They honestly admitted that they had reasonable doubt…and they acquitted him.  From what I’ve seen, it was the right call.  I don’t know what happened that night.  Neither do you.  I’ll not second guess other prosecutors, but I’m not sure there was ever a time in this case when reasonable doubt didn’t seem to be an insurmountable legal obstacle…IF a jury applied that standard. 

It’s not supposed to be easy to obtain a conviction and deprive a citizen of their liberty.  In fact, it’s supposed to be hard.  The criminal justice system has the highest legal standard known to the law.  Beyond a reasonable doubt is a tough standard to meet.  Ask any prosecutor.  I have had more than one juror tell me (after the trial) they believed the defendant “did it”, but they just weren’t sure beyond a reasonable doubt (or words to that effect...no one says “reasonable doubt” except lawyers, right?).  Its hard to be upset with that…not impossible, but hard.  Even jurors professing a “hang ‘em high” attitude usually sober up very quickly when the power to actually do so is placed in their hands.  That is as it should be.  It is not a light or easy thing that we are doing in the courthouse. 

I am reminded of a passage in Zechariah 7:9 that often comes to my mind as a prosecutor.  “Administer true justice; show mercy and compassion to one another.  Do not oppress the widow or the fatherless, the alien or the poor.  In your hearts, do not think evil of each other.”  If ever we reach the point of finding ways to convict the accused of “something” just to avoid a riot, discontent or criticism, we will have lost any semblance of true justice.  Fortunately, at least in Sanford, FL, these six women left our justice system alive and well.