Prosecuting….the War on Terror?  The Docket deployed.

The big news for Docket Dynasty is that I am headed for Afghanistan.  No I’m not kidding.  Being a prosecutor and crusading against darkness and evil while juggling law school student loans on public servant pay just wasn't challenging enough.  I have therefore remained a member of the Army’s Judge Advocate General’s Corps, known as “JAG” for short.  It really isn't much like the old television show at all, though I believe I may be even more rakishly handsome than David James Elliott.  Yeah, I know…

I hesitated to post this as I don’t always know how to deal with the usual responses which range from “thank you for your service” to “Don’t go, can you get out of it?” (You’re quite welcome and No.).  I’m not doing anything that a half-million other troops haven’t done.  I don’t think myself “special”.  I’m just another guy doing his job…that happens to be in Afghanistan.  This fact will obviously change the character of my posts.  I don’t yet know exactly what I’ll be doing or if I’ll be able to post at all.  I do know that I will very likely be depressingly safe.  Yes, depressingly safe.  You see, I started my Army life as an Infantryman… a steely-eyed killer...a predator seeking America’s enemies…well, okay, I was just a grunt, but grunts are in the fight.  Though still a Soldier, my job now is that of a lawyer.  “Safe” in a combat zone is relative of course, but rather than firing my weapon and taking ground in the war against terror, I shall be reduced to an angry signature on various legal documents.   That stings a little.

From my family’s perspective, what I am most certainly going to be is GONE.  Not here.  Not gone for a minute.  Not gone for the weekend.  Gone.  This is the most difficult part for me.  It is not likely the most difficult for them.  I will have “three hots and a cot” and the camaraderie of a few thousand similarly situated brothers and sisters at arms, all of whom are willing to come to my aid and I theirs should the need arise.  Meanwhile, my lovely bride still has to cook dinner for everyone and get them to sports, music, church and school activities by herself, all while wondering if I’m okay (I will be) and whether I've told her everything ( I haven’t).  Furthermore, as a Reservist’s wife, she won’t have the usual complement of resources readily available to the families of my active-duty brethren.  Though I may covet your prayers, I covet them for my wife and family most.  If you really want to support your Troops, find a way to support their spouses.  If you’re inclined to ask, when she says “we’re fine”, help her anyway.  Nothing allows the Troops to focus on the mission like knowing their families are well taken care of in their absence.  I am learning the humility of need in ways I hope to remember.

Though still at home, the insanity has begun.  I think deploying Reservists are inherently schizophrenic.  The Soldier is ready to go and begin the mission.  The husband/father is already missing everything that hasn't happened yet.  The prosecutor is reluctantly handing off cases for others to work.   If I dwell on it much, my eyes leak.   I’m ready.  Lets get this thing going.   In the meantime, I hope to have the means and opportunity to regale you with what I’m assuming must be “one-of-a-kind” stories from the combat zone.  Here’s to 2014.  I hope it’s the fastest year ever!  

We WON!  It was HORRIBLE!

My audience (meaning, I suspect, both my wife and my mother) notes that it has been TWO MONTHs since I've posted anything.  Time flies.  There is a good reason which I will not address now, but it may well may change the character of Docket Dynasty for a few months.  Who knows, perhaps it will be more interesting!

I wouldn't have thought that trial practice and a high school English class would have much in common, but it it seems they occasionally do.

I have posted before about the purgatory that is Trial.  Murphy is always hard at work ensuring that anything that can go wrong will.   Need to play a video for the jurors?  Did it work two seconds before the jury came back in?  It won't work now.  Have you created a brilliant closing, replete with choreographed video, background music and interpretive dance?  The timing will falter, the music won't play and the dancer will trip.  There is NOTHING in the wide world of sports than can make you sweat like a snafu in the middle of trial.  Competitive swimmers can look relatively dry in comparison.

Having just finished the book "Lord of the Flies", my daughter's English teacher had her students put one of the main characters on trial.  Naturally, my daughter was assigned as the "prosecutor" and worked diligently with her team to make the case.   Her text to me after the trial:

"Dad, we WON....It was horrible.  The copier wouldn't work, so we couldn't get everyone copies and then I dropped the papers and they went everywhere....but we WON!

I know the feeling.

Elvis and the Judge

There are three things known to draw additional attention from a judge I appear in front of regularly.

First:  Lying.  Almost every defendant will be asked if they’re taking any drugs.  It doesn’t matter if they were huffing paint in the janitor’s closet before walking in to court, if they are honest, it won’t be as painful as being discovered in a lie.  If the mom/girlfriend/grandma/buddy they say drove them to the courthouse really is waiting outside in the parking lot, there will be no problems at all after they are introduced to a Deputy.  Get caught lying though, and it’s going to be a rough hearing.

Second:  Drinking and driving.  Obviously it’s bad enough if you’ve done it once, but if you are on probation for such an offense and do it again, it’s going to be a rough hearing. 

Third:  When your momma cries.   If your misdeeds bring your mother to tears, it’s going to be a rough hearing.  The poor kid today didn’t see it coming.  He thought it was going to be a quick plea.  It wasn’t the crime of the century, but he was young and dumb and had done some pretty young and dumb things…enough to merit criminal charges.  His parents drove him to court and sat in the gallery watching their teen deal with the consequences of his actions.  The judge was administering an admirable “judicial counseling”.  Then it happened.  His mom did what mom’s do.  She cried.  The judge noticed.  He then invited the parents to the podium, and pointed out the tears.  “You’ve made your momma cry!  Are you proud of that?”  “No, sir” was the strangled reply. 

I’m not sure if the judge is an Elvis fan or not, but whether musician or jurist, the principle is the same.  It’s bad news when momma cries. 

Apparently no stranger to the experience, the judge continued:  “I made MY momma cry once.  Once, and I’ve never forgotten it.  Am I ever going to see you in this courtroom again?  Are you going to put your momma through this again?”  “No, sir.”  The emotion had clearly burned through the bravado.

In that moment, I think he was telling the truth.  I hope he was.  For his momma’s sake.

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.