09 February 2013

Jury Nullification


Jury nullification is the pejorative term used by the bench and bar to describe the phenomena of a jury doing what they want to do and ignoring the instructions given to them by the judge. Juries are reminded early in any proceeding that they are required to follow the law. This is a false statement not to be corrected by the attorneys trying the case. Juries sometimes do ignore the law and decide cases contrary to the instructions given them. It doesn't happen often, but occasionally you have a jury that decides they will find someone not guilty in spite of the instructions. A jury can always find a way to explain their decision such as they found the State's witnesses not credible. I've never heard a juror subsequent to a trial say that the state proved its case, but we found him not guilty anyway. Once again it boils down to do what your told to do. That's what life is about, isn't it, doing what your told to do? There is nothing more democratic than a jury; it is democracy in action. It is action by the people. We have a republican form of government. We elect people to represent us who enact the laws that control our behavior. These laws are enacted without direct involvement with the people. There is nothing to determine whether the laws passed are have the approval of the majority of the people; and even though it would be cumbersome and expensive to have a referendum on every legislative proposal prior to its final enactment, it would be interesting. More than likely it would bring more people to the polls. On one occasion I objected to the admonition to the jury that they must follow the law. I did make a record on it and simply stated that the jury can do whatever they want and to tell them otherwise is false and misleading and I should have added, a violation of due process. This objection brought an incredulous response from the judge who had never heard of such a thing and was overruled immediately. But this does raise an important question. Why is it proper to be able to tell a jury something untrue. According to many, the function of the jury is to find the truth; to come to a correct decision. Apparently, if the jury finds the truth they must decide accordingly--at least this is what they are told by the judge. But, they don't have to do that. If they find a criminal statute stupid, they may find the person not guilty simply for that reason. The courts do not want the jury to know what the possible penalties are as well. The fear is that if they did know what a person was facing, they would have a second reason to find the defendant not guilty. This is looked upon in horror by the courts. The result is that though some are found not guilty, the deck is stacked against the defendant. Everything possible is done to provide for a conviction of someone charged with a crime. After all, we need to do what we are told to do.

06 February 2013

Trial Preparation


I trying day in court. A client and I had a conference about the previous trial date which was continued because the client had effectively disappeared. Telephone calls were not returned. Letters requesting contact had no response. The subpoena sent for signature and return had disappeared into the nether. The trial was continued, but wouldn't you know it the client shows up at the designated time for it. In reply to the statement that might it not be a bad idea to prepare for the trial, the response is a blank stare. A trial to some is merely something you show up for; it is just another event in the life of the defendant. It does not occur to the defendant that preparation is involved. It doesn't occur to him for the reason that preparation is a notion that has no meaning to him-it is unfamiliar, unknown, and incomprehensible. He has never been asked to prepare or if asked, has ignored the request. Preparation takes planning, time, and effort. Time the defendants, you would think, have plenty of, but don't. Planning is not something that occurs to them. Future is a foreign concept. To visualize the future would cause angst. The future can be articulated without visualization. Such as "I'm going to get my GED and a job." This is a statement one hears regularly from those who have heard it from someone else who has indicated it is a good thing to tell people, especially judges. The statement has no significance other than to have something to say that might sound good. To translate the words into action is actually not contemplated-there is no understanding that such activities take some thought. What this is leading to is that defendants do not understand trials need preparation which in turn necessitates forethought, planning, time, and effort. So, to there mind they merely are required to show up on the date of the trial, presumably sit around for most of the day, and then go back to the business at hand which is usually hanging out with their friends and getting high on whatever substance happens to be available on that particular day. Its not that they don't think there is no preparation involved, they just don't think about it at all. Its just a blank-an empty space, a void, a nullity. And since the defendant will not speak with his attorney, he can not be informed otherwise. All very aggravating; the worst part being we get paid crap to do this.

05 February 2013

Federal Fear


Simple observation leads one to believe that the federal government is afraid of the public its purpose to serve. One can not enter a federal building without disrobing; required to empty pockets, take off shoes and belt, screen anything being carried. The federal buildings, most especially the federal courthouses, have become mausoleums. No one goes to the courthouse for the simple reason they are not welcome. Those working in the courthouse and other federal buildings spend their days without public contact. I am speaking most specifically about the federal courthouses. One is asked his or her business, is required to show an identification, and is looked upon with suspicion and sometimes downright hostility. One can only conclude from this behavior that the federal government is afraid of us. I include myself in this as I am a part of the public. Even though I am a member of the court, admitted to practice before it, I must undergo the same scrutiny as the general public. It makes no difference that the people guarding the gate know who I am-a practicing attorney with business in the building-I must empty my pockets, show an ID, and at times take off my shoes. One can blame the United States Marshall Service for some of this, but presumably they take direction from someone. The U. S. Marshall Service is in charge of security at the United States Courthouses. They take their job very seriously. I have actually never seen a U. S. Marshall smile. The people who are not required to undergo this scrutiny are law enforcement, prosecutors, and judges. It is not possible to be one of the elect and not come to the conclusion that they are exempt from suspicion; that they must be protected at all cost; and, the rest of us may cause them some harm. This is not a good situation. Courthouses should be open to the public; the public needs to know what goes on behind these gated communities. The activities of the federal courthouses have in essence become secret and mysterious. People go in and disappear for years at a time without anyone knowing or understanding what has happened to them. There is a difference in behavior between a judge sentencing a man to 20 years in prison for cooking up some meth to an empty courtroom to a judge in a courtroom with people sitting and watching and judging for themselves what our criminal justice system is doing to our citizens. Fear is frightening. When someone fears you, it gives them motivation to harm you. We should be afraid of our federal government for the simple reason they are afraid of us. And the federal government is not alone. You will note that most modern police stations and sheriff offices and law enforcement agencies of the federal government have secured doors and entrances. You must buzz to get in so that you can be asked your business. Rather than "Hi, can I help you?" you get a "What do you want?". They are the one's with the guns. What are they afraid of? None of this is good. It speaks to where we are as a society; where we are required to be frightened of our fellow citizens. Yes, there are those unstable and deranged personalities out there that may harm you, but I maintain you can't let it affect you in the way that it has. If a person is that afraid of his or her personal safety, then a different job may be in order. Unfortunately, it appears that fear has been institutionalized; that it is a requirement of the job as law enforcement or working for the government in other capacities. It simply isn't healthy to treat the general public in this fashion. Random violence will occur and you can not protect yourself from it without losing some of your own humanity.

04 February 2013

Lying on the Stand


There is a new article and blogs concerning lying cops. Not all cops lie when they testify; some do. Some cops testify in such a manner that it helps make the case for the prosecution; shading testimony, emphasizing one fact over another are not necessarily considered lying, but they do come close sometimes. The question posed is why cops lie. This is not a difficult question to answer. If one comes to the understanding that much of the criminal law as presently on the books and the people hired to enforce it, is for the purpose of controlling the citizenry, then the answer is self-evident. Whether the defendant actually did the crime is irrelevant; a meaningless fact. The concern is a well-regulated society; a society in which the citizens think what they are given to think and act in accordance with the rules promulgated. The cops are given more discretion annually. A major legislative feat enhancing the power of the police has been the enactment of the child endangerment crimes. Child endangerment is whatever the cops say it is; it may be a single persons view of the proper care and maintenance of a child. When a person is charged with child endangerment for having marijuana in the house, the cop making the charge has simply determined, on his own, without any basis in fact, that if the person is breaking the law by smoking marijuana, he or she shouldn't be a parent. Cops know best; their view of the world is the correct one; one that has been set in print and placed in the books as the law. After all, they are paid to enforce the law and they are going to do it come what may. So when it comes to sitting on the stand at a trial where the defendant has had the audacity to deny the charge and tell the prosecutor to prove it, it becomes a direct challenge to the cop who filed the charge. The cop certainly wants vindication-to be validated; it is not a badge of honor to have his case thrown out of court nor to have a jury find the defendant not guilty. There you have it--why cops lie on the stand.

01 February 2013

No Probation for Me


Speaking to a client regarding disposition of his case, a client on probation but with new charges, the sentiment was expressed that he would rather do his time than have a probation officer up his ass. I found this expression of disdain refreshing in a criminal defendant. Most defendants beg for probation, some of whom have no hope of ever completing it successfully, to "get on track" or "to get my life back together". The fact of the matter is that if you are incapable of dealing with the world without being placed in jail, it is very unlikely that you will be able to cope with probation. Dealing with the world, i.e., functioning in a manner which allows them to live what we call a normal life is beyond the capability of these defendants. If the normal day-to-day activities are such that one has no job, no money, and friends just like them, probation will be merely a fanciful ideal of the judge who placed them on it. The goal, of course, is to make each individual a productive and responsible member of society. Just as some people are tall and some short, some people are lean and some fat, some people are functional and others are dysfunctional. No amount of counseling, therapy, classes, or supervision will change this fact. Now, granted, dysfunctional people can be annoying; they interfere with what little pleasure the rest of us can find in out daily activities. We, us normal people, have this unconscious attitude that others do not have the right to be annoying; it is not a constitutionally protected right. We have further unconsciously decided, meaning without thought, that something must be done to make annoying people unannoying. To this end, we have established a vast array of so-called services for the purpose of doing just this. To make these services serviceable we have put the power of the state behind them. The courts order dysfunctional people to become functionable through therapy. When this fails they go to prison. Prison or jail is where we put annoying people. Public intoxication, disturbance of the peace, trespass all are activities considered annoying. Those engaging in these activities must learn not to do them so that the general public will not be inconvenienced in any way. We did finally decide that vagrancy would not be a crime, but do not despair, vagrants can be charged with something. I think we should just be honest about what we are doing; let's call it what it is and not make up names for things. George Orwell, some years ago, pointed to the use of language as a method of control. He was correct of course. Most of us use language, not to communicate, but to dissimulate. Dissimulation is a form of control; in fact, one might say that it is the basis of control. Very few people communicate, think about what they say or hear, and those in charge understand this very well. If we, as the general public, actually gave thought to what people say, it would be a different world from what it has turned out to be.