Posted on by rjonakait

Snippets

The email from a group that sees itself as a defender of religious liberty stated: “Of all the threats to our constitutional freedoms today, the scheme to stage a Supreme Coup of America’s courts is arguably the most dire. If our judicial system is rigged to favor partisan agendas, religious freedom—and all our fundamental, God-given rights—could be stripped away by a tyrannical majority who holds political power. That’s why right now, Americans must make their voice heard and REJECT this brazen power-grab.”

I wondered about various aspects of this plea including what “our fundamental, God-given rights” are. A benevolent, all-powerful God should give all of humanity a right to a peaceful life; to adequate food and shelter; to free speech; to worhip as you see fit; to a fulfilling education; and to good healthcare. I doubted that such rights were being referred to, but I could not discern what rights were meant. If it meant certain provisions in the U.S. Constitution, it ignored that God did not write the constitution. It was not on tablets given to Moses, but instead came on inked paper from humans, or as we often proudly proclaim, from “We the People.”  What do you believe are God-given rights, and why do you believe that? (For a further discussion of “We the People,” see the posts of July 16, 18, and 20, 2018: Search Results for “”We, the People of the United States”” – AJ’s Dad (ajsdad.blog).

A tag on my oven mitt reads: “Cold water wash . . . Do not bleach . . . Tumble low dry . . . Warm iron . . . 100% cotton . . . Made in China.” What kind of person irons an oven mitt?

“A good man, maybe. But it’s best to shoot him.” Old Russian Proverb. Ben Mezrich, Once Upon a Time in Russia: The Rise of the Oligarchs—A True Story of Ambition, Wealth, Betrayal, and Murder.

Baseball playoffs are taking place. This makes me think of the brother’s recollection of our first television. He was in fifth grade, and the father surprised us in October by bringing home a tiny, black-and-white set. He talked about how much the family would enjoy it, but we thought that his desire to see the World Series was the motive behind the purchase. The brother told me that he tried to catch a cold, which he did, so he could stay home from school and watch October baseball, this when the Series had only day games. The mother told the father that my brother was sick and could not watch the game. The brother reports, “Well, she left for her afternoon work at the grocery store. Of course, dad let me.”

Is this joke now politically incorrect: Did you hear about the hillbilly who passed away and left his estate in trust for his bereaved widow? She can’t touch it until she’s fourteen.

My suggestion for an incremental improvement for gun safety: Make it a crime to carry a gun while intoxicated. Of course, carrying a gun is not the same as using it, but even carrying one while drunk should be prohibited because the decision whether to use a carried firearm should not be made when a person is intoxicated. The consequences should be similar to drunken driving, which, of course, is an offense even if there is no accident, Perhaps a first conviction for carrying a gun while intoxicated would only be a misdemeanor, but just as driving licenses are suspended, the ability to carry a gun should be prohibited for a time after the first conviction. A second conviction would be a felony, and the person could no longer possess guns. . . and might even go to jail.

Posted on by rjonakait

Five Bullets (concluded)

          The victim in the five-bullets case opened his apartment door one afternoon. A man with a revolver fired at him and fled. Police quickly arrested the shooter who was after revenge because the victim had testified in a grand jury against the shooter’s brother about a robbery, and that brother was now in jail.

          The shooter told the police that my client, who lived in the same housing complex as the victim, had given him instructions on where to find the victim. My client told me that he had been out in the building’s yard when the shooter approached him and asked if he knew the victim. My client said yes, and the shooter asked where the victim lived. My client pointed to the building and said on the fifth floor. The shooter departed. My client said that he had never met the shooter before; he did not see the shooter with a gun; and he had no idea what the shooter was going to do.

          If this was true, my client, like the unwitting driver of the bank robber whom I had used as an example when writing about the Texas abortion law, was not an accomplice to the crime. I suspected, however, that there was a bit more to my client’s story than he was telling. He may not have met the shooter before, but the shooter was a well-known bad guy who evoked fear in the neighborhood. My client may have known the shooter by sight and been intimidated by him. Furthermore, my client may have heard the stories circulating about the victim’s testimony against the brother and at least suspected that the shooter’s inquiry was not a friendly one. Even so, however, I thought I could mount a good defense, especially since my client had never been in any trouble with the police, was an earnest student, and worked two part-time jobs to help his single mom and three siblings with family expenses.

          Alas, I was not to hear a jury announce a not-guilty verdict in what I thought was a winning case. When the shooter’s case went to trial, the prosecutors wanted my client’s testimony, and they agreed to give him immunity. It only made sense for him to accept it.

I remember this case for other reasons besides my lost opportunity for a victory. The victim after being shot somehow made it to the phone and called 911. Later, as was routine, I obtained a copy of that recording. I heard his voice reporting that he had been shot multiple times. His voice sounded calm. There were no screams or pleas for help. Just an affectless recitation of what had happened and where he was. He hung up. The recording continued with the 911 operator contacting a squad car. She said what she heard, but she added. “I don’t know. It sounded like a prank. I don’t think it happened. But I guess you have to go and check it out.” And he had five bullets in his body.

The case had yet another memorable wrinkle. Shortly after my client was arrested, a preliminary hearing was held. The victim was in a hospital, so the hearing was held there. He still had five bullets lodged in his body, three of which were in his skull awaiting surgical removal. I did not know how he survived the shooting, something I wondered about when it was my turn to question him. Multiple tubes were running in and out of his body, and it was hard to hear his responses with the numerous medical devices making different sounds. He, of course, did not know what had occurred between the shooter and my client, but in response to my query, he said he had always considered my client to be a friend, buoying my hopes for the trial that never was.

This was not as difficult as another cross-examination I once had, this one in a drug case. My client was charged with selling heroin to an undercover officer. In what was then a standard practice, the arrest was not made immediately after the sale, but weeks later, when the undercover pointed out the supposed seller to other members of his team, who then swooped in to grab the client. There was always the chance for a mistaken ID in these situations, and I won some cases on that ground but usually only if I could rather conclusively prove that my client had not made the sale. For example, I established that one client was sorting mail with many other workers at the main post office at the time of the transaction. Most often, however, these drug sales were tough to defend. The public, including jurors, generally thought that trained officers were unusually adept at making these identifications. However, data indicate that they are no better than the rest of us, and study after study have documented that mistaken identifications are one of the chief causes of wrongful convictions. My client, a street person, had no solid proof where he was at the time of the sale, and all I could do was to suggest that the undercover could not conclusively ID the seller, a defense that depended on cross-examination of the cop and almost never worked. The difficulty of that task, however, increased because the undercover between the time of the sale and trial had been shot and paralyzed in an incident unrelated to my case. He was wheeled into the courtroom on a hospital gurney with an IV drip in place. Go ahead: You try to cross-examine under these circumstances and show that that cop’s credibility could not be trusted and that there was a reasonable doubt that your client was guilty. I lost, of course. For the sale of two $5 bags of drugs, which he may or may not have done, my client got fifteen years in prison .

Posted on by rjonakait

Five Bullets

          Hypotheticals are the life blood of law school. Students read a case and seek out its “holding,” the reasons underlying the court’s decision. The professor then posits modified facts and asks if the reasoning still applies or whether the decision should now be different. Both as a law student and a professor in a law school I played around with hypotheticals, but while sometimes intellectually intriguing, these were bloodless exercises. Grades might have been affected, but since the litigants were made up, money, property, and freedom were not at stake. However, on occasion in my public defender work what could have been a law school hypothetical appeared, and the resolution of the legal game determined whether someone went to prison.

          Hearsay was the issue on one of those occasions. I will spare you an extensive discussion of hearsay, but its definition is one that almost all students memorize. While it is easy to spout those definitional words, the concept is a difficult one. I would throw hypothetical after hypothetical at the student hoping to sharpen their thinking about what was and was not hearsay. This is an important distinction because the rules of evidence say that juries should not hear hearsay, even though there are dozens of exceptions that permit some hearsay to be heard. But the distinction between hearsay and non-hearsay remains important because if the evidence is not hearsay, the hearsay rule allows it. Thus, I used lots of hypotheticals to teach the hearsay concept, but it often seemed beyond the intellectual abilities of many of my students at a third-tier law school.

There came a time that in addition to the classroom teaching, I was doing an appeal for a public defender. I read the trial transcript, and a hearsay issue was at stake, one that, to my surprise and satisfaction, was almost the same as a stock hypothetical I had used in my evidence classes. I wrote a brief explaining that the disputed evidence was not hearsay and that, therefore, the defendant should have been allowed to have the jury hear it, and a retrial should be ordered.

          The prosecutor’s reply brief was written by a young associate of a prestigious law firm doing what I assumed was mandatory pro bono work. Her high-paying day job signaled that she had gone to a much more highly ranked law school then the one in which I taught. Even so, it was clear that she, too, failed to understand hearsay.

          I was confident when the case came for argument before an array of appellate judges. The issue was not one of interpretation or nuance. This was a classic case of non-hearsay; it should have been admitted. Its exclusion in the trial court caused an unfair trial. The conviction had to be reversed.

          After my introductory comments at the lectern, I firmly said, “This was not hearsay. It should have been admitted. The defendant was denied a fair trial.” And then I was taken aback. The presiding justice said, somewhat sheepishly I thought, “Explain to me again why this isn’t hearsay.” And I thought but did not say. “Oh, shit. She doesn’t understand hearsay either.” This, however, allowed me–for my only time in an appellate argument–to haul out some of my trove of law school hypotheticals, which I hoped I was doing in a non-condescending manner, for there is nothing worse for your case than to appear to be condescending to a judge. I don’t know that I was convincing. It may have simply been that the judge’s clerk had an adequate grasp of the hearsay concept and later educated the judge, but the court’s decision—correctly—ruled for my client, and he was released from prison. But I took credit believing that sometimes, law-school hypotheticals can have real-world consequences.

          An aside: I learned something about handling judges early in my career. My client’s son was charged with a rape. His father, on the advice of a lawyer, had offered the woman money in exchange for her dropping the charges. The lawyer, not the sharpest legal mind, had said that it was just like settling a civil case. The lawyer and the father were arrested for attempted bribery of a witness. The lawyer was being represented by a well-known, highly-regarded criminal defense attorney. He and I both had moved to dismiss charges and submitted briefs with several arguments supporting our position. The judge ridiculed our worked and ticked off how our contentions were unpersuasive. However, he then went on to say that we had ignored an argument, which he articulated. I started to interrupt the judge, planning to say, “But I said exactly that in my brief.” Before I could get started, my distinguished co-counsel grabbed my arm to make me stop and whispered to me, “If he thinks that he thought of it, we will win.” I stopped. We won.

          I have been thinking about that case and another after I recently wrote about a law-school hypothetical on this blog when I posted about the Texas abortion law. (See the three posts of “Let’s Expand the Texas Abortion Law: Search Results for “”Texas abortion”” – AJ’s Dad (ajsdad.blog)) There I explained that a person who drove the robber to the bank was only guilty if the driver knew what the robber had planned. This had me thinking about the five-bullets case where I represented a young man charged with taking part in an attempted murder.

(concluded October 4)