Drunk & Disorderly

On the Docket of a Colorado Criminal Defense Attorney

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Not So Black and White

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[Guest Blogger Lauren Witte is associate director of client services for the drug crime defense firm Jackson White in Mesa, Arizona. She writes with a particular courage from the battleground of Maricopa County, whose notorious Sheriff Joe Arpaio likes to dress his inmates in pink panties, just so long as they're men. I heard somewhere Joe favors the underdrawers because Mrs. Arpaio forbids that kind of thing around home.]

What is the Status of The War on Drugs?

In 1971, U.S. President Richard Nixon declared a war on drugs, and law enforcement and prosecutors across the country began aggressively enforcing and punishing low-level drug crimes, particularly in neighborhoods of poor minorities. Since Nixon’s declaration, the prison population in the United States has risen by 700%.

According to Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, there were more African-American men in prison or “under the watch” of the justice system in 2011 than were enslaved in the U.S. in 1850. That is a shocking statistic, to say the least.

System of Racial and Social Control

Alexander explains, “…our criminal justice system now functions more like a system of racial and social control, than a system of crime prevention or control.” Though African-Americans reportedly make up only 12% of drug users in the U.S., 34% of those arrested for drug offenses in this country are black.

Who uses drugs more?

A study given by the National Institute on Drug Abuse shows that white students are using cocaine and heroin at a rate seven times higher than their African-American counterparts, and crack at a rate eight times higher.

Filmmaker Eugene Jarecki reminds us of the common preconception that crack is a ‘black’ drug while cocaine is a ‘white’ one. This is not the case, says Jarecki. “The majority of crack users in the United States of America are and always have been white.”

Nonetheless, 80% of those sentenced under federal crack cocaine laws were African-Americans. According to the Sentencing Project, black Americans currently have a 20% higher chance of going to prison for a drug offense than whites, with Hispanics having a 40% higher chance.

Obama and the War on Drugs

Though Obama has been a vocal critic of our nation’s incarceration discrepancies between blacks and white for drug crimes, his administration continues to vilify even the most minor drug offenses.

In a report released in July of this year, officials from the Obama administration promised “to use evidence-based practices to combat drug abuse” in the United States. The report encouraged public education and health programs, better reentry programs, and more compassionate messaging, rather than increased prosecution.

If government officials really want to come off as more compassionate towards drug users, they have a long way to go. Who can forget the national ad campaign featuring erratic and horrific behavior with the tagline, “This is your brain on drugs”?

Marijuana vs. Other Drugs

Perhaps the most alarming hypocrisy by the Obama administration is the refusal by the head of the Drug Enforcement Administration to label marijuana as a less harmful drug than heroin, cocaine, or meth.

As opposed to meth, cocaine, and heroin, which contribute to thousands of deaths in this country every year, not a single person has ever fatally overdosed from marijuana.

Prohibition vs. Legalization

While Obama claims he is working to decriminalize drug addiction and label it instead as a disease, it’s pretty tough to decriminalize something that is, by definition, a crime. Violence related to drug prohibition causes thousands of deaths every year in the United States, not to mention those murdered in supplier nations like Afghanistan, Colombia, and Mexico.

Instead of moving towards more lenient penalties for low-level drug offenses, prosecutors in the U.S. continue to arrest and imprison, taking more workers from the economy and breaking up more families. Additionally, those arrested find it much harder to find employment with a criminal record.

Widespread legalization of every drug probably isn’t the answer, but working to decrease penalties and prison or jail sentences for minor drug offenses will point us in the right direction.

The First Step

So, before we can truly mend our nation’s trend of arresting and incarcerating countless men and women of color for minor drug offenses, we must first work to de-stigmatize minor drug use in this country.

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Black Is the New Orange

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

We’ve always been a little backward in this country concerning women behind bars, and the violent things done to many of them, mostly by men, that sometimes help put them there.

October 2014, by presidential proclamation, is National Domestic Violence Awareness Month. For many criminal defense lawyers, that’s every month. I’ve defended men who have beaten women, women who have beaten men, and men and women who have beaten no one. In many cases, prosecutors don’t know the difference, and don’t want to. They like to say, we treat everyone the same. But everyone is not the same. Everyone has his or her own story. Prosecutors, many of them, don’t want to hear these stories. They don’t have time for them. Their job isn’t to take the time, it’s to give the time. Jail time.

How did we get here?

This year, it’s because it’s the twentieth anniversary of a stunning act of the United States Congress — stunning in that it needed to be enacted at all — the Violence Against Women Act.

Before VAWA:

  • A man could say, she slept with half the football team; I almost made the squad, so why not me.
  • A woman would have to pay for her own rape exam, or forfeit the evidence.
  • She’d have to pay for service of a protection order against her rapist, or be forced to chat politely should he visit again.
  • Protection orders could be ignored.
  • Police might not even respond to crisis calls involving spouses, much less make an arrest.
  • It was considered less serious to rape your wife or date than to rape a stranger.
  • Stalking was a male pastime, especially at work, where the pickings were plentiful. Mad Men, anyone?

After VAWA:

  • More than 200,000 women are wearing the orange.
  • More than one million are on probation and parole.
  • Of these two groups of women, more than one million have been domestically and/or sexually abused.

Let’s get out there and celebrate.

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Judge Not, Lest Ye Be…a Judge

Texas Supreme Court Justice Don Willett (Self-Portrait)

Texas Supreme Court Justice Don Willett (Self-Portrait)

 

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

The other day the American Bar Association Journal asked a very important judicial question: Is it unseemly that a Texas justice is a big Tweeter? I don’t think they were using a euphemism for something else, and I don’t think they were implying a Texas justice is any less qualified to be a big Tweeter. I hope not, anyway: my mother was from Texas.

What the Journal means is that Texas Supreme Court Justice Don Willett is approaching his thirteen thousandth Tweet on Twitter. Now I haven’t figured Twitter out, but I always thought it was for famous folk and their fans, for the kind of people who used to sell Ginsu knives on TV, for people who like to report just how many minutes they flossed their teeth today, for people who are just too damn sick of staring at the floor. For people who take a more, shall I say, casual approach to life.

But then Justice Willett is a casual kind of justice: he used to play a little backstick on the drums and ride the rodeo bulls — but, as it turns out, never at the same time. What kind of Supreme Court Justice calls himself “Don” instead of “Donald,” anyway? (Though, there is also a “Phil” and a “Jeff” on that court.)

Can you imagine anyone telling Antonin Scalia, “Hey Tony, would ya shut up a minute and let me talk?” Or “Clare, ya knucklehead, would you ask a question already?”

I can’t agree with that New York City law professor who thinks judges ought to be demure, that it’s the price they pay for being a judge.

I like a comfortable judge, a judge who lives it large.

Here are some of Justice Willett’s (I already can’t stop thinking of him as “Donny”) latest Tweets:

 

God. Got. Game.

God. Got. Game.

 

YESTERDAY—I’m featured in @nytimes Opinion page.

TODAY—NYT says it’s shutting down its Opinion mobile app.

My work here is done.

 

RT if you share my dream of hiring Matthew @mcconaughey as #SCOTX bailiff just so he’ll open court with, “All rise! All rise! All rise!”

 

Small victories.

Small victories.

 

Happy b'day to Thomas Jefferson — who at age 33 wrote the greatest break-up letter of all time.

Happy b’day to Thomas Jefferson — who at age 33 wrote the greatest break-up letter of all time.

 

And my personal favorite:

I like big bundts & I cannot lie.

I like big bundts & I cannot lie.

 

As for the ABA Journal’s question about whether all this is unseemly for a judge?

Donny’s own answer:

I’m going with “No.”

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Letter from Canada

Rush to Judgment

Rush to Judgment

[This article was originally published by the Ontario Bar Association Criminal Justice Section, www.oba.org/Sections/Criminal-Justice. The authors are Canadian advocates Frank Addario and Sarah Rankin, a law school graduate who under the Canadian system is serving an apprenticeship year with his firm. She is set to clerk at the Alberta Court of Appeal. Frank is Best Lawyers International's 2015 Toronto Criminal Defence Lawyer of the Year. Read on and you'll see why. He has argued before the Ontario Court of Appeals and the Supreme Court of Canada. He is a director of the Canadian Civil Liberties Association.]

DID OSCAR PISTORIUS GET A FAIR TRIAL?

Olympic Athlete Oscar Pistorius shot and killed his girlfriend, Reeva Steenkamp. His sensational trial was destined to be controversial. But, marred by prosecutorial misconduct the trial was a study in lawyer theatrics instead of dignified advocacy. The culprit was South Africa’s famous “Pit Bull”, Gerrie Nel.

Nel’s approach to his job was jarring because it was so at odds with the Canadian legal tradition. Nel repeatedly signaled he was invested in a conviction, a posture incompatible with the Canadian legal rule that the Crown Prosecutor never wins or loses.

Nel lectured as much as he questioned. “You killed Reeva Steenkamp,” he began. “Say it” (details). Nel insulted Pistorius and repeatedly editorialized about Pistorius’ evidence. He screened footage of Pistorius shooting at watermelons with friends, then badgered Pistorius to look at a photograph of Steenkamp’s wounded head and compared her injuries to the exploded fruit. [Note from moderator: do not click on this link unless you've tried a murder case, or want to.]

Pistorius at times vomited and wept in response. While Canadian law assumes this type of conduct is unfair, Pistorius’ trial judge took careful notes during Nel’s performance. “You will blame anybody but yourself,” Nel lectured Pistorius. “You are lying. You just refuse to take responsibility for anything.” Nel’s contempt for Pistorius was palpable as he laughed at Pistorius’s answers.

This approach to lawyering would be out of bounds for a Canadian prosecutor. While entitled to be energetic advocates, the Crown may not pursue a conviction at any cost. The system is adversarial, not antagonistic.  Canadian prosecutors are trained that they are ministers of justice duty-bound to approach their role with integrity and fairness. That duty imposes many obligations on the Crown, including a legal obligation not to cross-examine the accused in a way that is contemptuous or sarcastic.

In the rare case where a Canadian Crown loses sight of this duty and pursues a case with more partisan enthusiasm than the law allows,appellate courts routinely reverse the conviction. The intentional humiliation of a defendant destroys the appearance of trial fairness (R. v. R(AJ), [1994] OJ No. 2309). Our courts have reversed seemingly solid convictions for far less insulting prosecutorial questioning than Nel’s (R. v. Robinson (2001), 53 OR (3d) 448 (CA), R. v. Provencher, [1956] SCR 95). They have also overturned convictions where the Crown effectively gave evidence or stated opinions about the defendant’s story, evidence or lifestyle – all of which Nel did while cross-examining Pistorius.

Even in the United States, where a certain wild-west ethic is allowed in the courtroom, Nel’s approach would have crossed the line.

While a point of pride for many South Africans (details and more details). Nel’s cross-examination was no advocacy achievement. Real trial lawyers know it is easy to humiliate a witness. It is much tougher to be fair while dissecting the witness’ evidence.

The facts could have done the talking in the case against Oscar Pistorius.

Nel had a compelling case for deliberate murder: a shooting without an apparent attempt to check first for the deceased by a defendant skilled with guns, extrinsic evidence of a heated argument just before the shooting and a defendant known for his temper (details and more details). Pistorius’ story had problems. But Nel committed the cardinal error of overzealous lawyers: he abandoned objectivity. He pursued Pistorius as if he had a personal stake in the outcome.

A criminal prosecution is not a street brawl. The community commits to a fair trial in exchange for the right to take away the citizen’s liberty.  A key feature of those fair trials is an independent-thinking, fair prosecutor.  Inquiries into wrongful convictions show that “tunnel vision” affects prosecutors who become fixated on “besting” a defendant, abandoning independence and objectivity (see Morin Inquiry and Marshall Inquiry). All lawyers in a criminal case must be fair to witnesses but the prosecutor’s duty is part of the constitutional right to a fair trial in Canada (see also R v Prokofiew and R v Noble). The American Bar Association’s rules impose similar obligations on American prosecutors (details). While Crown and defence counsel are entitled to be zealous advocates, the model is asymmetrical: the Crown must also be a minister of justice in the courtroom. The “win at all costs” mentality is foreign to Canadian Crown counsel.

The obligation of the prosecutor to behave fairly is especially engaged when he or she is cross-examining a defendant. Deliberately humiliating or laughing at a witness is atrocious behaviour – especially when, as Pistorius reminded Nel, the witness is on trial for his life.

As he cross-examined Pistorius, Nel offered his opinion on Pistorius’ evidence and his choices. Under Canadian law he would be flirting with a mistrial. Canadian appeal courts overturn convictions even for serious offences when the Crown crosses this line. In R. v. L.(L.), the Ontario Court of Appeal reversed a conviction because the Crown repeatedly demeaned defence witnesses, expressed his opinion that the defendant was guilty and editorialized about the defendant’s evidence. In R. v. D.M.B, the same Court overturned a conviction for sexual offences partially because the Crown’s closing address was filled with personal opinion about the defendant’s credibility and his guilt.

While cross-examining Pistorius about his ammunition storage practices, Nel questioned him about legal advice he received. He demanded Pistorius explain why a lawyer would give him that advice. He also asked Pistorius about points his lawyer did not pursue with a prosecution expert. These questions are logically improper since a defendant hires a lawyer precisely because he recognizes the lawyer’s strategic expertise.  Solid convictions have been overturned where the Crown suggested a defendant is responsible for tactical decisions by his lawyer (see R. v. D.(C.) and R. v. Bouhsass).

Successful appeals for prosecutorial misconduct are rare in Canada because of a systemic Crown understanding that the bad guys can be convicted without resort to rude or belligerent tactics. The higher South African tolerance for courtroom theatrics closely resembles the advocacy ethic in some publicity-driven American trials. Although the prosecutor in the notorious Casey Anthony murder trial was admonished when he laughed at the defence closing address to the jury, a prosecutor in the equally high-profile Jodi Arias case escaped an abusive cross-examination with minimal criticism (clip 1 and clip 2). Likewise, in a now-infamous exchange a prosecutor in a New York state case was allowed to scream at the defendant as the judge repeatedly overruled defense objections:

.

Inarguably, a prosecutor is entitled to use aggressive tactics in a criminal trial. But, Canadian law assumes that the humiliated honest witness is as likely to flub an answer as the humiliated witness with something to hide. To eliminate this skewing effect Canadian courts have withdrawn abusive cross-examination from the advocate’s arsenal. Cross-examination continues to be a reliable vehicle for learning the truth in Canadian courtrooms – even without the distracting sideshow of sneering lawyers.

From the outset, the case against Oscar Pistorius was framed as an opportunity to refresh the image of the South African justice system (details). One court suggested that televising the proceedings would go “a long way” to dispelling the perception that the country’s justice system treated rich and poor differently. Others saw the case as an opportunity to show that domestic violence is taken seriously. Legal systems frequently try to launder larger problems through a single court proceeding.

As Canada’s Globe and Mail sensibly noted in a recent editorial, the criminal justice system is best served by objective decision-making. In a refreshing example of independent police and prosecutorial judgment last month, authorities declined to charge a drunk teenager for wandering into Justin Trudeau’s home (details). Likewise, public understanding that criminal prosecutions cannot address systemic problems fuelled the growing call for a national inquiry (details) into missing and murdered Aboriginal women. In both these examples Canadians have accepted the criminal justice system cannot perform beyond its reach. Coming down hard on a defendant by turning a notorious “pit bull” prosecutor loose in the courtroom may sound like progress to those who think women are beaten and killed with impunity in South Africa. But it does not establish faith in a justice system.

Judge Masipa found Pistorius not guilty of premeditated murder, but guilty of the manslaughter-equivalent offence of “culpable homicide.” Although the prosecution’s inability to make its primary theory stick might suggest Nel’s advocacy failed, it is not so easy to overlook the failure in professionalism. If the trial was meant to showcase the South African justice system’s neutrality and dignity, the judge’s failure to rein in counsel was a visible blemish.

An insistence in Canada on civility should not be confused with a concession that lawyers be less courageous.[1] Criminal trials are no place for lawyers fretting about their popularity. But skilled lawyers are able to keep zealous advocacy[2] in place as their primary guide without personalizing litigation.  The Pistorius trial was an example of abusive lawyering at its worst.

[Notes]

[1] Law Society of Upper Canada v. Groia, 2013 ONLSAP 41 at paras 7, 327-328. “A contextual analysis ensures that the challenges that confront courtroom advocates are fairly taken into account and do not create a chilling effect on zealous advocacy.  In assessing the context, it is important to consider the dynamics, complexity and particular burdens and stakes of the trial or other proceeding.  Trials are often difficult for the advocate and the client but some are particularly so.  Many are hard fought. Advocates may be under immense pressure. Sometimes things go awry.  It may not be possible to maintain an atmosphere of calm and efficiency.  A few ill-chosen, sarcastic, or even nasty comments directed at one’s opponent will rarely constitute professional misconduct, particularly if they reflect a moment of ill-temper and an apology is made. Provocation from opposing counsel is a relevant consideration, although it is not a complete defence. The transcript of the proceeding, together with counsel’s explanations of her conduct, must be carefully examined in the context of all the surrounding circumstances, including the important public interest that lawyers vigorously and courageously advocate for their clients.”

[2] “Warm zeal” as the Americans like to call it: ABA Canon of Prof’l Ethics, Canon 15 (1908).

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Letter from New Zealand

Boulder Bank (why does that sound familiar?), an unusual natural formation in the author's hometown

Boulder Bank (why does that sound familiar?), an unusual natural formation in the author’s hometown

[Guest blogger Steven Zindel honed his legal chops halfway around the world, in London, before returning to the city of his birth — Nelson, on the South Island of New Zealand — to start his own practice, Zindels Barristers & Solicitors, on 1 December 1994.

“Most people are not unsalvageable,” he says, “and, particularly, if they deal with personal demons such as alcohol and drug issues or violent tendencies brought about by childhood cycles, then they can develop into people who will make a worthwhile contribution in the community. Often, it is just a matter of age or a young male finally finding love and family life or loners finding somewhere to belong. For many, especially Maori, it is a case of making them feel proud of where they have come from, their history and their culture.”

His senses of social justice and fairness, important to him since childhood, are evident in the following piece. He says the title was cribbed from someone else, though I can’t quite figure out who, or even, whom.]

Crime and Punishment

As a practising lawyer, an irony which I perceive daily is the prominence given to street crime while deeper unethical behaviour, often with far greater consequences for people, goes unreported. The perpetrators are not held accountable.

Sad, lonely people are processed through our criminal justice system and ultimately many are imprisoned. Prisons are creaking at the seams. It costs the country more and more. The crowded colleges of crime produce more brutal and banal cycles of offending from their graduates, who are actually crying out to belong, while treatment programmes for those with health issues (including addictions) remain underfunded. Many of our prisoners would have been mental health patients in previous times. There are often unintended and harsh consequences of imprisoning decent people. Prisons should be a last resort, reserved for the violent or truly incorrigible. The number of prisoners should be kept low for their own protection and to aid their rehabilitation.

Also, many crimes are the result of overcharging or failing to use legitimate police discretion with convictions being recorded against people where none of the protagonists (e.g. in the domestic violence field) want things to go that far, provided that the behaviour is corrected. Many suspects cooperate fully with the police to explain the particular context for their behaviour and find the negative parts of their statements simply used against them on a remorseless prosecution treadmill, while the more experienced offenders stay staunch and are let off through absence of witnesses. What kind of example does this set?

Meanwhile, we, the public, read lurid details of nasty crimes in the newspapers and imagine that society is going to the pack. Something of a moral panic sets in. It’s easy news and it’s good for circulation. The drama of it all mirrors the entertainment value that crime has always provided.

Youngsters being left to themselves and our unhealthy binge culture undoubtedly have led to a number of derailments. But the criminals are also alive to hypocrisy and mixed messages. We emphasise material possessions and getting “out of it” to de-stress from it all. Life seems to be a competitive exercise, about making your pile at someone else’s expense. The behaviour of some fellow citizens makes weak minded others think that they too should make their own unsophisticated attempt to secure the good life.

I have in mind how individuals may amass wealth and empty houses without paying much in the way of tax through excess business deductions, paper-loss making vehicles and the improper use of companies and family trusts. In an uncertain world, trusts are favoured as a means of providing security for assets but they may bear little relation to the reality. For the 167,922 dwellings at 7 March 2006, disclosed in the last census to be owned by family trusts, for example, frequently the beneficiaries regard themselves as the owners and the independence of the trustees is doubtful.

Another area of unethical and damaging behaviour is that of relationship property. For originally laudable social policy objectives, the law has, since the 1970s, provided for generally equal sharing of relationship assets for marriages and, now, de facto couples. To counter that, there has been an explosion in the growth of family trusts and prenuptial agreements so that often on separation, even after many years together and children, one spouse (typically with the child-care responsibilities) will be left high and dry. That is not regarded as theft, like the public charge facing a shoplifter, but it ultimately has more potential to be ruinous of the social fabric.

As indicated, the cynical or the prepared will have their assets sheltered. The true romantic who pledges all his worldly goods and troth may lose half his assets after only three years. I would argue that it is better to provide for an incremental improvement in the non owning spouse’s position to the point where, after 10 years together or children, she obtains half of the property irrespective of any agreement. This still leaves the vexed problem of the family trust where assets are owned by third parties, the trustees. There should be greater trust busting powers so that substance may triumph over form. A trust could be legislatively rewritten for where do property rights end and improper exploitation begin?

Companies, also leave unsecured creditors out of pocket when the company folds, while the director continues to drive around in his trust owned European car. This promotes distrust at the system among honest suppliers and, again, where is the moral example? What is the difference between calculated structures to leave the unsecured out of pocket and theft? The intentions are not so immediate for the civil wrongdoer as for someone who makes off with somebody else’s cash from their wallet but the business person who repeatedly sets up structures knowing that in the event of failure it will be somebody else’s problem may arguably show a form of moral as well as legal bankruptcy. And with the new insolvency procedure, where is the example in allowing a person simply to write off $40,000 of debts? Even ordinary bankruptcy attracts little stigma. The public notices section advertising of bankruptcy has been replaced by a website listing.

Why do the Court pages in our newspapers report on all the “rats and mice” offending so thoroughly when bankruptcy stories may also have numerous out of pocket victims? These victims don’t receive reparation orders. Many of these bankrupts are themselves, it is true, susceptible to relentless credit advertising, a culture of paying on the “never, never” and their own weak natures, just as the criminals caught by the police are victims of currents swirling around them. Sometimes, they are the same people.

The law reports are full of examples of what is variously called “equitable fraud” or “unconscionability” where superior acumen, intelligence or economic advantage are used to dupe the less powerful. The playing field is far from level. We value the sanctity of contracts and economic independence but many in our society can’t cope with the individualistic model and they fall by the way-side. It is a perverse kind of social control that keeps these weak people in check while richer and more powerful people escape the moral chaos which their own actions have unleashed. The kind of behaviour committed by the clever is not characterised as crime, not even white collar crime, but there may be little distinguishing the essential behaviour. Why are such sharp practices tolerated and unreported? Is it too difficult to explain? Without a prison sentence and a simple story of intentional greed immediately acted upon, does a case have no impact?

Widen the critical lens further and there is an obvious need to remedy environmental degradation and international breaches of order through wars or improper diversion of resources (e.g. subsidies ruining local farming or the current bio-fuel debate). The fundamental crime is that we are not all getting together to help the world’s hungry and homeless or to make sufficient effort to limit our population and over industrialisation, so that we may survive on a sustainable planet. By comparison, the affairs of the criminal classes seem petty and overrepresented in our daily news.

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