Drunk & Disorderly

On the Docket of a Colorado Criminal Defense Attorney

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He Who Is Without Sin…

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

The governor of New Hampshire is about to sign a bill repealing a law that Moses near to broke his back lugging down Mount Sinai.

Adultery, defined most generally as sexual intercourse between a married person and someone not that person’s spouse, is still a crime in twenty-one of these United States, though soon to be only twenty when that governor dips her pen in Granite State ink. My home state, Colorado, is way ahead of the flattening curve, having repealed a similar law all the way back to last August.

Change comes at a slow pace: had he lived, the oldest criminally accountable adulterer in New Hampshire would be around 240 years old today. That’s a lot of criminal adultery. In France, nobody’s minded about that sort of thing since the birth of…France. I’m pretty sure you can’t get a visa to go to France without committing adultery first.

Some states, like Arizona, you expect to find this law still on the books. They don’t like anything up to date, like gays, Mexicans, or Democrats. But Utah? It’s almost impossible, for a man at least, to commit adultery when you have 23 wives. Like some backwoods areas of the South, there’s at most about three degrees of separation from folks there anyway. Coincidentally the South almost universally legally forbids adultery.

Fortunately for those few affected people, and for the millions upon millions of adulterers in New York, the laws aren’t much enforced. You can’t repeal laws if all the legislators are in jail.

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Let Freedom Ring

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

We give up our freedoms so easily.

It is commonplace for people accused of crimes to have their professional and personal lives disrupted — and sometimes radically altered — by having a judge order “conditions of pre-trial release,” long before the first witness is ever called at trial.

By mere accusation, you may be ordered to random, sometimes daily, alcohol testing. You may be ordered into drug treatment. You may be required to permit a psychiatrist to invade your most private mental spaces.

You may be told you can’t go out after dark. That you can’t participate in ordinary and otherwise legal activities. That you can’t go hunting, or keep a firearm for protection, until this matter is all cleared up. Or that you can’t leave your home without saying, mother may I, every single time.

Judges and prosecutors consider this fair, because they let you make the choice: do this, or spend the days and nights, leading up to your Constitutionally guaranteed speedy trial (months, maybe years down the line), in jail.

Show evidence of violating any of these conditions and you can be jailed because, after all, you agreed to this. It’s your own damn fault.

The theoretical purpose of pre-trial conditions and detention is the same as that of bail (paying money to secure your temporary freedom): to ensure that you appear in court, and to protect the community.

In the worst-case scenario — the worst case being that we’ve actually apprehended a monster here — we’ve indeed protected the community and, after a righteous conviction, given him or her a home away from other people’s homes.

But frequently enough what happens in reality is that we’ve made an innocent person’s life miserable for months and even years, and in the process they may have lost a job, a relationship, the respect of their friends, and the adoration of their children. The community was never in danger from these innocent people. And what brought them to court wasn’t the fact that we had them pee in a cup every day, but that they wanted to clear their names.

How do we know they are innocent? Because the presumption of innocence they should have had from the day of arrest was validated by a not guilty verdict in court, or the decision of a prosecutor to dismiss the case. They are entitled to that presumption before, during, and now after.

As usual, it was a divided Supreme Court that allows people to be disadvantaged in this way before a single thing is proved against them. The case, U.S. v. Salerno, 481 U.S. 739 (1987), brought this ringing dissent from a Justice who knew something about disadvantaged people, Thurgood Marshall:

This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future. Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution. Today a majority of this Court holds otherwise. Its decision disregards basic principles of justice established centuries ago and enshrined beyond the reach of governmental interference in the Bill of Rights.

The same holds for onerous conditions of pre-trial release. They are an abomination to Justice.

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Baby Killer

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

The police don’t just round up the usual suspects in Pakistan. Among more than 30 people arrested for pelting security officers with stones in Lahore, Muhammad Mosa Khan was charged Friday with planning a murder. Defense attorneys pleaded diminished capacity, saying Khan can’t even plan his next meal: he’s nine months old. He was immediately granted bail as a low flight risk.

How could police have charged a baby with murder? Speculation is they were already stoned.

 

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Back-Door Justice

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

I always hate it when I hear about someone in Texas almost impossibly stupid. My mother and her parents were Texans. I think that makes me half-Texan, but there’s no math requirement to get into law school.

The current governor of all the Texans says he knows teenagers are getting raped in Texas prisons, and he’s real sorry about it, but he just can’t agree to an 11-year-old federal law that’s finally making its way to the states, something about eliminating those rapes. Texas rules, and all.

The Prison Rape Elimination Act of 2003, embarrassingly signed into law by an actual former Texas governor, the well-known liberal George W. Bush, says state governors ought to certify they are implementing, or trying to implement, new measures intended to cut down, just a little bit, the sexual violence being done its young offenders by older people who look a lot like Danny Trejo.

Unaccountably, the law was supported by every single United States Congressman and Senator — Democrat, Republican, Tea Party, maybe even a Neo-Nazi or two.

None of your business, says Gov. Rick Perry. We got our own ways in Texas. For one thing, you can’t be serious that we shouldn’t be putting seventeen-year-old men (they are men in Texas, and oughta take it like a man) in with our adult prisoners. Teenage years end at sixteen here; them other age words ending in “teen” are just that: words, and we are people of few words.

He won’t certify Texas prisons, he says, because there are too many to check on all at once. Never mind that the federal law says you only have to check on a third of them each year.

And Mr. Perry says Texas has already got its own programs to eliminate prison rape. Never mind, too, that Texas has the highest rate of prison rape of all of our United States.

I don’t think Mr. Perry’s a lawyer, but he does math like one.

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Advice to the Criminally Lovelorn

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

A colleague in San Francisco wrote to ask how in the world a new criminal defense attorney might go about finding new clients. He’s already discovered that passing out business cards at most social gatherings implies an unfortunate assumption about the people you’re advising to give you a call next time they commit a crime.

So in the spirit of sharing my own vast knowledge (and because I don’t get invited to parties much anymore), here are the Top Ten Ways To Win Clients for Your Criminal Defense Practice:

  • 10. Join a biker gang.
  • 9. Throw a party for the neighborhood drug dealers.
  • 8. Place an ad in “Mafia Today.”
  • 7. Buy a Lincoln.
  • 6. Commit a minor crime that won’t get you disbarred, and do some quality networking in jail.
  • 5. Start a campaign to criminalize coffee.
  • 4. Change your name to Philip Corleone. (Use your own first name: that one’s taken.)
  • 3. Attend a different Catholic church every Sunday and chat up some altar boys.
  • 2. Meet a few working girls and tell them, no, really, I just want to talk.
  • 1. Stop trying to cultivate criminal defense attorneys — they’re just as desperate for clients as you are — and pal up with some plain old…criminal…attorneys.
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