Drunk & Disorderly

On the Docket of a Colorado Criminal Defense Attorney

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

For my wife, our infant son, and me, it was a thirteen-minute walk from our home to where the first fifteen lives were taken by gunfire in the terrorist attack in Paris. Straight out our door right onto Rue Eugene Varlin, a couple of blocks to cross the Canal Saint-Martin, right along the waterway, past the children playing ping-pong, the occasional boat making its way through the locks. It’s a beautiful neighborhood of Parisian Paris (not much of Paris isn’t beautiful); not many tourists.

Curving along to the south a few more blocks to Rue Bichat the last long leg to Rue Alibert, an intersection that looks like a collision of five different streets designed before the invention of the ruler. And there, had we taken this walk the evening of 13 November instead of twenty-two years ago, my baby boy would have seen, in front of the dive bar Le Carillon and across from it the Cambodian restaurant Le Petit Cambodge, bodies and blood.

I don’t remember Paris this way. The year we lived there, the year Bill Clinton was elected and hailed the new John Kennedy (rightly but for the wrong reason), Paris seemed the safest place in the world.

Certainly safer than Santa Barbara, where our son would miss (this time by less than four days), the second (though first in time) mass murder by gunshot in his hometown neighborhood.

Safer than New York, where our daughter went to The New School for Jazz and Contemporary Music to study the wonderful instrument she carries around at the bottom of her throat. Terrorist threats weren’t much of a factor in her decision to go New York: she was in first grade when the terrorists last crashed that party, and hadn’t yet sung a note. Her second choice in 2013 was Berklee School of Jazz, right around the corner from the finish line of the Boston marathon. Until 15 April that year, her godfather, who lives near Boston, was sorry she’d chosen New York.

I felt the kind of danger that might call for lethal defense only once in Paris, those years ago. It was the January morning after the first President Bush sent a century of war planes to bomb Iraq yet again, nearly two years to the day he started the First Gulf War to make the world safe for billionaires.

A man, who might have been Iraqi, stared murderously at me on a Metro platform, saying over and over, “Salaud! Salaud! Salaud!” Bastard! Bastard! Bastard! His hand moved inside his coat pocket and he looked toward my gut. His gaze shifted to my wife, holding her blue wool coat closed protectively over her child, three weeks short of his birth. Then he stared at her gut, and I went cold with fear and resolve. I moved so that his gaze swung back to me, and I held it with a stare that must have looked to him at least as murderous as his own, because he backed off and left the platform.

It was only later in the morning that I saw a French newspaper and understood the cause of this man’s hatred for me and my family. Until then it was senseless. Senseless to me.

That was not the first time we showed that part of the world how oil means so very much more to us than Muslim lives. We’ve continued to show them until, well, what time is it there now?

So many, many appalling crimes between then and now. But senseless? There are no senseless crimes but to the insensible.

My daughter was in Paris only a few weeks ago. My son is about to board a plane so that we can give thanks next Thursday he arrived here safely.

My children have missed opportunities to be present at the scenes of mass murder by margins horrifying to any parent who doesn’t wish his children dead.

Would that the God of the Hebrews, the God of the Christians, the God of the Muslims, the god of every faith imaginable and unimaginable, provide children — all the children of the world — with such missed opportunities.

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Veterans Day


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

Just in time for Veterans Day, the Death Penalty Information Center released a new report concerning our men and women, and often boys and girls, who wear the uniform of the United States military.

There are three hundred veterans on death row in our country. Many more are already graduates of that institution.

At their capital trials, their service to our nation — which politicians, news reporters, and likeminded ass-kissers rotefully thank them for — and illnesses related to their service ofttimes “were barely touched on as their lives were being weighed by judges and juries,” the report says.

Judges and prosecutors don’t think what veterans left behind in Vietnam, in the Gulf, in Afghanistan is relevant to the case at hand. Eight hundred thousand Vietnam vets with PTSD isn’t relevant. One hundred seventy-five thousand Operation Desert Storm vets with Gulf War illness isn’t relevant. Irrelevant that three hundred thousand vets came home from Iraq and Afghanistan with PTSD, when one commits a hometown murder. Watch that last stat: that one’s going up every day.

The report says defense attorneys fail to investigate military and medical histories; and when they did that prosecutors “dismissed, or even belittled, their claims of mental trauma from the war.” On appeal, judges discount military service information, “and governors passed on their opportunity to bestow the country’s mercy.” And why not take a pass? Most dead G.I.s don’t vote.

The first person executed this year was awarded the Bronze Star for his service in Vietnam; he was on one hundred percent mental disability after coming home with PTSD. The State of Georgia refused to find it peculiar that someone might shoot to death a police officer over a traffic stop.

Prosecutors often say, in my own practice, we’re grateful for their service, but to be fair we have to treat them like the rest of us.

But hey, guess what? They’re not like the rest of us. The rest of us have never held a buddy’s guts in our hands.

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Postscript for a Grieving Zen Priest

Kobutsu is the one on your right

Kobutsu is the one on your right


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

At his website, Kobutsu Malone offers some explanation for what may have radicalized him, from initially seeing correctly (I think) that execution is state-sanctioned killing, to an evolved view (incorrect, to my legal way of thinking), that execution is state-sanctioned murder, even lynching.

Kobutsu explains the choreography of death in which he has participated:

I am fully aware of the nature of the dance I may very well have to endure with Amos [King, to whom Kobutsu was spiritual advisor when the state of Florida killed King a dozen years ago] in the next four days. I have been through this before and know from direct personal experience that it is the ultimate exercise of premeditated murder ever conceived by mankind. Each and every event, each step, the placement of each of the individuals taking part in this choreographed dance of death has been predetermined. A judicial execution is the most cold blooded of premeditated murder possible.

My place in this deadly dance has been carefully crafted to maintain absolute control over my actions during the murderous process. I will be coerced into playing a role completely dictated by the deadly bureaucratic will of the Department of Corrections. It is foremost in my mind that every prison employee I come in contact with this next week will have the intention of killing Amos King. I am coerced into my role of remaining silent and cooperating with their rules and orders while I am with Amos out of fear of being bodily removed from his presence at this most critical time. In one sense, I am as much a part of this choreographed murder as those who strap him down to the gurney and those who pump poison into his veins.

Unless I physically try to stop their inevitable dance, I am cooperating in murder. Every witness to an execution who does not stand up in protest joins me in cooperating with this abomination. I fully accept this position and I am willing to stand in public with blood on my hands. The stains on my hands are the same for every citizen in the State of Florida. What has been ordered by Governor Jeb Bush is in the name of all of the people… each and every one of us bear responsibility for judicial homicide. If Governor Bush is unwilling to take full responsibility and be present at the execution he has ordered, then I will stand up in his place as a murderer.

I know that feeling, much too well. A feeling of powerlessness and responsibility at the same time. Within my own family while growing up, and within the military while suddenly growing old at twenty-one. It’s one of the reasons I became a lawyer. To feel I do have a power to effect change in lives, in the courts, and be listened to, and sometimes even heard. Or at least to have tried.

I never felt it more powerfully than I did here, before I was a lawyer:

Someone died.

Someone else. Three suicides three weeks.

A woman overdosed. She seemed fine when the crisis worker talked with her. she was going to make it. She didn’t. Did she take more pills? Did the hospital release her too soon? Who knows. The coroner is in no hurry to find out.

A man, a longtime client, went home one day, put a shotgun under his throat, and blew his head off.

Now Billy. Billy hanged himself. Three weeks after I stood in a locked room with him struggling against four-point restraints and begging me release one of my hands please just one of my hands Billy hanged himself. I sent him to the hospital that day because I felt there was no alternative. I sent him knowing we couldn’t really help him there because the system isn’t set up to help people it’s set up to control them and to protect sane people like me from crazy people like Billy. I sent him knowing his alternative to the hospital was probably worse, that he was unable to care for himself in his state of mind and that there was no one else in any state of mind willing to care for him. So Billy went to the hospital and a few days out of the hospital Billy hanged himself and maybe that’s the sanest thing he’s done lately. I don’t know. I don’t know.

Billy never had a chance to stay out of the hospital. He never gave himself a chance, and nobody else did either. The first time I saw him through the window he kicked the door. Hard. I didn’t have to be told this was the man I was here to evaluate. As I’m asking the people at the nurses’ station if I can see the police write-up on Billy I see that he’s pacing very quickly, his eyes are rolling about, and he hits the wall with his open hand.

Somebody says we’re going to have to restrain him. I mumble how I don’t think that will be necessary, and somebody else says let’s get the team together, let’s get him into restraints NOW. Some guy asks me if I can help, have I had restraint training, and I say no, and he says too bad, and I think no, not too bad, I wouldn’t help you do this anyway.

Look, I say, why don’t I just talk with him in one of the quiet-rooms. He’s out of control, the team leader says, didn’t you see him hit that wall? But he hasn’t threatened any person, has he, I say. He could hit you, she says. I don’t think so, I say. Look, I’m willing to take that chance. Excuse me, she says, but we have work to do and it’d be better if you just stand over there. So I just stand over there.

They go for Billy. What is it that he sees. The guy’s already psychotic and now a bunch of thugs are grabbing him, pulling him, dragging him into a quiet-room, onto a gurney, into restraints. He’s not going easy. He screams to them let me go, leave me alone, I won’t hurt anybody, I just want to go home. I don’t want to look, but I look. I don’t want him to see me looking, because if he does he might think I’m one of the people who want to tie him down and maybe then he won’t want to talk to me. If it were me I wouldn’t particularly want to chat with the guy who’d just thrown me down a hole.

He’s begging them please, please, throwing his head from side to side on the bed. I feel an impulse to go into the room and stroke his brow, to tell him it’s going to be all right. I don’t do it. I’m afraid it would be regarded as interfering.

And there’s probably the heart of it: I’m afraid of offending the people tying him down. I’ve already offended them by suggesting he didn’t need to be tied down. I feel powerless to act. It’s a familiar feeling, one that I suspect is a fraud, because maybe I’m not powerless, maybe I just don’t have the guts to do what I think is right and to hell with what gets back to my supervisors.

Billy spits, spits with all his might, and he hates, hates. Somebody pushes a pillow over his face. I remember thinking that was a good idea, a gentle way to block his spitting, yet the pillow is delivered to his head with more than necessary force, and totally unnecessary venom. Still, it wasn’t me who was being spat upon.

We all let Billy alone for a time in his locked room, with his tied arms and legs. We’re giving him a chance to cool down, giving ourselves a chance to cool down. Everybody’s crowding the sink, washing Billy off their bodies, their clothes.

After a while I go in to see Billy. His eyes are wide open, staring at the light fixture. I can see tears that have dried along his temples. I can tell by the way he’s staring at the light fixture that he’s listening to it, perhaps has been talking to it.

I ask Billy a question, an admirably stupid one: how are you feeling? Oh, man, just get me out of these things, please, I won’t do anything, I’ll be okay. I can’t do that, Billy.

And I proceed with a brief evaluation, brief because it is eminently clear from Billy’s answers that he is floridly psychotic, unable to care for himself, unable even to remember how he got here.

But those aren’t the questions I remember, as I sit in the office three weeks later and hear that Billy has hanged himself. Those have no part in the process that slowly eats into my awareness and I remember with horror that I stood in that room with a helpless human being and could not reach out, could not reach out to him, not even just to touch him on the brow, or to hold his captive hand, even as he was begging me to release that hand, just that hand, please, just for a little, please, I’ll be good.

I can’t do that, Billy. I can’t do that because if I do that I won’t be asked back, I’m not sure how to do that anyway, I’m not sure that I should, the professionals would never forgive me, my job would probably be over.

I can’t do that, Billy, because I never could, and I honestly don’t know if I ever will. I don’t know what kind of a human being I am. And it hurts me more than it will ever hurt you.

That’s what I’m feeling today, Billy, as I sit in the office so afraid to ask about how you died, so afraid that I listen to snatches of information from others who casually wonder about your death, I listen and say nothing.

Someone died. Someone else died. And I never touched you. I never touched you.

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He Sees Dead Men Walking



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

Kobutsu (born Kevin) Malone is a Zen Buddhist priest who has twice watched what no one should ever watch: the legal execution of a friend.

Two front row seats to horror. Each a gift, a willingness to be a loving presence in a roomful of people who want to see you die.

Kobutsu notably witnessed the death of William Parker. I don’t want to say Parker is the only one, but Arkansas in particular, and the United States in general, can’t have executed all that many Zen priests. Parker wasn’t a priest when he murdered his former mother- and father-in law, and he wasn’t a priest while he enjoyed punching the occasional prison guard in the mouth while biding his time toward execution. But one of those guards, when Parker insolently demanded a Bible, thought it was funny to toss instead a Buddhist tract into his cell. Turned out Parker could read, and what he read transformed him.

When Kobutsu met the man, he had already turned himself into a Buddhist scholar whom even some of the guards called Sifu (master), and his cell into a temple. Parker was the only practicing Buddhist in the Arkansas correctional system — not surprising in the Bible Belt, where a Missouri prison guard I met told me the only Buddhist he ever knew was under his safekeeping.

Kobutsu didn’t have even a Christian’s prayer of saving Parker from the death penalty. The Dalai Lama had already tried. Richard Gere had already tried, at least to speak with Parker, but was turned away when the warden pleaded no time for a background check on the actor; he apparently hadn’t seen “Pretty Woman.”

The old governor had no time for Kobutsu, because the old governor was trying to avoid doing time himself for federal felony convictions. And new Governor Mike Huckabee — himself a reverend (though the kind whose reverence for life makes a little allowance to strap down bad guys and stick the needle in ’em) — had no time for Kobutsu because God had already talked the governor into moving up Parker’s execution a few weeks and get the job done good right then.

[I believe God does speak to Governor Huckabee: it’s the only reasonable explanation for that voice in his head.]

Four days before the state killed its prisoner, Kobutsu formally ordained Parker a Zen Buddhist priest. Another probable first. First priest of any faith to be ordained while in shackles. Kobutsu draped a priest’s vestment over Parker’s head. Buddhist priests receive ordination names: Parker became Jusan.

The day of the execution, a bunch of guys dressed like the negative images of George Lucas’s Imperial Stormtroopers arrived to escort Jusan from his cell — down a hall lined with more of the same — to the death chamber.

Kobutsu and Jusan were permitted a final moment together. Says Kobutsu:

I looked directly into his face; I saw a single tear glisten as it rolled from his right eye down his cheek. I could see every pore of his skin, each individual hair in his goatee, the colors of those hairs in a salt and pepper mix. I saw his wonderful smile; I could feel waves of tremendous gratitude pouring from his heart. Time stopped. There was only Jusan and Kobutsu, two old friends saying good-by at the end of the road. No one else was present in all creation at that moment, time dilated to an infinite degree…we are still there, saying good-by, forever…

We embraced, he whispered in my ear, ‘I love you my brother, thank you so much.’ I took one step backward and we did an ‘unauthorized’ bow to each other – as we bowed, our foreheads touched. The impact of forehead on forehead was the last contact we made; it was shocking to me; it was an unexpected contact; neither of us had planned, yet it somehow was incredibly apropos.

On his way to the viewing room, Kobutsu saw outside the building the hearse waiting to carry his friend. His last sight of him was in the stunning bright light of the death chamber, his head and body restrained to immobility, his eyes closed. Though a white sheet almost completely covered the body, Kobutsu could see the straps of another garment: the prison director had allowed Jusan to die in his new vestment, a breach of prison protocol. It took but three minutes.

Kobutsu witnessed a second friend die by execution nearly seven years later. Seven more years of working in the criminal justice system had radicalized him. He called the first execution a killing. He calls the next one, a murder…a lynching.

At this one, at Florida State Prison, the warden would allow no final hour visit with the priest for Amos King, though Kobutsu served as spiritual advisor to the condemned. No final picture of the two of them, a black man served by a white man, together. No final Buddhist bow goodbye.

On King’s last day, they were allowed, through cell bars that separated them, to perform the refuge ceremony, a rite that initiates one into the Buddhist practice. It is an invitation to, and acceptance of, the teacher, the teachings, and the community of practitioners. The ceremony was brief.

King, who had been convicted of raping, stabbing, and leaving an old woman to die in her house he set afire (she did not die of the fire but of the wounds, and was found dead in the doorway trying to crawl from the flames), asked Kobutsu if there were some sort of Zen memorial service. There was, Kobutsu replied, but it was in Japanese. King said he didn’t have time to learn Japanese. Kobutsu said there was a short chant in English, and they did that. Amos King and Kobutsu Malone hugged each other through the bars and that was that.

An hour and a half later Kobutsu saw King on the familiar gurney, with the familiar restraints, under the familiar bright light. King raised and twisted his head to nod at the priest; to Kobutsu it looked like a bow, and he bowed back from his seat. King continued to strain to see who had gathered for the show.

King was allowed a final statement from his back; he asserted his innocence. He looked directly at Kobutsu and thanked him. “That’s it,” he said. Kobutsu watched, again for only a few minutes, until his friend’s chest stopped moving, until two doctors confirmed the heart had stopped moving too.

Neither of the executions Kobutsu witnessed produced drama beyond the workman efficiency of the state executioners. No prolonged agonies; no bulging eyes; nobody bursting to flame.

Just a human life taken in the course of ordinary business. Witnessed by another human life, an extraordinary business.

A candle, snuffed. Another, sputtering.

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Shoot First. To Hell with Any Questions.

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

In Cleveland today there’s a word for what you call it when a white police officer drives up to a playground and shoots a black child dead:


The Cleveland district attorney tasked with the coverup of the shooting last November of twelve-year-old Tamir Rice greased his upcoming grand jury presentation by hiring two independent experts to investigate the killing. Independent in the sense that neither of the experts has spent any of his law enforcement career working as stooge for the Cleveland Police Department, until now.

These independent experts have independently concluded that Tamir was righteously gutted by rookie officer Tim Loehmann when he fired his Glock 17 at the boy from six feet away, twice. That was one lucky bullet, the one that didn’t strike the child — not because it didn’t hit Tamir but because it didn’t hit any other child at the playground and park. Can’t fault the cop for firing wide with that other shot. Hard to take any sort of aim when you’re so scared of the black kid you sprain your ankle because you’re already running to cower behind your cop car. He could be faking his death sprawl. Black kids do that.

I should say right now that I call this slaughtered boy “Tamir” because when I was a news reporter I learned from the AP Stylebook that children on second reference are properly called by their first names. I suspect that both these independent experts call him “Rice” — the Ohio State Highway Patrol even calls him “Mr. Rice” — for a related reason. To call him “Tamir” would embarrassingly concede this was a child armed with a toy whom you put into the county morgue with your 9mm tap to the tummy.

One of those experts hails from my home state. Denver prosecutor Lamar Sims has been investigating cops who shoot citizens — let’s be fair, they shoot immigrants, too — since 1989. In what by my own rough estimation is twenty-six years, those investigations resulted in exactly one (1; o-n-e) criminal filing. No one knows how that one poor cop fell through the cracks, but it’s okay because he was acquitted anyway. Mr. Sims happens to be black, but I’m nearly one hundred percent certain that’s not why the Cleveland DA hired him, aren’t you?

My home-state expert called Tamir’s — excuse me, Rice’s — death “heartbreaking.” Maybe more heartbreaking is that he called it reasonable. “I conclude,” prosecutor Sims concludes, “that Officer Loehmann’s belief that Rice posed a threat of serious physical harm or death was objectively reasonable as was his response to that perceived threat.”

Somebody else must have told Mr. Sims about Loehmann’s belief and perception, because those guys never talked with each other. Loehmann hasn’t talked to any other investigator, independent or not, either. Despite the fact that neither the officer who did the shooting, nor the supervising officer who watched his rookie kill the boy, offered any statements, Mr. Sims calls the investigation “complete and thorough.” A little like calling an acorn a tree.

According to the Sims report, Loehmann shot Tamir “at about 3:30 p.m.” In plenty of light: the sun wouldn’t set for another hour and a half. “Visibility was 9.2 miles.” Presumably also pretty good at four-and-a-half feet, the distance from the Glock’s muzzle to Tamir’s belly. The weather report and park “surveillance video from the scene indicate weather was not a factor.” The surveillance video, viewed by about a billion people around the world who saw what apparently Mr. Sims did not see, indicated much more.

The language of his report treats Tamir like a criminal suspect. “Rice frequented the Rec Center” — not, the boy who lived down the street came there often to play, as he did that day too.

Tamir was playing with an Airsoft gun, a toy gun that looked like a Colt 1911 semi-automatic pistol. Although the 911 caller told the dispatcher twice that the gun was “probably fake,” and that the “guy with a pistol” was “probably a juvenile,” those pieces of information don’t appear in the transcript of the call the dispatcher then made to the officers, included by Sims. The facts that the supposed gunman is “a black male” and that “(H)e keeps pulling a gun out of his pants and pointing it at people” does.

Sims notes that the rookie in the patrol car ”previously served as a patrol officer for Independence, OH” and “resigned that position.” Again Sims doesn’t seem to know, like the other billion people in the world who’ve followed this case, that Loehmann was given the choice of resigning or being fired for emotional instability and repeatedly failing to qualify in field and firearms training.

The surveillance video showed that, after the officer who couldn’t pass firearms training shot Tamir, both officers stood well away, pointing their pistols at him as he bled out, neither attempting aid. It was three minutes before an FBI agent who happened to be working with a Cleveland police detective, arrived, saw that the cop who shot Tamir was too busy with crowd control (including Tamir’s fourteen-year-old sister, whom he slammed to the ground and placed in handcuffs; later police threatened to do the same to their mother), to do anything about the dying boy. The agent did what he could for the child until paramedics arrived.

The agent said he then talked to Loehmann who “made a spontaneous utterance that the suspect had a gun and reached for it, after he told the suspect to show his hands and not to reach for it.” Somehow Loehmann had that colloquy in the nearly two seconds it took him to open his car door and blast the boy.

Once again, Sims doesn’t seem to know what a billion other people who saw the video know, that the officers’ various and wandering claims made through their lawyers appear under a microscope to be a giant pile of crap:

They saw Tamir wave the gun around just before they showed up. Not true; check the video.

They saw Tamir pull the gun out of his waistband, moments before Loehmann shot him. Not true; check the video.

They shouted three times at Tamir to drop the gun and show his hands before their car came to a stop. Maybe true: there’s no sound in the security video, and the windows of the patrol car are closed against the cold.

So ask yourself this: if Tamir did hear their muffled cries to drop the gun, where would his hands have had to go, to comply?

[Postscript: Thirty pages of Sims’s fifty-two page report is an addendum about police involvement with toy guns. It’s as if the message here is about toy guns.

Nobody believes that what happened at that playground was about police involvement with toy guns. Not even Mr. Sims.

It was about a white cop who was told a black guy had a gun.]

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