Drunk & Disorderly

On the Docket of a Colorado Criminal Defense Attorney

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Behind the Glass Door


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

Jail arraignments are a hoot and a half.

On one side of what looks like bulletproof glass is a sleepy-eyed bailiff, a couple public defenders, and two rows of men and sometimes a woman who look like they’ve all seen better days, and they have.

Today they’re waiting to see if their lawyers will find the words to persuade the judge to let them go home till trial, or to the cardboard box they’re living in on the street, or if not back to the forty-eight square feet with cot, sink, and toilet they share with their celly.

On the other side are family and friends of the prisoners, looking more than a little like boosters at a pep rally. A private lawyer or two.

Not much pep among the prisoners. Lot of morose going on there. One giant with a red mohawk looks like maybe he’s doing a Lyndon Baines Johnson impression, till you realize those monster loopy earlobes flopping against his jaws are what happens when the guards confiscate your gauges for your own protection.

Mostly mixed races in there today, but because this is Boulder, Colorado, there are actually a few white dudes, trying to keep their eyes pointed toward the floor.

One guy on the free side of the door flexes a few tattoos menacingly until you realize he’s the other lawyer there.

On the client side, after about ten minutes of point-free waiting, a guard mumbles slackly, “I’ll start the movie.” This is the film advising everyone of their rights. Nobody watches it; most have seen it before.

A lanky public defender natty as hell in bow tie, pocket square and vest, ambles over to talk with the prisoners, assess their cases, tell them how to plead. He’s never seen any of them before. Each gets about fifteen seconds of his time. It’s okay; no one’s going home today anyway. They’ll get another fifteen seconds next month.

The district attorneys are late: “Where are those DAs, man?” a deputy grumbles.

If you listen closely, and take care not to look in his direction, you might hear a guard talk about the fish they humiliated the other day. College kid picked up on suspicion of being a smart-ass. Gets to jail holding where another deputy confuses him with a sex offender just got released. Ain’t you him? No, no, I’m not. Sure, you are.

They strip him, three deputies, take all his clothes, throw him a jail smock that doesn’t quite cover him, play a little grab-cock, bend him over to search for drugs, keep him bent over a while just to be sure. Laughing, Lot of laughing.

They leave him, alone, shivering in the cell. He calls to a guard, asks for some pants. Guard ignores him. For four hours. He begs to go to the bathroom. Ignore him. He pisses himself. They send a woman in to see if he might be suicidal; I’d be suicidal. He says he isn’t. He just wants some pants.

Later they give him his own clothes. Release him. Mistaken identity. Get out of here, kid. Never happened.

The judge comes in and calls the first case.

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Voodoo Science

If the shoe fits...

If the shoe fits…


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

Remember those ugly-ass size twelve Bruno Magli shoes the prosecution tried to prove O.J. Simpson wore while killing his ex-wife? That and other evidence the prosecution bungled didn’t work then, and according to a federal government report it shouldn’t work now.

The President’s Council of Advisors on Science and Technology (PCAST) has informed the chief executive officer of the United States that shoe-print, hair, ballistics, bite mark, fingerprints, and even DNA evidence are nowhere near as conclusive as prosecutors routinely pretend they are.

And the message to judges is to stop letting them get away with it.

Problems were not only with the reliability of the scientific methods used to rule in, or out, a suspect, but with how the evidence is interpreted by government experts willing to shade findings far beyond their scientific justification, in the interests of convicting defendants.

Experts love to testify — and prosecutors love to hear it, whether they believe it themselves or not — that their conclusions are one hundred percent, or essentially one hundred percent, certain, or at least certain “to a reasonable degree of scientific certainty” (my personal favorite). They like to say their error rates are zero, essentially zero, or negligible. The fact that there is no such thing as a zero error rate doesn’t seem to bother the government experts a smidge.

The FBI, to its credit, began to wonder a few years ago about its own experts. Reviewing the expert testimony in three thousand cases involving hair comparisons, the agency last year reported the science used to convict ninety-five percent of the defendants was either flat-out wrong or grossly overstated by the experts. Starting this year, they’re looking at some of the other dubious methods they’re using to lock citizens behind bars.

Based on its findings, PCAST recommends that judges never permit prosecution experts to claim that error rates are “zero,” “vanishingly small,” “essentially zero,” “negligible,” “minimal,” or “microscopic,” or to state that their conclusions are offered with “100 percent certainty” or proof “to a reasonable degree of scientific certainty;” identification “to the exclusion of all other sources;” or a chance of error so remote as to be a “practical impossibility.”

And it’s up to us ugly-ass criminal defense lawyers to hold the judges to it.

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The Election


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

It’s been a full week since the tallies have been digested in this otherwise indigestible American election.

I’ve mentioned before that I never wanted this blog to be the ravings of one Colorado criminal defense lawyer, plainspoken or otherwise. I’m interested in everybody’s ravings.

I want to hear from you. What are your hopes, your fears, your other feelings and thoughts, for and of this new President. I’m particularly interested in what you think the impacts will be on criminal justice and human rights, but I won’t censor anyone’s thoughts, wherever they take them.

If you will, take a sentence or two to introduce yourselves (“I’m a Rhode Island lawyer;” “I’m a plumber from Dublin;” “I’m the Vice President of the United States”), then say whatever you like.

I’ve heard that enemies lists are already being compiled, so I know this is no small request. I have an enemies list of my own, made up not of names but an oath: the enemy of justice, the enemy of human rights, is my enemy.

Thank you for your courage.

Make your comments just below.

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So Long, Leonard


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

Ring the bells that still can ring.
Forget your perfect offering.
There is a crack in everything.
That’s how the light gets in.

The only other songwriter who might have been awarded the Nobel Prize for Literature died the day before the United States electorate awarded its Presidency to a man whose idea of justice toward women is to grab as many as he can by the pussy.

Leonard Cohen, on the other hand, revered and immortalized women, and only months before his own death reached out to his dying former lover Marianne to tell her he himself was close behind, “so close behind you that if you stretch out your hand, I think you can reach mine.”

He was a particular favorite of mine, and millions — perhaps billions — more. His musical truths were widespread: a Buddhist, he was exalted, for example, on a blog dedicated to the development of Catholic legal theory. Israeli leaders mourned him as a voice of peace and justice. He sank beneath no one’s wisdom like a stone. He was everybody’s man. For a long time I used to quote the refrain above, in my email signature line, part of his — and what easily could be the Canadian National — Anthem. Those words have sustained me in many a battle for criminal justice for my clients.

He advised us once, in a line from his grandfather’s journal, to “(l)et judges secretly despair of justice: their verdicts will be more acute.” He read the Bill of Human Rights, and even found some of it was true.

Toward the end of his life, as his golden voice faded to a gravelly stateliness, on many of his recordings he was often backed up by what seemed a heavenly chorus of female voices.

In a perfect afterlife, there would be just such a heavenly choir to welcome Leonard Cohen home.
That would be pretty to think, as many do. But as Leonard Cohen and others have felt, time to time, the siren call of rebirth, it would be prettier still to think of a return of that glorious collection of propensities to the planet the rest of us still inhabit.

We could use a voice like his again, in twenty years or so. Hallelujah.

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The Dirty Dozen


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

Alex Kozinski is a judge (and former chief judge) of the United States Court of Appeals for the Ninth Circuit. If a constitutional issue crops up in the Northern Mariana Islands, he’s your go-to guy. The fact that ten other state and territorial jurisdictions lie in his purview make his (and his twenty-eight colleagues’) impact of perhaps greater moment.

The fact that California is one of those states has prompted some critics to declaim something peculiar going on with that court.

Call me irresponsible, but I’ve always seen a particular charm in the peculiar. So, over the next little while, I’d like to examine some of this jurist’s views.

Not long ago Judge Kozinski examined some of the presumptions in our criminal justice system that, when confronted, blow a huge hole through which reasonable doubt may enter into our trials. There are twelve of them, which he outlined in a preface he wrote for the Georgetown Law Journal’s Annual Review of Criminal Procedure. Their titles are as Judge Kozinski presented them; the comments following are mine.

1. Eyewitnesses are highly reliable. This is the bedrock of trial testimony; everything else is circumstantial. But to a white man, every black man is Denzel Washington. In a crime involving a gun, is the victim looking at the gunman, or at the gun? In any high-stress event, are we Cool Hand Luke, or Barney Fife? Judge Kozinski says that more than a third of wrongful conviction cases involve mistaken eyewitness testimony.

2. Fingerprint evidence is foolproof. There are a lot of fools out there who have proven it otherwise. Prints residing in a national database and partial, blurry and stacked prints at a crime scene are such different things that far more guessing is involved than most fingerprint “experts” care to admit.

3. Other types of forensic evidence are scientifically proven and therefore infallible. Only on TV. Judge Kozinski cites error rates as high as sixty-three percent on voice identification; forty percent on average and up to almost one hundred percent on handwriting; up to sixty-four percent on bite marks; twelve percent on hair comparison. These are rates we send people to prison for, send them to their deaths. Men and women have been sentenced to countless years of prison, he writes, convicted on evidence by arson experts “later shown to be little better than witch doctors.”

4. DNA evidence is infallible. That would be true (maybe) if the trained professionals who collect and analyze the evidence were honest, properly trained and, incidentally, robots. The scandals involving FBI labs, local police labs — labs, in fact, in my home state — are plentiful. DNA evidence is pretty good — when it isn’t planted, tainted, or otherwise mishandled.

5. Human memories are reliable. What did you say? Why are we always the heroes of our own stories? Ever wonder why prosecutors like to prep witnesses they then advise never to talk with the defense?

6. Confessions are infallible because innocent people never confess. My own clients have confessed to the police based on information the cops claimed to possess, or on how the “facts” were presented to them — then later, after telling me what happened, learned that what they were about to plead guilty to did not fit what they actually had done. In some cases, no crimes were committed at all, but still they would have confessed. No wonder a person who represents himself is considered to have a fool for an attorney. And that doesn’t even begin to consider innocent people who confess under harsh interrogation, emotional or mental impairment, or just a pathetic desire to get it over with.

7. Juries follow instructions. No one can follow instructions he or she can’t understand, and that a judge can’t explain. Even the reasonable doubt instruction: what the hell is that? And because jury rooms are sacrosanct, we don’t even know if the instructions lawyers fight over are even read except by the judge, much less deliberated.

8. Prosecutors play fair. Please.

9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt. That must explain why prosecutors convict eighty-five percent of the people they indict. Not because presumption of innocence is a high-flown concept that flies high out the window as soon as a prosecutor asks his first question. Not because the prosecutor gets both the first and last words in a trial. Not because the prosecutor has the authority and financial power of the state at her call. Those poor babies.

10. Police are objective in their investigations. I have rarely — so rarely that I seek them out afterward if they have not done this, to thank them — heard a police officer who did not lie at trial, under oath, in front of God or anything at all they consider holy. They are even more rarely simply evil people; they are men and women who believe the defendant is guilty, and want to make sure the jurors believe it too. To this end they will, as Judge Kozinski writes, manufacture evidence, destroy evidence, influence witnesses, and extract false confessions. Did O.J. Simpson murder his wife and her friend? Absolutely. Did the cops frame an innocent man? No, they framed a guilty man, and the jurors saw through that. The criminal trial that acquitted him and the civil trial that condemned him both were proper results.

11. Guilty pleas are conclusive proof of guilt. They are rather, in many cases, conclusive proof prosecutors care more for convictions than for justice. Guilty pleas are coerced by overcharging so that terrified defendants are bullied into taking a lesser plea to avoid the risk of prison. Many clients will “take the deal” because their own lawyers are telling them it’s safer than rolling the dice at trial. Sometimes the price is trivial; sometimes it is devastating; always it has nothing to do with justice.

12. Long sentences deter crime. They deter further crime by the people who are serving those long sentences, until they get out and many discover how difficult it is to rejoin their communities after so long behind bars, and commit crime again. I suspect that few if any persons who have time to contemplate an upcoming crime first consult Google about their likely sentences if caught. I know they don’t call me.

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