What protects the defender? A radical difference in rules

In stark contrast to the jurisdiction in which I used to practice:

Appeals court rules against Minn. man who punched defender

Published May 13, 2008

ST. PAUL — Punch your public defender in court and you’re on your own, that’s the message the Minnesota Court of Appeals sent a Chisholm man on Tuesday.

William Edwin Lehman Jr. pummeled attorney Mark Groettum in a Hibbing courtroom during his July 2006 trial on felony assault.

Lehman challenged a decision to deny his right to court-appointed counsel and a decision to shackle him for the rest of the trial. He also complained that no evidentiary hearing was held on the matter.

 

The three-judge appeals panel says the district court did not abuse its power by denying Lehman a new public defender. They also say it was justified to shackle Lehman and say a separate hearing wasn’t necessary because Lehman punched his attorney in front of the judge and jury.

That should be the rule across the board!  Punching out your public defender - or your paid lawyer, for that matter - in open court is the most graphic demonstration there could be that there has been a total breakdown in communication between attorney and client, and that there is not and cannot any longer be the necessary trust to maintain such a relationship.

The ruling in my (former) jurisdiction, is counter-intuitive in the extreme.  I quote directly from the relevant State Supreme Court case, that “Defendant was not entitled to appointment of new counsel after he struck public defender wh had been appointed to represent him on head with chair, in the absence of evidence that defendant’s rights were prejudiced by public defender’s representation and in view of fact that defendant had embarked on deliberate course designed to delay and disrupt his trial”  Clearly, an educated and professional attorney may be able to set aside his personal feelings and continue to fairly and competently represent a defendant.  But the attorney/client relationship is two-way.  The question is not only whether the attorney can lay aside any personal animosity and remain impartial in his/her representation, but whether the defendant trusts and is willing to communicate with and work with that attorney.  If a defendant disagrees with and distrusts his attorney to the point where he physically assaults the attorney in the courtroom, or even verbally threatens the attorney with bodily harm or death, as happens on occasion to most public defenders, what does that tell you about the quality of their relationship?  What dies it tell you about the client’s willingness to be truthful with his attorney, or to cooperate in a proposed defense, or to reliably provide information on witnesses and facts that would either help or harm his case?  In the absence of evidence of severe mental illness, the only reasons that a defendant would attack his attorney are malice, or frustration at his inability to control the proceedings, which he of course, blames on his attorney, rather than on the inherent position of a defendant in the justice system as it exists today.  The prosecutor controls what is charged and how, what is offered and why.  The judge controls the procedure and demeanor of the courtroom.  The defendant is in control of - what?  Whether to plead guilty or not guilty.  Whether to accept or reject an offer tendered to him/her.  Whether to proceed to a bench trial or a jury trial.  Whether or not he/she testifies at trial or sentencing.  The rest is strategy, and if there is a disagreement in how to proceed, the attorney may accept or reject what his client wants him to do, based on both ethical concerns, and what is in the client’s best interest.  And there’s where the conflicts usually arise.

The defendant may want to claim alibi when four or five eyewitnesses are willing to testify that he was there.  The defendant might insist on a speedy trial in the belief that the witnesses won’t show up, when you have spoken with them, and know that they will, and they will testify in a way that is damaging to your client.  He may insist on this, despite your well-founded belief that his confession should be suppressed on grounds of defective Miranda warnings and physical/psychological coercion.  The defendant might mistakenly believe that you somehow can force the judge to dismiss a case on the bare assertion that the witnesses are lying; or that you can dictate to the prosecutor what an appropriate offer should be.  There’s a thousand ways that misunderstandings can arise, and it is in the nature of being a public defender that openness and trust is difficult to initiate and sustain.  Most such conflicts can be worked around.

But when the conflict rises to the threat of physical violence against yourself or your family, or to actual physical assault - that’s it.  The relationship has broken down.  It’s OVER, folks.

The Eighth amendment protects a person convicted of a crime against cruel and unusual punishment.  What and who protects his attorney?

5.12.08 7.8M Earthquake in Sichuan China; Maybe I’m not so bad off after all

from www.youtube.com posted with vodpod

 

This video was actually taken by a student in his dorm room during the earthquake.  Last I heard, the magnitude of the quake had been re-estimated as 7.9 on the Richter scale.  The shock was felt as far away as Beijing, and as many as 313 aftershocks have been reported.

This, coming so soon after the Myanmar cyclone disaster raises a lot of concerns in my mind about aftereffects.  I can remember back in 2004/5, taking our Christmas vacation in England, and waking after a miserable day of jet lag to find that there had been a massive tsunami in southeast Asia.  Every day, we went out and did the tourist thing, every night, we’d come back to home base and hang on the latest news on the ticker about damages and casualties.  A lot of our spare change that trip went into tsunami relief collections, which it seems were being organized in every pub and tearoom across the country.

This is going to take just as massive a relief effort, if not more.  It will be interesting to watch the news as it comes out.  Where is most of the relief going to come from, will China let foreign aid workers in to assist, as Myanmar apparently is unwilling to do?  And if not, how is the food and water and medical supplies and such going to be transported in?  Reports on the news seem to indicate that communication to some areas is largely cut off and roads into and out of the area are blocked by landslides.

There’s a horridly fascinating photo-essay/slide show to be seen here:  http://www.msnbc.msn.com/id/24578006/displaymode/1107/s/2/framenumber/1/

Some quotes from the MSNBC story:

“In the town of Juyuan, south of the epicenter, a three-story high school collapsed, burying as many as 900 students and killing at least 50, Xinhua said. Photos showed people using cranes, mechanical hoists and their hands to remove slabs of concrete and steel. As many as 2,300 people were still buried under rubble, Xinhua said.

Teenagers struggled to break free from the rubble, “while others were crying out for help,”  Xinhua said. Families waited in the rain near the wreckage as rescuers wrote the names of the dead on a blackboard, the news agency reported.

Parents of the dead students built makeshift religious altars at the site, resting the corpses on any available piece of plywood or cardboard, and burning paper money and incense in a traditional honor for their child in the afterlife, according to NPR’s Melissa Block. “

“The earthquake hit one of the last homes of the giant panda at the Wolong Nature Reserve and panda breeding center, in Wenchuan county, which remained out of contact”

“About 600 people died in Shifang city, which was the site of a major chemical leak. The Xinhua report did not say whether people were killed by the quake or the chemical leak.”

I wonder if people in Asia watched with just such fascination as the reports of the devastation Hurricaine Katrina visited on New Orleans and the south Gulf Coast came slowly out of the area hardest hit?

Suddenly being unemployed and on relief seems pretty petty by comparison…

The Daily Bird 13: Summer Goldfinch

I think I have a mated pair out here.  The fellow with the black mask who sits on the branch all puffed up and proud looking is the male of the pair.  The slightly drabber birdie sitting in the fork of the tree is his mate.

These little tweters sit still even less than the chickadees do.  They settle on a perch for a few seconds, then jump to another on nearby for the next few seconds, then do it again.  And unlike chickadees, they’re shy.  It’s hard to imagine something that wears such brilliant and noticeable plumage as being “shy”, but it seemed like all I had to do was point the camera in their direction, and off they went.  The male has a sweet, canary-like song that is unmistakable, but in the middle of dense green leaves, you have to look to see where and who it is coming from.  Brilliant yellow notwithstanding, you have to look.

In any event, these two ar a fine looking young couple, and should produce handsome and hungry nestlings in short order.  Time to put out the thistle seed again.

I wonder where the nest is?  Not that They’re going to tell me!

Weird British Laws… or is it any wonder the colonies rebelled?

Courtesy of Mirror.co.uk  (http://www.mirror.co.uk/news/topstories/2008/03/20/did-you-know-it-s-illegal-to-die-in-the-house-of-parliament-britain-s-silliest-laws-revealed-89520-20356691/ )

My own comments will look like this

We’ve unearthed some of the oddest laws still in force.

So, read on if you don’t want to fall foul of the law by forgetting to wear your socks in the presence of the Queen…

* IT is illegal to die in the Houses of Parliament. We’re not sure what the punishment for this particular offence would be.   At the very least, banishment from all further legislative committees

* IN a law passed in 1837, women are allowed to bite off a man’s nose if he kisses her against her will.

* IF you’re exercising your dog in the park and Princess Anne strolls into sight with her bull terriers, don’t let Fido get overfriendly with the Regal Rovers. A law enacted by George I states that: “The severest penaltys will be suffered by any commoner who doth permit his animal to have carnal knowledge of a pet of the Royal house.”

* Proof that not all loopy laws come from the olden days is the UK’s Tax Avoidance Schemes Regulations of 2006. This makes it illegal not to tell the taxman anything you don’t want him to know - but you don’t have to tell him anything you don’t mind him knowing.  I thought this sort of thing was an exclusively American folly…

* It is illegal to stand within one hundred yards of the reigning monarch when not wearing socks.  How about when not wearing pants… 

* A law passed by Oliver Cromwell in the 17th century bans the eating of mince pies on Christmas Day - because the festive treats were not considered puritan enough.

* In 1307 it was decreed that the head of any dead whale found on the British coast becomes the property of the king, while the tail belongs to the queen - should she need the bones for her right royal corset.

* Royal Navy ships that enter the Port of London must provide a barrel of rum to the Constable of the Tower of London. This is marked by the ceremony of the Constable’s Dues, where the Royal Navy moors a ship at the Tower Pier and the captain delivers his alcoholic tax.

* It’s great if you are a Freeman of London. Not only are you allowed to drive a flock of sheep across London Bridge without being charged a toll, drive geese down Cheapside and get married in St Paul’s Cathedral, but you will not get arrested if found drunk and disorderly.

* Welshmen are banned from entering the city of Chester before sunrise and from staying after sunset.  I’ll take this one as something of a challenge…

* If it’s a sunny but frosty day you can forget having any fun. The spoilsport Town Police Clauses Act of 1847 bans the use of any slide upon ice or snow.

* Londoners are breaking the law if they have a pigsty outside their homes.  Ah, but INSIDE…

* In York you really can get away with murder, if you pick the right target. It is still legal to murder a Scotsman within the city’s ancient walls, but only if he is carrying a bow and arrow…  More relevant to all you Anglo-Saxonists, is it legal to murder a Norman/Frenchman with your own bow within the city’s ancient walls?

* …and in Hereford, you may not shoot a Welsh person on Sunday with a longbow in the Cathedral Close.  But with a short yew bow on the streets of the market, you might get a pass?  Or on every other Thursday before noon while using a crossbow?  And what if you are that Welsh person?

* In Lancashire, no person is permitted to incite a dog to bark after being asked to stop by a constable on the seashore.

* A motorist who feels compelled to urinate in public can do so only if he aims for his rear wheel and keeps his right hand on his vehicle.  But does he have to lift his leg and bark?

* A law enacted by Edward VI states that anyone found breaking a boiled egg at the sharp end will be sentenced to 24 hours in the village stocks.

* It is an offence to beat any carpet, rug or mat in any street in the Metropolitan Police District, although you are allowed to shake a doormat before 8am.

* It’s not the drugs - it’s the titfer that’s got Pete Doherty in trouble this time. A 1797 law forbids people to wear top hats.

* And finally, think before you pop that letter in the postbox - or you could lose your head. It is an act of treason to stick a postage stamp bearing the British monarch upside down.  And automatic banishment to Australia if you draw a mustache on her first…

The Bare Facts About Russian Bicyclists

video source posted with vodpod

The Daily Bird 12: A Real Live Bald Eagle!

On the way down to the county seat in the next county southwest to drop off my resume, I almost made myself late spotting this oh, so dignified soul perched high in a tree along the riverside.  I couldn’t help myself.  While I’ve seen bald eagles soaring overhead on a few, rare occasions, I’ve never been in a position to catch an even half-decent photo.  This one - he seemed content to spend all the time that I might ask of him just posing for me.

They are truly magnificent birds!  Even in the course of losing and then regaining balance, with wings askew and feathers and talons whipping out in all directions, he managed to retain a certain fundamental dignity to him.

If a hawk is a good omen, then what is a bald eagle?

Anyway - enjoy the photos.  I believe I noted that his leg was banded, so his movements are being monitored in some manner.  Still - this was all in the wild, not in a sanctuary or an aviary or, god forbid, a zoo.  This is the bird as he was meant to be. 

I can see how the bald eagle won out over the wild turkey as the national bird of the US. 

Can you imagine a turkey as a symbol on the presidential seal, or on a coin?  Not quite.

Beauty on the wing.  Nothing else to say.

 

Unemployment sucks

Today, I found myself in the company of the sorts of people I used to represent down at the unemployment office filing for my own benefits.  It was an experience.  One best not described in any detail.  The personnel were all very nice, expedited and backdated my paperwork for me, since the on line resource refused to accept my birth date as valid for some odd reason.  I did appear to be a rather unusual case for them -  they rarely get attorneys, and the reason for termination was rather unique.  They were kind enough to take their time with me, hand me over Kleenex for my tears - still can’t quite control ‘em at times - and advise me in plain English on the proper procedures to run through to verify that I am seeking work during any 2 week period that I’m claiming benefits.

I hated every minute of it, needless to say.

On a more positive front, I had a pleasant mini-interview with a private attorney who has recently lost 2 of his partners.  He seemed interested, and spoke very well of my reputation in the legal community as a whole as well as just among my former co-workers.  This was good.

I also secured a promise of assistance and letters of recommendation if needed from the local federal judge, and from at least one of the judges I regularly practice before.

Another resume was dropped off with a family law firm who is looking… I’m not expecting much there, but what the hell.  And I took a nice, pleasant drive down the river to the courthouse in the next county southwest to apply for a position as an Assistant State’s attorney.  I ought to be more than well qualified for the job - and they have a rare felony murder case that has just been indicted there.  Attorneys who have tried murder cases are rare enough in that area.  I’ve done 4 to jury, I think, and negotiated many more, as well as other serious felony cases.  If there’s a trick a prosecutor hasn’t tried on me, it hasn’t been thought of yet - and if there’s a legal defense strategy I haven’t at least tossed around and thought about, it’s got to be pretty esoteric.  I could be valuable to them.  We shall see.

The Spouse has also been getting his resume about in the quest for a stable income from at least one of us, and has a very promising prospect pending.  Any and all of you who know me, put in the good word with any deity you consider worth the effort.  I’ll take Jesus, Allah, Buddha, Vishnu, Confucius or the Great Mother - I don’t care.  No Satanic entities, though, please.  I do have my limits.

So it goes.  Back to the doc for an update on the salivary gland biopsy tomorrow, and then on the road again!

Something will come through.  I’m too damned good of an attorney for it not to.

Them Critters Out there

I woke up this morning, and as usual, looked out the glass doors into the back yard.

The feeder was on the ground again, and emptied of seed.  I don’t know how they do it!

Curses!  Squirreled again!

And on another front, I now have pretty graphic proof that I have successfully invited a hawk to dine at our home-acre lunch counter.  I had a minor surgical procedure done this morning.  When I came home, there at the foot of my driveway where nothing had been when I left, was a single dis-articulated wing.  It looked as though it had once been attached to a robin.  Just a wing.

A cat would have done it at night, and would have crunched up birdie wing, feathers and all.  Diurnal hunter who isn’t interested in nasty, bony, feathery stuff with no meat in it?  Hawk.  From the size of the prey, it must have been the Cooper.

I was rather expecting this in time.

And last night, our deck was visited by the biggest, boldest, most curious raccoon I have seen in a long time. He easily made up 2 of our cats in size.  Maybe all three.  He walked up to the screen in front of the closed sliding glass and peered in, like the masked bandit casing out the joint before he burglarized it.  Absolutely brazen!  Then he climbed up the wooden railing, marched over to the gas grill and sniffed at it hopefully before sauntering off back toward the woods again.  Pretty amusing, all told.

Ah, well.  Back to resume development and refreshing job-search skills.  Boring but necessary.

Good To Know…

The Dante’s Inferno Test has sent you to the First Level of Hell - Limbo!
Here is how you matched up against all the levels:

Level	Score
Purgatory (Repenting Believers)	Low
Level 1 - Limbo (Virtuous Non-Believers)	High
Level 2 (Lustful)	Low
Level 3 (Gluttonous)	Moderate
Level 4 (Prodigal and Avaricious)	Very Low
Level 5 (Wrathful and Gloomy)	Low
Level 6 - The City of Dis (Heretics)	Very Low
Level 7 (Violent)	Moderate
Level 8- the Malebolge (Fraudulent, Malicious, Panderers)	High
Level 9 - Cocytus (Treacherous)	Low

Take the Dante’s Divine Comedy Inferno Test

The Daily Bird 11: White Throated Sparrow

You know, I used to think a sparrow was a sparrow.  Single species, urban pest, seen everywhere, with the world’s messiest nest; a nest which it was my grandfather’s delight to rake out from under the eaves of our house, accompanied by much swearing in German which I dutifully filed away for future reference and sometimes still utilize to this day.  House sparrows were all I ever noticed.  Was there any other sort?

I’ve learned.  So many of the birds I’ve highlighted here are sparrows.  Even the dark-eyed junco is a species of sparrow.  And oddly enough, the “House Sparrow” is not even a sparrow - it’s a member of the Weaver Finch family.

Sparrows are not just brown SCB’s.  They have tremendous individual variety both within and without species.  Here, for example, is the White-Throated Sparrow.  There are 2 morphs of this bird, the white morph, and the tan morph, based on the color of the stripes above their eyes, flanking the central black head-stripes.  I think I may have both of them here.  Oddly enough, a breeding pair usually consists of one partner of each morph - a tan female and a white male, or the other way around.  Clearly, these little birds have no racial issues.  We should be so sane ourselves.

 

Why they call them “White Throated Sparrows” when the yellow eye dot is so unbelievably striking is beyond me.  It was the first thing that jumped out at me.  Bright yellow, almost glowing out from among the branches of the scrubby trees in the back yard.  They don’t visit the bird feeder at the perches.  They prefer to scratch in the sparse grass, that curious hopping double-footed scrape, looking for seeds, bugs, bits of fruit - all birdy delicacies.  And in the grass at the edge of the woods, unless you catch that sunlight flash of eye-spot, their coloration blends so perfectly that you almost don’t see them until they move.

A sparrow is not just a sparrow.  Not at all.  Fascinating little SCB’s in all their varieties.