Gamso - For the Defense

...and I don’t want names... Which means h...

2012-05-26T12:40:44.483-04:00

...and I don’t want names...

Which means he does want names but for reasons involving the system of (in)justice, he isn't asking for them.

This is ridiculous. Once again the USSC proves that every single one of them should be fired and replaced with a natural born US citizen of upright moral character, average intelligence (or better)... okay, someone who can read and refuses to be confused by verbose, didactic arguments from a professional hair-splitter on steroids.

The State tried and failed to convict. Kick the poor bastard to the curb and call for the next case, and make it a good one this time.

Persecutor: Objection, Yerhonner! That ambulance ...

2012-05-25T16:53:58.717-04:00

Persecutor: Objection, Yerhonner! That ambulance chaser is trying to cast aspersions on my Expert.
Judge: Sustained.

Our system of (in)justice never ceases to amaze me. Truly, it takes a government to screw something up this badly.

While it's certainly true that the system is FUBAR, there is plenty of blame to go around. The parents fail to teach their children the truth about the police, what a policeman will help you with and what you should talk about if you're ever arrested.

My other gripe is with the attorney, who (we all hope) knows how the law works and how it really works, but also knows all about forensic evidence. How many criminal attorneys defend someone in a gun crime or a crime involving firearms but have never once been to the range and don't have the faintest idea about the very real differences between the Glock a cop carries in NYC and the Glock his client hauled out of the sock drawer at three in the morning and used to ventilate a choir boy led astray? When was the last time you went out to the range, Jeff?

Then there's the absolute CRAP about Linda S. Cook, who never did any time at all for her crime. Sure, she's disbarred in Ohio, but so what? That lady belongs in the big house.

And I'm not even going to say the 'Z' word...

To these eight members, who exactly is clemency fo...

2012-05-23T07:43:01.378-04:00

To these eight members, who exactly is clemency for?

Here I go, writing all this elegant, high-minded s...

2012-05-17T08:27:52.918-04:00

Here I go, writing all this elegant, high-minded shit, and you drag it through the gutter.

Have you no shame?

I can't help but wonder whether the title of t...

2012-05-17T08:22:16.397-04:00

I can't help but wonder whether the title of this post is intended as commentary on Naomi Wolf.

Nice post. I was talking about this subject with ...

2012-05-16T17:12:28.892-04:00

Nice post.

I was talking about this subject with a few friends the other day, all of whom I consider to be intelligent, erudite adults. I proposed that the facade of freedom that we enjoy today will have disappeared during my lifetime; that Federal law will have restricted our civil rights to the point of practical extinction. I also predicted that at the same time, daily life wouldn't change. People would still get up, go to work, come home and have dinner, watch TV and maybe pat momma on the ass.

How bright do you actually think the average man is, anyway? Do you really think the average man is capable of understanding the implications of suppressing our constitutional rights? Because I don't.

Question for you: I've now finished the book. ...

2012-05-16T11:39:37.520-04:00

Question for you: I've now finished the book. One of my favorite of the stories is "Summertime." However, I remain befuddled by the last paragraph, which suggests that the criminal defense attorney pulled a fast one on the prosecutor and the court with his "time zone change" argument. Admittedly I'm slower than the average bear but I'm still not seeing the flaw in the argument that got the defendant acquitted. I'd be grateful if you could clear this one up for me.

Your post prompted me to finally buy Crime, though...

2012-05-13T23:15:58.848-04:00

Your post prompted me to finally buy Crime, though I've meant to do so since reading Norm's posts on Schirach. I'm just now starting Cello. I had the impression from Norm's posts and the preface that these were nonfiction stories, but the copyright notice at the beginning, the book's location in the fiction section of the bookstore, and the details in the stories lead me to believe otherwise. Still, so far a very compelling read.

Irving Younger said it far better than I can: &qu...

2012-05-10T14:48:26.435-04:00

Irving Younger said it far better than I can:

"The best of all guides to thinking about anything is Oliver Cromwell's adjuration to the General Assembly of the Church of Scotland, 'I beseech you, in the bowels of Christ, think it possible that you may be mistaken.' Life and the affairs of the living are so tangled, the world not only stranger than we imagine but stranger than we can imagine, that all questions are conundrums, no answers 'correct.' Is it certain that parallel lines never meet? No. Does water freeze at thirty-two degrees Fahrenheit? Only probably. Shall I marry? Who can say.

"And yet the world's work must be done. One Oblomov is enough. Thus we learn a conventional certitude, acting as though all were light by blinking the shadow. A simple proof demonstrates that parallel lines meet, but, on the assumption that they do not, the architect builds the skyscraper. Despite extensive knowledge of statistical mechanics, the engineer designs the refrigerator to maintain a constant temperature of thirty-one degrees. 'Le coeur a ses raisons que la raison ne connait point,' and families are raised."

The correct answer to every legal question is "It depends." The correct answer to every significant question of philosophy and perspective is "Perhaps."

I said that there can be a few circumstances in which an Anders might be in a defendant's interest. I also said that I don't know what case I'll undertake next week that simply has nothing I can argue.

The only rules of criminal defense are that you represent the client and do what's in her best interest within the bounds of the law. Beyond that, it's all case by case.

I should mention that, in reference to my above co...

2012-05-10T14:23:25.949-04:00

I should mention that, in reference to my above comments, in my district, an Anders brief won't trigger an AUSA into revoking a plea agreement - doggedly pursuing a frivolous appeal will.

My 2 cents. I've written on, and won a few is...

2012-05-10T14:16:05.513-04:00

My 2 cents. I've written on, and won a few issues in front of the 9th Circuit, and have certainly lost more than I have won. I'm just about to file my first Anders brief.

Case in point, client flips before trial, requests more than a few 5k points and a downward departure for time served in a Mexican prison waiting extradition. At sentencing, Client asks trial attorney to argue for double the amount of credit for time served based on the fact the conditions of the foreign prison where he spent awaiting extradition to the United States were inhumane (no evidence was offered on this issue, however). Trial attorney argues for a 40 month departure as requested by Client. Court gives a low end guideline sentence on a Level I Hx. Court then departs 2 levels under 5k1.1 and gives an additional 20 month departure which represents time served in a foreign prison awaiting extradition.

Client wants to appeal the sentencing on the basis that he didn't get enough credit for the time he endured in a foreign prison awaiting extradition to the U.S - he says double what the BOP allows. The plea colloquy could not have been more thorough. The plea agreement contains a waiver of appellate rights.

Client has no non frivolous grounds to appeal. Even if he could, however, he would end up breaching the plea agreement and losing his 5k, would potentially lose his downward departure and risks being tied to a 924(c) charge, plus additional weight that the government did not charge as part of the plea deal.

Sometimes, an Anders brief is in the best interests of a client, even though the client may not think so.

I don't think so. I've written a bit abou...

2012-05-10T11:03:16.152-04:00

I don't think so. I've written a bit about the assault on lawyers here before. I think it's real and ongoing. And sure it's a matter of degree. But when the gap in degree is sufficiently broad, and I think it is, pretending that we're all in the same sinking boat is misleading and not just rhetorical hyperbole.

That much said, Niemöller's words are as sure an answer here as they are everywhere else.

I think you're underestimating the risk to law...

2012-05-10T10:55:09.213-04:00

I think you're underestimating the risk to lawyers in the US, and in particular the erosion over the last 20 years or so in the respect, approaching reverence, for the extremely important role independent lawyers play in preserving a harmonious polity.

We may still have it "pretty good" here, but increasingly that is a matter of degree, not kind.

"And even if the client is guilty." Som...

2012-05-06T11:06:09.291-04:00

"And even if the client is guilty."

Something which, it seems, is impossible for Nancy Grace or those of her ilk to comprehend. Until I heard these harpies in action I had presumed that "The Furies" were mythological. Despite their various claims to legal expertise they:

Don't understand the US legal system
Don't know the law and
Cannot understand evidence.

Quite the triple threat, one and all.

Yeah, but if you reasonably doubt that the already...

2012-05-04T11:34:56.604-04:00

Yeah, but if you reasonably doubt that the already licensed will carefully oversee the pro bono work of the unwashed unlicensed lawyers, what makes you think those same already licensed lawyers will carefully and happily perform the needed pro bono work themselves? I'd assume there's some kind of accountability built in to these kind of arrangements, so that if the unwashed unlicensed lawyer totally screws up the licensed lawyer supervising him is also on the hook.

Really? You're going with "You people&quo...

2012-05-03T03:01:01.288-04:00

Really? You're going with "You people"? Eat a dick. I've got plenty of problems with our legal system, but as a graduating law student (who has done manual labor the entire time in order to keep my debt down - and is grateful that I even had that opportunity), myself and many of my colleagues took on this debt in order to try and help people, and we are frustrated with a system which demands pro bono work from beginning lawyers instead of advocating policy that would help fund legal services for the poor. So that, you know, the poor get EFFECTIVE lawyers, and those lawyers can make a goddamn living. Not tons of money, but a living. I forgot, as lawyers, us people shouldn't demand a living.

PRO-BONO = OHIO PUBLIC DEFENDER

2012-05-02T21:02:54.267-04:00

PRO-BONO = OHIO PUBLIC DEFENDER

As a soon-to-be newly minted lawyer, I have anothe...

2012-05-02T15:37:22.042-04:00

As a soon-to-be newly minted lawyer, I have another idea: How about an incentive such as government subsidized malpractice insurance for those who do pro-bono work? Or a reduction in student loan debt for those who do enough pro-bono work? I think many lawyers just starting out (and who don't have jobs) are LOOKING for cases and clients. These types of incentives would help.

I don't think the mess was entirely made by la...

2012-05-02T14:08:39.825-04:00

I don't think the mess was entirely made by lawyers, but it's surely true that lawyers have to be the ones primarily responsible for fixing it. Except they shouldn't do that on the backs of the clients - or through the forced labor of those who hope someday to become lawyers (which tends to dump the problem onto the backs of the clients).

So how long does it take to actually bill 50 hours...

2012-05-02T13:50:42.649-04:00

So how long does it take to actually bill 50 hours?

As far as the debt argument, I don't agree with you. These people want to be lawyers and they went in debt to do it. No one coerced them into law school; they made that mistake all on their own. Now they can live on $23 a week until they get that big civil class action suit that's going to keep their woman in high heels for the next 30 years.

Prada, sweetheart. Prada.

I'm not buying into this one very well, Jeff. You people in the legal system put this nightmare together, you people are the ones refusing to take it apart. You people can suffer for it. Trials take years to get in front of a bench, judges refuse to dismiss cases that should never have made it past a prosecutor's round file and lawyers create documents that exceed one thousand lines and call them briefs - and they ain't referring to their jockey shorts, pal. Then these same legal beagles try to get evidence thrown out, eye witnesses discredited and cite references to court decisions that go back over one hundred years which they talk about like it was yesterday.

No. You busted it, you fix it. And if fixing it means you put in an extra 80 hours a week for which you won't get paid, just think about that big, fat civil case that's going to pay for next year's Porsche.

Now that I will be able to walk threw the valley, ...

2012-04-30T15:09:47.494-04:00

Now that I will be able to walk threw the valley, with the shadow of evil, I still will fear death ... your rod and your staff will forever beat me down and I will dwell in the house of the condemned forever.

I kind of expected that of you.

2012-04-22T21:06:22.033-04:00

I kind of expected that of you.

I of course agree with everything you've writt...

2012-04-22T20:46:22.143-04:00

I of course agree with everything you've written, but just had to quibble over the j-word again over at my blog. Couldn't help myself.

A thought-provoking post. Before I read the post, ...

2012-04-17T16:36:48.891-04:00

A thought-provoking post. Before I read the post, I was all for Gore's execution. But this post made me think twice. Not that my thoughts matter, he was executed anyway.

yes, Virginia, there are legal ethics I th...

2012-04-16T11:38:35.861-04:00

yes, Virginia, there are legal ethics

I think the ethics are enumerated in the fine print at the bottom of page 1021 - the footnote section, I believe that's called. It's in the chapter entitled "General Guidelines and Suggested Practices".

Charity Smith attempted to pull out onto a highway...

Not so. Charity Smith successfully pulled out onto a highway, right in front of Bostick. It's very likely Charity was tired of waiting for her turn to go-go-go and decided that Bostick would stop or slow down for her. He didn't, and as a result of Charity's suicidal driving style, Charity is now on the wrong side of the lawn and her passenger did some time in the hospital. The fault here lies with Charity and no other.

What, you never had some silly bitch pull out in front of you? No harm, no foul - right? Wrong. Charity learned from her bad behavior and the lesson was that behaving badly paid off with a desired outcome - you got to go to the head of the line without waiting, and as a secret side bonus you got to screw someone over who probably deserved it. Charity isn't alone in this.

I'll tell you one thing you nailed with all six shots in the bull - Bob Whitwell. Whitwell could kick himself all over the place about what happened, and if the governor confronted Whitwell, he could do some explaining. Whitwell could also fire Bostick as a client, denounce him as a friend and privately castigate him as a public menace to society who ought to be in prison for the next 25 years.

Good job on the post, Jeff. Keep up the good work!