Facts are not facts until the jury says they are facts. Got it?

Posted: February 17th, 2014 by Mirriam.

When I was a young person, someone who did science experiments in school and wandered through life blind and naive, I thought ‘facts’ were real things – things that could be proven time and time again. Sure, sometimes things we called ‘facts’ would be disproved (unless you are one of 25% of Americans who still believe the sun revolves around the Earth, or the some staggering percentage that thinks the earth is 6,000 years old) by other science and newer methods of finding stuff out. Facts you could count on. They just WERE.

“Is that a fact?”

“Get your facts straight.”

Oh, the joys and privilege of youth.

When I started law school, I heard of this concept “the finder of fact” and it was very hard to wrap my brain around. Facts are not, in fact, what you say they are.  They aren’t what I see with my eyes or hear with my ears. Not in a criminal jury trial anyway. There are no facts until the jury says what the facts are. In a jury trial, the jury is the ‘finder of fact.’ (In a bench trial, the judge is.) I present my facts as the criminal defense lawyer (if I feel like it, but I have no burden so nah nah nah nah nah) and the prosecution has to present their facts. Then we engage in the duel that is the trial with sparring on cross-examination, various objections to keep things out or let things in. We weave and dodge and punch and kick and at the end of it all, the jury gets to pick which things they think are true and which they don’t. And if they decide it is a fact, it becomes one. No matter what you think. Or I think. Or the prosecution thinks.

This past week, Michael Dunn was found guilty of various counts of attempted murder and there was a mistrial on the top count of the murder in the first degree of Jordan Davis. They called this case “The loud music case.” Basically, if you’ve been under a rock I can summarize it – Jordan was in his car with some friends. They were playing loud music. Dunn told him to turn it down. Jordan said no. Or said yes. Jordan either pulled what looked like a gun out and pointed it at Dunn or he didn’t. Dunn went to his car and got his gun and shot at the car. He was either afraid for his life or he wasn’t and just wanted to kill black kids.

See, there are no facts in that case on the top count. Not legal ones. In the criminal prosecution we do not know if the jury thought Jordan Davis had a gun or if Michael Dunn is a racist because the finder of fact could not come to a decision. We do know that they believed he shot at those other kids in the car and attempted to kill them. What happened before is still not sorted out.

Here’s the kicker – if the jury had decided that Florida’s stand your ground law was applicable, if they thought Dunn acted in self defense, then THAT would be the fact. It would be the truth just like saying the Earth revolves around the sun is a fact. Just like saying the earth is much, much older than 6,000 years old. And, if you said on twitter or somewhere else, that Michael Dunn shot that kid just because he wanted to and it wasn’t self defense, well, you would be wrong. It’s a belief that has no support because the finder of fact decided otherwise.

“Oh no, not guilty, that can’t be. What about all those people who are found innocent after convictions. The jury found facts and they were wrong.”   But friends, it is right – see above sun and Earth.

Juries can be wrong. They can be wrong insofar as they are human beings and human beings are fallible, they can only work with the tools and information they have and if they are given shitty tools and incomplete information then they are going to get shitty results, wrong results.

—-

The Michael Dunn case is tough. It’s dangerous these days to talk about defending people who shoot black kids. It’s always been tough to talk about defending people accused of child sex crimes but we’ve gotten used to that, I think. I know right now, I am afraid to talk about this case for fear of being called a racist when, in fact, I am worse than that – I am a criminal defense lawyer. Race doesn’t matter. Sex doesn’t matter. I couldn’t give a rat’s ass about your religion or your life philosophy. YOU are what matter. My client. My own personal dogma gets pushed aside. And if I can’t do that, I can’t take the case.*

The truth is if my client is afraid of black people and has a reason to be afraid of black people and then kills a black person and I can show his fear is reasonable then that is what is going to happen. Racism is a bad reason to be afraid, but it’s not a legal reason not to be afraid. (That link is to a law review article entitled “Self-defense and the Mistaken Racist”) And if the jury is going to decide the fact that my client acted in self defense, then that is what it is.  That is my client’s truth. And while you can say ‘you don’t believe it’ it won’t matter.

Bernie Goetz anyone?

When folks say “George Zimmerman is a racist” that is probably true. But when they say “He didn’t shoot in self defense” that isn’t true. Those things are not mutually exclusive.

I’m sure this incenses many of you. It’s why we get the questions ‘how do you sleep at night’ and ‘how do you represent THOSE people?’ I can direct you to hundreds of posts by all kinds of lawyers who describe the hows and whys of our sleeping and representation. I don’t agree with a lot of the choices my clients make, but by the time they get to me my ability to use my efforts to judge their decisions is limited at best. In fact, it does my client no good. And my job is to do good for my client.

This is our system of justice. I rejoice when it works in my favor, which isn’t as often as I think it should be. But for as long as I can use the system I’ve got, I will. And keep trying to get the jury to pick MY facts.

* Thus far the only cases I won’t take are where the client’s family is just ugh. That’s where I draw the line.

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Please stop complaining about what you didn’t learn in law school.

Posted: January 15th, 2014 by Mirriam.

There are so many posts and tweets and articles written on what law school didn’t prepare us for. Marketers scream “law school didn’t prepare you to run a business and get clients!” People who want to ghost write for you scream “You didn’t learn to write persuasively and use proper fonts!” Criminal defense lawyers scream “How do I live with the constant stream of humanity that I see being wasted.” (Read that post, though, really.)

Look, I went to law school to learn how to pass the bar. I didn’t go because I thought it would teach me really much of anything. For that I went to work. I started in the DA’s office as an intern in the appellate unit, then in my 2nd year I got permission to try cases. So, I did that. Then I switched sides and went to work for a balls out criminal defense lawyer. He taught me how to work hard, and how to stand tough in the face of sometimes seemingly never ending criticism. Did law school prepare me to set up my office remotely from Starbucks? Nope. Did it help me learn how to be a human being and talk to people about what I do for a living so they can refer cases to me? Nope. I thought that being a living sentient civilized human being was part of me being a lawyer. So, that when I was a lawyer and people knew I was a lawyer because as a civilized human being I would talk to them, they might refer cases to me.

I’m not sure why law school has to teach people how to practice law.  Their goal is to teach you the law – the concepts of it, how to analyze and evaluate it. Where to find it and how to comprehend it. Each firm, each governmental entity, each person has a way of engaging in the practice of law that is unique. And, obviously, the law is always changing and how people practice it will change as well. (Aren’t we all ever evolving? Isn’t that the hope?) What worked for us 15 years ago simply doesn’t hold true today. But the things I learned in law school are still useful – I know how to read the law. I know the questions to ask myself when I read a case or a statute and I know that may means it could be and shall means it has to be.

My suggestion is this:  Law schools shouldn’t let in so many dopes who don’t realize that you actually go out of school and practice law – sort of like being a glass blower or an auto mechanic. This is a skilled profession. When you leave medical school you have to go and learn some things before you are allowed to perform surgery or take on patients. I guess it was too much to expect that people who went to law school would know that they should learn the things they need to learn before they go to practice law on their own. I don’t know that law schools thought people would leave school and go on and do, you know, whatever.

(But there are no jobs, what are we to do? We need to work. We need to pay back our student debt. Law school is a scam. They tell us there are jobs. There are no jobs. We need to work. I need to hang a shingle and claim my internships as experience and law school better give me that ‘experience’ and knowledge so I can go out and hang that shingle and have that ‘experience’ be real.)

When you go to law school you go to become a lawyer. You don’t go to philosophize on the law, unless you are going to be a legal philosopher. Which is fine. I philosophize on shit all the time (I was a philosophy major as an undergraduate. I won the women’s studies prize and the Minerva Prize for undergraduate scholarship. So suck it if you think I’m not a feminist.) But I wanted to be a lawyer who went to court and argued things and said “Objection!” so I had to learn how to do that. In order to learn to do that I had to take classes that taught me how to do that. I am fairly certain even your third tier law school has such classes (I went to a third tier law school and we had loads of those classes, as well as clinics.) I mean, did you not know to do that when you went to law school? What was so confusing to you?

Really, if there was a law school class on rainmaking I don’t know what it would teach – how to have lunch with your friends? How to play golf? How to not be a recluse and a socially awkward douchebag?

It seems the problem we have is that there are lots of people in the world who think law school is a way to 1. avoid deciding what to do with the rest of your life; 2. a good, easy way to make money; 3. learn how to be a human being who can be a lawyer. Perhaps you might want to take a good look at yourself and figure out why you want to go to law school before you go.  But stop bitching about how law school didn’t teach you how to manage your case files. That’s not what it is there for.

The truth is you won’t know how to be a lawyer from law school. Even if they stop doing law school stuff in the third year. You need experience and knowledge and you need to be melded and molded.

The only cure for inexperience is experience. Not law school.

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A day at the jail.

Posted: January 13th, 2014 by Mirriam.

I went to the jail today. I’d been putting it off for a long time, not because I didn’t want to go, but because I hadn’t gotten the discovery from the other side and needed to look at that before I met with the clients. It is, after all, helpful to know what he is accused of before I start formulating a defense. So I waited and waited and finally got some things in on a couple of them and drove out to the facility.

I know, in these pages, I’ve explained jail to you before. I don’t know if I had the words then to describe it to you in any way that can make sense. And I do wish I had folks who had been in jail who would or could express to you what it is like to be locked inside because I don’t know it from that perspective. But I can tell you that as strange as it is to go into a jail, it is even stranger to come out.

I think “wow, the sun is shining” or “there are people getting in their cars” or “that guy is listening to his ipod” and inside it is not like that at all. There are no windows in the housing units. There is no fresh air, fresh music, or cars. There are people who can get phones or drugs or other things, that’s true. But there are ordinary things that are considered contraband like books or stamps and envelopes and well, cigarettes are as bad as cell phones. And yes, you can say to yourself or to me that those people deserve to be punished, they’ve done bad things and don’t deserve to have the pleasures that we have (like stamps and envelopes and books) and it is probably true. People who do bad things need to be punished. I am aware of this. After all, I am a mother of twin boys  and well, need I say more?  And yes, some people need to be separated so they can’t cause more harm. I don’t necessarily disagree with that either. I’m not saying hey, let it go, let them go. Go on forgive and forget. Because, well, the fact is I don’t always forget.

I don’t always forgive.

And I don’t ever want this blog to be a place for hypocrisy.

When I leave the jail I am so grateful for every horrible thing I deal with out here. Seriously. I think you are a total asshole and I am glad I get to sit here and think it. With this window that I can open to let in the 27 degree air. I can go in my car and listen to Taylor Swift and order any book I want and look up and see sky or clouds.

I can see my kids.

In many jails people under 18 are not allowed to visit. My clients don’t see their children. For months.

Ah! Who cares! If they cared about their children they wouldn’t have . . . . (But sometimes that’s why they do it. Sometimes they don’t think of consequences at all. Sometimes they don’t know there are options or don’t see options. And sometimes kids just need to see their dad). What if I told you that today all three clients I saw, not one of them had any sort of relationship with their father. They laugh when I ask if dad ever took them to a ball game. They look ashamed as if somehow they were to blame. You probably don’t care. It isn’t your problem. It’s the problem of ‘those people’ and really, it isn’t my problem either except I want to know.

In some jails my clients are shackled when I see them. Chained to the wall and the floor. I am not afraid of them, never have been. And I hate the atmosphere this chaining creates. Hey master, this guy and I are on the same team. I am one of him and he is one of me. In others they don’t get to have in person visits at all with family. All are done on video. And they have to pay. And, if you say ‘well these people are all guilty! They are bad! Good!” First, you should know most of these places are where people are held before they are convicted (but fuck, who actually believes innocent until proven guilty anyway?) and well, what do you think will happen when they are released? Will they think kindly of our society and how it treated them when they were paying a debt they owed for crimes committed.

Jail always leaves me melancholy and yet I come out with this new, dewy vision of the world. It only lasts a bit though. Until the next time when I have to smell the smells and hear the sounds and the stories. And then I get to leave.

And there is sun. And sky. And Taylor Swift.

 

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The 4th Circuit Says C’mon Now, You Know That Isn’t Consent.

Posted: January 9th, 2014 by Mirriam.

The cases from the 4th circuit that we win are few and far between. By ‘we’ I mean to take credit for those defense lawyers that take up and throw down the appellate gauntlet in our hallowed federal circuit courts. This circuit in which I sit isn’t known for it’s kindness to criminal defendants, and yet there have been some very good decisions coming from them of late. I wonder how much of this is simply because they’ve been so lax for so long, that the liberties taken by law enforcement and the prosecutors just seem like, you know, COME ON.

In December of 2013 in the year of your lord, the 4th circuit handed down a great decision on consent. And it said there actually has to be consent for it to be consent. Not a grudging acquiensence to the will of the law.

The facts are as follows:

Some black guys in white shirts were chasing another guy. The other guy had a gun. I guess the police were looking for the black guys with white shirts. Jamaal Robertson was in a bus shelter with about 6 other black guys who had on shirts, some of them white. His was dark. There were about 5 police officers at this bus shelter and they were all questioning these black guys. This one officer,Welch, went towards Mr. Robertson who had his back to the wall of the shelter, a police officer in front of him, and four other officers around him and searched Mr. Robertson.

Unfortunately for Mr. Robertson, he did happen to have a gun on him. And a prior felony conviction. Which is a federal crime.  So he had a suppression hearing saying there was no probable cause to search him, and without probable cause there needed to be consent. And well, there wasn’t any consent because what else was he supposed to do? The 4th Circuit agreed and said since there was no probable cause there needed to be consent, and there was no consent because:

The officer’s questioning was immediately accusatory: Officer Welch’s first question was whether Mr. Robertson had anything illegal on him. When Mr. Robertson responded with silence, the officer waived Mr. Robertson forward and asked to conduct a search. Mr. Robertson’s exit was blocked by Officer Welch, who never informed Mr. Robertson that he had the right to refuse the search. Officer Welch’s initial, accusatory question, combined with the police-dominated atmosphere, clearly communicated to Mr. Robertson that he was not free to leave or to refuse Officer Welch’s request to conduct a search. Mr. Robertson’s only options were to submit to the search peacefully or resist violentlyMr. Robertson chose the sensible route.

What? Did the Circuit actually acknowledge what we’ve been saying all along? That our clients don’t actually, really, honestly have a choice when ‘asked’ to submit to a search? Could this be for real? When I ask clients why they consent to searches they inevitably give the same answer ‘what else was I going to do? Say no? We know what would happen then.” And we do know. The search will take place with or without the grudging submission by our clients. There is no saying no. I’ve never had a client say “I didn’t give consent and they didn’t search so they came back with a warrant like they said they would.”

I try to put myself in the position of the client. If I was asked to submit to a search, would I do it? Would I have the balls to say no you can’t search my car, my house, my body? I know better. I am fairly familiar with the law and I don’t know if I would say no. I may be too afraid of the consequences.

So thank you, oh kind circuit, for this case. And thank you, police officer for not adding things to make there be probable cause for the detention of Mr. Robertson. And thank you, appellate lawyer, for winning.

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