I sent a subpoena for medical records the other day...

...and I received their response in the mail. It states that they will not release the information requested without a release of information from the patient.

SHUT. UP. You mean I can just ASK the victim to sign over her sensitive medical documents so I can peruse through her past venereal diseases? I so didn't think of that.

On to plan B...

I'd rethink that strategy sir...

Now, I haven't been doing this very long, but I'm seasoned enough to realize that in child sex cases, it isn't beneficial to ANYONE to cross examine a child victim in a way that would "rip them apart." But that is exactly what defense attorney and state lawmaker James Fagan stated he would be forced to do if the State of Massachusettes implemented mandatory minimum sentences for child rapists. Actually, what he said went a bit further. And by "a bit further" I mean "batshit nuts".

Here is it:

"I'm going to rip them apart. I'm going to make sure that the rest of their life is ruined. That when they're 8 years old, they throw up, that when they're 12 years old, they won't sleep. When they're 19 years old, they'll have nightmares and they'll never have a relationship with anybody."

In his defense (if there is one), he was talking about what would be necessary to zealously defend his clients against their respective charges. In essence, because the penalties under the new "Jessica's Law" would be so steep, that he would have no choice but to further ruin the lives of the victims. I'm not a fan of taking sentencing discretion out of the hands of Judges (who face the penalties of being ousted by the electorate for bogus decisions) in favor of mandatory sentences. However, I think this man is sorely mistaken if he thinks that merciless cross-examination of a young child, in front of an undoubtedly sympathetic jury, is going to "help" his client. Instead of thinking backward, if faced with the prospect of increased sanctions, I would hope that Defense Counsel would seek out methods of representing their clients that are more progressive and civilized than browbeating a child.

I know I wouldn't do it. And if Mr. Fagan would equate this with malpractice, then I guess I'll take my chances with the disciplinary board.

I've got a new nickname...

Today during bond hearings, a new client of mine called me her "low income lawyer". So true. I told the Judge that's the reason I wasn't wearing a tie. I simply couldn't afford it.

Just returned from the Twilight Zone...

Today at pretrial conferences there were 5 attorneys but only 2 defendants. And the two defendants were pro se (acting as their own attorneys). For a day during the week that normally measures in hours, we were out in 20 minutes. Now I feel uneasy about the rest of the day. Impending doom or something. Not a good omen for tonight with the kids.

Been a pretty lazy poster latety...

And for that, I'm truly sorry. However, I'm busy people. I've got some fairly dangerous people that need my helping getting released from prison. I jest...they aren't THAT dangerous, most just drug dealers and the like.

I spent yesterday in Jamestown and Bismarck attending to "work related" affairs. In Bismarck I had to switch out our shitty Ford Taurus state car for a different shitty Ford Taurus state car. The only differences between the old and the new, however, is 20K less miles, an uglier color and a giant door ding on the passenger side. Also, it smells like a grandmother's attic.

I then had to mosey on to Jamestown and to that town's correction center to visit with an appellate client. I was, needless to say, not impressed with the level of security that was offered to me while I was there. I was not afraid of my client. He's not a violent person. However, the room we were placed in was an unlocked, unsecured conference room right next to a rec room. At one point I stuck my head out of the room and there were around 25 inmates walking by the door with no guard in sight. I felt about as safe as a steak sandwich in a dog kennel. In addition, there were absolutely no security checks of any kind. I simply had a box filled with stuff, I told the dude I was an attorney, and he passed me through. No metal detector. No guard to check my stuff. No one to check my bag. No requirement of anything but my ID. Nothing. For all he knew I could have had a sixshooter under my coat and chunks of meth sewn into my underoos. (I've actually had a guy that was accused of doing just that, FYI). The same lack of security was present when I left. It was quite frightening to be honest. I'm hoping that they have slightly better lock down at the Mental Hospital which is just adjacent to the jail.

After my visit, which resulted in just about nothing of value, I headed to get some sunflower seeds, some high-fat snacks, and an absolutely behemoth bottle of Diet Mountain Dew. DMD has replaced Diet Coke Plus as my caffeinated soda of choice for the moment. I have supplemented my diet with "Airborn" to replace the enormous amount of "vitamins and minerals" that I was, at one time, getting from the DCP. I've been battling a cold lately, however, so I may have to switch back. Anywhoo....paying for my stuff, which is normally fairly innocuous, became incredibly awkward due to the fact that the chap behind the counter had some seriously misshapen hands and I could not pass the credit card back and forth without incident. Not good. I should have known to just write a damned check when he asked the other lady there to help him hand a pack of cigarettes to a grubby dude in line in front of me. And I can't suggest writing a check AFTER I've handed him my card because he'll know that I'm down on his T-Rex hands. I felt like such an asshole.

Of course, when I got back on the road it began to rain/snow/sleet/hail/hurricane so I couldn't use the cruise control and whenever I changed lanes I had to battle the dreaded "fishtail". And of course, right outside of Jamestown I was forced to pass one of those semi trucks carrying a half a house which kept creeping into my lane, forcing me onto the little bumpy "moos" on the shoulder. I had to stop in Bismarck and get some java and read a magazine just to rest my white knuckles and to get away from the second-hand store scent of the new car.

I've come to the realization that "business trips" are not so glamorous.

I wish I didn't have to prepare...

It's so pesky doing that.

Today I'm again suffering through hearings in the asscrack of the world, and had to endure a ridiculous exchange with the prosecutor.

My client is being run up for 2 counts of delivery of a controlled substance and 1 count of accomplice to delivery of a controlled substance. Today was the day for the preliminary hearing (essentially a "grand jury" for those not familiar). The burden of proof is already ridiculously low (PC) so it's not a real chore for the SA's to get the job done. 9.5 times out of 10 the client is bound over.

The prosecutor charged my client out with TWO separate counts of delivery because, although she took the money all at once, she allegedly had to go back to her house and get the rest of the drugs. I argued it should be one A felony count and not two. But instead of making the counter argument that the delivery statute makes no mention of money being a necessity and that each individual transaction CAN, under the statute, be considered separately, the prosecutor made one of the most ridiculous statements I have ever heard in a courtroom. I shall paraphrase...

"Your honor, the officer who set up the buy gave the defendant an amount of money and expected to receive a certain amount of methamphetamine in return. Instead, he was forced to wait until later in the day...some THREE HOURS LATER...to get it."

In other words, she argued that my client was guilty of two separate counts, not because the statute allows for it to be charged out in that manner, but because my client was allegedly a disorganized and inconsiderate drug dealer and that, due to her lack of thoughtfulness, deserved two counts. Needless to say, the judge did not buy her rebuttal and ordered one of the two dismissed.

How can prosecutors get away with this? Another PD brought this up a while back. In this neck of the woods, SA's are elected. If I were this apologetically unprepared, I wouldn't expect to keep my job for a week, let alone think the public would allow me to return for another term.

Un-flippin'-believable.

So true...

The only line a person needs in order to get a synopsis of this article is:

"While using a hedgehog as a weapon in an assault is uncommon, Jenkins said, "People often get charged with assault for throwing things at other people."

Reminds me of one of my own cases. While I haven't had a case involving the use of LIVE animals as weapons, I did go to trial for a man who was accused of assaulting another individual by throwing a small alligator skeleton at him. The facts were quite horrible, obviously, and my case was a loser from the beginning. He allegedly shoved and head locked the man as well. But perhaps the fact most damning to my client was the revelation to the jury that the victim only had one leg. You cannot throw an alligator skeleton, even a small one, at a one legged man. That's a cardinal rule.

For the Defendant's sake in the above-referenced article, I hope like hell that his victim had both legs when the balled up hedgehog smoked him.

And for those of you who were wondering:

"it was not known whether the hedgehog was dead or alive at the time of the attack, but that it was dead when collected as evidence"

Sonic didn't have a chance.

Dude...you can't do that.

I'm currently dealing with a State's Attorney that frankly, just doesn't know the rules. My client had been charged with 8 different felony counts stemming from an incident that occurred in October and November. A probable cause hearing was conducted in December and 3 of the Counts were not bound over by the Judge, leaving just 5 Counts remaining. The State's Attorney provided an amended Information per the Judge's request following my client's arraignment on those five counts. The State's attorney, however, recently filed an "Amended Complaint" with the Court that adds another felony count to the indictment...one of the same Felony counts that had been dismissed by the Judge at the Preliminary hearing. He did this on his own accord...no Motion requesting the amendment. No Order from the Court stating that the amendment was allowable. No scheduling order for a new preliminary hearing which each North Dakotan is entitled to when charged with a Felony. Nothing. He just did it.

And while this won't be a big deal to remedy, it's shocking that someone that is charged with the responsibility of deciding whether to incarcerate people lacks even this rudimentary knowledge of basic criminal procedure. I'm flabbergasted.

Chalk one up for the clueless bumpkin rube...

I worked tirelessly for this client. I spent hours preparing the brief in support of his motion to suppress evidence. I again slaved over his oral argument on that same motion. After having my motion denied we proceeded to trial. I prepared tirelessly for this as well. I managed to get 2 of the 3 charges dismissed outright by the judge but, alas, my client was found guilty of three more at trial.

After the trial, he fired me and voiced his outrage with the proper bar authorities. I prepared his Notice of Appeal and request for transcript as I normally would and reluctantly ushered his case onto appellate counsel. I thought nothing of it for the last six months.

I discovered earlier this week, however, that on review to the Supreme Court, the judge's decision had been reversed and remanded. Essentially, I won! Of course, in true defense attorney form...I knew I was right all along. Duh.

The wonderful thing is that my former client will go free. The motion suppressed everything that would have otherwise been used to secure a search warrant...the same search warrant that produced the substances for which my client was found guilty of possessing. There is no way for the State to proceed.

I feel like the Canadian chaps that got the Hurricane out of jail. The only difference being that the Hurricane was at least marginally grateful. But this is also a good thing for more than that glaringly obvious reason. The less obvious reason being that because he's out with no strings, I won't have to go back to that bunghole town.

This pisses me right off...

It's happened to me a couple times during revocation hearings that have taken place in the "World's Most Horseshit Sinkhole Town" that I've mentioned before here, here, here...here and here. Oh yeah, and here too. It's a gross deviation from what I consider fair administration of the law.

Scenario: The state has issued a "Petition for Revocation of Probation" against my client. One of the allegations contained in the petition is that my client "Committed the New Crime of X on X date". This would be a violation of the terms of probation which prohibit violating any State, Federal or Municipal law during the period of supervision. A violation of this sort carries with it the possibility of being resentenced to the maximum possible period of incarceration. In the most recent case, this would mean up to 5 years on the State Penetentiary.

Caveat? -My client has not yet been tried or convicted on this new offense yet. He was merely CHARGED with it.

My argument is simple. The allegation that my client has committed a new offense during the period of supervision is premature due to the fact that he has not pled to, or otherwise been found guilty of, this new offense. No trier of fact has ever been given the task of parsing through the factual backgroung or adjuding the credibility of testimony and no jury has made a determination as to whether the State has satisfied its burden of proof. In other words, as my client sits here right now, he is considered "NOT GUILTY" of the offense alleged until proven otherwise. If I remember correctly from eternity I spent in Oregon going to lawschool, this is a very fundamental aspect of the American Legal System.

Apparently not in Williston.

The judge in the case stated to me that: 1) because the burden of proof is lower in revocation proceedings (clear and convincing evidence instead of beyond a reasonable doubt) that very little is necessary to establish the violation; and 2) That because my client has exercised his 5th Amendment rights for fear of damaging his REAL case on the issues, he has failed to provide the Judge with anything that would otherwise establish his innocence...he must find that the allegation has been proven.

If I may paraphrase what the Judge is saying..."The state doesn't have to prove that the violation occurred, only that there is clear and convincing evidence to believe that it occurred. In other words...that he was charged with it. In addition, if he's not going to get up and give his side of the story (even though this is not his criminal trial and he has a right to not say anything that would otherwise incriminate him at trial) and prove to me that he didn't do it (even though your client is entitled to a jury and I'm but a judge), tough shit. He did it."

So, add this allegation to the 4 or 5 others that have also been proven and my client is resentenced to 3 years with the Dept. of Corrections. What a bunch of garbage. My client has just been tried and, essentially, sentenced for a crime in a matter of minutes without a jury by a judge who is QUITE privy to his previous indiscretions (considering they're SITTING RIGHT IN FRONT OF HIM).

Well, why don't you appeal then? Essentially, because it would make no difference. Even if the Supremes bought my argument on appeal, they would conclude their decision with the infamous..."but the Defendant was not prejudiced by the error due to the Judge having a basis to revoke his probation for the other 4 or 5 violations. For this reason the Court's judgment is AFFIRMED". And they're probably right. Even without this violation, my client had done enough to warrant a revocation. But the decision and the reasoning just chap my ass.

PD gets tea kettled during pretrial...

My question...why were this guy's cuffs off? He's in orange. Up here, no one in orange gets their cuffs off, even if I ask. It doesn't matter if you're a juvenile or an adult. No exceptions.

Apparently, he's not going to press charges. Maybe I'm just not as compassionate, but if I were representing this guy, and he pulled this shit on me because he was "frustrated" about the process...I'd be pressing charges. I get frustrated with the process all the time, but despite numerous urges, I haven't cold-cocked anyone yet. Now, if it truly is a matter of mental illness, then I may think differently. It would be hard. I guarantee I wouldn't be as forgiving as this chap. More power to him.

Early morning hearing in hell...

I've got to be in Williston at 9:00am tomorrow. This means that I'll have to leave the house at around 6:00 so that I can get to the office, pack up, hop in the state car, get caffeine and be off before 6:30. How much does THAT suck?

If nothing else, it'll give me a chance to listen through the entire Centaur album that I recently downloaded from iTunes. I'm a little tardy on this disc (purchasing, that is...I listened to some of it when it came out a few years ago), but I've always heard good things about it. I've listened to the title track and a couple snippets of others on the way to the courthouse, but I'm anxious to dig into it. If anyone's curious, it's over in the sidebar with the iPod faves.

And after that, I'll probably try on the new Mars Volta as well. I was not at all impressed with their last work "Amputechture", but I've heard and read numerous good things about "Bedlam in Goliath" which came out this week. Mars Volta albums usually take a couple weeks (if not months) to digest, however. So it'll have to wait until I have time.

Afternoon in North Dakota's northernmost prison colony...

I'm in Williston today. I have a love/hate relationship with this place. I love leaving and I hate arriving.

It's one of my least favorite spots on the earth. The drive up here is one of my least favorite drives. It's snowing, the roads suck there's nothing on the radio but country western and bible bangers. The city itself has something wrong with it, criminally, in that there is an abundance of sex crimes committed here. The SA's office is not what one would call a "joy" to work with. And to top it all off, I'm here to meet a client holed up in the jail here. Disney Village it is not.

Unidentified Frickin' Objects...

I recently spoke to a woman who told me she had some information regarding a theft against her. Sounds fairly easy, right? Wrong. The "theft" she was referring to was of her DNA...at the hands of "Aliens"...so that they may create a human/alien hybrid. Things got a smidgin foggy after that.

That's Mr. Jaywood to you...

That's what I was referred to as today by one of my former clients.

Sweet. Glad I made an impression.

Win - Win...

My motion was successful and my client's case was dismissed. My client is rewarded by not having to serve any time in jail for his offense and society benefits due to the recent change in the law which now makes it mandatory for my client to register. In addition, the local PD is shown that it may be beneficial for them to do some investigation before they make an arrest.

Everybody's happy...except the SA, of course. He gets nothing. But I'm fine with that.

Figures...

The only press that I get is when I am forced to withdraw from representation.

We are standing by...

I know that I've harped on this before, but standby counsel is a phenomenon that the Court should either 1) clarify or 2) do away with entirely. If a man intelligently, voluntarily and knowingly chooses to go at his trial without counsel, then let him. He has a constitutional right to do so. Standby counsel does nothing but waste state resources. The individual did not want to heed the advice of counsel when appointed, so why would one expect him/her to heed it after termination? I dont' know about everyone else...but I've got much better stuff to do...like clean the oven...or iron my socks.

I have a license, I swear....

The people at the ABA Journal call me a "self-described attorney in Dickinson, N.D." Am I just over analyzing things, or does this make me sound like a crazy person? Why did they have to add the "self-described" part? I really am an attorney. I do have a license that the State of North Dakota renews for me every year. I have an office, clients, files, cabinets for said files, big leather books, numerous documents which are suitable for framing...in frames...on my walls...that SAY that I'm an attorney. I'm not just some homeless, unmedicated goon who logs onto my computer during the day and pretends to be an attorney for the sake of this blog.

Now, if it had said Jay is a self-described "blogger" with a self-described "ability to write creatively" ...they'd be closer.

Now THAT'S a good smiley....

It conveys quite nicely how I felt following today's Juvenile Detention hearing.