Tales of Moral Hazards – Part I (of many)

“In short, America’s indigent defense systems exist in a state of crisis.” – U.S. Atty General Eric Holder

Fifty years ago this week, a man named Clarence Earl Gideon achieved something remarkable for a man who was forced to represent himself. His handwritten petition for Writ of Certiorari had been granted, and the Supreme Court decided in March of 1963 that his argument – that the Sixth Amendment should guarantee counsel to an accused who cannot otherwise afford it – had merit. Today, every local government provides representation according to the mandates of Gideon v. Wainwright.

But providing counsel for poor people accused of crimes has never been a “winning” issue with the voting public, so counties spend the bare minimum that it deems necessary to provide for that right. Many stereotypes about public defenders are unkind, but none of them is true as often as the one in which the well-meaning public servant simply has too many cases to handle.

Strangely, this situation provides public defenders with one potent weapon.

Although the constitution gives vague promises of a speedy trial, states enforce these promises with specific guarantees. In California, those accused of misdemeanors have the right for their cases to be tried within 30 days of the defendant’s first court date. Those accused of felony crimes have the right for their case to be tried within 60 days of their first court date in Superior Court. If a defendant asserts their right to a speedy trial, then any case postponed beyond these deadlines must be dismissed.

If no defendant waived these rights, the machine would grind to a creaking halt before exploding and spewing hot shrapnel in every direction. In California, many of our most important budgeting decisions are made by popular vote; as much as people love charging people with crimes and locking them away for tragic amounts of time, they aren’t as fond as taxing themselves to pay for the necessary infrastructure. The courts simply cannot handle current case volume unless defendants “waive time,” i.e. surrender their rights to speedy trial.

And if every single defendant refused to waive time, nearly every single case would be dismissed. In fact, since the public defender represents more than 80% of all defendants in a given county, this result would occur if public defender clients by themselves went to trial “time not waived.”

I have personally witnessed the fruits of this tactic. I routinely withdraw my client’s time waivers once I have prepared their case for trial. On any given Monday, I would walk into court with between 7 and 10 cases that had to be tried by the end of the week or be dismissed. Of these, several would be dismissed outright by the DA. Others would be made plea bargains that they would never have otherwise received (“disturbing the peace” was my favorite catch-all charge for my client plea to as part of their deal). Clients who were in custody would be offered credit for time served – a plea that day resulted in their immediate release. If I was lucky, I would still have one stubborn client who refused every deal or the DA would still have one case worth pursuing so that I would get to do at least one jury trial that week. Now, I should state that the reason this “trick” worked was because I wasn’t bluffing; I put in the extra hours so that I would actually be ready for trial on all the cases I brought to the DA.

Even though speeding to trial benefits our clients as a group, it does not always benefit the individual client. Some clients benefit from having their case “age.” For example, clients whose victims are elderly benefit from a little extra time before going to trial (and don’t look at me like that). If a case is complicated and requires extensive preparation, then it is in a client’s best interest to give me the time I need to put together a good defense. Sometimes a key witness doesn’t want to be found and needs to be tracked down, served with a subpoena, and then informed that ripping the subpoena to pieces and spitting on those pieces does not actually release them from the obligation to appear in court. Also, if a client understands that he will be facing a lengthy prison term, then he may want to earn as much credit “locally” as possible. Conditions in prison are far worse than in county jail. There are many reasons a client would want to decline their right to a speedy trial.

A client’s individual best interests may not be the same as the group’s best interests. These can be balanced, but the balancing needs to be cautious and deliberate.

I am mildly saddened to think that public defenders are so overwhelmed with cases that they can often get the best results for their clients by piling all the cases in a briefcase equipped with a [metaphorical!] time-bomb and leaving that briefcase on the steps of court, expecting the DA to disarm it before it explodes. I’m sure that this is not what Clarence Gideon had in mind.

Respectfully Submitted,

Norm DeGuerre

Meet Your Neighbors

Here’s a fun exercise for you readers in California. Go to this link:

http://www.meganslaw.ca.gov/search_main.aspx?searchtype=zipcode&lang=ENGLISH

And when you do, enter your ZIP code in the box to the far right of the screen. Be sure to select the “map” option for viewing your results.

See those little blue squares on the map? Each one represents a person in your area who is required to register as a convicted sex offender. Try clicking one of the boxes. Ew! Look at that creeper’s mugshot! Look at what he was convicted of doing! Afterward, grab every minor within arm’s reach, run to your concrete panic room, throw the bolts, and keep your 12-gauge aimed at the door. Because that’s what you feel like doing, right? I mean, there are incurable pedophiles everywhere! Surely the local used car dealerships are fielding countless inquiries about windowless vans and ice cream trucks.

However, even if you take these measures, sex offender registration has not and will not make you or your children safer.

“Megan’s Law” is the popular phrase used to describe a set of laws that requires people convicted of certain “sex offenses” to register with the state. Registered sex offenders (RSOs) must inform local law enforcement of their current address within five days of their birthdates or within five days of acquiring a new address (whichever comes first in a given year). Local law enforcement must notify neighbors if an RSO moves into their neighborhood. Some laws prohibit RSOs from living within a certain radius of a school.
“Megan’s Law” is named for  a young girl in New Jersey who was sexually assaulted and killed by a convicted sex offender living in her own neighborhood. Megan’s father used this tragedy to lobby (successfully) for laws that would alert parents of convicted predators moving to their neighborhood.

However, senseless tragedy is rarely vulnerable to sweeping preventative measures designed to make people “feel safe.” Here are some of the folks whom I have represented who – despite being registered sex offenders with profiles on the Megan’s Law website, are no more or less likely to be after your kid.

I. The Live-in Abuser
The overwhelming majority of child sexual abuse happens at the hands of someone the child knows. The father. The step-father. The live-in uncle. The mentally-disturbed older brother. The swim coach. The chances of a child being abused by a stranger with a van, raincoat, and lost puppies that need finding are astronomically small; chances are much greater that you’ve already invited and welcomed the abuser into your life. And chances are even greater that this person is not (yet) on the Meghan’s Law website.

Otherwise, why would you allow such a creep into your child’s life?

II. The Jailbaited
Sometimes parents receive uncomfortable reminders that their minor daughters have the bodies of grown women, and are thus attractive to grown men who are not pedophiles. Having sex with a 16-year-old will probably not get you on the Megan’s Law website so long as you are not more than ten years older than she is.

However, if the sixteen-year-old who you met through your community sports league sends you the following text message:

“O hai. Want 2 see my boobz?”

And if your response is anything other than an emphatic, all-caps NO, you will have just solicited child pornography. If she sends you a picture of herself, topless, in front of the bathroom mirror making a sideways “peace” sign and ducklips, you are now in possession of child pornography. Remember to let the police department know within five days of changing your address!

And although this person now has plenty of free time during the day now that he is effectively unemployable, he’s not lurking near jungle gyms looking for prey. No child is safer…unless the child is a post-pubescent with the thirst for exhibitionism that comes having too many parents skipping too many piano recitals during childhood.

III. The Transient
Mental illness, drug addiction, poor hygiene, and Megan’s Law are patches in the sad quiltwork of reasons why a registered sex offender might have no residence at all. Some localities are more restrictive than others. Local ordinances in San Diego were recently found unconstitutional; since no part of San Diego is fewer than 1000 yards from a school, local laws effectively banished all RSOs from the city limits.

Some manage to find apartments or trailer homes outside of town…often finding other RSOs as roommates. But others sleep under bridges, or in doorways, or on the streets. I’m not necessarily asking you to find sympathy for these people, but doesn’t this completely undermine the intended purpose of sex offender registration?

In California, transient sex offenders must register as transients every thirty days. Sometimes local prosecutors – in their zeal to prosecute those who violate the terms of their sex offender registration – will prosecute transients who habitually sleep under the same stairway for too many nights per month on the theory that they have developed a “concurrent address” that must be registered; failing to re-register in a timely manner is a felony offense in its own right.

And so prosecutors provide a perverse incentive for transient sex offenders to not seek shelter. Is anyone safer when more and more people don’t have a permanent address?

I have many more things to say about the accidents that happen when voters amend our criminal sentencing laws through ballot initiative and popular vote, but that may be for a future post.

Respectfully Submitted,
Norm DeGuerre

Welcome to my workaday world…

When people in their late twenties and early thirties gather to drink and converse in public, “What do you do for work?” is the typical ice breaker question. Oh, so you’re a consultant. And you’re a programmer? And your wife is a project manager…

Me? I’m a lawyer. I’m a public defender. No, I don’t “defend the public” from criminals. I defend people who are accused of crimes but who can’t afford to hire their own lawyer.

And then, the follow-up question comes. Without fail, I am always asked The Question:
How do you defend those people?

The best thing about being asked The Question every single time a new acquaintance finds out what I do is that I get to practice lots of different answers. With family members (and others with more tender sensibilities), the best answer is the earnest one. A legal system that flatters itself “fair” and “impartial” must treat everyone who comes before it with a basic modicum of dignity. My clients don’t often receive dignity from the world of poverty, drug addiction, and/or psychological trauma from which they come. And even if my client did something truly awful, the only person who will treat them with dignity and ensure that the system doesn’t cheat in its haste to remove him from society is–or should be–his lawyer. It’s a role that I enjoy playing, and every so often, justice comes out of it. That’s how I defend those people.

Sometimes this answer takes too long. Sometimes the listener has spent too many college years avoiding the talky-chatty classes that enable one to absorb humanism and civics at the same time. Sometimes they find it easier to hold on to the rigid value system learned in childhood than to let go of prejudices and look at the messy choices one must make as an adult. Sometimes a person has simply seen too many cases on Law and Order thwarted by fiendish defense attorneys to actually listen to what I have to say. In such cases, I (sometimes) refrain from working one or more of the following phrases into the conversation:

Pedophiles? They’re only scary if you’re seven.

Who said you can’t steal a car in self-defense?

The assault rifle was just for personal use and not for sale.

But quips like these do everyone a disservice. It’s not an answer to The Question. This person may well be a juror for some other defendant in the future. Since California puts all of its truly serious “criminal justice” issues on the ballot for a popular vote, this person might very likely have a direct influence on my own legal practice. If I have information worth sharing, I need to share it sincerely. Multiple installments might be necessary.

And this is why this blog exists. I see sides of life that most will never see unless they are knee-deep in it themselves. The criminal justice system is a subject on which most people have opinions despite not having the professional training or experience to participate in the field. This is only natural as crime stories capture the imagination. These stories involve questions of right and wrong, sanity and insanity, free will and the lack thereof. Poverty, addiction, violence, police authority, and state power come together in ways that often write their own lurid headlines.

Simply put – I want everyone who visits my blog to leave with a more informed opinion about the justice system. It’s good for you. It’s good for me. It’s good for my clients. It’s good for our democracy. I am fully aware that these are my own subjective experiences and that they may or may not be proof of any larger “truth” beyond themselves, but I will always make sure that the stories you read here have truth in them. Truth is something we all chase, even if we never quite catch it. The chase alone is worthwhile.

My rules of engagement for this project are as follows:

  1. I am choosing to make this an anonymous blog. This is for the sake of my clients, not my own. I will tell my readers that I am a thirty-something public defender working in a major metropolitan area in California. Beyond that, I will not share any information that allows the reader to identify a client by name, or even by description.
  2. I will never comment on a “pending case.” By the time you hear about it, any issues of law or fact have been resolved. My blog is a place for reflection, not news.
  3. To further ensure everyone’s privacy, the people about whom I will write are likely to be composites of many different people.
  4. Under no circumstances will client confidences be shared. Ever. Nothing I write will allow a client, another lawyer, a judge or any other “officer of the court” to be identified in any way.
  5. I will never mock a client. I do, however, reserve the right to respond to my work with gallows humor, dry humor, sarcastic quips, exasperation, desperation, and indignation. I will endeavor to keep feelings separate from judgements.

Disclaimers are fun, but now it’s time to get to work.

Respectfully submitted,
Norm DeGuerre