Most lawyers and judges are not scientific-minded individuals. They view scientific tests and scientific analysis the way that many religious people view their deity. They don’t understand it, but they have faith in it. When things come up that might challenge their beliefs, they stick their heads in the sand. They are absolutely certain that what they believe is correct no matter how much evidence there may be to the contrary. Obvious flaws in their beliefs are just anomalies. They trust whatever they believe, ignore evidence to the contrary, and don’t think too hard about any of it. As frustrating as it may be dealing with that mindset from prosecutors and judges as a defense lawyer, most DUI cases are tried before juries. I’ve found that DUI juries with scientists and doctors on them tend to acquit even when the state’s case seems strong. I’m never surprised when that happens.

A serious problem arises when the court prevents the jury from hearing important information that might call into question the reliability of the scientific testing in a case. It isn’t like that physician or scientist juror is going to just assume there’s a problem without any evidence of one, and judges are frequently all too willing to preclude important information about the testing equipment and methods. They claim there’s no evidence there had been an error in this case. Judges demand an offer of proof from the defense before they’re willing to admit evidence of the countless other errors the machine has made. Instead of making the state bear the burden of proving the test was accurate and admitting all of the information that might cast doubt on its accuracy, judges regularly presume the results are accurate and preclude any information to the contrary.

Take the software some jurisdictions use to view and print gas chromatography–mass spectrometry results in DUI cases, for instance. Interviewing different state experts, they’ve all admitted to me that there are numerous issues with the software. They describe different instances in which the software has mixed up samples. They claim they’re “clerical” errors and not “analytical” ones, but the errors caused incorrect results nonetheless. Moreover, the state never corrected the cause of those errors. Instead, the people performing the tests just tested the samples in a slightly different manner that seemed to fix the problem. Not a single person working for the crime lab can say why the software made the mistake, as none of them know the first thing about computer programming. The state can’t produce a single witness who can testify the issues the state never bothered fixing might be causing problems in other areas as well. Good luck finding a judge who will let you ask the state’s expert about software problems. Without an offer of proof about a known software problem in your exact case, the jury never gets to hear about the fact the software screws up constantly in a variety of different areas.

Expect the government to push the boundaries of the leeway it has been given. I envision the state qualifying certain government employees to operate a Magic 8-Ball of guilt or innocence. Specially trained officers, let’s call them “culpabilitists,” learn the highly scientific principles behind the device, and they call it something cool, like the “M8B.” They claim cops have tested it all over, that the theories behind it have been subjected to peer review and publication by cops worldwide, that there is no known or potential error of the technique or theory of the M8B, and that cops the world over generally accept it as the ultimate arbiter of guilt or innocence. Courts will let it in, though the defense attorneys will protest like we always do. We’ll argue it’s just a toy that officers shake. We’ll point out that its results are random and that, with most M8B devices, every single side of the die floating inside says “guilty.” The court will shoot us down while explaining how the science is well-settled. The culpabilitist said so, after all. The judge will look down from his podium and say to the defense, “do you have an offer of proof that the device in this particular case did not produce an accurate result?”

I kid, of course, but the government’s abuse of science and the courts’ complicity in it are no laughing matter. Although the tests the state uses to convict people of DUI are for the most part more reliable than a fortune-telling children’s toy, courts rely so blindly on flawed science and strive so hard to avoid anything that might give rise to reasonable doubts about the state’s test results that even the most deeply flawed equipment, methods, and software can achieve a criminal conviction with remarkable ease. When a person’s life hinges on science in the hands of a government that’s happy to abuse it, it’s easy to slide down a very slippery slope. That’s exactly what we’re doing. If we continue, maybe the M8B isn’t too far away.

The courts fuss and fume when you need an extra week or two to make a decision. They push you into whatever plea comes your way.

In Phoenix City Court, you usually spend the pretrial stages in front of a single judge. After you decide to fight it, though, they shuffle you elsewhere. The order says you’ll be going to trial in thirty days, but the court struggles to get you in front of a judge in sixty. You won’t know which judge you’ll get for fifty-nine.

When everyone assumed you’d plead, they rushed you to a decision. After they realized you were going to fight, they stretched it out as long as possible. It’s even a battle to get a judge to hold a motion hearing prior to trial.

Imagine you have one heck of a suppression issue. The cops obviously needed a warrant and didn’t get one, or they got one but it didn’t authorize what they did. It’s the awesome kind of issue defense attorneys crave, the kind of issue that makes motion drafting a true pleasure. I’d call it a slam dunk if it weren’t for the fact courts will do almost anything to avoid letting you “get away” with whatever some cop mistakenly thought you might have done.

No motion hearing for you! Not in Phoenix, at least. The motion hearing happens on the morning of trial while the jury waits below. There’s no pressure to deny the motion and give the jurors something to do, of course.

The court doesn’t care that you will have to pay thousands of dollars to retain an expert witness for trial in a case that should be dismissed based on well-settled law and undisputed facts. That’s your fault for putting yourself in a situation where you got yourself accused. The court doesn’t care that the state wouldn’t offer you a plea that conveyed some sort of discernible benefit. The blame again falls on you, the potentially innocent defendant who was unwilling to accept responsibility against your own self interest. The court doesn’t even care that this is a twenty-witness trial and there’s no time to hold an evidentiary hearing prior to trial. The judge will just yell at your defense lawyer when he asks for trial to continue into a second day.

You’re a beast of burden being pushed to your cruel fate. That’s the way the system works, and the idea is familiar…

Move ‘em on, head ‘em up
Head ‘em up, move ‘em out,
Move ‘em on, head ‘em out Rawhide!
Set ‘em out, ride ‘em in
Ride ‘em in, let ‘em out,
Cut ‘em out, ride ‘em in Rawhide.

Whereas Scott expressed concerns about the law and its potential problems in his post, Jamison’s post wasn’t really about the law at all. He focused on how people shouldn’t pick unnecessary fights with police officers or bring stupid lawsuits. Discussing the plaintiff-lawyer’s decision to file suit instead of taking less drastic action, he writes, “[a]nd we wonder why people hate lawyers so much.” Jamison almost seems to praise the opinion, noting how it’s apparently fun to read and claiming there’s a reason federal judges and clerks did better in law school than he did. He cites these paragraphs of the opinion before ending with an exclamatory “ouch:”

[T]he challenge to the post-and-forfeit fails, although not for lack of trying. Plaintiff has now provided the Court with three different versions of a prolix complaint – each longer and more detailed than the one that came before. The matter has been briefed extensively, and the Court held a lengthy hearing. Yet plaintiff has yet to articulate just what it is that is wrong with offering someone charged with a minor offense the choice to contest the charge in court or to pay a small sum and go home.

The fundamental flaw at the heart of the plaintiff’s case is that while his papers are generously seasoned with strong language connoting wrongdoing – “force,” “coerce,” “exact,” “deprive,” and “take,” and the allegations all turn upon the city’s alleged policy of “making” arrestees pay money, there simply was no coercion, taking, or deprivation inherent in the voluntary exchange that was offered and accepted in this case. Moreover, plaintiff was fully apprised of, but elected to forego, his right to seek to set aside the forfeiture and contest the arrest.

I appreciate a good verbal bashing as much as the next guy, but only when it’s deserved. Here, I’m not impressed by the court’s way with words quite as much as I’m horrified that such a statute could exist. The opinion isn’t a righteous bench-slap against some unruly litigant, but rather a terrifying testament to the authoritarian path this country is following. There’s clearly no end to the willingness of the judiciary at all levels to justify coercive and even forceful deprivations of people’s rights so the government can efficiently take their money and exact sick institutional vengeance on them when they ruffle poor little cops’ feathers. Huh. Come to think of it, the plaintiff’s words seem pretty much perfect to me.

Curious, I found the entire opinion at the Blog of Legal Times. It sets forth facts that should make a criminal defense attorney’s blood boil. The lawyer-plaintiff is named “Mr. Fox,” and the opinion explains that he hurt the delicate sensibilities of some demure little flower of an officer by making a derogatory comment about the officer’s intelligence and competence in front of some of his little buddies. Being armed professionals sworn to serve and with a good sense of proportionality, they took a cautious approach and threw Mr. Fox in a cage. Mr. Fox was charged with something called “disorderly conduct – loud and boisterous” and watched another arrestee get hauled off to some scary place the officers called “Central Cellblock” after refusing to pay $35.00. After a few hours in the holding cell, Mr. Fox was given the same “choice,” as the court likes to call it, and he opted to pay the $35.00 ransom post-and-forfeit amount. He was given a form that explained the charged offense and indicated he was being offered the option to post-and-forfeit and that he would otherwise “not be released before [he was] presented to court on [the] charges.” Although the form described “release on bond” and “citation release” as possible alternatives, no one offered Mr. Fox either option. In all, Mr. Fox spent approximately nine hours in jail, which seems to me like quite the price for making someone who carries a gun and handcuffs for a living a little butthurt.

How any court can set forth those facts and rule the way the court in Mr. Fox’s case did is beyond me. Perhaps the most remarkable part of the opinion is the part where the court claims “[i]t is difficult to discern what Mr. Fox’s alleged injury is.” Really? Arrest? Cuffs? A holding cell? Nine hours in jail? Big scary cellies? His poor wife having to go down to the station to try to help him? People cry when they get stopped for going five miles over the speed limit. Other people faint when an officer pulls out handcuffs. Judge Jackson must be tough. Really tough. It’s quite impressive how casually she explains that “the facts as alleged show that he chose to post and forfeit the thirty five dollars – rather than proceed with his criminal case – in order to get out of jail more quickly and terminate his case, and that he was fully aware of his options.” I bet she wouldn’t care at all if she spent nine hours in a cell. She’s probably so tough that she’d demand more jail time to fully weigh her options, all the while feeling no pressure at all. I bet she’d spend months in jail rather than take the weakling’s option and fork over $35.00 for her liberty. Tough lady, that Judge Jackson. As she explains, “there is certainly no fundamental liberty interest in being released from jail before presentment the following morning.” Got that? Judge Jackson and all of her judge buddies do time all the time. What’s an extra several hours or a half day or so being treated like an animal?

Although I could probably go on indefinitely about all the things in the opinion that rub me the wrong way, a few things stood out. For one, the court explains that “[t]he long history of the post-and-forfeit process further weakens Mr. Fox’s substantive due process claim.” In other words, because the government has been doing something bad for a while, that makes it okay. It’s a great argument that I use on behalf of clients all the time. “Your honor, my client kidnaps and robs people every day, and no one ever does anything about it; you can’t just now decide to punish him!” Oh wait. Never mind. I never argue that because it’s ridiculous and would likely get me disbarred and maybe even tossed in the pokey with unfortunate folks like Mr. Fox. Anyway, the court explains how “[t]he Supreme Court has indicated that it approaches requests to strike down longstanding practices under the theory of substantive due process with skepticism.” Gotcha. I might have written it like this, though: “we’ve been demanding ransom for a while and the Supremes say things we’ve done for a while are okidokie so it’s all good.”

With regard to one of his substantive due process arguments, the court explains that, “contrary to Mr. Fox’s assertion, the procedure itself is not rendered constitutionally infirm for substantive due process purposes simply because some of the people who choose to pay the money may have been arrested without probable cause.” There she goes again with the whole “choose” thing. The opinion states, “[t]he risk of an erroneous deprivation is one of the factors that the Court weighs in the procedural due process inquiry, not the substantive due process inquiry.” This is a classic way for courts to get around the fact the system does truly awful things to innocent people. Re-categorize! Who cares if innocent people are incarcerated? Lawyers need to know the difference between substantive and procedural due process.

In the court’s defense, however, at least it addresses the point in the section where it felt it belonged. With regard to Mr. Fox’s procedural due process argument, the court explains, “the post-and-forfeit procedure is adequate to satisfy procedural due process concerns.” Mr. Fox apparently hadn’t alleged the law violated any “fundamental principle of justice,” as the court doesn’t see anything unfair “about being given the choice to pay a reasonable fine to resolve the charge of a petty offense, particularly where the payer has ninety days to think it over and change his mind, and the payment, once final, does not result in a record of conviction.” The emphasis is mine, not the court’s, and that quote shows that, in the end, it all comes back to the fact the court thinks it’s a choice. Our government is run by tough people like Judge Jackson who view the choice of whether to rot in jail or not rot in jail as a meaningful one when the cost is only $35.00. No wonder I’ve never worked for the government; I’m just not tough enough.

Finally, as that last quote suggested, the court really seems focused on the fact Mr. Fox didn’t ask to have the forfeiture set aside by the Superior Court of the District of Columbia despite the fact he had ninety days to do so. If people with guns kidnapped me for being a hurtful meanie to one of them and then released me in exchange for some cash, I certainly wouldn’t be champing at the bit to become involved with my captors again. I wouldn’t want to play their game. I would want to try to empower myself. I would want to strike back and make sure no one else has to endure what I did. Maybe I’d do something pretty close to what Mr. Fox did, and I might even employ some words that are stronger than “force,” “coerce,” “exact,” “deprive,” and “take” in the process. Sadly, though, I’m just a little cream puff. Tough judges would probably see right through my arguments and shoot me down because life and liberty mean nothing to them. Silly me. I suppose I’d just hope that Jamison might feel a little sympathy for me. That seems like something Mr. Fox doesn’t have, though I really can’t understand why.

The Pinal County Sheriff’s Office recently announced that attorneys would no longer be allowed to visit with their in-custody clients in the inmate holding area prior to court. The new policy is for security reasons, apparently, and it means that there’s no way to speak with a client prior to a hearing unless you go see him or her in jail.

Seeing a client in jail is no small feat. If you want to do an “in-person” visit in a tiny booth where you’re separated from your client by thick, cloudy glass and have to yell at each other or talk on phones that rarely work, you must give the jail 24 hours advance notice. If you want to do an “intake” visit and sit in a cramped little room with your client, it takes 24 hours advance notice and a special reason. To set up such a visit, you have to get approval from someone who does not answer the phone very much and whose voice mailbox varies from not being set up to being set up but seemingly never monitored. By my count, there are now only three places in the entire jail where an attorney can actually sit across from an in-custody client. For the last-minute visit, the only option is a video visit. Pinal County has four attorney video visitation booths for that.

A number of things made me want to see my client before court. First, she had a lot of questions and wrote me a letter detailing many of them. I received her letter near the end of the day on Friday and could not see her over the weekend. Second, and more importantly, the assigned judge mysteriously evacuated her office and seems to have vanished, leaving little more than courthouse rumors about what happened. Strange, I know. A different judge heard the case yesterday and may be doing the sentencing. I could not confirm that until yesterday morning before the hearing. Certainly quite a change, and certainly something my client would’ve wanted to know before being led into a big, cold courtroom by detention officers to stand in front of an unfamiliar judge. I wanted to see her.

When an inmate has an afternoon hearing, the jail transports him or her pretty far in advance. My experience is that clients with a 1:30 p.m. hearing tend to be unavailable after 11:00 a.m., so I intended to visit my client after I was done with my 8:30 a.m. hearing about 45 minutes away. In an abundance of caution, when I finished up with my 8:30 a.m., I called the Pinal County jail to confirm that I could do a video visit with my client. Good thing I did; it turned out the video visitation system was down, so I would’ve unnecessarily sat in Florence, Arizona for hours before my hearing without talking with my client if I had gone early. Despite my good intentions, I didn’t get to see my client.

Because of the change in judge, I also had to select a new date for a pre-sentence hearing, or what most attorneys around here call an “agg-mit” hearing. In Pinal County, only a specific judge’s assistant, or “JA” as attorneys around here tend to call them, can tell you that judge’s calendar. I knew I had to get the date from a JA, but the problem in my client’s case was determining which JA. I went to the new judge’s JA first, but she was out of the office. A sign said to go to the JA next door. I peeked my head in next door and saw no one. Next, I went to the assigned judge’s JA. It turned out she was gone too, something I learned from another member of the assigned judge’s staff who was sitting in an empty room doing a puzzle. She told me it was lonely with no one else around and that she had no clue where I should go. I ended up running into a JA who happened to have the correct calendar in the hallway.

Unfortunately, there was one final snag in my plan to get a new date. The snag was the prosecutor, who was not there either. Like pretty much everyone else, she was out for the day. Her coverage notes said something like “need to select agg-mit date,” and her assistant didn’t have her calendar. He actually didn’t know she was gone until I asked him to check and he wandered around a little before coming up to court and telling me she was gone. The coverage prosecutor didn’t know her availability either, so I ended up selecting a date on which I couldn’t imagine she would have a conflict. I’m giving myself a 50/50 chance of having to go through the process again when she gets back and decides she doesn’t like the date and time I selected.

So here’s the rundown of my afternoon yesterday in Pinal County: I had a hearing in front of a judge who disappeared. I needed to see my client beforehand but couldn’t because the sheriff’s office took away the easy, logical option and the only other option they gave me wasn’t available. I needed a new hearing date, so because judges don’t know their own schedules, I tried to consult with two missing JAs to find a new date for a hearing before happening upon the right JA in the hallway. I finally selected a date and time and affirmed them on the record, but I will probably have to redo everything because the prosecutor didn’t show up or leave adequate coverage notes.

Quite the well-oiled machine they’ve got there.

I discovered that Maricopa County Superior Court has an official Twitter account. The court has harnessed the power of social media and is tweeting about all kinds of things. Its tweets range from the mundane, like a link to a pic of the new cafe in courthouse, to the anything-but-mundane, like who’s getting sentenced to life in prison.

My trip down the rabbit hole didn’t end there. Through the magic of social networking, I connected to the Official Twitter Account for the Arizona Judicial Branch. They aren’t nearly as prolific, having tweeted only a few times total and quite irregularly, and they mostly tweet about things like job openings and public input on judicial nominees. Through their page, I saw that courts all over the place are taking to Twitter as well.

I have to assume that someone on the government payroll is doing all of this. Someone is drawing a salary on the taxpayers’ back, and that same someone is using some of his or time to tweet about who’s in what court and what’s happening where. I’m having trouble wrapping my mind around it.

See, a court isn’t a business. It shouldn’t be a business. If you’re trying to sell something, sure, market yourself all over the internet. Tweet all you want. RT and reply all day long. Put on your fancy shoes and a tight little outfit, strut your stuff online, and let the world know you’re open for business. Someone’s gonna notice you, even if it’s only for the moment they follow you and the whole reason they’re on Twitter in the first place is to convince people like you to pay them to do what you’re already doing by tweeting. Again, if that’s how you want to build a business, go for it. Who am I to judge?

Courts aren’t people either. If you personally want to use Twitter to build 140-character relationships with other people who seem interesting, go for it. You may have some fun. You may make new friends. Maybe you’ll even meet someone special. Courts don’t need friends, however. Most people who find themselves in court would rather not be there. If anything, courts should be trying to cut down on the number of people appearing before them, not connecting with new people. The Maricopa County Superior Court has general jurisdiction over the lives and property of almost four million people; I’m pretty sure people know it’s out there, and staff certainly don’t need to be using work time to make friends for themselves or their enormous entity boss.

There’s something to be said for community outreach, but I hardly see tweets making much of a difference. I didn’t feel particularly connected after reading about how someone’s Maricopa County Superior Court sentencing got moved or how someone else’s initial appearance video was finally posted online. I imagine some people will feel disenfranchised having information about their case published on Twitter. Some might feel that way when they aren’t mentioned on Twitter. I thought the court had a media liaison of some kind. That seems more than sufficient to inform the public without turning the justice system into a circus.

If the court wants to engage the community, it should get more people to answer the phones. I’ve had all kinds of trouble reaching various clerks, judicial assistants, and administrators from time to time. The court could start calling people when their hearings get vacated too, or it could hire some extra staff to expedite rulings on motions or figure out how to help people avoid spending hours waiting for a simple continuance. Tweets do nothing to improve the experience of people appearing before the courts. It hardly constitutes improved access either. I doubt they’ll tweet you back the bond and the charges if you inquire about your warrant. Maybe they’ll let me file suit by tweet if it’s within the 140-character limit? I see no reason why a court needs a social media presence. Quite simply, the court’s resources could be better spent elsewhere.

Seeing courts on Twitter confirms some of my worst fears. It tells me the mindset of embracing new technology purely for the sake of embracing new technology has taken hold in the courts. It’s the unholy marriage of America’s love of the coolest new thing with the immense power of the state. The illusion of hallowed halls of justice is breaking down. Instead of venerable courts worthy of respect, we have institutions that apparently don’t have any problem broadcasting on a forum worthy of such deep and meaningful topics as #worstpickuplines and #stuffifoundinmynose.

First they tweet. Maybe next they live stream. Someday they’ll nationally televise every trial with judges providing critique but with America ultimately in charge of the verdict by texting guilty or not guilty to a certain number. At least Ryan Seacrest will never be hurting for work.

Pop culture is here, and it’s invaded everything. Idiocracy can’t be too far away.

If you aren’t sold on not filing Anders briefs solely because they’re humiliating to any competent lawyer, Arizona’s court of appeals recently provided another reason. In an opinion last week, the court disagreed with an appellate public defender’s assessment that only frivolous issues existed on appeal. The lawyer apparently reviewed the record enough to set forth a sufficient background to reveal potential issues, but he didn’t see at least one issue that the court saw.

I can’t imagine much worse for a lawyer than having a court that regularly shoots him down find an issue that he didn’t see based on his own version of facts. How’s that for incentive to not file an Anders brief? The issue the appeals court noted was whether the trial court erred by denying the defendant’s motion for new trial based on the fact a juror conducted outside research and told the rest of the panel about it. The court directed the lawyer who filed the Anders brief to file a new opening brief setting forth any non-frivolous issues, including that one.

I’m all about courts overturning convictions, and it sounds like there may have existed one hell of an issue. Sadly, I’m not thrilled about the opinion. Instead, I’m reminded of poor Charlie Brown and the football.

You probably remember that Lucy loves convincing Charlie Brown to run up and try to kick the football. It’s always her idea. She brings the football to him, and despite his reservations, she somehow manages to make him give it a try. Every time, she pulls that football away at the last moment, causing poor Charlie Brown to flip up in the air and land on his ass. Charlie Brown never actually gets the satisfaction of making contact. Instead, Lucy sets him up for failure, over and over again.

Arizona’s courts occasionally stretch the meaning of statutes to no end in upholding convictions. I’ve complained about felony flight before, but that’s the tip of the iceberg. If there’s some way to make a defendant’s conduct arguably constitute the crimes involved, text of the statute be damned. The stretch also applies to the constitution, the discovery rules, and pretty much everything else. I’ve had issues where the lower court is so clearly wrong that it almost defies belief. The reviewing court almost always figures out some way to punt. With special actions, they decline jurisdiction. With appeals, they stick with stare decisis or procedural errors by the defense. I’ve never seen an issue so good that a judge so inclined couldn’t reason it away.

Getting back to Charlie Brown, as much as I love the fact the court is setting up a nice, pretty football for defense counsel to try to kick, I’m pretty sure this isn’t going to end well for the defense. Should he have raised it to begin with? Of course. Is he going to win in the end? I doubt it.

My bet is that the court of appeals is going to defer to the trial court’s findings of fact regarding the information provided to the jury and its impact. Or maybe it’ll find a case from long, long ago in a place far, far away that arguably supports whatever crazy theory the state comes up with in its response. Okay, I’m probably giving the state way too much credit; I usually lose based on arguments the other side didn’t even raise. Perhaps the court will just go with the ol’ standby, “harmless error.” I may not be able to predict exactly how it’ll do it, but I’m fairly certain it’ll happen. Sure the juror messed up, but the defendant was totally guilty, right? Off with his head!

I like the opinion, and I want the defense to win. I just hope the court doesn’t pull a Lucy and put appellate counsel through the trouble of raising all kinds of issues only to shoot them down, one by one. I always felt bad for poor Charlie Brown, and the situation the court of appeals has created seems eerily familiar.

H/T Andrew Becke and Xochitl

Luckily, the first rule doesn’t apply to state grand juries generally, just to specific grand juries. I can’t tell you anything about any of the poor folks currently being judged in their absence by a group of randomly selected residents in secret proceedings led by an agent of the state, but I can at least tell you a little something about the process in general.

As you can probably guess from the first rule, grand jury proceedings are held in secret. In Arizona, it’s a crime to disclose the fact that an indictment has been found or filed before the accused person is in custody or has been served with a summons. It’s also a crime to disclose the nature or substance of any grand jury testimony or any decision, result or other matter attending a grand jury proceeding. Arizona isn’t alone, and it may not even be especially secretive.

Here, everyone tiptoes around the grand jury. Its secrecy leads grown-up lawyers to allude to a “special place” where cases might be. We all know the state is seeking an indictment, but we don’t dare divulge any of the nasty details.

Defense lawyers tell their clients the state is doing something they can’t talk about but that we’ll write a letter explaining everything to the indictment-hungry prosecutor and hope he reads it to some mysterious people in secret. The only solace is that we can tell our clients we’ll get more information when they’re in jail or they receive a summons, but we don’t know which one it’ll be and would be committing a crime if we told them anyway. Comforting, huh?

The whole things strikes me as profoundly unfair. In one of my first appointed cases, I was advisory counsel for an elderly gentleman who filed a number of pro se motions arguing the indictment, which the state obtained against him in secret grand jury proceedings, was fundamentally unfair for that reason and therefore violated due process. The judge and prosecutor were more amused than anything, snickering about how silly he must be to not realize that all grand jury proceedings occur in secret.

I thought my client was onto something. It is fundamentally unfair that the opposing party, the party with all the power in the world and far better access to the courts and everything else in the criminal justice system, gets to go behind a defendant’s back and rubber-stamp the charges.

And what a rubber stamp it is! You simply can’t challenge the sufficiency of the evidence. Even if they indict your client without any evidence on a major element of the charges, you can’t say the presentation was insufficient. You have to frame it under the theory that your client was denied a substantial procedural right.

I remember at one point learning about the history of grand juries in this country. As I understand it, in the beginning, anyone could bring a case before them. It certainly wasn’t some secret group to whom only the state had access. It was a group of ordinary people tasked with deciding if there was enough evidence for the complaining party to proceed with a case. It seems like a great idea, almost democracy at its best. If every case started with a defense lawyer helping to present the full picture to a group of impartial citizens, there’d be a lot fewer cases.

As it currently works, the grand jury is little more an effective way to keep important information away from the defense during the early stages of a case. Grand juries indict almost every person almost every time. People tell me there are instances where they’ve indicted without having been given a single shred of evidence on substantive elements of the charges or without having been told the date and place where it occurred or even the defendant’s name. Is it any surprise that people who only see prosecutors seeking indictments and cops testifying about why to indict tend to do what the prosecutors and cops want them to do?

At some point, grand juries may have served as a check on the state’s ability to bring charges. Now, it’s one of their greatest weapons. It’s a little extra confirmation for my belief that we aren’t really a free, open society at all. It’s a symbol of the state’s incredible power and its ability to turn anything and everything it touches into a weapon against its citizens, even those things intended to protect them.

It’s fitting how it’s evolved and that it’s done in secret, as the first rule of ever-increasing government power and abuse is that you don’t talk about ever-increasing government power and abuse.

If you’re charged with regular DUI and your blood alcohol falls in the uppermost part of the range, they offer you a plea to 3 days of jail. You’d get 1 day losing at trial. When they aren’t anti-negotiating, they typically offer you the same thing you’d get at trial. Across the board, it’s one the most wasteful, absurd things I see in any Arizona court. When the court gives you notice of what they call a “trial readiness conference,” it says trial will be set within 45 days. They’re setting trials in late February and March right now. I doubt anyone wonders why the city’s courts are so clogged.

I spent most of the afternoon last Thursday in a motion hearing there. It’s a no-real-plea case, and I filed three motions to suppress. The prosecutor was irritated with me, almost as if he didn’t realize that it was his own office’s fault for not making a meaningful offer. However, his irritation was nothing compared to the officer’s. That poor officer couldn’t have made it clearer that he didn’t want to be there, and I don’t know who irritated him more, me or the prosecutor.

I honestly felt bad for the cop. He could be out patrolling the streets. He could also be getting some shuteye or mowing the lawn or spending some time with family. Instead, he’s spending an afternoon in a courtroom. He’ll spend more time there when the next round of motions comes along. He’ll devote yet more time in the future to depositions and complying with new discovery requests. He’ll kill a whole day or two in court when trial rolls around.

I felt even worse for the poor people of Scottsdale. That cop won’t be doing anything useful for them during all those hours he ends up spending on the case. It’s all because someone in the prosecutor’s office thought it would be a good idea to institute a ridiculously wasteful tough-on-crime policy that’s more tough-on-logic than anything else. If the zealots at MADD are right and enforcement is the key to stopping drunk-driving, I wouldn’t be surprised if Scottsdale soon becomes the DUI capital of the world. All of their DUI cops are going to be sitting in court because mayhem on the streets is apparently not too high a price to pay to avoid shaving off a little time from DUI defendants’ sentences.

It should go without saying that I don’t feel bad enough about any of this to do one iota less of work on any of my cases there. The constitution sets a high bar if we insist on it. All the government waste in the world is justified in my mind if that’s what it takes for one defendant to get his fair shake. Of course, my interests are my clients’ interests. The people who create wasteful policies have different responsibilities. They should be thinking about justice. They should be thinking about the broader consequences of their actions.

The objective of the representation in a case with no plea is still to do the best I can for my client. I have to make the system do its job, and the wheels of justice turn slowly. My clients and I win little by little with each passing moment the state has to devote to the case. Every second we spend means that some issue is being litigated and preserved. Holding the state to its burden is time-consuming. It should be. The questions the prosecutor finds objectionable and the issues that make the prosecutor roll his eyes are each little victories simply by virtue of the fact we are arguing them. The state never seems to get that. They never ask themselves if a Pyrrhic victory is really a victory at all if the person they’re fighting doesn’t suffer anything because of the loss.

There are plenty of bright people working at the City of Scottsdale. They have some great prosecutors, but sadly, they don’t seem to be the one crafting the policies. Whoever is in charge doesn’t have any clue what they’re doing, and the end result is an epic disaster where wasting resources and keeping police from policing are the norm. If more residents knew how their tax dollars were being wasted to make them all a little less safe, there’d probably be an occupy movement at the city attorney already. Maybe people will wake up sooner or later. Better yet, maybe the city will rethink its policies.

I once asked him in chambers why he does it that way, and he said it was because he thought the parties should be bright enough to know what they can and can’t ask. His position seemed to be that it should be like asking questions of witnesses during trial; lawyers don’t have to submit every single question they intend to ask each witness in advance. They should know what is and isn’t okay.

My first thought was that he’d failed to realize that, although the parties don’t submit every question they intend to ask the witnesses, occasionally, a motion in limine is a good idea. I’d love to submit this proposed voir dire question and see if he let me ask it rather than rule in advance:

How many of you would be more inclined to find my client not guilty if you knew he was facing a life sentence and that you’d have to endure a really irritating Blakely trial if you convicted him?

Maybe that’s an ethics violation. Hmm. Gotta think about that one. Might be worth it for the look on his face (and the mistrial). Kidding, of course.

Anyway, his reasoning about why his method didn’t cause problems was that a lawyer who asked improper questions would draw a lot of objections that would be sustained and end up “looking foolish.” Aside from presuming that prosecutors are competent and know when to object, honestly a pretty good presumption in his jurisdiction given the overall quality of county attorney there, I think the bigger problem is that he assumes a jury would hold sustained objections against the party asking the question.

Prosecutors aren’t always very likable. Judges aren’t always so likable either. I sometimes do a pretty good job of convincing jurors that my client and I are the two people in the room with whom they have the most in common. It’s almost always true. I don’t see empanelled a lot of people who are among the lucky 1% I keep hearing about. They’re usually good, hard-working, ordinary citizens who got summonses. They distrust the government but vote to let it control either the bedroom or the boardroom because they think they have to choose Bud or Miller. They never think about how a glass of ice water might be a little healthier, but in the microcosm of the courtroom, things are different.

If I’m trying to talk to them, a prosecutor keeps standing up and arguing with me, and a judge keeps telling me to shut up, I’m not so sure I’m the one who’s going to end up looking foolish. It may end up looking a lot like a cover-up of some kind.

I’m not asking them for their opinions, not their social security numbers. I want to know them, and I care about their thoughts and feelings. They try to talk. They’re shut up and told to listen, listen, listen. They hear lawyers and an ex-lawyer carry on for days. I want them the share, share, share. Putting myself on their side and getting shot down over and over again could be the best thing that ever happened to my client.

It’s an interesting situation. If I were more adventurous, I might submit a novel’s worth of proposed voir dire questions. I might include some clearly objectionable ones. I might start to ask them and draw objections that’ll be sustained. Maybe they’ll start with things like, “the judge and the prosecutor don’t want you to know that…” Good idea? Oh well, probably not.

On a lesser scale, though, in a case where my theme melds well with the state covering up what really happened, getting a series of sustained objections when I’m clearly just trying to start a conversation might trump any evidence I end up presenting after the jury’s sworn. I haven’t had a chance to try it, but it’s certainly something worth exploring. Within reason and the rules of ethics, of course.

The funny thing is that the judge’s policy, as strange as it might seem, has the effect of enabling me to know a jury far better than I would otherwise know. I get to talk, but more importantly, I get to listen. I’m okay risking looking foolish if it means I’m at least given an opportunity to ask questions I wouldn’t otherwise be able to ask. Sadly, that’s more than I have in most courts.

The judge’s demeanor tells me he might relish the idea of making me look foolish, but given his experience and the outcomes I’ve seen in his courtroom, I almost wonder if he’s doing it to help me, not embarrass me.

Nowhere is it worse than with sex crimes. We’ve criminalized everything, and we’ve ratcheted up the punishments. The system now hands out life sentences like it’s giving candy to trick-or-treaters on Halloween. The luckiest defendants get probation, but it may be debatable whether they’re luckier at all. The government pries into and controls every aspect of their lives. They take lie detector tests about their most intimate details. They go to therapy and group meetings where they’re made to feel like slime. They’re kept away from minors, even their own children, and they’re told where to live, with whom to associate, and what technologies they can and can’t use. Many are forced to spend their whole lives reporting to someone. So the public can know about the miserable life they’ve been ordered to lead, we make them register too.

With regard to registration, I’m almost a little proud of my state. In Arizona, we’ve only made sex offender registration mandatory for certain offenses. For other offenses, it’s up to the court. I say I’m “almost” a little proud, however, because registration is only permissive in theory. In practice, courts begin with the presumption everyone should have to register. On occasion, they even say so. Better safe than sorry, right? Judges worry defendants might do something bad to someone if they don’t have the added stigma of publicly humiliation. To prevent theoretical future harm to presently unknown victims, courts do very real harm to the poor defendants standing in front of them.

People can find themselves standing before a judge and begging not to have to register for all kinds of things. Judges have discretion to order registration for defendants who masquerade as a minor in an adult film, for adult business violations that amount to little more than zoning, for strip club owners who don’t adequately keep minors out, for people who offend others with their sex acts, for guys who take a leak by the side of the road, and for adultery. That’s just the tip of the iceberg. An Arizona court’s authority to order registration is actually broader than you’d probably ever imagine because a defendant can be ordered to register for any crime committed with sexual motivation. Drive drunk to get laid? Steal a Hustler from a gas station? You may have something else to worry about. After you plead guilty, the government may go tell your friends and family and neighbors you’re a convicted sex offender.

No matter how absurd the charges may seem, what judge wants to risk it? Sexual motivation may be a broad concept, but it still means the crime somehow involved sex. Sex is scary. What if the defendant is really bad deep down and just got caught doing something not so bad? Being safe rather than sorry means we have to ruin lives. You can’t make an omelette without breaking some eggs. Plenty of good eggs get broken in our quest for security. We can pretend we only ruin bad guys’ lives, but that’s not the way it works. People know that deep down. They just don’t care.

The problem is at the root of our culture. In fact, it’s the foundation of most people’s outlook on the world. We don’t care about freedom or virtue. We care about quality of life, and we want to preserve it. We’ve developed the erroneous belief that the power of the state isn’t the biggest threat to our well-being, but rather the source of it. We are capable of holding that belief because we’ve been so stable for so long. It’s also because the bad things the government does happen to people who seem different from us. In criminal law, that means we pretend the government’s evil deeds are only focused on people who’ve done something wrong. That way we don’t feel bad for them.

All of this keeps getting closer to home for ordinary Americans. The government expanded what’s illegal little by little, then lots by lots. We aren’t all officially criminals yet, of course, but we will be soon at this pace. Even when we get there, people may still be thinking better safe than sorry because we won’t be catching everyone. By the time the government creep has crept over all of us, the punishments will be so harsh we couldn’t fight it if we wanted. We won’t see the error of our pathological thirst for safety until the government is so big and bad it’s undeniable to even the dumbest among us that the government has always been the real threat to our safety. Until then, not being sorry is here to stay.

Although there’s plenty of lip service given to the contrary, with one defendant after another, courts start with the assumption they’re going to impose registration. Rather than start with the idea that a person should be left alone unless there’s good reason to think the public might need registration to be protected from him, they start with a mindset that somehow justifies the public humiliation of other human beings as a default because of a vague fear they might regret something sometime in the future. It’s a symptom of a diseased worldview. It’s all about thinking we’re better off safe than sorry.

We may well end up a nation of single mothers by the time people figure out there’s something wrong. I should look on the bright side, though. Fathers won’t be able to see their kids because the terms of their sex offender probation won’t allow it, but luckily, kids can keep up with their dads online through the sex offender registries.