I recently tried a case with her because the state wouldn’t budge one bit on the plea. My client faces the exact same thing right now having lost at trial that he would’ve gotten had he accepted the state’s offer. After three motions, a long evidentiary hearing, various oral arguments, a bunch of interviews, and a hard-fought jury trial, he may arguably be better off having been convicted by a jury than he would’ve been rolling over near the beginning. The case is set for a hearing during which the state must prove my client’s alleged prior conviction in order to enhance his sentence.

The prosecutor informed me that the prints the case agent took from my client before trial matched the prints for the prior conviction. She asked me to stipulate it was his prior. “Begged” might be the better word, actually. Small violins seemed to play sad songs in her head as she told me how the officers would have to come in and waste an afternoon. She stressed how the court is already backlogged. I didn’t care, of course.

I would be lying if I denied deriving a wonderful sense of satisfaction from her torment. In the beginning of the case, I’d worked my ass off trying to negotiate a non-trial resolution that was in my client’s best interest. She took one brief look at the case and told me she would win it. The law provided for a 120-day sentence for my client, and she told me she would get that when she won at trial. She would give my client the privilege of admitting to everything, making her life easier, and getting what she felt he deserved without having actually considered his personal circumstances and the issues with the case. She wouldn’t shave one second off the jail sentence. She was an inflexible bully.

I told her we would be going forward with the hearing on the prior. I informed her there will also be an appeal after that, at the very least, and very likely post-conviction proceedings. My client is a fighter. Because of her office’s shortsightedness, she put him in a situation where he had nothing to lose going down swinging. He’ll be swinging for years. My client has a right to a priors trial during which the state bears the burden of proof. He elected to exercise his rights because her office elected to play stupid political games with people’s lives.

It felt good to see the tables turned, but it was disappointing that she didn’t exhibit the least bit of understanding. The problem was that she believed she was in the right. She is the good guy. Anyone unlucky enough to find his name in a police report is the bad guy. Asking her to give my client a minor concession was an unreasonable request. Denying her demand for him to waive his life away to make her easy life a tiny bit easier was unforgivable.

Like she told me in the beginning, she isn’t the one who drank too much before hopping on a motor scooter. She’s the one who’s stealing a huge chunk of that guy’s money, stripping him of his driver’s license and therefore his ability to earn a living, forcing him to go through classes and counseling he probably doesn’t need, and sticking him in a cage for four months. See? She’s the good guy, obviously. She’s righteous. He’s an icky defendant. Why won’t he just accept what she thinks he should get?

Give nothing, expect everything. That’s how the game works to them.

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.

In the opinion, the court said that aggravated DUI, which means DUI with a suspended license, does not contain the lesser offense of driving on a suspended license. The court’s reasoning was that aggravated DUI does not require proof of actual driving and can be committed anywhere within the state, but driving on a suspended license requires driving and has to occur on a public highway. I have no clue how anyone can put that on paper without developing serious concerns about the abominable DUI laws in this state and the obvious impending push toward prohibition through them, but they do always seem to figure out some way to surprise me. The absurdity of the situation speaks for itself just reading the opinion.

What is also interesting is the fact I didn’t know about the opinion until last weekend. It’s because of a phenomenon most people would not expect. I’ve handled plenty aggravated DUI cases, but I’ve never really met anyone who agrees his license was suspended but denies driving drunk. On the other hand, I regularly have clients who want to fight their aggravated DUI cases with the argument that they committed DUI but had no clue their license was suspended. It’s the opposite of what I would have expected, and it was pretty funny hearing it from a client the first time: “oh yeah, I was totally cruisin’ around wasted, but dammit my license was totally valid.”

Oddly enough, it can be a pretty solid defense. Juries tend to think they’re just throwing the defendant a tiny little bone by finding him not guilty of the suspended license DUI count. They don’t realize that, in many cases, that’s the count that is a pretty serious felony and carries four months of actual prison. The similarly scary sounding regular DUI count is often just a misdemeanor carrying a penalty of one day of jail.

That defense also led to one of the best defense-lawyer questions I’ve heard of in a trial. After lengthy testimony from the state’s expert about gas chromatography-mass spectometry and the testing equipment, the defense lawyer stood up an asked a single question, “so does that thingamawhatsit tell you if my client knew his license was suspended?”

I suppose it’s good we can laugh a little. With the laws we have, otherwise, we’d be doing a whole lot of crying.

H/T Andrew (the other one)

For the tough problems, we have statistics to take moral and ethical judgment out of the equation. Things are bad in this world, and the numbers confirm it. Punish harshly and watch the numbers drop, they tell us. In reality, we’re watching the people who make the numbers feign a reduction to encourage us to quit thinking about whether what we’re doing collectively is right or wrong. Regardless, the numbers are what matter.

A blind reliance on numbers is an important characteristic of an easy answer, and in the criminal justice system more than anywhere, we always go for the easy answer. We increase the numbers associated with punishment, and we take the full amount from people who don’t have any leverage. We’re bullies, after all, so the ones who fight back the hardest and have some leverage always do better. We keep stacking on time because the net effect is more time overall. The numbers associated with criminal sentences continue to rise, and most people end up suffering more for what they did than the previous wave of people did.

Following the same easy answer over and over again creates inflation. Just as currency becomes worth less and less with each passing year, so do days and years in criminal sentencing. An extreme DUI used to cost ten days. Now, it costs thirty. Once upon a time, a blood alcohol concentration close to 0.08% cost no days in a cage. Now, it costs one. Plus thousands in fines. And probation. And an interlock. And classes. And a victim impact panel. And a license suspension. The value of time diminishes, and things that once cost very little now cost quite a bit.

As the numbers associated with punishment rise, the numbers that represent bad things supposedly drop. This is because the people who tell us what the numbers are happen to be the same people who advocated harsher penalties in the first place. Their livelihoods depend on those numbers encouraging us to give them just a little more power. Who cares though? Accepting that fact would require us to look for another answer, a harder answer. We want easy answers, remember?

Time is the same to everyone. A rich man can pay a small fine without blinking. Thirty days for him isn’t a second shorter than thirty days for someone who’d be ruined by a small fine. Punishing with time in custody is appealing as a punishment for that reason. Also, it’s pretty much the worst thing we can do to someone without torturing or killing them, and the numbers right now aren’t bad enough to merit that. Yet. Just wait.

So time, which is the same for all of us, loses its value as the years pass. You’d still spend the same time in custody as your dad would’ve if you both had to do a year, but he would’ve served the time for something serious. His year was worth a lot. Your year is more or less worthless. You could end up losing it for the most mundane of offenses. You’ll be begging for the prosecutor to take less of your life away. Years ago, what you did probably wasn’t even illegal.

Imagine how little value the duration of your children’s lives will have. Their entire existence may not be enough to pay for a single minor transgression. What then? Do we have to find other people whose time and lives we must take along with theirs in order to placate our love of large numbers?

For that reason, I keep thinking that this inflation has to stop sooner or later. I wonder if it’ll stop because there’s no one left from whom we can harvest time or if it’ll stop because we finally become brave enough to quit going with the easy answers. What we’re doing now seems unsustainable. How long can we really keep up the rapid devaluation of the most essential, finite commodity each of us has?

But then I think about the hard answers we’ll have to come up with before most people realize how perverse we’ve become and how little we’re all worth to each other.

Maybe it’ll never stop.

One of the silly little tests that armed enforcers like to coerce unsuspecting motorists into performing so that other government actors can later forcibly remove blood from the motorists’ bodies is called the “walk and turn” test. I think there’s a little extra government stupidity when it comes to that test.

The officer begins administering the test by saying something like this:

I want you to put your left foot on the line and then place your right foot in front of it. Don’t move until I tell you. Do you understand?

When the suspect assumes the position, the officer continues with something like this:

When I tell you to begin, take 9 heel-to-toe steps down the line, turn around and take 9 heel-to-toe steps back. When you turn, you must turn so that your lead foot remains on the line. Keep your hands at your sides. Watch your feet at all times and count your steps out loud. Once you begin do not stop until finished. Do you understand?

I notice a few obvious problems right away.

First, I’m not very coordinated. Even if I trained, I probably couldn’t stand with my feet like that for very long. I’d do even worse if I was taken by surprise, put on the spot, and nervous. Second, some of it is just bad advice. The best way to balance is to look at a fixed spot somewhere, preferably in the distance. Anyone who’s ever done even a little bit of any activity requiring balance can tell you that looking at your feet is a surefire way to fall over. Third, it’s way too complex. I can’t figure out how to do even the most basic dance moves, and I’ve had plenty of motivation over the years to learn. I forget the steps instantly. I don’t remember things like that very well.

That leads me to the pop quiz. Without looking back at the instructions above, answer the following questions to yourself while attempting to perform the walk and turn test:

How many steps must you take before turning around?
Is there a direction you have to turn?
When you turn, which foot must remain on the line?
Where do your hands have to be the whole time?
Can you stop before you turn?

Hopefully all of this helps highlight how ridiculous the test is. It’s absurd that something as obviously unscientific and clearly designed to encourage failure can help constitute cause to put a human being in a cage. As is often the case with DUI, however, the test is even more of a fraud than it appears on its face.

What happens if there isn’t a line? Believe it or not, the police will make you use an imaginary one. Jurisdictions often have a standard sheet they use to track results, and most of the time, the sheets actually mention the imaginary line specifically. The scripts say something like this:

I want you to put your left foot on the (imaginary) line and then place your right foot in front of it. Don’t move until I tell you. Do you understand?

When I tell you to begin, take 9 heel-to-toe steps down the (imaginary) line, turn around and take 9 heel-to-toe steps back. When you turn, you must turn so that your lead foot remains on the (imaginary) line. Keep your hands at your sides. Watch your feet at all times and count your steps out loud. Once you begin do not stop until finished. Do you understand?

I’m not kidding.

The officer really is supposed to tell the suspect to use an imaginary line for guidance. The sheets usually have a special spot where the officer is supposed to circle whether the line the suspect used was real or imaginary. Unfortunately, there isn’t a spot to circle whether it was the imaginary line the suspect imagined or the one the officer imagined. Or perhaps it’s implied that the suspect must imagine the officer’s imaginary line. The state came up with the test after all, so I imagine its imaginary line is better. On the other hand, officers probably have special imagination training to help them imagine a suspect’s imaginary line with great precision, but I really don’t know how it works. Someone should probably clarify that in the instructions. I’m confused now.

All of this would be a lot funnier if it weren’t for the fact that “clues” on the walk and turn test help lead to arrest of the unsuspecting people who’ve already been publicly humiliated with all this nonsense, and that stepping off line is one of those “clues.” Even when the line is imaginary.

The big picture is disturbing. People are put in chains, threatened, and have their bodily fluid removed, all due in part to an absurd test designed to reveal an absurd set of signs that include failing to physically follow an imaginary line. Whose imaginary line matters remains unclear. Failing to realize the problem with all of this, authorities across the state and probably across the nation widely use the test and even formally incorporate the imaginary line into the instructions. Nobody seems to notice there’s a problem.

Welcome to the world of DUI.

Those vans are pretty prevalent here in Arizona too, though we’re switching to violent, forcible blood draws in many jurisdictions and don’t have nearly as cool a name for them. The big problem in Texas seems to be that there are Texas-sized problems with the machines’ reliability. A grand jury became suspicious, and it’s created a situation that’s fascinated blawgers everywhere. There’s a whistle-blower who fell out of favor with the powers-that-be, there’s the looming threat of contempt for some unlucky prosecutors, and there’s more than enough else of interest to make me wonder why I didn’t write about all of this earlier. Mark Bennett gives a timeline of the problems, and there are plenty of other great posts predicting what will happen, analyzing what’s happened, and discussing from afar what might happen in the end.

I’m excited about the prospect of a grand jury, troubled with what’s been going on with these BAT vans, taking a stand. I’m excited about a grand jury putting some pressure on some prosecutors. I’m excited that people might finally be seeing how unreliable the science behind all of this is and begin questioning the tactics the government keeps insisting on using against its citizens. The only thing I’m not excited about is the fact I’m excited.

A person in a patrol car who could be solving a murder or a rape, or catching a burglar or a thief or just helping a stranded motorist helpless by the side of the road, is stopping some guy for a wide left turn. The cop, who isn’t a doctor or a nurse or a scientist, is making the guy do stupid and un-scientific tests, probably using an un-scientific tinker-toy to do a preliminary breath test, and arresting the poor guy before forcing him to blow into a ridiculous machine that spits out a result that will ultimately determine his fate.

I love that some good people in Texas have questioned the process and taken a stand while performing their solemn duties as grand jurors. I’m saddened that the thing that worries them seems only to be the final act of this theatre of the absurd, the fact that the van to which the armed enforcers take these abused, unwilling people might somehow produce scientifically inaccurate results.

From my perspective, it only takes a little reason to see a much bigger problem. My guess is lack of perspective, but for some reason, most people aren’t able to see it. I suppose I’m just out of touch.

Unlike those sentencing options, I’ve never much liked the idea of court-ordered fines. It’s easy for me to understand why restitution, supervision, and even incarceration are available options to a sentencing judge. I’m not inherently skeptical about a judge’s motivation in ordering any of those as part of a sentence. That isn’t the case with fines.

I think there’s something fundamentally wrong about a judge with a cushy job and lots of power ordering a poor defendant to give money to a taxpayer-funded court. It’s always struck me as problematic that a judge can lawfully order another person to pay the judge’s employer. It only seems worse to me taking into consideration the fact Arizona has elected judges in many jurisdictions as well as strange things like judicial productivity credits. I think it’s ridiculous that we give the power to order fines to people whose re-election hopes and salaries can hinge on the financial situation of the entity to which the fines are going. It should come as no surprise to anyone that courts frequently bury defendants in all types of fines, surcharges, fees, and assessments. If I can punish you by making you give me and my boss your money, why wouldn’t I?

Yesterday afternoon, I saw a typical exchange between a judge and a defendant as I waited to get a new court date from the clerk in a misdemeanor jurisdiction. It went something like this:

Judge: You haven’t made any payments on your fine.
Defendant: I don’t have any money. I can’t find work. My kids are hungry.
Judge: That’s what you said last time.
Defendant: I’m really trying, I promise. The economy is bad. I’m trying to find work.
Judge: What’s changed between this time and last time?
Defendant: Nothing. I was trying to find work then too. I’m bound to find something sooner or later. Please give me more time.
Judge: You said that last time. Why shouldn’t I just throw you in jail and get it over with?
Defendant: My family needs me. We can’t even afford a fridge. Or a stove. We’re behind on rent. I need to find work.
Judge: I’ll give you one more chance. No matter what, you’re going in next time unless you pay your fines in full
Defendant: Thank you, I promise I’ll do my best.

Given the court and the hour of the day, I imagine the defendant owed the fines in an old DUI case. He had probably been ordered to pay the minimum fine and surcharge, which total over a thousand dollars. He probably had to pay a couple hundred dollars for mandatory alcohol screening plus hundreds more for the recommended alcohol classes. He probably had to pay for his own incarceration costs too. Because of the conviction, if he wants to drive, he probably has to pay about a hundred dollars a month for the mandatory interlock device, and he’d probably have to pay hundreds of extra dollars each year to have special SR-22 insurance. Like with most people, his DUI at some became a money pit. I’m sure it also made it especially tough for him to find work, as lots of jobs won’t hire people with DUIs.

The discussion I heard really bothered me, just like it always does. I hear it all the time. The court, which has ordered a fine, is demanding payment. The defendant, who probably couldn’t even afford decent representation, is stuck trying to pay what most people would consider an enormous amount of money. I’ve found that judges rarely show even the slightest hint of understanding in such situations. I often notice quite the contrast between the shabbily-dressed defendant with work-worn hands and the judge with an expensive watch and delicate hands peeking out from beneath his black robe. I think about how sick it is that a guy who’s walking home to his house with no fridge because he’s too poor to get his license reinstated or buy appliances could be ordered by a judge who’s probably driving his Lexus back to a big home in Paradise Valley to pay a fine to a court housed in a multi-million-dollar building. The court doesn’t need his money. It means the world to him and his family though.

I think the message is supposed to be that crime doesn’t pay. It’s too bad that message is false. Crime does pay. If you get away with it or if you’re the government, that is. Regardless, even if the message was true, it wouldn’t matter. That guy with the DUI lost his license. He went to jail. He attended court then classes then victim impact panels. His life was disrupted and he and everyone around him suffered. Now, some rich guy is threatening to mess up his life and his family’s life a little more because he’s too poor to line the coffers of the rich guy’s even-richer boss. With the crime long since past, the message is not that crime doesn’t pay, but that the system and the people in it can be very, very cruel. It may not have the same ring to it as crime doesn’t pay, but at least it’s true.

If I lived in Texas, I would have had a little more background when I read this post by Murray Newman. I was skeptical about what he perceived as a double standard even reading it without context, but that by itself didn’t seem worth a post on my part. When a prosecutor gets charged and defense lawyers don’t just rant about the presumption of innocence, I hardly see it as cause for concern. We’re still human, right? Defense attorneys live in the same world as everybody else, don’t we?

I once got hammered for writing about a colleague after reading he’d been charged, and I left the mess feeling like “presumption of innocence” was a chorus sung outside of court only by those people with some skin in the game. Everyone feels outrage when they’re attached to an accused. Secret grand juries, presumptions against bail, and mandatory minimums don’t seem so bad when you don’t care about the person who bears the brunt of the rules. Otherwise, who cares? It’s all about fairness when you’re linked in some way to someone on the receiving end, but it doesn’t matter every other time.

In a post so perfect I couldn’t possibly add anything, Mark Bennett at Defending People explained why there is no double standard. Lack of contradiction isn’t the only thing that matters, however. There are additional, fundamental reasons why Murray’s post misses the mark, and here’s the passage that bothers me most:

The irony of the situation is stunning, because as members of the Defense Bar celebrate and rebroadcast the arrest of a prosecutor or police officer, they are abandoning the most sacred principles of the Constitution.

First, they are presuming them guilty.

And second, they are relishing in the idea that they should be treated more harshly under the law because they are different.

That last part is where I get the wind knocked out of me. It’s also where circumspection ties in. I’m going to be far less artful in my approach here than the others I cite, as the gravity of the situation as I see it depends on the full picture being crystal clear.

Here’s what’s happening, for the less-than-attentive: a prosecutor, one who once argued for a life sentence in a drunk-driving case, was just arrested for DUI. This comment from him in that life-sentence DUI case, which Mark quotes to start his post, is absolutely stunning in light of his current predicament:

Prosecutors Lester Blizzard and Kayla Allen, however, asked Ellisor for life sentences to send a message to anyone who would drive while intoxicated.

“To send a message to anyone who would drive while intoxicated.” If I could emphasize that more, I would. Should I put it in all caps too? “TO SEND A MESSAGE TO ANYONE WHO WOULD DRIVE WHILE INTOXICATED.”

Maybe they were misquoted, as news outlets rarely get it right with criminal cases, but that doesn’t matter much. Presumption of innocence and the fundamental role of a criminal defense attorney aside, this just isn’t a double standard in the traditional sense. This is something far greater. This is the kind of irony from which great tragedies are written. Mark does it justice, but I just can’t get over how amazing this is.

If this is indeed a double standard, it’s a justified one, if such a thing exists. This prosecutor is different. I do indeed relish the idea that this man, if guilty, should be treated more harshly under the law. I relish that because this man, if guilty, is different. I’m also saddened because cruelty and ignorance, when applied to one who himself has sought institutional cruelty and ignorance, is no less cruel or ignorant. I really am overwhelmed by this situation, and I’m having trouble grasping how Murray’s response can possibly make sense.

What about a defendant who is treated more harshly after being convicted of child rape because he was convicted of committing the offense at a time when he was entrusted with the child’s care after she had been raped by someone else? Would Murray view that as a double-standard? My analogy is crude, to say the least, but not as far off as it might seem. Isn’t someone more culpable than he would otherwise be for doing something if he was endowed with and had in fact exercised incredible power against others in order to prevent them from doing the very thing he was convicted of doing? Do additional circumstances beyond his control change things? Do they make him different from the supposed monsters he once fought?

This isn’t something that would ever cross my mind if 99.9% of prosecutors I know were arrested for DUI. I would normally rant against the DUI laws and other bullshit legislation after hearing they were charged. The system is unbelievably unfair when you don’t sign up for the insanity. If you wrote it, enforced it, or upheld it, you won’t see a lot of sympathy from me when you break it, if in fact you broke it. Even if you didn’t break it, if you supported the laws that made you likely to be wrongfully convicted of breaking it, you won’t get any sympathy. But then again, depending on the case, I probably could put my feelings aside and give my heart to the representation.

The situation is remarkable, obviously. It’s like anti-gay Republicans getting busted for rest area blow jobs and tax-and-spend Democrats getting busted for hiding assets from the IRS. It has all the makings of a great tragedy. It is a unique situation. It is something I will think about for months, maybe years to come. My feelings about the situation, however, are not evidence of any kind of double standard. Of that much I am sure.

From the beginning, my client has wanted to plead. He just doesn’t want to lose his license for a year, which is the case with DUI drugs, so we asked for him to plead to DUI for being impaired to the slightest degree, a different subsection with a 90-day license suspension attached. It’s a case where the supposed marijuana use was a day before driving. My client is young and has no prior criminal history. The facts of the case as well as my client’s personal circumstances are very sympathetic. My client’s was a modest request at best.

The prosecutor’s response to why she couldn’t make my client a regular DUI offer was that there was no drinking involved. “There’s no factual basis for impairment or alcohol,” she said. Immediately, I asked, “so if my client had been drinking before he drove, we probably could have worked out a deal to a lesser DUI?” She seemed to think so, which led me to my next question: “should I then advise clients that, if they’ve ingested marijuana, they are best off also consuming alcohol prior to driving?”

My question resulted in a long, confused silence. Somehow, I don’t think her office has really thought its policies through.