I frequently deal with people who have serious substance abuse and mental health issues. They are usually fairly aware of their problems. Although many are incapable of fixing them, I see complete denial less often than I would have expected before I began practicing law. The shameful rock bottom moment, typically the moment that led to them needing my services, is the sort of thing that makes most of them shudder. The embarrassment can help commit them to change, but it can also depress them, leading right back onto the destructive path that caused the problem in the first place. Whether awareness of the need to change leads to improvement or not, however, it is still present in most instances.

Many prosecutors I have dealt with lately are clearly ashamed of what they have to do as well, but they seem to lack the insight to realize they might want to change something. My guess about the cause is the fact that an individual being controlled by his personal demons has no one else to blame directly and is usually the primary person suffering the consequences, while a person who thinks he works for the good guys is doing the bad stuff to someone else and can justify all sorts of awful things by saying he was just following orders. There’s also the fact that many of them work in a culture that condones what they are doing. Like an addict living with a group of addicts who see no problem smoking a little meth first thing every morning, there’s no one to raise an eyebrow when they mention what they just did.

I was recently in a misdemeanor jurisdiction for a change of plea in a DUI case. Arizona’s DUI laws changed a little while back, and the first-time regular DUI statute went from requiring “twenty-four consecutive hours” in jail to requiring “one day.” The argument defense lawyers, myself included, have been using is that the implication of the change is that a day can mean less than twenty-four hours and judges can now give a full day of credit for time spent being booked after the initial arrest. In that particular case, the prosecutor told me when we met before the hearing that she had no position on the issue, suggesting I argue it to the judge. I asked her about language in the plea that specified no time-served credit, and she again encouraged me to argue it. As is often the case, the prosecutor stayed in her little room during the change of plea, electing not to be present.

When I asked the judge for time-served credit, she said she would happily give it to my client but that the prosecutor’s office would then withdraw from the plea. The judge explained that the prosecutors used to actually show up and say on the record that they had no opposition before later filing to set aside the plea, but that they now just hang around in their little rooms and do it later. The prosecutor, who knew that her office would not let the judge do what she suggested I ask the judge to do, was apparently so spineless that she was not even willing to tell me in person that her office was opposed to giving my client credit for time served and made it so it was guaranteed he would not receive it. She melted shamefully into her chair when I asked her afterwards why she didn’t just tell me about her office’s policy.

My clients squirm, reflecting on past mistakes and resolving to do better, but this prosecutor and others like her just keep on following orders they aren’t even willing to outwardly admit exist. Looking at the big picture, refusing to give someone time-served credit isn’t such a big deal, but what matters is the fact the prosecutor was uncomfortable with what she was doing. Whether it’s because she didn’t like the fact the legislature’s intent seems to be one thing and her office is frustrating that by making the exact opposite happen, or if she just doesn’t like telling people to their face that she wants them to go to jail and refuses to give them credit for being arrested, questioned, booked, and held even though she’d be begging for credit if she or someone she loved was the defendant, the fact remains that somewhere deep down she didn’t like what she was doing and did it anyway. I almost never hear from prosecutors, even the obviously ashamed ones, that they intend to change anything.

I encountered a worse example even more recently. My client was dying and faced a charge so trivial and ridiculous it should never have been a criminal offense. We were only asking the judge to allow my client to avoid a criminal conviction, something permitted by statute for the type of offense. The prosecutor made it very clear her office could not agree to that because it was against policy. When it came time to argue my motion, the coverage attorney looked at the case and clearly appreciated the fact his office’s policy was going to result in a poor old man to spend his last days branded a criminal for something stupid. He had the judge waive his presence during oral arguments rather than show up and argue for something awful. We got what we wanted.

I suppose I should be happy when prosecutors show a little by humanity cringing as they carry out some of the worst things they are ordered to do. After all, there are many who lack the perspective and compassion to do even that. However, I would still think that intelligent, educated people would more frequently do something about the actual problem instead of trying to minimize their involvement or not advocate as effectively as they could for something they find troubling.

Prosecutors may have the responsibility of a minister of justice and not simply that of an advocate, but that doesn’t get in the way of politics at the highest level. A thrown game down below may get the right result, but it’s a sign the system is broken when it only works when it doesn’t. Until the shame eventually reaches the top, that may be the best we’re going to get.

It appears to be some sort of service allowing me to compare other lawyers’ online marketing with my own. I’m not positive because I have absolutely no interest in exploring the depth of other lawyers’ desperation in a slow economy. The service itself wasn’t what interested me, anyway.

What interested me was the first lawyer listed in the email, a “local competitor” they claim is using online marketing to “attract customers” away from my business. I find that statement problematic because that particular lawyer was recently disbarred and is presently being held without bond after being charged with sexual abuse, sexual misconduct with a minor, and molestation of a child. Avvo hasn’t updated his page to reflect that either. Way to go, online lawyer marketing guys.

The problem here isn’t just that this company is touting a disbarred lawyer as an example of someone I should try to emulate. That particular lawyer actually does (or did, more accurately) a great job for his clients; I was impressed with him when we represented co-defendants a few years ago. I’m sure he would do a fine job for new clients if he could, but he can’t right now. The problem is that the last thing he has on his mind is attracting “customers” away from my business, yet the statement in the email may in fact be true.

What does it say about the online business model that it works just the same for you when you’ve been in jail for a year? How much discipline does a business source like that take to create and maintain? How terrifying is it that people are actually finding a lawyer through such a source? What’s both funny and scary is that I’m calling out in this post two services that appear better thought out than most. Most of the SEO and web marketing emails I get look like they’ve been written as part of a final exam in Nigerian scam artist school. I bet people actually use the service that sent me that email. I know people use Avvo.

If you don’t exist on the internet, you don’t exist. That’s what the SEO parasites keep screaming. If you exist on the internet, though, you still may not actually exist. Do the marketers worry that they’re selling a service that indiscriminately funnels individuals with real life problems to lawyers who can’t help them or in some instances may even hurt them? Do the lawyers who buy into all of this care that their practice took no skill or hard work to build? I can imagine these lawyers relaxing at their beautiful estate in their golden years, tutoring eager young proteges about the secret to their success. “SEO, kid, that’s where the money is. Put up a slick website, start a flawg, claim your profile everywhere you can, and retweet like your career depends on it. It does.”

If your business model depends on a service that doesn’t distinguish between you and a guy who can’t practice law, a service that would do the same for anyone, lawyer or not, so long as that person can cut a check, are the clients you get really something to be proud of? There are people out there who care as much about how they get their client as they care that they get clients. Those are the lawyers who get my referrals. The SEO cheerleaders can keep their leads to themselves.

At first, the prospective clients would leave polite messages. They’d ask that I call them back at my convenience, acknowledging that my voice mail greetings said I would have limited availability until May. A few wished me well on my walk and said they’d be contacting Adrian because time was of the essence. What nice people I get to meet sometimes.

At some point after climbing onto the Colorado Plateau, however, the volume of voice messages increased. Not a lot, but a noticeable amount. Many callers’ messages demanded prompt calls back, ignoring my voice mail greetings entirely. When I called, most of them tried to negotiate my non-negotiable initial consultation fee. They became angry when I suggested I might not be the right lawyer for them if they felt $100.00 was an unreasonable amount for an hour of my time. One guy fumed about how rude I was to not hike my ass back to the office and meet with him for free right away. Another guy sent Adrian an email saying I should be fired. Adrian says the complaint is still under review by the firm’s human resources department.

By the time I was done with my vacation, I had scheduled six initial consultations for last week, my first week back. One was with someone who’d called during the first four weeks, but the remaining five were with callers I’d spoken with after more calls started coming in.

Last week, five people failed to show up for their appointments without so much as a call. When I called them afterwards, I got to hear the full gamut of reasons why people can’t be reached. “The Cricket customer you are calling is not accepting calls at this time.” “The number you are calling is no longer in service.” You name it, I heard it. The one no-show I did reach said he’d hired a “TV lawyer.” He didn’t think I might want to know that he wasn’t going to make the consultation we’d set. The one very pleasant gentleman who made his appointment and retained me was the first consultation I had scheduled. He was a referral from a former client.

One for six is a new record for me. In fact, I haven’t had anywhere near that many no-shows in a single week since I used to accept court-appointed cases. It was pretty remarkable, though not entirely surprising.

In other news, my Avvo rating skyrocketed to a perfect ten while I was gone. I think I can pinpoint the date.

And who says the internet doesn’t get the phone to ring?

If you’re wondering where I am or what I’m doing (hint: hiking or sleeping), you can track my progress here or here. Depending on your browser and whether the WordPress gods are pleased with me, you may be able to track me on this page:

Needless to say, there won’t be much if any posting at Tempe Criminal Defense for about fifty days. I’m probably not going to be very quick about approving comments either, so save your all-caps emails about me violating your First Amendment rights until I’m back.

First crazy guy from New Jersey who found me on the interwebs, wants a bit of free legal advice, and meets me at a waypoint with beer and cheesecake will get a special prize. It won’t be legal advice though. It might be an empty camp stove fuel canister and hug from a smelly criminal defense lawyer. Sorry, buddy.

See you all in May!

Elie said he didn’t want to use the restraint or show the sympathy for suicide “victims” (his quotation marks) that he apparently feels society requires and expects of him. What he wrote was certainly consistent with that:

Screw this woman….

After noting her likely unsupported feelings that something was medically wrong with her child and the fact she wrote in her suicide note that what she was about to do was “evil,” Elie continued:

Damn straight she was “evil.” Look at how her concerns are all about her: she felt shame, she noticed changes, she couldn’t bear the thought. What a selfish, awful woman.

He didn’t hold back with his conclusion either:

Don’t let the fancy law degree and respectable job fool you; she’s a monster.

After Elie put up his post, a friend of the woman responded. In her post, she described her relationship with the woman then explained her theory about what happened:

My impression is that she likely had post-partum PSYCHOSIS, not post-partum depression, and, if I were a betting woman, I’d bet her doc missed it, and treated it with anti-depressants, which are known (by mental health experts) to make this type of psychosis WORSE. PSYCHOSIS, Elie. Not depression, not anxiety, not sadness. PSYCHOSIS. But it wasn’t easy to recognize (if I am right about it), because she wasn’t hallucinating unicorns and spirits — she was hallucinating about her baby perhaps having something like cerebral palsy… due to her allowing the baby to trip (like every other baby in the world has done). So it *seemed* that she was rational and was just obsessive about taking her baby to doctors. But she wasn’t, as best I can tell. If I am correct, she was far, far, far more ill than was realized, with the tragic result that ensued.

So her friend decided there was something else responsible. Undiagnosed post-partum psychosis makes the act different from one involving post-partum depression. Or anxiety. Or sadness. She goes on:

This is not a crime, not an act of a selfish woman, not an act of evil — it is an act of grave, grave mental illness that appears to have been woefully missed.

Her conclusion stresses not just the presence of mental illness, but the specific type she believes must have been responsible:

I urge you to update the story…. I apologize if I sound inappropriately critical of you — it was only after I researched the psychosis issue that any of this fit together for me, so I am sure the situation is likely mind-blowing for you, too.

I’m not going to be nearly as apologetic to Elie, and I didn’t even know the woman.

What he wrote was awful. It was attacking someone whose mind was so overcome with imagined horrors about her child’s maladies that jumping from a building seemed like a solution. He has no idea what kind of person she was. He has no idea what kind of debilitating condition she had. Most people fear death above all else, yet this woman chose to welcome it because of the terrible dreams that came to life and tormented her.

I may pretend I’m strong, but I’m really just lucky. Some people’s blood and brains and tissues and organs are made of things that are just right as they are. Others are balanced enough to get the job done, capable of dealing with most of what life throws at them, at least. Some people have stable upbringings that certainly don’t hurt things. The chemical, the biological, and the situational are all powerful things. Who am I to say this woman was evil? A monster? Who is Elie to say such things? A little noradrenaline or serotonin, perhaps a little dopamine, might be the difference between me and the people I care about and that woman who leaped to her death to escape the thing the rest of us cherish most. I can’t judge, and I shouldn’t. Elie shouldn’t.

The published response to what Elie wrote didn’t do much for me either. It’s not that it isn’t accurate, which it may well be, or that is isn’t convincing, which may also be the case. The problem is that it draws troubling distinctions. Psychosis makes things fit together for her, while depression does not. Anxiety and sadness are so obviously insufficient that mere comparison helps to emphasize the severity of the problem in the case at hand. Researching a specific cause and determining its applicability caused her to urge Elie to update the story, not the fact this was simply a mentally ill woman who made a tragic decision.

And so it goes in the criminal justice system. [Insert expert's name here] Bullshit Syndrome type II can potentially alter culpability and/or punishment for killing a baby, while type IV makes it inexcusable. If you don’t suffer from the right sort of thing, you’re a monster. You’re evil. We can make you stand trial. We can kill you. If you have the proper illness, something a bunch of people with lots of letters after their names wrote and peer-reviewed without ever thinking their categorizations would help save or destroy human lives or something a pseudo-scientific hack pulled out of his ass to make it look like the system might not screw over everyone all the time, you might be okay. Otherwise, be afraid. We neutralize the frightening complexity of our minds and bodies with classifications that will probably seem quite absurd years from now. Enlightenment in the future is little consolation to those suffering the wrath of our ignorance today, unfortunately.

For me, Elie’s critic’s defense fell flat because it seemed so heavily based on a dubious technical distinction that seems uncomfortably close to the sort of flawed premises that abound in the system I eat, sleep, and breath as a criminal defense lawyer. She was dead wrong when she said it was not a crime. Everything is a crime these days. She nailed it, though, when she went on to say it wasn’t the act of a selfish woman or an act of evil but an act of grave mental illness that was woefully missed. It undoubtedly was, but so are countless other acts by countless other people in countless other places all over this country each and every day.

We shouldn’t stand up for other people because they fit some mold that we’ve predetermined to be capable of relieving them of fault. We should seek to understand the suffering of others even when we struggle to identify the root. Even when we might normally judge harshly whether the cause was sufficient justification. We should live our lives and create our institutions with compassion irrespective of artificial boundaries.

The guest-poster, Peter DeFilippis, concluded that increased juror participation would aid their judicial system in achieving the goal of providing justice for all. I can’t say that I disagree. I am a pretty big fan of jury questions because they’re wonderful little spoilers that help you know where to focus. I can also see how they help to connect jurors to what’s happening. The insight into the jurors’ thoughts that a system like ours gives the parties is both a blessing and curse, however.

It’s a blessing when you know you’re going to win. Once, I had an aggravated assault on an officer and resisting arrest case where my defense was that the officers beat the crap out of my client and had him wrongfully charged because that’s what bad officers do. It was a little more subtle than that, but you get the point. Anyway, a jury question like this came up:

Did any of the officers get disciplined for beating up the defendant?

Yep, I won that one. No surprise there. It was nice to know I was on the right track.

In another one, however, the jury had me fooled. My black client claimed the white victim was a lying racist who refused to let my client ride his bicycle on the sidewalk and was about to attack him when my client had to stab him in self-defense. The victim absolutely fell apart on cross-examination, and we got a jury question like this:

Did you refuse to let that poor black man ride his bicycle on the sidewalk because you are a white supremacist or for some other reason?

I really pushed that point for the rest of the trial, but in the end, they convicted my client. It turned out that, after lengthy deliberations, they decided there just wasn’t any conceivable version of what happened that would justify a stabbing, even though they agreed the victim was a terrible racist who probably deserved to get stabbed. At least the judge seemed to agree, and the sentence reflected that.

It’s also a blessing when you find out what you need to address, which happens more often than not. Of course, in those cases it’s unclear whether they’re asking because they want to confirm what they already believe and are going to hold accordingly no matter what, or because you won them over by addressing their concerns. Regardless, it’s nice to have some input from the people in charge.

On the flip side, it can be a very frightening thing. It will occasionally give you a terrifying look into the minds of people with the power over life and death. You realize how people care about the stupidest things (was it domestic or imported beer that the defendant stole at knife point from the convenience store?) and that juries would nullify all the time if they only knew the punishment (is the defendant looking at a lot of time for this? Why are we having a jury trial for this?). You also realize that people want to be told what to do.

I could go on and on about jury questions clearly indicating a desire to defer to authority to avoid accountability for things they’d never consider doing if they felt personally responsible for the outcome. In cases where the crime is highly technical or terms are unclear, juries want to know what to do. They don’t think about how they should probably acquit if they’re unsure about something being a crime or not. Jurors generally don’t see a problem when they’re having to ask if something fits the definition of a crime or not.

Take this question, which came up in an “innocent possession” case (imagine you found a baggy of cocaine on a playground surrounded by little kids):

Is it possession even though the defendant only possessed it to turn it over to police?

The courts, of course, think that “possession” is a word “of ordinary significance” and too obvious to define in just such a case.

Or take this one, which involves a specific term:

Does giving a fake name for the officer to look up count as using any written document or electronic data for the purposes of the taking the identity of another law?

In that case, there was an unpublished decision directly on point as well as other authority suggesting it doesn’t count. The judge had already denied the motion for judgment of acquittal, though, and she didn’t answer the question because it went to the ultimate issue the jury was supposed to find; the same issue that case law explains the jury would be getting wrong if it convicted on the undisputed facts of the case. The jury convicted without delay, however, and I imagine the appellate courts are already hard at work figuring out how best to affirm the conviction.

As scary as it might be, at least it’s nice to know. Jury questions certainly don’t make it any worse for the defendant, and they might even help. Getting in their heads is worthwhile even though you might not like what you find.

See also: posts at a public defender and Simple Justice on the subject of jury questions.

My client’s case was dismissed on Friday, but there were strings attached. He agreed to a $200.00 forfeited collateral on a new citation in exchange for a complete dismissal of his federal criminal case. Compared to a lot of defendants, the result was great. In most cases, I’d be happy. This case is a little different.

It shouldn’t have been charged in the first place. The statute containing his supposed violation is so broad it could mean almost anything. I might be violating it by writing this post, and you could be violating it by reading what I write. If you try to interpret the statute in a way that avoids constitutional problems, there’s no question my client’s conduct fell well outside its scope. On top of that, federal officers’ subsequent violation of his constitutional rights attempting to get a confession was nothing short of outrageous.

I was ready to litigate from the beginning. So was my client. Each hearing was a battle, from setting his release conditions to the first simple scheduling conference. One co-defendant took a plea, but not my client. He was in it for the long haul. Or so we planned. We weren’t expecting an offer to dismiss for $200.00 collateral on an extra citation he was more or less guaranteed to receive anyway after local authorities declined charges. That changed everything.

We’d spend well over $200.00 before the motion hearing was done. I’d spend over $200.00 on gas getting to the courthouse for two weeks of trial. We might have had to fly a witness in from France. We might have had to retain an expert. We were definitely going to have to pay for audio-visual help to effectively use the various videos of the alleged offense that were all in the most inconvenient format known to man.

Sometimes, it isn’t about winning. Sometimes, a loss turns out better than a win. In those cases, winning looks more like losing. Is it a win when you spend hundreds fighting for a dismissal when the case could’ve died a quiet death months earlier for half the cost? Is it a win when you spend thousands getting a not guilty verdict on three counts when two of them would’ve gone away silently and one of them would’ve never been filed had you just sent in a check?

It may seem like an easy question, but clients have different interests. If I called up most of the people on my caseload right now and told them that the prosecutor would dismiss the case for $200.00 without a hearing, a finding of guilt, or even any sort of admission, I would have some happy clients and a break room full of gift baskets. Some clients feel quite differently, however.

In Georgia, Martin Luther King, Jr. chose forty-five days in jail over a $178.00 fine. I’m sure he knew he would end up in jail again when he began his campaign in Alabama a year later. Over a century earlier, Henry David Thoreau opted for jail in lieu of paying poll taxes because of his opposition to the Mexican-American War and slavery, ultimately getting out only after someone paid his tax dues without his permission.

Representing either of those men would have likely been a unique and potentially frustrating experience. A client who wants jail? A client who would prefer to lose fighting at great cost rather than win on the cheap? My client has far more in common with Martin Luther King, Jr. or Henry David Thoreau than he does with the average defendant in a criminal case. He believes in his cause as much as I believe in what I do as a defense attorney. It’s obviously more important to him than avoiding a conviction and whatever might flow from that.

I did not envy his decision, which came more as a result of his concerns about the effect of fighting it on other people than it did from a simple cost-benefit analysis of his own best interests. Some people don’t care about themselves as much as they care about certain ideas. Figuring out what if anything fighting a case and winning or losing accomplishes in furthering those ideas can be complicated though.

I am skeptical about using the system to make a statement. It has surely worked in the past to stir public sentiment, but I wonder if we as a culture are moved by injustice to act like we once seemed to be. Where’s the outrage about Bradley Manning? What difference did all those Occupy arrests make? A trial loss might have meant nothing to anyone but him.

A trial win could be less productive and might even legitimize the system that’s helped perpetuate the wrongs he protests. Forfeiting a little bit of collateral ends it, letting him move on with his life and his fight. No more speculation. No more hassle.

In my client’s case, there was probably no right decision. I only know that it is over. His cause will continue. And I’ll do my best to quit thinking about motions un-filed and battles un-fought.

Take notes as you practice, stop immediately when you notice a mistake or an uncomfortable moment and correct it. Analyze and re-analyze your presentation as you go. Make staging notes like cutting down on time on certain parts, and how to enunciate tricky words and phrases.

It strikes me that what Roy describes is certainly an important aspect of practice, but it’s really only half of one part of the big picture of effective preparation. Although I’m sure he does it in his own preparation, in his post, he never really explains that there is every bit as much a need to practice a complete performance as there is a need to stop and correct.

When I taught private music students, and also in my own practicing as a musician, it was important to break something difficult down into the smallest manageable piece. Do what you could do perfectly a set number of times. Only after achieving that number without any flaws could you move on. Next, you add more to what you’ve worked out, or you work on another section in the same manner. You keep building on what you know you can do right over and over again. Eventually, you are executing huge chunks repeated times at an acceptable level. That method is akin to Roy’s suggestion about stopping and analyzing, breaking the presentation down and trying to make each little part perfect.

His advice is great, and many lawyers should better take it to heart. Lawyers do all kinds of ridiculous things that could easily be fixed with a little extra attention to detail during practice. I’ve seen prosecutors who consistently misstate certain legal standards, ultimately destroying their credibility when the jury sees the statements don’t match the jury instructions, just like the defense attorney said in his overruled objection. I’ve seen defense attorneys who can’t keep witnesses’ names straight, killing for the jury any sense that those lawyers actually know the facts of the case. Methodical, attentive preparation like what I’ve described above is the best way I know to develop accuracy and consistency, but it will only get you half of the way there.

The other half, the thing that actually makes that type of practice work, is the ability to present the final product in its entirety. Being able to recite the facts in a persuasive way or having your standard explanation of the burden of proof down pat is nice, but delivering a highly persuasive closing argument is a much more difficult endeavor. Mastering the elements individually will only get you so far, and even though I tend to take a much more improvisational approach than Roy Black or Steve Jobs might, I still do several run-throughs as if the jury was seated in front of me. The things I know I’m saying or doing a certain way are exactly as they want them, thanks to the type of preparation described above, but I also know that I’m capable of seamlessly tying them together. Trial itself is just another run-through; it just happens to be in a courtroom with a jury in front of me.

Just as many lawyers fail to execute the big picture as fail to adequately fix the details. You’ve probably seen them, just like I have. They’re the ones who lose their way and have to walk back over the counsel’s table to look at their outlines. They’re the ones who time after time fail to keep the jury’s attention because of breaks in their delivery. It can be as damaging as any other error at trial, which is why practicing like a performance and not stopping to sweat the small stuff is just as integral a part of practice as mastering the minutiae.

Curious to see how my big 7 stacks up, I went and found the profile for Tom Horne, Attorney General for the State of Arizona and a lawyer who Avvo once thought worked for me. Embarrassingly for me, he’s apparently moved on to bigger and better things. He’s a 7.3 now. Well aren’t we fancy, Mr. Horne? I still suspect his numbers are artificially inflated because of his previous Avvo connection with my prestigious firm.

I then looked up my business partner, Adrian Little, who is also a 7. Fascinatingly, he also practices “33% Native Peoples Law.” I suspect that’s news to him. I also wonder what on earth that actually means. Plus, why the hell haven’t our phones been blowing up with big money prospective native peoples law clients? And I thought all the big money was on the internet…

Next, I tried to think of the most famous criminal defense lawyers in the state, the guys who seem to have some sort of celebrity status in the criminal defense community. Sure, I have no personal knowledge about any of these guys and their actual abilities, but I was a little surprised to see Larry Kazan and Larry Debus with a sad little 6.9 each. If they don’t step it up, pretty much every high profile client in the state might quit hiring them. The same must be true of Mel McDonald, former Superior Court Judge for Maricopa County and United States Attorney for the District of Arizona, and Larry Hammond, who started the Arizona Justice Project and served as an Assistant Watergate Special Prosecutor and First Deputy Assistant Attorney General during the Carter Administration. They’re 6.5s. How embarrassing. Holy crap am I awesome.

And, of course, I couldn’t help but look up my friend and former employer, Marc Victor. I’m pretty irritated to see that he edges me out by 0.1 points. I guess it must be something about the fact he has over three times the experience I do, is a certified specialist in criminal law, and actually has a profile with information in it. Sure is tough to squeeze a tenth of a point from those stingy bastards at Avvo, isn’t it?

Anyway, I’d like to thank all the little people for my 7 on Avvo. Although it may seem that Avvo doesn’t know anything about me, as my page only reflects things put up by other people, my “very good” rating validates the exceptionally high opinion I try to have of myself. Maybe one day those sub-7 well-known Arizona attorneys with 161 years of experience between them can break through the glass ceiling that is an Avvo 7 and join the elite like me. All it takes is 5 years of experience, which Avvo generously rounds up to 6 (thanks, guys!), and an inherent awesomeness that Avvo has obviously recognized despite the lack any evidence in front of them to support it.

You are entitled to a jury trial in an Arizona reckless driving case

I initially told my client that I didn’t think he was actually eligible for a jury trial in a case involving a single count of class 2 misdemeanor reckless driving. I didn’t even believe he was actually going to get one when he showed me his hand-written pro per motion for a jury trial, the state’s hand-written response saying it was okay with that, and the court’s ruling giving him exactly what he wanted.

You don’t get a jury trial for first-time regular DUI or even simple assault or misdemeanor child abuse, after all. Why on earth would you get one for reckless driving?

Well, it turns out I was wrong. There is even a case directly on point. By the way, you also get a jury trial for bottomless dancing and herding sheep or goats on the land or water of another. Who’d have thought?

Even the judge who ended up handling the case, someone who’s been on the bench for twenty-five years, had never done one. He was skeptical about whether it was jury-eligible too, and he made jokes throughout the trial about how ridiculous that was.

What was more ridiculous to me was the fact reckless driving is a crime with serious consequences. Nobody but me (and my client) seemed bothered by that.

Blanket prosecutorial policies suck

My client was alleged to have crossed several lanes on the highway to get to the carpool lane before speeding then pulling over to the left after the officer initiated a traffic stop. Even on those relatively innocuous facts, the county attorney will not plead anyone charged with reckless driving to a non-criminal traffic violation.

The plea offer was a bunch of community service, an enormous fine, and a criminal conviction. My counter-proposal was expensive traffic school and no points on my client’s otherwise spotless driving record. I suppose I should be thankful that the state is so blindly cruel and fixated on excessive punishment because things ended up turning out for the best.

Regardless, the county attorney needs to fix its policies. Not just as a freedom-loving individual, but also as a taxpayer, I am deeply offended by policies that waste so much of everyone’s precious time and money for no reason at all. The head of any office with such a ridiculous policy should be voted out of office immediately. Why is it that people think everything needs to be a crime?

Start picking a jury before you even enter the courthouse

I don’t know how prosecutors enter many courthouses, but I do know it isn’t through the front door at the one where this trial took place. While I was outside in what we here in Arizona call cold waiting with my client and dozens of other people hoping to be let in at 8:00 a.m., the prosecutor was nowhere to be found.

I like to imagine the prosecutors pulling up to special parking lot with friendly attendants wishing them a good morning before swiping a badge to get into a green room with donuts and coffee, but that’s probably not the way it is. Regardless, they probably aren’t lined up out the door like cattle, waiting patiently to take off their belts while the guy in front of them who can’t read the sign saying no food or drink argues with security about why it’s bullshit that he can’t take in his backpack full of pastrami sandwiches.

Despite all its drawbacks, being part of the crowd is actually better. At that trial, I got to quietly study the people in the crowd, many of whom ended up in the pool of prospective jurors. I got to watch one woman cut in front of fifty other people holding the same jury summons and gripe at the person manning the metal detector about how important she was and how she was late for jury duty.

People like that are always the quickest to judge others harshly for even the slightest mistakes, and although she volunteered plenty that would make her an easy challenge for cause and did not even end up a low enough number in the pool to be considered at all, things do not always work out like that.

Had she kept her mouth shut in voir dire and been further up the list, I might not have known she would have needed to be my first peremptory challenge had I not been there to see how she behaved. There’s no rule against being attentive and trying to read people no matter how soon you start doing it. Being treated like everyone else enables you to observe everyone else. A major disadvantage when it comes to convenience might be a huge advantage when it comes to representation.

People love authority

It’s funny how happy people are to please authority. Actually, I take that back. It’s terrifying how happy people are to please authority.

After trial, I was part of what has to be one of the weirdest group discussions I’ve ever had. The jurors, the prosecutor and his supervisor (it takes two of them for each of us at trial, I’ve found), the citing officer, and my client and I all spoke afterwards.

The jurors were clearly eager to please the armed officer, the man who decided to cite my client with a criminal complaint in the first place – the charge they unanimously rejected after a remarkably short period of deliberations. They told him what a fine public servant he was. They said how they believed him, and then they scolded my client. If they could have taken my poor client’s transportation and license right then and there to show how serious they were about pleasing the guy in uniform, I have no doubt they would have.

Stick an earnest-looking authority figure in front of a group of citizens, and they’ll do anything to make him happy. A jury that knew for sure my client was not guilty when they were by themselves seemed almost ashamed of its verdict when confronted by authority. I have no doubt some of them might have confessed to something themselves had they thought it might have ingratiated themselves with him even a tiny bit.

I thought about all the clients I’ve had over the years who’ve bared their souls to officers hoping for sort of validation from someone who seems to matter. The vast majority of them found themselves behind bars, convicted in large part due to their desire to please those with authority. Jurors, it seems, are no different.

Don’t assume you won because you’re good

Although I “won” the trial, I can’t really brag about it. Not that I would anyway, but I know for a fact that I may have had very little to do with this verdict because one juror told me so. None of them disagreed. It was humbling.

My theme was the old idiom about making a mountain out of a molehill. I pointed out the crackerjack legal team at the prosecutor’s table and the officer taking a day off work, the duly-empanelled jury, and my client missing college because he crossed a few lanes of traffic. I stressed the severity of charging a young man with a criminal offense.

One juror, the guy who thanked the officer most profusely for his service as a Marine and now as an officer, told me he “didn’t buy that junk one bit.” His rationale for a not guilty verdict?

“It just wasn’t a crime.”

Part of me thinks that was my whole point, of course. In the end, he might have thought I was minimizing, but he agreed it was overcharged. It was.

What I took from the jury was that people rarely understand the origin of their ideas. I’d like to think it was my theme that convinced him and that he just wanted to the please authority by castigating me about my poor performance, but all I really know is that something about the case convinced him the charge did not fit the conduct. I have absolutely no clue what that was, even after speaking with him.

Interestingly, no one once recognized my argument that recklessness has a specific legal definition and that there was no evidence whatsoever that my client was aware of and consciously disregarded any sort of risk. That much was damn near conceded by the state. The jury instruction on that element didn’t seem to matter either.

What mattered may have been something I never said but that resonated based on the facts. It could’ve been my cross-examination too, which consumed most of trial and tied in with my theme without ever making it explicit. It also could’ve just been dumb luck.

Don’t leave anything out

In all honesty, I really don’t know what happened. However, the fact the jury told me what I thought I was doing right didn’t matter at all helped give me some perspective. As a result, I can take one big thing from the experience.

That big thing is that you should never leave anything out. Don’t ask that extra question that makes you look like a fool. Don’t ramble on forever in opening or closing.

But…

If there is a theory under which they could find your client not guilty, give the jury the evidence they need to decide accordingly. Clarify it in your statements if necessary, but don’t belabor the point, especially if it is only incidental to what you believe in your professional judgment to be your client’s best chance of success.

You probably have no clue what is or is not going to work. Present what you have, and fight for all of it when the state tries to strip your client of his defense. There’s trial strategy in brevity, but there’s also rarely a second chance.

The prosecutor is the one selling a specific story. You are most likely selling reality and the facets of it that show a jury box full of strangers that your client is not guilty.

The truth can prevail, but only if there’s enough information for the jury to find it.