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

I imagine the root of the problem is the way most solos bill. If you don’t keep track of your time, flat fees feel a lot like found money. Someone comes in and pays you, but you haven’t done anything yet. All of a sudden you’re richer, and all you had to do was listen for an hour or so and print up a representation agreement. Earning money doesn’t immediately feel connected to the work you perform. Work comes later and is not accompanied by payment. Getting money is easy. Legal work is hard and thankless.

The other thing I see with these lawyers is the desire to start a side business. If they don’t have one already, they all want to start some other company. It’s always a side business that’s supposed to run itself. The owner just sits back, kicks his feet up, and takes a swim in his money bin every once in a while.

It’s been said a million times before, probably by me in previous posts, but this bears repeating again: lawyers sell their time and efforts, so financial success means lots of time and effort.

When times are good financially, I’m usually too busy to notice. When things are slow financially, I’ve usually got plenty of time on my hands to think about it. My goal in those situations isn’t just to change my financial outlook. I also want to be busy again. After all, that’s the point. I have a job. Although I joke about wanting to join the idle rich, I’d go crazy if I didn’t have something interesting and challenging to do. Law pays, but it also occupies. They’re both important.

Sometimes the law sucks. Being broke sucks more. However, the thing that sucks most of all is doing nothing worthwhile with your life. If you’re a lawyer and you aren’t willing to put in much time, you will probably have to scam your clients to make a lot of money. I guess you could bank on your side business being as profitable as you’d hoped, but I wouldn’t hold my breath if I were you. Every lawyer I know who used to talk about one day making big money in a side business is still talking about one day making big money in a side business.

Any new solo who isn’t hoping to overcharge or open up a hot dog stand on the side should probably take a deep breath and realize that time equals money and money equals time. The practice of law will probably become far more palatable when you come to terms with that simple fact.

People don’t just die anymore. Unless you’re a hundred years old with cancer and dementia and doctors gather around remaking about how incredible it is you’ve held on so long, death is murder.

People are murdered by their greedy next of kin. They’re murdered by corrupt businesses. They’re murdered by drugs that are fun or helpful, occasionally the drugs that stop the murderers themselves from suffering.

People are always murdered by an enemy of some kind. The enemy can be disease or lightning, but if it isn’t, the enemy is a person. When it is, we often still look for a person to blame.

The person we find is guilty. The person must die too.

The person needs to die in a cell. Or the state needs to kill him. Or her.

It’s a conveyor belt that carries the person to his or her death. After it starts, it doesn’t stop.

The state’s machinery of death must be purifying. Everyone goes in grieving and upset. They act like they’re going to come out feeling like it’s all okay because death has a face.

It’s the worst in all of us that seeks a face for our sorrows. It seeks something easier to understand and to explain at a cocktail party than the universe and our place in it. It has to be easier to grasp than the fact we’re all going to die.

The easiest thing in the world is to point fingers. Pointing a finger is simple. It seems like it might bring back the dead, but it never does. Everyone somehow feels better.

Our inability to grasp the complexity of the world in which we live and the nature of what’s surrounding us makes us look for simple solutions to the infinitely complex problems that arise when death is involved.

Sometimes no one needs to pay.

How do you turn that into a campaign slogan though? How do you convince people to give you power when all you give them is a little bit of truth?

Truth is free. It’s out there already. Why should people elect you to give them the truth? That’s why Google is there. Give them promises instead.

If truth is what you want to give them, then you probably don’t care about power anyway.

It’s wrong to want to hurt people. It’s hard to let go. It’s harder to know that bad things happen because good people do things without meaning bad. Sometimes without doing bad.

The system doesn’t care though. The system processes people through the system.

If we shut down the conveyor belt, no one else would die because of it. Lots of people would live.

It’s wrong. Right now, it’s wrong. We’re killing people because we want to kill people. We don’t have to do it. We don’t have to do anything.

We are slaves to our imaginations. We have an imperfect system, but we let it make irreversible decisions.

None of this should even be worth writing, yet the conveyor belt rolls on.

Adrian Little looks like my lesbian aunt

The tough thing is figuring out what’s more awesome: 1) that someone finagling those search terms can end up here (it works on my office computer but not on my home computer…no clue why that is); or 2) that someone came up with those search terms to amuse us.

I was fortunate enough to play in orchestras under his baton more times than I can count, and I owe many of the most incredible musical experiences of my life to him. There may be conductors out there with better technique, but there’s no one else on earth who cares more about bringing out the best in the people he directs. He can turn an orchestra full of apathetic people wishing they were anywhere else doing anything else into an inspired group of artists. He can turn a great orchestra into the kind of thing that makes me want to hop on the first flight to Boston and catch his next concert. It was always amazing to me that NEC had a guy like Zander on hand, always ready and willing to work his magic. Sadly, future generations of musicians will not be as lucky as I was.

NEC fired Zander last month. He was fired because he knowingly hired a registered sex offender to videotape performances and other events over the past decade or so. The sex offender, a man named Peter Benjamin, is by all accounts an extraordinarily talented man. Also, based on everything I’ve read, there is absolutely no evidence suggesting he did anything even remotely inappropriate during the many years he worked for NEC after serving his prison sentence.

Benjamin once did bad things. Very bad things. There is no question about that. He apparently pleaded guilty to raping a boy and other illegal sexual acts involving two different teenagers. The crimes supposedly included secretly videotaping himself having sex with all three victims, one of whom he abused for 2 years starting when the victim was only 13 years old. Those are terrible crimes, and for what he did, Benjamin was sentenced to 11 to 15 years. He ended up serving 5 years. He did his time. A lot of time. He also apparently went through what his attorney calls “a rigorous rehabilitation program” and has faced no new sex crime charges since he got out of prison in the 90s.

Instead of being treated like a model for rehabilitation and reintegration into society, Benjamin is being treated like a pariah. He’s the plague, only worse. Simply hiring him to do what he does very well can end even the brightest careers out there. The level of hatred people feel for him is stunning.

It isn’t that I’m advocating that every school hire sex offenders to supervise the kids. It’s that what happened at NEC simply isn’t the scandal it’s been made out to be. Benjamin has harmed no one since his release. The children are safe now. They were safe when Benjamin was still doing contract work at NEC. If NEC does not want to keep Benjamin around, it should change its policies and terminate his contract. Zander didn’t show a lack of judgment in hiring Benjamin, but rather a lack of unfounded prejudice towards someone he knew. Bringing Zander to a public arena for slaughter in the name of fear of someone who’s paid his debt to society is just embarrassing.

At one point, Zander apparently agreed with me to some extent. He initially responded by explaining, “[i]t’s a tragedy, an absolute tragedy that I’ve been fired for an absolute nothing.” He reasoned that Benjamin has “done nothing for 20 years,” that “[h]e’s been blameless for 20 years.” Zander wrote a letter to one of his orchestras explaining as follows:

Many years ago I met a dedicated videographer named Peter Benjamin. Several years later Benjamin was involved in a serious incident of a sexual nature and he served time in jail. I was not aware of any of the details surrounding the charges.

After his incarceration was over, I got to know him better and was persuaded, as were several other well-known figures in the arts community, that he was profoundly remorseful and determined to turn his life around. He became active again in his filming career and I hired him – about ten years ago – to film some classes and concerts for archival purposes. Over the decade or so that Peter filmed, there were large numbers of people, including adults, in the room. You have probably noticed him occasionally at the back of Jordan Hall at YPO concerts. As far as I know, there has not been the slightest incident of any kind, and there have been no complaints.

As I have told you so often, everything we do has consequences. My trusting nature, which you know so well from our rehearsals, classes and tour (we call it “Giving an A”), also has now had very serious consequences.

I felt it was the right thing at the time to give this man a chance. I deeply regret the upset I have brought to you all inadvertently as a result of the way this has all played out.

I appreciated Zander’s initial response. After all, Zander knew the man better than most. He also likely knew him the longest, as he spoke on Benjamin’s behalf at sentencing many years ago. Zander is a man who believes in the best in people and who can bring that out. He was validated by Benjamin, who seems to have proven himself as much as any person could. He expressed remorse and took steps to change. It looks like he did change. Unfortunately, ours is a society so far beyond insane that he has to be treated like radioactive material. He must be perpetually ostracized and castigated. Shame on Zander for treating him like a human being!

NEC grandstanded from the beginning. It terminated Benjamin’s contract and made sure he would no longer have access to the premises. NEC then fired Zander because he didn’t rush to throw a changed man under the bus. Zander didn’t beg forgiveness for associating with undesirables. He didn’t jump up and down and rant and rave about how awful sex offenders are and how Benjamin should crawl in a hole and die. Shame on Zander for not immediately joining in the collective hysteria that defines this country’s feelings about sex!

In commenting about what happened, plenty of people took the opportunity to show that they’ve subscribed to the insanity. They’d have never trusted a yucky sex offender who’s proven he can be trusted. Never. According to one article, a parent said she agreed with Zander’s firing for the following reasons:

He was a huge celebrity, he could be extremely grandiose and he seems to me to be failing in judgment.

Really? What exactly was Zander’s lapse in judgment? Faith in someone he knew better that most people? Not blindly despising a group of citizens? What harm came about because of Zander’s supposed failing?

According to the same article, a student wrote the following about the situation:

You do realize that he was basically promoting a level II sex offender this whole time, right?

Does the student even know what “level II sex offender” means? From what I can tell, it’s someone deemed by state officials to pose a moderate risk of re-offending. It isn’t the worst of the worst, and in my experience with sex offenses, authorities are exceedingly eager to label anyone who’s even remotely likely to re-offend as a high risk. In our better-safe-than-sorry culture, any determination should be taken with a grain of salt. The risk assessments on my clients that come back as “moderate” might as well be stamped “no risk at all.” That could never happen, however, as we’re too frightened to classify anyone branded a sex offender as anything less than what it takes for us to sleep okay knowing they’ll be scrutinized and monitored to no end.

A level II sex offender is a person who did something wrong and who a bunch of bureaucrats have decided must comply with a variety of onerous requirements. I’m not a Massachusetts lawyer, but it looks like a board has to classify each and every sex offender. The law defines a “sex offender” as a person convicted of a “sex offense,” which seems to be a fairly broad category of offenses. It could be a person with two convictions for open and gross lewdness and lascivious behavior or one conviction for enticing away a person for prostitution or sexual intercourse.

The tone of the student’s comment drips of a remarkable ignorance about the very group of people it so clearly judges, but the parent’s comment is worse. I can’t help but think about how she probably lets the sex offenders at the TSA touch her kids’ genitals, but she enjoys watching someone who’s changed many lives get taken down a notch for rightfully trusting someone who seems to have done everything he can to change. Is there any hope?

The answer is very clearly a “no.” According to one article, Zander has changed his position. It explains as follows:

His older brother, Michael, a celebrated legal scholar from England, flew in to counsel him. He felt Zander wasn’t taking responsibility for his hiring of Benjamin and should apologize. So did former US Ambassador Swanee Hunt, a close friend and neighbor.

“I said, ‘Ben, for you, the first response has to be what my part is, not what they did to me,’” she told him.

A week after he was fired, Zander began to open up. That, he says, is when the transformation began.

First, Rosamund returned home from Africa. The two have been separated since 1984, but they talk every day, live around the block from each other, and collaborated on the book and inspirational philosophy that have made Zander a world-renowned public speaker.

She stressed how inappropriate it was to bring a convicted sex offender, whose crimes involved video no less, into a school to film children.

Then Michael came down for breakfast one morning with a typed letter explaining two approaches. The first would be to accept that his actions were “grossly negligent.” The second would be to continue justifying his behavior.

“The reason I think the first approach will serve you better is that it is cleaner and more honourable,” Michael wrote. “Taking the blame on yourself will release you from blaming others. It will release you also from endless agonizing over the question and from wondering and fearing what other people think…You will have stood up and been counted.”

At that moment, Zander says his perspective shifted. He finally understood what he had done. That is when he sat down to write his apology.

I think Zander’s first reaction was better. I don’t think that we should take every level II sex offender and put them in jobs where they interact with children, but I simply do not see this supposed scandal as deserving anywhere near the kind of hype it’s gotten. The former ambassador was wrong. Zander’s part in all of this was seeing remorse and believing in someone. He turned out to be justified. NEC fired him for it anyway. Her advice sounds like something you’d tell a good little foot soldier to make sure he doesn’t question the misguided ethos of our hate-filled society. It’s feeding the fear.

The other advice he received wasn’t much better. It may indeed be inappropriate to bring a convicted sex offender whose crimes involved video into a school to film children, but does that justify the brutal, dirty end of a remarkable legacy? Zander believed in someone. He made a decision that people might not agree with, though he surely had reason to make it. Apologizing is cleaner, but I fail to see how rolling over is the more honorable thing to do. Zander may not have made the safest decision, but it’s certainly in line with the message of faith, vision, and possibility that he preaches. It’s consistent with the message that NEC’s cashed in on for years. What NEC did is far worse than what Zander did.

Zander doesn’t have to admit he was wrong to quit blaming others. He can just let go. Right now, there’s just as much to endlessly agonize over and just as much reason to fear what other people think. I wish Zander would have held strong. I wish he would have continued to focus on the positive and paint this in the light of the inspiring message that’s made him who he is today. It’s truly disturbing that, in all of this, not one person seems to treat Benjamin like he’s a living being. All of us don’t agree that he’s scum. He isn’t an animal. He’s tried to show that to the world, and he’s found out he’ll forever be viewed as a scourge on society. How does that fit into the Art of Possibility? The message must not apply to people convicted of sex crimes.

I spend a lot of my time proudly standing next to people who have been labelled sex offenders. I fight for them, and I see how miserable the government makes their lives. When I argue against registration or to get my clients off of lifetime probation, I stress the importance of change. I see that people can change. I see that I’m often alone in believing it’s possible. A sex offender is someone who is permanently damaged goods in most people’s minds. They’re modern day lepers. It’s a stigma they may never overcome. Just ask Peter Benjamin.

I’m disappointed by NEC. They joined the hysteria, and they sacrificed one of their best assets. They lost a lot of respect in my eyes. The power of the angry mob and our shared fears won. It’s tragic seeing the belief in change and the awareness I fight for day in and day out losing to collective ignorance and reactionary fear on a grand scale. It brings it home seeing that sex crime hysteria can infiltrate even NEC, a tiny little music school thousands of miles away, and knowing that the world is the kind of place where an educational institution lucky enough to have Benjamin Zander would fire him because he didn’t buy into the insanity.

We preach hope until we’re blue in the face. We pretend to be uplifted by messages about possibility and change. That’s all well and good, but what’s happened at NEC sends a very clear message about society. The message is that fear wins. When the ideas that inspire us suddenly come up against things that scare us, we tuck our little tails between our legs and run away. We look for the first lamb to sacrifice in order to help allay our fears. This time, we found two.

Dave is doing his favorite thing in the world right now. Twenty seconds ago he was running laps in the backyard chasing invisible birds. Now, he’s probably digging a hole to sit in. Or he’s pooping someplace that’ll make it difficult for me to pick up in a few days. Regardless, whatever he is actually doing right now is his favorite thing in the world. Nevermind what I said before.

Dave likes to sit at the backdoor desperately begging to be let outside. Outside is his favorite thing in the world. If I let him out, he invariably spins around before longingly staring back inside, pining to return to the warm house and sit on his doggy bed waiting for his next adventure. That’s his favorite thing too.

Walks are Dave’s favorite thing. So are house guests. And dinner. Especially someone else’s dinner. But not after he’s eaten that and is ready for his own dinner. Now that’s really his favorite thing.

Dave is neutered, but I’m pretty sure he’s tried to have sex with everything in my house. Sex is his favorite thing. Balls or no balls, he’ll at least hop up on something and try to make a go of it. It’s his favorite thing, after all. Except for everything else.

I envy Dave. He lives in a world of infinite possibilities. He isn’t attached to any of them. Whatever he has is what he needs. It’s his favorite. Everything else is still really exciting though.

If only I could be a little more like Dave.

Someone recently sent me an email complaining about the math. He (or she, possibly, as the email address was quite androgynous) apparently had a brilliant comment but couldn’t get past the equation. He sent an email requesting that the administrator post the comment for him because he was vexed by the difficult calculations necessary to offer his two cents. I refused to do it.

How good a comment could it be, after all, if the author struggled to complete some basic arithmetic? He didn’t even think to Google the answer. I told him to give it his best shot and never heard from him again.

I think there’s a distinct possibility someone just sent the email to be funny. If so, mission accomplished. If not, remind me to send my web guy a thank you letter.

The notices themselves contain a lot of boilerplate language. Writing a disclosure notice from the ground up would waste time. Plus, things like diagrams of the scene and maps of the area aren’t normally the first thing a lawyer thinks about when mounting a defense, and it’s good to put the state on notice of those potential discovery items early to avoid an irritating objections later on in the process.

There are a few different approaches to drafting what’s usually entitled “Defendant’s Rule 15.2 Disclosure Notice.” One is to print a completely boilerplate pleading, check the applicable defenses, and file it. The better way is to look over the standard pleading and, with a good understanding of the case, supplement it with language that will encompass every conceivable thing that needs to be disclosed at that point in that particular case. It doesn’t take very long, but it’s really worth it for that one-in-a-million time when the prosecutor skims the notice and later objects to something it contains on grounds involving lack of disclosure. It makes the prosecutor look spectacularly stupid.

Prosecutors almost never read their own disclosure notices either. It’s something their paralegals prepare and that they only think about when it becomes an issue. Some defense attorneys do the same thing. The parties can get away with generalized, sloppy notices, and they often do. Carefully composing a notice can set a defense lawyer apart. Sometimes, out-lazying the lazy prosecutor can set a defense lawyer apart too.

There’s one defense lawyer who had some company print up triplicate carbon copy disclosure notices. It’s amazing. He rolls into court, late, of course, and picks up the calendar. He pulls out his stack of notices and fills in the names and case numbers of his clients, checks the defenses on the spot, and calls the cases. The judges ask him if he’s filed his “15.2,” and he says he has it with him. He dramatically pulls off the top sheet and asks to approach and deliver it to the court before handing the second copy to the state. He keeps the third for himself.

The if-you-can’t-beat-em-then-join-em mentality is remarkable. It’s also funny. If you aren’t a client. And if you don’t really care about the quality of representation people are getting. The McJustice feel of the system in general is bad enough, but it’s that much worse when a one-man firm uses a choose-your-own-adventure approach to criminal defense. How many clients does someone need before the printing expense of carbon copies becomes economically sensible? Probably a lot.

His approach serves as a litmus test for other defense lawyers. The ones who think “hmm, that’s a good idea” should probably reduce their caseload. The ones who think “man do I need to reduce my caseload; I can’t believe I think that would be helpful” will hopefully follow through with it. Follow through with reducing their caseload, I mean. The ones who think “holy shit, this place is going to hell in a handbag” are the ones to whom I refer cases.

In all fairness, most first-pretrial minute entries say “Defendant has not complied with Rule 15.2. Defendant’s Notice shall be filed by such-and-such-a-date.” I guess the carbon copy guy may be ahead of the curve. Sadly, most pretrial minute entries also reflect that no substantive motions are planned and no interviews have been conducted.

A justice system where defenses are kept warm under heat lamps isn’t so just, but I suppose it’s better than starving. What a depressing thought.

Events bring out the young lawyers with no jobs, wandering around like zombies clutching stacks of business cards with “Esq.” after their names but no firm name or physical address anywhere to be found. Some only list a cell phone with an Illinois area code and a Gmail or Yahoo email address consisting of a cutesy name followed by a few odd digits. As smart as some of them seem, I can’t bring myself to refer a potential client to Jim from Joliet who goes by “puppylover69″ and practices out of a post office box. I try to buy them drinks instead; they deserve a cold one.

The events also bring out the newly-minted small firm associates. Some of them are models for success, but more of them are there because they aren’t yet earning their keep. Their bosses send them out hoping they’ll make connections and snare a few small referrals here and there. They usually aren’t quite sure about what type of law they practice. They try to feel out what the solos are making and figure out how much vacation time other young associates get. It isn’t encouraging.

Perhaps the most fascinating lawyer of all at these functions is the big firm associate. Like any type of lawyer, there are amazingly talented ones as well as those who make me concerned about the future of the profession. The latter are far more interesting. Some of them are still fixated on law school. Despite all their money (I assume) and support staff (I assume) and mahogany-scented homes filled with leather-bound books (I assume), they seem to have peaked before they ever met a client. They talk about their law school grades like Al Bundy talks about the touchdowns he scored during the glory days of high school football.

In high school, I remember the people who were at their peak. I remember the pretty girls who never got any prettier, and the athletic guys whose dreams of a professional sports career turned out to be nothing more than dreams. I’m confident that the ones who made it big don’t think about high school anymore, and so it goes with the top of any law school class. There are ones who have gone on to great things. There are ones who still tell you about their grades.

Law school isn’t trade school. Maybe it should be, but it isn’t. It also isn’t a vacuum. I’m happy about that. The important parts of the professional life of a lawyer, a life centered around representing people or people’s ideas or institutions comprised of people, are the parts that occur after the lawyer starts lawyering. That much may seem obvious, but like many obvious things, it’s only that way when you have a certain perspective. Epic tales about all-night cram sessions to ascend into the elite top 7.6% of a school ranked in the top 37.5% just aren’t that interesting to me. They are to some. Different strokes for different folks, I guess.

What I take from many networking events, and from grade-obsessed people in general, are a reinvigorated outlook and a little bit of resolve. It’s the idea that what I’m doing now should be the most important thing I’ve done. It’s resolving that I won’t define myself based on something I did or didn’t do in training school or at any other point in my past, but that I’m defining myself by the work I’m doing right now.

I’m not hanging around with ex-presidents. I’m mostly meeting people my age or younger. If they’re already coming down from the peak, it tells me they haven’t climbed much of a mountain. People who are eating free hors d’oeuvres and hobnobbing with the likes of me should be people whose best is yet to come. Constantly reminding myself that’s what should ring true for me as well is the best thing I can do to ensure my clients now are as well-served as the ones I’ve done right in the past.

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.