Blithely We Go

Who Cares?


In 2008, Edward Robb Ellis’s, A Diary of the Century: Tales from America’s Greatest Diarist, was published. In it, the retired journalist chronicled his life from 1927 to 1995, keeping track of what was happening in his life, and the world.

On May 29, 1940, just as the day was ending, he wrote:

Why am I writing this? Because I want to preserve a record of the mood of the people of this period. And what do I succeed in doing? Merely demonstrating how vague is our comprehension of those horrific events beyond the horizon, how unsure we are of their relationship to us, how unstable seems the future and yet, how blithely we go our accustomed ways.

How blithely we go.  [Read more...]


The Suspicion Tax

Shark vs. Guppy


Scott Greenfield wrote a post Friday on a topic that I’ve often wondered over, and which I’ve occasionally discussed with other attorneys. This is the question of the delay between a warrantless arrest, and the time when the arrested person is finally taken to court.

One of the reasons that I’ve thought about this from time to time is that it’s always seemed to me that, in California, the law relating to this question says one thing, but the practice is to do another.

As I noted in a comment I left to Scott’s post this morning,

I’ve often wondered why we defense attorneys don’t do more to fight this, as there’s really no good excuse for it.

I’ve pointed out the law to attorneys who have been practicing longer than me to ask what gives. They usually shrug, and occasionally state a belief that case law allows the longer time.

Your post makes me want to take a closer look at this issue.

This post is the result of that closer look.  [Read more...]


We Are Not Nice People

Psychiatric Prisoners


We are not nice people.

And by “we,” I hope you do not erroneously come to the conclusion that I meant to exclude you. At least — or, more accurately, I should say “particularly”–  in the United States, you are not a nice person.  [Read more...]


First, They Read You Your Rights

Child Shushing


In the years since I became a lawyer, there are a few things I’ve never really gotten used to. One of them is how it is that people who hire me will almost always have made some kind of statement to the police; usually a statement that harms them in some way, and makes their case more difficult to defend.

Now the average person out there might be thinking, “Yeah, so what? I’m glad criminals don’t know better. I don’t want people getting off on a ‘technicality’ because they exercised their right to remain silent.”

But it’s really not that simple. Not everyone who hires me is “a criminal.” In fact, if you could follow me around for awhile, I think you’d be surprised at how many people who hire me are not criminals. It’s an unfortunate fact of modern criminal “justice” that the system is geared to view everyone as a criminal, and too many non-criminals are therefore swept up and handcuffed to a life of misery. You know the old saying, “When all you have is a hammer, everything starts to look like a nail”? It’s equally true that when your job depends upon arresting, prosecuting, sentencing, monitoring, jailing or imprisoning, then everyone you meet starts to look like someone who needs to be arrested, prosecuted, sentenced, monitored, jailed or imprisoned.

And, yeah, my job might depend upon defending people. But, first of all, I’d be more than willing to find another job, if only there weren’t so many people in need of being defended. Second, I’m not the one writing laws — not even voting for laws — that have criminalized innocent behavior to the point that your average American commits three felonies (or more) per day without even knowing it. And, thirdly, while the people who have committed crimes who come to me for defending are glad I’m here, those who have not committed crimes are even more glad. Not being a prosecutor, I have nothing really to be ashamed of, or apologize for.

But I digress.  [Read more...]


The Empathic High Wire Act

High-Wire Balancing Act


From the ancient Greek philosophers to contemporary guru of goal achievement Brian Tracy comes the lesson: if you want to be something, act as if you already were that something.

Aristotle, the ancient Greek philosopher, said,

Quality is not an act, it is a habit.

But how do you develop that habit? How do you get to where you aren’t just pretending something? At times, you just have to start with acting.

Brian Tracy puts it like this:

By using the “act as if” method, you walk, talk, and carry yourself exactly as you would if you were completely unafraid in a particular situation. You stand up straight, smile, move quickly and confidently, and in every respect act as if you already had the courage that you desire.

Acting “as if” is not about faking, though. It’s about striving. As the American philosopher, William James said,

If you want a quality, act as if you already had it.

Or, as is frequently said in the modern world:

Fake it until you make it.

[Read more...]


Keeping Up with the Bloggerses

Keeping up with the Bloggerses


Warning: This post is not much worth reading. I really just felt the need to write something. Letters, punctuation, and a few typographical devices (like strikethroughs) were backing up into my armpits from the lack of any recent writing, and I had to get rid of some of them. They’ve been creating a kind of writer’s block. I mean — hell — I even spent a couple minutes changing the first word out for other things before finally settling on “Warning.”

Consider this something of a public journal entry.

Anyway… [Read more...]


Little Jack Horner

Plum pie


One of the sad truths of being a criminal defense attorney is that we are dealing with people during times of high stress. I don’t get very many people walking through my door who say,

Hi. I’ve been charged with committing a crime. I’m not very worried about it, but I thought it would be a good idea to come hire you, anyway.

On the contrary, most — if not nearly all — the people who come through the door of my office (and even more of those I have to go visit in jails because they cannot get out to come to my office) are quite upset. Disturbed. Emotional. Tearful.

Some are near basket cases.  [Read more...]


We Make Our Living

Prisoner in despair


This is a post that almost did not get written.

Sometime within the last week, I received a letter from the father of a former client. I’ll show it to you in a minute, with his permission and appropriately redacted, but let me first say that it could not have come at a better time. This past year, as Scott Greenfield mentioned in a post this morning, has not been a particularly “feel good” year for me. Scott didn’t get into particulars — after all his post was not about me; it was about Leo Mulvihill, Jr., who quite handily and deservedly won this year’s JDog Memorial Criminal Law Blawg Post — but it’s been an ugly year.

Some of you might wonder why so many of my posts mention Scott. Truth is, without him, I might not be here right now. Scott’s become a kind of de facto mentor, albeit from a distance, whose input has been much sought, much relied upon, and much appreciated over the last year. I have been — and continue to be — subjected to extra scrutiny, searches, and occasional accompanying rudeness by the Fresno County Sheriff’s Department on entering (some) local courthouses.

(But now that I just let the cat out of the bag by the use of the word “some,” I suspect it may go back to being “all.” The lieutenant who allegedly has ordered my searches is too vindictive to recognize that my actions over the last — what? approximately one decade? — of going to court, or into the jail, or the bowels of their stations, without being any kind of problem to them —  that’s just a part of who I am. My own fight with them is in the courts; not in their houses. Instead of recognizing this, because I spoke the truth, and got a little hyperbolic about it, I must occasionally, repeatedly, be subjected to “extra attention” — when they don’t forget. My activity was an exercise of constitutional right; theirs is an occasional violation of that same Constitution.)

[Read more...]


Justice Potter Stewart and the Chamber of Secrets

Justice Potter Stewart and the Chamber of Secrets


Justice Potter Stewart once famously wrote, in a case involving obscenity,

I know it when I see it.

The motivation for the comment is found a couple of sentences earlier in that same opinion, where Stewart talks about the difficulty of “defin[ing] that which is indefinable.”

Scott Greenfield, in a recent post about Voldemort, takes on a similar task: while not naming he-who-inspired-the-article-that-inspired-the-post, Scott tries to name that-which-is-the-root-of-injustice.

It’s a wonderful post, with reference to another wonderful post.

Stewart got it right. Clark — the author of the other wonderful post — basically got it right (but doesn’t clearly get why). Scott? I don’t really know. I know that I see things a little differently, and I’m writing this post because I’m trying to figure out why.   [Read more...]


Who’s the Real Monster?

Child pretending to be monster


If you’ve read many of my posts, you know that I seldom write about cases I’ve handled. It’s always been my belief that part of my job is protecting my client’s anonymity to the degree that I can. I actively try to avoid the press, even sometimes managing to thwart them getting into court hearings, or photographing my clients. Some attorneys thrive on being “movie stars,” getting their cases in the news. It makes them “famous,” and brings in more clients. I prefer to try my cases in a courtroom that hasn’t been polluted by the inevitable detritus that passes for “fair reporting.” My clients suffer less, and they, as well as other attorneys who see me work, send me more clients.

But sometimes, you just have to say something.

[Read more...]