How did he get off?

By Shannon

“He got off on a technicality!”  We’ve all heard this phrase and been furious at its implications.  What does it mean and why are there so many darn technicalities?

Getting off on a technicality means that the defendant’s Constitutional rights were violated during an investigation.  For example, we’ve all heard Miranda warnings on TV shows.  I’m sure 99.99% of you can say the warnings by heart.  All defendants gripe when they aren’t given their Miranda warnings, but officers are not always required to read the well known poetry.  The only time warnings have to be given is when the suspect is BOTH in custody AND being interrogated. 

If you go to the police station, sit down in an interview room, are told you can leave, and then you’re asked questions, the officer does not need to read you your rights.  Your statements can be used in court because you were NOT in custody when you said them.  The reverse is true as well.  If you are in custody, but officers are NOT questioning you, the officer still does not need to read you your rights.  In that case, if you blurt out “I knocked down the 105 year old woman and stole her candy!” I as a prosecutor can use it against you in court because you volunteered the information.

“Wait a minute, Shannon!” you say, “On TV they ALWAYS read the bad guy his rights.  Are you sure you know what you’re talking about?”  I’ll tell you what my mom told me when I was little:  “TV is just pretend.”

So if the equation is so clear that CUSTODY + INTERROGATION = MIRANDA how could anyone ever get off on this technicality?  It is because lawyers get paid to make things difficult and incomprehensible (pick up any statute book for proof).  The next questions lawyers ask are:  “What is custody?” and “What is interrogation?”  Unfortunately the law doesn’t tell us.

 Pic at www.palosheights.org

Officers may detain anyone for a short amount of time without having to read the Miranda warnings.  Think about when you are stopped for speeding.  Does the officer read you your rights before he talks to you?  No, of course not.  You have no right to hear your Miranda warnings when you are merely detained.  However, if the officer is overwhelmed by a cloud of marijuana smoke when you roll down the window he may order you out of the car and one of three things may happen:

1.  The officer handcuffs you “for officer safety” (a magical phrase I’m sure Ann will discuss at some point), searches your vehicle while asking questions, and doesn’t read you your rights.  NO custody = NO Miranda needed

2.  The officer handcuffs you and tells you are under arrest.  The officer decides not to question you and therefore will not read you your rights.  NO interrogation = NO Miranda needed

3.  The officer handcuffs you, reads you your rights, then if you agree to talk anyway, the officer will question you.  CUSTODY + INTERROGATION = MIRANDA

All three of these scenarios are legal and there should be no technical violation.  Technicalities occur when a defense attorney is hired.

Cartoon by www.stus.com

 Defense attorneys argue things like:

In scenario number 1 the search took more than 90 seconds and you were handcuffed the whole time which is against you’re religion and made your shoulder and big toe hurt and therefore there was CUSTODY along with the interrogation and no Miranda.  If the Judge agrees, the Defendant walks on a technicality.  By the way, the courts don’t tell us how long you can detain someone before it crosses the line into an arrest, so officers have to guess at what the judge will find “reasonable.”  90 seconds should be reasonable, but you’d be amazed at what defense attorneys will waste time arguing.  (It’s these types of arguments that clog the system.)

In scenario number 2 even though the officer says she didn’t question you regarding the case, she did ask you if you think (like she does) that the cloud in the sky looks like a frog leaping over a cow (because her favorite pastime is imagining things in clouds).  The defense attorney will argue that that counts as INTERROGATION along with the obvious custody, but no Miranda.  If the Judge agrees, the Defendant walks on a technicality.  It doesn’t matter that your response to the question about the cloud was to confess that you just killed your mother, her pet frog, and your sister’s cow.

Scenario number 3 gives a defense attorney little to argue, so they will probably start arguing that the search of the car was illegal even though it wasn’t.  (They really love wasting time.)  However, searches are a topic for another day.

Constitutional protections are very important.  As a prosecutor I’m always worried about accidentally putting an innocent person into prison, so I respect the protections.  I won't accept cases that I think violate Constitutional rights.  I also respect the defense attorneys who make meritorious arguments.  Sometimes I miss something that they catch.  Sometimes we disagree, but both arguments have merit so we go to a judge.  When arguments make sense I never mind arguing the point.  However, I think you can see by the above (slightly farcical) scenarios how some defense attorneys can pervert justice and waste time by making ridiculous time-wasting arguments thereby getting their clients “off on technicalities” when judges make incorrect rulings. 

Follow up on Personal Responsiblity Matters

by Shannon

We don't usually post on Sundays, but I thought this was worth posting.  Yesterday the 17th officer was killed this month in the line of duty.  She was a prison officer in Washington and was strangled by an inmate in the chapel.  Also, last night in California another officer was shot in the chest while driving in his car, but he is currently in stable condition.  Several more have been shot this month and survived.

I had the awful privilege of witnessing the procession of an officer's funeral this year for the first time.  It was awe inspiring.  Officers, deputies, EMS workers, prosecutors and federal agents come from near and far.  It doesn't matter if they were personally acquainted with the deceased.  The processional I witnessed was over 2 miles long.  Vehicles stopped on the sides of the highway to honor this fallen officer.  At the end of an officer's funeral, last call is made.  Someone calls the officer's number (let's use #123) several times.  Finally a co-worker responds, 123 is out of service.  Examples can be heard here and here.

Here's a list of officers killed in January 2011 and the month is still not over:

Deputy Suzanne Hopper - Ohio (survived by husband, 2 children, & 2 step children)
Deputy John Norsworthy - Texas
Chief Ralph Painter - Oregon (survived by wife & 7 children)
Officer William H Torbit, Jr. - Maryland (friendly fire)
Officer Rogerio Morales - Florida (survived by wife)
Officer Kevin Marceau - Texas (survived by son, parents, & 4 siblings)
Officer Christopher Matlosz - New Jersey (survived by fiancee, mother, & brother)
Officer Larry Nehasil - Michigan (survived by wife & 2 children)
Officer Tom Hayes - Ohio (survived by wife)
Detective Roger Castillo - Florida (survived by wife)
Detective Amanda Hayworth - Florida (survived by son, parents, step-parents, & 3 sisters)
Corporal Charles Nesbitt, Jr. - South Carolina
Sgt. Tom Baitinger - Florida (survived by wife)
Officer Jeffery Yaslowitz - Florida (survived by wife & 3 children)
Officer David Moore - Indiana (survived by sister & parents)
Officer Casimiro Pomales - New York (survived by wife & children)
Officer Jayme Biendl - Washington
http://www.odmp.org/year.php

Personal Responsibility Matters

By Shannon

Pic from www.parksidepolice.com

During January 2011, 15 police officers in 10 states were murdered on duty and the month is not over yet.  In 2010, murder of officers was up 40%.  A friend asked me why I thought this new trend existed.  I’m not an expert, but my initial assessment is that rather than fearing the consequences of the action, criminals are now making their bones by killing cops. 

In 2009, 80% of all crime in America was gang-related.  In 2009, it was estimated that 1 million Americans were in a gang.  That means that approximately 0.3% (LESS than 1 percent) of the population commit 80% of the crime.  http://www.usatoday.com/news/nation/2009-01-29-ms13_N.htm

To get into a gang you must prove you “have heart.”  If you are a guy that means you’ve got to take a beating from 3 or more guys at the same time.  It’s okay if you lose.  It’s okay if you fall down.  It’s not okay if you curl into a fetal position.  You must keep fighting or you “got no heart.”  If you are a female you must agree to be gang raped or raped by an HIV+ male. 

My friend was astonished and asked.  “Why would anyone agree to any of that?”  I’ll get to that in a minute.

All gangs have Constitutions and hierarchies within the gang.  All gangs have rules and if you violate those rules you will be disciplined.  Discipline can mean a beating or it can mean being executed by your “friends.”  Once upon a time one rule all gangs shared was that you better not bring law enforcement down on the gang.  Times are changing.  Now criminals often have candles like Catholic saints candles, but these new candles are “Law Enforcement Keep Away” candles and often have prayers written on them asking God to keep the law away, so the owner can complete his “righteous” mission of drug or human trafficking.  Cops are no longer seen as protectors.  They are seen as the problem.    

Why would anyone want to be in an organization where they have to prove they “have heart” in the ways I explained?  Why would anyone risk execution by “friends”?  It’s because of the breakdown of the family unit and especially the absence of the American father.  Fathers in America walk away from families and children too frequently.  Mothers do it too, but not as often as fathers.  We’re still shocked when a mom does it.  John Eldrege wrote companion books called Captivating and Wild at Heart that cover what girls and boys need.  While mothers do the nurturing and caretaking and are infinitely important, fathers answer the deep heart questions within the child of either gender.  A boy’s heart question is “Do I have what it takes to be a man?”  A girl’s heart question is “Am I lovely?”  We girls want life to be about more than chores and duty.  We want love, adventure, and romance.  “Am I lovely, Daddy?” translates to “Am I worthy of love, adventure, and romance, Daddy?”

The internet is full of statistics about the breakdown of families today, but I’m more interested in the solution.  Two days ago I wrote about personal responsibility as it relates to the state of our nation.  Today I want to talk briefly about how it relates to the state of our families. 

Men (and women), you have no excuse and no right to walk away from your children.  None.  Not ever.  You have no excuse and no right to insult your children, call them names, or emotionally abuse them.  None.  Not ever.  You have no right to throw your lives away once you have children.  None.  Not ever.  Science now knows what causes pregnancy, so if you don’t want a child use birth control.  Understand though that no matter what kind of birth control you use the result of sex can ALWAYS be a pregnancy.  “I was just looking for a good time.” or “I didn’t sign on for this” or “She’s trying to trap me!” are not excuses to walk away. 

Women, we have a biological imperative to mate with good providers and protectors.  That biological imperative can be seen throughout nature.  A female eagle flies high and drops a stick over and over again.  The male eagle who catches it the most times is the one she chooses as a mate.  Her test shows that if her child falls out of the nest, her husband will be able to save it before it hits the ground.  Choose good mates who will catch you and your children even if the latter is an unplanned “oops!”  Learn about an eagle's mating process here.

What about single moms who don’t have the luxury of having a father figure around?  My heart goes out to you.  Find a safe male role model for your child.  It can be an uncle, adult cousin, grandfather, etc.  My maternal grandfather thought I hung the moon and loved me completely and because of him I feel very secure in who I am most of the time.  In those moments that I’m not, I turn to God who said, “If you come to me, I will NEVER reject you.”  (Paraphrase based on John 6:37.)

This is a longer post than normal, but it’s a subject weighing heavily on my heart.  Here’s the bottom line: 

First, respect officers and teach your children to do the same.  Remember how we honored them in the days after 9/11?  They come running when you are in trouble. 

Second, if you are a mom or a dad then take personal responsibility for the child you brought into the world.

Third, if you know a child who doesn’t have a mom or a dad STEP UP.  Help answer their heart questions.

Fourth, understand that if you don’t make your children feel accepted and loved, they can find a gang who will.

GIVEAWAY!

BEGINNING RIGHT NOW and ENDING at 12:01 AM on Thursday, February 3, 2011, we will be holding a Facebook and blog membership drive.  CSN stores is offering a $20 gift certificate which can be used at any of their more than 200 online stores.  Whether you are looking for modern office furniture or you need some new shoes (for the girls) or some cool tools (for our male readers), CSN has it all.

Here’s how to win:

1.  Refer your friends to our Facebook page and ask them to click “like” and then they need to email us and tell us who referred them.

2.  Refer your friends to our blog and ask them to click “follow” (located at the very top left corner of the page) and then they need to email us and tell us who referred them.

3.  Go do each of these things yourself and email us and tell us that you referred yourself.

4.  Our email address is located at the top of the blog just under the words "Two Angels of Justice."

Here’s the cool part:  If you refer a friend (or yourself) to both the FB page AND the blog and they (or you) tell us you referred them to BOTH in the email, then that counts as 2 votes for you.

We will count up the names and announce the winner on the blog by Friday, February 4, 2011 by 9:00 PM.  The winner must email us so that we can send them their gift certificate. 

The winner must reside in the USA or Canada.

All decisions by us are final.  There is no appeals process.  By participating you are promising not to sue us if you lose. 

Wax Eloquent

By Ann

I am a lawyer.  Yes, a public defender is a lawyer but that’s fodder for another blog.
Every day I go to work to fight the good fight.  I protect and defend my clients when they are charged with a crime.  I represent the interests of people who are about to be committed to an institution due to a mental illness or old age.  In court and in the legal system, I am the mouthpiece for the poor, unfortunate soul that I represent.  I get paid to present logic in debate  and to be a zealous advocate.  I have the legal training, background, and license to do this. And yet, there are times that despite my superior analytical skills and superb articulate dexterity, all I can utter is a clear and resounding.......Um.  Uh. Um. 

Picture can be purchased at http://www.cafepress.com/public_defender/1030936

Defendant:  Ramble. Ramble. Ramble.  Ramble. Ramble. Ramble. Whine. Ramble.
Judge:  Defendant if you say one more word, one more- I am going to go outside, turn on my car, and suck on the tailpipe until I die.
Ms.  Defender is there anything you’d like to add?


Defender:  Your guilty plea was continued
Client:   Didn’t I take a flea bargain.  Or was it my friend who took a flea bargain?

Judge:  Counsel, are you prepared to make closing arguments.
Defendant:  Wakes up from his sleep and raises his head from a pool of drool that sticks to his mouth by a string as he lifts his head. 

Judge: Well you will go to jail.
Defendant:  But I got grand - mom seizures!!!!

It’s days like these that I feel that the six figure educational debt that I incurred was well worth it.  Yes, it was worth it for the privilege of being able to expose my impeccably superior oratory skills in court. 

Um.  Uh.  Um. 

Let Freedom Ring

by Shannon

Prior to 1050 B.C. ancient Israel had no king.  They had laws.  They had religion.  They had judges.  However, for approximately 350 years they had no kings.  They were self-governing.  They were free.  When a dispute arose for which they needed guidance or adjudication, they went to the judges who held court – not in fancy courtrooms with high benches – but out among the people as they were needed.  The last of the judges were corrupt.  Rather than demanding they be replaced, Israel demanded a king like all the other nations around her.  Around 1050 B.C. Israel received her first king.  When the kings were good, moral, and concerned about their people, the country prospered.  It was Israel’s golden age.  When the kings were bad and concerned only with their own needs, ambition, and desires, the people suffered.  Eventually the kingdom divided over the issue of taxes.  The kings of both the north and the south grew so corrupt that enemies were able to overtake both the north and the south.  By 586 B.C. all but a remnant had been carried away into captivity in Assyria and Babylon.  The northern part of the kingdom never returned, but the southern populace did around 515 B.C.

What does Israel have to do with anything?  Their history is a prime example of what Ben Franklin warned of in his speech to the Constitutional Convention of 1787.  Ben Franklin observed that “there is a natural inclination in mankind to kingly government…. I am apprehensive therefore – perhaps too apprehensive – that the Government of these States may in future times end in a monarchy.”  Albert Henry Smyth, ed., The Writings of Benjamin Franklin, volume 9, page 593 [modern spelling].  (May be purchased here.)

That certainly happened in Israel.  It also happened in the Roman Empire.  It can happen here.

http://ryanpeterblogs.wordpress.com/2010/08/

In that same speech, Ben Franklin went on to say that “there will always be a party for giving more to the rulers, that the rulers may be able in return to give more to them.  Hence, as all history informs us, there has been in every state and kingdom a constant kind of warfare between the governing and the governed, the one striving to obtain more for its support, and the other to pay less.  And this has alone occasioned great convulsions, actual civil wars, ending either in dethroning of the princes or enslaving of the people.  Generally, indeed, the ruling power carries its point, and we see the revenues of princes constantly increasing, and we see that they are never satisfied, but always in want of more.  The more the people are discontented with the oppression of taxes, the greater need the prince has of money to distribute among his partisans, and pay the troops that are to suppress all resistance, and enable him to plunder at pleasure.”  (Ibid. p. 592.)

My fellow prosecutors and defense attorneys often laugh and make fun of how adverse criminals are to taking responsibility.  With what I've observed in the last few weeks, I fear that may be an epidemic no longer specific to the criminals.

We've hit our debt limit as a nation.  We must take personal responsibility for that.  Where we are is as much a product of who we've elected in the last 50-100 years and what we've allowed them to get away as it is a product of what we've demanded of them.  Everybody wants something for nothing.  It's human nature.  Take responsibility for yourselves.

We want it all.  We've been told we can have it all.  That's a lie - just ask a working mom.  Prioritize.  Take responsibility for yourselves and your part in the nation's problems. 

On Tuesday night President Obama said, "And yet as contentious and frustrating and messy as our democracy can sometimes be I know there isn’t a person here who would trade places with any other nation on earth.  We may have differences in policy, but we all believe in the rights enshrined in our Constitution.  We may have different opinions, but we all believe in the same promise that says ‘this is a place you can make it if you try.’”  Believe in the promise.  It's proved true for the six generations that have passed since the Declaration of Independence.  Take personal responsibility.

On Tuesday night President Obama also said the following regarding Tunisia’s desire for freedom: “The will of the people proved more powerful than the writ of a dictator.” 

Let it be.

You Don't Bring Me Flowers Anymore Mr. President

By Ann

I remember my first love.  When I first saw him I was speechless and my world was shaken from this new experience- this debacle I would come to know as love.  I couldn’t believe I had ever lived one minute before I met him.  I waited with excruciating anticipation every day for the bell to ring at school- this long wait endured soley for the gratification of a fleeting moment in the hallway where I would be able flirt with the object of my affection.  I obsessed over his eyes, his laugh, and his voice and I thought I would die without him.  Of course, it didn’t last and I didn’t die.
Apparently there are three stages of love.  According to Helen Fisher, PhD and a famous biological anthropologist, we go through these three stages:  www.helenfisher.com

1. Lust - needs no explanation
2. Attraction- love struck and cannot think of anything else
3. Attachment- bonding that occurs when you are no longer “love struck”

I thought about these 3 stages when I watched the State of the Union last night. 

"Mister [or Madam] Speaker! "The President of the United States!"  This has been going on annually since January 8, 1790 when George Washington gave his first state of the union.  It was historically a yearly update to congress on the status of the nation and the President’s outline of his (and hopefully in my lifetime/ or her) legislative agenda.  http://en.wikipedia.org/wiki/State_of_the_Union_address#cite_note-CRH415-2010-10

After I walked my dog for the last time- I came inside and waited eagerly to hear my president talk about the things that I was desperately wanting to hear.  But like any relationship that starts off with lots of courtship and magical romance- it turns into something a little more ordinary and a lot more comfortable.

Is the Honeymoon over?

Last night the President discussed investing in our country’s infrastructure and children’s education.  Ho-hum.  No kidding- that is a no brainier.  That’s like telling grown people to wash their hands after they go to the bathroom- . I guess we need to be reminded of what worked in the past and what will work in the future to save our great nation.

wait… on second thought it actually was grown people in Minnesota who voted for Michele Bachman (she’s the Manchurian candidate who was looking at the wrong camera when she gave an incoherent speech after the state of the union) well, ok maybe it is worth repeating after all Mr. President.  Thanks again

 But seriously, it felt like I was trying to find a lost spark of romance with a man that I had been living with for 10 years.  Not impossible.  But not easy.

I had hoped he would tell us how he’s done so many great things for our country and what he now plans to do.  Of course investing in our country worked during the depression and it will work now.  Great.  No disagreements there.  That was safe.  And I got glimpses of the pioneer of change and hope that I voted for when he reminded us that only 12% of our national debt comes from domestic spending (that means that 88% comes from NON-WELFARE programs) and that anyone can serve proudly regardless of who they love…and I felt that old familiar sense of pride when he said that money should not be spent on oil companies who were doing just fine on their own and I applauded his sentiment that Muslims ARE a part of our American family.

But like the stages of love - after attraction comes attachment- and I felt it when the president opened himself up to the other side and invited them to give suggestions on how to make health care better.  He put the ball in the nation’s court.

Still, I was really hoping that the President would acknowledge the 300 pound gorilla in the room.  I wanted to hear him eloquently lament that our gun control laws enabled that troubled shooter to almost kill Congresswoman Gabrielle Giffords.  I desperately hoped he would address the fact that the Republicans are voting today to repeal a health act in a hateful effort to deny some Americans medical attention and to needlessly burden us with health care costs simply because many of them (rep representatives) are in bed with insurance companies.

I wanted to hear him say so many things like that but every day can’t be like the first date…we’d never get anything done.

Let me SPEAK!!!

by Shannon

One day I was complaining to a local official about a new ordinance in my city.  A coworker overheard me.  She’s a bit wacky and will say ANYTHING to get any man’s attention, but I wonder if others feel the same way she does.  She actually interrupted me to say, “Well, I never complain about what the government does.”  Then she batted her eyelashes at the official.  I couldn’t believe it!  I would have ignored it as her usual pathetic attempt to snag a man except for the fact that she’d said the same thing days before when some of us girls were complaining about our representatives’ actions in D.C.  I couldn’t let her second infraction go uncorrected.  I explained to her, less calmly than one might have hoped for, that “I’m exercising my patriotic right and DUTY, so butt out!”

 picture available at www.negotiationlawblog.com

Think on it a minute.  Freedom of speech is the bedrock of our society.  This tarnished beacon of democracy and freedom was made great in part because our Founders guaranteed that we could not be silenced by the government whether or not we agreed with it.  I am never more American than when I exercise my right – MY DUTY – to speak freely.  Not ever.  And neither are you.

On the Two Angels Facebook page we quoted the next paragraph in our first status message.  It bears repeating in this vitriolic culture.  Please read it and take it to heart because Ann and I do.  We may agree or disagree with one another and we encourage our readers to do the same.  However, the exercise of our right of free speech is only properly exercised when we as citizens respect one another.  We must recognize that neither conservatives nor liberals have evil intent towards America or one another.  All of us want to make the country better.  We merely come at it from different angles.  Friends, there is NOTHING more patriotic or more fundamentally American than that!!!

Picture may be found at www.fantasyecards.com

The American Eagle has 2 wings. “Wing #1 is the problem-solving wing or wing of compassion. They are sensitive to the unfulfilled needs of the people. They dream of elaborate plans to solve these problems. Wing #2 has the responsibility of conserving the nation’s resources and the people’s freedom. Its function is to analyze the programs of wing #1 with two questions. First, can we afford it? Second, what will it do to the rights and individual freedom of the people? If both wings fulfill their assigned function, the American eagle will fly straighter and higher than any civilization in the history of the world. But if either of these wings goes to sleep on the job, the American eagle will drift toward anarchy or tyranny.” ~ The 5000 Year Leap by Skousen

Say what you want - The First Amendment Lets You

 By Ann

Freedom of Speech is protected by the 1st amendment of our Constitution.  This is because the colonies were subject to a British Crown that would imprison, torture, mutilate, and even kill people who voiced any kind of opinion that wasn’t favorable to the government. 

But like most protections, free speech is not absolute.  There are regulations against speech which incites criminal activity and there are regulations with regards to commercial speech (think commercials and no cigarette ads on tv).  But you, as an American citizen, you are permitted to say anything you like.  Even symbolic expression can be protected. This means that you  as a person can say anything that is acceptable, popular, controversial, unpopular, taboo, weird, or distasteful.  Caveat: Speech mixed with any conduct which could be perceived as criminal may not be protected.  This is where it gets tricky.   Here are some examples of what is a DO and what is a DON’T :

DO 

• Voice Your Opinion and feel free to use colorful language if you feel so inclined
• Wear a colorful armband to support a charity or to protest a war
• Blog
• Criticize the Government

DON'T

• Incite a riot or accompany your words with disorderly conduct or threatening behavior  
• Throw red paint on a person wearing a fur coat
• Do porn -even lawyers are at a loss with the ambiguous and subjective laws regarding porn
  (http://en.wikipedia.org/wiki/Millerv.California)
• Make something up that is not truthful for the sole purpose of harming another - this is libel and slander - both of which are an illegal No-No. 

Make sense?  Let’s see if you were paying attention. 

Which of the following is protected speech?

A. Thanking the nice police officer who just gave you a ticket by calling him a turd
B.  Painting your face silver and blue and yelling Go Cowboys at an Eagles game in Philly
C. Blogging conservative rhetoric without any facts in support thereof
D. Telling your boss how you really feel about your job

Answer:  All of the Above.  It may sound counterintuitive but you have the right to be an idiot.  BUT you can’t be punished by the government for expressing yourself.  Sure,you can be fired.  Of course, you can be a social pariah.  But you have the right to say what you want without being punished by the government. 

For a better understanding of what the first amendment and the fights that still haunt our citizenry please visit the experts.  http://www.aclu.org/free-speech

Now this might annoy and offend some people.  Some people might fuss and say that it’s not fair that people can be so rude and get away with it.  Well for them, I say… Deal with it!  The alternative is to have a government that decides what is decent and right.  Just like the British Crown in the colonial times.  Just like some Middle Eastern countries that have their own way of dealing with dissent.  Just like Tiananmen Square- that was a massacre prompted by a government that didn’t think it was appropriate for the protestors to protest. 

No thanks tyrannical governments.  I think I’ll stick with my protections under the first amendment even if that means that I have to listen to people whining about it.

Disclaimer:  Nothing in this post or any other post should ever be construed as legal advice.  There's a disclaimer at the bottom of the blog, but as cautious lawyers we thought we best disclaim once again. 

What to expect...

Quick note for our new readers:  We post Monday through Saturday at around 7pm Central Time.  We alternate days to try to give you both sides of the truth.  This evening Ann will kick off our week-long discussion of the First Amendment.  Readers are invited and encouraged to voice their opinions on every blog post.  Thank you!

Why use pseudonyms???

by Shannon
Why is it that many public officials are so willing to deny the right of freedom of speech to those who work with them, for them, or near them?  I’ve heard of this happening frequently and experienced it myself.  A former boss went so far as to tell me that if I ever said anything bad about her she would fire me.  She didn’t care whether what I said was true or not (and trust me, most of it was).  A current elected official has posted a job advertisement in which he states that he requires “personal loyalty.”  As wonderful as the job he is offering sounds, I think it is unwise to work for an elected official who is so honest about his insecurity and yet is not insecure enough to hide his apparent psychosis.  PLEASE NOTE:  You cannot force "personal loyalty" but you can fake it.  In fact Ann and I are writing under pseudonyms because we work in public offices and even if we never talk about our offices or name names, it’s safer for us this way. 

The real irony is that public officials from the county level to the national level take oaths of office and those oaths explicitly talk about upholding or defending (or both) the Constitution.  Now correct me if I’m wrong, but isn’t freedom of speech mentioned somewhere in the United State’s Constitution?  I’m almost sure of it. 

Pic from http://www.morningconstitution.net/constitution-of-the-united-states.html

Hmmm… let’s see… Article I is about the Legislature.  Article II is about the Executive Branch.  Article III is about the Judiciary.  Hmmmm… where is it?  Oh here it is!  Number one on the Bill of Rights says:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Now I recognize that it says Congress won’t mess it up, but what about other officials like presidents, governors, judges, or prosecutors?  In taking the oath of office, the official implicity swears to uphold and defend the U.S. Constitution’s grant of the right of freedom of speech.  If you give your word that you will uphold or defend (or both) the Constitution then it is imperative that you honor its ideals in your own life and your own offices regardless of the personal cost.  Dear Readers, READ THE CONSTITUTION and then hold your public officials and your bosses feet to the fire if they dare to infringe upon your Constitutional rights or the rights of anyone else.

Next week beginning on Monday, Ann and I will discuss the First Amendment.  As you can see above, it is a dense Amendment with at least 5 components, so your guess is as good as ours as to where the discussion will lead.  Please feel free to comment next week and engage in the discussion regardless of whether you agree or disagree with us, regardless of whether we agree or disagree with each other, and regardless of whether you are a conservative or liberal.  Our nation only works when both sides participate.

WE THE PEOPLE

by Ann
I am late for work, it is snowing, and I’m stuck behind a plow truck that keeps spitting snow on  my windshield.  Rats.  I am never going to get to court on time.  I curse my job.  I curse the weather.  I curse my clients. I curse the system and the indignity of it all.  I resent the struggle to get to the courthouse and the fact that I have to rush to an unforgiving public where I will work myself to an agonizing degree of exhaustion and it still won‘t be enough. I will work tirelessly and explain the same thing over and over and over. I will hear the phrase, “But I have rights!“ I will hear this from too many people who have no idea what those rights are. 
Maybe I will just quit and start that pet grooming, no kill shelter that I dream about.
And as my car slightly fishtails as I go to make a right I see him. 
A man on the corner.  He’s holding one of those billboards for taxes and he’s dressed in a foam statue of liberty costume. It is at least 4 degrees outside and the wind chill makes it feel like less than 10.  He walks back and forth with his sign.  And to him and to many motorists, the statue of liberty is just a fancy landmark in a fancy city.  Today, for this man, it is just a costume.  And for many, taxes are just an inexplicable thing that we have to deal with.  Life, liberty, and the pursuit of happiness are just words.  And the courthouse is just a non-descript building a few blocks away.  And it doesn’t mean much to anyone.
But it does to me,  and with that I control my car enough to get back in my lane.  I hurry to the parking garage and walk with a renewed sense of urgency.
I HAVE A LOT OF EXPLAINING TO DO!

Schoolhouse Rock- How a Bill Becomes a Law

Women Have a Right to say NO!

by Shannon the Prosecutor
"I have never been able to find out precisely what feminism is. I only know that people call me a feminist whenever I express sentiments that differentiate me from a doormat” ~ Rebecca West

I hope I don’t turn off our male readers today, but the issue of gender discrimination is alive and well in the legal profession and it should be addressed.  In truth I never believed that gender discrimination or inequality really existed until I became a lawyer and started practicing in the south.  That was an issue our mothers and grandmothers dealt with, but my generation was different – or so I thought. 

I’ve seen hints of it everywhere that I’ve practiced, but in no place have I seen it more egregiously than where I currently reside.  This area in the south is notorious for its machismo for lack of a better description.  When dealing with men here, I’m often tempted to sing, “Macho macho man.  I wanna be a macho man.  Macho…”  Well, you get the idea. 

Here are a few examples:  An officer 1/4 jokingly and 3/4 seriously told me that my problems (I’m still not sure to what problems he referred) would be solved if I just found a man to “put me in my place.”  I’ve had male defense attorneys tell my boss that I’m rude when all I did was say “no” to something they wanted during negotiations.  It doesn’t matter how nicely I say “no” or how much I explain my reasoning behind my “no,” here women do not have a right to say “no” to a man.  I’ve never seen grown men throw the types of wall-eyed temper tantrums (complete with yelling that “it’s not fair” and stomping their feet) that I’ve seen here when I dare to say “no” to one of them.  I've actually had people tell me not to be so passionate about my cases - the implication being that it's not womanly to be passionate outside the bedroom.  Perhaps it’s time to don white dresses and hats and take to the streets once again.

Picture may be purchased at  http://www.photosofoldamerica.com/index.cfm/Suffragettes-Womens_Suffrage_March_133.htm

Please do not get me wrong.  I LOVE men.  I enjoy men.  Sometimes I can’t get enough of a man.  I’ve just been horrified to see that gender discrimination is alive and well in the twenty-first century.  Make no mistake about it.  There are still people who believe women should be seen and not heard.  There are still people who believe a woman has no right to set boundaries or to say “no.”  There are still people who believe a woman’s place is in the home and if she dares venture outside that home, she best not show too much passion about what she does.  Let me ask you the reader:  if you hired an attorney would you want one passionate or dispassionate about your case?  I’m sorry, but I stand by this principle:  If a man may say no during negotiations then so may I and if a man may make a passionate argument in court then so may I – even though I'm a woman.

Methuselah Goes to Court

Dan da da da….. Dah. Dah. Dah.  That is the theme from the A-Team.  You remember the A-Team right?  They were a rogue bunch of crime stoppers protecting the world from evil.   Famous televison heroes conjures up images of bad ass good guys fighting the psychopathic and sadistic bad guys.  The good guys on TV are really good.  Batman and Robin, Jack Bauer on 24, Spiderman, Superman, NYPD Blue, and the list goes on.  The bad guys on TV are really bad.  Villians like Hannibal Lecter, the Penguin, and Heath Ledger in the Dark Knight (super scary) exist and their only intent is to victimize and brutalize innocent little old ladies. 
This was my most recent experience with my town’s very own A-Team.
     I haven’t met my client yet.  I walk into a crowded courtroom filled to the brim with a sea of law enforcement officers.  Wide shoulders, erect postures, guns on their belts, and a piercing gaze that follows me no matter where I stand.  Sometimes I pretend they are a Mona Lisa painting and I move just a little and no matter where I move, there they are staring.  I wonder if they think they taught us ninja skills in law school?  Maybe that’s why they keep their arms just a little away from their hips, that way if I go all kung fu- they can quickly shoot me. 
     Anyway I grab the complaint and go into the room to meet the terrible law breaker.  I overhear the crimestoppers talk about no deals because it’s a sex offense.  O.K. I am ready for this.  But I wasn’t ready for the man I met.
I walk into the room and there slumped in a chair the smallest, frailest, feeblest old man I have ever seen.  He is so small and nothing sticks firmly to him.  Not his skin on his face, or his rail thin arms, nor his clothes.  This is true even though his belt is pulled tight and on it’s furthest notch.  He is shaking and with great effort he looks at me. 
     He is charged with indecent exposure.  That’s right.  He showed his privates in public.  No bother that it was in the middle of the woods in a secluded area with a stranger.  No matter that the officer had to watch through binoculars to witness this lewd act which I am sure offended some poor family of squirrels.  You see, this old man is gay.  He has been in the closet his whole life and he hasn’t had sexual relations in over 20 years.  But he was lonely, and he went to an area of woods where men of like minds gather for a quick feel or pull or whatever. 
He tells me that he doesn’t want his daughter to know.  His older brother is dying in Florida and if he is on probation, he won’t be allowed by state law to visit him.  And as an added bonus, he will lose his public housing.  I go out and ask the prosecutor to be lenient and suggest a fine.  A large fine. The kind of fine which will keep this man on a strict diet of cat food for the next five years.  Nope.  No deal.
     The A-Team is there and they are each taking a stand.  Although they tower over me, they need to show me who is boss here.  They take turns invading my space, adding their opinions of me and my case.  They are like wolves surrounding a poodle.  I speculate that they must know my secret - that I am a were poodle and I don’t need a full moon to transform. (See http://www.fivesystems.org/work/93034). I try to ignore them and go back to the task at hand.  I need to help this poor old man get through an unforgiving system.
     I kind of beg.  I plead to no avail.  This man has a record.  That’s right….  In 1965 he was charged with possession of pot.  Ah the inhumanity.  He had pot in the 60’s!  I can’t believe it!  Intolerable.  “Perhaps you should offer him the death penalty?”  My joke was not appreciated by anyone. 
      So my sweet old guy will plead to probation.  He will come into my office first and confide in me.  He will get teary eyed and beg me not to judge him. We will share a tear as we try to find out where he can live.  And I will stand next to him in court when he is sentenced.  No one will come to speak on his behalf because no one he knows is alive anymore.  No one except his brother but he is dying and he doesn’t even know his younger brother is gay. 
No one will be there as he has to publicly stand in a courtroom and explain to a judge how his genitals were exposed and how he was touched by a stranger.  And his hands will shake because of his health.  And I, Ann the Defender, will stand next to him and I will ask the judge for leniency.
But there will be none.

Shannon the Prosecutor

On January 13, Glenn Beck said, “Truth has no agenda.”  Indeed it does not. 

A dear sweet friend of mine who is a good and ethical man has been falsely accused of a crime by a District Attorney’s office that has an agenda – vengeance.  The only attorney who looked at the evidence and still agreed to be the special prosecutor has an agenda – to be the next DA of that county.  Two defense attorneys who immediately signed on to help my friend both have an agenda – one wants to be the next DA and the other wants to stay on the current DA’s good side.  Four attorneys.  Four agendas.  No justice.  No one is concerned with truth or justice except my unjustly accused friend.  He actually believes that the truth will save him. 

Most attorneys started out honorably as law students.  We felt that the law was a noble profession and we believed in certain ideals.  Some attorneys lose/sell their ideals along the way helping to create some funny lawyer jokes.  DAs and ADAs do not have the luxury of selling out.  District Attorney’s Offices are entrusted with an awesome power, but our job as prosecutors is to do justice.  Our job description is statutorily defined in most states.  By law we are not tasked with getting convictions, but with finding justice.  I assure you the former would be the much easier task.   

I take the search for justice seriously and so does Ann.  She’s a liberal public defender in the north.  I’m a conservative prosecutor in the south.  Perhaps the tie that binds us together is our belief that truth matters and that the only ideal an attorney must never let go of is justice.

Meet Ann the Defender

“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process.  It is our job- our sworn duty- as criminal defense lawyers, to protect our clients from those people.” By Cynthia Roseberry

     How can you defend THOSE people?  What if they are guilty?  How do you sleep at night?  Are you just doing this until you can get a job as a real lawyer?
These are just a few of the protests veiled as innocent inquiry that I have to dodge or confront every day.  The assault on my person, my reputation, and my profession exists simply because I have chosen to do one of the most important tasks that a lawyer can do.  My job is to defend the rights of the accused and to ensure that the integrity of the Constitution is not compromised by those in power.
      I am a public defender by choice. There is no contract in dispute when I go into the courtroom.  There are no damages to be awarded and no property disputes to be settled.  When I go into a courtroom there is only liberty, freedom, and life at stake.  And for me that is more than enough.
     As unpopular as my clients may be, and as controversial as the cases are, I know I am not alone.  I share my honorable and noble profession with patriotic heroes such as John Adams and Abraham Lincoln.  And for that I do not apologize.  
     My name is Ann and I will  take you through the criminal justice system through the eyes of a public defender.  We will go to court with some of the most undesirable people.  We will take many trips to the prison. We will be antagonized by the prosecution and harassed by the public.  We will suffer the agony of defeat and the joys of acquittal.  There is no clear line that delineates the good guys from the bad guys in our great but fallible system.
So come…. Laugh with me, cry with me, proselytize and complain with me as we experience “justice” together.