6/15/2007 8:51 PM Bob wrote:
Why not point fingers at the fat parole violator. Maybe she should take better care of her fat self and her fat family. Did you see those fatties on TV?

This comment was left by somebody who gave only the name “Bob” in reaction to my story of the execution of Edith Rodriguez.  My first reaction was to delete the comment.  Since this is my blawg, I can do that.  But that smelled of censorship, and that cuts against my grain.  My next thought was to respond to it.  But what exactly is the right response to a comment like this?  Do I ridicule Bob for the suggestion that fat people are unworthy of living?  Do I tell him what a truly sick person he is?

I decided to sleep on it and take another look in the morning.  So here it is, morning, and the comment is as ugly and ignorant as it was last night.  Ah, there’s nothing like the anonymity of the internet to let the true ugliness come out.

And then it came to me.  This comment is important.  It is important that people who read this blawg know that there are people out there who actually think this way.  That there are people who would actually put something like this in writing.  Because we know nothing more about “Bob”, no one will ever be able to tell who, exactly, this Bob is, and he will never be held accountable for this comment.  The anonymity of the internet is the most potent truth serum there is.  Bob has let out his deepest, darkest prejudice and hatred, something I doubt he would do if he was standing face to face with another person.  But online, he can say it straight out and chuckle about it afterward.  “Ha!  I sure told them fatties!”

I post Bob’s comment here as demonstrable evidence that people like Bob exist.  There is no voir dire question that will elicit this response, showing the depth of his anger and ignorance and prejudice.  But fair minded people, even those who tend to disagree politically, have trouble believing that people like this really exist.  Well friends, Bob exists and he’s walking amongst us right now.  Never forget it.

I received an email castigating me for calling the death of Edith Rodriguez an “execution”.  While the writer neglected to mention his/her background, I was accused of deceit and being unamerican.  It also implied that I’m short, fat and incredibly ugly, suggesting that it’s someone who knows me. 

So in an effort to be as precise as possible, I want to update my comment to make things absolutely clear:  Edith Rodriguez was executed at the hands of LA County Public Safety Police. 

Let us consider the nitty gritty:  Ms. Rodriguez, at the time she first appeared in the ER, was alive.  Ms. Rodriguez, was still alive as she lay on the floor vomiting blood.  Vomiting blood whilst lying on the floor in the fetal position is a universal sign that something is wrong.  Very wrong.  The Public Safety Cops appear and observe this scene, carefully noting every detail because they are highly trained observers.

Human beings can engage in conduct in one of two ways.  They can either perform an act, and thereby actively engage.  Or they can fail to perform an act, and thereby passively engage.  Both involve choices.  Edith Rodriguez, as a direct consequence of the choice made here, is dead.  She is every bit as dead as if a bullet was shot into her head.  Although, it is arguably more cruel to simply stand there and allow the life to painfully ebb out of her body than to end her life quickly.  Not that I am advocating for the latter.

And so Edith Rodriguez was executed.  For anyone who still separates the nature of human volitional acts from the responsibility for the consequences of those acts, or whose blind love of police enables them to overlook the harsh reality of what happened to Edith Rodriguez, there are plenty of neo-con websites out there who will support and applaud your position that either cops can do no wrong or that hispanic surnamed individuals with warrants should be left to die.  But not here.

Of all the weapons available to the defense, few are more potent than suppression of evidence.  When I do an appeal, or come into a case after pre-trial motions are completed, I am often astounded at how one of the biggest guns in the defense arsenal is neglected or wasted through the use of pro forma motions, lacking any semblance of thought or strategy.

Sure, the client is impressed that you cranked out a 20 page omnibus motion, but who do you think you’re kidding?  You didn’t even bother to change the name of the defendant all the way through when you churned out your standard motion papers.  This 5 second solution comes at an extraordinary price.  One size does not fit all.  Every defendant you represent deserves an omnibus motion thoughtfully crafted for the specific case.  No excuses.  If you can’t be bothered, go become a civil lawyer.  You’ll probably make more money anyway.

I’ve lectured at CLEs about the power of a strong, fully-conceived, thoroughly researched and clearly-written suppression motion.  I beg lawyers to do this.  Often, to no avail.  Is it too much work?  Is it beyond your ability?  Have you just become too complacent to care?  The excuses may have varied but the results did not.  Denied.

Suppression motions, and the hearings that invariably follow a good suppression motion, have been an exceptional opportunity for me.  I prevail with great frequency, and even if I can’t get every piece of evidence, every spoken word, every identification suppressed, I almost always walk away with some victory.  No, this is not luck or weak opposition.  It’s effort.  Police routinely fudge the details surrounding an arrest, or the procedures for identification, or . . . something.  It’s my responsibility to have such a thorough knowledge of the law, and command of the facts, that I can find that crack and exploit it. 

At the very least, you get a preview of the witnesses against you and can get a ton of information about the case.  I push the envelope as far as the judge will let me, going as deep into the facts as possible.  Why? Two really good reasons: First, to get the details that I will never get from discovery. Second, to nail down the witness’ testimony for use at trial, when he “improves” upon it after being told by the prosecutor what he did wrong.  How can any competent lawyer ignore this opportunity?

For those of you non-criminal lawyers who think, “Aha another lawyer trying to manipulate the truth to deny justice,” you miss the point.  In criminal law, we work with the information as viewed through the eyes of the police and prosecutors.  Sometimes we’re lied to, but almost always we’re fed a relative truth that’s been twisted to meet their desire to convict.  Rarely does anyone in criminal law possess “truth”, but merely stories from our respective points of view. 

Moreover, at least in NY, disclosure is largely non-existent.  Civil litigators have the opportunity to find out essentially everything about their adversaries position in advance. Criminal defense lawyers often go to trial blind.  Most people can’t conceive of how this could be, since civil cases involve only money, while criminal involves the lives of real people.  And yet, this is how it is, and how our Legislature intends it to be. 

So I reiterate my plea to any lawyer who happens upon this rant.  Take suppression seriously.  Think about it.  Develop a strategy, well grounded in the law and facts, and then make it happen.  Research the law. Then research it again.  Don’t just do it for your client, but do it for me.  I may be taking over the case and I don’t want to be saddled with anyone’s garbage lawyering.

Last Wednesday, Edith Rodriguez was laying on the floor of the MLK-Harbor Hospital in a fetal position vomiting blood for 45 minutes.  It might have been longer, but Los Angeles police determined that Ms. Rodriguez, apparently a potential parole violator, was ready for sentence.  They executed her.

Other lawyers can discuss the fact that the hospital medical and nursing staff found her unworthy of assistance, or that the numerous calls to 911 brought about nothing more than the disdain of the very important operators, for whom Ms. Rodriguez’s extremis was hardly an emergency.  But I’m going to stick with the cops.

How twisted has our hatred of the poor, of immigrants, of minorities, of potential parole violators, become that they should be intentionally left to die on the floor.  They wouldn’t let this happen to a dog.  But Ms. Rodriguez, apparently, was not nearly that important. 

Some of the knee-jerk conservatives will bend over backwards to make excuses for the death of Ms. Rodriguez at the hands of police, snidely suggesting that she deserved it or brought it upon herself for some act of wrongdoing at some earlier moment in her life, and thereby relieving the cops of any responsibility.  And in their disgusting logic, implicitly contend that she deserved the death penalty.  That Ms. Rodriguez deserved to die on the floor because she was imperfect.   To anyone who would even consider espousing such a view, I cannot find words strong enough to express how you sicken me. 

Following on the heels of Jamie Spencer’s excellent effort in putting together the Top Criminal Law Blogs (of which Simple Justice was honored to be included), Nicole Black has started a poll of the Top 10 Funniest Law Blogs at her very funny Legal Antics blog.

Let’s face facts, the law can be a hoot, and some lawyers take themselves waaaaaaay too seriously.  If there’s a blawg that gives you a good laugh, or just brings a smile to your face, let Nicole know how you feel. 

Most of us are painfully familiar with Dr. Flea, whose live blogging of his med-mal trial became the thing of which legends are made.

So where is he now?  Well, it was understandable that he shut down his blog during trial, especially after his lawyer found out about it.  But trial is now over, with the case settled and never to be heard from again.  The Flea made the front page of the Boston Globe, which certainly was a shock to all, but that too has passed.  People have short memories (gnats are jealous).  It would be perfectly understandable that the Flea needed a break, and he got one.  So shere is he?

Time to get back on that horse again, Flea.  You were full of bluff and swagger when last we heard from you.  Are you embarrassed?  Ashamed?  Are you a broken man, wallowing in self-pity?  Well, snap out of it.  Time to tell your story.  Show us that you really are man enough to face the blogosphere.

You were a pretty good read before, and you had a lot of fans.  Granted, some were pretty idiotic with their blind faith that the Flea could do no wrong.  But that’s them.  You know better.  Get off your butt and back online.  Put your blog back up and do some pediatric grand rounds.  You most certainly have learned something about which subjects that are best left alone.  On the other hand, there are some big open questions here and it’s hard to believe that you don’t want to fill in the blanks.

So come back, Flea.  It was bad.  It happened.  You aren’t perfect, and that’s okay.  Put it behind you and get back to work.  The blogosphere isn’t the same without you.

During dinner with a friend last night, the discussion eventually turned to a civil suit that he had brought against a neighbor for illegally cutting down trees.  As he had shown me the papers during the pendency of the case, I had some familiarity with the subject.

With a relatively casual demeanor, my pal told me that legal fees for the action were “a little more than $75,000.”  Trying my best to keep my composure, I repeated “$75,000?”  “Yup,” he said, “it was a high-powered law firm.”  They lost the case.  They should not have lost the case.  The work performed on my friend’s behalf was, at best, pedestrian and much of it pointless fluff that served no apparent purpose other than to grind out hours. 

“Are you okay with that?”  I asked, again with a casual air, as if it was no big deal to pay $75,000 over some trees and still end up the loser.  “I guess they did everything they could,” he answered, leaving me to believe that he tosses that kind of money around on a regular basis. 

Fade to black.  Close-up of my subconscious:  I could have done that case for a third of the cost, and won it.  I represent people whose lives hang in the balance, and who think that a third of that is too high a price for their defense.  “I’m in the wrong business,” I muttered under my breath. 

My faux relaxed appearance must have belied my inner turmoil.  “What’s the matter,” my good buddy asked.  What am I supposed to say.  Please don’t misunderstand; I have had many clients over the years whose lives have been worth many times that amount, and who have happily paid for the finest lawyering possible, with every bell and whistle that the profession can muster to provide as great an opportunity to prevail as possible.  What I have difficulty with is that a civil litigator, whose work is mediocre and litigation experience clearly meager at best, can charge multiples of the value of yeoman legal services without raising the client’s cackles. 

The vast majority of criminal cases do not involve well-heeled white collar defendants.  There just aren’t that many Martha Stewart’s around.  Most involve regular people, for whom the legal fee represents a significant portion of their net worth.  And they are not inclined to give it up without a fight, which is understandable, but at the same time want to be represented by an OJ-like dream team.  They just can’t, or won’t, pay for it.  It’s worse with innocent clients, who argue that they shouldn’t have to pay because they didn’t do anything.  As if the whole mess is the lawyer’s fault.

But that’s the criminal situation; Civil litigation, apparently, suffers from no similar issues, as they run up the bill more slowly, and suck it in dollar by dollar, knowing that they can be relieved whenever the bank runs dry.  Criminal defense lawyers don’t just walk away when the client becomes a rock (you know, you can’t get blood from a rock?)  The court won’t let us, but more importantly, we feel a different sense of duty toward our clients.  For civil lawyers, it’s just money.  For criminal lawyers, lives are at stake. 

To express my feelings to my friend would only add insult to injury.  It was bad enough the lawyer lost the case.  He didn’t need to know that he overpaid as well.  I let my friend pick up the tab for dinner.

Step right up and get yer justice here.  Stomping for judicial pay raises, Court of Appeals Chief Judge Judy gave a speech to a group of businessfolk, as reported in the New York Law Journal and Judicial Reports.  Well, this seemed a bit curious. 

Other than playing on the businessfolk’s fear of reprisal, what could our Chief Judge, the one individual who more than any other in the State of New York represents Justice, Propriety and Fundamental Fairness for all, say to these corp-exec-types?

                      “We need it and deserve it for the protection and promotion of business interests in this financial and commercial capital of the world.”

Gulp.  A new motto for the Court system, To Protect and Promote Business Interests.  That old cliché, Equal Justice Under Law, was getting tired anyway.

In a June 12th decision, courtesy of New York Legal Update, the Court of Appeals upheld the conviction by plea in People v Parilla, 2007 NY Slip Op 05133.  In this case involving a 1993 rape, a 1996 blood sample and a 2003 prosecution, the defendant brought a pro se motion to dismiss on statute of limitations grounds.  The trial court rejected it because he was a represented defendant. 

The judge then talked defense counsel out of adopting the motion, off the record, by telling her that it wouldn’t be granted.  The defendant ultimately took a plea which included a waiver of appeal, and moved the next day via a 440.10 motion on ineffective assistance grounds. The defendant then appealed the whole enchilada.

The peculiar aspect of this case lies in the harsh description of the defendant’s purpose in appealing.  The Court held:

Defendant attempts to sidestep the consequences of his plea by claiming ineffective assistance of counsel. Under the circumstances of this case, were we to consider defendant’s statute of limitations claim on the merits, we would be reviewing the very argument that defendant waived when he pleaded guilty and waived his right to appeal. [citations omitted, emphasis added.]

Sidestep the consequences?  Is that not the point of essentially every appeal?  Notice the judicial slight of hand by skipping over the ineffective assistance claim and going to the underlying statute of limitations argument, which, the Court held, was what was waived by the plea.  Except for the fact that a waiver, to be effective, must be knowing and intentional, and the one thing that is clear throughout is that the defense attorney was bullied into submission by the trial judge. 

A second theme that comes across loud and clear is that the defendant, having been in prison for an extended period before this plea (yes, the defendant was not a fine upstanding citizen), became a jail house lawyer.  He was the poster boy for the phrase, “a little knowledge is dangerous.”  Of course, since his lawyer failed him, this may not have been the worst thing.

The old formulation for ineffective assistance was a “mockery of justice,”  a somewhat subjective standard.  But in this case, it was met.  This plea smells of a farce and sham, where the defense lawyer was pushed into not pursuing the statute of limitations defense in order to avoid annoying the judge.  The fact that the judge had told her the motion would fail is ridiculous.  Since when is that the measure of whether to move for dismissal? 

And so, while few can feel a great deal of sympathy for this defendant, the precedent of this decision, combined with the harshness of its language, is quite disturbing.  The Court of Appeals did a quick step around the real issue, knowing full well that the defendant was denied effective assistance of counsel, and upheld an unintended and unknowing waiver, to avoid allowing the defendant to fox trot his way to freedom.  Another bad case making bad law.

Keep your eye on the left wrist.

Anybody need a slightly used Timex?