It seems like only yesterday that  Carolyn Elefant and  Bob Ambrogi gave up the helm of ALM’s Legal Blog Watch, a daily roundup of interesting stuff happening in the blawgosphere.  Then  Bruce Carton stepped into the breach.

This was a good thing, as Bruce was one of the few guys who was able to maintain a sense of humor and relative decorum while grinding out posts on command.  The idea of one person doing the work of two nearly sunk the ship from the outset, and  I almost came aboard in with him. Fortunately for me, ALM was too cheap and clueless to make that happen, so Bruce sailed solo.

Today is Bruce’s last day.  He’s weathered some rough seas along the way, with the blawgosphere often refusing to give up its secrets easily.  Or to put it in more concrete terms, the vibrancy of the blawgosphere has slowly waned, leaving Bruce to work pretty damned hard to come up with great stuff when the worthwhile content of the blawgosphere just wasn’t there. Sure, there have been about ten million new “blogs” over the past couple of years, but nothing anybody would bother to read. Flawging crap aplenty, but substance became increasingly hard to find.

So Bruce came up with some shticks of his own.  There was the brilliant  Things You Can’t Do on a Plane series. And of course, who can forget the Lindsay Lohan mug shot updates, always a crowd pleaser.  Bruce was always on top of cutting edge law with his  Three Burning Questions posts.

But my personal favorite has always been Judge Carton Rules, and he has been kind enough to leave us with the complete set, suitable for citation.

Since February 2010, Judge Carton has been ruling on important matters here at Legal Blog Watch. As I wrote when I introduced Judge Carton, 

No, Judge Carton is not a real judge and,  like Judge Wapner, my rulings are not “technically” binding on the parties. But that has never stopped me from ruling before,  see, e.g., MacStupid, aka MacGyver v. MacGruber, and it certainly won’t stop me here. Moving on.

My mission? To spare the parties to cases in which the outcome is obvious the time and expense of further litigation.

Think of the thousands, maybe millions, of litigants saved from the expense and embarrassment of crashing litigation defeat by Judge Carton’s wise dictates.  Bruce is nothing if not a great humanitarian. If only anyone had heeded his rulings.

For me, Bruce’s departure marks yet another watermark in the glory days of the blawgosphere. He denies it, as if it’s just another transition to the next guy who will take the helm, but he’s wrong.  Bruce was one of the giants of the blawgosphere, and while no one has as yet stepped forward to announce that they are taking his place, his loss as the voice of Legal Blog Watch will be sorely missed.

Thanks, Judge Carton.  You did a heck of a job, and it was always fun to see what sort of craziness you found with each new post. You were a pillar of the blawgosphere, and it won’t be the same without you.

There’s the fish. There’s the car. And then there’s the Stingray that few know about, the type in the hands of law enforcement who have a yearning to know where you are and what you’re up to.  New to you? Mike Masnick at  Techdirt explains:

Back in 2011, the WSJ broke a huge story about the frequent use by government officials of a technique for mobile device surveillance generically called “stingray” devices (technically, there are a few products used for this, only some of which are actually called Stingrays, but the name is now used to refer to all of them). The device works by pretending to be a mobile phone tower, so devices can connect to it, and law enforcement gets all your data. It’s basically a cellular man-in-the-middle attack, with law enforcement being that man in the middle. Yay.

In that case, we noted that law enforcement claimed it had a court order to use the technology, but the judge was confused, asking where were the warrants for the use of the device. The judge asked how it was possible that a court order or warrant was issued without the judge ever being told about the technology used in surveillance and was told, simply, “it was a standard practice.”

The ACLU filed a bunch of FOIA (Freedom of Information Act) requests to dig into this and newly released documents show that, indeed, it was apparently standard practice by the DOJ to be “less than explicit” and less than “forthright” with judges in seeking warrants and court orders to make use of this technology. Here’s an email that was revealed:

As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement’s WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual’s location with some specificity) to locate an individual. It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit.

While we continue work on a long term fix for this problem, it is important that we are consistent and forthright in our pen register requests to the magistrates…

As the ACLU notes, this email was written three years after the Rigmaiden situation happened — suggesting that the DOJ has been getting away with this sort of thing for many years, without anyone digging in. The ACLU is now arguing that this should be a reason to suppress the evidence obtained via these devices, and will ask the court to “send a clear message” that it cannot hide the truth from federal judges in seeking rubber stamps to violate the privacy of the public.

In my original, admittedly harsh, assessment of Avvo Answers, an effort by my dear friend Mark Britton to get eyeballs to his marketing website with the promise of free legal advice, my conclusion for lawyers was pretty clear:

Here’s the moral right up front:  Don’t let incompetency or ethical challenges impair the desire for personal gain when it comes to a business model. 

Can I pursue probation without verdict?

Asked 1 day ago – Pittsburgh, PA

The house I was staying at was raided. I am a student who was living in the dorms last semester, had a lease signed for a house beginning June 1st. Between then I was living at my friend’s house, and also my girlfriend’s house. Found in the house that was raided was 7lbs of marijuana, xanax, and five ounces MDMA. I was charged with everything possession of the three and intent to deliver marijuana and MDMA. The marijuana and xanax was in a safe and was not mine. I had no contact with it at all. Three ounces of MDMA belonged to me, however, lab tests will confirm that it is not MDMA. I believe it will come up as a synthetic cathinone. A warrant is out for the owner of the marijuana and xanax. I was told those charges will be dropped from me as soon as he confesses to owning them.

As my colleagues said, you should stopping so much info on this site. I just Googled the facts you gave and I found news articles about this bust (believe me, 7 pounds of weed is pretty Google-able).

Stop talking to anyone who isn’t your lawyer — that includes co-defendants, friends, parents, AVVO, Facebook, or Twitter.

So if you’re a criminal defendant, or a potential criminal defendant, do the following:

1. Shut up.


2. Don’t post on about your case on the internet. This means Avvo, Facebook, Twitter, MySpace, Instagram, Grindr — WHATEVER.


3. Call an attorney immediately.


4. Did I mention SHUT UP?

Talking on the internet cannot help you. It can, and will, only hurt your case.

When  Gideon asked me if I had read  Crime and Consequences lately, I responded that I only read it when I’m having way too much fun and need something to bring me back to a life of misery.  So  he pointed to a delightful post by Bill Otis with the not-at-all-hyperbolic title Lying, More Lying, and Millions Down the Perjury Rathole. 

Otis begins with this bit of enlightenment, too obvious to Bill to require any further explication:

Anyone who has practiced criminal law knows that lying in court is epidemic.  Almost all of it comes from the defense, either the defendant directly or his associates.  This should hardly be a surprise:  Since almost all defendants are factually guilty, their telling the unvarnished truth is the quick route to jail.  Can’t have that!

Almost all of it comes from the defense, either the defendant directly or his associates.

This is not to say that lying by prosecution witnesses is unheard of.  Just recently, Chief Judge Alex Kozinski of the Ninth Circuit wrote a scalding opinion in Mike v. Ryan [sic] about a police officer who testified, without any corroboration and seemingly falsely, that the defendant had confessed to him.  This is not the only episode of police lying, and such lying is unacceptable under all circumstances (as of course is the vastly more common defense lying).  The system can’t and won’t produce justice on a diet of perjury.

Lifflander [in this WSJ article, “The Economic Truth About Lying.”] echoes a suggestion I made for years when I was a federal prosecutor: That lying should not be tolerated as part of the boys-will-be-boys cheating we have come to expect from losing litigants (among whom criminal defendants are near the top of the list).  The way to stop tolerating it is to start prosecuting it.  When word gets around the local defense bar that your client has a really good chance of going to jail for an additional stint for perjury, the court will get  —  guess what!  — less perjury.

Via Nature, the international weekly journal of science, the latest version of the Philip Dick’s 1956 sci-fi story,  Minority Report has emerged.

[N]euroscientists have found a way to predict whether convicted felons are likely to commit crimes again from looking at their brain scans. Convicts showing low activity in a brain region associated with decision-making and action are more likely to be arrested again, and sooner.

Kent Kiehl, a neuroscientist at the non-profit Mind Research Network in Albuquerque, New Mexico, and his collaborators studied a group of 96 male prisoners just before their release. The researchers used functional magnetic resonance imaging (fMRI) to scan the prisoners’ brains during computer tasks in which subjects had to make quick decisions and inhibit impulsive reactions.

Men who were in the lower half of the ACC activity ranking had a 2.6-fold higher rate of rearrest for all crimes and a 4.3-fold higher rate for nonviolent crimes.

The fear, of course, is that our society, and particularly our politicians, so adore a magic bullet solution to intractable problems that the chance of this software being turned from an aid to a pre-emptive excuse to imprison people for what they have yet to do looms large.  If this program works, it’s the perfect candidate for a slide down the slippery slope toward Minority Report.  Quick, easy, and unless you or your loved one happens to be identified as inchoate criminal, a risk most people are prepared to take to stop crime.

We had vast experience with the reliance on “science” as a fix for all that ails the criminal justice system.  From fingerprints to DNA, it’s been embraced as a way to remove the human element and replace it with a determination based on scientific certainty.  We love certainty, and toss in the word science and minds shut down and a warm glow covers us as the responsibility for being right shifts to the prophets of empiricism.  Of course, history has also shown that scientific certainty is anything but certain, as we continually learn how yesterday’s absolute certainty turns into tomorrow’s mistaken reliance on junk science.

But the authors themselves stress that much more work is needed to prove that the technique is reliable and consistent, and that it is likely to flag only the truly high-risk felons and leave the low-risk ones alone. “This isn’t ready for prime time,” says Kiehl.

Wager adds that the part of the ACC examined in this study “is one of the most frequently activated areas in the human brain across all kinds of tasks and psychological states”. Low ACC activity could have a variety of causes — impulsivity, caffeine use, vascular health, low motivation or better neural efficiency — and not all of these are necessarily related to criminal behaviour.

When was the last time the cops came to your front door with a dog, other than to ask for a donation to the police retirement fund?  Me neither. But now that the Supreme Court has, in a 5-4 decision, held that it’s an “unlawful intrusion” into the curtilage in Florida v. Jardines, that’s settled. So dog sniffs are still the gold standard of probable cause, but they’re not allowed on the porch.

At Volokh Conspiracy, Orin Kerr questions where Justice Nino Scalia came up with this supposed pre-Katz trespass theory of 4th Amendment jurisprudence, given his inability to find any mention of it and curiously noting that while it loomed large in the Court’s earlier  United States v. Jones decision, he studiously avoided using the word “trespass” in the majority decision. Orin notes:

The apparent restoration of a pre-Katz trespass test in Jones reflects the widely-shared assumption that pre-Katz search doctrine was in fact based on trespass law. Like many Fourth Amendment scholars, I have previously echoed the common wisdom that this is true. But because the point was only of historical interest, I had not looked closely at pre-Katz law to assess its accuracy. Jones makes the history of Fourth Amendment law doctrinally significant, however, meriting a more careful look at the early understandings of “searches.” This essay explores the history of the Fourth Amendment and reaches the surprising conclusion that no trespass test was used in the pre-Katz era. Neither the original understanding nor Supreme Court doctrine equated searches with trespass. Jones purports to revive a test that did not actually exist.

In short, the common wisdom is false.

When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U.S. ––––, ––––, n. 3 (2012) (slip op., at 6, n. 3). By reason of our decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), property rights “are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)—but though Katz may add to the baseline, it does not subtract anything from the Amendment’s protections “when the Government does engage in [a] physical intrusion of a constitutionally protected area,” United States v. Knotts, 460 U.S. 276, 286, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Brennan, J., concurring in the judgment).

That principle renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—- in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

My hope for this case was that it would reject the doctrine that citizens possess no reasonable expectation of privacy in contraband.  It does not, but nor does Jardines reaffirm that doctrine.  Rather, the case holds simply that bringing a dog—and perhaps other instrumentalities of investigation—onto private property without consent requires a warrant or a constitutionally recognized exception.  The case still has me puzzled/worried for several reasons:

1. What about people who live in apartments or even brownstones that police may approach without trespassing?  Because I don’t see the votes for that case.  Presumably you would lose at least Justice Thomas, and likely Justice Scalia, which by my count makes it a six-three decision the other way.


2. What about technology being developed and tested today that can sense contraband within the home from above or a greater distance?  I assume a chemical-sensing drone might get you Justice Scalia again on a Kyllo rationale.  But Kyllo involved officers peering into the home, whereas the technology I’m flagging is much more like the dog sniff in Place or the field test in Jacobsen, revealing no more “intimate” detail than the presence or absence of contraband.


3. Finally, there is what cases actually hold, and then there is the propositions they will be one day be cited for.  Justice Scalia’s opinions in Jones and Jardines are careful to point out that Katz is good law—we just don’t have to reach it because there has been a trespass.  But can you not just imagine a future opinion citing these cases for the proposition that the Court is returning to trespass as the lodestar of Fourth Amendment analysis?  “As our recent holdings have made clear…”  Maybe I’m being too cynical.

But even using the term trespass mightn’t be such a bad thing: I think it’s just a different way of framing the same issue. When the government has ‘trespassed’ on our private property or our person or our papers, effects and things, then it is a search.

It is, in a sense, the simplest way to define a search.

In other words, do we implicitly give permission to police to enter our property for  any  reason other than our own physical safety? Would it be a workable bright-line rule that any incursion by the police onto one’s property is  always a search and thus the onus lies on the State to prove that the search was reasonable or supported by an exception to the warrant requirement?

The defense almost invariably challenges the testimony of the prosecution’s witnesses at trial.  If not, why go to trial, except in those rare instances where the argument is that the evidence is legally insufficient to prove either the commission of a crime or that the defendant was the perpetrator. Otherwise, somebody has to be wrong.

In United States v. Ruiz, the 9th Circuit was faced with this fairly common situation during the felon in possession trial, but with a twist: In summation, the prosecution set the defendant up by arguing to the jury that in order to find him not guilty, the jury had to conclude that the cops were lying.  Had to. Not mistaken. Not wrong. Not erroneous, but lying.  And that meant, implicitly, that it was the defendant’s burden to prove to the jury that the cops were lying.

To highlight parts of his closing argument, the prosecutor utilized a PowerPoint slide presentation consisting of pictures of the alleged crime scene, photographs of the witnesses who testified at trial, summaries of the testimony presented, and visual representations of the jury instructions, and of the government’s key arguments. Following a slide depicting the first element of the offense—“the defendant knowingly possessed the firearm or ammunition”—were three slides depicting alternative “way[s] to find defendant guilty.” The slides stated that the jurors could find Ruiz not guilty “only” if they found that Officers Peck and Ludikhuize “lied to you” and that the Fuentes sisters were mistaken.

The defense objected. The judge responded “meh,” and the prosecutor continued unmolested. It’s not the first time that happened .

On appeal, the defense argued that the prosecution’s summation, with visual aids, created a false choice for the jury, contending that anything short of proof that the cops were lying meant that the jury must find the defendant guilty.  In an opinion by Judge Richard Paez, the court held:

To that end, “prosecutors have been admonished time and again to avoid statements to the effect that, if the defendant is innocent, government agents must be lying.” Id. (citation and internal quotation marks omitted). “It is also true, however, that the prosecution must have reasonable latitude to fashion closing arguments. Inherent in this latitude is the freedom to argue reasonable inferences based on the evidence. In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying.”

So “don’t do it,” but if you do, no big deal. While it’s true, not to mention obvious, that the prosecution is entitled to some latitude to argue reasonable inferences, it refers to inferences “based on evidence.”  In other words, that the evidence provides a basis for the jury to draw an inference.  But that’s not what the prosecution argued in summation, nor what the defense argued on appeal.

The court played a game, much like the prosecution did at trial, shifting the focus of the argument away from evidence and factual findings, and instead deftly slipped in the legal burden in its place.  The prosecution didn’t argue that the jury should conclude that it’s witnesses, the cops, were credible and accurate, but rather what the jury should understand the defendant’s burden to be.  The argument was that unless the defense proves the cops were lying, the jury must return a guilty verdict.  That’s no inference “based on evidence.”

When the court holds that it’s fair game for a prosecutor to argue “that one of the two sides is lying,” that’s a gross mischaracterization of what happened in this case.  The prosecution didn’t argue the defendant lied, a fair approach on summation. The prosecution argued the defendant’s burden of proof was to prove the cops did.

In concurrence, Judge Harry Pregerson refuses to let the prosecution’s gambit get sanitized, opening his opinion with a beloved quote from Berger v. United States, 295 U.S. 78, 88 (1935) (Sutherland, J.), flowing into this:

There was no reason for the prosecutor to push the envelope and ignore Justice Sutherland’s warning that a prosecutor “may strike hard blows,” but not “foul ones.” Id. The prosecutor struck foul blows by repeatedly telling the jury that they could acquit Ruiz only if they found that both Officer Peck and Officer Ludikhuize were liars. The prosecutor emphasized his improper statements with PowerPoint slides that stated: “Only Way Not Guilty: Officer Peck lied to you” and “Only way not guilty: Officer Ludikhuize lied to you.”

Wait, you say. Concurrence? After a quote like that, a concurrence?  Yes, a concurrence.

The prosecutor’s argument relies upon specious reasoning. The jury could have concluded that the officers were telling the truth, but still have determined that the evidence put forth by the government was not sufficient to find the defendant guilty beyond a reasonable doubt. The prosecutor instead told the jury that to find the defendant not guilty, it first must find that the two officers lied. This distorts the burden of proof and misstates the law, but sadly is condoned by the incantation: “harmless error review.”

Emphasis added.  Harmless error, which is better for the defense than “plain error” which would have been the standard had the defense not objected at trial, is another way of saying, “but we, the appellate judges, think the defendant was guilty anyway, so whatever.”

For all the fine quotes about hardball and lowball, striking hard and striking foul, the precious right to a fair trial by a jury of one’s peers, false choices and the best legal system ever created, this is what it ultimately comes down to before the United States Court of Appeals for the 9th Circuit: but he did it. 

H/T Spencer Neal

As civil lawyers continue to argue over the death of the “billable hour” and the merit of alternative fee agreements, criminal defense lawyers chuckle. The prophets think they’ve invented something new, except that criminal defense lawyers have been using flat fees forever of necessity.  But then, it’s not like civil lawyers pay attention to us.

Yet one shocking thing that criminal defense lawyers come to realize as we have occasion to stick our nose into the occasional civil case is that our practice eliminates the temptation to cheat our clients for profit.  Hard to imagine, I realize, but true. 

By charging a flat fee for services, there is no reason in the world to churn time. We don’t make an extra dime for wasting time, inflating hours, doing pointless research or writing memorandum no one will read.  If we choose to do so, it’s on our own dime, so who cares? 

I like to research, and often find myself going down unexpected paths for hours, reading interesting or peculiar decisions that ultimately lead to a dead end. While there’s an argument to be made that it inures to a client’s benefit, I never have to make that argument because no bill is generated. It’s all on my dime. Clients love when you do a ton of work for them that they don’t have to pay extra for. Who can blame them?

At the same time, the most common refrain I hear from targets of federal investigations or white collar prosecution is that they need a lawyer with “resources,” which is code for Biglaw with lots of lawyers who have lots of connections and lots of clout.  The belief is something of a delusion, where the client thinks that a big firm will have 50 lawyers working round the clock on their case doing very important work on their behalf. 

But then, the  New York Times reports that this may be somewhat accurate, though not likely in the way they want.

They were lawyers at the world’s largest law firm, trading casual e-mails about a client’s case. One made a sarcastic joke about how the bill was running way over budget. Another described a colleague’s approach to the assignment as “churn that bill, baby!”

“I hear we are already 200k over our estimate — that’s Team DLA Piper!” wrote Erich P. Eisenegger, a lawyer at the firm.

Another DLA Piper lawyer, Christopher Thomson, replied, noting that a third colleague, Vincent J. Roldan, had been enlisted to work on the matter.

“Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode,” Mr. Thomson wrote. “That bill shall know no limits.”

Internal DLA Piper e-mails from the Project Orange bankruptcy appear to corroborate that criticism. Lawyers on the case openly discussed the inefficient use of junior lawyers, who are known as associates. Mr. Thomson, a DLA Piper lawyer, wrote that although the firm had reduced the amount of a bill for Mr. Victor, he expected his fees to escalate.

“DLA seems to love to lowball the bills and with the number of bodies being thrown at this thing it’s going to stay stupidly high and with the absurd litigation P.O.A. has been in for years it does have lots of wrinkles,” Mr. Thomson wrote.

Later, Mr. Thomson complained that DLA Piper associates were taking too long to complete assignments. “It took all of them four days to write those motions while I did cash collateral and talked to the client and learned the facts,” Mr. Thomson wrote. “Perhaps if we paid more money we’d have skilled associates.”

The  60 Minutes story on the tragedy of Brian Banks’ wrongful conviction for rape and kidnapping provided another breathtaking example of the inability of the criminal justice system to discern the guilty from the innocent, and followed a high school football star’s life destroyed for nothing, while the “victim” got away with $1.5 million.  It was a moving and revealing piece, but with a mostly happy ending.

While the core of the wrongdoing falls on Waneda Gibson, who lied about being raped and kidnapped and was paid well for her lie, there is another person tacitly blamed in the story, Banks’ original lawyer who advised him to cop out to a plea bargain, even though he proclaimed his innocence.  He faced 41 years if he lost at trial, and was sentenced to six years, the max, under the plea, after which he was required to wear an ankle monitor and suffer the indignities expected of a convicted rapist in perpetuity.

Initially, Brian’s prospects appeared to be looking up: DNA samples from the L.A. County Sheriff’s Office came back negative – as he insisted they would. Unable to make a million dollar bail, Brian waited for a trial for a year behind bars.

As his day in court approached, Brian says that his lawyer feared that he wouldn’t get a fair trial, based on his age, size & race. So she, an African-American herself, convinced Brian to plead no contest to a crime he insisted he didn’t commit.

His plea meant he’d avoid a possible 41 years in jail, but he was agreeing to a deal that included a sentence of anywhere from 18 months to five years, and Brian received the maximum.

“He got bad legal advice to take the plea,” said Justin Brooks of the California Innocence Project. “The attorney should have taken it to trial. I can’t imagine not taking this case to trial. [Gibson] had so many inconsistent statements.”

“The system failed Brian,” Brooks said plainly.

Brian quickly figured out the same thing. “My mom sold her house, her car and borrowed money from family for the lawyer who represented me in this case,” Brian said, “and all that got us was a plea bargain … and that plea bargain destroyed my life.”

Not the founding father, but the Public Defender of Kootenai County, working out of beautiful Coeur d’Alene, Idaho.  Like his namesake, he was a legend, running the best damn public defender office in the state, one that had never lost a defendant to the executioner.  And it finally cost him.

The Kootenai County commissioners unanimously passed a resolution on Tuesday to end his term this fall.

“It’s absolutely a termination,” Adams said.

Adams said the termination notice comes three weeks after he made a formal complaint against Commissioner Jai Nelson, saying she had allegedly harassed him since she joined the board. The notice comes two weeks after Adams, 59, told Commission Chairman Todd Tondee that he has cancer and will be undergoing chemotherapy and will need a day off each week for the treatment. Facing the loss of his health insurance is scary, Adams said.

It will be personally devastating, given that he’s suffering cancer. It will be institutionally worse, given that he ran an exceptionally effective office.  Adams learned that “his services were no longer needed” in a one-line memo, which he called “shabby.”  That seems like a nice way to put it. Disgraceful seems more appropriate.

The official explanation for Adams’ unceremonious termination is, as government’s so love, a study.

Nelson said the commissioners are going to do a “comprehensive study” of the county’s public defense system. Setting an expiration date for Adams’ services is the first step in that process, she said.

“He may be reappointed,” Nelson said Friday. “Periodic evaluation is something that’s part of the commissioners’ duty.”

After all, when something is working well, doesn’t that demand a study?  Particularly when the person announcing the study is the same person against whom a harassment complaint had been lodged a few weeks before.  Of course, it could very well be accurate, that a study is needed to figure out why the public defender is doing so well. Government can’t run an efficient criminal justice machine when the public defender keeps getting in the way.

And as day follows night, the excuses follow the explanation.

Nelson said the county hopes to complete its study by this fall. At that time, it’s unlikely the commissioners will choose to reappoint Adams.

“They’re just going to put somebody in there who they think they can control,” Adams said.

“These terms aren’t meant to be indefinite,” Nelson said. “People don’t own these offices.”

It’s true that political appointees don’t “own” their offices, but people who do their job well, extremely well, are usually the ones that get to stay in them.  In a rational world, anyway.  But then, doing a job well is a matter of perspective.  The staff in his office rated John Adams’ job performance well, giving him 9 to 10 on a ten scale for his various administrative functions. Some just gave him 10 across the board. He was deeply admired by his people.

Nelson, the accused harasser, didn’t think as well of him.

In a Sept. 30 report of Adams’ job performance, Nelson wrote: “The relationship between you and the board has continued to deteriorate over the last year and there have been several instances where you have communicated with the board members in an angry, disrespectful and unprofessional manner.”

She said he needed improvement in budgeting, “respectful communication,” following “board directives,” attendance, and “timely response in communicating issues and concerns with a concerted effort at internal resolution of conflicts.”

She graded him a “6” in “job understanding” on a scale of one to 10. He got a “5” in job performance, “6” in productivity, “6” in dependability and efficiency, and “3” in cooperation. His overall score was “5,” putting him in the “marginal” range, meaning his performance requires improvement and he needs more than normal supervision.

There is certainly a problem when a public defender, an appointee of a local political body made up of very important people, is accused of the inability to communicate with those very important people except in an “angry, disrespectful and unprofessional manner.”  Then again, when the public defender has been communicating just fine for the past 17 years, and the problem suddenly arises, maybe the very important people have the problem backwards.

Or maybe the complaints are about the wrong problem. John Adams was universally respected by the bench and bar, and his only detractors happened to sit on the board that thought he worked for them.  As the public defender, he thought he worked for the men and women of Kootenai County he was appointed to serve.  He did so with distinction, with honor, with zeal.  He fought for their rights in court, and for the resources to serve them before the tightwads who couldn’t imagine why they should squander money on poor criminals.  Most of all, he didn’t ask “how high” when directed to jump.  That’s downright insubordination.

The article in the  Coeur d’Alene Press offers a lengthy list of people praising John Adams, as lawyer, as public defender, as an honorable man.  Coming on the heels of Gideon’s 50 birthday, when so many opined that the tide is turning, that people are coming to realize that innocent people get convicted and the public defense function may be the only thing that stands between them and a lifetime in prison for a crime they didn’t commit, this offers a very different, very ominous message. 

They ought to build a statue for John Adams in  Coeur d’Alene, Idaho.  Instead, he’s been hung out to dry, cancer and all, for doing his job too well. Believe in happy things all you want, but this is how fragile the defense of the accused can be, a one-line memo way from termination at the hands of a hater.