So, some of the last comments have left me steaming. It was suggested that maybe I was trying to write in secrecy. Like I would not realize that in a town with, maybe, 20 criminal lawyers, I would not be read. I have been told that the DA herself reads my blog on a regular basis. Anything I say in this town is repated back to me in maybe 30 minutes. So I am not trying to operate in secrecy. There are two main points here that I need to make in response. First, the general rule is that everything I write is protected speech under the First Amendment. For all of the perceived flaws in that office, I seriously doubt that the Kenai DA does not understand that fact. She may not like it, but that is the point of the First Amendment. And I am not sure she does not like it. I mean, one way to look at it is that my main criticism is that she is too hard on criminals. I seriously doubt the average person finds that a flaw. I find it an issue because I am a criminal defense lawyer. The person who left the comment is apparently an attorney and should understand these issues. The second issue that was raised was, notwithstanding the general rule, I need to be careful because I am a lawyer and have confidences to protect. I agree. However, there are some major differences between the example cited and my blog. First, I have not engaged in personal attacks. I do believe that the Kenai DA overcharges people. I believe they are too hard at sentencing. But I have never engaged in personal attacks. I am aware that they all have a job to do. I also believe that they feel that they are doing it properly. I disagree with them but that is my right. Some have suggested that I should remain silent. It would be better for me and my clients. I have never been one to remain silent in the face of perceived injustice. The DA has not, to the best of my knowledge, complained to the Court, the Bar or anyone else about my blog. Nor would they have grounds to. I do not talk about specifics, I do not reveal any confidences nor violate any protective orders and I do not engage in personal attacks. Despite my concerns, I am friendly with several of the DA's over there and I hope that remains. The poster also suggested that my clients would be upset to know that I am posting my criticisms. Wow. Despite the fact that he or she is apparently an attorney, that suggestion shows a fundamental misunderstanding of what it is to be a criminal defense attorney. My clients may be upset if they feel I am a lackey of the State or friends with DA's or unprepared to unqualifed for the case or a million reasons. But in almost 10 years of practice I have NEVER had a client criticize me for attacking the DA as being too harsh. Too cruel on a case. Overcharging. I have never even heard another criminal lawyer say "wow, my client is upset for disagreeing with the DA". It seems that is our job. And everything I post I would say (or have said) to the DA. I have said to her face that I think she overcharges. She disagrees. Good. It is an adversarial system. The poster also suggested that I might get in trouble for "whining" about other lawyers and/or bragging about my trial skills. I am not sure that I have ever whined about the particular DA's. Hell, I was beat in the last trial and the DA who tried the case for the State obviously did a good job. Again, despite the fact that I disagree with they way that office approaches cases, I do not disagree that there are some talented lawyers over there. I enjoy my working relationship with most of them. As for bragging about my trial skills, I have always done so in a light hearted manner. Although I think I am a good trial lawyer, I pretty much need to think that. The poster has obviously never practiced criminal defense law. Let's see. Many of our clients are guilty of something. We lose 9 out of 10 arguments. Many of our clients are ungrateful, even when we do win. If I can't find my own source of self esteem, I won't last very long. Can I be out-lawyered? Absolutely. Many can't out-lawyer me but some can. If it is offensive that I think I am a pretty darn good lawyer, well too bad. Despite the fact that I lost the last trial, the Judge took the time to call both counsel to the bench and say how impressed he was with both of us. He also took the time to tell my Supervisor that I did a good job. So, I am not worried that the DA could go the Court and complain that sometimes I pat my own back. If you have ever been a Public Defender it is a skill you had better learn. I have walked clients on directed verdicts of acquittal in felony cases who didn't even say "thank you". Part of the job. So, in sum I am very aware that by posting I am making my thoughts public to the world. I KNOW the DA reads them. So what? Even assuming my criticisms are true, what is she going to do? Over-charge my clients? Make crappy offers? I already complain about that. Again, despite my criticisms, I seriously doubt that my blog would make the DA act unethically. She has a duty to prosecute those whom she has evidence beyond a reasonable doubt. She obviously feels they are doing that. I will continue to post my fears, thoughts, criticisms and hopes for the world. I have said this to this particular poster before (who is doing an excellent job of making my blood boil): if you don't like it, you can leave. I am doing nothing wrong. The DA is aware of my blog. My employer is aware of it. I refuse to be bullied into silence.

Comments

Anonymous said…
I can see where Anonymous is coming from, but I can't see the point of what you are doing. Talking about how the DA overcharges cases is one thing (show me a DA's office that doesn't overcharge at least certain types of cases). It's not likely to result in much more than the DA taking a special pleasure knowing that her approach to fighting crime is pissing off some defense attorney, and what DA wouldn't like that on his or her resume?

But talking about your strategies for specific cases prior to trial, and naming the client for whom you are developing those trial strategies? Bragging about how the case is "very winnable" then losing on all counts? If I was the client, I'd have a copy of your posts about my case attached to my motion for a new trial based on ineffective assistance of counsel. After all, you've told the world (or at least that small part of it that reads your blog) both that it is winnable and that I'm innocent, then you lost. The fault must therefore be yours and not the case against me, right?

And what is the purpose of writing your trial strategy in a blog you say you know the DA reads regularly? (You say in your post on the eve of trial that the prosecutor will say the five different statements of the witness are innocent mistakes but you'll say they are lies.) Man, that goes into my motion for a new trial, too. After all, how is that different than you going out for drinks with the prosecutor the night before trial and telling the prosecutor how you are going to win the trial? At the very least it reminds the prosecutor to spend more time prepping the witness before she takes the stand. If I was the prosecutor I'd even show your post to the witness to make sure she understood the situation.

I do have some questions, though: if you had a "very winnable" trial and an innocent client, how is it that the client was found guilty? What happened in the trial? You've come this far, why not give us some freaking insight? It doesn't all have to be bragging about your trial skills and how the DA overcharges cases and how winnable a case is before you ever swear in a jury. Did you screw up? Was the prosecutor unethical? Did the judge improperly allow objectionable testimony or evidence?

One other question: Is your client looking at prison? Because, frankly, if that is the case, then for you to say the downside of going to trial is all the extra work you have to do to catch up at the office answers all of the above questions: it's all about you, and your client be damned.
First things first. You are correct about complaining about overcharging. In fact I indicated a while back that I would not do it anymore. It is ineffective and the problem was that my expectations were different. I was perhaps foolish but I expected things to be different here.
I was wrong and I admit it. Secondly, I wasn't "bragging" that the case was winnable. You misread the context. I was lamenting that it was winnable. Since you are obviously an attorney you know that some cases appear more winnable than others. That does not equate to saying the client was innocent. I did, and will not, comment on that. Rather, that the state of the evidence suggested the jury might not conclude that he was guilty. I have considered that the trial might have been lost due to my error. A tactical decision was made with the consent and approval of the client that may or may not have made a difference. A different decision may have resulted in a "Not Guilty". I don't know. I can also see how at first glance I was revealing more than I should. Certainly I spoke more openly than I usually would. However, there is information that you are not aware of. One of the decisions that was made was to reveal a majority of the defense to the State before trial. This was done in order to resolve the case. Because the State's case hinged on one witness, and only one witness, it was decided that if we could convince the State that she was not telling the truth, that we might be able to resolve it short of trial. Hence, EVERYTHING that was posted was old hat to the DA. In 20/20 hindsight, one could conclude that was a mistake. However it was one made after consulting other attorneys and the client. Nothing novel or privileged was revealed by my post and quite frankly, I was hoping that some of my legally trained readers might give me some advice. Since you are obviously an attorney, and took the time to leave a long response, it would have been more helpful for you to advise then rather than criticize now. How was a winnable trial lost? Quite frankly the witness was far better in person than on paper. I am certain that has happened to you. I have won "hopeless" trials and lost "winnable" trials based on that very difference. I can't say I screwed up and I can't say the DA was unethical (I won't comment on the propreity of any rulings). Certainly the DA was prepared for the Defense arguments but let's face it. When you have a one witness trial it is no surprise that his or her credibility is THE issue. I am not sure that my announcing that fact ahead of time gives ground to IAC or to a motion for a new trial. I am certain the DA would oppose both motions. As for prison, that is yet to be determined. As you must know the decision to go to trial belongs to the client. He was properly advised of his rights and his options. Finally let's talk about who you are. I have my ideas. If you know me than I am surprised at your accusations. This blog is the product of my angst. To suggest I don't care about mt clients shows a fundamental misunderstanding about me. If you don't know me, then as somone trained in the law, I am surprised at the conclusions you have jumped to so quickly. Have you lost a trial you might have won? Won a trial you might have lost? No, such conclusions by a trial lawyer is not "bragging" but a frank assessment of the facts mixed with hope. I will not be so open unless the information has already been revealed. In the future, your help ahead of time would be appreciated. Criticism now mixed with allegations of incompetence are less helpful.
Anonymous said…
I posted "i know you're bummed that the person was convicted, but was he or she guilty of the charges?" Your response was, "That's not the issue." That is the issue. A trail is a search for the truth. I doubt your ego will allow you to take a step back and see your own "Double Speak".
This comment has been removed by a blog administrator.
First of all, no it is NOT the issue. If it was I would only represent the innocent at trial. I don't care if they are guilty. That is hardly ego. You think I am a public defender because I have a big ego? Wow. Secondly, do you think I would post a comment that said to the world that my client was guilty? I don't think so. I might admit that to an attorney in my office but sure as hell not to you. As an attorney, I am sure you understand that. I am sorry you feel that the trial process is about guilt. I don't see it that way at all. It is about proof. That is all. That is hardly double speak. Have you ever practiced criminal law?
Anonymous said…
Best wishes to Alaska PD, J, and the incomparably beautiful Kadee!! Those cheeks! That should be your xmas card for next year :)

ciao ciao ciao
Anonymous said…
wow, who ran your mom off? That wasn't very nice. All she did was say how much she loved her little grandbaby and day to day stuff. I thought it was cute. And normal. I hope she comes back and comments again and again.

You keep up the good fight.
I'm not sure who ran her off but she refuses to post any more comments. I have told her she can but it is too late in her mind. She thinks J did it but I know it wasn't her. It is sad really. I think this situation needs to be the subject of a future post.
Anonymous said…
I read the comments of Anonymous and I just had to jump in. I take issue with keeping silent regarding DA overcharging. To hell with the random DA who may read this blog and take "special pleasure". That DA is not the audience. The public at large should be made aware of the fact that defendants are coerced into taking a plea for fear of going to trial and being wrongly convicted of crimes they did not commit. That is the desired effect of overcharging. The other item the public should be aware of is the grievous waste of taxpayer dollars having a trial in a case where the defendant was unjustly overcharged. In Kenai, I believe the acquittal rate is at 60%. With a properly charged document, a DA should NEVER lose a case. The third item the public should be aware of is that overcharging leads to the possibility that, should an intrepid client choose trial, they may very well lose and stand convicted of crimes they did not commit. And if you think that this does not happen, I would direct your attention to Tulia, Texas, where the jury convicted people not because of the wealth of evidence, but because the defendant "looked like he did something wrong". Not to mention the possible racial motivation. Those cases are now being overturned.
The other point I had to take issue with is the "search for the truth" comment. While that is certainly true for the prosecution, as that is their mandate, that is not true for the defense. It was made like that by design. The reason is that the deck is inherently stacked against the defendant. When somebody is being accused by the state, backed up by a number of spiffy, crew cut, smiling officers, and a oftentimes pitiful accuser, regular people naturally feel aversion towards the accused. That is why in several instances in the evidence code, certain evidence that may be deemed too prejudicial against a defendant are not permitted. Along with that is the fact that the defendant need not present any case at all...no rule forcing his/her testimony. Thus,in our system, the only obligation regarding "The Truth" that the defense has is to make sure to take the prosecution to task to make sure THEY are properly pursuing "The Truth".
I believe Public Defender has adequately educated you on Inaffective Assistance of Counsel, so I'll go no further.
k-good-row said…
DA's overcharge the world over. Then they turn around and offer what your client will be convicted of after trial. And then they wonder why we say such things as, "Let's take it to trial". If they want to resolve a case without a trial then make a damn offer where my client actually gets something. By pointing out the overcharging policies of your DA's office, you are alerting the public at large to the waste of tax dollars that we see on a daily basis. Keep it up.
Thanks k-good-row. I, of course, agree whole heartedly. I will continue to complain. You know is so refreshing? People here on the street know the DA's name and often complain about her policies to me. That NEVER happened in California.
Anonymous said…
Kenai could use a culture change. Some objective judges and a new DA. Lots of things the average citizen of Kenai doesn't know about. I wonder if they would even care. Don't see too much critical, deep thinkers out there.


How in the hell could the DA , you know who, still have a job?



There's a laundry list of issues conerning the troopers and DA.

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