Saturday, March 2, 2013

Kiddie Crime Wave

Forget the terrorists, the biggest threat facing America today is kids . . . being kids.

Some of the things we could do as youngsters that would get us locked up or thrown out of school these days:

I don't know about you, but I feel a whole lot safer knowing our police and school officials are cracking down on these scofflaws.

Wednesday, February 27, 2013

You hate me, but that's OK. I don't mind. Really.

Cops hate me. And I love it.

A familiar scene played out in the courtroom yesterday. The prosecutor had just finished a "by the book" (i.e. "boring")  direct examination of a uniformed police officer, a K-9 handler. I got up for my cross-examination; watching the officer every step to the podium.

Wait for it . . . wait . . wait. . ah, there it is!

The officer stiffened in his chair. The jaw clenched. His eyes shot Taser prongs at my testicles. The sneer of disgust let the whole courtroom know just exactly what he thought of me: hatred. Pure, unadulterated, vile, some real "If I saw you were drowning, I would not lend a hand" kind of hate.

I couldn't have been happier. I had already won this cross and hadn't even opened my mouth.

"Good afternoon Officer," I said cheerily, placing my thick folder on the podium. The file was a prop; I wouldn't be needing it.

"Afternoon Counsel," he begrudged, like his Momma was making him say it.

I wasn't sure until this moment which cross style I was going to use; "Bulldog," "Sympathetic Friend," "The Professor," "Moral Outrage," all have their uses but for this cross I decided to go with "Columbo."

"I'm sorry, you said just a few minutes ago that your K-9  was a "sniffer" dog and a . . . a what kind of dog?"

He rolls his eyes. You're an idiot, you can't even remember what I said 5 minutes ago. "A patrol dog."

Puzzled. "And I'm really sorry Officer, I guess I don't know what that means. Could you explain that?"

"He helps on patrol." Duh.

This went on for awhile, me the confused idiot asking silly questions about the attack capabilities and the viciousness of his K-9. The officer's contempt for me morphed into a I can't believe this knucklehead, this case is about a drug sniff attitude. His short, clipped responses came out as jeers.

"You wouldn't let your K-9 loose in a schoolyard?" K-9, not dog. Dogs are cute, cuddly, Man's Best Friend; K-9s are military. Vicious. They bite.

"Of course not." Looking over at the prosecutor. Can you believe this crap?

The prosecutor is a smart guy. He knows where this is going. He knows an objection won't save his witness at this point.

"So it's important for you to have strict control of your K-9 at all times  - so innocent people don't accidentally get bitten?"

"Of course."

"Your K-9 is trained to obey your every command?"

"He is very well-trained."  For the first time he smiles. He's proud of his dog. Besides, this cross has gotten way off topic. I haven't asked him a single question about the drug search. He knows I must be desperate. He's flailing; he's got nothing! The smile becomes a smirk.

I step away from the podium; my head hanging low. Defeated.

Slowly I lift my head up, eyes locking firm with the officer's. "And yet you want this court to believe that this well-trained dog - who obeys your every command - "inadvertently" jumped into my client's car before you could stop him?"

Boom goes the dynamite!

The officer's face gets red. "Well . . .  you have to understand . . . when he gets really  . . . excited around drugs . . ." he continues stuttering. His answer doesn't matter.

"No further questions Your Honor," as I walk back to my table.

The officer's hatred and contempt of me blinded him. It distracted him as my befuddled cross carefully, methodically walked him down the plank. Poor fella didn't even realize he was drowning until he was half-way down his plunge into the ocean.

He stormed out of the courtroom. Later that night his colleagues probably all agreed with him, over beer and shots, that I was the biggest dick ever.

And that's just fine by me. Because he won't learn from that experience. The next time he's on the stand he'll hate me even more than he does now. That hatred will blind him and he won't even realize the buttons I'm pushing.

And I will win that cross every time.

Sunday, February 10, 2013

The Emperor's New Clothes

I was amused this week with two stories about the public nature of Twitter; one very public, one private - both instructive about the new world lawyers in the 21st Century live and work in. 

First came the well-publicized internet battle between journalist Teri Buhl and what seemed to be every lawyer, journalism blogger and tech writer on the web. The story is well-documented by Houston attorney Mark Bennett on his excellent Defending People blog, as well on the TechDirt site

The short version is this: an attorney on Twitter, @GideonsTrumpet, noted that Ms. Buhl had posted the phrase "No Tweets are Publishable" on her Twitter profile. Gideon and Bennett pointed out that Ms. Buhl's warning is downright silly; Twitter is after all a public bulletin board, which shares information to all interested persons, both "followers" and anyone looking up Ms. Buhl's Twitter page (she has now locked her account so that her Tweets are not on her public page). 

Ms. Buhl did not react kindly to the constructive criticism lobbed her way by Bennett, the folks at TechDirt and many others. She responded with threats to sue several folks who posted her Twitter photo and through posting harsh comments on blogs and websites of those criticizing her outlandish statements; basically providing a lesson in how not to react to a PR crisis.

In the midst of this very public battle, a young lawyer relayed a story to me about a witness who was confronted with a printout of Tweets that completely destroyed, in tone and in fact, everything the witness had just presented at a legal proceeding. The lawyer had not thought to look up the witness on Twitter, thinking the witness was outside of a demographic that the lawyer believed would have a Twitter account. Opposing counsel did not make that mistake, however, and the lawyer learned an important (and probably very expensive) lesson that I'm sure will not be soon forgotten.

Millions of people are on Twitter these days, even if you're not. And if you're a lawyer and you're not on Twitter, shame on you. First of all, there's tons of information flying around on Twitter that you most likely can incorporate into your practice, one way or the other. For lawyers in private practice, Twitter can work as an effective tool in branding and advertising your services. 

Beyond that, it is absolutely critical that you understand the way your clients, witnesses, opposing attorneys, and others communicate and behave through social media. There are millions of conversations going on in the "Twitterverse," and as one unfortunate lawyer found out, important evidence in the cases you handle. Turning a blind "ear" to these conversations is not only dumb, it borders on malpractice in this day and age.

Folks like Ms. Buhl and the unfortunate witness can pretend all they want that what they post on Twitter is cloaked from public view; the rest of the world knows the naked truth. 

And you need to know that too.

(If you're already on Twitter (or take my advice and sign up today) please feel free to follow me: @coyotelaw65. I promise to followback.)

Saturday, February 9, 2013

Off the record.

Like all criminal defense attorneys, I get asked several times a week about whether it is possible to "keep this off my record." The unfortunate answer has always been "not in New Mexico." Whether it's someone who beats the charges or someone who did a really silly thing decades ago, the arrest would continue to haunt them. We have a chance to change all of that this year.

Senator Michael Sanchez (D-Belen) has introduced a bill that would authorize expungement of a criminal record under some, reasonable, circumstances. SB 294 was unanimously passed by the Public Affairs Committee earlier this week and has been passed on to the Judiciary Committee where it will likely see any serious opposition.

If history is any indicator, the bill will likely be passed by both houses of the Legislature - then promptly vetoed by Governor Martinez. Susana last year vetoed a similar bill, stating at the time that permitting expungement would "fundamentally and negatively alter the New Mexico criminal justice system."

Let's be clear, SB 294 does not authorize erasure of all arrests in New Mexico. It does provide expungement in the following limited circumstances:
  • Victims of identity theft that resulted in them being improperly charged with a crime.
  • Persons arrested for a crime for which they are later found not guilty or had their charges dismissed by a prosecutor or judge.
  • Persons convicted of minor misdemeanors who have stayed out of trouble for at least five years. Persons convicted of misdemeanor domestic violence would have to wait for ten years, and people found guilty of DWI, a sex offense or a crime involving minors would never be eligible for expungement.
Someone should ask Governor Martinez what is so "negative" about allowing innocent victims of ID theft to clear the wrongful charges off their record? As a former prosecutor, she has been responsible for the prosecution of dozens of people who used a sibling's identity when being arrested. When the truth came out the identity thief would be charged with numerous counts of fraud and forgery (one count for every form signed at the police station or jail). But what about the innocent victim of the ID theft? Currently there is no way to clear his good name. He will forever be branded a criminal for the actions of someone else and Governor Martinez wants to keep it that way.

I thought she was an advocate for victims?

What about others who have been falsely arrested? At least once a month I take on a client who was arrested for DWI and then taken to the police station where they blow a .02 or a .04 - significantly below the .08 standard in New Mexico. I've even had cases where a client has blown a .00! These folks are all presumptively "not intoxicated" in New Mexico. Usually a good prosecutor will dismiss the case eventually, or not even pick it up for prosecution. The client never should have been arrested in the first place, but due to an officer's grave mistake the client will have a DWI arrest on his or her record for all time.

Susana, as a prosecutor you were sworn to "do justice." Where's the justice in an innocent person paying for a cop's screw-up for the rest of his or her life?

As for the convictions for minor offenses, expungement offers a terrific incentive for folks to stay out of trouble. Only people who avoid arrest for 5 years or more would be eligible to have their record wiped clean. Isn't the overall goal of the criminal justice system to correct bad behavior and protect society from repeat criminal offenses? A person who graduates college, starts a family and is employed in a good career is a much different person at 30 than she was when she picked up a shoplifting or minor in possession charge when she was 18. Shouldn't we reward her for her good behavior?

Expungement would not be automatic. It would require the person to petition a court and have the situation reviewed. If granted, the original arrests would be erased from all publicly accessible databases and "treated as if they never occurred."

The criminal justice system in New Mexico would not be "fundamentally" altered by authorizing expungement. Repeat offenders and guilty, remorseless offenders will still have to own up to their criminal past.

Expungement in limited circumstances would only have a fundamentally positive impact for all New Mexicans. I urge everyone to contact your legislator and urge passage of SB 294 and, if necessary, urge for an override of Goverrnor Martinez' expected veto.

Thursday, February 7, 2013

Docket Call

Criminal defense lawyerin' is becoming almost as dangerous as crab fishing on the Bering Sea. Man who punched own lawyer is convicted | |

Every parent of a five year old in America can relate. Mom displays gun, chambers round at Chuck E. Cheese - CBS 5 - KPHO

Hell hath no fury... Police: Woman attacks ex-fiance's girlfriend in bed | Volusia County News - WESH Home

A: $142. Q: "How much is the fine for the seatbelt violation that cost a San Diego Deputy District Attorney her career?" Ticket-fixing case against prosecutor starts |

Harry Houdini is alive and well in San Jose. Arrestee escapes in police minivan | Crime Scene | an blog