Wednesday, August 30, 2006

False Confessions

First, let me say, I try not to watch too much news about legal matters. I also watch no legal shows- because... I live the life. I don't want to go home and "unwind" watching something I did for 8 hours today- I want to watch Antiques Roadshow, or old movies.... Plus, its kind of distracting when I start yelling at the TV because someone did something stupid or irritating.

But, I got sucked into... I think it was Hardball? With Chris Matthews.... And there is this jackass on there spouting his (in my opinion, idiotic) opinion the the DA in Colorado was incompetent because she had not illegally obtained DNA from Karr prior to having him extradited to check against the DNA they had. That just irritated me. The man essentially confessed in the emails, and he waived extradition, and she tested him appropriately- trying not to muddy the case with illegal/unethical/unconstitutional garbage- she, it seemed to me who has not in fact read any actual court transcripts, acted straightforwardly and appropriately in the way she dealt with the man.

But that's not the subject of the post. His false "confession" has amazed some people. I remember being very skeptical of our legal system's insistence that people don't confess to crimes they didn't commit when I was in law school. At the time, I didn't have much experience with such things, so I let it slide- but it just struck me as not very realistic to think that people don't confess to crimes they didn't commit.

But now, I've been practicing for 6 years plus- and I'm here to tell you: PEOPLE CONFESS TO THINGS AND PLEAD GUILTY TO THINGS THEY DID NOT DO ALL THE TIME. For all kinds of reasons.

I have had kids confess to crimes they didn't commit because they thought they'd look cool. I had one girl who tried to confess to crimes she didn't commit so she could live at the detention facility instead of with her parents. (That one had a happy ending: I got her the help and support she needed and her parents the counseling they needed to be decent parents.)

I have had men confess to being the father of a child because they thought it was the "right thing to do" even though they KNEW they couldn't be the father. I had one man confess because he knew he couldn't have children, and this was his one opportunity to be a father.

And I have had a number of clients who have confessed to crimes they didn't commit for lots of difficult reasons. Maybe they didn't do what they other person said they did, but they did something worse. Sometimes, they want to look cool. Sometimes, boyfriends or girlfriends pressure them. (Example: I had a client arrested for "filing a false report" with police. She reported her car stolen, It turned out her boy friend's cousin took with car with boyfriend's permission. She did not recognize the name when police asked her about it because she only knew his nick name, not his real name. Boyfriend was too afraid to tell her the truth at first. She plead "Best interest" over my objections because Boy friend and cousin "had to get to work" and "they'll pay the fine and costs anyway." Yeah, but its YOUR record.)

A lot of Hispanic people confess because in their home countries you don't get a fair trial and they're afraid of the consequences if they fight it. Or, they're illegal and its not their name being ruined.

I know we can't babysit everyone and make sure they aren't lying about confessing or pleading guilty, but prosecutors need to use the objective evidence they have. 25 years ago, Karr would be in prison and everyone would think the killer was put away when in reality s/he is still out there. I know forensic evidence can be expensive to test, and we can't protect idiots from themselves, but I propose that criminal laws be changed to state that all forensic evidence must be tested and presented to the Defendant and the Court whether inculpatory or exculpatory- because the job of the prosecutor is to pursue the truth, not get convictions. Naturally this wouldn't cover all cases, because in many cases there is no forensic evidence, but it would serve to make our system more objective which is always a good direction to go as far as I'm concerned.

Have a great labor day everyone,a nd I'll write again next week!

Wednesday, August 23, 2006


Thanks for the comments everyone, and I'm sorry it took me so long to post them. I was vacating... and yes, the rumors are true- getting married. I promise to write more often now.

Legal Conundrums...

I've decided to start a new section I will call "Legal Conundrums." These will be fact patterns I or other lawyers I know have had to deal with. I hope that you, gentle readers, will find them interesting. Listening to people's stories and pulling out the relevant legal material and applying it to the correct procedure, is the true essence of legal practice. I love the quote: "There is much here that is true and much that is relevant. Unfortunately, that which is relevant is not true and that which is true is not relevant.

So, fact pattern for the day:

Man and woman are married. Woman and woman's mother tell man that woman owns a piece of property, which is right next to momma's property. Man is a contractor, so he builds them a house on this piece of property. A nice big fancy home. He's a contractor so he doesn't have to borrow any money, and he's only got a 4th grade education, so he never even thinks about who owns the property. Besides, his wife told him she owned it, and they're married so its all good.

Only now, 5 years later, she wants to get a divorce.

And of course, she wants the house.

(Note: Alabama is an "Equitable division" state for marital property.)

It turns out that woman doesn't own the property. Her momma does.

Now, the question is, how do you bring Momma, a non-party, into this Divorce case?

Property (in this case the house) affixed to the land becomes part of the land, so he can't just go in and truck "his" house out of there. If he built it on momma's land, its Momma's house. (and that's a pretty settled bit of case law.)

So far I've come up with: Detrimental reliance, which would work fine to sue momma separately... but may fail because he did no review of the situation and doesn't help in the divorce case.

If woman did own the property but transferred back to momma after the house was built then that could be brought as a fraudulent transfer which would be a necessary ancillary proceeding...

You could do a request for admissions including something about the home and its necessary land being part of the marital estate subject to division by the court...A request for admissions is when one party sends a list of statements to the other party and unless you object to them within 30 days they are deemed admitted.. So surely her lawyer will nix that...

He could get her on tape saying she had done it just to defraud him, but that's criminal (Theft by deception) with a civil edge (suit to recover fraudulently acquired property?) I guess it would effect her culpability in the divorce, but still, the divorce Judge would have no ability (jurisdiction) to issue any order with regards to a non-party's property... And I don't think there is enough other property to make up for the house.

So, when the other lawyer told me that the couple was considering reconciliation, I said that was his best bet: get back together and get his name on the deed. : )

Wednesday, August 02, 2006

Reality and You

I deal with a lot of people who just don't seem to get how the world works. These are some of the things I would like to say to them:

1. Life is not fair. Life is random, arbitrary and capricious. Just because someone else did what you did and did not get arrested is not a defense to your doing it.

2. TV does not reflect reality. I know on Law and Order a murderer got out on bail within 24 hours, and I know on the evening news you have heard about child molesters getting out on bail, and that your best friend's step daughter's Aunt's husband got out on bond after only 5 hours when he beat the shit out of her- but that does not mean that your beloved family member who is on probation for stealing steaks from the supermarket and a riding lawnmower from Wal-Mart and now he was arrested trying to break into a hotel room is going to get a BOND SET BECAUSE HE WAS ON PROBATION AND WHEN I SAID IF YOU GET ARRESTED AGAIN IN THE NEXT TWO YEARS YOU'RE GOING TO HAVE TO SERVE THIS SUSPENDED SENTENCE THAT'S WHAT I MEANT.

3. It is not entrapment when the police see you driving and follow you and arrest you for driving while suspended for the 18th time because they know your face and that you shouldn't be driving. That is called "good police work." Likewise, sitting across from the liquor store and checking to see if you put the booze into the trunk instead of the seat beside you and pulling you over as you leave the parking lot is NOT entrapment.

4. Likewise, it does not somehow get you off if the police followed you for 5 miles because they suspected you of drunk driving and didn't pull you over right away. I'm sorry this makes you paranoid and thus drive badly, but please, please don't make me present this as your defense to the Judge.

5. If you are sober blow in the stupid breathalizer. If one more person tells me they refused to blow in the breathalizer although they had consumed NO alcohol I am going to LAUGH IN THEIR FACE. The breathalizer is not a tool of the running dog lackeys of the white oppressive partiarchy. It is a machine. It has no political agenda. Sometimes, if you blew a .09 and they didn't calebrate the machine, I may can possibly cast enough doubt that a jury may let you off on appeal, but the Judge is going to convict you in the first go around.

6. People judge you based on your clothes. I know you know this because you had to have the FUBU pants draped around your ankles, the Nike kicks, some roman letters tattooed on your neck, and the Gucci sunglasses. You put those clothes on to look cool. Quit complaining that you are getting no respect when you dress like a freaking thug. You are a skinny white boy from the county- I triple dog dare you to go to LA and walk around dressed like that. Poser. And the same goes for you chickie- if you dress like a pole dancer, we're going to think you're a pole dancer. I know this is "wrong" ok, but I'm not talking about right and wrong, I'm talking about reality and if you want to be a one woman force for changing people's perceptions that people who deliberately display that much sexuality are probably whores, you're going to have some difficulties so don't get all snippy with me when I tell you that outfit in inappropriate for Court.

7. If the officer asks you if he can search your car and you say yes, then the search is legal.

8. Playground rules do not apply to real life. I am sorry s/he did that to you, but that in no way authorizes you to "get her back."

9. This is misdemeanor Court. The chances of you having had your constitutional rights violated are one in a million. The chances of me getting evidence suppressed based on constitutional arguments are another one in a million. If you want me to make that argument, you should probably hire a Court reporter, a private attorney and a shrink because you will have to appeal to the supreme court and it will take 5 years plus to get there.

*** For other attorneys: The current Child Support laws have been in place for 15 years now. I am sorry I do not understand your legal argument as to the unconstitutionality of the establishment of paternity and child support and why this violates your client's civil rights, but I do know this: you have to raise affirmative defenses in your answer so I can prepare to rebut them and don't get all huffy with me when you didn't even file an answer and as you begin to open your big mouth to show off for your client, I nip it in the bud because YOU ARE AN IDIOT. Do you really plan to appeal this all the way to the Supreme Court? Do you reaaaaaaly think you're gonna win? That the Judge is just going to say, "Hey, lawyer, you're right! The 10,000 paternity cases I have handled in the past 10 years are all moot because they were unconstitutional and I've just been waiting for someone to make this wonderful argument!"

Ok, here was his argument: 5th amendment says no taking of private property for public use without just compensation. If DHR collects child support and pays back the Aid for children paid on behalf of the State with it then they are "taking" private "property" for "public" use and not compensating the person whose money was taken. Dude, I hope you failed Con law because you understood NOTHING.

10. Not guilty by reason of insanity does not work the way it does on TV and it does not work for civil cases. "I'm not that child's father because I was insane when he was conceived" is not a defense. "I don't owe the money for the credit card because I was crazy when I took it out" is likewise not a defense." AND FINALLY, MY PARTICULAR FAVORITE, "I'm not guilty of lewd behavior in a public place because I must have been crazy to have been going down on that guy in a parking lot."

Tuesday, August 01, 2006

Times I'm glad I'm not a Judge....

The other day I filed a motion for Bond on behalf of my client. It took the police 3 months to realize she was already on probation when she was arrested again- so when they did they arrested her for probation violation even though she had already been to Court and had a trial date set and all of that. In the interrum, she had given birth to a baby. I submitted a good motion, pointed out that she had returned to work a mere 5 weeks after giving birth, that her previous plea agreement contained restitution which she had been paying and so forth... Judge Denied me.

That night, her mom, who was looking after her other children too, rolled over on the baby who was sleeping in bed with her.

It was a tragic accident. Judge had no way of knowing it would happen. But still.... what if.... it just made me glad I wasn't a Judge.

Of course, he had to be thinking about the bad things she might do if he let her out...