And now I've got "Enter Sandman" stuck in my head...

...Thanks, Kelly.

I'm looking back on the last thing I posted, and I realized that I really don't pay much attention to this blog anymore. It ain't dead -- not by a long shot -- but I'm too tired to really give it the attention it deserves. Actually, mostly too tired to censor the shit that I'm supposed to censor so that the half-dozen daily anonymous readers who find my blog while looking for bannister heights and dwarf porn can't figure out who I am or where I live, but I digress. The important topic of the day is houses.

The pictures of Kelly's house are spiffy, and I'd love to see the floor plan of the damned thing. This is because I'm fed up with the rent I'm paying, which is astronomical, and think it would be far more worthwhile to plow those hard-earned kilobytes* into real property that's entirely within my own control. Control! I like control -- control to paint the walls something other than the peachy-brown that my current walls are painted; control to....well, I don't know what else I would do with a house, because I don't exactly have alot of spare time, but it would be nice to at least TRY to grow some tomatoes, or plant a tree, or at least pick up the trash from the neighbor's can that blew into my yard before I mow it (the landlord's kid has a very blitzkrieg approach to mowing).

But I don't know if I can handle being master of my own domain. Short of building it myself, it's going to be awfully hard to find something I really like. I'm a picky person. This is why I'm not yet married. Oh, and the fact that I don't like people. But I digress, yet again.

Shit. It's late, and I have to WoW before I hit the sack. But those who read and would like to comment on the wonders of homeowning, please do. I'd love to know what other people have to say, even if it's just "my experience sucked, and now I live in a van down by the river" (van down by the river...that's an option I hadn't considered)..

Now I WoW.

*N.B. I say "kilobytes" instead of "dollars" because I work for the state of Missouri, which apparently requires direct deposit, so my paycheck is nothing more than a few kilobytes of data transferred from one bank to another. This gives rise to an entirely different blog, one which I don't have time to deal with at the moment, but will probably address this weekend if I ever wake up.

"Prosecutor" is not another word for god.

No, really, you're an elected official, not creator of the known universe, and that doesn't entitle you to anything other than that big fat stupid paycheck the citizens of the county don't realize they're paying you. It certainly doesn't entitle you to be a flaming bitch about everything. I don't answer to you, I answer to the judge...and if you can make an argument to him as to why YOU deserve the "good" copy of duplicate forms instead of defense counsel or the defendant, then I'll consider giving it to you. But until the judge tells me I have to bow and scrape to your every whim, you can kiss my fat Irish ass.

And while I'm on the subject of prosecutorial pet peeves, let me also mention that you're not doing me any favors by making shitty offers. Don't act like I should be in awe of your benevolence when you offer to send my client to jail on a misdmeanor. Thirty days in jail is not a good offer unless it's followed by the words "credit for time served" and anything that results in a conviction on a first offense is just asinine.

So in sum, let me remind you that you, Mr. Prosecutor, are not some higher being by virtue of having been elected to your current position; you are your constituents' bitch. You have to answer to the voters, brother, so you might want to keep that ego of yours in check if you're thinking re-election...

I fought the law...

...and, whatever.

I haven't been posting lately because I've been hella busy with work. I spend enough time there as it is; I just don't feel like talking about it outside of work, ya know? And I'm not so inclined to talk about it now, mostly because I just checked my readership and discovered a hit from somewhere perilously close to home. Ooh. As much as I don't think I've ever said anything here that could be held against me (or would hurt me much if it were), I still don't think I like people within the state looking over my shoulder. *shudder* If it continues, I might have to actually DO something about this blog, I suppose...

On another note, my reader-stalking (those who are savvy enough can figure out exactly what I'm talking about) has lead me to discover something quite amusing: the majority of the hits to my blog are by people looking for things like "legal requirement for bannister height" and "average bannister height"...but my favorite recent hit was from a random person googling "what is the legal height for a dwarf person." Oh, dear me.

TO posit an answer to the question, I don't think there IS a legal height for dwarfs. I mean, what, is the American government really going to waste it's time putting constraints on who can and can't call themselves a dwarf? Wait, yeah, it probably would...but that's not the point. The point is that right now, at this very moment in time, there is no LEGAL height requirement to be considered a dwarf. Of course, under the ADA people who fall below a certain height (4'10") are entitled to accommodation because said height is considered a disability, but they're not automatically dwarfs. I think the...erm...whatever association interest-group type thing for little people is called puts constraints on its membership, but they're a non-governmental entity...which brings me to another thought.

I had a discussion today with an individual regarding whether the State would have to make reasonable accommodations for persons in their employ who have necessary religious observances that fall during the week. For example, Muslims have Friday prayers that could conflict with one's work duties if one has regular work hours that include Fridays. Said individual insisted that if a person had conflicting work and religious obligations, that person could be summarily fired for not meeting the core job requirements (i.e. work hours). I say free exercise is a fundamental right, interference by the state must pass the strict scrutiny test, and that reasonable accomodations must be made to avoid first amendment violations.

On first blush, it appears that I'm wrong. The latest line of cases has held that a religiously neutral law of general applicability doesn't raise Free Exercise issues (see Employment Division v. Smith), and the analogy in the aforementioned sitch is that the rule (working Monday through Friday) is religiously neutral and generally applicable, ergo the observer of weekday religious imperitives is screwed. Yeah, yeah. In Smith, the challenge was to a state drug law. A law that was generally applicable to the entire population of the state of Oregon. In the situation proposed above by yours truly, the challenged state action is the enforcement of an employment rule -- it affects only those working for the state, and only in a particular context -- and is more analagous to the situation in Sherbert v. Verner, where the Court held that the state could not withhold unemployment benefits from a woman who refused to work on Saturdays despite the law requiring persons collecting unemployment to take available work.

The difference as I see it is that even tho the Court didn't put it this way, the burden in Smith is closer to passing strict scrutiny than the other laws: arguably, there is an important state interest in preventing the use of certain substances, religiously or recreationally, that is completely undercut by selective enforcement. On the other hand, when a person is able to otherwise fulfill all of the requirements of a particular job or state benefit, there seems to be little state interest in requiring them to do so within particular hours. Allowing an individual to be off on a given day of the week for religious observance doesn't undercut the ability of the state to enforce those requirements on other employees, and it doesn't necessarily impact the ability of the worshipper in question to perform his or her job in a competent manner... I think the State loses this one, hands down.

Anyone care to enlighten me otherwise?

This is me skiving off.

I'm perpetually irritated by the patriarchal attitude of certain public defenders with which I'm acquainted and the discriminatory treatment of clients that results. For example, one PD I know (I'll call him Bill) has a dirty habit of assuming that his clients are guilty of all charges until they can prove to him otherwise. This results in a certain amount of distain on his part for our peeps which his clients can absolutely sense. Bill views his clients as wayward children who need him to suss out their best interests and act on it...but the problem is, he doesn't listen. He makes up his mind that two days in jail, for example, is a far better offer than six months of probation and that's what he conveys to his client. "You're not going to get any better than this, so you'd better take this deal right now or else."

I happen to personally agree that it's better to spend two days in jail now than deal with probation for six months, but that's not an opinion I force upon my clients. Many of them are trying to avoid jail (some of them are happy to skip supervision and just serve time, but that's another story), and my job is to further my clients' best interests...as defined by my clients.

Let me be clear: being a public defender is not about ensuring justice; that's the prosecutor's job. My role is to protect my clients from overzealous prosecution, and get them the best outcome possible according to their wants and needs. I am not their mother, I am not their sister, I am not their girlfriend, wife or friend. I am their attorney, and frequently the only thing that stands between them and a system that will happily exploit their shortcomings to its own advantage. So if my clients say they didn't do it, I proceed on that assertion, even if I'm pretty sure they're feeding me bullshit. And when my clients tell me that they're guilty and they want to plead, but they don't want the offer the prosecutor extended, I will go to the prosecutor and try to work out a better offer that my client is willing to take.

But until they tell me otherwise, my peeps are all innocent people, equal in worth to anyone else and deserving of my respect and compassion. And if you don't like that attitude, this line of work ain't for you.

Aesthetics and the Single Lawyer.

My Dearest Readers,

I need to do something about the stark, craptastic template I seem to be stuck with here. I'm not exactly the HTML Queen, tho I don't think Kelly is a pro either yet his blog doesn't hurt my eyes nearly as much... So for those of you who are kind enough to read my drivel (and I KNOW WHO YOU ARE), leave a comment or two and tell me what you like or don't like about my layout and for god's sake, make some suggestions as to how I can improve it already. Or make comments, period. I like blabbering into cyberspace about my inane opinions as much as the next guy, but I DO like feedback now and then.

Until the next time I get my panties in a wad about work,

Dubiety, Esq.

Liar, liar, pants on fire: the Stories of Bob and Mary

I have a headache. It's been raining off and on for days, and while I enjoy a good dose of precipitation, it's wreaking havoc on my sinuses. I'm also up to my ears in crap at work, and unfortunately, can't go in this weekend to sort out the chaos that is my office because I'm likely to run into my boss -- she's got a big trial starting Tuesday -- and who wants to see their boss on a Sunday? But I digress...I do that alot. Get used to it.

So as a PD, I see alot of the same faces over and over again. Our clients generally don't learn, but it gives me job security, so I usually don't bitch. But sometimes, when I go above and beyond the call of duty as it were, it's just disappointing to discover that one of your peeps has just thrown it back in your face... Discouraging, even.. And this is the Story of Bob.

I call him Bob because if I identified him by his real name, hellfire and brimstone would likely be rained down upon me by the Powers that Be...that, and I'd be breaking confidentiality AND exposing myself to being outed by the administration (the latter doesn't frighten me, as I think I may have discussed before, but it's nonetheless not something I'm eager to experience).

Bob is a young man with a history of mental disturbances and complete lack of respect for the law. He does what he wants, and while he's not actually been violent thus far (ok, he's threatened violence but that's it), he definitely has the potential to go all Jeffrey Dahmer on us. No one wants this, and when he got arrested a few months back on a probation violation, we (and by we, I mean mostly me) schemed like crazy to find a solution that would both let him out of jail and keep the general public from having to deal with him too much. To that end, we worked out a deal with the prosecutor and his probation officer that entailed his being placed back on probation with certain conditions. Needless to say, one of those conditions of probation is that he not commit any new law violations.

Now, the average client would be deterred by probation (the average person wouldn't get put on probation to begin with) and would either behave themselves or -- and this is more realistic an option -- be sneakier with their law violations. Not Bob. After sending me letter after letter from jail explaining how he's a changed man, has no desire to break the law, is going to straighten up and fly right and be a Good Boy, Bob went and got himself arrested again last weekend for DWI. I don't think he's even been out of jail a month. Yay, Bob. *sigh* Do you hear that sound? That's my hard work, sloshing in the toilet bowl... And the most irritating thing is that he's probably going to apply for a public defender again...he's going to get assigned to me because I've represented him before...and he's going to get mad at me when I tell him he's going to have to do jail time on this one. Sorry, buddy, I don't think Christ himself could get you out of it this time...

And then there's the Story of Mary. I inherited Mary from another attorney who left the office, and Mary's a sweet young girl. She has children, a family who loves her, and a very bad habit of abscounding the second she gets let out of jail. She's been sitting in jail for months because the Judge knows good and well that she's facing a couple of serious felony charges and if she gets out, she's liable to wind up in Mexico...and we all know what happens when bondsmen retrieve people from Mexico.

But I'm a good public defender, and I love most of my clients. So when something came up and Mary needed a furlough, I worked my magic and was actually able to get her one, much to everyone else's dismay. HA. I'm still proud of that little bit of lawyering, because I thought hell would freeze over before Mary would be going anywhere but to prison...but it remains to be seen if she actually made it back to the jail after her furlough was over. As much as I want to know if she turned herself back in, I'm not about to call over to the jail and ask. It's Saturday night. I have a headache. I really don't feel like being yelled at by Booking.

So we'll see what happens on Tuesday. And if she abscounded again, I'm going to get one hell of an ass-reaming from the prosecutor.

Invisible counsel and pseudo-representation.

I've become very interested in Legal Ethics lately (as well as apparently deciding blogging is fun again) and to that end, you'll probably see a fair amount of wondering about the ramifications of certain behaviors on one's professional existence. In particular, today I'm wondering about lawyers who don't show up. This came about thusly:

I went to a CLE seminar last week, and they had a round-table discussion on various aspects of ethics. One of the speakers was a local Judge who expressed a high degree of irritation with attorneys who enter their appearance in a case and then never actually appear in front of the judge. Sometimes this involves out of town attorneys who really don't want to drive three hours just to represent Joe Schmoe's son on a speeding ticket, but in my experience in our local court, this also frequently entails attorneys overbooking themselves and sending their clients to ask the Judge for a continuance because they're lawyer isn't willing or able to be present.

Personally, I'm torn as to whether this is the mortal sin the speaker indicated. On the one hand, lawyers shouldn't undertake cases that they know they can't show up for. It's crappy to ask a person to pay for your representation and then send them off to court to do the work themselves. Judges and prosecutors can't talk to a person represented by counsel, and they aren't going to talk to you even if you swear up and down that you want to waive the presence of your attorney. On the other hand, prosecutors are sneaky beasts and sometimes all a person needs is to be able to say "oh, I retained Johnny Cochran" to get a reasonable offer out of The Man. People are largely lost when they walk into a court of law, and sometimes all they need is a little handholding...

On the other hand, it's come to my attention that there are lawyers out there who base their practice of law solely on the handholding concept. That is, you pay them a fee for legal advice but they never actually represent you in court or do anything constructive. This bothers me moreso than the aforementioned absent attorney, because in this instance, you've got people who are paying good money for what they think is adequate help...and a lawyer who is taking money to break the cardinal rule of lawyering, which is to be a zealous advocate for your client. Oh, sure, you could argue that no attorney-client relationship is formed, but given the lengths that they went to in our Legal Profession class to impress upon us that free legal advice at a party could very well be construed as forming a contractual relationship, I'd think that these attorneys are setting themselves up for some serious malpractice.

Of course, there's also the consideration that as attorneys, we should have some damned pride in our profession and not half-ass things just to make a buck. If you don't have TIME to show up in court for every client you accept, maybe you should rethink your caseload. I'm a public defender; short of expressing a compulsion to literally kill a client, I don't get to turn people down if they qualify for our services (and I'm not entirely sure "I really hate my client and would like to see him dead" will get a motion to withdraw sustained around here).

In sum, there are a few things to take away from this probably incoherent rant:

1. If you enter on a case, go to fucking court already.


2. There is such a thing as professional integrity, fool.


3. Zealous advocacy means never having to say you're sorry...or at least cuts down on the likelihood of a PCR..
   

Looks like I'm back on the bandwagon. Perhaps more posts will be forthcoming..?

Subversion and the Single Girl.

I've slept since the last blog post, but that doesn't really make me any more coherent. Whatever. But I was screwing around, reading OTHER PD blawgs, and I came across a hot topic of debate: being outed as a blogger at work.

I haven't given much thought to what would happen should one of my superiors find my blog. To be perfectly honest, I find it highly unlikely to happen. My immediate boss isn't much for computer-use, and the higher-ups are scattered across the state and probably wouldn't know me if they read it anyway. Even if they DID read the blog and recognise my handiwork, whether or not they would have an issue with it is another story.

I have never blogged from my office, nor have I ever blogged something and attributed it to anyone other than myself. I think most people are aware (and I think I have a disclaimer on the blog that reflects) that the opinions expressed here are mine and mine alone, based on my experiences working for the organisation with which I'm employed. Nothing I say here should EVER be taken to be the official position of anyone other than me. To that end, I think I've done a pretty good job of keeping my rants about my boss's shortcomings and other office drama to my set-to-private, friends-only MySpace blog...and if the Big Bosses learn of and take issue with anything there, we have a bigger problem than my big fat mouth.

I guess the upshot of this is that I've never seen this blog as anything more than a very public way of expressing my opinions about life as a former law student and current public defender. I'm a very opinionated but honest person; anything I say here is likely to have come up previously at work, so nothing I post should come as a surprise to anyone that knows me. For instance, I blogged last night about the prosecutors in our county being out of their freaking minds (or something of that nature) regarding offers. This is nothing I haven't said directly to said prosecutors on multiple occasions. And you know what? If one of you is reading this and happens to know who I am and thus, which ones of you I'm talking about, you are out of your freaking minds with those offers, yo.

I guess the upshot of my little stream-of-consciousness rant is that I'm not worried about being outed as a blogger at work. I'd prefer to retain my anonymity, but should I be busted -- what are they going to do to me? Tell me to quit discussing public information? Ask me to apologize for not holding our prosecutors in higher esteem? Call me unprofessional? Well?

I suck.

I was trying to come up with a witty title, but it's 1:15 in the a.m. and I'm tired. I've been playing Warcraft, which is a great for the stress...but then it started to stress me out (how many times can a a person be killed in a single thirty minute period? Jesus) so I opted to blog about nothing instead...

I keep telling myself that I'm going to start taking this blog more seriously because it's meaningful to me; it's an opportunity to share my rants with the rest of the world, to disspell myths about my profession and all that good stuff... But the truth is, I spend so much of my time on work that I just don't have the mental energy to keep up with the blogging. Bah. So for those that care, here's why I don't blog as much as I did in law school:

I have 331 open cases. This doesn't include the so-called "inactive" files (cases where the client has had a warrant out for a couple of months, or can't be bothered to return attorney phone calls or come to court). Maybe this is a small number, I don't know (I would appreciate the input from other PDs tho), but I think my threshhold is about 200 before I start to crack..

I get up in the morning, have my coffee and Cheerios, and go to work. I go to court, field angry client calls, take appointments with people who may or may not actually be in their right minds (I think the secretaries give me the crazies on purpose), and generally run around like a chicken with my head cut off, trying to keep up with the staggering pile of manila file folders threatening to fall and smother me to death.

Our prosecutors are, for lack of a better way to put it, out of their freaking minds with some -- okay, all -- of the offers that they make. You just don't know joy until you've had to tell a guy that the prosecutor wants him to spend ten days in jail, pay for that jail time at a rate of fifty bucks a day, pay an additional $150 fine, and be on probation for two years (which, incidentally, costs thirty bucks a month). Frequently my clients think this is an OK deal because at arraignment, the Judge tells them the maximum for an A misdemeanor is a year in County and they actually believe they might get it. More frequently, my clients get pissed and want to rant about how they're getting the shaft...and how I'm part of the problem because if I were a real lawyer, I'd have gotten them off with just a fine..

By the time I get home -- which is getting to be later and later as time goes on -- I'm exhausted. I don't want to think about my clients and their problems, I don't even want to think about what I want for dinner...I just want to zone out for a while, go to bed, then get up and do it all over again.

Lest this sound like a pity party in the works, I assure you it's not. I love my job; truly and honestly, I love what I do for a living and I can't imagine doing anything else. Unfortunately, it leaves precious little time for the hobbies I had in law school and blogging just happens to be one of the things that gets neglected. *sigh* So when I promise to update the blog more often, as I frequently seem to do, just ignore me because I'm obviously having delusions of grandeur...

And if this post doesn't make any damned sense, it's probably because it's two in the morning and I'm still sleep deprived from the previous week. Ah, well. You'll all live.

FAQ #2(a) and(b): I am thy rod and thy staff.

Yay, another question for the FAQ! Ok, so the questions are all coming from the same person, but I suspect she's the ONLY reader I have, and I strive to keep my readers happy. So there you go. This time, Dusti asked:

Now tell me what you think of paralegals, as law school will take too much of my time.

I love my paralegal! And I love that she refers to the attorneys for whom she's responsible as "her" attorneys.. Makes me feel warm and fuzzy, it does.

But let me back up a minute. What you're really asking is a) what do I think of paralegals, and b) should I go to law school or paralegal school? So let me answer each of these in turn...

a) What do I think of paralegals?

As I stated above, I love my paralegal. Paralegals are vastly underappreciated professionals and holy hell, the average attorney just doesn't realize how much s/he relies on his or her paralegal until said paralegal takes a vacation. A real life example, if you will... Our paralegal is going to Florida in June, so she's showing one of the secretaries what she does on Circuit Court days (in our jurisdiction, the Circuit Judges take the bench two days a month...hello, legal chaos) so the secretary can fill in for the week that she's gone. I was discussing this at lunch with a fellow attorney I shall call Bill, and Bill commented that it was a waste of time for our secretary to job-shadow our paralegal because it wasn't that hard to do our paralegal's job -- she just does what we tell her to do in court.

Now, perhaps there's a modicum of truth to this statement. Our paralegal helps us carry files into the courtroom, lets us bark orders at her ("Copy this for me! Write this memo up! Can you give this to that client?"), and then does whatever it is we need done without complaining or asking for further direction. What Bill fails to realize, though, is that she accomplishes this not by blindly following directions but by knowing the courthouse...knowing her job...knowing OUR jobs...and anticipating and fulfilling our needs before we even ask. She knows the minutia of the courthouse "family" and all the rites and rituals of our counties, and if she ever leaves I will track her down and drag her back to our office because no one will ever be able to replace our darling paralegal..

Erm. Back on topic.

A good attorney appreciates his or her paralegal and knows that without a good paralegal, you either do it all yourself or the office falls to shit. And doing it all yourself just isn't possible, not if you want to lawyer well. So yeah, the upshot is that I think paralegals are a necessary part of a successful law practice, that a good paralegal is worth her weight in gold, and that lawyers who treat their paralegals like shit don't deserve to be successful.

b) Lawyer or paralegal?

The big difference between being a lawyer and being a good paralegal boils down to control. Can you cede the power to someone else? Let someone else take credit for the work? Are you happy to be a behind-the-scenes person? Then maybe being a paralegal is for you.

If, on the other hand, you want absolute control over cases and you want to be the boss then law school is the way to go. Oh, yeah, and sometimes lawyers make more money. Does that answer the question?