Not innocent and not guilty all at the same time.

Posted: August 18th, 2016 by Mirriam.

I know I promised a post about politically correct talk and what it actually is – but I am going to be politically incorrect for a moment and talk to you about something that I really don’t know how to express and maybe you can help me – why are we ok with ruining people’s lives and ignoring due process? Why is it that, as a nation, we are given rights and we are rejecting them? If someone said to me you can have all the ice cream you want and it will never contain a single calorie why would I refuse it?

The Bill of Rights is exactly that. It doesn’t just protect me when I have done something wrong. It protects me when I have not. It protects my most absurd speech, my shooting teacher’s guns, my right to vote and to not be harassed by government officials as I go about my business day to day.

It keeps me from having to open my home to the national guard when they are called to an inner city in strife. I don’t have to give testimony against myself and I have the right to a fair trial and confront my accuser.

I am innocent until proven guilty beyond a reasonable doubt.

There are two cases which cause me great distress, I know there have been others, but the fact that these two come up in short order one right after another prove to me (in the way that things are proven in a non scientific setting) that we are going down a very dangerous path. We, as a nation have to have a real conversation about this and what this path means for each of us – those who have been accused of crimes and those who accuse. Because this dance is for everybody, not only the sexy people.*

I didn’t know who Kurt Metzger was before yesterday. But apparently he is a comedian who has some connection with Amy Schumer, who is also allegedly a comedian. Anyway, Kurt Metzger went to bat for a person who had been accused of rape, but without any government action meaning no one went to the police. He posted this on facebook:

Screen Shot 2016-08-18 at 9.55.37 AM

Basically, what Kurt said was hey there is a process to this isn’t there? Shouldn’t we engage in some investigation or vetting (to use a word that’s become so popular these days) before we ruin people’s lives? Shouldn’t people who are accusing others of crimes report them to the police?

Apparently asking a woman to report a crime to the police is the same as saying that committing the crime is ok.

If you told someone your car was stolen, would you not expect to have them say you should report it to the police? In fact, in order to get insurance money you HAVE to report it stolen to the police. The insurance company isn’t just going to believe you. And the cops will ask you questions like what kind of car was it, where was it parked, when was the last time you saw it?

If you are robbed at gunpoint and you call the police they will ask you questions. If you don’t believe me, ask Ryan Lochte. They ask you questions in order to verify that what you are saying is true.

You realize this not only protects people who commit crimes on the regular, but it protects YOU. YOU. Yes. YOU RIGHT THERE.

If you are walking down the street and I say “she did it!” would you not want someone to ask me what you did? How you did it? When you did it and where?

And why do we want a world where anyone can be accused of anything and lives can be ruined simply because someone says so? It seems like such a terrible idea.

But ah, lest we are not satisfied with just making accusations, let us move on to case number two – Nate Parker. I didn’t know who he was either but apparently he is a famous guy who, when he was in college was accused of rape. He went to trial and was acquitted.

This is not good enough either.

The fact that a jury of 12 people said the state did not prove it beyond a reasonable doubt does not make him innocent, according to the internet and others. It just makes him not guilty.

The fact that there was an accusation alone made him guilty.

That’s it, nothing else. No proof needed. Period. Full stop.

If it’s sex, you are screwed. (And who cares if the pun is intended.)

There are rules of engagement that should apply across the board in the criminal justice system, a system that is already slanted against the defendant (who doesn’t even get a name, he is the defendant) and one of those rules is that everyone is entitled to a fair trial, and everyone gets to confront their accuser and everyone that goes to trial has to be convicted only after every element is proven beyond a reasonable doubt. There are no exceptions to this rule. Nor should there be.

There should not be an exception if your car is stolen.

You are robbed at gunpoint.

Or if someone puts their penis inside your vagina against your will.

But that last one feels so much worse, doesn’t it? It feels like it should be an exception to the rule because – because vagina? Admit it. That’s it. That’s why it feels like there should be a difference. I get it. Sex makes it seem different. But it isn’t.

There is no exception for sex crimes and there shouldn’t be.

If my friend tells me she was raped I will encourage her to report it. If she doesn’t and wants it to be a private affair and deal with it on her own (which people do, even when they are robbed at gunpoint) then that’s her call as well. But you can’t have it both ways. You want to convict people in court of public opinion without giving the accused any chance of defending themselves.

I don’t understand why. And until I do I will continue to tell people to prove it.

Prove it.

*

 

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Posted in: Criminal Defense, Due process, Not Gulity No Way   |   Leave a comment

Your sense is not so common

Posted: August 10th, 2016 by Mirriam.

Once again I allowed you, dear reader, to dictate what the subject matter of today’s blog post should be. I gave you many options and this week you picked that I should write about the absurdity of the law.

This post could be very, very long.

I spent a good deal of time thinking on this topic. And what it boils down to is this – common sense is not a constant. Our ideas and ideals are ever evolving and what we view as being so basic I mean why do I even have to explain it to you today, was very likely unheard of/blasphemy/you are a nutjob a century ago.

The law is old – it’s as old as humanity (which started with Christ or a few million years ago, depending on who your preacher is) and it consisted of rules that made sure people didn’t take other people’s stuff or murder them or defoul their property (including their women.) Simple, easy. There were no other real rules to make – no regulation of waterways or highways, no mandatory days of school or days of the week you could water your lawn. No one had seen smog or thought “man, that fish looks too small to eat but I’m gonna keep it anyway” because what would someone do with a fish they couldn’t eat? No one had to make a law against keeping a too small fish.

The sense that was common when the Magna Carta was written in 1215 is not the same sense that was common when the Constitution was written in 1789. It is not the same as 1942 or 1972 or 1992. And it certainly is not the same as today. When we expect that the law with comport with what we believe to be common notions or right and wrong, good and bad – or even logic – that’s when we are usually wrong.

I remember before I went to law school I would think about how the law should function. Then I went to law school and I just remember always thinking “This doesn’t make any sense.” It didn’t to me, it still doesn’t. Most of it seems made by people who have not ever lived a real life or who think that for every new feeling of ‘common sense’ a new law must be created to make the law comport with current norms of common sense.

Are you sick of the phrase “common sense” yet? I know I am. But we hear it all the time ‘common sense reform” “isn’t law and order just common sense” and “it makes sense to ban assault weapons.” So much sense that is so common yet we end up with absurdity in the law. It would have to be absurd to keep up with what we deem to be important at this moment, what we consider the logical extensions of our current mores. Right now, we value safety so we create laws that gives us the idea of safety knowing full well that we can’t actually regulate safety into existence. We created the Patriot Act, and yet we feel we are now more vulnerable to terrorism than we were before the Patriot Act. How can this be? If it was based on common sense – shouldn’t it give us what we want? And if it isn’t, why do we continue to demand absurd laws that may make sense today, but certainly won’t in five years or so.

The law is absurd because the human desire for order is absurd, our ability to handle chaos is minimal and the more rules we have, the more in control we feel. How does that make any sense?

But this is considered common sense.

 

There was a point in history when women were not viewed as full human beings, there was a theory that their love of their offspring was simply intuitive, like a cat taking care of her kittens. But we now know this theory is false.  If women were like cats, we’d make sure our kids could feed themselves, not get hit by cars, and function in the world and then let them go. But we are vastly more complex than cats and our love for our children in today’s society means we infantalize them for as long as possible. It is exactly this sort of societal change that creates absurd guidelines like the ones that don’t allow your children to play outside unsupervised IN THE BACKYARD before the age of 7. Now, I will admit this isn’t a law. But if we continue along this path, it very well could be. And, we also know that people have been prosecuted for allowing children to play unattended.

We would never have imagined these laws even in the 1970’s when mom would stay home (hence having more time to dote on her kid, but for some reason, didn’t) and dad would go to work and come home and ignore us. Outside was where we were told to go because mom was sick to death of us in her face. The law would not have prohibited mom having her free time to watch her soaps. It was common sense.

It was also common sense that you could have a 6 pack and drive home.

Then we decided to get jobs and then we felt bad about not being home with our kids. Some people decided it made sense to make sure that kids were protected since parents couldn’t be with them all the time, so they made more laws to protect kids. (WHAT ABOUT THE CHILDREN!*) (Check out the truancy laws in your state if you need an example of absurdity.) These laws made sense to someone. I guess.

We’ve strayed from what the law was originally designed to do – make sure no one took our stuff and killed us – and has become something else all together. And that, my friends, is also absurd.

 

 

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Stare Decisis and you

Posted: August 4th, 2016 by Mirriam.

We lawyers love being fancy. We like our fancy words and phrases and we act like latin is our mother tongue. To be honest, we rarely use it, even in most legal writing since the style of today is down homey and casual. I know I try not to write so much like a lawyer because one thing you learn quickly as a criminal defense attorney is that no one cares if your follow thesis, antithesis, synthesis. Everyone just wants to know why your client shouldn’t spend the rest of his life rotting in a cell somewhere. So, storytelling is key. Latin words are less important in our writing, more so in understanding the basic concepts of law.

Although, I did use the phrase nunc pro tunc in a sentencing memo. (Just means retroactive to the prior order, but I felt like being pompous for a minute. So sue me.)

That brings us to the phrase in the title of this post. Stare decisis literally means stand by things decided. It’s what we usually call precedent. The U.S. legal system runs on a system of precedent – what’s been will always be unless there are compelling reasons to change it. Seems odd, right? That some jurists believe the Constitution is a ‘living document’ but the courts will rule the way it was in the olden days based on precedent?

Well, it is odd. And it’s not entirely how it works. Because there are actually very few bright line rules. We have thousands of shades of grey and the usual response to any legal question is ‘it depends.’ All cases have facts. The facts are what the trier of fact says they are. The trier of facts are either the jury in a jury trial, or judge in a bench trial. ( (The judge is also the decider of law. So, if your judge makes bad legal decisions – either because he misunderstood precedent or if the facts in the case don’t apply to the precedent he used – well you’ve got a bunch of issues for appeal (as long as your attorney preserved them by objecting.))

Precedent is fact dependent. That’s why, while you think it would be easier to give you an answer – I mean there are cases that hold X thing, right – we can’t. And it really isn’t the fault of the lawyers. Blame the courts. One of the reasons I think we have so much precedent, and cases that decide why yes, you can do y here but no, you can’t do y there, is because Judges are not neutral. Many judges have a vested interest either in keeping their jobs if they are elected, or are appointed by people with whom they share a similar ideology. Or, they have heard and seen so much that they lose their humanity and nothing we say or write can persuade them that all people are bad, no one can ever be saved and that the end is near anyways so go to prison forever.

We have a saying in my little office – everything is precedent until it isn’t. I dislike precedent because it gives us a false sense of stability. You cannot count on anything in the law. Judges can give and then they can take away. Case law will almost never be on the side of the accused and even if it is, the government (which allegedly represents you, friend) will find a way to contort it so that it falls outside of it. Of course we are guilty of the same thing, especially me, since, like I said, I view it as just a thing I have to try to change.

The name you are most familiar with in the legal world is probably Miranda. We’ve all heard of Miranda warnings. But did you know that the Supreme Court had decided a case called Escobedo v. Illinois in 1964 that had basically the same thing? This is two years before Miranda. During that time, cops and prosecutors had continued to interrogate suspects but differentiated the cases because of the different facts (In Escobedo, he’d asked for his lawyer and the lawyer was there and they didn’t let him in.) I imagine thousands of coerced and unconstitutional confessions were introduced at that time since precedent is only precedent until it isn’t anymore.

By the way, even though Miranda might make it seem like silence is golden, it isn’t. The courts have once again come all the way around – if you don’t affirmatively say you don’t want to talk and specifically ask for a lawyer, you are screwed. Until we can fix it.

So, don’t blame us for the sorry state of the law. Blame the universe for all of its nuance. Blame humanity for each of us being slightly different in slightly different ways. Blame any two damned snowflakes for not being alike.

 

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Your mom

Posted: August 2nd, 2016 by Mirriam.

I could write poetry for days about my mother. I’ve written many posts about her in this blog because she has been an enormous influence on my life. She was a woman who didn’t leave her house after she was 10 without a burqa, she didn’t go to school until she was engaged to my father at 17 (and that was considered old), and she had an arranged marriage.

And then she raised me. Need I say more about what a powerhouse my mother is?

What about your mom? Did she teach you to be a woman? Did she tell you that your femininity was a weapon as well as a comfort? Did she teach you that you use it as the tool that it is? Did she make sure you knew that no matter what happened, you were okay, but that trying to be better was always a worthwhile goal? Did she teach you to cook, to keep house, and make sure you kept your grades up? Did she make sure that if a man ever left you, you would still be able to take care of yourself?

Did she teach you to be a man? Did she allow you to do boy things (even though she didn’t understand them. Lord knows I don’t get it at all.) Did she teach you to speak your mind, to open doors and to exude confidence yet also listen and be aware of those around you? Did she tell you that empathy was ok and that being a man was more than just testosterone? Did she teach you to take pride in being a breadwinner and to understand that when you had kids, your presence in their life was non-negotiable?

Did your mother give you the space needed for you to become the person she always knew you could be?

This, I find, is the greatest challenge with mothers. It is very difficult to allow our children to exist and set parameters and boundaries for them without imposing our idea of what they should become.

Did your mother do this for you? Your mother probably loves you. I mean, that’s generally the rule. But right now, if you look at yourself in real time, without anyone influencing you – do you think she would be happy with how you are behaving? Would you be ashamed of the fact that you voted for “your mom” instead of learning about ethics or racist voter ID laws? Or would she shake her head at the person you’ve become who makes a mockery of twitter polls and doesn’t care about filling your brain with important knowledge but rather, would like to read a post about her when I don’t even know her?

You people are ridiculous.

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Posted in: Mothers   |   6 Comments