So glad you decided to join us.

Posted: January 4th, 2015 by Mirriam.

It has come to my attention that our criminal justice system is broken. Did you know it might also be racist? And justice isn’t blind? I know, I know, I was just as shocked to hear about it as you were. It absolutely devastated me, considering all the equality there is and that I see every day in my job. Considering this blog, and so many others that I link to frequently, and that are over there on the blogroll have never mentioned it. Ever. We’ve never once mentioned that our system is atrocious and doesn’t actually work as it should, that we imprison black men at rates that may rival slavery.

Nah, no one has ever said that.

 

Okay, we did.

A lot.

If you notice, all of those posts that I linked to above are not from last year, they were written years ago. That’s because Trayvon Martin was not the first.

Nor was Eric Garner.

Or Michael Brown.

Or Tamir Rice.

Dear friends, our system has been broken for as long as I have known it, and long before I knew it even existed. I first learned it was broken in my own terrible way, after 9/11 when I realized that I was wanted, my brother and my father and my future children would be looked at with some measure of fear and scorn because we were muslim. Hell, it had never occurred to me before. I was a prosecutor. I didn’t look at people’s skin color or ethnicity. I just cared that they did the BAD THINGS. And my job was to protect the whole world from THE BAD THINGS.

And one day I called bullshit on it all. And I’ve never looked back. I don’t even advertise “I used to be a prosecutor” even though we all know that’s what people look for in a criminal defense attorney. Someone who knows the other side. The problem is when you know the other side and then you truly come over to this one, you no longer understand what you could possibly have been thinking. How did I think that justice was blind? How did I think that we didn’t see race or religion or, or, or anything at all but THE BAD THING? How? I figured that since I couldn’t figure that out, I probably shouldn’t be bragging on my ”former prosecutor’ title.

Look, I’m glad you’ve decided to join us. I love the protests. In fact, I took my kids to one in DC because hell yeah, this is America and in America we protest the stuff we don’t like. That’s what I told them when they asked me why they were walking in the street with their hands up saying “don’t shoot.” Because you are lucky to be born here. You are lucky to be fair skinned, you are  just lucky.

But as usual, I digress. The fact is that I’ve been waiting for you all. I would like it if there were some more of you on the right involved, maybe a few more white folks from smaller towns, but even now, this is a good showing.  It makes me feel less alone, and less like I am just preaching to the choir. It’s a shame, though, that it took so many dead young men for you to pay attention to what was happening. It’s a shame that you didn’t pay attention and help us out before when we were screaming that the system is unfair. It’s not too  late though, not for the others who may be in harm’s way.

Every day we get up and we fight this fight for our clients. We make the state and the federal government uphold the Constitution, we quote it and protect it. We argue for what we consider justice, since our job isn’t to seek justice (that’s what the prosecutor is ‘supposed’ to do) but there is justice in every plea we make. And we plead indeed. (The begging kind of plead, but we usually plead too, but that’s a post for another time.) We ask that every person who comes before the court is treated with fairness and is given the same opportunity as every other person.  We explain the way in which the system has failed our clients, has failed their communities. But the truth it we know as we stand there and we argue and we fight that the system broke down long before we stepped foot into that courtroom. It broke down when the cops randomly stopped and frisked my client, or made him give a statement inculpating himself when he didn’t even know he was doing it. It broke down when my client was pulled over for driving while black and then the cop says there was no seatbelt (even though there is NO WAY the police could see through that dark tint.) It broke down when the police decided that two boys walking down the street at night must be up to no good, since they are black and young and maybe they have some weed.  Ah look! They do. It broke down when we were looking the other way and not doing anything about it.

So, anyway, like I was saying. I am glad you decided to join us. Help us fix this thing, will you?

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Facts are not facts until the jury says they are facts. Got it?

Posted: February 17th, 2014 by Mirriam.

When I was a young person, someone who did science experiments in school and wandered through life blind and naive, I thought ‘facts’ were real things – things that could be proven time and time again. Sure, sometimes things we called ‘facts’ would be disproved (unless you are one of 25% of Americans who still believe the sun revolves around the Earth, or the some staggering percentage that thinks the earth is 6,000 years old) by other science and newer methods of finding stuff out. Facts you could count on. They just WERE.

“Is that a fact?”

“Get your facts straight.”

Oh, the joys and privilege of youth.

When I started law school, I heard of this concept “the finder of fact” and it was very hard to wrap my brain around. Facts are not, in fact, what you say they are.  They aren’t what I see with my eyes or hear with my ears. Not in a criminal jury trial anyway. There are no facts until the jury says what the facts are. In a jury trial, the jury is the ‘finder of fact.’ (In a bench trial, the judge is.) I present my facts as the criminal defense lawyer (if I feel like it, but I have no burden so nah nah nah nah nah) and the prosecution has to present their facts. Then we engage in the duel that is the trial with sparring on cross-examination, various objections to keep things out or let things in. We weave and dodge and punch and kick and at the end of it all, the jury gets to pick which things they think are true and which they don’t. And if they decide it is a fact, it becomes one. No matter what you think. Or I think. Or the prosecution thinks.

This past week, Michael Dunn was found guilty of various counts of attempted murder and there was a mistrial on the top count of the murder in the first degree of Jordan Davis. They called this case “The loud music case.” Basically, if you’ve been under a rock I can summarize it – Jordan was in his car with some friends. They were playing loud music. Dunn told him to turn it down. Jordan said no. Or said yes. Jordan either pulled what looked like a gun out and pointed it at Dunn or he didn’t. Dunn went to his car and got his gun and shot at the car. He was either afraid for his life or he wasn’t and just wanted to kill black kids.

See, there are no facts in that case on the top count. Not legal ones. In the criminal prosecution we do not know if the jury thought Jordan Davis had a gun or if Michael Dunn is a racist because the finder of fact could not come to a decision. We do know that they believed he shot at those other kids in the car and attempted to kill them. What happened before is still not sorted out.

Here’s the kicker – if the jury had decided that Florida’s stand your ground law was applicable, if they thought Dunn acted in self defense, then THAT would be the fact. It would be the truth just like saying the Earth revolves around the sun is a fact. Just like saying the earth is much, much older than 6,000 years old. And, if you said on twitter or somewhere else, that Michael Dunn shot that kid just because he wanted to and it wasn’t self defense, well, you would be wrong. It’s a belief that has no support because the finder of fact decided otherwise.

“Oh no, not guilty, that can’t be. What about all those people who are found innocent after convictions. The jury found facts and they were wrong.”   But friends, it is right – see above sun and Earth.

Juries can be wrong. They can be wrong insofar as they are human beings and human beings are fallible, they can only work with the tools and information they have and if they are given shitty tools and incomplete information then they are going to get shitty results, wrong results.

—-

The Michael Dunn case is tough. It’s dangerous these days to talk about defending people who shoot black kids. It’s always been tough to talk about defending people accused of child sex crimes but we’ve gotten used to that, I think. I know right now, I am afraid to talk about this case for fear of being called a racist when, in fact, I am worse than that – I am a criminal defense lawyer. Race doesn’t matter. Sex doesn’t matter. I couldn’t give a rat’s ass about your religion or your life philosophy. YOU are what matter. My client. My own personal dogma gets pushed aside. And if I can’t do that, I can’t take the case.*

The truth is if my client is afraid of black people and has a reason to be afraid of black people and then kills a black person and I can show his fear is reasonable then that is what is going to happen. Racism is a bad reason to be afraid, but it’s not a legal reason not to be afraid. (That link is to a law review article entitled “Self-defense and the Mistaken Racist”) And if the jury is going to decide the fact that my client acted in self defense, then that is what it is.  That is my client’s truth. And while you can say ‘you don’t believe it’ it won’t matter.

Bernie Goetz anyone?

When folks say “George Zimmerman is a racist” that is probably true. But when they say “He didn’t shoot in self defense” that isn’t true. Those things are not mutually exclusive.

I’m sure this incenses many of you. It’s why we get the questions ‘how do you sleep at night’ and ‘how do you represent THOSE people?’ I can direct you to hundreds of posts by all kinds of lawyers who describe the hows and whys of our sleeping and representation. I don’t agree with a lot of the choices my clients make, but by the time they get to me my ability to use my efforts to judge their decisions is limited at best. In fact, it does my client no good. And my job is to do good for my client.

This is our system of justice. I rejoice when it works in my favor, which isn’t as often as I think it should be. But for as long as I can use the system I’ve got, I will. And keep trying to get the jury to pick MY facts.

* Thus far the only cases I won’t take are where the client’s family is just ugh. That’s where I draw the line.

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Please stop complaining about what you didn’t learn in law school.

Posted: January 15th, 2014 by Mirriam.

There are so many posts and tweets and articles written on what law school didn’t prepare us for. Marketers scream “law school didn’t prepare you to run a business and get clients!” People who want to ghost write for you scream “You didn’t learn to write persuasively and use proper fonts!” Criminal defense lawyers scream “How do I live with the constant stream of humanity that I see being wasted.” (Read that post, though, really.)

Look, I went to law school to learn how to pass the bar. I didn’t go because I thought it would teach me really much of anything. For that I went to work. I started in the DA’s office as an intern in the appellate unit, then in my 2nd year I got permission to try cases. So, I did that. Then I switched sides and went to work for a balls out criminal defense lawyer. He taught me how to work hard, and how to stand tough in the face of sometimes seemingly never ending criticism. Did law school prepare me to set up my office remotely from Starbucks? Nope. Did it help me learn how to be a human being and talk to people about what I do for a living so they can refer cases to me? Nope. I thought that being a living sentient civilized human being was part of me being a lawyer. So, that when I was a lawyer and people knew I was a lawyer because as a civilized human being I would talk to them, they might refer cases to me.

I’m not sure why law school has to teach people how to practice law.  Their goal is to teach you the law – the concepts of it, how to analyze and evaluate it. Where to find it and how to comprehend it. Each firm, each governmental entity, each person has a way of engaging in the practice of law that is unique. And, obviously, the law is always changing and how people practice it will change as well. (Aren’t we all ever evolving? Isn’t that the hope?) What worked for us 15 years ago simply doesn’t hold true today. But the things I learned in law school are still useful – I know how to read the law. I know the questions to ask myself when I read a case or a statute and I know that may means it could be and shall means it has to be.

My suggestion is this:  Law schools shouldn’t let in so many dopes who don’t realize that you actually go out of school and practice law – sort of like being a glass blower or an auto mechanic. This is a skilled profession. When you leave medical school you have to go and learn some things before you are allowed to perform surgery or take on patients. I guess it was too much to expect that people who went to law school would know that they should learn the things they need to learn before they go to practice law on their own. I don’t know that law schools thought people would leave school and go on and do, you know, whatever.

(But there are no jobs, what are we to do? We need to work. We need to pay back our student debt. Law school is a scam. They tell us there are jobs. There are no jobs. We need to work. I need to hang a shingle and claim my internships as experience and law school better give me that ‘experience’ and knowledge so I can go out and hang that shingle and have that ‘experience’ be real.)

When you go to law school you go to become a lawyer. You don’t go to philosophize on the law, unless you are going to be a legal philosopher. Which is fine. I philosophize on shit all the time (I was a philosophy major as an undergraduate. I won the women’s studies prize and the Minerva Prize for undergraduate scholarship. So suck it if you think I’m not a feminist.) But I wanted to be a lawyer who went to court and argued things and said “Objection!” so I had to learn how to do that. In order to learn to do that I had to take classes that taught me how to do that. I am fairly certain even your third tier law school has such classes (I went to a third tier law school and we had loads of those classes, as well as clinics.) I mean, did you not know to do that when you went to law school? What was so confusing to you?

Really, if there was a law school class on rainmaking I don’t know what it would teach – how to have lunch with your friends? How to play golf? How to not be a recluse and a socially awkward douchebag?

It seems the problem we have is that there are lots of people in the world who think law school is a way to 1. avoid deciding what to do with the rest of your life; 2. a good, easy way to make money; 3. learn how to be a human being who can be a lawyer. Perhaps you might want to take a good look at yourself and figure out why you want to go to law school before you go.  But stop bitching about how law school didn’t teach you how to manage your case files. That’s not what it is there for.

The truth is you won’t know how to be a lawyer from law school. Even if they stop doing law school stuff in the third year. You need experience and knowledge and you need to be melded and molded.

The only cure for inexperience is experience. Not law school.

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A day at the jail.

Posted: January 13th, 2014 by Mirriam.

I went to the jail today. I’d been putting it off for a long time, not because I didn’t want to go, but because I hadn’t gotten the discovery from the other side and needed to look at that before I met with the clients. It is, after all, helpful to know what he is accused of before I start formulating a defense. So I waited and waited and finally got some things in on a couple of them and drove out to the facility.

I know, in these pages, I’ve explained jail to you before. I don’t know if I had the words then to describe it to you in any way that can make sense. And I do wish I had folks who had been in jail who would or could express to you what it is like to be locked inside because I don’t know it from that perspective. But I can tell you that as strange as it is to go into a jail, it is even stranger to come out.

I think “wow, the sun is shining” or “there are people getting in their cars” or “that guy is listening to his ipod” and inside it is not like that at all. There are no windows in the housing units. There is no fresh air, fresh music, or cars. There are people who can get phones or drugs or other things, that’s true. But there are ordinary things that are considered contraband like books or stamps and envelopes and well, cigarettes are as bad as cell phones. And yes, you can say to yourself or to me that those people deserve to be punished, they’ve done bad things and don’t deserve to have the pleasures that we have (like stamps and envelopes and books) and it is probably true. People who do bad things need to be punished. I am aware of this. After all, I am a mother of twin boys  and well, need I say more?  And yes, some people need to be separated so they can’t cause more harm. I don’t necessarily disagree with that either. I’m not saying hey, let it go, let them go. Go on forgive and forget. Because, well, the fact is I don’t always forget.

I don’t always forgive.

And I don’t ever want this blog to be a place for hypocrisy.

When I leave the jail I am so grateful for every horrible thing I deal with out here. Seriously. I think you are a total asshole and I am glad I get to sit here and think it. With this window that I can open to let in the 27 degree air. I can go in my car and listen to Taylor Swift and order any book I want and look up and see sky or clouds.

I can see my kids.

In many jails people under 18 are not allowed to visit. My clients don’t see their children. For months.

Ah! Who cares! If they cared about their children they wouldn’t have . . . . (But sometimes that’s why they do it. Sometimes they don’t think of consequences at all. Sometimes they don’t know there are options or don’t see options. And sometimes kids just need to see their dad). What if I told you that today all three clients I saw, not one of them had any sort of relationship with their father. They laugh when I ask if dad ever took them to a ball game. They look ashamed as if somehow they were to blame. You probably don’t care. It isn’t your problem. It’s the problem of ‘those people’ and really, it isn’t my problem either except I want to know.

In some jails my clients are shackled when I see them. Chained to the wall and the floor. I am not afraid of them, never have been. And I hate the atmosphere this chaining creates. Hey master, this guy and I are on the same team. I am one of him and he is one of me. In others they don’t get to have in person visits at all with family. All are done on video. And they have to pay. And, if you say ‘well these people are all guilty! They are bad! Good!” First, you should know most of these places are where people are held before they are convicted (but fuck, who actually believes innocent until proven guilty anyway?) and well, what do you think will happen when they are released? Will they think kindly of our society and how it treated them when they were paying a debt they owed for crimes committed.

Jail always leaves me melancholy and yet I come out with this new, dewy vision of the world. It only lasts a bit though. Until the next time when I have to smell the smells and hear the sounds and the stories. And then I get to leave.

And there is sun. And sky. And Taylor Swift.

 

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