“A Defense of Last Resort”

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John Hinkley, Jr. is back in the news again as his defense attorneys are going before the judge and asking that he be released from the mental hospital where he has resided for thirty years.  I was, I believe, 7 years old when Mr. Hinkley shot President Ronald Reagan and his press secretary James Brady (after whom gun control measure known as the Brady Bill is named).  NPR recent did a call in piece on Talk of the Nation about the insanity defense in general and specifically Mr. Hinkley and to a lesser extent Jared Lee Loughner, accused of shooting 13 people, including Congresswoman Gabby Giffords, and killing  six, including Federal Judge John Roll and a nine-year old girl.

Before talking about the insanity defense, it is important to remember two of the major components of criminal liability in the Anglo-Saxon tradition of Justice.  First you must have a prohibited ACT, generally called the Actus Reus, and then you must have a THOUGHT called the Mens rea.  These two parts are of equal importance when determining the guilt of the accused.  If you don’t have both, you have an accident or a tragedy but no crime.  Mens Rea comes in many flavors depending on the crime, from Negligence (Everyone knows this is bad and so should the accused) to Intentional (the accused meant for this very thing to happen).  The reason Mens Rea is so important is because as a society, we do not think people ought to be punished when they didn’t have the right thought in their head at the time.  From this perspective, the criminally insane are more like a force of nature.

People are extremely anxious about insanity defenses, but the danger in them cuts both ways and the benefit to them cuts both ways too.  Consider that, because you have to prove every element of a crime beyond a reasonable doubt, if a jury was only given two options, guilty or not guilty, and they are forced to commit to finding the mental state, when they found a defendant not guilty because he or she could not form the required mental state, the judge and state would have no choice but to release a potentially violent person.  Hence, society as a whole is better protected from future violence by allowing a third option:  not guilty by reason of insanity.  Whereby a jury can say, “Sure, you couldn’t form the right thought to commit the crime here (whatever that standard is in a particular state), but you’re still dangerous and should be housed in a mental institution until you can prove to the satisfaction of a judge that you are not a danger.”

Generally, someone accused of a crime will not attempt to raise the defense of insanity.  The reason being that there is no certain end when a person is going to get out of the mental institution.  As a result, the insanity defense for all practical purposes is only used when the accused is either facing life in prison or the death penalty.  Think about McMurphy in Ken Kesey’s One Flew Over the Cuckoo’s Nest: he games the system into getting himself committed to a Mental Ward after serving some period of time on a Work Farm and then finds he won’t get out until he is “cured.”  Generally, when a person is found not guilty by reason of insanity he or she ends up serving more time than they would have had he or she would have spent if they had been found guilty.  Moreover, rarely if ever does the court completely relinquish supervision of the defendant.

Because of our system of justice, we will not hold people criminally liable for actions they took when they were not in their right mind, but for reasons of safety, we will not allow those who are not guilty of such a crime to walk away from confinement, treatment, and supervision until we are sure they are safe to live among us again.  While the system is not perfect, it is certainly better than many alternatives which would sacrifice safety for justice or justice for safety.


Seriously, Counsel? That’s your best defense tactic?

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I don’t want to talk about the Sandusky case in terms of his guilt or innocence. Obviously what he has been accused of his heinous and evil; we should let the justice system work itself out.

What I do want to comment on is how ridiculous Mr. Amendola, his lawyer is. When I saw Monday night’s actual interview live, I was literally screaming at the TV that Mr. Sandusky’s lawyer was quite possibly the worst attorney practicing; Leave it to comedian John Stewart to articulate why

Let’s pretend though for a minute that Mr. Sandusky hadn’t come out looking incredibly creepy and sounded so stilted in his response to the question of whether he was sexually attracted to underaged boys.  Let’s pretend he came across as totally believably innocent.  What then?  His recollection of events was never going to come in at trial.  The prosecutor would never put it on for the jury and the rules of evidence wouldn’t allow Mr. Amendola to play it for the jury, because its hearsay.  Mr. Sandusky would have to take the stand and do it all over again, perfectly.

But he clearly didn’t do a good job.  He made admission after admission.  Any denials were ham-handed and you bet your bottom dollar that the prosecution is going to play this interview for any jury they get.  And it will kill the defenses case.  Mr. Amendola has practiced law in Pennsylvania since 1973, the year before I was born, and I am left wondering… what was his strategy?  His colleagues in Pennsylvania have gone to bat for him in interviews saying he is a good lawyer, but judge by this colossal misstep I am left to wonder.

As far as I can tell, Sandusky’s lawyer is simply hoping to turn this into a payday by increasing his notoriety.  It seems to me unlikely that his client was begging to go on national television.  The New York Times has reported that the interview was a complete surprise to Bob Costas, with Mr. Amendola asking him 15 minutes before the interview on his own: ‘What if I could get Sandusky on the phone?’ Was it a surprise to Mr. Sandusky as well?  Clearly he was not ready for any of the questions his lawyer never should have put him in the position of answering.  There was no strategic advantage to doing this, from the get go it was only going to hurt his client. As far as I can tell, he has totally sold his client out.

This is not a case about winning a publicity campaign.  Mr. Sandusky’s life and career, however this case was going to end were clearly over.  No one would ever hire him to work with children or young adults.  The number and character of the accusations alone are something that no one could recover from.  All Mr. Amendola could do as the defense attorney in this case was keep his client from spending the remainder of his life in prison.  That was his one job and he blew it up on Monday night.

Trial of Three Kicks

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A lawyer from the big city goes duck hunting out in the country one weekend. He is in luck and shoots a duck with his very first shot. The dead duck falls from the sky and lands in a farmer’s field. The lawyer goes out to get the duck and the old farmer drives his tractor over and picks up the dead bird.

“Hey!” shouts the lawyer, running over, “That’s my bird!”
“Pardon?” asks the farmer, “This duck landed in my field. Makes it mine.”
“My good sir,” says the lawyer, “Both the Code of Hamurabi and the rule in Penelope’s Case says that when the hunter wings a bird in flight, no matter where it lands, the fowl goes to the hunter.”
“Eh?” says the old farmer eyeing the lawyer suspiciously. Then he takes a sigh and smiles slightly. “You must be one of those Big City Lawyers.”
“I am,” says the lawyer proudly, “I am Graham Goodson of Goodson Schnocker and Bliss.”
“Oh, well Mr. Goodson, we have what we call a Trial of Three Kicks when decidin’ who , ‘round these parts.”
“I see, quaint local practices,” says the lawyer. “I’m game, what is a Trial of Three Kicks?”
“When two fellers disputin’ the propriety of a bird like this, the first feller kicks the other three times and then the second feller kicks the first three times and so on until one or the other gives up. As it’s undisputedly my land, I’d kick first.”
The lawyer looks over the farmer who appears in his eighties. He is thin as a twig and looked like a reasonable gust of wind might blow him over. The lawyer thinks he might want to go back to the car and get a waiver and consent form out of his briefcase, but in the end decides it isn’t worth the walk.
“Alright,” says the lawyer, “I accept.”
“Great!” says the farmer who immediately kicks the lawyer with the force of a lifetime of work right in the groin at which the lawyer doubles over. The farmer then kicks the lawyer in the gut with an equally powerful kick that sends the lawyer sprawling into the mud. With one more mighty whallop, the farmer kicks the lawyer in the teeth.
For several minutes the lawyer rolls on the ground, stunned by the ferocity of the three kicks. Ultimately, he his able to regain his composure and stagger to his feet.
“My… Turn…” the lawyer says haltingly.
The old farmer looks at the lawyer slyly.
“Aw, heck,” he says. “I gives up; you keep that bird.”

New video on Hearsay

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I’ve been working on a new video which I think is fun. It’s kind of a boring topic, but everyone screws it up so often that I thought something had to be done. This is the result.

State of Colorado being sued over refusal to give indigent defendants prompt access to lawyers

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Under the SIxth Amendment of the U.S. Constitution, everyone, even the poor are entitled to representation by competent legal counsel.   The Denver Post reported on Thursday that two non-for profit groups are suing the State of Colorado over a law that requires defendant’s to meet with the District Attorney before they can be offered the opportunity to meet with a Public Defender’s office in misdemeanor cases.  The Supreme Court has held, in Rothgery v. Gillespie County that a defendant’s 6th Amendment right attaches “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”  In that case, Colorado’s Attorney General had filed a friend of the court brief asserting that Mr. Rothgery had no such right at the time of his hearing because the State had not committed itself to his prosecution.

The real injustice of this law is that people who are potentially unfamiliar with the consequences of the law and cannot afford a lawyer have their rights explained to them by the prosecuting attorney in the case which, by design and in order to save money, short circuits the plea process.  Where a defendant’s overriding concern is normally a jail sentence, often there is no realistic proposition of jail, despite the advisement.  Moreover, often there are substantial collateral issues with a criminal plea that the Defendant is unaware of and is not advised of before making a plea.

It seems likely to this observer that the current lawsuit has real merit and may well prevail in overturning this law.

Aaron Norris; www.mahrelaw.com

What do you think?


Colorado Supreme Court Rules that Smashing a Drug Dealer in the Face Before Taking His Confession Negates Free Will; Justice Coates Disagrees

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The Colorado Supreme Court ruled Monday that if  a police officer attempts a voluntary contact with a suspect, who waives them off and curses at them, and that officer responds by “[striking the suspect] with a martial arts “back fist” to [the suspect’s] face, fracturing multiple bones in [the suspect’s] face and dropping [the suspect] to his knees”, and afterwards a second officer attempts to spray the suspect in the eyes with a chemical repellant, and then strike the suspect three times with a metal baton around the lower back and buttocks and finally both then force the suspect against the ground,  knee the suspect in the back, and handcuff the suspect, the suspect’s confession is not voluntary.  Nor is it voluntary, according to the Supreme Court, after receiving several hours of medical care to fix the suspect’s face, if the suspect is returned to the same officers who broke the suspect’s face in the previously described manner.  Finally, if officers arrest a suspect for walking away from them and cursing  (what Pueblo officers, the District Attorney, and Justice Coates in his dissent consider to be “disorderly conduct”), the Supreme Court will suppress any evidence the officers collect subject to such arrest, including the cocaine he indicates is in his shirt pocket.

You can read the whole opinion here .

Aaron, www.mahrelaw.com

Worth a Thousand Words?

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Science Friday at NPR had an interesting discussion about forensic art today that is worth checking out.  http://www.sciencefriday.com/videos/watch/10328 Rarely in my practice does the work of forensic artists appear, but it is definitely fascinating to see what these professionals do.  One problem of course is that all human experience at some point or another becomes self-referential.  While I don’t doubt that sketch artists have trained themselves to interfere as little as possible in the sketch, undoubtably there is cross contamination.  Every sketch is the impression of one person attempting to draw what another person has seen only (in some cases) fleetingly.  The ironic thing is that circumstantial evidence, so derided in movies and public media, is often the most powerful evidence available to prove something happened.  That said, the sketches are interesting.

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