Fight ‘Em ‘Til We Can’t

Kudos to law enforcement officials in Yellowstone County who decided to release Daisy Rae Morast today. Morast had been held in the county jail since Saturday for the stabbing death of her husband, Jason Morast. Today, Billings police Sgt. Kevin Iffland says Morast was released because the evidence, including two horrific 911 calls, show she has “a substantial claim of justifiable use of force.”

It’s great to see these officials exercising the discretion that justice requires. It happens far too seldom, which makes it all the better when it does happen.

Of course, further investigation could put Daisy Morast back in jail. It’s hard to say. But for now… Good luck, Daisy. You’re going to need it.

I saw a jury deliver a “Not Guilty” verdict today. I had nothing to do with the case but it was still an exhilarating moment. There’s nothing quite like that tension, anxiety, and fear in those moments when the judge asks the jury if they have reached a verdict, and the foreperson responds, “yes, your honor, we have.” You’re on the edge of your seat, heart racing, searching the faces of the jurors to pick up any sign of what they are going to say, and then, simple as that, there it is: “Not guilty, your honor.”

Really, what could be sweeter?

Picking up on my offhand comment in the last post that the SCOTUS recently said the right to counsel begins at initial appearance: The decision came down in June in Rothgery v. Gillespie County. I haven’t yet been ambitious enough to read the full decision, but according to the lengthy summary from SCOTUSblog, all that case said is that the right to counsel attaches at initial appearance. What that means, e.g., how quickly after initial appearance a person must have access to counsel and for what types of hearings or purposes, remains unclear. However, it appears the case does not say that a person has a right to have an attorney present at initial appearance. That sounds like bullshit to me, but there you have it. Your right “attaches” there; what “attaches” means in practice remains open to interpretation, apparently.

Here’s what the test should be: Are you in jail? If so, you have a right to an attorney at any and all appearances before a judge and at any and all interactions with law enforcement (other than jail staff; that would be unworkable). Of course, you can waive that right, and many people do, but that’s a nice bright line. If you’re not in jail but have been ticketed or given a notice to appear, you should be informed of your right to counsel along w/the citation/notice and given instructions for contacting the public defender for advice prior to initial appearance. This could be handled nicely by making sure there a public defender was present at all initial appearances, but I won’t be holding my breath for that one.

Today’s Billings Gazette features a front-page exposé of the problems in Stillwater County Justice Court. It seems the justice of the peace has regularly held one-on-one arraignments at the county jail for maybe 20 years. These are arraignments that are basically secret—she does not inform the prosecution or any potential defense counsel that she’s going to hold the arraignments. She holds them randomly; often on weekends and holidays.

What SCOTUS decision of the last term said the right to counsel begins at initial appearance? If I were a good blogger, I’d look it up and tell you, but it’s there. Nearly every court of limited jurisdiction in Region 9 of the Montana State Office of Public Defender regularly holds initial appearances in a similar way — randomly, without notifying prosecution or defense. Sure, the judges advise the accused of their rights, but that’s very different from making sure the accused has access to an attorney right then and there.

The Gazoo article also highlights the problematic practice of these courts initiating revocation procedings sua sponte and again w/o notifying defense or prosecution. The law in these areas seems clear that these practices are not legal, yet they go on day after day. Oh, and how does the public feel about it? The Gazoo readership sees no problem here. Welcome to Montana! Yeeehaw!

Is it a conflict of interest for the Regional Deputy Public Defender in a region to be the son of one of the few District Court judges in that region?

The Billings media is all abuzz about a nearby small town cop who arrested someone for misdemeanor DUI and negligent endangerment after the cop shot at the guy through the windshield of his own patrol car. Yeah. Video available at the above link, w/more here and here.

Also in the local headlines, a high speed chase took another life Friday morning. There are some jurisdictions that have made it illegal for cops to pursue at high speeds in urban areas. The logic is: If you don’t chase at high speeds, people are much less likely to drive at high speeds where doing so puts many people at risk. Get the license plate, send cars ahead, monitor the suspect, and pick that person up later. Could such a tactic have saved this woman’s life? We’ll never know, but it certainly makes sense to me.

Unfortunately, it looks like the victim’s family won’t be able to sue the pursuing cops, at least it doesn’t sound like it based on this report of a 2007 SCOTUS decision on a similar issue. More comment here, w/links to what was apparently the decisve cop car video in the case, which was Scott v. Harris. Fascinating. Someday I’d love to have time to dig deeper into this, but it’s not going to be today….

For something completely different, here’s how a federal jury is picked in Billings and that “Montana is the largest geographically of the 94 judicial districts in the continental U.S.,” meaning some jurors might have to drive nearly 300 miles to appear for jury duty. Crazy. Also in the story: A potentially good voir dire question when you think race might be a factor in your case: “Do you tell jokes about minorities?” It’s amazing how many people do, which is just one reason why Judge Cebull’s claim that race “doesn’t matter to Montana juries” is naive at best. Montana is somehow the only place in the country that sees no color? Riiiiight.

Almost anyone involved with the Office of the State Public Defender in Montana can tell you: This first 18 months has been a little rocky. There’s not enough money and that means there’s not enough people or other resources to fulfill the mandates set for the Office by the legislature and the ACLU case that started this whole ball rolling. Of course, those are the same problems plaguing indigent defense systems nationwide; usually it’s just a matter of degree. Take, for example, Missouri, where it appears things have truly reached a state of crisis.

That story doesn’t provide much detail, but it does suggest the attorneys are stuck between a rock and a hard place. The courts are saying they’re personally liable for inadequate or ineffective assistance of counsel, regardless of the fact that the legislature won’t provide them the resources they need to do their jobs. So what is a lawyer to do? Have they begun refusing to take cases? That might be a start. Of course, then the article says the legislature is “considering” a bill that would allow the lawyers to refuse to take case. Um, what? You mean to say there’s some law saying they can’t refuse? Even when their rules of professional conduct say they must refuse if they cannot adequately represent new clients? Whoa.

Obviously no matter how bad things seem, they could always get worse….

Meanwhile, it sounds like the Vermont Supreme Court just issued a fascinating opinion on speedy trial delays. If the news article is correct, it says that public defenders are part of “the state,” so delay caused by a public defender is attributable to the state, not to the defendant. Crazy. I mean, it actually might be a more fair way to look at it in many cases where a public defender’s heavy workload means he/she isn’t ready for trial and has to ask for more time through no fault of the defendant, but still, this decision would turn speedy trial analysis upside down in Montana.

A young man in Evergreen, MT (near Kalispell) is being charged with negligent homicide after a 19-month old girl he was supposed to be watching allegedly picked up the loaded pistol he had beside him on his bed and ended up shot in the head when he tried to grab the pistol back from the child. Whatever happened, this story is a very sad one.

Just two things: First, the JP up there set bond for this young man at $200k; if this had happened in Billings I would not have been surprised to see $500k or more. We’ve seen a couple $1 million bonds in the last year, which is insane.

Second, in light of stories like this, how can anyone seriously argue that the solution to violent crime is for more people to be armed? (E.g., here or here.) I realize the issues are not identical — guns in private homes v. guns in public places such as schools, but still, what seems clear is that more people w/more guns means more deaths.

A recent Justice Talking episode focused on the question: Are drinking and driving laws too punitive? It’s possibly a good question, but it seems a better one is: When simply making a behavior illegal and increasing punishment for that behavior does so little to stop it, shouldn’t we look for other solutions to the problem?

Much of our society is rabidly against drinking and driving. It’s one of the only crimes you see advertised in the media on a regular basis—don’t drink and drive, friends don’t let friends drink and drive, etc. Many of these ads are even paid for by the alcohol industry. Yet, at the same time, that industry is actively advertising its products and our society is very accepting of the consumption of alcohol so long as people don’t consume and then drive. Also at the same time we have a car culture; our society and physical space is designed around the individual driver of the individual vehicle.

So we have a dilemma: We basically encourage drinking — it’s a big industry and many off us enjoy it. Prohibition didn’t work because so many people just like a drink now and then. Yet, we also fail to provide adequate alternatives to driving in order to get from A to B, and specifically from bar to home after a night of fun. And although cabs are available in larger towns and cities, people are often reluctant to call a cab to get home from the bar because they know they’ll face the problem in the morning of somehow retrieving their car, or having it towed before they can do that, etc.

Instead of continuing to encourage people to do two incompatible things, why not provide an alternative? Here’s one idea that will never happen but which I think would greatly reduce the incidence of DUI : Require establishments that serve alcohol to provide rides to anyone who purchases a drink. But not just that, the ride also will include a transport of your personal vehicle back to your home with you. That would mean each bar would have to employ at least two people for transportation services — one to drive you and one to drive your car home. It would be costly, but it would eliminate a lot of the excuses people use for driving home after they know they’ve had one or a few too many.

Thoughts?
[tags]DUI[/tags}

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