Fight ‘Em ‘Til We Can’t

“Every lawyer I know is either painfully underweight or terribly overweight. Is it any wonder that the symbol of the practice is a scale?” ⇒

“Upon investigating the man’s death, a statewide advocacy program discovered he died during an illegal and involuntary court-ordered commitment to the Montana Developmental Center in Boulder.” ⇒

“I like my incompetent people. But there has to be some way that we can get services in Podunk, New Mexico so indigent mentally ill people can get medication, stay on medication, and not have to resort to stealing or pan-handling for their livelihoods!” ⇒

“Public defenders are commonly referred to as “public pretenders.” Unless you want to risk spending time in jail, hire a lawyer directly.” ⇒

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Comes Now Fight ‘Em ‘Til We Can’t (hereinafter FETWC), pursuant to logic, reason, and basic consideration for others, and humbly moves the Honorable Montana Supreme Court to move its annual Swearing In session to a Friday or Monday in the fourth week of September or as soon as possible after the announcement of bar exam results.

FACTUAL BACKGROUND

1. Each year, the Montana Bar Association announces the results of the July sitting of the Montana Bar Exam on or about the third week of September.
2. In 2006, the Montana Bar Association mailed the results of the July bar exam to examinees on September 18. Nearly all examinees knew their results by mail as of September 20, and those results were published online on September 25.
3. The Montana Supreme Court scheduled a special session to accept new members into the Montana Bar on October 18, 2006. This was a full month after the Bar Association announced the results of the bar exam.
4. October 18, 2006 was a Wednesday. Wednesday is in the middle of the week.
5. Successful bar examinees cannot actually practice law in the state of Montana until they are sworn in.

BRIEF ARGUMENT

First, in the future, this Honorable Court should plan to hold its Swearing In session as soon as possible after bar results are announced in order to allow successful examinees to get to work. The current month-long delay between passing the bar and being sworn in is especially onerous for new public defenders and criminal defense attorneys who must sign motions, briefs, and other court documents on an almost daily basis.* This delay is entirely unnecessary and eliminating it would greatly benefit new attorneys who are ready to dedicate their energy and efforts to defending those accused of crimes.

Second, this Honorable Court should also hold its Swearing In session on a Monday or Friday to make it easier for the families and friends of successful examinees to travel to Helena for the event. Many family members or friends of successful examinees live far enough away that they must drive or fly a long distance to get to Helena. Holding the event in the middle of the week forces those people to take time off from work for travel on a Tuesday and then return travel on a Thursday in order to attend the event. If the event were held on a Monday or Friday, at least one of those travel days would not be a working day; therefore, it would be easier for friends and family to attend the event.

CONCLUSION

This Honorable Court should reschedule its Swearing-In session to occur as soon as possible after bar exam results are announced and to occur on a Monday or Friday because such a rescheduling will simply be more convenient for everyone involved.

Wherefore FETWC prays this Honorable Court will grant this motion and/or any other appropriate relief.

Respectfully submitted this 21st day of October, 2006.

* Yes, FETWC knows a new lawyer does not have to participate in the Swearing In at the Supreme Court, but FETWC respectfully wonders why people should have to choose between being sworn in the nice way and being sworn in quickly when It would be so simple to accomplish both by simply rescheduling the Supreme Court swearing in session.

Thanks to everyone who has visited this site thanks to the link on the PD Blog Guide. So far Sitemeter says we’ve had visitors from Helena, Livingston, and Florence, Montana, as well as a number of visits from around the country. Welcome to everyone!

As the “about” page indicates, we’re still figuring out exactly what we’re doing here, but we’re happy to see visitors and we welcome your comments and suggestions. In fact, here’s a question for you: How does a defense attorney keep up w/his workload and still find time to blog?

UPDATE: A special welcome also to members of MTACDL who visited from Missoula, Worden, Lolo, Havre, Florence, Fort Harrison, Whitefish, Billings, and Ronan, Montana. Again, if there’s anything you’d like to see here, let us know!

When you make money from court-ordered supervision and punishment, is there such a thing as a “fair” profit? If so, how much is too much before your profits become unconscionable?

In Mountain Peaks Inc. v. Greg Pohle and Adam Flores, decided Sept. 29, 2006 in Billings, MT, a jury awarded Mountain Peaks (MPI) $154,596 in compensatory damages and $30,000 in punitive damages after MPI claimed that “Phole and Flores wrongfully conspired to commit fraud and business interference and breached their duties of good faith and loyalty.” MPI contracts with the city and county to provide probation services, drug testing, electronic monitoring, and anger management classes for people charged and/or convicted of misdemeanors in Yellowstone County Justice Court or Billings Municipal Court. Apparently, Phole and Flores were employees of MPI up until the end of September, 2005, at which point they quit their jobs and immediately started up a competing probation services provider called Community Solutions, Inc. (CSI). On Phole’s and Flores’ last day of work at MPI, Municipal Court Judge Knisely transferred 110 probationers from MPI to CSI, claiming the move was “in the interest of justice and community safety.”

A third company, Alternatives, also competes with MPI for probationers from the city and justice courts in Billings. Unlike MPI and CSI, Alternatives is a non-profit organization.

MPI had requested up to $453,825 in compensatory damages, an amount it claimed was equivalent to 7 years of lost net profits. That comes out to just under $65,000/year in profit for MPI, and presumably, that’s only the profit it would have made from the clients that CSI took. MPI claimed that prior to the formation of CSI, MPI had 150-160 clients, 90% of them from Municipal Court. That means that CSI took about 2/3 of MPI’s business, meaning that MPI’s annual net profit prior to the formation of CSI must have been closer to $100,000. Perhaps that explains why CSI is claiming it can satisfy the $180,000 judgment and still stay in business. Apparently there’s a lot of money to be made in probation, drug testing, electronic monitoring, and anger management classes.

What’s most disturbing about these numbers is that probably 99% of that profit is coming from indigent defendants, many of whom can’t even afford rent, let alone supervision and drug testing fees. It seems to me that those probationers should never have to pay more than the actual cost of their court-ordered “services.” And if they are going to pay anything above cost, it should go back to the taxpayers rather than into the pockets of private individuals.

This is especially true with regard to those who are awaiting trial. Yes, a healthy portion of the business CSI and MPI are getting from Billings Municipal Court is coming from court-ordered pre-trial supervision. That means that people who have not been convicted of anything and who have only been accused of a misdemeanor are paying hundreds of dollars a month for the privilege of being out of jail while they await their trial.

In the comments on the Billings newspaper’s coverage of the trial, several people noted the large amounts of money involved. Commenter “CSI: Billings” wrote:

What is interesting is what is happening behind the scenes in open court before the good Judge Knisely. Virtually no one charged with a misdemeanor escapes pre-trial supervision or misdemeanor probation with one of these companies. Judge Knisely is not a part of the conspiracy! What about the kick backs from these companies to the City Court for “administrative fees”? What about City Court bringing in a million + $$$$ to the city coffers last year in fines? What about Mountain Peaks and CSI Billings making profit off of people who are in trouble and revoking them from probation when they cannot pay their supervision fees? What about the fact that Mountain Peaks (a for profit company) charges $150 a month for pre trial supervision and Alternatives (a non-profit company) charges $50 per month but the Defendant is not given a choice which company to go to by the good judge? Yeah, your right Judge Knisely you are not part of the conspiracy. . . you run it.

I have no idea who “CSI: Billings” is or whether his/her facts and figures are precise (except for the $100 difference in pretrial charges, which I can verify is accurate), but he/she certainly raises issues that beg more attention from the defense bar and the public, as well.

Today the Montana Supreme Court affirmed Wrzesinski’s conviction for felony DUI. On appeal, the defendant argued that the trial court (First Judicial Dist. Ct., Hon. Dorothy McCarter, presiding) erred in denying Wrzesinski’s motion to dismiss by concluding that the State did not impede the defendant from getting an independent blood test. ¶10. The Court rejected this argument, holding that any request for an independent blood test must be “clearly stated and timely made” and that Wrzesinski’s mention of such a test had not met that requirement. ¶19. Further, the defendant had not proven that the arresting officer “unreasonably impeded” his right to the test. ¶23. Officers have no legal duty to ask defendants whether they want an independent blood test; so long as the officer reads the implied consent warning which advises defendants of their right to such a test, the officer has satisfied the law. ¶25.

Wrzesinski also argued that the trial court erred in denying his motion to suppress statements made during a routine traffic stop because the officer failed to give the defendant a Miranda warning. ¶27. The Court rejected this argument, as well, reasoning that the officer’s stop of Wrzesinski was not custodial, and therefore Wrzesinski was not entitled to the protections of Miranda. ¶34.

In my view, the most interesting part of this decision is the way it reaffirms the Court’s repudiation of the “free to leave” test for whether an interrogation is custodial. See U.S. v. Mendenhall, 446 U.S. 544. The Court admitted that “Wrzesinski was not free to leave,” but explained that this stop still wasn’t custodial because “the facts demonstrate he was subjected to the routine process surrounding a traffic stop, noncustodial in nature, until he was placed under arrest.” ¶34. The Court relied on its reasoning in State v. Elison, 2000 MT 288, ¶33, which held that a person is not “in custody” when he/she is merely subjected to “the normal restraints that any motorist might expect to be subject to during a routine Terry stop.” The Court also relied on its holding in State v. Allen, 1998 MT 293, ¶13, where it held that a stop was not custodial where it was “public, routine, and temporary in nature.”

In short, Wrzesinski apparently reaffirms the Court’s position that police in Montana have wide latitude to detain citizens w/out advising them of their rights. Is it just me, or is this line of decisions ripe for appeal to a higher authority?

Who decides whether a defendant qualifies as “indigent” for purposes of being appointed a public defender under Montana’s new Public Defender Act? That was the question the MT Supreme Court recently decided in Rios v. Harris. In brief, the Court granted a Writ of Supervisory Control saying that the Office of State Public Defender (OSPD) decides who qualifies according to the criteria specified in Title 47 of the Montana Code.

The Court said that §47-1-111(1), MCA, calls for appointment of counsel as follows:

1. The court appoints counsel to any accused person facing jail time (and also in dependent/neglect and a few other matters). See also §47-1-104(4), MCA.
2. The Office of State Public Defender (OSPD) begins representation but also determines whether the defendant meets the indigency criteria.
3. If the defendant is not eligible, the OSPD must notify the court so that the court may rescind its order appointing counsel. However, OSPD must remain as counsel until the court issues such an order.
4. The court may review the OSPD’s determination of eligibility, but only in cases where one of the parties requests such review. Under no circumstances my a court initiate such a review sua sponte.

Justice Jim Rice dissented, claiming that the majority erred in holding that a court cannot initiate the indigency determination on its own.

Does anyone have any thoughts on this opinion? Did the majority get it right or was Rice more on target? And how common is it for the Court to issue a Writ of Supervisory Control?