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My name is Greg Klebanoff and I am here to welcome you to my blog. I am an attorney and I specialize in Criminal and Family Law though I do many types of litigation. My law firm is in Fayetteville Ar. where I have been based for many years. I hope that you are here to just peruse my site, but if you need help or would like to speak to me please feel free to contact me by either registering here and briefly discussing the issue or if you would like more privacy please visit my contact page here: http://www.klebanofflaw.com/contact.html  or simply use the above Contact Us link or feel free to call me at 479-442-4700.  I would be happy to discuss any issue with you and I do offer a free initial consultation so that we can get to know each other and discuss the issue you would like me to resolve for you.

If you would like to get some general information or find out a little more about me on your own please feel free to peruse the rest of my website by using the menu above the banner on this page.

Thank you for your interest and your visit!

Eyewitness identification sucks!

Yesterday I was set to try a misdemeanor battery case that provided an excellent illustration of the pathetic unreliability of eyewitness identification. There has been a bar fight. The supposed victim couldn’t identify his attacker, because he was jumped by about five guys, knocked out and couldn’t remember much. The state’s star witness was fellow who worked at the bar and supposedly walked outside to find my guy (all by himself) pummeling the victim.

I sat down next to him and asked what he saw.

“Did the prosecutor show you a photo lineup of possible assailants?” I asked.

“No.”

“Did you know the assailant from before or have you seen him after the fight?”

Again, “No”

“Do you think you’d recognize him if you saw him now?”

“Yea, I’m pretty sure I would.”

“Is that fellow sitting alone on the third bench wearing the brown tee shirt him?” I asked, gesturing at a witness in an unrelated case who looked nothing whatsoever like my client.

“Yes.”

“Really? Are you absolutely certain?”

“Absolutely! I’d swear my life on it!”

After a brief conversation with the prosecutor the matter was dismissed. But what if the witness had first been asked to identify my client when he was sitting at the defense table? And how many innocent people are in prison based on exactly this type of blunder?

I know it’s been said before, and many times, but our rules regarding eyewitness identification are in need of a major over hull–and immediately!

A client asked about Arkansas’ self-defense laws

The general common law rule followed in Arkansas is that the victim of an unlawful attack may defend himself with an amount of force proportional to the amount of force used against him.  For example, while a gun can be used against a gun or knife wielding assailant, it cannot generally be used against an unarmed attacker.

Further, once your assailant breaks off his attack you lose your right of self defense and cannot hurt him additionally.  You also generally have no right of self-defense if you are the “initial aggressor,” i.e. the first party to use unlawful force.

Additional rules apply when using deadly force in self-defense.  Arkansas requires that a person retreat (provided he can safely do so) before defending himself with deadly force, though retreat is not required if the person is in his home.  In addition, while reasonable non deadly force is allowed in defense of property, deadly force is allowed only in defense of persons.  Arkansas also permits the use of deadly force to prevent the commission of a violent felony.

Also understand that the amount of force you are allowed to use in self-defense is the minimum necessary to stop the attack.  So even when dealing with an armed attacker, if you can make him break off his attack without killing him you cannot do anything more.

A client asked me what would happen if he committed a crime and then hit his head wiping out any memory of the event.

If your brain damage is so great that either (1) you cannot understand the nature of the proceedings against you; or (2) you are unable to assist in your defense, then you are unfit to proceed and cannot be prosecuted.  This does not mean you will be released, at least not right away.  People found unfit to proceed are usually turned over to a mental health facility to determine if their fitness will be restored.  If their fitness is restored, the prosecution can continue.  If not, they have to be released within one year, if lack of fitness is the only reason for holding them.

Otherwise your mental state after you commit the offense (caused by hitting your head or whatever) is irrelevant.  What matters is only whether you had had the requisite mental state for the crime when you committed it.

False Confessions–Or Another Reason to NEVER Talk to Police

Cases where their clients confess are probably the most difficult for defense attorneys.  When a defendant confesses, juries almost always convict.  The psychology at work here is obvious: Why would someone admit to something capable of landing them in prison unless they really did it?  The proposition that only the guilty (and perhaps also occasionally the insane) confess is a common sense conclusion that seems all but inescapable.

But despite appearances many innocent (and generally sane) people have falsely confessed, and far more often than hardly anyone would imagine.  A recent study found that of three and eleven people conclusively proved to be innocent by DNA evidence, over 25% had given false confessions.

For a fascinating discussion of police interrogation techniques and why they have a often produce false confession, consult this article from the New Yorker: http://www.newyorker.com/magazine/2013/12/09/the-interview-7

The Ordeal of Marijuana Prohabition

Possession of marijuana has been criminalized in most states since the 1930s.  At long last the tide appears to be turning: Colorado and Washington have legalized recreational use of the drug.  Oregon and Alaska have enacted legislation to the same effect.  Washington, DC appears on the brink of following suit.  Nonetheless, marijuana remains illegal both under federal law and the law of most states.  In addition, there are many powerful people and organizations who feel it is their duty to enforce these laws.

The rash doctrine often uttered by prosecutors, judges, and politicians is that so long as a law is on the books it must be enforced.  Against this stands the almost universal experience of mankind.  It’s unlikely anyone who ever actually studied the growth and change of the law would hold that a statute should be enforced simply because it is on the books.  Any student of the law knows this is an idle statement made by those ignorant of history, or by those especially eager to enforce some particular law.

Most laws grew out of societal customs.  Such customs became moral attitudes and were eventually established as laws.  Long before statutes were passed, the great majority had already formed their attitudes and notions of right and wrong.  Statutes are simply a codification of existing norms.  Every once in a while, however, an active minority, motivated by religious fervor, political intolerance, or some other special interest is able pass a law not founded in common sense morality.  These laws are often draconian, arrogant, and oppressive.  They violate public conscience and the beliefs of many citizens.

No better illustration can be found than the laws enacted by the Inquisition.  Such laws were meant to enforce religious doctrines, and for better than four centuries were used to torture and execute millions of people. The reign of terror virtually annihilated freedom of thought and expression throughout most of Europe.  We now look back at the Inquisition with horror, yet we forget the means by which such laws were gotten rid of.

Religious persecution was not abolished by repealing the laws enacted to justify it.  Rather the inquisitors themselves gradually refused to enforce the laws.  They framed all manner of excuses and evasions until they finally undertook their appointments and salaries without any thought of performing the bloody services for which their offices were created.  In some cases the laws were eventually repealed.  In others they remained on the books but fell into disuse.  A few have never been formally repealed to this day.  Such laws are dead because even the most unenlightened person would refuse to torture and burn people at the stake solely on the grounds that the government must enforce all laws remaining on the books.

It should be noted that in many cases religious and legal authorities attempted to continuing enforcing the laws of the Inquisition–and related laws punishing witchcraft–after long public opinion had turned against such laws.  People continued to be brought to trial under these outdated and barbaric statutes.  Officials relaxed their efforts only when juries composed of common people repeatedly refused to convict.  The change in the law came not because the statutes were repealed, but rather because juries were too humane and decent to follow the law.

Laws against organized labor fell for the same reason.  For a time near the end of the 19th century it was a felony for one worker unhappy with his wages or working conditions to solicit another to join him in a strike.  Such laws were enacted by corporations who wanted free competition among individual workers.  They flourished until nullified by juries.  Only long afterwards were they repealed.

So-called “Blue Laws”–which made it a crime not to attend church regularly, for women to wear silk and ribbons in their hair, and to work on the Sabbath–died in the same way.  People ignored them, juries refused to convict violators, and they died on the vine.  Some were eventually repealed as part of general legislative housekeeping.  But many remain on the books to this day; they are not worth repealing because they are dead.

Laws prohibiting the possession and recreational use of marijuana need to fall to the same fate.  Marijuana prohibition–like many of the outdated laws discussed above–was enacted by a minority of citizens and was initially allowed to stand because in the 1930s the drug was unknown to the vast majority of Americans.  At the time marijuana use was primarily associated with black jazz musicians and Latin American farm workers–both distrusted racial minorities without political power.  Opportunistic politicians took advantage of such bigotry and propagated blatant falsehoods about the so-called dangers of marijuana; so the drug was banned.

Now virtually all anti-marijuana propaganda has been exposed as pseudo-science.  The drug is indisputably much less harmful than alcohol.  In fact, the only supposed dangers of marijuana capable of withstanding scientific scrutiny are that marijuana smoke–like tobacco smoke–is damaging to the respiratory system and that people under its effects–just like people drinking alcohol–should refrain from driving or operating heavy equipment.

Further, marijuana prohibition is immensely expensive in terms of law enforcement and costs of housing those incarcerated for using and possessing it–not to mention ruining the lives of many people whose only “crime” is a fondness for an essentially harmless substance.  Legalization would bring an end to these burdens and provide the government with an additional source of revenue through taxation.

I fully believe the marijuana prohibition will soon be abolished–indeed it is already underway–but for things to move promptly as they should it is not enough for people to petition the government for change.  Citizens and juries need to see the difference between morality and the law, and we all need to dispense with the dangerous naivete of thinking that laws should be enforced simply because they are on the books.

Fitting laws to people is like fitting clothes to people.  The people come first; the laws and clothes need to be fitted to them, not vice versa.  We should take a lesson from Trajan, the Roman Emperor, as shown by his correspondence with Pliny.  In the year 112 A.D. the campaign against the Christians was well underway.  Pliny, the governor of a province, wrote Trajan for instructions on how to carry out prosecutions.  Trajan replied: “Do not go out of your way looking for them.”

 

Capital Punishment

The real reason so many support capital punishment is that they take pleasure inflicting pain on those they hate.  Of course, they aren’t likely to admit this, but it’s very easy to prove that it is so.  Throughout most of history punishments were vindictive.  As recently as the 1700s virtually every crime–from cutting down a neighbor’s tree, to stealing his chickens, to shooting the king’s deer–was punishable solely by death.  Our ancestors were more honest with themselves and didn’t hide their motives so well.  So-called modern man thinks himself better than this and cloaks his real feelings with terms like “deterrence,” retribution,” and “justice.”

Prior to the industrial revolution good folks not only used the death penalty for most offenses, but inflicted it in the most terrible ways–flaying, crucifixion, drawing and quartering, drowning, stoning, and starving to death just to name a few.

Today such horrific physical tortures are no longer used–at least not in the west.  But they have been replaced by what may be a far crueler form of mental torment.  The condemned is notified of the exact time and manner of his death and locked in a cell.  There he has nothing to occupy his mind save counting down the months, weeks, and days that remain of his life.

As philosopher Albert Camus eloquently put it: “But what then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared?  For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months.  Such a monster is not encountered in private life.”

Judges and legislators today deny they punishment from vengeance.  They confess to “indignation” for the criminal, but insist it is “righteous indignation.”  But the word “righteous” is no more than a confession of hypocrisy.  Hatred is hatred, and calling it righteous changes nothing.  It is impossible to inflict pain and torture upon someone without hating them.

Most contemporary champions of the death penalty defend the practice by insisting that killing criminals deters crime.  But there is absolutely no evidence this is true.  States without the death penalty have lower murder rates than states with it.  The difference isn’t much, but it plainly refutes the claim that killing criminals keeps others from committing crime.

Are people kept from killing because they are afraid to die?  Every murderer–except those who kill in the heat of passion–plan their escape.  They intend not to be caught, and often they are not.  So the fear of execution cannot deter them.  In crimes of passion the heat of moment extinguishes any thought of capture or punishment.  So, again, fear of death is not a deterrent.

The extend to which individuals are responsible for their behavior will always be a subject of debate.   What is clear is that most men who kill are very unstable and easily moved by outside pressure.  Crime, poverty, and ignorance go together.  When the world understands this and sees that every act is preceded by a cause or series of causes, it will seek to remove the causes of crime, and poverty, and ignorance.   Then, and only then, will the great mass of human maladjustments vanish from the world.

Police, Defense Lawyers, and Justice

“Policemen so cherish their status as keepers of the peace and protectors of the public that they have occasionally been known to beat to death those citizens . . . who question that status.”

—David Mamet

I’m a criminal defense lawyer.  Few professions have a worse reputation than mine.  A lawyer’s supposed penchant for lying and other unsavory antics is the butt of countless jokes.

“How can you tell when a lawyer is lying?  Because his mouth is moving, of course!”

It’s ironic that people think like this, because while they’re bad apples in every basket attorneys have a duty to tell the truth and can be disciplined for lying, whereas police are both allowed and encouraged to lie—and are even trained in how to lie effectively!

Undercover police legally can and do lie about who they are.  The common belief that a police officer has to be honest when asked and admit he’s a cop to a prostitute, a drug dealer, or whomever else he’s trying to bust is an urban legend.  It’s completely untrue.  It is perfectly legal for a cop to lie about being a cop; and, contrary to popular belief, the fact that the officer lied will not get the person he arrests out of the charge because of entrapment.

Yes, entrapment is a legally recognized defense, but it very seldom works and it takes much more that a dishonest cop to argue it successfully.  Beating a charge based on entrapment requires proving (1) that the idea of the crime came from police, and (2) that the actions of police were so bad as to make an ordinarily law abiding person commit a crime.  The second prong is the bastard to prove.  It’s almost impossible to convince a jury that a normally law abiding citizen would commit a crime just because a cop (who probably pretended not to be a cop) asked him to.

Police are also allowed and trained to lie in interrogations, which is why everyone should read the entry about never talking to police on my Common Questions page.  Suppose you’re arrested on suspicion of burglary.  One Leila Rushing’s house was broken into; her antique china and computer stolen.  After being taken to the police station you find yourself sitting across a card table from a detective.  You’ve been read your rights.  He accuses you of the burglary and wants you to confess.  You deny any involvement.

“Sure, I know Leila,” you stammer out, “but I swear I didn’t break into her house.  Hell, I’ve never even been inside her house!”

The detective props up his feet, and with a steely eyed glare that would make Clint Eastwood burn with envy, comes back with: “Well, if you’ve never been there, how come we found your fingerprints on her computer stand?”

The detective’s lying.  They never found your fingerprints anywhere.  He’s just hoping now you’ll think you’re caught and confess.  Further, his actions are perfectly legal and cops use such tactics all the time.  So understand this and never—absolutely never—give up your right to remain silent.

There is, however, a context in which police are not allowed to lie, though they frequently frequently do so anyway.  This is in arrest reports and courtroom testimony.

In my legal practice I have represented hundreds of people charged with all sorts of crimes.  In the course of handling their cases I have the right to see all evidence against my clients.  In most cases, at least part of this evidence are written police reports.  After being handed a copy of the report, most clients respond with righteous astonishment and outrage.

“What?!  This isn’t what happened!  It didn’t go down like this at all!  These are all lies!”

Of course they’re all lies. I’ve read countless police reports and it’s actually quite rare to find an honest one.

And the officers who lie in their written reports almost always tell the same lies in court under oath and under penalty of perjury.

Unfortunately most jurors will believe a police officer’s testimony over a defendant’s and often convict people on this basis.  Part of the reason may be it’s too frightening to accept the reality that we live in a society where those tasked with protecting our freedom and safety routinely lie to put people in jail.  But, like it or not, police are not always the good guys and quite often have no problem stretching the truth to convict someone they are convinced is guilty.

Further, most trial judges pretend to believe police officers they know are lying.  These same judges generally disbelieve defendants about whether their constitutional rights were violated, even when they’re telling the truth.

The only good news here is that most prosecutors and judges will not knowingly convict someone they believe to be innocent of the crime charged (or a closely related crime)—though this rule does not apply to members of organized crime, drug dealers, and career criminals.

The sad truth about our so-called justice system is that nobody really wants justice.

Another truth is that if you find yourself on the wrong end of the system, the only one on your side is your criminal defense attorney.  It’s easy to bash defense attorneys until find yourself wrongly charged with a crime.  But innocent people are charged every day and without people like me they wouldn’t have a prayer.

 

Kill all the lawyers?

The other day I found myself thumbing through Objection, a recent book by Nancy Grace.  For those who don’t recognize the name, Nancy Grace is a former prosecuting attorney turned television personality, a myopic demagogue probably best known for her hysterical rants against members of my profession.  I try and avoid all things Nancy whenever possible, and doubly so before lunch.  Nonetheless, this time I thought I might give the lady a second chance.  After all, by its very nature television is not suited to sustained reasoned debate.  Most attention spans are far too short to sit through an in depth discussion of anything.  TV viewers want everything reduced to quick, easily digestible sound bites and glib catch phrases.  Moreover, if someone on the screen happens (as Nancy Grace does) to have a penchant for screaming and bellicosely demonetizing anyone who disagrees with them, hey that’s good for ratings. Books, however, don’t put so much emphasis on style over substance.  They permit detailed carefully reasoned arguments and the opportunity to give a topic the in depth treatment it deserves.  So perhaps Nancy makes more sense in print than on Larry King Live.  Ah, how I wish that were true.

The book begins with perhaps the most maligned misunderstood piece of dialogue Shakespeare ever wrote: “The first thing we do, let’s kill all the lawyers.”  Well, did Shakespeare advocate killing lawyers?  Not at all; in fact, he was advocating the opposite.   These words are spoken by the villain—yes, the villain—“Dick the Butcher” in Shakespeare’s “Henry VI.”  The Butcher was a follower of the rebel Jack Cade, who thought he could become king if all the people who stood up for justice in society—specifically, the lawyers—were put out of the way.  Far from bashing lawyers, Shakespeare is, in fact, complimenting them!  So Nancy please show your audience enough respect not to quote from something you’ve obviously never read!

Nancy predictably goes on to chastise lawyers for defending people guilty of heinous crimes and, occasionally, securing their freedom.   How, she asks, can defense lawyers do such a thing and still look at themselves in the mirror?  While Nancy never takes a stab at what an answer to her rhetorical question might look like, allow me to stammer out a few quick replies.

First, as a defense lawyer my job isn’t to determine the guilt or innocence of my client.  That task goes to the judge and jury.  The plain truth is that for someone charged with a crime, literally every other cog in our so-called justice system is against him.  Without a competent defense lawyer he has virtually no chance of beating the charges or establishing his innocence—and, yes, some people charged with crimes really are innocent.  Police and prosecutors are human and they do sometimes make mistakes.  Further even the guiltiest defendant is entitled to an adequate defense.

Second, it’s important to challenge the government and keep it honest, and defense lawyers are the primary means of doing this.

Given Nancy’s disdain for members of my profession, I expected her to propose a replacement.  If defense lawyers really are as bad as she says, what would she put in their place?  It speaks volumes that she is utterly mute on this point.  Suppose we stop making defense lawyers available to everyone charged with a crime.  The only alternative is a legal system like the one they have in North Korea or the former Soviet Union, where lawyers only represent those defendants deemed “entitled” to a defense by the government.  Does anyone really want this?

As a defense lawyer I have taken an oath to zealously represent my clients to the best of my ability within the bounds of the law.  I take this oath extremely seriously.  The oath requires me to subordinate all other interests—ideological, career, or personal—to this goal.  To a surgeon in the operating room, the only goal is to save the patient, regardless of whether the patient is a good or bad person, regardless of whether he’s a saint or a mass murderer.  As a defense lawyer, my goal is the same: to save my client.  Everything else is secondary.  And far from being ashamed of this duty, I wear it proudly as a badge of honor.

Marijuana Madness

This entry’s name is a variation on that of a famous 1930s anti-marijuana propaganda film.  The film alleges that smoking marijuana causes madness.  That is not my thesis here.  While there is a madness associated with marijuana, it is of a very different kind than the film would have us believe.

When it comes to U.S. marijuana laws, the inescapable conclusion is that quite a lot of states and quite a lot of lawmakers are insane.  Simply and literally insane.  This is an extremely strong claim, but I submit there is no avoiding it once one reflects on the harrowing disparity between how marijuana is regarded in one state as opposed to in another.  I further insist the issue is polarizing to such an extent that regardless of which side of the debate one finds oneself on, he is committed to relegating the opposition to the madhouse.

Currently two states—Colorado and Washington—have legalized marijuana for recreational use.  There marijuana can be legally bought at licensed stores and smoked by any adult who simply wants to get “high.”  Another seventeen states have “decriminalized” marijuana, making possession of small amounts either legal or the equivalent of a traffic citation.  Several others have legalized marijuana for medical use.  Yet in many states—including Arkansas—possession or delivery of marijuana is often an extremely serious crime, carrying the very real possibility of many years behind bars and tens of thousands of dollars in fines, court costs, and attorney’s fees.

Under Arkansas law someone with no prior drug offenses arrested with up to four ounces of marijuana is guilty of a misdemeanor and can be punished by confinement in county jail for up to one year and/or fines up to $2,500.00.  A larger amount of pot and/or a third or subsequent offense is an automatic felony.

The upshot is that we live in a country where what is legally done in Colorado and Washington is punishable by six or more years imprisonment in Arkansas and many other states.  Phrased differently, in much of the United States possession of even a modest amount of marijuana is regarded as more serious than physical assault and battery on a police officer, yet it is completely legal in other states!  There’s no avoiding the conclusion that many states simply have to be wrong here.  Further, there are degrees of being wrong, and the disparity within our country’s marijuana laws illustrates that the wrong ones must be at the very bottom of the scale of wrongness.  They are as wrong as one can be—indeed they must be insane.

In April 2013 Harvard economist Jeffrey Miron calculated that our marijuana prohibition costs federal and state government about $20 billion per year.  Of course, if marijuana is as harmful as many people appear to think it is, perhaps this number represents tax dollars well spent.  But before we continue making what might be a $20 billion mistake, shouldn’t we at least glance at the evidence?

Many people ask: Is marijuana safe?  But that’s a vague question? What do we mean by “safe?”  Safe compared to what?  There’s no doubt that smoking marijuana in one’s own home is far safer than many other activities—playing football, hunting deer, hitting golf balls on a driving range, fishing on Beaver Lake, taking an ocean cruse on Princess Lines, and driving from Fayetteville to Little Rock are all examples.  Further, all these are examples of legal activities!

A related question is whether marijuana is safer than alcohol?  Here the answer is simple and indisputable: marijuana is immensely safer.  According to the Centers for Disease Control and Prevention out of Atlanta, excessive alcohol use is responsible for approximately 88,000 nationwide deaths annually.   Alcohol is highly toxic and a lethal dose is fairly easy to reach. No one has ever died from an overdose of marijuana and no one ever will, because an overdose is medically impossible.

So given that one cannot physically overdose on marijuana, the question remains: What are its harms? There exists a mountain of literature going both ways—literature frequently bespeaking more of a writer’s political leanings than of the available scientific evidence.

So how are most of us, as nonscientists, to resolve the conundrum?  The answer lies teaching ourselves just a little about how science works, about the self-correcting nature of the scientific process.  Specifically about the concepts of peer review and reproduction.

Science is replete with individual studies yielding inconsistent results. A (very) few studies have supported the thesis that marijuana causes violent behavior, but other studies have been unable to reproduce their results.  That is, studies suggesting a nexus between marijuana and violence have not survived peer review.  The upshot is that, a single study, or even a small group of studies, standing alone establishes little. Perhaps the experiment was flawed. Perhaps the proper controls were not in place. Perhaps experimenter bias affected the results.

Despite its many discrepancies, however, science slowly converges on the truth by requiring all researchers to clearly explain their methodologies, to state exactly how their experiments are conducted, what results they find, why they reach the conclusions they do, and allowing their peers in the scientific community to review—and hopefully reproduce the results of—their research.  If others find fault in their methodologies or reasoning, or are unable to reproduce the same results, then their conclusions are suspect and further research is needed.

If, on the other hand, a study is specifically described, so any flaws are open for peer review, and the same methodology applied time and time and again reproduces the same results, then those results gradually become accepted scientific knowledge.

Many claims have been made about the harmfulness of marijuana. It has been accused of lowering overall intelligence, of causing violent and suicidal behavior, of damaging both long and short term memory, of causing “anti-motivational syndrome” (basically, making people lazy), of being a “gateway” to other, harder, drugs, of harming the lungs and respiratory system, of increasing the estrogen count in boys (sometimes even to the point where they start growing breasts), and of increasing the prevalence of automobile accidents, just to name a few.

Some of these claims have been consistently supported and had their results reproduced in numerous peer reviewed studies.  The great majority have not.

In terms of affecting health only two claims that marijuana is harmful have withstood peer review.  First, marijuana smoke is harsh, is harmful to the lungs and bronchial system, and can lead to many of the same health problems associated with smoking cigarettes. However, this isn’t quite as bad as it might seem on its face, because hardly any potheads smoke as much weed as tobacco users partake of their vice.  It’s difficult to imagine anyone smoking 20 marijuana joints a day, but many tobacco users routinely smoke that or twice as many cigarettes.

Second, marijuana adversely affects short term memory, and these effects continue after the euphoric “high” sensation ceases.  But there is absolutely no evidence that these effects are permanent or even last more than a few hours.

None of the other claims about marijuana causing health problems have survived properly conducted, peer reviewed scrutiny. Not a one.

Now what of the notorious “gateway effect;” that is, the claim that pot leads to harder drugs?  Opponents of liberalizing marijuana laws try to prove marijuana leads to harder drugs by comparing a more common activity (smoking marijuana) to a less common activity (doing methamphetamine, cocaine, heroin, or whatever).  They then point out that most of the people who did the less common activity did the more common activity first; therefore, the more common activity is a “gateway” to the less common activity. Therefore, pot leads to harder drugs.

Makes sense.  Well, sort of.  But let’s look closer.  Let’s apply exactly the same reasoning to another scenario and see how it holds up.  Driving a car is a common activity. Piloting an airplane is a much less common activity. Further, almost everyone who has piloted an airplane drove a car first. So what would you say to someone who argued that cars are “gateways” to airplanes?  That you shouldn’t teach your son to drive because driving is nothing but a gateway to him insisting on a pilot’s license?  I hope you’d laugh him out the door, as such reasoning is obviously absurd.  Yet the argument that pot is a gateway to harder drugs is in the same logical boat as the one about cars being gateways to airplanes.  If one fails, so then must the other.  The car/airplane argument is nonsense; so, therefore, is the pot/meth argument.

Now what about marijuana and driving? There’s no question that a person high on pot shouldn’t drive, just like a drunk or a person stoned on prescription pain killers shouldn’t drive. But this isn’t an argument in favor of outlawing marijuana any more than drunk driving is an argument in favor of banning liquor. Further, what research there is shows that when marijuana is involved in an auto accident it’s almost a certainty alcohol was also a factor.

None of the above is intended to suggest that people “should” smoke marijuana. There is little doubt that, other things being equal, one is better off not smoking it. Nonetheless, in terms of vices marijuana is one of the very least harmful and its current prohibition is absurd, a horrible waste of tax money, and an unnecessary strain on an already overburdened justice system that should be expending its resources going after real crimes that cause real harm to society.

So let’s return to the original topic: Given that many states and many legislators have to be severely mistaken on this issue, which side is right and which side is in the nuthouse?  Is there really any question?

About Public Defenders

In 1928 a famous New York judge lamented that “justice is open to everyone in the same way as the Ritz Hotel.”  I would like to say the situation has much improved in the intervening eighty odd years, but in many ways it has not.

One way it has improved, however, is that since 1963 anyone charged with a serious crime and unable to hire their own lawyer has enjoyed the right to have one appointed at State’s expense (those wishing to know more about the Supreme Court case that changed the law here should consult Gideon v. Wainwright, 372 U.S. 335 (1963)).  Such court appointed lawyers are called “public defenders.”  Many public defenders have provided admirable—sometimes even heroic—representation.  Some others have cared so little for their clients that one could be forgiven for thinking they are really agents of the prosecution!

Nonetheless, the bad reputation public defenders have is quite often undeserved.  Some people even believe public defenders aren’t “real” lawyers.   Completely untrue.  Every one of them graduated from an accredited law school, passed the bar exam, and is required to take the same amount of continuing legal education as any other member of the bar.

Furthermore, many public defenders are excellent attorneys, fiercely devoted to their jobs, and work diligently to get their clients the best possible outcomes.  In fact, some public defenders are better than many private lawyers.  Please do not make the mistake of thinking any lawyer who demands a hefty fee and has a plush office will represent you competently.  Who do you think pays for all that fancy furniture and decor?  You do, of course.  And many such lawyers will simply pocket your fee, do a bare minimum of work on your case, and instead devote their energy towards talking new clients into giving them more money.

So while private attorneys are not always any better, there are two main problems with public defenders.  First, they are drastically overworked and underpaid.  With as many as 200 clients at a given time it’s simply impossible to put much energy into any one case.  Second, some public defenders really don’t care!  And if you ask for a public defender you cannot choose which one you get.  The system makes the choice for you.

Consider the following, which happened today.

I represented a client who had been with a public defender until about two weeks ago.  He was charged with criminal felony domestic violence, though he adamantly proclaimed his innocence.  What’s more, he had witnesses to back up his version of events.  Of course, he told his public defender all these things, albeit to no avail.  His court appointed lawyer convinced him he ought to plead guilty anyway, serve 10 days in jail, endure 3 years of supervised probation, and be marked a convicted felon for the rest of his young life.  (In Arkansas domestic violence convictions cannot be expunged from one’s record).

The truly remarkable thing is that he was going to plead guilty even though he was innocent!  His public defender told him the only alternative to accepting the State’s offer was a lengthy prison sentence.  Not being a lawyer himself, the fellow figured that must just be the way the system works.  Tragically, all too often it is the way the system works!

As soon as I took over his case I demanded a jury trial.  The judge granted the State a 10 day continuance to get its evidence together.  Today was to be the day of the trial.  I walked into court and the prosecutor immediately told me all criminal charges were all being dropped.   The State simply didn’t have a case!  I told him the good news and he went home smiling.  It was that easy.

There is something wrong with this picture—something very, very wrong.  Something that both scares the hell out of me and simultaneously makes my blood boil.  And if it doesn’t scare the hell out of you too, that fact frightens me even more.  That innocent young man wasn’t being represented; he was being processed like a steer on its way to the slaughterhouse!  His court appointed lawyer didn’t even care enough to check out his side of what happened or to entertain even the possibility that he might be innocent!

I would like to say such occurrences are rare.  They are anything but.

No criminal defense lawyer can beat all charges.  In fact, most well represented criminal defendants end up being convicted of or having to plead guilty to something, even if not always the original charge.  In addition, there are definitely times where it makes good sense to accept a negotiated plea instead of demanding a trial.  But when those charged with defending the rights of Americans who can’t afford private lawyers don’t even explore the possibility that their clients might be innocent, the system is simply broken.  Period.

In the 9th grade my civics teacher taught the class that we should all be proud to be Americans, because (unlike in many places of the world) here we have a right to justice.  He was simply wrong.  We don’t.  At best, we have a right to fight for justice.  If we fight for it we just might get it.  To anyone wrongly charged with a crime, the best way of fighting for justice is hiring a lawyer with a record of taking cases to trial and beating them when the State’s hand is weak.