When you go to law school their first, and most important, task is to teach you to "think like a lawyer." If you don't do that, you have no future in the law. Ok, but how do lawyer's think? I'm not sure about all of us, but I like to work over a case looking at it from all angles until I can find (if I'm lucky) something that makes the case a winner.

Here's how I fixed the broken water line. First you should know that on the ranch our water lines run long distances, and it is up to us to maintain them. The previous owner (PO) of the ranch did a lot of water line running, but he used black plastic pipe to get from the meter to the house. Over the decades this has proven to be a bad decision. Every year or two we find new "springs" in the lawn or driveway and these springs invariably turn out to be from breaks in the old water line. I've replaced about 50' of it with new water pipe (Schedule 40, for those who like to be technical). But recently a spring developed right in the driveway, on the far side where the old pipe comes up from the county road. I know it crosses under the driveway, but I don't know where the ends of the crossing are, nor what kind of pipe PO used to get under the road. I do know that he ran a hose back under the driveway to water a garden. So we have two places where water goes under the drive. The main line, and a spur.

I decided that the hose must already go through a metal pipe thick enough to protect it from the weight of the driveway traffic, since it had never sprung a leak. That meant that if I could find it I could run the new pipe through the same conduit and would not have to dig up any more of the driveway. Fine. But where was the hose? My wife and I recalled where it came out and a few minutes digging around turned it up. Then I dug down and found the metal conduit. Eyeballing across the driveway I decided where it must come out on the other side and dug there too. Hard work because the driveway is gravel over clay and rocks. But I found it. The end was completely clogged with dirt, and at first I couldn't even find the hose. The hose was bent way down and smashed flat, but I dug up a couple of feet of it and pulled it out of the pipe. Then I used a power nozzle on my new hose and blasted the dirt out of the pipe. That was fun. Good. Now I had a clear conduit under the driveway. Trouble was that it came out about 30 feet from the nearest pipe that ran to the house, which meant a lot more digging on the house side. It was also about 15' from the water line on the meter side of the driveway.

One thing at a time, I decided. First I would dig a ditch from the broken pipe to the metal conduit, then I'd worry about connecting it back the main line by the house. So I dug about 15 feet to where I thought the old water line must be. No old water line showed up. So I dug up the new spring, which created a wonderful fountain once the dirt and rocks were taken off the pipe. The pipe was about 6" down under the driveway. I dug backwards from the break towards the meter, and so towards my ditch to the new route. About 1' beyond my ditch and about 1' deeper than I imagined, I found the line and connected my ditch to it. Now I was set to route the new line from a point before the break, down to the new driveway crossing.

But wait, while uncovering the break I found an old patch I had put in last time it broke. I had covered the pipe with boards to protect it. Pulling the boards up I discovered that the old line was black plastic pipe about 6' into the driveway, and then it connected to a metal pipe. A metal pipe! That meant that I didn't have to reroute the water line, I could just fix the leak and run some conduit for the 6' that was now unprotected, and my entire route under the driveway would be protected. I fixed the leak by having the black plastic pipe replaced by Schedule 40 pipe, ran the conduit and there it was, all fixed.

What's the lesson here? You have to start somewhere, but you also have to be flexible enough to change your plans even after you have dug a long ditch, if you find facts that warrant it. That's the way I deal with cases. I poke around, I consider one line of attack and then another, and I don't mind changing my approach even if I've got some work invested in the first approach, if the new approach seems better. Its not an effecient, or cost-effective means of working. But it is more successful than sticking with your first idea even if a better one comes along. I do flat fee work mainly, so the client doesn't have to pay for each wrong turn or blind alley the case may take. That way I don't feel hesitant about taking up new ideas.
- posted by Eugene @ 4:39 PM

 
We are entering interesting times for medical marijuana users in Caifornia. The Gov just signed SB420 (really) into law and it will take effect on Jan 1, 2004. It will make sweeping changes in medical marijuana use and prosecution of those who claim the protection of the medical marijuana statutes. I'm putting together a workshop on it for the Hemp Festival next weekend, but right now I want to say that if you use medical marijuana then on Jan 1, 2004 you need to have one of the following things:
1. A county or city government which has enacted medical marijuana guidelines with limits you are aware of, or
2. A doctor who has recorded the amount of medical marijuana you use or that is approved (see below), or
3. You are going to fall under the state guidelines of 8 oz & 6 mature or 12 immature plants.

In Humboldt county that might mean that you must cut back from 99 plants to 12 plants.

Regarding the doctor and you: if you use 2.15 oz a week then you use about 7 pounds a year and that's what the Feds give their
(few) patients. If you decide not to alarm the doctor and under-report your use with one of those "Oh I just use an oz a month or so. I don't really smoke much, you know, only when I get really painful knee joints, yada, yada" raps and then the cops find you with your real supply of 4 pounds, you are probably going to be in big trouble. Unnecessary big trouble which could be avoided by telling the doctor the truth to begin with, eg you smoke a ton of weed, you do it every day, and that's how come you can sleep at night and move around during the day. (All examples hypothetical, your case may vary, results not typical, professional user on closed course, don't try this at home, this is not legal advice for that consult your legal advisor, and all the other disclaimers you can imagine).

You can find the text of SB 420 by doing a search for it at the California Government website. Its got some really interesting stuff in it. Not least of which is that it invokes the Tenth Amendment, setting up a challenge to Bush and Ashcroft's claim that the Feds are the only ones who can regulate marijuana.
- posted by Eugene @ 4:39 PM

 
Ever have one of those days when everything breaks? Country lawyers have them too, and enough minor problems can add up to a real crisis. For one thing, as I headed to court in Eureka my '94 Volvo told me that a headlight was burned out. This is the kind of problem you have to solve during the daylight hours remaining in the day after getting the message. The difficulty is that for a '94 Volvo you have to have a special bulb for the headlight. I called the Volvo dealer, on my car phone, got put on hold, and drove out of cell phone range. So much for that call. This happened three times. On the 4th try I learned that the Volvo dealer did not have the bulb. He could order it and within a week it would come in. Fine, if I don't want to go home on days when I'm caught at court after 5 p.m. (It takes 2 hours to get home from the nearest full-service court). Fortunately the service dept. suggested another parts store, and they had the bulb. That same day I was trying to read some cases on Netscape, but the Netscape window moved up and left off the screen. I couldn't figure out how to move the window back fully on the screen and had to abandon the attempt to read the cases. Then, later that day, relatives were visiting. I went upstairs and dressed for court, keeping my coat and tie in a hanger-bag to carry in the car. I carried the bag downstairs and left it by the door, then went out back to say goodbye to the relatives. We talked a minute and I walked around the outside walk to my car and drove off. What's missing from this picture? My suit coat and tie, absolutely essential to court appearances. I discovered this as I approached court, 2 hours later and right on time. I phoned home to confirm that the coat and tie were still in the living room - as if that mattered. Perhaps Mary Alice could fax me the clothing? Better yet she suggested I go borrow a coat and tie from the Public Defender's office. I tried but no attorneys were there - they were all in court. Fortunately upstairs the Conflict Counsel has an attorney who bicycles to work and keeps an assortment of coats and ties more or less in my size in his office. I borrowed one and ran to court. I thought perhaps someone would notice that I looked just like Conflict Counsel, but if anyone did they remained discretely silent.
Did I mention that my Epson printer will not print colors, nor will the software allow me to clean the nozzles? I managed to fix Netscape after a couple of hours, but the printer was still failing to print color even after putting in a new (expensive) color cartridge. It was four days later that it suddenly started working again, for reasons which are not clear to me. Only then could I look around and say "All that I see is in working order." And who knows for how long?
- posted by Eugene @ 4:15 PM

 
I'm home again after a trial. It was quite an extended trial, as DUI trials go. We do trials in the mornings only in Humboldt county, and this one took 9 mornings. It also took 2 or 3 more mornings to get set up before we started, and to await the verdict at the end of the trial. I think for a lawyer nothing is more engrossing than a trial. Certainly it is that way for me, and after a long period when all my cases settled (I do criminal law) suddenly I've been in trial many days during the past two months. I was five days into jury selection on one case when the prosecutor offered a new improved deal and my client took it. Then I immediately went into a 3 week trial. A couple of weeks off, and back into trial again. I lose track of everything except what is occuring in the moment in a trial - I get into such an intense focus that it resembles the meditative state. I have to have someone else write notes because I can't keep track of what's current if I'm writing down what's past. Live in the here and now. That's what we've been told to do since the '60s. Great advice. I recommend it

I was seeking the question that would distingish potential jurors biased against my client for drinking at all before driving, from those who think that the issue is not "drinking and driving" but "driving feeling the drinks". It is the later formulation which is a violation of state law in California. I'm not sure I found the question, but I was happy with the jury's verdicts.

There is so much ritual in court. Its like high church. Before the jury could leave the courtroom to delliberate the bailiffs had to swear an oath to do their duty in seeing that the jurors were not influenced by outsiders, or the bailiffs themselves. And when the jury came back with the verdict the ritual seemed to take forever. Pehaps it was only 5 to 10 minutes but waiting for the outcome it felt like an enternity. There are two counts to a typical DUI in Caiifornia. Count 1 is driving under the influence of alcohol, the other count is driving with a blood alcohol content of .08 or higher. The jury hands in separate verdicts for each count. Each count has its own verdict form. So they give the bailiff the verdict on the first count. He takes it to the judge. The judge reads it to himself and sort of frowns. Perhaps he asks the jury if they all agree on this verdict. But he doesn't say what it is. Then the jury gives the bailiff the verdict on the second charge. He hands it to the judge. The judge frowns again. He stares off into space, obviously lost in serious thought. But what is he thinking? What combination of verdicts could cause a pause at this point? The judge calls the prosecutor and me to the bench. Then we find out. The jury has hung on the first count. They could not agree. They did agree on the second count. They agreed that my client was not guilty. That's what gave the judge pause, I think. If they had convicted on the second count the judge could ask the prosecutor to drop the first count, since it makes no practical difference whether they convict on one or both counts - the sentence is the same. But now we have a mistrial on one count. The judge asks the jury if they're sure that more deliberation would not help. They are sure. Some of them look fairly upset, in fact. We don't know which way they were voting on the hung count, but it looks like they don't like the fact that the couldn't convice the other side. So, the judge declares a mistrial on that count. My client is acquitted of driving with .08 BAC or higher, but the prosecutor has the option of retrying him on the driving under the influence count. I'm very happy at this point. Another attorney in the courtroom comes up and congratulates me and shakes my hand. The prosecutor is visibly depressed. Both of us have few enough trials under our belts that a verdict for or against us has a great personal impact. A lawyer who has done hundreds of trials could say "well, you win some and you lose some." But neither of us have done hundreds of trials, and this verdict was a really big deal for us. As the prosecutor leaves the room I tell him I thought he did a good job (which I do). He perks up at that, and goes off down the hall to his office - and his fellow deputy district attorneys. They are going to ask him how it came out and he is going to have to say that that jury hung on one count and acquitted on the other. That's not going to be fun. I on the other hand am having fun now. I will be the hero of the courthouse for a day or two. Defense attorneys have a strong sense of community and in some ways a victory for one is a victory for all. We don't win them all. In fact, taken as a whole, defense attorneys probably lose quite a few more trials than they win. Ask me about that sometime and I 'll tell you why.

I manage to catch one of the jurors and speak with him about the trial and the factors that went into the verdicts. As with my last trial I learn that the jurors completely ignored my best argument. I spent a lot of time talking about one point and the jury didn't think it was worth considering at all. They had other points which interested them. The trick to successful trials is to figure out what the jury's points will be and to address them rather than spending a lot of time on your own ideas which don't interest them. I suppose that will come with time.
- posted by Eugene @ 5:19 PM

 
Everyone is biased. Use of bias and sterotype is hardwired into the genetic code, probably as a combination of our built in wish to be part of a group, and our built in ability to grasp simularities and differences (remember those high school essay assignments, "compare and contrast " whatever the topics were). We think of bias now in terms of racial or ethnic bias, but we have sports bias ("How 'bout those '9ers?"), favorite colors, and, of course, political bias most visible in what party we associate ourselves with. Very interesting thesis for a sociologist, but vital facts for a trial lawyer. I must pick a jury on Thursday morning, for a criminal trial. If I pick incorrectly, so the theory goes, I will end up with a jury who are going to convict my client before they hear my arguments, because of their biases. This idea focuses me intently on how to detect and overcome the biases that work against my client, and how to detect and support those that work for my client.

Now, I defended some tree-sitters a short while back. In those cases the basic bias in jurors is very visible, and very simple. You either think logging is a grand way to harvest renewable resources for the benefit of humanity, or you think destruction of our ancient forests is a crime rivialing the holocaust. For the trial lawyer the puzzle is this: how to come up with a question which sorts the jurors out for me, and which does not sort them out for the prosecutor? If I can find such a question, then I can pick environmentalists and drop pro-loggers in the jury pool without the prosecution knowing what I'm doing. (For those completely out of touch with the jury system, trials begin with selection of a jury of 12 from a larger pool of jurors, and the lawyers have the ability to "excuse" a certain number of jurors and they use that ability to try and get a jury receptive to their cause). In the case of the tree-sitter defenses I did find such a question. It was..... but if I tell you then perhaps the news will filter through to the prosecutors in my county and then I won't be able to use the question again. Here's a hint: the question does not in any way mention or imply anything about logging, and it does have to do with an experience common to us all.

Next I'm doing a DUI defense, and I'm looking for the question that will separate those who automatically believe the police when they testify, and those who believe the breath testing machines are without error, from those who are skeptical about both police and machine as a means of discerning truth. I'll let you know if I find it.
- posted by Eugene @ 11:30 AM

 
It's too hot to work outside today. I was late getting started on my walk around the ranch this morning and really got dehydrated from sweating before I got back home.

Lets talk about recall elections. Everyone knows California's governor is facing a recall. Few know that Humboldt County's District Attorney is threatened with a recall election also. We're in a curious situation here in Humboldt county. For 20 years or so we had one man, Terry Farmer, as the District Attorney. The DA is elected, and he is in charge of deciding who to charge with criminal activity, what to charge them with, and what kinds of plea bargains to offer. That's important stuff, and it really affects how people are impacted by the criminal justice system, whether as victims of crime, or victims of allegations of criminal activity. Now, I imagine that most people arrested for crimes think that they are guilty and just had the bad luck to get caught. I was in court in Garberville last Friday, where they do a lot of speeding tickets and driving under the influence cases. Most people pled guilty, got their sentence, and went on with their lives. SInce a DUI costs over $2000 and carries with it a 3 year probation period, I wouldn't think anyone would plead guilty who didn't think they were gulity.

But, what about people who grow and use marijuana? We have quite a bit of marijuana growing in these parts, and I represent many of the people involved if they get charged. I don't think I've even encountered someone associated with marijuana who felt like they had done a criminal act, even if they did break the law. They don't think they are wrong, they think the laws are wrong. Since proposition 215 passed in California in 1996 we have had a medical marijuana exemption from State cultivation and possession laws, and many of the cases I have handled have been people with medical defenses. In those cases the case really came down to an argument about how much marijuana a medical patient could grow, or keep on hand. Most counties in California have adopted some policy stating that if medicial users have less than a certain number of plants, and/or less than a certain amount of marijuana, they will not be prosecuted (by the State, marijuana remains almost completely illegal under Federal law). Terry Farmer set his policy at 10 plants or 2 pounds. There was a lot of dissatisfaction with that limit, and additional problems causes by an anti-marijuana Sheriff, Dennis Lewis, who allowed his deputies to raid some people who had 10 plants or less. Terry Farmer backed the Sheriff up. This was one factor in his election loss in 2002 after 20 years in office. (Sheriff Lewis lost also, after two terms in office).

The new DA, Paul Gallegos, instituted a limit of 99 plants (which must be grown in 100 square feet) and/or 3 pounds. One result of this is that small marijuana cases, which are the kind that I've been doing, vanished. I'll bet the number of marijuana prosecutions went down by at least 50%. I'll bet the number of successful marijuana prosecutions did not go down much at all, since the little cases were often lost cases for the DA.

Another frequent criminal charge in our county is trespass associated with environmental protests against Pacific Lumber's logging of redwoods. PL is, or was, the largest private employer in the county I believe, and logging is a long-time basic industry here. People who grew up in the county prior to say 1980 typically think that logging is a great idea, and PL is a great company. People who came here later, or grew up here later, after the influx of people from the cities became an important factor in the local culture, typically think logging old-growth redwoods is a very bad idea, and that logging in general is a major cause of environmental destruction. I would not be surprised if arrests for protests against PL have amounted to as many as 25% of the arrests in the county over the past decade. One day in Carlotta in the mid-1990s, during a very large demonstration, over 1000 people were arrested. These days we see possibly 100 a year (I could be way off on this number). The people arrested do not consider themselves criminals, and of course, often they are not. That is, they are factually not guility of the charges brought. Those that are factually guilty feel that their acts were dictated by necessity (that is that they did a small crime to prevent PL from doing a big one). They also feel that there is a cultural conspiracy between the Sheriff's deputies and Pacific Lumber's loggers that results in one-sided law enforcement, with them on the wrong side. My estimate after doing some jury selection is that perhaps 1/3 of the jury pool agrees with them to some extent. About 2/3 does not.

But what about violations of the law by PL? Terry Farmer generally felt that PL was conducting itself legally. One year, perhaps 1999?, he brought several misdemeanor violations again them, and they were "convicted". I put that in quotes because a Corporation may be a "legal person", but it can't go to jail. But Mr. Farmer did not follow up environmentalist complaints of assaults by loggers, nor complaints that PL was operating illegally. That's another factor in his defeat, although as with marijuana, probably not a major one. Mr. Gallegos stunned everyone soon after being elected by filing a lawsuit against PL alleging that their logging permits were obtained by fraud and deception and asking for $250 million in fines. As you might imagine this made 1/3 of the community happier than it made the other 2/3.

The upshot is that a recall was launched against Mr. Gallegos on the basis that he attacked PL, was soft on marijuana, and wasn't tough enough on criminals generally. PL started running newspaper ads saying the environmentalists are terrorists, and putting out press releases denouncing environmentalists and the DA as often as they can. I find that he is prosecuting environmentalists just as much as his predecessor, and that the new Sheriff is just as much a friend to big timber as his predecessor was. The recall, unlike that against our state governor, so far has failed to qualify for the ballot. There' still time, and it certainly would be cheaper for PL to defeat him at the ballot box than in the courtroom, so we'll see. If you don't live around here you probably will not hear about this story unless you stay tuned. Bye for now.
- posted by Eugene @ 3:46 PM

 
Yesterday I went to court in Willits - about 80 miles to the south. I had three cases going and it was pleasant to be back in court after a week off. Willits is a small town and the court is very friendly. Mendocino County courts and the DA in general are more friendly than those in neighboring counties, but Willits is the nicest place of all. It also has been having very crowded court schedules. I waited through a Prelminary Hearing that another lawyer was conducting, and learned something about aggressive cross-examination. We postponed one of my cases, and got the others done in short order and I was free for the rest of the day.

Fortunately the heat wave broke and it was cooler - even a few sprinkles of rain fell. In the evening I went to KMUD to do my monthly call-in radio show on human rights. Good show, lots of calls, no crazies. On the way home I drive over Pratt Mountain. The road rises from 700' in Garberville to perhaps 2500-3000' at the high point, and then drops back down to Alderpoint at 500'. It is 17 miles of two lane, narrow and winding, road with great views of the Lost Coast mountains. As I started up the mountain I came upon a hillside of golden dried grasses with the light of a setting sun upon it. The whole hillside was luminous. I decided I would take a picture of the next similar hillside I saw, and of course I did not see anything like it again. Further up the mountain i did get shots of a vivid rainbow which arched for miles in the sky. The drive over Pratt Mountain on the Alderpoint Road often treats me to stunning views. I hope to post some of them.
- posted by Eugene @ 11:06 AM