A month later though, the D.C. Fire station sent a grieving Ford Jr. a $780.85 bill. Mr. Ford was understandably furious. D.C. Councilwoman Yvette Alexander claims that the station had not charged for similar services in the past. An investigation revealed that there were idle ambulances in the D.C. station on the night Ford Sr. passed away, but the station had lacked the necessary staff to use the ambulances since an unusual number of personal had been on vacation that night.

As cities lose money to recessions, stories about first-responders charging for their services become more common. Indeed the D.C. station had previously been criticized for delaying medical treatment to a 94 year woman with a head injury. Several states have banned first-responders from charging for their services, but most of the country still gives discretion to emergency personal to charge patients and crime victims.

If city governments cannot, or will not, fund police, firefighters, or medical personal, first-responders charging for services is understandable, if frowned upon. Basic economic principles are that materials such as gas, medication, clean-up, and transportation must be paid for. If the cities cannot pay for supplies, the costs will inevitably fall on the party using the supplies. The costs are paid for either indirectly through taxes and insurance, or upfront in a bill, but the costs are always paid. Moreover, although first-responders are extraordinary individuals, they must still support their families.

Victims, patients, and most of the general public would counter that they pay for their services through taxes and should not be charged double in this manner. More importantly though, first-responders have an obligation to the community, not just to themselves. Charging people who dial 911 for help creates an unnecessary division along social-economic lines. This division can be acceptable when purchasing automobiles, homes, schools, and even food. It is not acceptable in matters of life and death though, such as emergency medical services, because everyone’s life is, or should be, worth the same. It does not matter if the patient is rich or poor, government services should treat all citizens the same.

First-responders would balk at the suggestion they choose who lives and who dies by charging, since first-responders, even the ones who expect payment, save lives first and send the bill later. However, if a family cannot afford a large bill and they know they cannot afford such a bill, the government would be creating an incentive not to call. A public policy which discourages people from asking for help, or from help others, is not a good policy.

The Ford story, tragic as it is, does raise an interesting question for cities that permit its first-responders to charge bills. The ambulance failed to arrive in time to save Ford Sr., but what if Mr. Ford had been saved? Would the D.C. station still be justified to sending a bill to Ford Jr.? If the answer is yes, then first-responders would be operating on a contingency fee: they would be paid only if they saved a person’s life. Such a system would help family members feel they are not being further victimized when a bill is sent. On the other hand, a contingency billing system would only add economic pressure to the emotional and social pressure faced by first-responders every time someone calls 911.

Gilberto Valle puts these principles to the test in a shocking story from New York. Gilberto Valle was a member of the New York Police Department until his wife reported him to the FBI. There are many possibly embarrassing things that a wife does not want to find on her husband’s computer. Dating websites and pornographic websites can break a marriage, but conspiring to kidnap, rape, kill and eat women is certainly grounds for more than a divorce. After Valle was arrested and suspended from his duties as a police officer, the FBI searched his apartment and found a list of women Valle planned to eat. Investigators also found a list of items the conspirators needed to perform the acts, as well as plans for meal preparation. The FBI also found internet chat logs about rape and cannibalism, including discussions to sell another conspirator’s young stepdaughter as a sex slave.

District Court Judge Gardephe found sufficient evidence to allow the case to proceed to a jury trial. The FBI, upon further investigation, discovered that Valle had become acquainted with several of the women on his list. He had lunch with one of them, and a few claimed that Valle had stalked them using his patrol car. Prospective jurors were shown shocking images of some of the websites Valle frequented, including a picture of a young woman nude, bound, and gagged on a serving plate (Warning: graphic image attached to that link). Jurors who were too disgusted by the images were excused from jury service.

As bizarre as this case is, Valle is a textbook example of an incomplete or inchoate crime. Inchoate crimes are crimes which are planned out by the suspect but are not actually performed yet. Inchoate crimes are the law’s recognition that law enforcement should not have to wait for the suspect to actually harm someone before law enforcement can arrest the suspect. The prosecution must argue that the defendant intended to carry out and would have carried out the crime but for outside intervention.

The defense attorney has to counter that the defendant was not even close to carrying out the crime or that the defendant had no intention of carrying out the crime. According to defense attorneys, inchoate crimes lead to the worst kind of criminal cases: prosecution of otherwise innocent people who have not committed any crimes.

The most significant aspect of inchoate crimes though is the law’s ability to regulate the thoughts and impulses of individuals. In this case of course, Valle’s thoughts and impulses are grotesque. The purpose of the law though is not to regulate every thought the population may have. The law should only ensure that people do not hurt each other. In a case like this, it is easy to lose perspective that Valle’s sexual fantasies are not on trial. The real issue of this case is whether Valle and his co-conspirators online actually intended to carry out their plans. The latter is about protecting society while the former would represent a significant change in the minimum standards set out by the law.

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In June of 2008, Deputy Diaz was pursuing Marco Topete on Interstate Highway Five for driving under the influence. Topete’s drunk driving was aggravated by the fact that his infant daughter was in the back seat of the vehicle. During the pursuit, Topete abandoned his car and his daughter on the side of the road. When Deputy Diaz checked Topete’s car to ensure that Topete’s daughter was unharmed, Topete sneaked up on Diaz and used an assault rifle to shoot Diaz in the back. Although Deputy Diaz managed to return fire, Diaz was hit seventeen times.

Sheriff Deputy Tony Diaz died a few hours after the shooting. Since Marco Topete had a prior criminal record, Superior Court Judge Paul Richardson approved the jury’s recommendation for a death sentence.

Sadly, this was not the end of the story for Tony Diaz’s sister, parents, wife and three children. The entire shooting had been recorded by the dashboard police camera in Diaz’s patrol car. The video tape had been shown at trial as evidence, although parts of the tape had been edited out. In February 2012, Sacramento KCRA-TV played the video tape on local television, including parts of the video that had not been presented at trial. The tape was shown on television without the knowledge or consent of the Diaz family. In 2013, the Diaz family sued Sacramento KCRA-TV for privacy violations, but Judge Richardson held that the tape had been part of the trial and was thus public information.

The Diaz family’s lawsuit was built on Marsy’s law, a 2008 California proposition which established a crime victim’s bill of rights. The purpose of Marsy’s law was to expand crime victim’s rights; Marsy’s law thus gives crime victims legal representation in the defendant’s trial process and the right to prevent release of confidential information.

It is these rights which prompted the Diaz family to request restriction of the police dash camera video. The video depicts the shooting which caused Officer Diaz’s death. Although privacy is currently a vague legal concept, privacy should include the right not to allow certain information to be broadcasted. Society recognizes that financial information and personal identity information should be restricted from public view. Intimate moments such as childbirth should also be shielded from the public eye. It is natural, then, that a crime victim’s death should also be kept from the mass media.

However, there are a couple of issues that swayed Judge Richardson in the other direction. First, court trials are public in order to preserve government transparency. If the government wishes to strip criminal defendants of their liberties, the public has the right to know the exact reason for their imprisonment.  Second, the media has not only the right, but the duty to report on government action. Given that criminal trials are government functions, the state has no right to restrict the freedom of the press.

The Diaz family would counter that Sacramento KCRA-TV had released portions of the video now shown in court. Government transparency should not apply to information that the government did not use in its decision-making. If the Yolo Superior Court finds for the Diaz family, they would not be restricting free press, as they would only be protecting the Diaz family from unwanted exposure of Tony Diaz.

Although the Sacramento KCRA-TV portrayed Tony Diaz in the best manner possible, other crime victim’s families might not be so lucky. Rape victims especially would not want the crime aired on television, no matter what spin the media puts on the story.

I think the best way of settling this issue is to consider the wishes of the departed. Obviously Tony Diaz cannot tell the court what he wants, but the court should consider whether Tony Diaz himself would have wanted the video to be public knowledge. Diaz’s story is an inspiring one which would bring more confidence to the police force. On the other hand, Tony Diaz seems to have suffered great pain and a person’s last moments on earth are quite personal. Respecting the wishes of Deputy Tony Diaz would be a difficult standard to meet, but I think focusing on the desires of the victim would bring the most justice.

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Obviously not paying attention to the judge’s instructions, in October 2012, Vishnu Singh was using his laptop to research a murder case online. The case was about Kenneth Jackson, who had raped and stabbed his victim, a mother of three, to death. Jackson’s case had already been delayed in 2011, when prosecutors failed to find jurors willing to impose the death penalty. Singh informed some of his fellow jurors that he was conducting online searches and one juror told Judge William Fuente. Funete dismissed Singh from the Tampa courtroom, although not before warning Singh that he would be back in court next year for a hearing of his own.

In January 2013 at Singh’s hearing, Judge Fuente sentenced Singh to five days in jail. Singh could avoid the sentence by attending an alternative sentence. Singh’s other option was to endure the process of jury selection every week for the next three months. Singh opted for three more months of waiting in a jury room.

Alternative sentencing is not a new development in the law. The controversy in this incident is not Judge Fuentes’s decision to offer Singh an unusual punishment as an alternative to jail, but the fact the alternative is considered a duty that citizens are supposed to discharge. Citizens themselves might believe that being chosen for jury duty is punishment enough, but a judge should not encourage that misguided mental attitude. It is a citizen’s inability to treat jury duty other than a chore which causes many of the problems courts experience with selecting juries. Encouraging the mental root of the problem will do nothing to lessen the trouble.

Fuente would say that using jury duty as an alternative sentence serves to shame Singh and deter future jurors from making the same mistake. Shaming and deterrence are indeed the goals of alternative sentencing. Deterrence, scaring people from doing what Singh did, would be critical in convincing people to be good jurors. Making an example of the wrongdoer in front of the next few groups of possible wrongdoers is an effective strategy.

Singh’s punishment would be very good at scaring jurors straight. The punishment might be so good, it would not only scare the jurors straight while serving on the jury, future jurors might not want to serve on the jury at all. Who wants to go to jury duty knowing there’s a chance they could send the next several months in jury duty?

That last argument sounds like I’m making too much out of too little. I think it is important though that the public goes to jury duty with a feeling that they should be serving rather than with a feeling that they have to serve. The former means that the jury is interested and committed to the case while a jury which has to be brought to the jury box by threat of state power is a jury which might not discharge its duty in the manner which the Constitution requires.

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Government reaction has been slow though, except for one part of the country: New York. Debates are being held across the country, but only New York has (so far) passed a law. Governor Andrew Cuomo signed the “Secure Ammunition and Firearms Enforcement Act” (SAFE) on January 15^th, 2013.

The law has a number of new regulations for the Empire State. One provision requires universal background checks for all gun transfers except among immediate family members. Another provision deals with the killing of a “first responder” at a crime scene. The most interesting aspect of this new law, however, is the mandate to medical professionals, particularly mental health therapists, to report dangerous patients to state authorities. The state authorities would then check whether the patient owns any guns. If the patient does, the state can suspend the patient’s license and confiscate the weapons.

The mandate to medical professionals is the most interesting part of SAFE since it addresses the heart of the problem. Advocates of gun control often point to the fact that United States has significantly more gun-related killings than other nations. However, mass killings do occur in other nations; the difference is that cultures favor different weapons. For example, on the day of the Newtown massacre, December 14^th, a man in Henan, China, also attacked school children, except the Henan attacker used a knife rather than a gun.

Gun control advocates would point out that none of the children in the Henan attack were killed. If psychotic killers were forced to use knives rather than guns, the victims might actually survive. The problem with that reasoning is that society cannot control the weapons would-be killers might use. If guns were banned, ignoring the Constitutional problem for arguments sake, mass killers might use less dangerous weapons like knives. Those same mass killers, however, could also use more dangerous weapons, such as bombs, just like in the 1927 Bath School Massacre. Rather than focus on the numerous means a man could spread death, I think focusing on the killers themselves is far more beneficial.

The issue, however, is can this actually prevent bloodshed. Therapists already have a duty to warn about dangerous patients, but they typically have flexibility in how to approach the situation. Therapists could report the patient to the police, warn possible victims, or recommend the patients be detained in mental institutions for treatment. SAFE, however, reduces therapist flexibility by requiring that therapists report the dangerous patient to state authorities in charge of monitoring gun ownership. SAFE does not preclude other safety options, but forcing the therapist to act in a particular manner might make patients less willing to disclose themselves to their therapist.

Would SAFE’s mandate actually prevent killings in the future though? Criminal background checks are useless, since neither the Aurora shooter nor the Newtown killer had a criminal record prior to their infamous acts. SAFE might have prevented the Aurora shooting though. The Aurora shooter had been seeing mental health professionals and most of his acquaintances agreed that the eventual movie theater slaughterer was mentally unstable and likely dangerous. He had also obtained all of his weapons legally.

On the other hand, SAFE would probably not have prevented the Newtown killings, which is ironic since the law is more a reaction to the deaths of the children than the movie-goers. Although the Newtown killer was diagnosed with Asperger Syndrome, Asperger is not known to cause the aggressive behavior the Newtown killer displayed in the weeks leading up to the attack. Moreover, the Newtown killer, who was twenty, had been turned away from purchasing a gun since he was not old enough to legally own a gun; Connecticut requires a gun owner to be 21 years or older.  The Newtown shooter got all his weapons from his mother, who legally owned the guns. However, she had been murdered by her own son prior to the rampage. Given that SAFE only confiscates the patient’s weapons and that gun transfers between immediate family members are exempted from state scrutiny, the law is hardly bulletproof.

Gun right proponents might read SAFE and shudder. Gun right supporters have often opposed gun registries, since registration could be a slippery slope to confiscation. The SAFE act seems to justify this fear. At the same time though, one of the arguments against gun control is that gun control violates the rights of law-abiding citizens while gun control is completely ignored by the “bad guys.” Although SAFE affects every gun owner in New York, the provision about medical professionals at least tries to limit itself to the mentally unstable. The lack of predictability in results, however, might give the citizens of New York a false sense of security.

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The United States Supreme Court will be determining the answer this spring. In 1993, Genovevo Salinas was brought into a police station for questioning regarding the murders of Juan Manuel Garza and Hector Garza, two siblings living in Houston, Texas. Salinas was not under arrest and spoke freely until the police asked whether the ammunition cases found at victim’s apartments would be matched to Salinas’s shotgun. Salinas went silent.

After the questioning, police obtained a warrant for the shotgun and examination revealed that the ammunition cases likely came from Salinas’s shotgun. The police charged Salinas with murder in February 1993, but Salinas fled to Mexico before the police could locate him. Fourteen years later, in October 2007, Salinas was apprehended.

At Salinas’s second trial (first one was a mistrial), the Court allowed the prosecution to use the defendant’s silence as a confession. The judge held that the defendant’s answers and subsequent refusal to answer were all voluntary and thus the police had no duty to inform Salinas of his rights. The Court of Appeals affirmed the decision and the case has now moved to the Supreme Court.

Although “pleading the fifth,” or invoking the right to remain silent, may seem straight forward, the decades following the famous Miranda decision has proven that suspects have a much harder time using the right than the average person might suspect. The primary problem is that it is often ambiguous whether the suspect wants to use the right or not.

Scientific research on the matter has shown there are a number of ways that suspects can respond to an interrogation. Some suspects ask about their rights: “Do I have to answer these questions?” Other suspects make a request: “Can I go?” Still others add qualifiers, attempts to invoke the right in one part of questioning but not in others, to their statements: “I don’t want to talk about this today” or “I don’t want to talk about my driving.” And of course, some suspects simply engage in a (very long) staring contest with the police officer in front of them.

Although there are other attempts to invoke the right to remain silent, these four are the most popular. Each of these attempted uses of the right is problematic though. Asking about your right is not the same as invoking your right. A request to do something else could be viewed as just a short break between questions.  And although it does not seem possible, actual silence is considered too vague to be an invocation of the right to remain silent. Courts have held that a suspect who is mute could be forming an answer to a question rather than refusing to answer a question.

So where does this leave Salinas? Salinas’ first problem is that he was not under arrest when he was questioned. Miranda rights are usually applicable when the suspect is held by the police against the suspect’s will. The second challenge is that the circumstances make Salinas look guilty. Sitting in silence after hours of questioning gives the jury the impression that the defendant realizes he is caught. The prosecution built on this impression and called it a confession.

There are two holes in the prosecution’s argument. One, there are alternatives to the view that the defendant was confessing. Salinas could have stopped talking because he realized that the police were trying to trap him. Or Salinas could have been implicitly qualifying his right to the fifth, responding to all questions except those regarding his firearms.

The second, and more important flaw, is that reading silence as evidence of guilt destroys the purpose of the right to remain silent. Under the prosecution’s vision, if a suspect talks, the suspect may be building his own prison cell around himself. If the suspect does not talk, the suspect is still putting laying down the bricks of his incarceration. In other words criminal defendants could be incriminating themselves during police questioning regardless of their decision to speak.

Salinas may not be the most sympathetic man, but his case could determine the future of an important Constitutional right.

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In 2009, Matt and Melanie Capobianco adopted an infant named Veronica after Veronica’s birth mother relinquished parental rights.  Veronica stayed with the Capobiancos for two years until her biological father, Dusten Brown, returned from military service in Iraq and contested custody over his daughter. Brown wanted custody of his child even though the veteran had signed papers relinquishing parental rights before Veronica was even born. Brown’s intentions and understanding of the legal papers is not clear, although it appears Brown had initially believed he was only signing away his obligation to pay child support. However, Brown’s former fiancée, Veronica’s birth mother, had claimed she would raise the child on her own.

Since Brown had apparently given up his parental rights, his attorney found a creative solution: the Indian Child Welfare Act (ICWA). The act creates an exception, or at least a statutory preference, to the child’s best interests standard for Indian children. Critics of the law say it replaces the child’s interests for the interests of Indian tribes. Dusten Brown is a member of a Cherokee tribe. Social service agents had been unaware of Veronica’s cultural background because her biological mother had neglected to mention that fact. If Brown is successful in triggering the ICWA, the act would restore an Indian child to the custody of parent within an Indian tribe. South Carolina’s Supreme Court had ruled for Brown, who promptly took Veronica with him to Oklahoma. The Capobiancos have appealed to the United States Supreme Court.

Brown had signed a contract giving up custody of his daughter, but it appears at first glance that the ICWA is a public policy which can void an agreement. A lower court case in 2008 makes preservation of Indian tribes a compelling state interest, although the survival of the Indian tribe must be in question. That reading is in line with Congressional intent though, since Congress had passed the ICWA specially to preserve Indian tribes. It would be absurd if federal law could be avoided through the mere use of a contract.

Despite the historical and legal arguments though, no exception to the child’s best interest standard should exist. The entire point of the standard is to ensure that adults do not place their own selfish desires over the needs of a child. Preserving cultural identity is just as much of an egoistic enterprise as using child custody as a means to hurt a former spouse. A child does not “belong” to a culture anymore than a child belongs to a sports team or religion. Culture should be an identity that an individual can adopt for themselves rather than an identity forced onto them by their parents.

Brown would argue that the child’s best interest standard has been abused in the past. The ICWA was passed because it was assumed that Indian culture was never in the child’s best interest, leading to many Indian children being removed from their parents for no real reason other than racism. Brown would argue that the ICWA is not an exception to the rule, but a preference by the law to placed Indian children with Indian parents where possible.

There is no doubt that those previous generations made many racist assumptions and that this generation should not delude themselves into believing they are somehow better than their ancestors. Giving preferences according to blood is not different from treating others poorly because of their culture though. If Brown is truly the best possible parent for Veronica, Brown should receive custody. Let us leave race out of the picture though.

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I think some of the bad reputation acquired by attorneys comes from the perception that lawyers are taking advantage of trauma victims. Unfortunately, some of this perception is unavoidable.  People only seek legal aid when an aspect of their life becomes awful. Couples seeking a divorce go to family lawyers, people accused of a crime find a criminal defense attorney, and employees who lose their positions seek out employment lawyers to determine if their terminations were legal. The nature of the legal profession means that lawyers will show up when clients have a problem somewhere in their life.

What I find puzzling though, is that attorneys are hated for this and other professions are not. Surgeons, for instance, are only needed when someone has a complication somewhere in their body. Surgeons are not despised for healing their patients, yet attorneys are hated for representing their clients.

Perhaps the cause of loathing for attorneys is the perception that lawyers make money off their clients. This does not make sense to me though. Truth is, not all lawyers make a lot of money. But even if all lawyers were rich, I do not see why that should be a sin particular to the legal profession. Legal advocacy is a job like any other, and lawyers should not be despised for doing their jobs. Surgeons are paid to work for people who are suffering, but surgeons do not receive the contempt of the community. Given that many lawyers work cases pro bono, without payment, and other lawyers work on contingency, it is arguable that a person could obtain legal services easier and cheaper than a surgery.

If money is the issue though, perhaps a possible explanation is the amount of money which could be earned. In the Sandy Hook story, $100 million was demanded. That is a lot of money for a household where the child is lucky to be alive. A few factors should be remembered though. First, the amount of money asked for must be higher than what the client expects or wants because this is the ceiling of what the defendants might have to pay. Second, given that the law requires actual injury before a party can bring a lawsuit, a good chuck of the money awarded will go towards medical expenses like therapy. Third, as mentioned above, the lawyer might get a percentage of the award (the standard is one-third, but this is negotiable).  All these factors mean that $100 million is not the amount which will actually be given.

The final point of interest is that lawyers, by advocating for their clients, must assign blame to a particular party. The actual party responsible for the Sandy Hook shooting, Adam Lanza, cannot be brought to justice. Pinsky, the attorney, was attempting to lay the blame for Lanza’s actions on the school district instead. Pinsky argued that Lanza’s actions were foreseeable given that the school lacked a safety plan for students.

The school district found the charge offensive. First, few people could have predicted a twenty-year old man would massacre an elementary school. Second, many of the teachers killed had shielded the children as the children attempted to flee. One injured teacher had pressed a door shut with her body while Lanza shot through the door. Third, Lanza had shot his way through the school’s locked doors, rendering the school’s protections worthless.

Pinsky’s claim was an understandable one though, even if the shooting is emotionally charged. Pinsky’s claim was not that the teachers and staff were uncaring or cowards. Pinsky believed the school should be accountable for the shooting because the school lacked a real response plan, making student injury from many types of disasters foreseeable.

I don’t know if this was true, but given that one of the functions of the judicial system is to uncover the truth, the idea was worth investigating. Sadly, Pinsky has since withdrawn from the case, citing contradictory evidence. I hope other lawyers are not discouraged from representing those in need by the mere notion of unpopularity.  The most crucial role that an attorney can take is to speak for those who have no voice.

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In 2011, police in Kentucky pursued a drug dealer into an apartment complex. Although the police lost sight of the fugitive, they did smell marijuana from one of the apartments. The police knocked on the door and called out “police!” No one answered the door, but the officers did hear sounds coming from inside the apartment. Fearing that evidence was being destroyed, the police entered the apartment and saw Hollis King, as well as his girlfriend, smoking marijuana in plain sight of the door. King was arrested. The drug dealer the police had been pursuing earlier was found in another area of the building.

The question of whether the police could make a search and arrest without a warrant has been a highly contested one. Although the 4^th Amendment requires the police have a warrant before a search and seizure is made, there is an exception if the police are in “hot pursuit” of a suspect. The Kentucky Supreme Court had originally ruled that the police could not use the evidence against King because the police had created the situation which caused the police to believe evidence was being destroyed. The Federal Supreme Court, however, overruled the Kentucky Supreme Court.

In an 8-1 decision, with Justice Ginsburg being the odd judge out, the Supreme Court held that the Kentucky high court had to consider the total circumstances surrounding the case, not just the fact the police had created the circumstances. The following year, in 2012, the Kentucky Supreme Court reheard the case and once again found for the defendant. This time, the state Court ruled that the police could not rely on “possible” destruction of evidence, since the officer’s interpretation of the situation was too subjective. The state of Kentucky is re-petitioning the United States Supreme Court to challenge this latest argument.

Although the police should be able to prevent a crime from occurring if they believe a crime is in progress, police being in “hot pursuit” should not be an exception to the warrant requirement if the police are conducting a search outside the pursuit. First, and most obviously, King was not the person the police were pursuing. A criminal should not be able to evade the law by hiding in an apartment, but in this case the police were not even aware of King’s presence until they entered his home. There is a very weak connection between the pursuit and the defendant, so weak that the police should not be allowed to rely on the pursuit for the warrantless search.

The police would reply that the connection is strong enough. Both the suspect and the defendant were committing a similar crime, possession of marijuana, and the suspect had fled into the building King was residing in. The police had to search the building if they wanted to capture the drug dealer, and it is probable that the suspect would be where the marijuana was. I find it unlikely though, that the drug dealer would stop in his escape attempt to smoke a joint. The search of King’s apartment was a pit stop to apprehending the criminal the police were pursuing. Given that drug crimes are typically non-violent crimes, the police could have obtained a warrant if they wanted to search the King residence.

Second, I would not leave it to police discretion to determine when the warrant requirement should kick in. The purpose of the Bill of Rights is to limit state power. Allowing the police to make their own judgments regarding enforcement of a rule designed to inhibit the police is contradictory to the right of citizens to be secured in their own homes absent a warrant. The state of Kentucky might say that procedure should not be a barrier to the fact that King was actually committing a crime. Kentucky would say that the proper course of action is to punish the police officers for breaking the law, rather than allow the defendant to walk free on a technicality.

That recommendation, however, is absurd. Punishing the police officers instead of allowing the defendants to go free is no guarantee that the police will not continue to violate other citizen’s rights in the future. Many officers may decide that the risk of suspension or even termination is worth putting more criminals in jail. More importantly though, individual rights, which the warrant requirement is one of, should focus on protecting individuals rather than punishing the police. Hopefully the United States Supreme Court will remember that the judiciary is the branch of government tasked with protecting individual rights and the Justices will make liberty a New Year’s Resolution for 2013.

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Attorney Tom Cox was assigned to represent Monson before Judge David Kurtz at the Everett Courthouse in Washington State.  Monson borrowed a pencil while he waited in county jail. During the trial though, Cox was stabbed in the head by Monson with the pencil Monson had borrowed. Although Cox was not greatly wounded, Cox withdrew from the case and Judge Kurtz declared a mistrial. Gurjit Pundhar replaced Cox as Monson’s lawyer – and Monson also stabbed her in the head with a pencil. Judge Kurtz declared another mistrial and appointed a third attorney, Jesse Cantor, to represent Monson.

To ensure that the trial would proceed without another attorney stabbing, Kurtz ordered that an electrical cuff be trapped to Monson’s leg. Monson was always deprived of his weapon of choice, the county jail pencil. Although the state wanted Monson strapped down to a chair for good measure, Cantor argued against it, saying that the jury might be biased against Monson if they saw the defendant tied down to a chair like a mad man during the trial. Judge Kurtz agreed with the defense counsel.

During the prosecutor’s opening statement though, Monson obtained Cantor’s pen and stabbed Cantor in the head with the attorney’s own pen. Although Cantor wasn’t serious injured, Judge Kurtz declared that Monson had forfeited his right to an attorney and that Monson would be representing himself for the remainder of the trial – while tied down to a chair.

I think many readers will have one of two reactions to this story: “Monson deserves it,” and/or “well duh he’s guilty.” Although it is true that Monson’s own conduct is the reason Monson can’t have an attorney, the law in Washington State leaves it to the trial judge’s own discretion. Judge Kurtz did not have to deprive the defendant of his right to an attorney.  Although appointing Monson a new lawyer again is still an option, at this point it seems that Monson is playing games with the court. However, Judge Kurtz could have saved time by denying one of Monson’s previous attorney’s requests to withdraw from the case.

Indeed, the case Judge Kurtz cited in support of his decision, State v. Fualaau, had the trial judge deny an attorney’s request to withdraw from the case despite the fact the attorney had been assaulted by his own client. The Fualaau judge had ruled that there were no conflicts of interest in having a lawyer represent a client who had just attacked the lawyer. Although the law did leave the decision up to Judge Kurtz, his decision could have gone the other way.

Before Monson’s final attorney was stabbed, that attorney had argued that Monson should not be restrained to his chair since the restraints themselves might cause the jury to believe that Monson was guilty. Readers might be tempted to conclude that Monson is guilty based on his behavior in court, and that the trial is just a formality at this point. Please dispense yourselves of this belief. The legal system serves two functions, functions which are undermined by false assumptions of guilt based on behavior outside of the crimes the defendant is charged with.

The first function served by the legal system is the discovery of whether the defendant committed a specific crime. This might sound extremely obvious, but many people will look at a trial and ask “is the defendant guilty?” That question, however, is not the proper one. The real question behind a criminal trial should be “is defendant guilty of the crimes he (or she) is charged with?” Yes, Mr. Monson is very likely guilty of assault, but the actual charges are possession of meth and second-degree murder. Possession of an illegal drug and murder are separate crimes from assault; neither the jury nor the public should conclude that Monson is guilty of murder or possession of an illegal substance based on a trio of assaults.

The second, and lesser known, function of the legal system is assigning the proper punishment to the proper crime.  Punishment in order to give retribution for the victims, i.e. “an eye for an eye,” only works if the defendant loses the same amount the defendant deprived from the victims. If Monson is convicted of murder because of the assaults on the three attorneys, than the trial will not be a proper recognition of the loss of Brian Jones. The murder will be overshadowed and the victim’s sense that their loss is being corrected will be eroded. The rights of the victim are also deprived when the defendant loses his right to an attorney.  Although criminal law is about the authority of the state and the defendant’s crime, it is important that the judge’s decision reflects the interests of all parties involved.

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