No Refusal New Year’s Eve

The Statesman reports that the police will be seeking blood warrants tonight for DWI suspects who refuse to provide breath or blood samples. The “no refusal” period is scheduled to begin at 9pm tonight and continue until 5am Friday.

1/2/10 Update. APD made 24 DWI arrests New Year’s Eve. Of those, 5 were blood warrant cases.
From the Statesman:

Between 9 p.m. Thursday and 5 a.m. Friday, 18 DWI suspects provided breath tests, one suspect consented to a blood test and five search warrants were collected for the remaining suspects.

I knew they were rare but that’s harsh.

I get an occasional call from someone interested in seeking a pardon. Usually, the person doesn’t understand the process and, once I explain how rare it is for the governor to actually grant a pardon (even when it’s recommended by the Board of Pardons and Paroles, apparently), the interest dries up.

Here are some hard numbers from Grits for Breakfast that underscore the point:

That certainly validates my conviction that an attorney has an ethical obligation to warn a client about the improbability of success before accepting money to handle an application for pardon.

These numbers include only full pardons but I find it doubtful that the numbers for other forms of clemency, such as conditional pardons, pardons based on innocence, commutations of sentence, and emergency medical reprieves are appreciably larger. Here’s a link to Grits’s source material for anybody motivated enough to actually answer that question. For more information about pardons, see this FAQ sheet from the Board of Pardons and Paroles.

Police Notebook: Roger Boudreau (APD)

Officer:  Roger Boudreau
Agency:  APD
Alleged Misconduct:  Lied about his actions in a 2007 shootout, causing a man he shot to be charged with aggravated assault with a deadly weapon and spend 13 months in jail before being released on personal bond. The man also lost a leg as a result of the shooting. The charges were ultimately dismissed in 2008 after the state’s own experts examined an audio tape recording of the confrontation and agreed with the defendant’s version of events rather than the officer’s.
Disciplinary Action:  None known. Boudreau actually received APD’s Medal of Valor (the department’s highest honor) for displaying exceptional bravery in the incident.
Source:  This Statesman article.

Police Notebook: Gerardo Cantu (APD)

Officer:  Gerardo Cantu, APD#6111
Agency:  APD
Alleged Misconduct:  Lied in a sworn affidavit filed in a criminal trespass case in 2009 (aggravated perjury). The lies included significant facts that constituted the elements of the offense.
Disciplinary Action:  The County Attorney’s office dismissed the case but, to my knowledge, took no action against the officer.
Source: This was one of my cases. My blog entry about it includes links to the relevant documentation (PC affidavit, Google map street view, and dismissal). I also have photos of the scene that I didn’t post for reasons of time and bandwidth. Anybody with questions about this case is welcome to contact me directly (

Police Notebook

I’ve decided to try keeping a “notebook” here for documenting incidents of local police misconduct that I come across.  Each entry will be assigned to the “Police Notebook” category and contain the following information:

Alleged Misconduct: 
Disciplinary Action: 

For anybody interested in contributing, I’m looking for news reports, disciplinary reports, and cases that are otherwise documented, as opposed to just war stories. Historical cases are fine, especially if they deal with cops who are still on the force. Please submit the above information by email ( or by comment to this post.

Representing the Guilty

While catching up on my blog reading recently, I came across a recurring topic in my field that I’ve yet to address here.

In this instance, Keyana, a self-described aspiring criminal defense attorney, explores her apparent belief that there is something inherently wrong with representing people who are “guilty as charged.” The solution, she exposits, is to cast one’s role in terms of seeking justice. Then one is free to fulfill the role of criminal defense attorney “in good conscience.”

Her essay ran afoul of Scott Greenfield, a New York criminal defense attorney whose sharp wit is generally on-target but who pulls no punches when it comes to his subjects’ feelings. Unlike Greenfield, who lambasted the baby lawyer for her ignorance, I’m not particularly offended by Keyana’s essay. She’s merely expanding on a viewpoint that I’ve encountered  over cocktails for more than a decade. But I agree that she’s dead wrong. She’s also missing the big picture.

In the first place, the criminal defense attorney’s role is NOT to seek justice—that’s the prosecutor’s job. The criminal defense attorney must be a zealous advocate for her client’s interests within the bounds of the law and the rules of professional responsibility. PERIOD. Trying to spin that into a mandate to seek justice runs the serious risk of undermining your client’s interests when they run counter to the common good. That could actually get you disbarred, and rightly so.

Having worked both sides of the docket, I can comfortably say that prosecuting is easier. One reason is that a prosecutor rarely has to see the big picture in order to understand why what she’s doing is good and important—that’s obvious.  But for criminal defense, one may have to grasp the bigger picture to see the nobility of the profession. That can be difficult for newbies, particularly in those cases where they represent the “wretched refuse of [our] teeming shore.”

The bigger picture is that, in doing our jobs to the best of our abilities, criminal defense attorneys protect the innocent by policing the police. Believe it or not (and this can be a very hard truth for newbies), some cops lie, cheat, and, yes, even arrest and hurt innocent people. Some prosecutors and judges let them get away with it and some even participate.  More often, they simply don’t know about it and have neither the time nor the inclination to investigate the complaints of the accused.

But the point is that, if defense attorneys aren’t doing their jobs and getting cases thrown out when they suck or the cops break the law, then nothing will keep bad cops in line, which is a very scary prospect. Bad cops are worse than ordinary criminals because they have the full force of the government behind them to oppress the people (yes, even innocent people) who can bring their criminal activities and other misconduct to light.

A final point that bears mentioning…There is a huge range of punishment for most offenses. Sometimes a person is guilty of a criminal offense but nonetheless undeserving of the relatively harsh punishment the prosecutor seeks. The prosecutor may be unaware of the mitigating circumstances, disinclined to believe the defendant, or biased against someone accused of this type of offense, regardless of the circumstances. Such a dendant is “guilty as charged” but nonetheless entitled to a fair punishment, i.e., a punishment that accounts for the mitigating circumstances. That’s unlikely to happen without the assistance of a criminal defense attorney.

We’ll Miss Charlie Baird

In news that’s as sad as it is surprising, Judge Charlie Baird has announced that he won’t run for re-election next year. Judge Baird is an adept politician but has consistently shown the highest degree of respect for the letter and spirit of the law that I have ever seen from an elected judge, even when it’s politically unpopular to do so. He will be missed. For more about his announcement, here’s the Statesman article.