Philip Rosmarin

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

When I was a lad, there were about two hundred thousand Americans rotting in our jails and prisons.

Today we’re headed toward two and a half million. Nearly twelve times that of my callow youth. It isn’t the population: not even twice as many of us today as when I was a lad. Nor the crime rate.

But a quarter of the entire world’s prisoners reside in the land of the free.

We’ve got prisons for everyone. State prisons. Federal prisons. Juvenile correction facilities. Local jails. Immigration detention facilities. Indian Country jails. Military prisons. Civil commitment centers. State psychiatric hospitals. In all fifty states and beyond. We even stack them up in Pago Pago (that’s where I’d want to go, if there’s a window with a view).

So we’re pretty good at punishing our people. We’re certainly better at it than the rest of the world. The average criminal sentence in the United States is nearly sixteen times longer than our closest neighbor, Canada, ten times longer than Germany, six times longer than Finland, five times longer than England and Wales, while not quite two times longer than Australia, which was founded as a penal colony yet still lags as punisher next to us.

Australia and England punish its murderers with sentences eight years on average shorter than the United States (twenty-one years); Sweden, fifteen years shorter.

The murderer Derek Chauvin got twenty-two and a half years for killing George Floyd. Many felt that wasn’t enough.

He leaned a knee into a helpless man’s neck till he couldn’t breathe, till his heart couldn’t beat, and longer yet just to show the horrified crowd who was in charge. At sentencing he offered condolences to the family as if it was a shame Floyd died but what could he do about it.

But, for the crime for which he was convicted, of murder he did not intend, twenty-two and a half years is hardly a slap on the wrist. It is not the forty-year maximum he might have received, not the thirty years the prosecutor asked, but also not the ten years and eight months possible under Minnesota sentencing guidelines, and certainly not the time served the idiot defense lawyer humbly requested.

The question oughtn’t be, should Chauvin and people like him be serving longer sentences.

The question is, with so much of America imprisoned, do longer sentences serve us.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

The President of the United States is usually a man of many talents. One talent I didn’t hope to see in the current guy is the ability to talk out of both sides of his mouth.

Joe Biden made a campaign promise to end the federal death penalty.

Today his administration filed a brief with the United States Supreme Court urging it to continue the death penalty at least until the feds can stick a needle in the Boston marathon bomber. Dzhokhar Tsarnaev’s death sentence had been overturned, but Biden says it would be nice to flip it back.

Tsarnaev’s lawyer argues Biden should keep his promise and allow Tsarnaev to spend the rest of his life in prison. Guess he’d rather be in Colorado.

There is no doubt that if anyone deserves the death penalty, this one does. But the whole point of campaigning to abolish the death penalty is to hold that no one does.

You can’t credibly say in one breath that no one should be put to death by the government, and in the next say, well, except this man, who is really, really bad.

Like the really bad man’s lawyer, I’d like to see Biden keep his promise.

I’d like to see a President with the talent to speak out of the front of his mouth. Always and ever.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

I’ve twice been called for jury duty. Not once have I served.

First time, many years ago, I was a law student. Nobody wants a law student on the jury. Not the prosecution, not the defense. A law student might actually pay attention to the law, to the facts, and how the facts interact with the law. Can’t have that.

Second time, today, was worse. If nobody wants a law student on the jury, nobody and his little brother want a criminal defense lawyer on the jury. The prosecution, for obvious reasons. The defense? Every defense lawyer knows that probably eighty-five percent of folks charged with a criminal offense are guilty. Not quite proof beyond a reasonable doubt, but getting there.

This was the first major criminal trial in my home town since March 2020 held in person without social distancing. We still had to wear masks. For ten hours if you were there for the entire jury selection process. I was there for the entire jury selection process. Nobody ever found out I was a criminal defense lawyer. Nobody found out, because nobody asked.

A panel of twelve jurors and one alternate juror was chosen for this trial from maybe fifty persons who were called at random to occupy twenty-five seats. Only people in those seats are asked questions.

Some of those people are almost always dismissed for cause, meaning the judge agrees with the lawyer who challenges the juror that he or she cannot be fair, unbiased, or physically or emotionally capable of serving. The juror may be the sole caretaker for a person who may starve to death if uncared for, for a week. The juror may be unable to look at the defendant without thinking, gee, he looks guilty as hell. The juror may be a blogger who has written that the judge is an idiot and the prosecutor a fascist.

There are twenty-five seats of people asked questions because, as I mentioned, only thirteen will be chosen as jurors, and the other twelve will be removed at the end of the process for no stated reasons at all. Those twelve are called peremptory challenges, of which the prosecution and defense each get six.

Unstated reasons to reject a juror are as many as there are things we don’t say out loud. The prospective juror is black and I don’t like black jurors (unconstitutional but frequent and often unchallenged). She looks like my mother and my psychiatrist knows only too well what I think of my mother. That juror seems really committed to that nonsense about innocent till proven guilty and by God determined to be fair and I don’t want fair I want guilty.

I had the great good fortune not to hear my name randomly called to rotate into one of those twenty-five seats.

The great good fortune because, even in a mask, the defendant looked guilty as hell.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

I don’t usually write about criminal justice near my own hometown: my clients wouldn’t appreciate me telling their stories, and writing about the clients of other Colorado criminal defense lawyers seems to me a commercial conflict of interest.

But a retired Westminster police chief, Dan Montgomery, has been generously and relentlessly writing every month for the past several years to share articles about police use of force, excessive or not, as compiled by Americans for Effective Law Enforcement. I finally took a look for myself at the AELE Law Library website, and it’s fascinating.

You can take a look here.

Tara Godoy has written kind inquiries for years from sunny Cal, and her website is a revelation in medical forensics, well worth the time of any criminal defense lawyer in any state. The site is here.

Another frequent correspondent, which regularly tries to enlist my help or anyone’s with the slightest care for human rights, is Amnesty International. Not only did they recognize the presidency of Joe Biden within a week of his election, they outlined a complete set of human rights policy priorities they’d like to see his administration implement.

For some reason, they believe Biden can do better than the former guy, who they say threw kids in cages, left thousands of people seeking safety to die at the border, bombed civilians globally, stoked white supremacy and emboldened violence from the police, and left hundreds of thousands of people — including frontline workers — to die from COVID-19.

Low bar.

Still, they say Biden has his work cut out for him: to end the police killings of Black people and gun violence across the U.S.; defend the right to protest and free expression, which have been severely hampered by the U.S. government; free people, including all families together, from ICE detention; restore asylum access at the U.S./Mexico border and release immigration detainees; safeguard human rights as the world continues to grapple with the COVID-19 pandemic and its long-lasting effects; address the urgent climate crisis as the human rights crisis it really is; promote gender equality worldwide; protect persecuted populations around the world; halt civilian deaths committed by U.S. arms and U.S. lethal operations globally; and finally, close Guantanamo (not the entire city, just the U.S. military prison).

Ambitious. Even for a guy with a six trillion-dollar budget and a twenty-dollar haircut.

Finally, it’s been almost a year since I’ve wanted to mention that a law professor wrote from Canberra to tell me about his own blog. (Where has the time gone? Oh … yeah … Covid.) Barrister Michael Eburn is an expert on the law of emergency services and management. His public blog (I have no idea what he does in private, which is probably proper) is Australian Emergency Law.

Dr. Eburn takes many more vitamins than I do: he’s already written fifteen articles this month.

Good lord — he’s just posted something today.

Criminal law professor and human rights advocate Sadmir Karović has been a generous reader of, and contributor to, Drunk & Disorderly, almost from its beginning.

He’s been a good friend, too. He almost always sends me a note thanking me for that month’s edition of the newsletter; he is always kind. Sometimes he apologizes for his English — his first language is Bosnian, and he owes no apology to someone whose only language is an accident of birth. He doesn’t know that I would be just as happy to publish in whatever language he cares to write.

He’s unfailingly cheery, always hoping for the best. The best for me, the best for my family, the best for my country. He believes our democracy will defeat the enemies who lately have arisen from within. I think he has more faith in us than I do. His favorite season seems to be the spring; new life, new possibility.

I’m a worrier, so when he sent me a new article this spring, and I wrote to ask if he intended it for the newsletter, and he didn’t write back, I … worried. In December he told me he had Covid-19, and had recovered.

I’m going to adopt his sunny optimism, at least this one time, and link to his article anyway. He wrote it with another law professor, Marina Simović. It is an analysis of the state of criminal procedure in Bosnia and Herzegovina, which the English newspaper The Guardian declared has “most probably the world’s most complicated system of government.”

It was first published in the Journal of Criminology and Criminal Law, here.

Sadmir, as you say so often to me, “I hope you are good.”