Philip Rosmarin

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

Missouri’s the Show-Me State, and public defenders there are demanding of the governor: show me the money.

Their office is so understaffed, and Governor Jay Nixon so unwilling to do anything about it, that the defenders have actually turned to the law to force his hand, and maybe his three other limbs as well.

A section of Missouri state law allows the director of defenders to lasso any active lawyer in the state — according to the director. According to the governor, no, not really, I would do anything for love of Missouri, but I won’t do that.

Governor Nixon, whose great-great-great-granddaddy was a personal friend of Abraham Lincoln, has repeatedly vetoed caseload caps and blocked millions of dollars in funding for state defenders of the poor. So poorly paid and overworked are they, that if they actually worked a standard eight-hour day, their effective hourly pay rate would make them eligible for their own services.

Public defenders in Missouri — and, to be fair, in most states — handle hundreds of cases at the same time. A Missouri study showed that they’re able to put in often barely twenty percent of the hours recommended to provide, not great, but merely effective, assistance of counsel. That’s the level where you don’t get sued for being a lazy bastard.

The days are dwindling down to a precious few for the Nixon administration. It may be that, faced with days of endless idleness come 2017, the former governor may reconsider. It ain’t much, but it’s a living.

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

Canadian Jim Wigmore wrote the book on DUI court practice. That’s not driving drunk in or to court; it’s all the factors to take into account when defending a drunk driving case in court.

He points out that, sure, some people in arctic climes have nearly two hundred words to describe snow or ice. But in the United States, right here at home, we have about three thousand words to capture getting snockered behind the wheel of a large automobile (there’s one right there).

He has something to say about the nonalcohol cases of DUI we see here too — those related to marijuana use. More and more of them involve people who don’t live here, but make the journey for the kick of firing up a joint without worrying the guy holding the lighter is a cop.

If I’d known legalizing medical marijuana in 2000, and recreational use in 2012, would lead to all the increased tourism Wigmore claims, I might have been against it: I always figured Colorado already had too many tourists.

Worse, only about twenty percent of our towns and counties even have dispensaries. We can expect a five-fold increase when they finally catch up.

Makes me want to get snockered.

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

We in the United States of America, through neither aspiration nor effort of our own, were born into what we like to think of as the lucky country. Superpower, endless opportunity and wealth — at least for one percent of us.

So when we travel to a country we might consider less fortunate, you’d think we would at least be nice to the poor unlucky bastards who live there.

Not so a few drunken swimmers of the American Olympic team, particularly one silver-haired god who dropped from the sky to grace the good folk of Brazil with his presence, then dishonor himself in his absence.

It wasn’t so much that they trashed a bathroom in Rio. Who hasn’t done that? To blame the victim, however, to inflame by lie the perception that what else could they expect but to be attacked and robbed in that third-world hellhole, that should have been beneath even a member of the one percent.

Maybe worse was the Olympic official who tried to excuse the boys as high-strung athletes just trying to have a little fun. It’s enough to make Cyndi Lauper want to drop dead just to be able to turn over in her grave.

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

Are there children in America who dream, when I grow up I want to kill as many people as I can?

There are adults in my country, many more of them than in most countries, who are living the dream. Unlikely they consider themselves serial killers, yet serial killers they are — the worst serial killers, in fact, in the nation. They’ve all got government jobs. We call them district attorneys.

Many prosecutors, maybe most (maybe), are like the rest of us, intending to do honest, fair work, whatever that work may be. But some of them carry a special zeal, a zeal so special it may someday wind up a category in the Diagnostic and Statistical Manual psychologists and psychiatrists use to describe mental disorders.

The Fair Punishment Project, a joint initiative of Harvard Law School’s Charles Hamilton Institute for Race & Justice, and its Criminal Justice Institute, last month published a report on whom it characterized America’s Top Five Deadliest Prosecutors. Not one of them did an honest, fair job in sending their victims to death row.

These are some of the report’s findings.

Joe Britt personally sent thirty-eight people to death row from Robeson County, North Carolina. Prosecutorial misconduct was alleged in all but seven of his cases, and sustained in more than a third. Two of the “men” he attempted to kill were intellectually disabled brothers, aged fifteen and nineteen. Britt hid evidence, later discovered, that proved the boys’ innocence. After thirty years in prison, many of them on death row as defense lawyers fought to save their lives.

In Britt’s mind, they were still “absolutely” guilty, and he was only doing his job. “Within the breast of each of us” he eloquently mused, “burns a flame that constantly whispers in our ear, ‘preserve life, preserve life, preserve life, at any cost.’ It is the prosecutor’s job to extinguish that flame.”

And so Britt sought to end lives, at any cost.

Robert Macy of Oklahoma County, Oklahoma, prosecuted the capital cases of fifty-four people sent to death row. Courts found he, too, committed prosecutorial misconduct a third of the time. Still, juries knew better than to return acquittals in his cases, after one acquittal when an enraged Macy reached for his gun and was dragged from the courtroom before he could kill any of them.

Nearly half of his death sentences were later reversed; three of his victims were exonerated. They called him “Cowboy Bob,” and he liked to fabricate evidence. I hate to think of him as a cowboy. The cowboys I knew, growing up in the West, were for the most part stern men, but kind.

Donald Myers was called something else: “Dr. Death.” He still plies his foul trade in South Carolina, so far winning thirty-nine death sentences, nearly half of which involved proven prosecutorial misconduct. Where some people keep pictures of their children on their desk at work, Myers keeps a paperweight model of an electric chair.

“This is about all I’ve got,” Myers said. “If I had to go home and be by myself, I would shoot my damn self.”

Go home, Donnie.

And…and I haven’t the heart to go on. You can read the full report for yourself, here. It’s heartbreaking, it’s infuriating, it’s life and justice in these United States, and it details five more runners-up and three wannabes for the title of Worst Waste of a Legal Education.

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

No, they don’t.

Not in a country where six sworn officers of the law can with depraved indifference throw a black man unprotected into the back of a steel-lined police van and bounce him around in it until his spine breaks.

Not in a country where a prosecutor can say it doesn’t matter how many times we prove it, the criminal justice system will refuse to hold these men accountable for the homicide they have committed.

What is the state of a nation where one of two candidates for its presidency offers the killers his respect and credit?

You tell me: this post will continue to grow as you respond to this question. I won’t edit your responses; I’ll print them as you intend. Comment below, or send to boulderlaw@me.com

Your Responses:

From Susan Lambrose, Co-Assistant Program Manager at Phoenix Of Santa Barbara Inc:

The violent acts that humans continue to perpetrate against other humans are an ongoing tragedy that causes my heart and soul to weep for our peoples, our nation, our world. One would “think” that things had gotten better in the ongoing quest for civil rights and the expectations of humane treatment, in particular, in the hands of those with authority and power. And yet the opposite is still all too prevalent and something we could all do well to march – peacefully – in the streets of “everywhere” USA and stand up against. I appreciate your starting this conversation as another means to do just that – have our voices heard and “stand up” against these ongoing injustices and atrocities.

I teach a class at Antioch University that is about service, about the relentless pursuit of social justice, and about the relentless pursuit of self reflection and self awareness, and how we can all make a difference – even with the smallest of gestures. Because millions of “small gestures” that emphasize what is right and what is righteous, add up. Thank you for giving me an opportunity to make this “small gesture” here, to add to the conversation you have begun.

I shared a “speech” I wrote years ago with my class this week, on Martin Luther King, Jr. And on his pursuit of civil rights and social justice, and his leadership in “The Civil Rights Movement” in the 60’s that helped lead to the enactment of “The Civil Rights Act of 1964” – “that outlawed discrimination based on race, color, religion, sex, or national origin.” Of course one could easily be discouraged when you think of how long it took and why enacting a “new Act” to enforce civil rights was necessary in the first place. After all, wasn’t that supposed to have been what The Declaration of Independence was about in 1776?!

I’d like to quote the beginning of that Declaration here: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Obviously the men in uniform who were “supposed” to uphold such rights forgot about the basic right to life when they threw Freddie Gray into the back of that police van. As so many others in uniform have done when they inexplicably shoot those black men and women based on the color of their skin, and not what they have done to “deserve” to be shot.

The question is – what can we do about it? How can we deal with these kinds of egregious acts and social and human rights injustices that continue to be so much more self evident than the truths of a declaration that our entire country is supposed to be based upon?

I am, as I often have been over the years – since the first time I heard him speak, to the time that I did an independent study of him while in college, to the time I wrote a speech about him – drawn to return to the words of Martin Luther King, Jr. A man who saw his people suffer the same violent acts against them as we too often still see today, and a man that was committed to what he believed was one of the main ways to “deal” with these ongoing acts of violence and lack of equality. I quote from what I wrote:

“What I discovered while doing an independent study about him was that the main concept that the Reverend Dr. Martin Luther King, Jr. believed in, was the concept of the power of love as the ultimate unifying and universal principle of life that has the ability to put an end to all wars, all racism, all violence, all aggression, all inequality, all hate and all injustice. Love can be seen as the recurring theme in all that he spoke of and demonstrated in his life.”

Martin Luther King, Jr. recognized that hatred can only continue to beget hatred, and violence, no matter how justified it seems in certain circumstances, can only continue to perpetrate violence. As he stated in his Nobel Peace Prize acceptance speech in 1964: ‘Nonviolence is the answer to the crucial political and moral questions of our time: the need for man to overcome oppression and violence without resorting to oppression and violence. Man must evolve for all human conflict a method which rejects revenge, aggression and retaliation. The foundation of such a method is love.’ Civil rights to him was not just a matter of equal treatment and justice for all: it was, even more so I believe, the inward respect, love and oneness encompassing all, that can only be realized on a higher spiritual level that he believed mankind must endeavor to achieve. As he also stated in his book, “Strength to Love”: ‘Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that. Hate multiplies hate, violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction… The chain reaction of evil – hate begetting hate, wars producing more wars – must be broken, or we shall be plunged into the dark abyss of annihilation.’”

I believe in what Martin Luther King Jr. lived and died for. And I believe times have changed “some,” but “some” is not enough. Black lives do indeed matter, as all lives matter. And when love and peaceful protests and voting against politicians who so willfully and outspokenly maintain racist beliefs and threaten the very foundation of our country don’t work, what else can we do? The answer is not violence.

Yet again I am affected by the words of “The Declaration of Independence.”:

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

I’m not suggesting we overthrow our government, but I am suggesting we protest the injustice of any and all governments and/or local judicial forces that would fail to effect the safety and happiness of black lives, and of Muslim lives, and of ALL lives. It’s time to make those “small gestures” and rise up to make a difference, in whatever ways we can.

Even if that just means getting on your soapbox as I’ve just done, and commenting on a worthwhile blog, and not being afraid to let your opinions and the things that matter to you, be known to anyone who cares.

Thanks again for the invitation…

From James Bordonaro, criminal defense lawyer in Emporia, Kansas:

With respect to the Freddie Gray case do you agree with my assessment that part of the problem with that particular prosecution was the very public pronouncements of the new prosecutor and that she appeared to be quite young for such a high profile position. I realize she wasn’t the lead prosecutor and they employed a seasoned team of trial attorneys but perhaps a more thorough consideration of what could be proved before taking the case to the grand jury was in order. It also points out the dirty little secret that prosecutors often rely upon persuading a jury when a judge (reviewing a motion for directed verdict) may be reluctant to dismiss a claim. Yet, the same judge has little problem when sitting as trier of fact to influence the prosecution’s theory of the case as happened here resulting in the D.A. dismissing the remaining defendants.

From Steve LaCheen, criminal defense lawyer in Philadelphia, in practice fifty-nine years:

What is there to say…On the one hand you have a nascent Mussolini,  self-proclaimed “man on a horse” that Europeans have often seen as the nascent savior, claiming credibility as an outsider to the system, and blaming the “Others” for the country’s ills, lying about just about everything, and riding a wave of xenophobic hatred, headed in diametrically opposite directions at the same time. Imagine, if you will, that he actually won the election, and gathered representatives of the several factions who supported him, based on their shared hatred. They would each look around the room, sizing up everyone else, and then, for the first time, ask themselves, “What in Hell am I doing in here with Them?”  I do not think that anyone need  recount all the ways that this Clown has demonstrated his lack of experience or success in accomplishing anything but creating the image he worships — his own — as someone who has made a fortune, often at others’ expense. There is no “there” there.

On the other hand, you have the epitome of the insider, working the room, working the patrons, working the favors-laden patronage matrix to a fare-thee-well, the super-experienced “pol” with all the connections, who has no doubt feathered her own nest, sometimes at the expense of others, no doubt. But, like it or not, the System is what the System is, and until it is upset by voting all the scoundrels out of office at the same time, it is far better to have someone working it who has experience in working it than someone who celebrates his innocence (read that as ignorance) in that regard. And, she does have a record of doing the right thing on numerous occasions in varied ways.

I could go on, but have to get back to trying to make a living. Thanks for the opportunity to vent. This was a first for me.