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Liberty & Justice…?
Once upon a time, a long, long time ago, I was a very naive person. In my sweet, sheltered, fantasy land, law enforcement was always right. Judges were always fair. Lawyers always did the right thing in working for their clients.
I didn’t have to grow up very much, however, to learn for myself that none of those things were always true. Sometimes law enforcement officers are bullies. Sometimes they profile people and harass them. Sometimes they’re just straight up tired and take shortcuts just to get a case done. Judges have egos, and personality flaws, and again, are just straight up human and don’t always get it right. And lawyers….let’s not even go there.
I support the work of the Innocence Project. They are an organization around the country that represents people on claims of actual innocence who have been wrongfully convicted. It happens. Sometimes out of racism. Sometimes because law enforcement just wants to get a distasteful case out of the way. Sometimes because a prosecutor wants a conviction to get support for re-election (and a big reason why I DO NOT think county prosecutor, or judges, should be elected officials.)
In real life, people get railroaded and wrongfully convicted. I’ve seen it close to home; I’ve seen it close to me. I had a domestic client who was wrongfully convicted (I did not represent him in his criminal case, btw–I’m not qualified for that type of criminal defense). His case was overturned on appeal, but not before he spent 3 years in state prison and was practically unemployable on release. You can read his case here, from the Utah Appellate Court (the State Supremes declined to hear it, because they felt the Appellate court got it right.)
And then there’s this case…Chris Tapp. Chris grew up in and now lives in Idaho Falls, Idaho. He was wrongfully convicted of rape and murder, and spent nearly 20 years in prison before his conviction was over turned and he was released. The Innocence Project, and a local public defender, worked his case tirelessly–because he didn’t do it. Sadly, however, when you erase 19 years of a person’s life, they can’t just come back out and pick up where they left off.
So not only do I support the Innocence Project, I support compensation for the wrongfully accused and convicted. It’s the least the community can do, after it’s ripped a person’s life to shreds.
To support the Innocence Project’s work, go to their website, www.innocenceproject. org, and see what you can do to help.
Just so you know…
If you are the victim of sexual assault, and you have the courage to go to a hospital and ask to have a rape kit collected, PLEASE know that law enforcement will be more concerned with the fact that you are a victim of a horrible violent crime, and NOT with the fact that you’re under 21 and have alcohol in your system. Or that you’re in a state where pot is illegal (or you don’t have a green card) and you have marijuana show up in your system. Yes, the hospital may tell the police you tested positive for some illegal substances, but it is SO MUCH MORE IMPORTANT to get a rapist prosecuted than it is for the police to hassle you over so much less terrible things!
…and if you’re in Western Wyoming, and you DO get charged with one of these minor things after you’ve been tough enough to do the super difficult, invasive, important thing of getting a rape kit taken and reporting a rapist to law enforcement, get ahold of me. I’ll represent you in your justice court case for free. Because it is important enough to ME that you do what you need to to get a rapist off the street.
Don’t think this is just a women’s issue either. Men are also victims of sexual assault, though they report less often than women.
And just in case you were wondering, there is no statute of limitations in Wyoming or Utah on rape. Here’s a little more info on that. Keep in mind, though, that it’s much harder to prove in court that a rape occurred if you wait too long. (In Idaho, depending on how “rape” defined, there is either no statute of limitations, or you have 5 years from the date of the commission of the crime.)
Be brave. You’re not alone.
If you or someone you know needs help, call the Rape & Sexual Assault Crisis Line 1-888-421-1100, or you can contact CAPSA in northern Utah/southern Idaho, at 435-753-2500.
The Actual Clean Slate: Expunging a Criminal Record (UTAH specific)
(Note: This is a UTAH specific article, but there are processes in other states for expunging your criminal record as well. Go to your state’s courts website for more information, or contact an attorney.)
While I’m not in private practice anymore, I still do some private representation on the side. Little things, ya know? Like pro bono misdemeanor defense in justice courts. For people’s Wayward Children who aren’t technically children as far as the legal age of majority is concerned. The occasional possession of drug paraphernalia, drug possession, speeding way too fast in a construction zone in the middle of the night…you know, things that are done by young adults before their frontal lobes fully develop, and before they have the capacity to use a little better judgment (and remember not to talk to cops!)
These kinds of things can really mess up your life if they’re not handled properly, which is why I do pro bono representation. But I also know that these sorts of crimes don’t have to stick with you for the rest of your life, especially once you’ve grown up, are using better judgment, and don’t keep getting in trouble. You can wipe this sort of thing away, by getting an expungement. This is a legal way of getting your past criminal/arrest history sealed, so that it can’t come up against you when you’re looking for a job, trying to get financial aid at a college or tech school, etc.
The process is described at Title 77, Chapter 40 of the Utah Code, called the Utah Expungement Act. The statute says who can get one, and what the process is, but it’s a little hard to follow. The Utah courts website, however, has instructions on how to get it done, what you need to do, and links to the Bureau of Criminal Identification (BCI) websites with more info and forms, AND it’s written in plain English (but use this link above to the BCI website, because it goes directly to the expungements info page with links and instructions).
You CANNOT expunge everything, and the BCI page and Utah courts website spell out what all you can’t. You CAN, however, expunge some sex offenses, just not ones that are “registerable” offenses (a list of registerable offenses is found at U.C.A. 77-4-106). Check the statute you were convicted under; if it wasn’t one in the list, or if you don’t have to register as a sex offender, you may be able to get that expunged as well. Definitely worth a look.
A lot of us have done dumb things at different times in our lives. That Dumb Thing need not define YOUR life. Look into it; BCI was even nice enough to put together a pamphlet with basics on getting an expungement.
And by the way, you don’t need a lawyer to do this, but I’m always happy to answer questions of you have them.
Do it Today.
An Innocent Man
An innocent man went to jail today, for a crime he did not commit, because of the illness of another person. It got me thinking about “The Lincoln Lawyer.” If you haven’t seen that movie, you should. I don’t care if it’s rated R, folks–It’s the most “real” lawyer movie I think I’ve ever seen.
This scene haunts me. And I am weeping for the innocent wrongly convicted.
Cohabitant Abuse in Utah: “They don’t DO gays.”
[**Note: I post this story with permission from my client, whose name and the name of the other party have been changed to protect my client’s privacy. I’ve left out jurisdictional identifiers for the same reason. The picture that accompanies this post actually IS my client. I saw the photos of her injuries prior to meeting her. I did not recognize her when I met her from seeing this/the other pictures, and felt that no one else would either.]
I recently finished up my second non-prosecutorial criminal case. My client, who we’ll call Beth, had been cited for domestic violence assault as a result of an altercation with her girlfriend, who we’ll call Sue. Yes, you read that right: my client was in a homosexual relationship where there was domestic violence. But I’m getting ahead of myself. . .
My client retained me after being cited in this case. What happened was this: Beth had had previous interactions with Sue, her girlfriend, that indicated to her that Sue was trying to exert control over her. Sue had already been verbally abusing Beth, but had never struck her. On the day of the incident, back in November of 2010, Sue had started arguing with Beth in their bedroom about Beth’s 14-year old son. The argument escalated, and Beth tried to leave the room and the argument. Sue became angry and blocked the doorway. Beth, who is 7 inches shorter than Sue, and was outweighed by 30 pounds, tried to duck under Sue’s arm. Sue pushed her back, and then began punching Beth in the head. Beth felt 2 blows before she was knocked to the floor. Sue jumped on top of her, straddling her, and began punching her in the head and face. At this point, Beth’s 14 year old son came into the room, screaming for Sue to get off of his mom. Sue jumped up and ran out of the room, and then immediately called the police, claiming that Beth had assaulted her.
When the police officer arrived, he met a calm Sue outside the house. There were some scratches on her chest, and her t-shirt was torn slightly at the collar. Sue told him that Beth had scratched her and kicked her, and admitted to punching Beth, but just once, and just in self-defense. Beth, in the meantime, was in a state of shock, and did not cooperate with the officer. At that time, all that was apparent of Beth’s injuries was a goose-egg rising out of her left temple.
What it looks like when a woman’s girlfriend beats the hell out of her. . .And you don’t even see the height of the bump on the temple from this angle.
Not seeing a large differential in the severity of the parties’ injuries, and hearing opposing stories about what happened, he cited both Beth and Sue with domestic violence assault. (See U.C.A. § 77-36-2.2 for duties and powers of law enforcement when called to a domestic violence scene, including what to do when there are conflicting stories from the parties.)
Beth left the scene in an ambulance, and had a CAT scan immediately upon arriving at the emergency room. As the bruising in her face developed, her eye, head, and cheek turned black from the injuries inflicted on her by Sue, her girlfriend.
Domestic violence, or cohabitant abuse, occurs anytime there is abuse between people who cohabitate–be they in a romantic relationship or just roommates. (See U.C.A. § 78B-7-102.) The cop got it right when he issued citations for DV assault. Whether the parties were gay or straight, they lived together, which qualifies as cohabitant abuse. The prosecutor, on the other hand, didn’t see it the same way. He worked a plea agreement (plea of guilty held in abeyance upon successful completion of one year probation) with Sue for simple assault–his theory was that since the homosexual relationship wasn’t recognized by the state (at that time), DV assault wouldn’t stick. He told me this himself–in front of the cop as well, who looked at me, smiled a little, and shook his head. I said, “It’s a cohabitant abuse statute.” “It is,” said the cop, “which is why I cited them with dv assault.” The prosecutor, sadly, wasn’t. . .*something* enough to see that.
You might wonder what the big deal is with calling it assault or dv assault. Under the statute, repeated domestic violence assault convictions have enhanced penalties, as a deterrent to re-offending (see U.C.A. § 77-36-1.1). By not prosecuting Sue on a dv charge, she will not have the enhanced penalties for future offenses, which offenses are a real possibility, given her history and personality. Further, there are statutory protections put in place to protect victims of domestic violence that are not present for victims of assault. These protections keep the victim from being further abused, and further traumatized by the system. (See U.C.A. Title 77 Chapter 36 for the Cohabitant Abuse Procedures Act.)
It’s also a slap in the face to the actual victim in a case–regardless of whether he or she is gay or straight. Domestic violence is not a problem that is unique to the heterosexual population, but it’s largely seen as such by law enforcement. We had a particularly open-minded cop in our case. He was at least willing to give the DV cite out to a same-sex couple. That said, had Sue been a man, and had my client been assaulted by her boyfriend, chances are she would not have been cited at all.
At our first pre-trial hearing appearance, I provided the prosecutor with pictures taken of Beth’s injuries after the bruising had developed. He was not willing to dismiss the charge, or listen to any reason concerning the statute. We re-scheduled pre-trial for March 18th. I called the prosecutor a week prior to the pre-trial, to see if he would be willing to dismiss based on this new evidence (and on the fact that they had absolutely NOTHING that would stand up in court to prove the city’s case against my client.) He was unwilling to discuss at all. We showed up at the pre-trial expecting the worst. The prosecutor met with me prior to calling our case and told me that he was going to move to dismiss the charge–but was very quick to point out that it had nothing to do with anything I’d argued to him. Right.
Sue showed up at the court during our appearance. She sat herself right down behind Beth while we waited our turn. When the judge dismissed Beth’s charge, Beth got a look at Sue’s face. She was angry. She left the courtroom, but lingered in the lobby. The responding officer was again in court with us, and he told us to wait a minute before leaving, then headed out into the lobby to usher Sue out. He came back for us, and waited with us in the lobby until Sue got into her car and actually left the parking lot. Sue sat in her car a full 5 minutes before leaving. I appreciated the police escort. Sue creeped me out. And I’d never had any actual contact with her.
My client was thrilled. She thanked the officer, told him she understood his position. She was very gracious.
Beth was in an abusive relationship with a man before she started living with Sue. Law enforcement swooped in and protected her in that instance. Not so this time.
She told me that she had been beaten by a man before, but it was nothing like what happened with Sue–Sue was utterly vicious, merciless. She said it was absolutely staggering. Domestic violence is not exclusive to heterosexual relationships. The only difference between straight and gay DV is the reaction to it by law enforcement and the prosecution: As Sue told Beth weeks before beating her black and blue, “Don’t bother calling the police for domestic violence in ________. They don’t DO gays.”
PTA Mom to Lady Lawyer 