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Punishment in Hawaii – Laws and Trends

Punishment in Hawaii - Laws and Trends
  
“We can and should do better. But “doing better” doesn’t mean simply focusing on social services and systemic reforms and ignoring the need for punishment. It means using punishment intelligently, which means using it as sparingly as possible but also as much as necessary.”

Punishment in Hawaii

Punishment in Hawaii is heading the wrong direction, is an opinion I’ve long maintained. So when I woke up today to an article talking in depth about punishments that largely mirror my own views I was excited. Everyone I know in the system who takes time to talk to criminal defendants comes to one conclusion early on: To a person in prison, there’s not much difference between ten years and twenty years. It is all unforeseeable time to them. Quite frankly many of them are surprised to live as long as they have. When you grow up surrounded by gang members, prison is simply a stop on the road to expected early death.

So why do we insist on keeping our children in prisons until they become our fathers? Grandfathers?

No one is denying crime exists. Or that real crime deserves real corrective punishment. No one disagrees that when other people on our island hurt or steal or trespass against us they need to be taught, or re-taught, that such a thing is not allowed. Whether by fine, by community service, through classes and counseling, or through incarceration, talking softly only works when someone is carrying a big stick. A few days in the judicial system and you realize talking loud never works.

`“Viewed from the perspective of deterrence, long prison terms are a bad bargain: The last 15 years of a 20-year prison sentence start five years from its beginning, a period distant enough to be beyond the planning horizon of the typical armed robber. And those long prison terms are no better viewed from the perspective of incapacitation—the purely mechanical effect of preventing crime by keeping the criminals locked up… Thanks to “three strikes” laws and absurdly long terms for drug dealing, the average prisoner is now in his (or, much more rarely, her) mid-30s while the average new crime is committed by someone in his early 20s. That’s a very costly mismatch.”

Inherent Worth in the Criminal

The first thing we have to agree upon is that there is some inherent worth to society of these incarcerated people. Let’s be very clear, we’re keeping them alive for a reason. If there is no inherent value to society in our inmates, they need to be killed. Period. We’re investing our time and dollars because we want something back from them. Maybe work, maybe intelligence, maybe just love and support for their families. So there is something there. And if there is something there, our next question is, how can we maximize the utility of whatever we want from them. How do we do that for punishment in Hawaii.

Is it locking them up until forever and a day? Well there’s different thoughts, let’s look at a couple:

Different punishments in Hawaii

Prostitution and punishment in Hawaii

Men

I’ve talked all of us blue in the face with what I see as the problems with the proposed prostitution amendments and how they will over-punish for prostitution. About how they take a crime, being a John and want to increase the punishment ad nauseum. I’m slightly surprised no one has suggested thumbscrews yet for men so brash as to ask a woman, dressed for prostitution, how much she charges. Part of the question is what is the social utility of not only branding these men with the criminal seal, but also requiring them to miss 30 days of work, lose their job, lose their means of supporting their family, and have to explain to their children where they went.

Understand, this is not a deterrent unless they know about this. Know about this before they got drunk and stumbled back to a hotel and on the way back an attractive female dressed in sex approaches them and turns out to be an officer. And yes, that is quite a few cases, not the exception.

Women

And remember equal protection and women’s rights? Every time you raise the penalty for men, guess what, you raise the penalty for women. And there is one thing law cannot do, erase the 2000 year old social stigma in Christian societies on the prostitute. These laws will have, at the top of every resume forever, a brand that says she carries a prostitution charge. And, when she gets out of jail, and the pimp is waiting, do we think he’s going to give her credit on 30 days of payments. She gets beaten to make up the money.

No one who asks to increase the penalty for prostitution has any compassion for prostitutes. Period.

New marijuana law and easing punishment in Hawaii.

Great Marijuana in Honolulu

Let’s talk about the opposite issue. Currently the debate in Hawaii is whether we decriminalize marijuana. The argument being that somehow people “getting away with” smoking marijuana is “getting one over” on society. But the question goes back to the basic utility of what should be allowed in America. Or more importantly, what should be allowed to stop your growth for the future. As if people who smoke marijuana, as minors, cannot grow up to be anything important.

Of course they can. But should the failure to avoid arrest be enough to stop your admission to college, Harvard Law School, even  the Presidency? Hawaii’s movie in the right direction. Stop ending lives prematurely by marking people with a criminal conviction for something so manini.

The secret about most crimes:

“The progressive tendency is to fixate on the plight of those punished rather than the plight of those victimized, though of course these are often the same persons under different labels or at different moments.”

Ready for the secret? Almost all felony trials in Hawaii are over drugs. Very rarely do we see a case where the complainant is virgin white. People learn to be bullies by being bullied. People learn how to steal cars because someone who is successful at stealing cars shows them how to better their life. I became a lawyer because I watched a lawyer save my fathers life.

 The Right direction: HOPE in Honolulu

At this point in the essay, I was thinking, Mark Kleiman would really like J. Alm’s HOPE program. And then I read the next paragraph:

“HOPE: The obvious (but hard-to-administer) common-sense alternative is to make the rules less numerous, the monitoring tighter, and the sanctions swift, certain, and reasonably mild, and to clearly tell each probationer and parolee exactly what the rules are and what exactly will happen, every time and right away, when a rule is broken. Mildness—or proportionality, if you like—is essential to making the threat credible, and severity turns out to be unnecessary. Experimental evidence from the HOPE program in Hawaii showed that two days in jail is as good a deterrent to drug use as six weeks, as long as the two days actually happen, and happen every time. We don’t know yet whether a day in jail, or a couple of hours in a holding cell, or a weekend of home confinement, or a week of a 9 p.m.-6 a.m. curfew, would do the trick, but we ought to learn.”

I wholly disagree with the idea that it is hard-to-administer less rules. In fact the situation is much easier than having every violation require a long complicated penalty. But the we can’t argue with the facts and the science. If we can get the same punishment from two days of jail that we can with six months of jail, keeping someone in jail for six months is not only inhumane, it minimizes social utility.  With luck HOPE will increase use across the island.

Read more about hope here

Let me close with a story.

Whenever we talk about proportionality and punishment in Hawaii I tell this story. Now, it’s a story about a loss, and I don’t normally tell those, but I’m honest as much as you can expect from a lawyer so I’m going to be honest about this one:

It was a harassment case, short, one hour trial that resulted from a domestic violence situation between a couple with two kids.  In the State of Hawaii, think of harassment like an “assault” where no one gets hurt. Just someone touches another person in a way they shouldn’t, pushes them out of the way or pokes them annoyingly. Like that.

Well the basic defense was, the guy just wanted to get into his car. The female wouldn’t move, he moved her out of the way. There was a question about how hard it was and whether it was warranted or not, but the when the judge brought down the gavel he said “GUILTY”. Man, I hate that word when I’m the defense attorney. And I was angry, I didn’t think he was guilty!

Gavel Punishment in Hawaii

But then the judge said something else, very quickly. “SENTENCE: $100.”

“WHAT!” the Prosecutor and I both yelled out. A conviction for a case like this comes with jail time. He harassed the mother of his kids. We’ve been trained to expect at a minimum a week.

The Prosecutor went in “Judge, we need jail. At a minimum anger management and domestic violence!

“Nah,” the Judge said, “He feels bad. It’s not going to happen again. It was just that one particular situation.”

And I thought to myself wow, I guess he is about one hundred dollars worth of guilty!

 

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Juvenile Cases in Honolulu

Juvenile Cases in Honolulu

Your office phone rings just as you were about to begin a project. It’s the principal from your child’s school saying that your son or daughter has been arrested. Then they go forward and explain one of three things:

1. A scenario describing your son as the most horrible black-hearted monster that you’ve never met and cannot imagine.

2. A school day prank that would’ve rated no more than an afternoon in the principal’s office during the days we went to school.

3. The scariest of all: nothing. Just come down. The juvenile police have some questions they want to ask you.

The problem with the juvenile system is that the case can follow your child, even past when they become an adult. It is important, from the earliest stages, to have someone who can explain the system to you, to minimize the trauma that is guaranteed to occur.

Recent Juvenile Arrests

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Choosing the right attorney — Hawaii Lawyer Today’s Story

Hawaii Criminal Defense Lawyer, best criminal lawyer, honolulu, hawaii

The Choice is Yours

“You can’t do that” the Prosecutor told me, but I expect her to say that.  She gets paid to say that.  Exasperated, but not obnoxious.  She simply doesn’t need one more thing to do.  The manila folder on her desk, three inches thick with paper slammed shut as her index finger ran along the edge of the table. “I don’t know what you want me to do, it can’t be done.”

I just need you to let me address the judge.  I don’t care how, but I need to address the judge.

Yeah, you can’t do it Marcus.

Now this second voice I didn’t expect to hear.  Another Defense Attorney had chimed in, to tell me I can’t do something?  He doesn’t get paid for that.

It’s an interesting life being a Defense Attorney.  It’s an interesting camaraderie.  On one hand, we’re in precisely direct competition with each other: every dollar I make is a dollar he doesn’t; every time he drops his price, I lose money across the board.  But on the other hand, no one else can relate to what we do.  It’s very hard to be required to descend into the bowels of humanity for X hours everyday.   Our goal is to find that small slice of innocence we can hold up as an example of redeemable good.  But to find that slice, we wade through a lot of muck.  It is impossible to do it and come back unchanged.

And so Defense Attorneys become some kind of a fraternity.  There’s certain stories I don’t tell on my blog.  There’s things we’re required, by law, to do that I don’t brag about in public society.  There’s one case in particular I’ll probably never explain on this blog.  Surrounded by Defense Attorneys it becomes almost my rank or insignia.  If anyone questions my merits, another attorney who knows will mention the ten word synopsis, and the response will be, “What? You were able to do THAT?” And they’ll be no more questions.

You can’t do it, Marcus, you’re going to have to get it done another way…

I tuned out.  Why was this guy even talking?  On one hand he wasn’t kissing the Prosecutor’s butt in order to curry favor.  That was an option, but I didn’t  believe it.

See Marcus, you can’t do it.  What you need to give us…

Give us? Give US? You’re a Defense attorney!  And I tuned out to the rest of his speech as I tuned in to the problem.  He wasn’t one of us.  He hadn’t joined, in his own mind, the fraternity of the Defense Attorneys.  Don’t get me wrong, he collected money to “defend” people.  He stood next to them as he pled them guilty to crimes they may or may not have committed.  He explained to them their right to plead guilty, the right to throw themselves on the mercy of the court.  The right to pay him a flat fee that includes nothing but showing up.

“Give US.”  See, he was an ex-prosecutor, but something worse.  He still self-identifies as a Prosecutor.  He still self-identifies as someone who wants MORE people in the system, rather than less.  But people pay him for it, maybe I’m wrong.

And I turned to the real Prosecutor, “I just need to get before the judge”.

I stepped outside and made a phone call down to the Beretania Police Station to get my facts straight, then came back inside.  I sat in the front row and waited. Long. I had to wait until the rest of the calendar was done.  When the judge got to the end of his schedule he asked the Prosecutor if there was anything else they could take care of before the break.

As I jumped to my feet, the Prosecutor dismissively allowed me to address the judge. I would have yelled had she not.  The judge heard my request and  said, “Well, Mr. Landsberg, that sounds like a reasonable request to me. Granted”.

120 seconds. Done.

And as I looked around the court, the “Defense Attorney” was not there. Too bad, I wanted him to see me win.  I collected my things, placed them in my bag, and on the way out the door I saw him in the hallway talking to his client with a familiar refrain:

I understand you think you can win this case, You can’t do it. It can’t be done.  You can’t win here…

And I shook my head, And sung to myself:

You can get with this, or you can get with that.
You can get with this, or you can get with that.
You can get with this, or you can get with that.
I think you’ll get with this, for this is where it’s at.



Recommendation Hawaii Lawyer — Lawyers recommend Marcus Landsberg

Lawyer Referrals Hawaii, Recommended Hawaii lawyers
SO recently I’ve been engrossed in a jury trial (we won!) and now I’m turning my attention to a CPS custody case, and I don’t normally want to “tweet” my own horn.
But today my twitter tweeped and I checked it and I saw this recommendation from Hawaii State Representative Della Au Belatti, I definitely wanted to put it up here and let everyone who follows my blog know.  It’s very easy to know who is currently sitting on top of the attorney mountain, but it’s not everyday that you see one attorney publicly declare another attorney is a future “leader in the profession”.
And being that Representative Au Belatti is a woman of great foresight, there’s a very good probability she’s right!
Big Teeze Recommends lawyer Marcus Landsberg, Big Teeze, 808 HoesAnother person who got on twitter to support my private attorney life is my old friend Big Teeze.  You all know Big Teeze from as a veteran of Hawaii Radio, currently on 93.1 Da Pa’ina Radio station Afternoon drive time.
I cannot guarantee everything he says, but Big Teeze has always had a way of saying the truth by speaking his mind.  I always appreciate the love from my Bredren, from the Capitol, to the courthouse.
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Exciting Changes Coming Soon!

Well, we’ve been building up to this point!

Keep checking back to this webpage for the announcement. but there should be exciting changes coming soon. The webpage for one thing should have a complete overhaul. We’ve already announced our Facebook page (please like us):

http://Facebook.com/Hawaiilawyer

And follow the twitter at @LandsbergLaw where I post

The latest updates in Hawaii Law.
The latest news I receive on roadblocks or potential police infractions.
Anything I’m in the mood to post!

A good way to get started is to follow the twitter and go back and read some of my favorite posts. Already, my research shows I’m the highest Klout ranked lawyer in the State of Hawaii, and that was within about two days of joining Twitter.

Soon I’m launching “Free Legal Advice in 140 Characters” Any question you can ask in 140 characters on twitter, I’ll do my best to answer in the same. We have to pick a day. Or maybe one random day a week? Not sure. Feel free to start with questions now though.

It’s an exciting time at the Landsberg Law office. Recently work has picked up, and that means less time spent on the website. See you in Court!

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Tobacco Litigation, District Court

Tobacco Litigation, District Court


Some attorneys win upwards of a Billion dollars in their Tobacco Litigation.  I won a hug from a crying woman.

Christi was 26 and adorable.  Worked hard for her family of five.  They live in the part of town where you can afford to have a house that sleeps five.  Plus grandparents.  Plus Uncles and Aunts.  Plus cousins. Plus cousins’ cousins.  And Christi was born in the Philipines.  Everyday Christi would catch the bus from her side of the island into Waikiki to work in the tourist industry.  Not a great job, but a real one.  One that helped support her family.

And Christi was in love.

Christi had a boyfriend in The Philippines.  A  boyfriend who she loved.  A boyfriend who proposed and was now a Fiance.  A boyfriend who she had worked with to file paperwork to get a Fiance visa so he could come to Hawaii to get married.  Paperwork that was now in Limbo, because Christi had one more thing:  a criminal case.

See, on her last trip her grandmother gave her gifts, omiyage, to bring back to the extended family in Hawaii.  One gift for uncle, one for mom, one for dad. One for enough other people to add up to ten.  Each gift? A pack of Filipino Marlboro cigarettes.  Did I say a pack? I meant a carton. Each one wrapped in twice with a nametag attached.  Love, Grandma.

Grandma never though this would get Christi stopped at the border coming in.

And Christi told the Customs agent exactly what she had, like seven cartons of cigarettes.   And the customs agent told her she’s not allowed to take so many into the U.S. And Christi said okay.  And then the customs agent gave her one carton back.  The Carton for Uncle, mom was not going to receive her cigarettes.  And Christi thought it was over.

And the the Attorney General’s office called.  And they told her “you better go get an attorney, because if you don’t we’ll arrest, you, put you in jail, and then you’ll have to put up thousands of dollars to bail out.” So Christi went to three different attorneys, two told her to plead out.  But one or two referred her to me.  See, the other attorneys didn’t realize why Christi was refusing, under any circumstances, to plead guilty.

Christi, was in love.

Any guilty plea could destroy her Visa application for her boyfriend.  Actually, as I remember it, she had to finish her green card first.  I came in after this paperwork was already in process.  But no one could guarantee that, if Christi pled guilty, even to no jail, a deferral, a minor fine, whatever, that her fiance could still move to America.  She got a lot of “ifs”, “maybes” and, “mmmmm”s.  Those don’t make a Defendant feel safe.  And she could care less about a conviction, the love of her life was the only thing she could think about.

And did I mention, this was a felony. The Attorney General of the State of Hawaii’s stance is that declaring to the customs agent that you have more than one carton of cigarettes to bring into the country, and then surrendering them to the customs agent is punishable by up to five years in jail.  According to the Attorney General’s office.

My job was to make the judge think otherwise.

Attorney General, Hawaii, strategy, criminal defense, win

Strategy

So why did the State take such a hard line on this?  Remember that billion dollar amount I spoke about above.  It turns out, the settlement that Cigarette companies worked out with each individual state included a clause that said the companies ONLY have to pay if the State enforces certain laws.  Smelling a vast revenue stream, States could only roll over to pass these laws fast enough.  Basically, the cigarette companies dictated the Laws states would pass to protect these cigarette companies against outside “illegal” cigarettes from entering the market.

By paying this money, Marlboro and the rest insured their oligopoly.  In every state.

And oh yeah, the Cigarette companies have oversight.  They can demand a statistics on which laws were passed, and how many people were prosecuted under these laws.  And the state was running in fear, that without any prosecutions, the cigarette companies would choose to not pay the money, embroiling the state in further legal costs.   If I’m not mistaken this was already beginning in other states.  So everybody who brought five or more cartons in, and surrended them at the customs counter (where my understanding is, they are supposed to) was charged by the State.  Everyone.

And so far, everyone had pled guilty, gotten a deferral.  Hawaii got their prosecution statistics.  And then came Christi.  And she brought me.

Landsberg Law Office, Knock out, hawaii, legal fight, cigarette defense caseOur plan was this: avoid trial to preserve the Deferral option as long as possible.  And then institute a one-two punch.  This is a common technique I use.  But it’s sort of the opposite of the jab-haymaker that is the standard approach.  I start with the arguments that sound worse and hurt more.

In this case, prosecutorial misconduct, improper motives, fiduciary interest. All the things I could get to show that the State simply should not charge these people.  I think we even threw in pre-emption and jurisdiction, as Federal law should govern anything up to and including the customs table.  If the judge agrees with all this, it can open an entire can of worms for the Attorney General and these laws at all.  Because these laws are locally instituted nationally, it could make national news.  And the judge would be saying the State cannot earn the massive amount of money from the settlement agreement.

I don’t believe judges decide solely based on extraneous issues, the way certain attorneys do.  But really, how could they not pay attention to it.

I went deep into the the history of the cigarette laws, present evidence of the lobbying.  The yearly report of the State committee whose whole job it is to keep track of what happens with these funds. The fact that these funds actually provide the money to pay the salary of this attorney general.

Said another way, if these funds went away, this prosecutor would not have a job.  She better prosecute these laws and hope the Cigarette companies don’t freeze the funds.

That was the “one”, then came the “two”.  The two was a deminimis motion. A   standard motion in drug cases, but not one often used in this context.  Basically that she had such a low amount of cigarettes, it wasn’t a big deal.  Also the fact that she brought them into the country/state for such a short amount of time. Again, not a big deal.

The one that stupefied the judge is that, on her way out of customs, the customs agent goes “Hey, wait. You get to keep one! Here, take this one!”  How could bringing ten cartons be an issue, if ten people could bring in ten cartons.  He was a little incredulous.

But this was the safe way out for everybody.  The judge could deny my first motion to dismiss as the rantings of a lunatic attorney, but insulate against an appeal by granted the same result, a dismissal, for the safer, cleaner reason of just “it was so minor, nevah mattah.  Small kine”.

So of course that’s what happened…

And Christi got her green card. And she got her visa. And she got married.

And her Grandmother sends back cookies as gifts instead!


A conversation I had. Another conversation I had.

men, talking, prosecutors, dirty, supervisor, no funBefore trial the Prosecutor’s supervisor walked into the room. Everyone knows the prosecuting deputy was new.  I knew her to be a good attorney, but by simply being in the room the supervisor was going to make the new prosecutor more nervous, I asked the supervisor “What, you come to see me in trial?”

“I came to make sure you don’t try to pull anything.”

I thought we were still joking, “Why, you couldn’t when we went to trial.” Smile, smirk.

“You just got lucky.” Was her honest reply.

It’s never the facts of the case. It’s never the quality of the argument or the work. It’s just “luck”.  And they’re the ones with the jailhouse keys.  They’re the ones charged to protect you when you’re in danger.

She stayed for about half of her young prosecutor’s case in chief, and then left. Never saying a word, never making a suggestion. Never being helpful at all. Shook the prosecutor up so much, one witness took the time of a 6 person trial.
______________________________________

A dentist once explained to me how to do a root canal. How they take the top of the tooth, go in, get all the “gunk” out, fill it back up with “filler” and then put a cap on top so it looks good as new.  I went home and performed my own root canal.  It didn’t go so well.

I give a lot of free advice on the phone. A lot. That’s just the way I am. Generally people are thankful and want to hire me. I say a lot of “What I’ll try and do is this…. What we’ll work on together is that….”

Well, one particular seemed relatively easy, and it was referred from a friend, so I gave the girl a discounted rate. But she wanted to sleep on it. Turns out, overnight she called the attorney on the other side and tried to work out an agreement based on what she gleaned from our conversation. When I called her up and asked if I needed to be in court with her, she said she wanted to do it herself “I’m just that kind of girl.”

I’ll never forget that.

Anytime a person calls me and starts with “Don’t worry, I know I’ll win” I get nervous.

This is because the case becomes a “no-win” for me.  If they won, they were going to win anyway.  If they lose, it is my fault.  And often it portrays an attitude that just doesn’t play in front of a judge or jury.

As you predicted,  her case didn’t go so well.

I went to the dentist and asked him to fix my root canal.  I told him, “I already did half the work, you don’t even have to do as much, I already took the tooth off and got rid of most of the inside”.  He didn’t give me half-price, he charged me eight times as much.

She called me back after the hearing and asked if she could hire me. I quoted her eight times the price.  There was a fundamental misunderstanding of how the system works.

You may feel like you’re getting a root canal, it may even be sore for a week or more.  But we’re trying to stop infection here.  You’re allowed to do it yourself, but sometimes, when stakes is high, you might want someone in your corner.  Someone who’s been there before.

What kind of girl are you?

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Parental Discipline — The defense to Abuse

abuse, parental discipline, acquit, lawyer, win, hawaii, Kamehameha

Not for hitting children.

“What high school did you go to?” I asked him in front of the jury.

“Kam”

This defendant didn’t go to Kamehameha, I knew that.  No one from Kamehameha calls it “Kam”, they’re trained to call the school by the full name.  He’s lying to the jury, I told him he’s not allowed to do that.  If I catch him saying something I clearly know is untrue, I think I have to report him.

Pause. Jaw drop. Look at him sternly.

“bull”

Campbell High School.  Beat. Jury laugh.  Everyone fell for it. He smiles.

What’s he thinking, *I* tell the jokes here.  But now he has a taste for it…

__________________________________

He was a large Hawaiian man.  Many kids of his own.  His new wife brought a few of their own to their blended family.  He worked during the day and she worked at night, and while they rarely had time together, they found time to make sure people were always home with the kids.  They lived on old family land and the kids had enough space to run and play.  Homework always got done first.  No one was getting straight 5′s on AP tests, but no one was getting arrested before they were 18, at least as far as my defendant was concerned.

So when his 14 year old son (who could easily passed for 21) got questioned by the police at the local mom & pop market for stealing, that wasn’t allowed.  Now compound that by hiding in from the father.  Now mix that up with the father finding out by going down to the store and getting thrown out, “Get out of here! Your son steals ‘Girlie Mags’ from my store! Your money is no good here.” And then the boy lies when confronted with the facts:

Not only did he steal, but he stole pornography.  (Which was probably as much the reason for the secret from dad.)

Someone’s getting hit.

So when the student was sent to the school nurse for limping, he didn’t mention

1. Theft.

2. Pornography.

3. Lying.

4. Talking back.

All he mentioned was:

“My father beat me with a bamboo stick”.  He didn’t mention the father told him the purpose of the stick was to limit the strength of the giant ham hocks at the end of the Defendant’s arms.    He didn’t mention that Defendant was aiming for this boy’s rear end, but he kept moving, causing other bruises.

________________________________

“How many kids do you have”.

“Nine, or ten, I’m not sure.”

An uncomfortable laugh, now we’re on the wrong side of the jury.  He breaks the first rule of testimony: “Don’t answer more than you have to.”  The more you answer, the more ammunition they have. Get in, say the facts, say the feelings, get out.  If there’s a second rule its “don’t be flippant in front of a jury”.  This is about as serious as a situation gets.  There’s a jail sentence hanging over your heard.

I suppose I should say here, there’s an exception to the second rule:  I have a full presentation on “The use of Humor for the Lizard Brain: Comedy in Courtrooms” that is beyond this post here.  And really only for attorneys.  The purposeful sublimation of perceived Court customs (but never court rules) is just about the second most important tool we have to make jurors listen.

But that one line flipped the momentum of the trial from us to the prosecutor.  And the Prosecutor seized on it in closing:

This is a man who wants you to think he cares about his children.  He doesn’t even know how many he has!

Hard to come back from that.  Good thing the jury never heard about his prior Abuse convictions on two of these ten children.  Explainable, but better left unsaid.

__________________________________________

Now, even if the boy had mentioned WHY he got punished,  School’s often have mandatory reporting. Police still get called, still make arrests.  Prosecutors are given the duty to dismiss these cases.  Often that duty is taken away by their supervisors.  Often these cases just aren’t dismissed.  Overcharging is the number one reason cases go to trial. Overcharging and over arguing for punishment.

They should. They just don’t.

So we go before the jury, and we explain. Everything.  Tell them everything.  Lay bare the the home life and the discipline plan of these nine or ten kids.  Then the judge reads the law and they all go to the jury room to deliberate.

But they walk past something that I couldn’t plan or predict.

Outside, on the bench the jurors have to pass on their way to the jury deliberation room, the jurors walk past the two boys who testified.  They’re taking a nap.  The larger boy is using a rolled up jacket for a pillow, the smaller boy is using the larger boy’s lap.

A picture of boys raised correctly.

And no matter who wins on points or pontification, spilling guts or speechifying before the jury.  The jury seeing that these kids are raised to love and protect each other.  Raised to do the right thing when their father isn’t there.  The jury realized this was real honest discipline meant to guide the children to do right by each other, themselves, and their family.  Not for simplistic, sadistic reasons.

And you can’t beat that with a stick.  Not Guilty.  (And I don’t think he ever came back.)

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The Sympathetic Witness — Assault in Palolo

supermarket, kids, assault, punch, stealing from palolo“Oh my God! Are you okay?”  The prosecutor asked, with entirely more emotion than should be allowed.

It’s just a punch. I could take it, I was more worried about falling down…

“Falling down, why?” As if the everyone in the jury didn’t see the man walk in on his cane.

Well It’s my leg.  Ever since the accident,  I have to use this cane and my balance isn’t very good.

“Your balance isn’t very good.” The prosecutor was engaging in the time honored technique of “repeating the last thing the witness said for maximum effect”.  I do this now ironically.   “So after –”

I also have a brain tumor.

Now the witness wanted to engage in the time honored technique of volunteering information.  This robbery had nothing to do with a brain tumor.  It was about three Samoan men trying to steal beer at a liquor store at 9:00 in the morning.  That’s all.  And the neighbor grabs one by the shoulder, he got hit.

See, the liquor store was right next to Palolo Housing.  So it’s not the first time they got hit like this.  I talked to a cop later who told me he can see it happen, he knows where people line up to stand to grab a six-pack and dig out. Just take off.

Well during this case the man testifying grabbed a Samoan men (not carrying beer by his shoulder) and the Samoan turned around and punched him in the face, the man didn’t fall down. And they ran away.

And while we could have gone with no identification: come on, cross-racial identification after a 15 second conflict, a highly suggestive ID and no other connection to the scene.  Not to mention you throw a mango any direction in Palolo and you hit a Samoan (and then run as fast as you possibly can).

My client wanted to be honest. He wanted to testify.  He wanted to tell the jury that this guy grabbed him so he pulled away.  When the man wouldn’t let go, he slapped the man once. This made the cane wielding man the man let go, but not fall down.  My client then ran, he knows what happens when a Samoan man from the housing slaps a haole.   Plus, he had to find somewhere else to buy milk and eggs, so his girlfriend’s mom could make pancakes for the family.

It never would have been an issue except they wanted pancakes.

Well, the jury went out, and they were still deliberating, when I saw something not one of them ever got to see:

Guns, drugs, fights, Court security, fighting with securityThe next morning, out in front of the metal detectors/security station on the first floor is the same man who had a cane the day before.  No cane, yelling, carrying on, screaming about money the prosecutors owe him, and jumping around in front of the security officers.  Security officers who kept telling him to leave and not harass them.

He had a bum leg and a brain tumor in front of the jury.  Could hardly walk to the witness stand.  Outside the courtroom he was fit as a fiddle.

And the jury never got to see this behavior, all they were allowed to see was the tragic story presented on the witness stand.

But they saw right through it, and my defendant walked out the front door.  I sometimes wonder if he ever got his short stack.


Hit-and-Run, my very first trial

trial, accident attorney, hit-and-run, hit and run, storyHe was a nice elderly Japanese gentleman.  I asked him his job and he said he was a pastor, but he also a photographer and a fix-it man.  What I’ve learned since is that the more jobs your Defendant tells you he has, the fewer jobs he depends on.  He wore a frayed brown coat, over a mismatched check shirt.  Corduroy jeans and a corduroy tie. I was surprised that much was matching.

He was accused of a hit and run.  The elements of a hit and run are, basically, there’s an accident, there’s damage to something and one party drives away without giving information.  He drove away from the scene, but he was adamant about one thing: he was chased away.

You’re not required to be abused, bullied, or harassed.  You don’t have to give your information to someone who wishes to do you harm.  He was scared, and he wanted to tell the judge how scared he was, but he never got the chance.

My questioning of the complaining witness went like this:

Now, you had the option to tell the prosecutor what the damage you your car was, right?

I told him, there were scratches to the bumper.

And your car wasn’t brand new?

No.

And you had the option to get your bumper fixed.

Yeah.

And you told the prosecutor how much your bumper was worth.

No.

‘Cause, c’mon, there was really no damage.

Not really.

I sat down so hard the chair broke. BROKE.  She just admitted there was no damage.  With no damage the judge had to dismiss the case.  Of course.  That meant my sweet defendant couldn’t testify.

He wanted to testify, he just wanted anyone to hear his story.  No one would listen.  The other party wouldn’t listen (they were screaming).  The police wouldn’t listen (they were arresting him).  And now his attorney wouldn’t listen (I was winning, get out of the way!).

SO the judge made the right decision and dismissed the case.  Many people don’t understand how serious these cases are.  While the jail penalty is low, between insurance and restitution, we’re talking penalties upwards of $10,000 or more dollars.   Potentially the value of a car and a halfway verdict for use in civil court.  His case was dismissed.

And my poor defendant followed me around the courthouse all day, just trying to find someone to  listen to his story.

While I was walking around the courthouse, just trying to find someone to listen to how I won!


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Hawaii Criminal Defense: The Legal Blog

Issues in Hawaii Law.

Below is a collection of Articles I've written about Hawaii law.  Most are about criminal defense, Honolulu trial work, or future legal trends. Courtroom experience is probably the most common.  Others are comments on local or national law.  Hopefully there is something for you to find and enjoy.  If nothing else, you'll see the way I feel about certain issues, and the thought processes I put into legal problems we solve.

And some stories are just too funny NOT to tell.......

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