At least not without getting her permission.

In May 2009, Sherri Lee Tatton and her husband owned real property in Layton Utah.  Castle Craze has a business there.

Apparently, Mrs. Tatton was on the property when a woman drove into  the lot, parked her car and then walked to a pizza restaurant a short distance away.

Mrs. Tatton, seeing this, followed the woman.  Mrs. Tatton went into the pizza restaurant and began screaming an expletive filled rant at the woman.  The woman then left, got in her car and tried to leave.  Mrs. Tatton stood in front of her car, insisting that the woman leave by a different exit.  The woman then called the police.

Besides violating dining etiquette, Mrs. Tatton also violated the law.  She was charged with disorderly conduct.

After conviction, she appealed.  The Court of Appeals upheld the conviction.

Larry Long is a Salt Lake attorney who practices criminal defense.  He is well know in the legal community for sending direct mail advertisements to criminal defendants.  I’ve seen a couple of his mailers.  They do not help the public respect the legal profession.  One of the mailers I saw was a reprint of a get out of jail card from the popular game, Monopoly.  The card was modified to include the name of Larry Long, criminal defense attorney.

Mr. Long was publicly reprimanded for violating ethical rules by overcharging clients.  In one case, he charged a client a flat fee of $6,600 in a DUI case.  The client fired Mr. Long after Mr. Long performed only six hours work.  Mr. Long sued the client to collect the full $6,600.  The Utah Supreme Court said that fee was excessive and that Mr. Long violated the rules of ethics that are applied to all lawyers.  The Supreme Court also found that Mr. Long had charged excessive fees in two other cases.

Mr. Long was also charged with allowing an employee to engage in the unauthorized practice of law.  Mr. Long was absolved of that charge.

I’m sure you’ve seen the perp walk on T.V.  A prisoner is shown, being escorted by police, usually handcuffed and waring prison garb, often times trying to shield their face from the camera.  Michael Jackson did it several times.  Lee Harvey Oswald did it several times before he was shot by Jack Ruby during a perp walk.

Recently, the U.S. has come under criticism from some in France over the perp walk of the head of the IMF, Dominique Strauss-Kahn.

Why should we care.  Well, if it turns out he is guilty then I guess neither myself, nor anyone else, will have much sympathy for him.  He deserved a perp walk and a whole lot more.  But what if he is acquitted?

We claim to believe that the accused are innocent until proven guilty.  In 2000, in France, they went one step further.  They outlawed the perp walk until after someone is convicted.

We should do the same thing in the U.S.  The danger of the perp walk is that if someone is innocent, the images of the scruffy defendant in handcuffs and prison garb is forever in the imagery of the American public.  In the internet age, those pictures are never more than a few clicks away.

Someone who is wronfully accused is forced not only to defend themselves in court, but to also live the rest of their lives reminding people that they were wronfully accused.  The perp walk makes it that much harder.

So, why should we keep the perp walk?  There aren’t any good reasons.  Sheriff Joe Arpaio, from Arizona, has used the perp walk to embarrass those already convicted by forcing a string a inmates to walk in front of cameras. He is obviously doing so for political purposes.  While that situation is different, because the prisoners were already convicted, it does show the only reason that police do it now.  To create early pretrial publicity.  Doing so serves two purposes.  It creates political support for the police and prosecutors and it taints the jury pool against the suspect, making a conviction more likely.  Neither of these purposes are legitimate.

With no good reasons to keep it and some rather compelling reasons to get rid of it, the perp walk needs to go.  It’s time

In recent years, there has been an increase in publications that rate attorneys.  The question for today is, “Can those lists be trusted?”

What made me think to post on this issue is a recent Court of Appeals decision.  The case was a Salt Lake criminal case.  The defendant was convicted and filed an appeal.  The Court of Appeals reversed because the defense attorney, Patrick Anderson, was ineffective during jury selection.  The Supreme Court didn’t disagree with that but said the conviction should stand because the error was not serious that absent the error, the jury would have likely convicted the defendant anyway.  Now, the Court of Appeals has again reversed the conviction.  This time it is because the same defense attorney was ineffective during the trial.  The Court of Appeals said, “It is bad enough that defense counsel did not challenge the prosecutor’s mischaracterization of the evidence as being in terms of seconds, not minutes. It is bizarre, and clearly without any sound tactical purpose, that defense counsel actually endorsed the mischaracterization.”

In January 2009, after the conviction and the first Court of Appeals decision holding that defense counsel had acted innefectively during jury selection, Utah Business Magazine ran an article touting this same defense attorney as a legal leader and top lawyer.

Now, I don’t know this attorney, and I wasn’t there at trial.  I can’t say whether this attorney is a good lawyer or a bad lawyer.  Utah Business Magazine might be right. What I am saying is that it is puzzling to me that Utah Business Magazine would run an article touting this lawyer as a top lawyer after the Court of Appeals held that he had been ineffective as counsel in at least one case.

How could such a thing happen?  I don’t know.  But I can say this.  I have been approached by several publictions who offer to advertise me as a top lawyer or some other distinction, if I will purchase advertising in their publication. I haven’t done it because I think it is dishonest. 

This just goes to show you that you can’t always trust lawyer rankings.

The Utah County Attorney’s Office has had a tough week.

Earlier this week, the Utah County Attorney’s Office was forced to admit that they were pursuing the wrong defendants in the murder of Kay Mortensen.  Unfortunately, the defendant’s who had been wrongfully accused spent five months in jail and had their reputations smeared.

Today, the Court of Appeals had this to say about Sherry Ragan, another attorney in the Utah County Attorney’s Office.

“We do, however, recognize that the prosecutor committed several discovery, and ethical violations, and we are compelled to again address the prosecutor’s serious misconduct.”  The Court of Appeals went on to criticize Ms. Ragan for hiding exculpatory evidence, among other things.

I wasn’t involved in either case so it’s hard for me to comment.  I did have a case several years ago in which DCFS hid evidence that tended to show that my client was innocent.  When Sherry Ragan got involved in the case, she immediately disclosed the evidence.  Based on my personal experience, Ms. Ragan does not have a habit of hiding evidence.

Even so, these two cases in the same week should cause all of us concern.  The Utah County Attorney’s Office is responsible for effecting justice in this county.  It’s disturbing to see them make two serious mistakes in the same week.

What’s even more disturbing is that these are two serious mistakes that have come to light.  How many more are lurking in the shadows?

Brian David Mitchell is accused of kidnapping and raping Elizabeth Smart.  His trial is continuing this week in Federal Court in Salt Lake City.  Elizabeth Smart just finished three days of testimony in which she clearly laid out a pattern of criminal conduct on the part of Mitchell.  She was cross examined for only about 15 minutes.  In the cross examination, the defense did not attempt to dispute her testimony.

It is obvious that Mitchell’s defense team is backed into the corner of admitting that he is guilty of the alleged crimes.  The only defense they can raise is that he is insane.  But can the prove it?

My opinion is no.  Before I explain why, let’s back up a little bit.  Some may wonder why Mitchell is being tried in Federal Court rather than State Court.

Utah has essentially abolished the insanity defense.  The only defense that a mentally ill defendant can raise in Utah is that the defendant was so mentally ill that the defendant did not have the cognitive ability to form the level of intent necessary to commit the crime.  For example, to be convicted of kidnapping, the State must prove that a defendant intended or knowingly restrained another person against the will of a the victim.  If a defendant is so mentally ill that the defendant could not intentionally or knowingly do something, that person will be acquitted.

Clearly, Mitchell doesn’t meet that category.  Elizabeth Smart’s testimony has already proved that he could intentionally act, he knew he was restraining her and he knew she was a person.

So why isn’t Mitchell being prosecuted in State court?  Because the State court Judge found that Mitchell is not competent to proceed.  In other words, because Mitchell’s mental illness prevents Mitchell from assisting in his defense, his criminal charges are put on hold until he is able to assist in his defense.  At that point, the State trial will go forward. 

Mitchell’s attorneys tried the same defense in Federal Court but lost.   The Federal Judge ruled that Mitchell was capable (albeit unwilling) of helping in his defense and ordered that the trial go forward.

In Federal court, Mitchell could be found not guilty by reason of insanity.  To win that, his attorneys must prove that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.”

Mitchell is presumed to be sane.  He must prove that he is insane.  In an effort to preempt his defense, the prosecution has been carefully laying out evidence to prove that Mitchell had the ability to understand that what he did was wrong.  Elizabeth Smart testified that Mitchell told her that if was caught, he would go to jail.  That is enough.

If the jury believes Elizabeth, and I predict they will, Mitchell will lose his insanity defense.

James Jones has been in the news lately for defending his daughter with Cerebral Palsy.  The Florida girl was bullied on her school bus.  After learning of the bullying, Jones entered the school bus and gave a verbal tongue lashing to the bullies.  Jones has now been charged with disorderly conduct and disrupting a school function.

The question is, should he have been charged.  A recent study found that 25% of U.S. students claim to have been bullied and 85% of U.S. students with disabilities claim to have been bullied.  It is obviously a huge problem.  A problem the school system has not adequately addressed.  Technically, Jones is probably guilty.  Even so, I don’t believe he should have been charged.

County attorneys and District Attorneys are elected.  The reason they are elected is that they are supposed to use good judgment in charging people with crimes.  If they fail to use good judgment, the people have the right to vote the out of office and replace them.

This father was merely speaking to the bullies in terms they could understand.  A form of communication in which they were well versed and that might actually change their behavior.  Some might argue that he should have just gone to the school and let them handle it.  Unfortunately, national statistics show that schools are largely ineffective at dealing with bullying.  Sometimes a dad has to do what a dad has to do.

The Florida prosecutor should have show some discretion and chosen not to charge James.  Hopefully a jury will do what the prosecutor should have done.  He should be acquitted.

A private security guard caught Luis Cristobal in the act of spraying graffiti on a Saver’s store in Orem, Utah at 3:00 a.m. on June 22, 2008.  The Utah Court of Appeals reduced the severity of his conviction from a second degree felony to a third degree felony on August 19, 2010.

Court records show that Mr. Cristobal also goes by the nickname of Rascal.  The Prosecutor believed that “Rascal” belonged to a gang.  Normally, “Rascal’s” conduct would warrant conviction of a third degree felony punishable by zero to five years in prison.  Because the prosecutor thought that “Rascal” was in a gang, they sought a gang enhancement.  The gang enhancement raised the offense from a Third Degree Felony to a Second Degree Felony.  Instead of being punishable by zero to five years in prison, the enhanced penalty would be 1 to 15 years in prison.

To get the gang enhancement, the State needed to prove that “Rascal” commited the crime with the help of two or more other people.  That is where the State ran into trouble.  “Rascal” and one other person were caught in the act.  There was a third person who ran when the security guard showed up.  The State could never prove that the third person was involved in the commision of a crime.

The Court of Appeals held that the gang enhancement could not be applied.  The gang enhancement required two or more accomplices while the evidence showed only one accomplice.

“Rascal” is not off the hook.  He is still convicted of a third degree felony and could face a maximum penalty of zero to five years in prison.  The case is being remanded to the trial judge to enter a new sentence.

Koua Fong Lee was convicted of vehicular homicide.  In 2006 Lee was exiting a freeway when he said his 1996 Toyota Camry accelerated even though he was applying the brake.  He hit the rear of a stopped vehicle, killing two people.  At the time of the impact, he was going between 70 and 90 miles per hour.

Vehicular homicide is a criminal offense.  To win that case, the prosecution was required to prove beyond a reasonable doubt that Lee was at fault.  Lee always maintained that he applied the brakes and tried to stop but his car just wouldn’t stop.

The jury decided he was lying.  They convicted him and the judge sent him to prison for eight years.

Now that Toyota is recalling millions of vehicles, because of unwanted acceleration, his conviction was reviewed.  A judge recently overturned the conviction, letting him out of jail after serving two years.

As an attorney I find this case interesting.  The jury was told at the time to only convict him if they found no reasonable doubt that he was innocent.  He testified at trial that he properly applied the brake and the car accelerated anyway.  The jury obviously decided he was lying and convicted him.

I find this case interesting because the jury likely thought he was lying because he was trying not to be convicted of a crime.  Admittedly, many people will lie to avoid being convicted, especially criminals.  Another reason a person might testify that they are innocent is because they truly are innocent.

As an attorney, I’m convinced that most jurors ignore the judge’s instruction on reasonable doubt.  They figure the prosecutor wouldn’t take it that far unless the defendant truly were guilty.  It’s safer to convict someone than to let them off.

This case should be a wake up call to all jurors.  Each juror has a legal duty to apply the law to the case.  If there is reasonable doubt, the jurors should aquit the defendant, even when doing so may be uncomfortable.

After publishing my last post, I spoke with a friend in Salt Lake who recently went though some shenanigans regarding trial by jury.  This woman was charged with obstruction of justice.  She allegedly told a man that the police were looking for him.  She denied having committed a crime.  She hired a criminal defense attorney to represent her.

Her defense was that someone came by looking for her friend.  She thought he was official but didn’t know he was an officer.  She didn’t know her friend had committed a crime and didn’t know that the police were looking for him.  She told the officer who came by that her friend wasn’t there.  When her friend showed up later, she told her friend that someone had come by looking for him.

She was charged with a Class C Misdemeanor, Obstruction of Justice.

Not happy with the charge, she plead not guilty and asked for a trial by jury.  The trial was scheduled in justice court and a jury was summoned.

Obviously, the prosecutor had good reason to be worried about getting a conviction in this case.  If the jury believed my friend, she would be aquitted.  Obstruction of Justice requires that she knowingly helped her friend hide from the police.  If she didn’t know that the police were looking for the man, she did not commit a crime by telling her friend that someone was looking for him.

Before the jurors showed up to court, the prosecutor amended the charges.  He changed them from a Class C misdeameanor to an infraction.   That was good for my friend.  If convicted of a Class C misedemanor, she could go to jail.  If convicted of an infraction, she would not go to jail.  Essentially, the charge was changed to a traffic ticket.

So why would the prosectuor reduce the charges?  The most likely reason is that criminal defendants are not entitled to jury trials in infraction cases.  The prosecutor likely believed he was more likely to get a conviction from a Justice Court Judge than a jury in this scenario. 

I’m curious to see if my friend actually gets convicted.

I know this isn’t an isolated incident.  Several years ago, I represented a man who was golfing at Thanksgiving Point.  He hit the ball and nearly hit a member of the party in front of him.  He claimed it was an accident.  He had hit the “shot of his life.  Normally, he never hit the ball that far.”

One of the members of the party in front of him on the golf course got mad and ran back and attacked my client.  My client defended himself.  He was legally entitled to do so.  Luckily no one was seriously injured.

My client ended up getting charged with disorderly conduct, a Class C misdeameanor.  Strangely, the man who attacked my client was not charged with any crime.  The case was filed in Justice Court.  We asked for a jury trial.  We intended to argue self defense.

Just before trial, the prosecutor amended the case to reduce it to disorderly conduct, an infraction.  I believe the prosecutor did it to avoid a jury trial.  He was worried that a jury would recognize the right of my client to defend himself from a physical assault and acquit him of disorderly conduct.

Rather than pleading guilty, we fought the case.  We went to trial in Justice Court.  The Justice Court Judge was not impressed with our defense.  My client was convicted.

We appealed the case to District Court.  Again, my client was not entitled to a trial by jury.  Even so, I believed my client had a better chance in District Court.  At the time, Justice Court Judges could be fired at any time for any reason.  They served at the discretion of the mayor.  Since the main function of Justice Court is to earn fees for the City, it doesn’t take a rocket scientist to surmise that Justice Court Judges are chosen because they convict most everyone.

District Court Judges, however, are hired for life.  They can’t be fired if their conviction rate is too low or if the fines they collect are too small.  So we filed our appeal and asked for a new trial with the District Court Judge. 

On the morning of trial, my client and myself showed up.  The prosecutor showed up with his witnesses.  The prosecutor tried to convince my client to plead guilty.  My client refused.  As trial was supposed to start, the prosecutor stood up and told the judge that all charges were dropped.  Apparently, he believed that the District Court Judge would recognize my client’s right to defend himself.

I’m convinced that some prosecutors play games with jury trials.  They know that some judges are more likely to convict than a jury.  A few prosecutors play games with the system to deny some people their right to trial by jury.

That is unfortunate.  Prosecutors should not be going for convictions at any price.  They should honor our constitution.