When I first started my practice and told people I was going to be a criminal defense attorney, a lot of people asked me why I would want to spend my life getting people off the hook for committing crimes. I usually gave some flippant response because I didn’t want to take the time to explain that I wasn’t just defending criminals and people accused of crimes, I was defending everyone by forcing the Government to live up to the words of the constitution. A solid criminal defense bar assures that the police and the prosecutors follow the protections guaranteed to all of us in the Constitution and in state laws, and if we protect the lowest criminals in our society we can be sure that the rest of us are protected as well. I usually don’t say all this to people because it’s long winded and sounds really cheesy, but every now and again a story comes along that really drives that point home.
Case in point, this story from Manassas Virginia. It starts routinely enough, a 15 year old girl sends pictures of herself to her 17 year old boyfriend who responds by sending a video of himself naked to her. The police get involved and the State charges the 17 year old with felony charges of possession and manufacturing of child pornography. The teen enters not-guilty pleas and the case gets set for trial (at the time I’m writing this the trial is still pending). The police and the prosecutor decide that they need to be able to prove that it was actually the kids penis and so they apply for and are granted a search warrant to take pictures of the kid’s naked and erect penis. Yeah, let’s go over that again. The prosecutor took a warrant to a judge asking permission to force the kid to go to a hospital and allow doctors to inject him with a chemical to make him erect so that they could take pictures of him naked to use as evidence against him in a case for taking naked pictures of himself. At this point you would hope that the judge would laugh at the prosecutor and send him packing with a denied warrant and maybe a bar complaint, but no. The Judge signed the warrant.
Enter the heroic defense attorney who moves to quash (get rid of) the warrant and calls the local press. The press pick up the story, and although the Judge does not rule on quashing the warrant he did allow the teen to leave the State without the State serving the warrant. The State has since agreed to allow the warrant to expire without being served, meaning they won’t force the boy into the pictures but they avoid a ruling on the motion to quash the warrant.
So, next time you start to think that the defense attorney is always the bad guy trying to get the sleazy criminal off without consequences, remember the prosecutor and the cops who were willing to legally force a child into allowing them to take pictures of him naked, even willing to give him an injection to assure he was erect, in order to prosecute him for taking naked pictures of himself. And then remember that judge was going to allow them to do it and that no one involved seemed to recognize the irony. Then remember that it was the boy’s attorney, a criminal defense attorney, who prevented the atrocity from happening.
I have told clients for a long time that DUII is unique among crimes in that it happens across all socioeconomic levels, it happens to men and women, and across race lines in roughly equal amounts. There is no better evidence of this than the recent arrest of Springfield Oregon Police Detective Marco Espinoza. For more information on the arrest, see this article from the local Register Guard. I’m not going to discuss the facts of Mr. Espinoza’s case in this post (mostly because I don’t know any beyond what’s been said in the paper) but I would like to take a moment to use this case as an example of the stigma surrounding DUII and crimes in general.
First of all, let us remember that Mr. Espinoza is innocent. He has the right, like all of us, to be presumed innocent of any alleged crimes until he is convicted of them in court. Let us not fall into the trap of assuming that police or media are always correct in the first article that the publish. As the old saying goes, the story is on page 1 the retraction is on page 10. I worked on a case recently where the local paper and TV news put out stories of my client threatening a group of people with a knife. Turns out that according to two independent witnesses, that never happened and those charges were eventually dismissed. I looked for any stories on the dismissals and I never found any. So let’s be careful jumping to conclusions.
If Mr. Espinoza is convicted of the DUII he is likely to face some prejudice in his daily life. He will be branded a criminal and possibly a drunk or substance abuser and people will think less of him. That should not necessarily be the case. More so than other types of crimes a DUII conviction represents a mistake, but it should not be a terminal one. I have had more than one client come to me with a DUII charge and tell me what a huge wake up call it was for them. Some of them knew for a while they had a problem with alcohol but never knew it was as bad as it was, and some of them never realized they had a problem. Once you realize you have a problem you can start taking care of it. Everyone of the people who have told me they had a problem has sought help with that problem, either as part of their legal case or not. People who have been through a DUII should not be saddled with that negative stereotype for the rest of their lives.
Time will tell what happens to Mr. Espinoza and his case, but let us remember that we live in a society that presumes people are innocent and if they are proven guilty we believe in second chances.