Cambodia: Justice Delayed May Mean Justice Denied

I spent the month of November touring Vietnam and Cambodia. Despite our tragic and arrogant war in SE Asia, the people in both countries are welcoming. Of course many are too young to have their own memories and now rely on the history they've learned in school or from the government, and some simply don't know much at all. But even if they only knew the propaganda, it didn't seem to matter, because they seemed to like us Americans. The cynic says: 'it's just the money, they like.' But I thought their welcomes were genuine.

In Vietnam there was a definite pride in believing they had defeated the so-called 'paper tiger,' the USA, in what they refer to as the "American War." I personally crawled in one of the Cu-Chi tunnels. In 10 minutes I was dripping in sweat and glad to get out. They lived down there! No question about how determined an opponent the Viet Cong had to be. We also toured the infamous 'Hanoi Hilton,' where Senator McCain and others were imprisoned during the war. The structure was originally built by the French to imprison Vietnamese rebels 100 years ago. How the wheel of history turns. For it was strange to watch the government approved video there, which showed the American POW's performing calisthenics and eating a lavish Christmas dinner, even with bottles of beer on the table. That version makes Fox News look accurate. And yet, a former American POW later became our first ambassador to Vietnam in the 1990's. Another curious turn of that wheel of history.

At the Presidential Palace in Saigon (aka Ho Chi Minh City), the guide kept referring to America as "the enemy." Later, I asked our guide about that and he said that is the official lecture he must give. He also confided that his father worked for the Americans during the war and that his father first taught him English. Certainly he bore no animosity toward us.

Cambodia is another story. They have a tragic history. In part due to our bombing during the war in the 1970's, we managed to alienate the Cambodians and drive them into the Khmer Rouge's arms. Cambodia's communists were Chinese allies, who drove out the West-sympathizing regime in 1975. Unbelievably, as soon as they marched on Phnom Penh, they cleared the city of all its residents and began a horrific prison camp system. Out of 8-9 million Cambodians, about 1.7 million were killed by the Khmer Rouge, until Vietnam invaded in 1979 and took over. The Khmer Rouge fought a guerilla war for years, which was known as Vietnam's 'Vietnam!' In 1998 the infamous Pol Pot died, and a few years later, the Khmer Rouge finally ceased their jungle warfare along the border with Thailand. Not until about 2003 did Cambodia safely open to Western tourists.

Now to their immense credit, the Cambodians share this tragic history with the world. One of the former killing fields is a major tourist destination. Their openness and honesty about the murderous past is amazing. We also saw the terrible prison at Tuol Sleng, housed in a former school, where barbed wire still covers the open hallways of the upper floors, added to prevent prisoner suicides. Out of about 20,000 inmates, less than 10 survived. One of the survivors was an artist whose gut wrenching paintings of prison life and death are displayed at Tuol Sleng. Ironically, the only person to be convicted of war crimes in Cambodia so far is the prison's warden, known as Comrade Duch. He confessed to his many sins and is serving a prison sentence.

Sadly, and only as recently as November 2011, have three additional perpetrators of this genocide been put on trial. Cambodia originally asked the United Nations and the international community to help set up a tribunal into the genocide in the mid-1990s. A joint tribunal was finally established in 2006 following long drawn-out negotiations between the Phnom Penh government and the UN. Now the three defendants (one of whom was Pol Pot's right hand man, Nuon Chea, known then as 'Brother Number Two') are in their 80's and may not outlive their trial, much less get punished. We learned that the core problem is that the Cambodian government is badly corrupt and too intertwined with former Khmer Rouge power brokers. Due to this, it remains to be seen where this slow march to justice will end up.

Nonetheless, Cambodia is a beautiful country. I think of Angkhor Wat and its beautiful corn cob towers, the dramatic carved stone faces of Angkhor Thom and the immense Kapok trees whose roots intertwine with the ruins at Te Prohm. Tonle Sap Lake (largest lake in SE Asia) is another extraordinary place with a floating village and fantastic bird life. It is worth touring this country and meeting its people who are beginning to pull themselves up from their past. Tourism is their lifeblood, so go there and spend money--it can only help at this point.

Pleading Guilty

As much as defense attorneys like to brag about their courtroom victories, there is less boasting about a good plea bargain. Yet out of my 50 or so new cases a year, the vast bulk of my cases--over 90%--end up in plea bargains. This percentage holds for nearly the entire community of defense lawyers.

One obvious reason is that very few defendants are falsely accused. That is, consider the most frequent case: driving under the influence (DUI). Rarely is a person charged with DUI who was not driving and drinking some alcohol. Whether the prosecutor can prove the person is 'under the influence' of alcohol is almost always the key question. This is a narrow space to maneuver in for the defense. 'Under the influence' is classically defined as: "whether the ability to drive is lessened in any appreciable degree." In the alternative, the prosecutor can prove that the breath test was .08 or higher, without ever having to prove the driver was actually 'under the influence.' In the latter case, there may be technical attacks on the accuracy or validity of the breath test. But if those are unsuccessful, then the higher the reading is over .08. the harder the case is to win. And few cases are filed where the breath test is under .08.
Similarly, if there is no breath test, the prosecutor has a professional witness in the person of 'Officer Friendly' whom the jurors tend to believe has no axe to grind. The officer would have given various 'field sobriety tests' and made numerous, detailed observations. If the driving is bad, then it is a tough case even without a breath test. The bottom line is that an offer of negligent driving in the first degree or reckless driving is hard to turn down.

One reason prosecutors offer plea bargains is that they have a staggering work load, which continues to rise with budget cuts. They have to save their resources for the most serious cases and the ones that are easiest to prove. For example, I had a felony assault case, stemming from a fight at a rock concert. My client was accused of starting it, although he and his brother-witness said the 'victim' started it. In any event, the fight ended when my client took a nasty bite out of the 'victim.' We argued with the prosecutor that this was self defense against a larger, equally drunk opponent. The prosecutor countered that it was an unreasonable use of force. In the end we got a misdemeanor assault plea bargain after we un-covered the 'victim's' prior record for felony assault. This 'proof ' problem got the result we wanted. The client kept his job and would not lose his civil rights, but he was held responsible for the out-of-pocket bills of the 'victim.'

A third reason plea bargains are popular is that the alternative of trial for many defendants is too risky. The greater the potential punishment for going to trial and losing, the greater the likelihood for a deal. As longs as there is a reduction in the charge, or a reasonable sentencing recommendation from the prosecutor, then a plea may be entered. In federal court, where the prosecution rarely has 'proof problems,' the risk of trial is very high. So often in federal drug or gun cases, there is also mandatory minimum time looming. A person charged with growing 100 or more marijuana plants is eligible for a five year minimum sentence after losing a trial. Typically the defense has to seek some bargain to get around the five year minimum which a judge almost never can reduce after a trial. Hence a deal is struck.

What if a defendant says he is innocent but still wants to plead guilty given the uncertainty of trial? I hate that. For starters, I usually tell my clients that I don't like pleading them guilty if they don't think they are guilty. Secondly, there is no such plea as 'nolo contendere' in Washington. The only pleas are "guilty, not guilty or not guilty by reason of insanity." "Nolo contendere,' meaning 'no contest,' exists in some jurisdictions. But it still means you get sentenced and have a record.

In Washington there is one other possible way to plead 'guilty.' It is known as an Alford plea. It is based on the case of North Carolina v. Alford where the defendant was facing the death penalty for murder. He did not believe he was guilty of murder but he wanted to take advantage of the prosecutor's promise not to request the death penalty. So he pled 'guilty,' but in his statement for the plea, he said he 'did not commit the murder' but felt that due to the strong evidence against him, a jury would likely find him guilty, so he was pleading guilty to avoid the death penalty. The Supreme Court upheld his reason and statement for 'pleading guilty.' But like the 'nolo contendere' plea, a person who enters an Alford plea still has the same record and gets sentenced by a judge.

In many cases, prosecutors will not accept an Alford plea for a variety of reasons. For one, it deprives the victim of a a measure of satisfaction. It also undercuts any treatment condition the prosecutor may demand. Many prosecutors also believe, incorrectly I would add, that an Alford plea is easier to withdraw from. From my point of view, an Alford plea can be harmful at sentencing. After all, when facing a sentencing judge, it may mitigate the punishment where the defendant accepts responsibility for the crime and shows some remorse. If he entered an Alford plea, it is much harder to ask for a lesser sentence on that ground. So, when entering an Alford plea, the defendant should not expect something less than what the prosecutor recommends.

Sometimes a good plea bargain has to be earned by the lawyer raising legal issues in motions or preparing for trial. This might reveal weaknesses in the prosecutor's case such that an offer is made before a final decision. On the other hand, many prosecutors will threaten dire consequences, such as no more bargaining, if a pre-trial motion is filed. Despite this warning, many defendants still believe that their lawyers must file motions and make the prosecutor work to get the best possible bargains. This can be true but it depends on the case and the prosecutor.

A common concern for defendants is that usually there is no legal guarantee that the judge will follow the plea bargain at sentencing. In most cases, this fear is overblown as judges show their support for plea bargains by nearly always following them. After all, it clears the docket of thousands of cases each year. Yet now and then a judge does not like a particular plea bargain. When this happens, it typically involves a murder or rape charge with a very low sentence or extreme reduction. A good lawyer should know their case has that problem and warn the defendant in that instance before the plea is entered.

In the end, plea bargains are made frequently as prosecutors, defendants, and the courts benefit from them. Be wary of any lawyer who says he only fights and goes to trial on all of his cases.

What Can Parents Do With a Wild Teenager?

Recently a former client called and asked my advice about what his rights were with respect to his out-of-control 16 year-old. The boy is skipping school, smoking marijuana, staying out all night and generally disregarding his parents. Legally, parents have very limited options for in-home discipline: withdrawal of privileges, strict house rules, counselling, and calling the police. They can't throw a minor (under 18) out into the streets.

In serious cases, parents can petition the juvenile court when a child (under 18) is in need or at risk. If the child is "beyond the control of the parent" and is endangering the health, safety or welfare of the child or another person, the parent can ask for juvenile court intervention for this "child in need of services." Likewise, if a child has been absent from home for more than 72 hours or has a substance abuse problem which is not subject to a criminal case, a petition for an at-risk child may be made. These petitions are under the Family Reconciliation Act, found at chapter 13.32A. of the Revised Code of Washington. Juvenile Court in King County and the other counties will have more information. For children who do not attend school, the school district can file a truancy petition under RCW chapter 28A.225.


In days gone by, our parents or grandparents might suggest taking the 16 year-old 'behind the woodshed' for a whipping. Many people believe that's what we need more of. However, the use of physical force against a child is limited.


Under state law, "the physical discipline of a child is not unlawful when it is reasonable and moderate when it is inflicted by . . . a parent . . . for purposes of restraining or correcting a child." (RCW 9A.16.100) That statute bans certain punishments such as "throwing, kicking, burning, cutting, and striking with a closed fist." The Legislature also has banned "interfering with the child's breathing" and "threatening with a deadly weapon." And of course, it prohibits the "shaking of a child under three." The law further warns that these prohibitions are "illustrative of unreasonable actions" and they are not "exclusive." What is more, the catchall provision bans: "doing any other act which is likely to cause and does cause bodily harm greater than transient pain or minor temporary marks." The "age, size and condition of the child and location of the injury" are used to determine whether the bodily harm is reasonable and moderate.


I had a case a few years ago of a well respected father who was an engineer and born in another country. He had a disrespectful 17 year-old son. To teach the impertinent son a lesson, he decided to cane him. Caning is a time honored form of discipline in many cultures. The offender (almost always male) would drop his pants and be hit with a cane, switch, paddle or other implement on his behind or on back of the thighs. In my case, the father used the flat side of a wooden ceremonial sword and hit the back of his son's thighs 5 times or so. Later, at school he complained of pain. He was sent to the school nurse's office, where long, red welts were observed on his legs. The school contacted the police who later arrested and booked my client for a felony assault with a deadly weapon.


The 17 year-old was bigger than his father and after a week, the welts were gone. He did not want to prosecute his father, because he loved him and felt he deserved it. Nonetheless, the prosecutor's office would not dismiss the case despite my argument that this was "reasonable parental discipline" given the age, size and transient nature of the injury. I thought a jury would acquit him. However, I could not promise that and if we lost, he was looking at a minimum sentence of 15 months due to the 'deadly weapon.' His family did not want a trial. So we ended up pleading to a misdemeanor assault and he was sentenced to do some community service work.


As for the client who called I advised that physical discipline is a risky option. Instead, I told him to set very clear rules and expectations in writing. For example, for every cut class, his son would lose a week of allowance. His bedroom could be subject to random, parental searches with confiscation of contraband and with the possibility of calling the police as well. In serious drug cases, the petitions to juvenile court or commitment to a locked treatment facility are also possibilities.

These 'tough love' measures may or may not be effective. I know that well. . . Time and maturity are often the only cure.

Getaway Drivers and Other Accomplices

Even if you don't go in the bank but wait outside in the car, if you know your buddy is armed and goes in the bank, you can be punished just as harshly. This is known as accomplice liability.


The formal law is roughly as follows: If you solicit, encourage, command or request another person to commit a crime, you are as guilty as the one who actually does it. Obviously if you directly aid or assist in the planning or commission of the crime, you are also equally liable for the crime. You do not have to be present at the scene of the crime to be guilty. On the other hand, your mere presence at the crime scene and knowledge of the crime alone are not enough. You have to do something, or encourage, aid, or by your presence, support or encourage THE CRIME. If you are just there but also acting as a 'lookout,' then you are an accomplice.


I capitalized THE CRIME, since the state has to prove that you are involved in the particular crime charged. For example, if you agree to be the lookout for a burglary and your buddy heads toward the house and then assaults someone on the street on the way into the house, you would not be liable for the assault. It is a more complicated question if the person going in the house, assaults or kills someone inside since prosecutors might consider that part of the burglary crime.


In the drive-by shooting case from Ballard H.S. in the mid-1990's, the driver was convicted of murder in the second degree because he "knowingly facilitated the drive-by shooting." The prosecutor argued that old favorite: "in for a dime, in for a dollar." And on appeal the driver argued the jury instructions were misleading and the prosecutor's argument was simplistic and unfair. This area of law is so complex that his appeals went on until just last month. He had won a new trial at one point, but then the U.S. Supreme Court reversed that.


I am involved in a murder case, where I represent an uncharged suspect. In that same case, the alleged driver to the murder scene is currently on trial. His defense is that he had no idea that the two men in his car would later shoot the victim in front of a bar. The state probably can prove he had parked the car some distance away while he waited in the car. So the question will be whether they can prove he did so, knowing of their design to shoot when they left the car.


Another case I have is that of a young man accused of starting a fight outside a bar, where the 'victim' voluntarily went outside to confront him. Ordinarily that would be a misdemeanor assault. (A mutual fight is no defense for the person who threw the first punch.) However, when the two were grappling, my client's friend began punching and kicking the victim. The friend's blows caused the victim a fractured nose and cheek bone. My client did not do any serious damage. Yet my client is charged with a felony assault in the second degree. There, the issue will be if they were acting in concert or if the friend, unbidden by my client, just jumped in and acted on his own.


In federal court, the prosecutors frequently charge conspiracy crimes. In such a case, a person can be guilty when (1) two or more people agree to commit a crime, (2) when the accused joins this group knowing of its criminal purpose and intending to help it, and (3) someone performs an overt act for the purpose of carrying out the conspiracy. Take a mortgage fraud scheme, where people lie on their applications to get the loan. And then, never intending to live there, turn the property over to others who try to flip it at a higher price. Even if the person who filled out the application never benefitted from the scheme, a conspiracy charge would lie.

Another problem for co-conspirators, for example, is the schlep who agrees to move the hockey bag with marijuana it over the border. The schlep may be facing as much time as the owners of the dope. I like to explain this with the Macdonald's analogy. Imagine if making burgers were illegal like cocaine is. Then if you agree to flip some burgers for one of the golden arch stores, you are potentially liable for all of the whole corporate output. After all, everyone knows the signs say 'so many billions sold. . .' Of course the schlep could say he didn't know there were 100's of hockey bags involved. Perhaps. . .

In short, choose your friends carefully and don't do any favors such as carrying that bundle across the border . . .

Should the Government Get to Re-Try Roger Clemens?

Just today a federal judge granted a mistrial for Roger Clemens in his perjury and obstruction trial in Washington, D.C. During the federal government's case, it began playing a video recording of Clemens' testimony before Congress (in which he allegedly lied because he told them he never took steroids or other banned substances.) In that video were comments by a Congressman referring to Andy Petitte's wife's statement in which she repeated that her husband told her that Clemens admitted to taking the substances. Before trial, the judge had ruled that her repetition of what her husband told her was not admissible. It was clearly inadmissible hearsay. (However, Andy Petitte can testify to what Clemens told him, since that is proper evidence of a party's direct admission.)

Ostensibly the unredacted Congressman's comment was an oversight by the prosecutors. However, if Clemens' lawyers can show that it was not a mistake but an intentional act, he could get the case dismissed under the Double Jeopardy clause. Ordinarily, under a 1982 U.S. Supreme Court case, Oregon v. Kennedy, when a mistrial is granted after a defendant's motion (as here), the defendant cannot then bar a second trial. However, if the prosecutors can be proven to have intended to "provoke the defendant into moving for a mistrial," then a double jeopardy dismissal could be granted. Obviously it will be hard to show their oversight in Clemens' case was intentional. Without a clear pattern of violating the court's rulings, intentional conduct will not be shown--short of a prosecutor admitting it!

The real question is: "Should the government be trying Roger Clemens at all?" Many people have derided the use of 'precious government resources' in going after a now retired, well paid athlete who never harmed anyone (save for a few batters.) After all, aren't there more important crimes to prosecute than lying to Congress? For starters, if they didn't try him, wouldn't Barry Bonds' supporters be crying foul (not fair?) And what about Martha Stewart, who was convicted of lying to federal investigators, wouldn't her fans bemoan federal waffling?

And what are federal authorities supposed to do? Let a few lies go and say "Ok, it's only baseball, and Congress shouldn't be concerned about some ballplayers doping themselves anyway!" No, they couldn't let it go. He's too well known in sports and was really one of the 'great' players like Bonds. It would smack of favoritism or elitism or whatever people think lets the rich and the famous off the hook.

Nope, the goverment should re-try Roger Clemens.

In Memory of the Sweetest Client I Ever Had

My friend and former client, Leon, just passed away. He had been sick and suffering from endstage lung cancer for the last few months. Yet he always could laugh. Just recently we were watching the basketball playoffs together at the nursing home, and despite his pain, we made jokes about the awful looking food sitting on his tray that he had no appetite for.

I met him in January 1984 when I was a public defender. He was charged with assault after he was attacked and defended himself a bit too well. The victim was a bully and had been harassing Leon all night at a CD tavern. When Leon finally went outside, more to leave than to fight, the bully came at him punching. In the scrum, he grabbed Leon's ankles and tried to take him down. Leon pulled a steak knife from his sock and began stabbing the aggressor in the back while the bully gripped his ankles. When they were pulled apart, the victim collapsed.

About a month later, the victim died, and Leon was charged with murder in the second degree. We raised self defense at trial but the jury disagreed and convicted him. Some of the jurors, who grew to like Leon, came to his sentencing but he was still sent to prison for 20 years to life. On the appeal my buddy Mike Filipovic did the bulk of the work and we won Leon a new trial. That's because the self defense instructions the judge read to the jury were improper. During the two years of the appeal, while in prison, Leon sobered up and luckily missed the raging crack epidemic that hit the inner city.

Before his new trial we convinced the judge to release him pending trial, since he had such a perfect prison record and had no record of violence before the 1984 case. This time Mike helped me with the second trial and we were up against a persuasive prosecutor, Ray McFarland (who has since become a friend and fellow defense attorney.) Despite our best effort at that second trial, the jury once again would not let Leon off.

But we weren't done. Back in those days, judges had more discretion at sentencing. And our trial judge, the Honorable Robert Elston, was a stickler for rules and the law. However, he was also an independent thinker. Somehow we convinced him that Leon had rehabilitated himself in prison, was no longer drinking and not a threat to society. Amazingly, he put Leon on probation for murder.

And Leon did not disappoint us. After a number of uneventful years on probation, his case was closed. Over the next 20 years or so I would see Leon every so often. He would come to my office and we'd go to lunch or I'd 'loan' him some money. Once he hauled some trash away from my house for me. He got married and divorced and always seemed to have a lot of friends, especially among the ladies. About 5 years ago he moved back to Texas where he was from so he could be near his sister and other family. For reasons I never understood, that did not work out so he moved back to Seattle.

His last two years or so were rough. I would go see him at the hospital or his public housing apartment down on Holly Park. I would try to bring him his favorite 'pulled pork' sandwich and we'd eat lunch together. Church ladies, in-home careworkers, and others always seemed to be hovering over Leon's bed. He'd flirt with them all and everyone loved Leon. He was a guy who reached out to people. He seemed so full of love--it's hard to believe he could ever harm a fly let alone kill another human being.

In the end, Leon's beauty is that he proved how a man can better himself. I will never forget him.

Speedy Justice after the Egyptian Revolution?

We are all happy to see Hosni Mubarak go. When I was in Egypt late last year, people grumbled about the 'old pharoah,' but no one hinted at what would happen this year. And now the revolution kicks in with the nitty gritty: trials of the deposed leaders.



The "once feared and powerful" Habib el-Adly, Interior minister and head of the hated security apparatus of the deposed regime, came into court and pled not guilty to corruption charges. The allegation is that he sold a piece of public land to a contractor for personal gain. This kind of corruption was apparently endemic in the Mubarak era. No doubt people who stuffed their pockets in public jobs should be prosecuted.



But so fast. . . the new regime has been in power only since February 11, and an indictment has already been prepared? Does this bode well for due process as we understand it? It seems typical of many revolutions to rush to judgment, particulary harsh ones for the former officer-holders. I think of Madame Defarge knitting while the nobles of the 'ancien regime' had their heads lopped off in short order.



During el-Adly's 'arraignment,' one of the lawyers was screaming insults at the accused. Now, I've had prosecutors lambast my clients but not by screaming at an arraignment. Luckily the judge displayed a cooler head. He quickly shut the lawyer up, calmed down the proceedings, and then postponed it a month--to allow the defense lawyers to review the documents.



This is speedy justice compared to our tortuous system. To begin with, it would have taken U.S. prosecutors months not 2 weeks to prepare an indictment this important, and then the defendant would be given ample time to review the prosecutor's case before going to trial. Although slow and deliberate, our rules require a speedy trial, which more often than not the accused agrees to extend to allow for more time to investigate the case. Justice cannot be speedy if the accused needs more time.



Speedy justice really means hurried justice which usually means no justice at all. Besides, speedy justice allows emotion to prevail, not law and reason. So the pace of events in the Egyptian court portends trouble. In the meantime, Egypt is working out a new constitution and a system to ensure fair elections. I hope they reform their society with all deliberate speed, but not in a rush to judgment.