Posted by: DawnMarie White (DMWatLaw) | June 21, 2013

Sesame Street Helps Kids Deal With Incarcerated Parents

What’s “carcerated” and why was your dad “in” it? –Abby Cadabby

Sesame Street may have started to “master the addictive qualities of television and do something good with them”, such as helping young children prepare for school. But in the 1980’s, the children’s program began addressing emotionally difficult topics in a way to help kids process these big issues. One of the first topics was the death of a beloved human character, Mr. Hooper. Since then, Sesame Street has addressed marriage, divorce, childbirth, HIV (in a South African co-production), the 9/11 attacks, Hurricane Katrina and other natural disasters, fear, bullying, serious illness, and even tough economic times.

Now, Sesame Street is adding parental incarceration to its list. A study in 2010 found that one in 28 kids has a parent that is in jail or prison. Sesame Street is addressing the feelings of the children that are left to deal with their parents mistakes.

The show has added Alex, a Muppet whose father is incarcerated. He’s introduced in the episode titled “Little Children, Big Challenges: Incarceration.” Alex is playing with Abby Cadabby; Rosita, la Monstrua de las Cuevas; and Sofia (a human adult character). Rosita suggests doing something with their dads. Alex runs away, but his friends stick by him and encourage him to talk about his feelings. Alex shares that his dad is in jail and that he doesn’t like to talk about it because people don’t usually understand.

Sofia tells the Muppets that she understands because her dad was incarcerated when she was a kid. Abby Cadabby asks, “What’s ‘carcerated’ and why was your dad ‘in’ it?” Sofia explains that incarcerated is “when someone breaks the law, er, a grown up rule, and then they have to go to jail or prison.” Alex talks about his feelings of sadness, shame, and confusion. Sofia tells him she had the same feelings and that it’s okay to “feel whatever way you feel.”

Sofia also confides that she sometimes felt like it was her fault that her dad was incarcerated. Alex says that he feels the same way, too. Sofia explains that it is never the child’s fault. Sofia says, “Grown ups make their own choices, and sometimes they make the wrong choice.” Alex talks about other kids making fun of him and saying that he will go to jail when he grows up. Sofia reassures him that with support, Alex can make good choices. Sofia encourages Alex to talk to adults about his feelings and other kids teasing him.

The Incarceration Tool Kit has seven tips for caregivers of children with incarcerated parents. Build security by giving an idea of what to expect from the day. Let kids know that you are there for them and love them by giving them a physical reminder, such as a paper heart. Ask kids how they are feeling, and remind them that it is okay to feel however they are feeling. Answer questions honestly. Help children stay connected with the incarcerated parent. Prepare for visits at the facility.

Often in my job as criminal defense counsel, I see photos of my clients’ kids and hear stories about them. My clients are worried about how their absence will affect their children. While I can’t always fix this part of my clients’ issues, I at least have a resource to give them to help their children.

When I conduct jail visits with clients to prepare for hearings and trials, I see a corner the visitation room with some 2nd hand (3rd or 4th hand?) books and toys. If you’re planning to get rid of toys, please consider donating to a local prison.

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Posted by: DawnMarie White (DMWatLaw) | June 4, 2013

Is There Meaning in “Innocent Until Proven Guilty”?

In a recent post, I discussed a case I refer to as Indiana v. X. That case didn’t end with the jury’s not guilty verdict. The allegations appear in a simple google search of my client’s name. His mug shot shows up on a few pages. He lost his long-standing job because he missed work after being arrested. There is only one article (a sentence really) that appears in my goggle search that says he was found not guilty.

In our society with social media, our criminal system is limited. We can’t erase something once it’s out there. So, now my client is facing this. It will never go away. He asks if we can get these reports/pictures/articles removed from the internet. Well, we all know even if it is removed, archived versions will remain. On top of that, no, we can’t. There is no reason for it to be removed. It is all true. He was arrested and accused of this crime.

The unfortunate fact is that the media and public are interested in the juicy details of arrests and allegations but often, the outcome and facts that led to the outcome are not well publicized. The real details are often not shared with or by the media. Sometimes the facts are there for the media to see and sometimes they are not. In this specific case, I am not aware of any media presence during the trial or verdict. The follow up seems lacking. But that may be because the public’s interest is lacking in this area. Whatever the reason, it’s not hard to see how this would be damaging to his reputation and possibly his ability to get a job. It’s atrocious that an entire life that someone has worked hard for can be ruined by a false allegation made by a child.

Most of the time, our society isn’t very sympathetic to this predicament. We are trained to believe that a person wouldn’t be charged with a crime unless they did it. We aren’t often required to face the fact that truly innocent people are put on trial for crimes they didn’t commit. Even more, society isn’t even aware of some of these cases as I mentioned above. The plight of the wrongly accused often goes unnoticed or passes by with an intense ripple that is quickly forgotten.

The foreman on our jury spoke with us briefly after the case. His comment has really stuck with me (and is probably why I am writing this post). He said, “I was giving my son a bath last night, and I thought, ‘Should I be careful doing this?'” My co-counsel joked (He may actually be serious.) that the only way to truly protect yourself is to record every interaction you have with children via video (but then you have child pornography issues to consider).

This scenario reminds me of a play I read in high school. In fact, my co-counsel and I often referred to Arthur Miller’s The Crucible during this case (and other molestation cases where the allegations don’t add up). A small accusation has a lot of power in our society despite our efforts to hold those accused INNOCENT UNTIL PROVEN GUILTY. Until our society begins to view those accused of crimes innocent until proven guilty, the phrase may not have much meaning outside of a courtroom.

So, how do we stop this? I honestly don’t know, but it’s definitely something to think about as it has the potential to affect us all.

**I have decided not to publish my client’s name in this posting out of respect to his privacy. The allegations alone have put a scarlet letter on him.

If you missed it, you can read more about this specific case in my previous blog post, Indiana v. X.

Posted by: DawnMarie White (DMWatLaw) | April 24, 2013

Indiana v. X**

I recently conducted a jury trial in Lake County, Indiana with my friend and colleague, Jonathan C. Little of Saeed & Little. I really like working with Jon. He is as serious about his client’s rights as I am. We both put a lot of work and emotion into this particular case. For me, the defendant is a relative of a friend from law school. When she approached me and subsequently had her relative approach me, I knew that the stakes were high. He was facing three counts: A felony child molest, B felony incest, and C felony child molest.

I first worked to reduce his bond and get his family to bail him out of jail. Then, I decided to bring Jon in on the case. He previously brought me in on a similar case that ended in a plea. We work well together, and he gets my passion for criminal defense – because he has it, too.

After almost a year of reviewing over a thousand pages of health care, Department of Children Services, and school documents, we finally went to trial. We carefully and sometimes tediously plucked out inconsistencies in the alleged victim’s statements. We began referring to her statements as an “ever-changing story” because, well, it was ever-changing.

We elicited testimony from her where she misstated what she did or did not tell various investigators. She testified that she told lies to get what she wants. She admitted that she had made the same allegations with fewer details previously but no one believed her. Family members testified that she was angry with the defendant.

We prepared for “The Jersey Shore” defense. In a few of her statements, the alleged victim claimed that she was wearing a GTL (“Gym Tan Laundry”) shirt in 2006, 2007, or 2008. We had a certified copy of the New York Times’ article explaining what GTL means and stating that the original air date was in 2009. This means it is impossible for her to have worn a Jersey Shore GTL shirt in 2006 or even 2008. It was small, but meaningful inconsistencies like this coupled with her own statements about telling lies, and testimony that she was mad at the defendant that led the jury to a not guilty verdict.

**I have decided not to publish my client’s name in this posting out of respect to his privacy. The allegations alone have put a scarlet letter on him.

Unfortunately, this case doesn’t end with the jury’s not guilty verdict. Read about the outside the courtroom consequences of this case in my post, “Is There Meaning in ‘Innocent Until Proven Guilty?'”

Posted by: DawnMarie White (DMWatLaw) | October 21, 2011

Bullcoming v. New Mexico – A Discussion

Yesterday, I attended the Indiana Attorney General’s Criminal Justice Summit. The summit started with Gary King, Attorney General of New Mexico, discussing the recent case of Bullcoming v. New Mexico he argued in front of the United States Supreme Court. Richard Friedman, Alene and Allan F. Smith Professor of Law of University of Michigan Law School, presented An Academic Analysis: The “Testimonial” Approach. Here’s what I learned from the training.

In Bullcoming, a lab tech was unable to attend court as he was suspended without pay (Mr. King wouldn’t share why but I’m not certain if he knew.). In his place, his supervisor went to court and testified regarding the test the lab tech ran based on a report which included a certification/affidavit section. The defense objected as they did not have a chance to cross examine the lab tech. This violation of the 6th amendment right to confront accusers went before the United States Supreme Court.

Attorney General King knew from Melendez-Dias that a form could not be a substitute for testimony. However, the prosecutors attempted to present a witness (the supervisor) to testify about the contents of a form. Attorney General King had several arguments as to why this should not be ruled a violation to the 6th amendment Confrontation Clause. First, Attorney General King argued that a number from a machine that would be scientific evidence should not be dependent upon the observer. He did not argue this to the Supreme Court. Professor Friedman argued that witnesses testify about what they observed. This would include observing a number on a machine.

Second, Attorney General King argued that the form would meet the business/public records exception to hearsay. The Supreme Court found that if the substitute witness had personal knowledge of the test, the witness would be able to testify regarding that knowledge. However, in Bullcoming, the witness only had personal knowledge of the form that the lab tech completed. Professor Friedman pointed out that the hearsay rule is independent of the Confrontation Clause saying that even if the form met an exception for hearsay it is still inadmissible since the Defendant could not cross-examine the form.

Attorney General King presented a best evidence argument which I am not sure if he made before the Supreme Court. He says that the report is the best evidence as a lab tech is likely to remember the test better at the moment when the lab tech makes the report and not months later at a trial. However, the fact that the Defendant can not ask the report if the test was completed correctly or the lab tech’s ability to conduct the test properly (etc.) is the real issue here.

Attorney General King made a policy argument. He contends that witnesses that should fall under the Confrontation Clause are only those witnesses where a big police presence is involved in generating the evidence. Here, the Health Lab personnel don’t work for the police and Attorney General King maintains that they are independent, as the Health Lab conducts work for other organizations (mostly state organizations).

In addition, Attorney General King states that the result is neutral because it is given to the defense at the same time as it is given to the prosecution. He admits that one hurdle that would need to be overcome here is that the form would need to be created for a reason other than court.

This argument stems from the Supreme Court’s decision in Michigan v. Bryant. In Bryant, the Court held that if the police were obtaining the evidence (a statement from the victim here) for a public safety or law enforcement issue, it is an exception to the 6th amendment Confrontation Clause. In Bryant, the argument was that the police were asking the victim who shot him in order to make sure the shooter was not endangering the public. This test is very manipulative according to Professor Friedman. He anticipates every police officer now having a grave concern for the public in every case.

The Supreme Court’s decision in Bullcoming upheld the Defendant’s right to confront his/her accusers. The Bullcoming Court held that a substitute witness is not allowed under the 6th amendment Confrontation Clause unless the witness has a personal knowledge of the test. The Court hypothesized that raw data of a machine being analyzed in the Court by an expert witness may be okay as one can not cross-examine a machine. However, in this case, the expert witness would have to be qualified as an expert and interpret the data from the witness box. The expert would also be subject to cross-examination.

*Note: I drafted this very quickly so that a public defender would have my notes for a presentation that she is preparing on Bullcoming. I will likely edit this and add citations shortly. I may also add a few more of my impressions.

Posted by: DawnMarie White (DMWatLaw) | September 27, 2011

Illinois v. Kenneth Green

Last month, I had the opportunity to co-counsel a week-long jury trial in Chicago with Marcus Schantz. The State charged Kenny Green with 48 counts. They dismissed 40 counts before trial began leaving two counts of attempted murder, two counts of aggravated battery of peace officers, and four counts of armed violence. Armed violence is an Illinois crime which makes possessing a firearm while committing certain felonies a crime of its own.

Kenny did not know who was breaking into his home when the Chicago Police Department were executing a search warrant. He saw two legs wearing jeans and boots busting through his bedroom door. He heard his family screaming. He heard loud noises. He didn’t hear yells of “Chicago Police Department” or “Search Warrant”.

While fearing for his life and those of his family, Kenny got his gun and shot at the legs. Kenny shot two to four times. Two police officers suffered through and through injuries to their legs. Two of the police officers all but unloaded their guns. One of the officers was using a military type assault rifle. Both officers were firing into a room where they could not see. After the shooting stopped, Kenny heard two words that would forever change his life: Officer down.

Kenny realized that it was the police in his home. He immediately put down his gun and told the officers that he was alone in the room. He then complied with the police officer’s commands and was arrested.

At trial, Kenny was ultimately found not guilty on all eight counts.

Kenny’s account of the events rang true with the jurors. What he said made sense. His version was more believable and was backed up by the evidence. A few police officers testified that Kenny shot bullets through what was remaining of the bedroom door at chest level. However, there were no marks or any evidence to show that bullets hit the wall directly across the small room from the door. In fact, the only bullets found that were attributed to Kenny were in a box spring mattress (read: low to the ground) and on the floor under the box spring mattress. Kenny only shot two to four times while the police shot at least 37 times (37 times!) into a room where they could not see. Granted they were afraid for their lives, but 37 times in response to two to four shots when you can’t see anything is overkill. My and Marcus’ job was to help the jurors into Kenny’s shoes. Marcus’ closing argument sealed the deal.

To read more about the trial, you can read Marcus Schantz’s blog post on the case.

An interesting news article was published just before our trial about police involved shootings in the Sun Times. Here’s a local ABC news report of the trial.

Posted by: DawnMarie White (DMWatLaw) | September 21, 2011

The Beginning – An Introduction, Vision, and Plan

I’m a legal nerd with a very tolerant husband and a growing law practice. I enjoy criminal law, family law, and litigation. I strive to provide aggressive and compassionate legal representation. I believe that everyone deserves someone to be on their side. Some people ask why I represent criminals. My answer is two-fold. First, they are people accused of a crime – not criminals. Second, if people accused of a crime are not represented in our adversarial system, then the system fails. We will begin to condemn everyone that is accused or suspected of a crime like the Crucible‘s Elizabeth Proctor or have a lawless society like in the movie Escape from New York. Both the Crucible and Escape from New York as a reality scare me. While I recognize that our system isn’t perfect, it’s what we have, and it’s better than some of the alternatives. Finally, I fully believe that it is my job as a defense attorney to protect my client’s rights just as it is the prosecutor’s job to protect society by properly prosecuting and imprisoning people who behave unlawfully.

My vision for this blog is to share stories from my practice and to record my learning. This blog is for my own personal education and edification. This blog is not designed to be legal advice or advertisement. If you find yourself in a situation where you are accused of a crime, please contact an attorney for legal advice and representation.

My plan is to write about interesting cases (mine or those in the media) and to share my notes on the new decisions in Indiana (and sometimes the nation).

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