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So I didn’t post all week, and for this I apologize. I had what I will just characterize as “one of those weeks” and it took the entire weekend for me to recover from it. But now I bring you an installment of one of my favorite topics…Lawyers Behaving Badly. This time it involves an NYC lawyer who sent sexually explicit text messages and emails to someone he thought was an underage boy…it was, of course, an undercover. And this story has some legal twists - specifically, what does the word “depict” mean?

Jeffrey Kozlow was originally convicted in 2005 of five counts of disseminating indecent materials to a minor (I will leave aside, for now, the separate discussion about cases like this never actually involving any minors).

Kozlow shared his sexual fantasies with “JohnInYonkers914″ and tried to get the purported teen to discuss his sexual habits. But Kozlow never sent pictures or images of minors engaged in acts he fantasized about, prosecutors acknowledged. He cautioned “JohnInYonkers914″ in e-mails that he was interested only in talking on the day of the arranged meeting, and not physical contact.

Following his arrest, Kozlow said he believed “JohnInYonkers914″ was a 14-year-old boy. But he also told authorities that he thought he could say anything he wanted in text messages as long as he did not send “pornographic pictures.”

He appealed the convictions and the appellate court overturned them, holding that there were no pictures involved and thus the communications did not “depict actual or simulated nudity, sexual conduct or sado-masochistic abuse…” as the statute reads.

But this week, the New York high court overturned that decision by relying on the good ole OED, which states that in colonial times “depict” could mean “to represent or portray in words.” I at least give them credit for not resting solely on this and acknowledging that the legislature meant to give a broad meaning to the law in order to target so-called sexual predators on the internet. A strict constructionalist dissent took the politically and socially unpopular position and noted that many other dictionaries never mention mere words in their definition and that, just because the legislature recently amended the law to explicitly include just words, Mr. Kozlow’s actions were not felonies at the time that he did them.

He was, not surprisingly, disbarred.

There are times when I absolutely adore being from and in Massachusetts - like the moment I found out (while sitting in 1L Contracts class) that the Supreme Judicial Court had legalized gay marriage, and the few minutes last night sitting in the bleachers at Fenway Park and watching my beloved Red Sox hit FOUR home runs in a row against the Yankees. And then there are times when I am saddened - no, ashamed - to see what goes on in this state, such as this tale about Rommel Jones, a man held in prison for FOUR years after his release date.

Mr. Jones was a victim of the complicated rules of parole and good time in the Massachusetts correctional system, specifically the rule stating that consecutive sentences (such as Mr. Jones’s 20 years plus 10 years on-and-after) automatically convert to concurrent sentences once the inmate is placed on parole. This is not something that is easy understood or even widely known, which explains why Mr. Jones didn’t know (despite asking several times) when he was supposed to be released. But you would think that the people in charge of knowing these things would know it. They didn’t. And Mr. Jones, who admits that he has been a “hoodlum” and knows that he suffers from significant mental illnesses, was robbed of four years of his freedom.

On top of that, the Department of Corrections (when they realized their mistake) told him they had only miscalculated by one week. And then they rationalized the lie by saying the release would have had “little or no practical effect on his quality of life” and that telling would even have been cruel because “we could be criticized for explaining this to someone . . . with the history of mental illness that this individual has.”

Pardon my language, but are you EFFING KIDDING ME?

In the four years he was mistakenly detained, Jones missed his mother’s wake, lost contact with his teenage daughter, and endured the daily perils of life behind bars. where his mental illness meant a ping-pong existence between life in a prison cell and the psychiatric wards of Bridgewater State Hospital.

“She doesn’t know me,” Jones said softly over a recent lunch at the Prudential Center, referring to [outgoing DoC commissioner Kathleen] Dennehy. “She’s saying they made a decision not even to say anything because they didn’t think that I would be intelligent enough to understand. That’s horrible. That’s one of the saddest excuses that I’ve ever heard. All she had to do is just try me. I’m more intelligent than they know.”

Mr. Jones didn’t even know about the extent of his over-incarceration until reporters at the Boston Globe contacted him while researching this issue. The research prompted the DoC to actually examine what was going on behind their bars and claimed that they found 25 inmates with miscalculated release dates, none of which had been reached yet. But then they had to admit the full (?) truth, revealing that 13 more people in the last four years had been held from a low of one to a high of 515 days past their release dates.

James R. Pingeon of Massachusetts Correctional Legal Services called this “stunning incompetence.” I’m not even sure that covers it.

I was honestly surprised that now-Governor Deval Patrick made reforming the Massachusetts criminal record system a platform of his campaign - when politicians are obsessed with seeming “tough on crime,” this could have easily been interpreted as “soft on crime.” But, of course, he was highlighting the fact that individuals with criminal records, no matter how minimal, face near impossible barriers to getting jobs, housing, and education, thus only encouraging a cycle of recidivism when there’s no opportunity to truly become a so-called “productive member of society.”

Currently, a person’s record (called a CORI, for the Criminal Offender Record Information) reflects a felony for at least 15 years and a misdemeanor for 10. This is true even if there was no jail sentence, but only probation, community service, or even a dismissal. If he picks up a new charge, the count starts all over again. And then a person has to petition to expunge the record, a system that presents a whole new slew of barriers and red tape. On top of that, CORIs are filled with difficult-to-read code and shorthand. I look at several CORIs everyday and I still come across abbreviations that I have to look up.

Let’s say, for example, that you have just decided to invest in some real estate. You buy an apartment building and begin taking applications for tenants. You request an applicant’s CORI and see the following after a charge of, say, “disorderly conduct”:

C 12/13/02 CWOF SP 12/9/03 VN 2/12/03 DF 8/31/05 D/R VOP FINE $200 10/7/05 DF 12/6/05 D/F CMTD

Would you have any freakin idea what that meant if you hadn’t even had training on CORIs or a list of what each entry meant? All you would see is a bunch of gibberish that seems to show that this person had a lot of involvement with the court. Just the mere fact of entries may be enough to say no to her application, regardless of what it actually meant or what she was doing now.

(By the way, it means that, after arraignment, the case was continued to 12/13/02, at which point the defendant admitted to sufficient facts for a finding of guilty and was given a Continued Without a Finding with supervised probation until 12/9/03 but was served with a violation of probation to be heard on 2/12/03. The person defaulted on that date but the default was removed on 8/31/05 and the violation hearing resulted in there being a fine of $200 assessed. The fine was due on 10/7/05 but the money was not paid by then and the person did not show up in court to explain why it was not paid. That default was removed on 12/6/05 and the person was then committed in jail, likely for seven days at the rate of $30 credit per day).

This week, protesters against the current CORI system marched on the Statehouse to demand that this asinine system of roadblocks be reformed to allow people to get on with their lives, rather than being branded for the rest of their lives.

The system, developed in 1972, was meant to create a database for law enforcement agencies while streamlining people’s personal information into one system, so it could be controlled.

Those calling for reform argued, however, that the setup has allowed employers and housing agencies to use blanket discrimination against anyone with a criminal record, without consideration for the nature of the crime, when it occurred, or whether there was ever a conviction. Plus, there’s no consideration for rehabilitation services that were completed, advocates for reform said.

[…]

Those lobbying for reform have called for reducing the time before a record can be sealed, from 15 to 7 years for a felony, and from 10 to three years for a misdemeanor. Also, agencies other than law enforcement would be limited to viewing records of convictions and pending cases. The proposal would ban employer discrimination if someone’s criminal history would not pertain to the job.

Advocates cited statistics showing that people who have stayed crime-free for seven years have less than a 1 percent chance of re-offending. They questioned why CORI should haunt them when they’ve escaped a criminal past.

Currently, Governor Patrick is looking to attach fingerprint records to CORIs and train employers to read codes like the ones cited above.  But he faces a much steeper uphill battle in his quest to limit CORI access for employers because, of course, people see this as rewarding criminals, not helping people move on from past mistakes.

Using taxpayer dollars to give criminals an easier ride is often a bitter pill to swallow, however. Leominster Mayor Dean Mazzarella supports Patrick’s two proposals, but would oppose anything that would restrict the release of CORI information.

Those who espouse a “lock them up and throw away the key” mentality are missing the fact that 97 percent of Massachusetts inmates will be released, said Len Engles, project coordinator of the Criminal Justice Institute.

I have a situation that is going to involve me figuring out some things about California criminal law and how the PD/court-appointed lawyer system works there. I am not looking to hold anyone to specifics on my case, but if anyone who works there or is familiar with the system there is willing to answer a few questions or point me in the right direction, I would sincerely appreciate it. My email is misstyrios@misstyrios.com. Pretty please? I can send a souvenir from Massachusetts as thanks!

Today was another long, exhausting day. But, unlike my post on Friday after a long, exhausting day, I do not have the luxury of a three-day weekend ahead of me to recuperate (yes, Massachusetts has a made-up holiday so that thousands of crazy people can run 26.2 miles. It’s awesome). But I had to reflect on a couple of things -

1 - I have only been a public defender for about 7.5 months. And, obviously, it has been a very steep learning curve in all respects. But today, I realized that I have grown enormously in the small (but vital) area of taking things in stride. I am, by nature, someone who gets harried and stressed out when faced with difficult situations, or even just a lot of things going on at once. And dealing with that was one of my biggest challenges as a PD. When I had to be in 12 places at once, I couldn’t focus on any of them and would get flustered, sometimes to my embarrassment (please tell me that I am not the only one who has cried in the courtroom before). I couldn’t formulate thoughts when the judge threw me something unexpected and I often just would not be able to remain calm and deal with things one at a time. Today, when faced with a very difficult situation and a very difficult judge, I actually just…stayed calm, thought threw the twists, said everything right, and resolved what was looking like an unresloveable situation. And my brain said “Hey, you wouldn’t have been able to do that a few months ago. And now you look like a real lawyer! And a good lawyer!” Then I mentally patted myself on the back.

2 - I have given probation departments and probation officers a lot of grief. They are sometimes much more difficult to deal with than prosecutors, and their jobs are not, by definition, to be out to get people. But today (in the same difficult situation referenced above), I worked WITH (not, for once, against) the best probation officer in the state (title conferred by me). He went far, far above and beyond what he had to do (which was…nothing) out of actual concern for my client. He was, in simple terms, awesome. And I wish I could pat him on the back. But that would be a little weird.

Massachusetts Governor Deval Patrick is looking to “fundamentally change the philosophy” of the state’s criminal justice system by scrutinizing the mandatory minimum sentencing laws. The proposal is sheathed in concerns over money and public safety, but it also inherently addresses the chances prisoners have to re-integrate into society and the identical treatment of first offenders verses repeat offenders in some cases.

Administration officials say that the mandatory minimum sentences, which eliminate judges’ discretion in certain cases, drive up the cost of corrections and make it less likely that prisoners will participate in programs that could help them reenter society when they are released.

Because those prisoners cannot get out early for good behavior, critics say, they have little incentive to participate in programs while in prison. And they are barred by law from enrolling in work release, rehabilitation, or furlough programs outside their institution, according to Mary Elizabeth Heffernan, an undersecretary for public safety. Once they wrap up their sentence, she added, they are sent back into society unsupervised.

The mandatory minimum that I see most often in my district court practice is the two years attached to selling drugs within 1000 feet of a school or park. In any urban area, this pretty much covers every single square foot of the city. So someone charged with possession with intent to distribute in a city has this additional charge slapped on every time, whereas someone in the suburbs would not. And where do most of the poor live? In cities of course. This translates into prosecutors often having enormous leverage in dealing with these cases, because they will agree to dismiss the school zone charge only if the defendant pleas to the underlying charge. The risk of facing a mandatory minimum if convicted at trial is usually enough to make anyone too scared to fight, even if there’s a good case to make that the drugs were for personal use (and thus straight possession) and not possessed with any intent to distribute.

[Attorney General Martha] Coakley estimates that a third to 40 percent of the state’s prisoners are serving mandatory minimum sentences.

If a judge issues a sentence greater than the minimum, the prisoner becomes eligible for programs once the minimum has been served. But many judges, bristling at their loss of discretion, have responded to the restrictions by imposing only the minimum, prosecutors and judges say, and criminals are freed as soon as their mandatory sentence is up.

Of course, the administration is “talking to the Massachusetts District Attorneys Association to come up with something that would be acceptable to prosecutors,” without any mention of input from the defense bar, but I am optimistic about this re-examination.

But I am wary of the idea of ensuring that every released prisoner have supervision after release - in theory, it sounds fine. But I am not at all confident in the actual ability of the probation and parole departments to help prisoners once they are released. From what I have seen (with a few notable exceptions), they have little to no concern with helping people find sober housing, medical care, employment, education, or family re-integration. Instead, their only concerns seem to be scrutinizing every little misstep so that they can violate everyone based on not being a perfect person. And this is only going to send people back to jail over and over again if it also isn’t fundamentally re-examined.

Today, I was on arraignment duty in district court. I always dread these days because they are, by far, the most exhausting, unpredictable, and soul-sucking days I have to face. (Side note: I have yet to actually go to trial, so I may revise that thought later).

Granted, there is a definite formula to doing arraignments - once I get the list of people who have been arrested and brought to court, I get the record and police report, go into lock-up, and ask the standard questions. Do you know what you’re charged with? How old are you? Where do you live? How long have you been in this area? Do you have a job? Who do you live with? Do you have any kids? How far did you go in school? How much money can you post for bail? Etc. But there can be anywhere from three to twenty of these interviews to go through.

And so much depends on who the judge is for the day, who the clerk calling the cases is, how difficult the situation is, and how the client deals with said situation. Is he used to the process? Is he crying? Is he going through withdrawal? Is he belligerent? Is he completely unrealistic? It is an exhausting process. It involves going in and out of lock-up and courtrooms, making calls on my own cell phone, trying to arrange detox beds, calming people down, yelling at people, fighting with probation and the DA, and generally being pulled in twelve different directions at once.

Sometimes, people get locked up on bails that are ludicrous, leaving me feeling like I’m a complete failure as a lawyer. But then, sometimes people are released on personal recognizance when I didn’t think I had a damn chance in hell, leaving me feeling like I’m the best lawyer in the world. Most of the time, though, I feel like a superfluous warm body, there only because a judge cannot lock someone up without having them technically represented by counsel. I feel like I give a broken-record spiel, relaying the same woeful tales and barrage of excuses over and over and over and over again.

By the end of the day, after going literally non-stop for eight hours (often without a spare moment for a bathroom or lunch break), my body aches and my head throbs. I have too much paperwork to keep track of. I worry about when I’m going to find the time to fit jail visits in to actually talk to my new clients about their cases. I feel defeated and beaten down.

But once in a while, I feel…triumphant. Sometimes just because I have gotten through it all and am still breathing. Sometimes because I fought hard and feel that, even in one case, the right decision was made. Sometimes just because I managed to keep everyone’s stories straight and my voice sounded clear, confident, and convincing. Sometimes just because the judge actually took half a second to listen to my voice.

Today was one of those days. It was, by far, the busiest arraignment day I have ever seen, with the highest number of arrests and people in custody. I handled at least three times the load I usually do. And I was thanked. I was thanked by the court officers, by several clients, and by some family members. I kept cool and calm. I fought my ass off and felt like a lot of correct decisions were made by the court. I felt like I never wanted to do anything other than be a public defender for the rest of my life.

Everyone’s “favorite” tabloid, the New York Daily News, apparently decided that a Brooklyn Law School 3L posing nude in a Playboy short is front page news.

Adriana Dominguez - a third-year student at Brooklyn Law School - happily strips naked, gets spanked and holds gavels up to her bare breasts in the provocative clip.

“I wanted to do something a little crazy before I graduate and do become a lawyer … do something kind of out of character,” Dominguez said with a grin as she posed for photographer Andrew Einhorn inside his friend’s DUMBO apartment.

Really? She held a gavel up to her boobs? I find this downright hilarious.

But it brings up an interesting question - should doing something like this (and by “this,” I mean “getting naked on the internet”) be considered as a factor in admission to the bar? Is she actually unfit to practice law because she did a striptease? Or is it merely something that employers should be wary of (or excited about, perhaps)?

Personally, I do not think that posing nude has any actual effect on your ability or fitness to be a lawyer or on your character in general. I may be biased, in that I have several dear friends who model naked on the internet, but I also may just be numb to it because, well, I have several dear friends who model naked on the internet. It just does not seem like a big deal to me. At all. But I can see why it may be a big deal to other people - employers, clients, opposing counsel, judges, etc. It isn’t always easy being a female in the boy’s world of criminal trial law, though my thoughts about dealing with sexual harassment (running the spectrum from flirting to outright gross inappropriateness) on the job is best saved for another time. Let’s just say that I can only imagine the comments, disrespect, and difficulty she would face in the courthouses where I practice. I want it to be a harmless blip that shouldn’t matter if she’s an otherwise smart, skilled, and good lawyer…but I also realize that, in reality, it is not.

While searching for new public defense-related news to post about today, I came across a completely random, yet totally hilarious, tidbit from Oklahoma:

Toure recalls days as public defender

OKLAHOMA CITY Former state Representative Opio Toure (OH’-pee-oh TURR’-aye) was among those sitting in on a round-table discussion today at the Oklahoma History Center with award-winning historian John Hope Franklin.  Toure recalled that as a public defender in Oklahoma County, he often ate food served to jail inmates, especially on Fridays, when fish was on the menu. He says the fish was quite good and said other public defenders and prosecutors could come to the jail just for that. Toure said fried chicken was served on Sundays and one of his clients counted his time in jail by the number of times he had eaten chicken.