01 August 2006



Okay, I just wanted to make sure I got everybody's attention.

As of September 01, the Lammers Law Office is closing its doors and I am moving to Wise County, Virginia to take the job of Deputy Commonwealth Attorney.

How did that happen? I'm glad you asked.

To begin with, I wanted to move closer to where I grew up (Lexington, Kentucky), where I went to college (Danville, Kentucky), and where my parents live (Cincinnati, Ohio). On and off over the last few years I have considered taking the Kentucky Bar exam (no reciprocal waiver) and moving back that way, perhaps (because I like the mountains) to Ashland. A couple things made me hesitant to do this. First, I did not want to take another bar exam. Second, I wasn't very thrilled by the idea of having to learn an entirely different set of laws and procedures.

Additionally, I had noticed a disturbing trend in the funding of my practice. Most of you know I've been doing indigent defense. This has never been wildly profitable. However, when I first started I was making enough money - especially before I actually got office space. This was because I was getting a lot of misdemeanors and minor felonies. Quick turn around and not too much work meant the practice stayed afloat. Then a terrible thing seems to have happened: the judges started to think I was competent enough to be given serious cases. These cases ate a lot of time and effort and were more emotionally draining. Slowly the business became less able to sustain itself; a few times in the last three years I came very close to closing down the office and practicing from my apartment and the courthouses again. As a business matter, I should have found a way to walk away from the more serious cases, and moved to more profitable areas such as GAL work (where court appointed attorneys can actually make very good money). However, like a moth to a flame, I found myself drawn to the more interesting legal questions and arguments in the serious criminal cases and it's not like you can tell a judge "No sir, I won't take this indigent case because I know it won't be profitable."

Then came the perfect storm. Earlier this year I had 5 or 6 clients decide to appeal their cases. Then I had a couple of guys decide to take jury trials. All of these are money losers in both terms of money paid for work done and opportunity loss costs (if you're not in court to be appointed to cases because you're at the office researching and writing you lose the income from those cases). Three of the petitions for appeal were accepted (and another should have been). This meant time dedicated to getting the briefs written, appendixes prepared, and prepping to actually go argue. The legal issues were extremely interesting and I don't regret the time spent in the least. However, untold, unpaid hours were lost to the endeavor. And the jury trials were even worse. Because the clients were locked up travel to see them at various prisons took a lot of time. One case fizzled on the trial date after about 20 hours+ of work (pled to a misdemeanor), and I got my $428 for that case. The other was over 40 hours by the time the jury trial ended and I'm still waiting to do the sentencing hearing; I'll get $445 when all is said and done. Needless to say, the money situation at my office has gotten tight.

The seed which was planted about me asking Chad Dotson (BTW, Chad was the original Sheriff a relation?) for a job came from an unusual source. You'll remember that a while back a blogger using the pen name "Libertas" asked some questions about Chad and what was going on in Wise. I posted a reply at CrimLaw and Libertas sent me an email asking me if the could quote my reply and what my ties with Chad were. I told him there were no ties - however, Libertas got me thinking . . .

Then, one day I was glancing thru the Virginia Lawyer's Weekly and saw an ad that Chad was hiring. I put it up on the blog and then put it up again later. Chad even posted a comment joking with me about giving him a call if I ever decided to cross over. A joke he may yet come to regret. ;-)

After having the ad up the second time I started thinking about it and did a little bit of research. I'd been to Wise a couple times in my life and knew it is a beautiful area. I was also able to get a pretty good idea what the courthouse looks like inside and out (although that seems to vary from picture to picture - this is my favorite). I talked to some people whom I know have lived there and a junior prosecutor whom I trust about what life's like on the other side. I also figured out that Wise borders Kentucky. As a crow flies, it's probably about as close to Lexington as the place in Kentucky I was considering and it's about 4 hours from Cincinnati - AND I wouldn't have to take another bar or learn an entirely new system. If only it paid $250,000 a year it'd be absolutely perfect; as it is it's still pretty dawg-on good.

And then I thought back to some advice which surfaced from Professor Groot when he passed last year (though not given to me it seemed apropos):
Groot: "You know, Mr. Sullivan, if you enjoy Criminal Law, you should think about a job as a prosecutor."

Sullivan: "Mr. Groot, there is no way I would work for the government."

Groot: "Mr. Sullivan, having chosen the profession of intellectual prostitution, you should worry less about who is paying you and more about making sure you get paid."
BTW, for those of you who don't know - that's a Grootism and if you didn't got to W&L you may not get the humor/truth. That's okay, you had to know Groot (he wasn't exactly a prosecutor's best friend: "At the time of Groot's death, none of his clients had been sent to death row").

With all this in mind, I decided it was "time to put out the fire and call in the dogs." I wrote Chad an email asking if he would entertain the notion of hiring me and he was kind enough to do so. The next thing I knew I was trying to get out of rental agreements and hand off cases and dates to other attorneys. Now it's just a matter of getting thru that last month of private practice and getting moved out to Wise.

How will this effect the blawg?

I'm not sure at this point. The news links will most likely continue with little change outside of whatever change comes from experiential bias when I have experienced the other side. Stories about what has actually happened as part of court are likely to be far less common; when you are always in one courthouse and people are working to appeal your result the problems which could occur are fairly obvious. I'm not sure exactly where I'll draw the line, but it will have to be stricter than I currently have it. BTW: Chad has not said a word to me about this and NOTHING ON THIS BLOG IS REFLECTIVE OF ANYTHING IN THE WISE COUNTY COMMONWEALTH'S OFFICE.

And that's the way it is. I look forward to your comments.

25 comments:

CurtisP said...

Ken -

Congrats on your move. I too went through the same experience, but didn't quite reach the "perfect storm" before I threw in the towel. I'm amazed you lasted as long as you did working for $10.00 an hour on those jury trial cases. When I did the indigent defense work, I got paid $50.00 per hour for most cases. Thankfully, the judges were able and willing to raise the fee ceilings, so when one did go to trial or close to it, as long as you got the permission to bill more, you were ok.

The final straw for me was when I got a letter from the auditing office on a claim for payment telling me they were reducing my claim by $0.15 because I accidentaly charged 1 photocopy at $0.25 instead of the state rate of $0.10.

Indigent defense is seriously underfunded everywhere, the legislatures keep making more activity criminal and raising the penalties on those crimes already on the books such that people need to have a lawyer for even misdemeanor stuff anymore. Of course, we all know its political suicide to say "we need to pay defense lawyers more".

Good luck, Ken! I've always thought a good prosecutor starts out as a good defense lawyer and from what I've seen on your blog, you will be an excellent addition to the law enforcement side of the criminal law.

CP

Michael D. Pratt said...

Ken, Congrats on coming over from the dark side to the side of light. I know how frustrating it can be doing indigent defense can be moneywise from the time I did a murder case, submitted my bills for the work I did, only to be told that they Public Defenders were cutting the amount I was getting paid down to $300. Mind you, this was a potential capital case, but hey they saw a way to save money.

The Public Defenders still wonder why they have trouble getting lawyers to take cases for them, locally only those who are right out of law school or incredubly desperate for monry even return the DPA's phone call looking for conflict counsel.

I thought Kentucky granted reciprocal waiver to Virginia lawyers. I know about four years I almost applied for the Virginia license, only stopping when I learned I actually had to have an office physcially before I could even apply.

Michael D. Pratt said...

That should have read, an office physically in Virginia before I could even apply.

martin said...

My first reaction was "Is he serious?"
Still got to sort it out. At least Tom will be happy.
My 2 cents worth: Give up the blog. You won't be able to reconcile it with the job.

I have long thought that the main problem with the US justice system is the many needless and downright stupid laws that get passed. For purely political reasons. On top of that, too many people on the enforcment side do everything they can to circumvent the law when it suits their purpose. Justice comes in second, close to last. Because justice is not always what the law calls for. Endless debates about procedure and precedent don't change that one bit. In the end it serves too much to prop up a broken system.
Therefore I could never see myself as becoming a part of that side of the system. You have no choice but go along with it. If you think you can make a difference for the better, much luck to you. It will take more perseverance than defense work.
Meanwhile, I'm sad for losing a good place to visit daily.

Ken Lammers said...

martin,

Sorry to see you leaving. I knew there would be people who were not happy with this and made sure that I made the announcement as openly and publicly as possible precisely because I did not want to mislead anyone. I expect that some readers will walk away and I will probably be delinked by some sites. That is everyone's absolute right and I don't begrudge them it.

As I hope I've made clear over the years, I have never been a "true believer" for one side or the other. While I could be said to have a "true belief" it's more a belief that everyone should act to make the system work. I know I've said this explicitly at least once (see my review of "Indefensible"). Of course, while I try to remain objective, everyone is subject to bias from experience and I've been a defense attorney for several years now; that obviously shows thru on the blawg. I've yet to start as a prosecutor and don't know how that will show thru on the blawg. Only time will tell.

I don't plan to close up shop here. I must admit that I am tempted to make a major change here at the same time as I make the change in jobs - maybe to a bi-weekly videocast or a solely podcast format. We'll see.

Beanie said...

Long time reader here...I hope you can maintain the blog in any format, though from reading the other comments I realize that may not be possible. Regardless, mucho congratulations on the move, and good luck going forward.

Anonymous said...

Well as long as you don't start crowing up every death penalty conviction that makes the papers as a "vindication of the life of the victim" and referring to the electric chair as "old sparky," I suppose I can continue reading without gagging.

Windypundit said...

Ah Ken, we hardly knew you.

Since you seem curious about our reactions, here's mine: I'll stick it out for a while, because you tell good stories, but I'm probably one of those readers who will drift away.

I'm something of a social libertarian, so I consider most laws against consensual crimes to be wrong-headed and hard-hearted.

I'm sure a lot of the people you'll be prosecuting really do have it coming, and I'll be glad to see them getting it. Also, I realize that prosecutors have a job to do, and they don't get to pick and choose which laws to enforce.

Nevertheless, I think reading about you prosecuting people for things that shouldn't be illegal---or trying to send people to jail for sentences that are far out of proportion---will wear me down, and I'll lose interest.

In any case, good luck. I hope you earn the money you deserve.

May the evildoers of Wise county soon come to fear the wrath of The Hammer!

martin said...

Ken,

Yes, I'm disappointed, but hey, if you can't make a living as a PD, maybe the landlord will donate the office rent, right?
I wish you all the luck and then some.
Fact is, if a PD can't make a living, how on earth are the accused getting their right to representation?
This system is seriously broken. And not only in the criminal field.
As a DCA, you try to do all you can that defendants' rights are safeguarded, if you're allowed to.
I just can't see how you can keep up a meaningful blog as a DCA. The decision what to write is not going to be all yours any longer. That's the way it must be. That's why I think I'm losing this place.

Tom McKenna said...

Ken:

I know that, coming from the "enemy," as some who read this blog view it (but as, I know, you never have), this may be discounted, but I congratulate you on the move.

You have been a worthy courtroom opponent and a gentleman and friend outside the courtroom. Your blog was the inspiration to me to start mine, and I hope and trust that you will continue on in some capacity.

I suspect you will lose some "true believer" types who only want to read affirmations of their world-view. Their loss. I'm a prosecutor, but love your blog and many other crim defense blogs, though I often disagree with the contents. Obviously some dour people cannot remove the ideological blinders from their eyes and consider alternative points of view.

Our loss here of a fine defense attorney is definitely Wise County's gain. Again, best of luck, and see you at the CLE conferences!

Anonymous said...

You're one of my daily reads, and I'm not going anywhere yet. The fact that the courtroom stories will be cut back is a real shame, though. Those were my favorite reads. Just don't switch to the all-podcast/videocast format! I like the reading.

Good luck on your move. I'm sure you'll do great.

123txpublicdefender123 said...

Wow! I can't believe you're going over to the dark side! (That's for you, Tom. ;) ) Actually, I'm happy that you will be able to practice criminal law without going bankrupt. The Virginia indigent defense system sounds like an absolute disgrace in the way it compensates attorneys. A jury trial for $400? I can't even imagine.

I hope you will keep blogging because I think you are great at it. And, I am very interested in seeing how you perceive things when you're on the other side. I often complain that prosecutors who have never done defense work or even so much as had a single client have very little understanding of what is involved in our jobs. I hope you will be able to bring your experience to your job and to do true justice.

Good luck in your move.

BTW, I'm finally back to blogging again after landing a new job in a new state (thank goodness for reciprocity!). I hope to earn my way back onto your link list in the not too distant future.

Daryl Herbert said...

First, congratulations.

NOTHING ON THIS BLOG IS REFLECTIVE OF ANYTHING IN THE WISE COUNTY COMMONWEALTH'S OFFICE

It might be convenient for you if it were so, but really, you're a public figure now, and these are your public statements.

If you wrote hateful things here, I don't see how you could claim they don't reflect on the office. But what exactly is "hateful"? That would be for your office to decide.

Likewise, your office would have to decide if your comments are not intelligent/coherent enough or otherwise inappropriate--it will be passing judgment on them in many ways.

tomjedrz said...

I don't know if you are aware, but a Los Angeles (CA) County prosecutor has a blog. It is more politically-oriented, but it indicates that the role and blogging can be reconciled.

--> http://patterico.com/

Good luck

Anonymous said...

Since you'll have looked a law from both sides now, I hope you'll remember that prosecutors and defense attorneys are the yin and yang of the legal system. Far too many prosecutors think that the defense attorney is the enemy rather than an essential part of the process. You see this attitude even in the comments, albeit jokingly. But a lot of prosecutors act like they mean it.

I've done a great many criminal appeals and I can tell you that the most deadly prosecutors (and judges) are the ones that go out of their way to be fair. As an appellate attorney, there are certain prosecutors I hate getting when I do a criminal case because I know they will be almost as solicitious of the defendant's rights as his or her own lawyer. Not only do these attorneys have stellar conviction rates, they are almost appeal-proof. Other prosecutors on the other hand are so hard-nosed (to the point of rudeness on occasion) that they're a veritable feast of appellate error, always seeking to push the envelope or tighten the screws on the defendant just a little harder.

But there's only "Guilty" and "Not Guilty." No matter how badly the prosecutor devastates the defense, the jury is not going to come back with "Really Guilty" or "Really, Really Guilty." There is such a thing as trying too hard.

As I often take criminal appeals, perhaps I shouldn't be saying this. But it seems to me that there is a real deterioration in civility at the bar and I find it troubling. As a defense attorney, you're bound to represent your client's interests. But as a prosecutor, you'll have substantial latitude to consider fairness, too. Based on what I've seen in your blog, I believe that you will but, hopefully, you'll be able to infect some of your collegues by your example.

Jon Katz said...

Hi, Ken-

Thanks for your post's honesty about how abysmal is the indigent defense pay system in Virginia -- dead last in the union (see http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/va-report2004execsum.pdf and http://www.nacdl.org/public.nsf/defenseupdates/Virginia060 ) -- and how, as a result, many competent criminal defense lawyers (such as yourself) end up not taking many or any such cases.

Now as a soon-to-be prosecutor, how do you feel about your court-appointed opposing counsel being underpaid to the point that some (at the very least) indigent defendants will be deprived of effective assistance of counsel?

Also, it appears that Virginia's a much tougher place to qualify for court-appointed criminal counsel than in Maryland and DC. How do you feel about going against pro se criminal defendants who only are pro se because they are too rich for court-appointed counsel but too poor to hire counsel? By definition, pro se defendants deliver ineffective assistance to themselves.

If you're going to make the switch, I hope you'll share as much of your experiences and feelings about prosecuting as you have done about defending.

Thanks. Jon
a/k/a Underdog (http://www.markskatz.com/justiceblog.htm ).

Anonymous said...

Ken,

You will be missed around court, your wisdom and wit do not go unappreciated.

However, remember that this is one of those rare jobs that you can always return to, since you don't really have a "job" per se! You'll be remembered, and you can always start back up again, next time as a "former prosecutor"!

I wish you the very best and have confidence that you will be successful in whatever endeavor you choose.

Chris S said...

Wow... Well I am of that sort that couldn't imagine working for the government (put someone in jail for driving on a suspended or a small qty of marijuana? coudln't live with that myself...) but I will continue to read, although I suspect that you will have to be far more reticent in what you post... Anyhow, I just hope that you don't forget your roots when you are putting people in jail for offenses like driving on a suspended license ;) Good luck Ken, I am sure it will be enlightening.

TMS said...

Congratulations. I've always enjoyed your blog a lot, and I look forward to the changes this might bring. Good luck! -Timothy Sandefur

Brian Patton said...

Ken:

Congrats on the new job! I am very pleased to hear you will be moving to our region.

This is all part of a plan. Soon, all of the Virginia bloggers will be moving to Southwest Virginia! :)

I think you will find the office you are joining to be a very good one. I look forward to getting to work with you sometime.

Anonymous said...

Ken:
I read your blog often. I worked as public defender for the better part of 16 years so I really appreciated what you had to say. While I am not tempormentally cut out to prosecute, I have a great deal of admiration for good prosecutors. Good Luck from a faithful, albeit anonymous reader from a distant state!

Melissa said...

*sobs*

Drew said...

Congratulations on the new job. It will be interesting to see if you are still so critical of those on the "dark side" once you are on it....

Love the blog - keep it up.

D

Mister DA said...

Congratulations, Ken. Welcome the the side of the Angels.[-)

As to blogging, well, there's a good reason there are so few active prosecutors blogging, and even fewer who at least try for some degree of anonymity. Your's Truly being a prime example.

Jay H said...

Greeting Counselor-

As a friend from Ken's army years and the son of an estate attorney in Michigan, I have only one piece of advice for all attorneys - Continue making the occupation an honorable profession as have Ken and my father. Lawyers get bad raps, but I know the value they have in a community. (I have often referred to my father as the "Atticus Finch of Macomb and St. Clair Counties" when he returned with fresh produce or game hens in exchange for payment later. While not intimately familiar with Ken's work in the court room and the halls of justice, I knew him to be a loyal friend and a man of the utmost integrity, a course from which I am sure he has never wavered. Ken, I wish you well and should you ever find yourself up North (i.e. above I-80, Toledo, & Cleveland), I hope you'll drop by. jay