Monday

Eight is enough

When he was charged with murder in 1996, James Thomas, an impoverished day laborer in Baton Rouge, became like many other criminal defendants: With no money to hire a lawyer, he had to rely on the government to provide him with one.
He then spent the next 8½ years in jail, waiting for his case to go to trial.

It never did.



This interesting piece offers a critique of many public defenders, and just as clearly, a cry for help. Across the USA, examples of an overburdened, underfunded public defender system abound:

• In Virginia, caps on fees paid to court-appointed lawyers are the lowest in the nation, Carroll says. Fees on a felony that carries a sentence of 20 years or less are capped at $428, while defenders whose clients face felonies with a sentence of more than 20 years can be paid no more than $1,186.

• In Wisconsin, more than 11,000 poor people annually go to court without representation because anyone who makes more than $3,000 a year is considered able to afford a lawyer, says Ellen Berz, head of the Madison public defender's office.

• Nevada caps defenders' fees in death-penalty cases at $12,000, and it is the only state that does not allow the payment limits to be waived in such cases, Carroll says.

• In Mississippi, the NAACP Legal Defense Fund and the Southern Center for Human Rights in Atlanta sued the city of Gulfport last month. They accused the city of operating a "modern day debtor's prison" by jailing poor people who are unable to pay their fines and denying them the right to lawyers.

• In Louisiana, the Lake Charles public defender's office was sued by nine defendants who say they have waited years to go on trial.

Obscene Judicial Posturing...

Shame on Judge Gerald Harris.

Like a judicial peacock strutting for cameras, the judge added 10 days to Robert E. Chambers's sentence for misdemeanor drug possession. Why? Because he was an hour late to court.

The judge sentenced Mr. Chambers to a total of 100 days at Rikers Island, saying his tardiness violated the agreement he had made with prosecutors earlier this summer when he pleaded guilty to heroin possession (residue on some straws found in his car)and driving with a suspended license.

Of course as anyone who works in that building knows, anyone other than Robert Chambers would have gotten a negligable sentence on a residue case. It is only because of his noteriety that he's headed to jail at all. In previous interviews, Mr. Chambers has said that he is in recovery and that he regularly attends Narcotics Anonymous meetings.



To make matters worse, Chambers had arrived in time this morning for the scheduled hearing, but when his lawyer let the judge know he was tied up with another case in Queens, the judge rescheduled the hearing for this afternoon. When he arrived, Mr. Chambers explained that he had been frantically trying to pay back parking tickets in order to have his car released by the authorities before he went to jail.

"I owe some money in parking tickets," he told the judge. "I had to call my old boss to borrow money.

"The only asset I do have is the car and I have been concerned about it," he said. "I apologize."

Mr. Chambers then put his hands behind him, and a court officer placed cuffs around his wrists before leading him away.

Let's be clear: People are late for court every single day, and few to none of them are ever sent to jail for an extra 10 days. What was this really? A penalty for disapointing the press, and a opportunity for a judge to grab some tough on crime headlines at the expense of a defenseless defendant.

Let the Inmates off the leash!

More genius from North Carolina: Now they use dog leashes on inmates. This is downright sick.



Yes indeed,

The Alexander Correctional Institution has been ordered to stop using a leash-like tether on its inmates until the device is tested and evaluated by the state.

The maximum security prison in Taylorsville has been using the nylon tether on some inmates since about the time it opened last year.

As described in this article The tether is about 2 1/2 feet long and made of nylon webbing with a loop handle at one end and a clip at the other. Corrections officers attach the clip to the waist chain on inmates who also have their legs shackled and their arms handcuffed behind their back. The officers, walk behind the inmate allowing them to hold the tether loop instead of putting hands on the inmate.

Sunday

Liberal Media?

Despite the constant nonsensical talk of a "liberal media bias" any PD will tell you that on criminal justice issues liberal or conservative makes no difference--poor criminal defendants get a raw deal every time.



So here's an interesting issue: In the absence of a specific statute, can someone be charged with murder if there is no evidence of an intent to cause death? Simple answer: No. Of course not--intent is a critical element of any specific intent crime. So when the Washington State Supreme Court did the obvious and voided a number of murder convictions holding that when an assault led to an unintended death, the highest charge should be manslaughter, rather than see it as a clear victory over outrageous prosecutorial over-reaching, the seattle post wrote a piece which (gasp) focuses on the fury of an abused kid that his stepdad was getting out of prison.

Friday

Don't say I didn't tell you so...

Recently proposed federal legislation would effectively remove a safety net in the judicial system--habeus review of state cases...



This from Kentucky...

"The success that some people have had in terms of challenging their convictions because of DNA evidence is sort of being turned against the general population of people who are seeking habeas review" based on other grounds, Abramson said.

Proving innocence "seems to be the relatively narrow channel that's going to be left if this act passes," he said.

Hello? Didn't I go on at great length about the danger of shifting the paradigm from reasonable doubt to demonstrable innocence?

Tuesday

Court to Help Spread HIV

In a setback for HIV prevention, a NJ court held an Atlantic City needle exchange program illegal.



Opponents of needle-exchange programs welcomed the unanimous ruling, saying it could help their efforts to block a pilot program authorized last fall by then-Gov. James E. McGreevey. The three-judge appeals court ruled that anyone, including municipal officials, who distributed syringes to drug addicts 'would be subject to prosecution as an accomplice to the addict's illegal use of drugs.'"

And what of the "compelling state interest" in controlling the spread of HIV and hepatitis C?

The court added that it made no difference that the city had established the program in response to "a public health crisis" due to the spread of injection-related HIV and hepatitis C.

Jail Cam

Yep, in a towering achievement for prurience comes this real live Jail Cam, allowing you to watch as inmates are booked into the Anderson County jail in Tennessee.

Comments

Sorry folks, because of a recent rash of spam comments, I've decided to eliminate anonymous comments. I'd love to hear what you have to say--good, bad and indifferent, but I don't particularly want to be deluged with a bunch of spam designed to plug a bunch of crap.

Monday

Now Back to the News

Ok, enough cuttings from the book...
Here's a little legal gem: A "Not-for-profit" hospital corporation is suing indigent uninsured patients.



An extraordinary class action suit filed against uninsured patients by Sutter Health Inc., a not-for-profit hospital corporation, is business as usual for a chain that has consistently overcharged patients and used aggressive collection methods to shake down the poor, the union representing 4,500 Sutter caregivers charged today.

On Aug. 17, Sutter counter-sued uninsured patients who had filed a class action suit claiming that Sutter charged exorbitant prices. Sutter is seeking to collect the difference between what the uninsured patients paid and its inflated charges, or an amount that a judge would set as reasonable.

"With this suit, Sutter Health is being disingenuous at best, downright malicious at worst," said Sal Rosselli, president of SEIU United Healthcare Workers West. "It's an outrageous response to a class action consumer
protection lawsuit, and demonstrates that Sutter's announcement last year that it is expanding charity care eligibility and moderating collections policies were cynical PR ploys."

Saturday

Bye Bye...

“KEEP THE CHILD SILENT OR LEAVE THE COURTROOM!” That’s what the judge is yelling as I walk into Part N, past a scattering of disheveled men sitting listlessly in the pews, heading toward the heavy steel door that leads to the pens, and to Malik.

The judge’s rage is directed at a young woman in a puffy black down jacket. She is sitting in the second row, just 10 feet shy of the door to the pens with a three year old seated primly in her lap. Just beyond the rail separating the well from the spectators, a kid is sitting handcuffed to a chair. He is waiting to be sentenced. He has a youthful tough face, and he is blowing kisses to the three-year. The child is saying “Daddy… Daddy!” The kid beams. “Take the child outside!” shouts the nearest court officer.

So much for Daddy.

Thursday

A reminiscence removed...

Ok, there's going to be a blogging slow-down. I'm editing away (as several of the last entries demonstrate), and will continue to post a few little tidbits though the wholesale chopping of vignettes should slow down. BTW: Please ignore the myriad typos. This from back from years ago in Brooklyn...


“Please judge, please”… it’s less than a month after they dragged Jimmy away and in a courtroom just across the street, a young woman is pleading. She’s got her 3 year-old child in her arms, and she’s trying to explain:



“I just didn’t have any daycare.” Her voice is plaintive. The judge is glaring. I don’t remember exactly which judge it was, but I think it was Gloria Goldstein. Goldstein was widely feared in Brooklyn Supreme Court for her distemper. (That may why I think it was her...)


“Do not lie to me young lady” she shrieked. “You people think that bringing a baby to court is going to save you…well I’m tellin’ you, it’s not! Call BCW” she instructed her clerk referring to the bureau of child welfare, the office that handled child abuse and neglect cases. Such a phone call from a judge’s clerk would almost certainly result in the young mother’s losing custody of her infant.

“No please your honor” the young woman begged. She had faced that morning a Hobson’s choice; stay home to care for your child and have a bench warrant issue for your arrest, or bring your baby to court. Many single mothers face this terrible choice and many mothers wind up spending hours trying to keep children quiet while they themselves wait tensely to face the music.

Judge Goldstein, like many other jurists, was apparently unable to grasp the concept of the childcare problem. She seemed to assume that a parent is intentionally bringing a child to court for nefarious reasons—probably to use as a shield—some kind of insurance policy against going to jail. Judge Goldstein’s response (and she was not alone in this): Remove the children, and jail the parents. How dare anyone try to defy her? How dare anything think that they could shield themselves from her wrath just by bringing a defenseless child. Put one over on her? Never. To Goldstein, such behavior was reprehensible—an attempt to use a kid to play on her sympathies. That kind of stuff was not gonna work on Judge Gloria Goldstein.

“Do not try to manipulate me young lady!” she hollered as while shirted court officers reached for their cuffs. The woman was almost sobbing:

“Please, judge please, I can’t loose my baby. I just didn’t want a warrant…my baby’s father said he was gonna come take her but he didn’t show up…please”.

“There was nothing I could do,” A colleague explained to me in the back stairs, her eyes still a bit red. “She took the kid right out of her arms… And for nothing too. A bogus VOP—all technical spec’s. Just got pissed that she brought the kid… never done a day…and she put it over for three weeks.” She was shaking her head, misty-eyed, stunned at her inability to stop such an obvious injustice.

The backstairs shorthand meant, that the client was back in court for a violation of her probation—failing to report to her probation officer, and an unauthorized address change (this particular violation often happens with itinerant or homeless people) these are known in the argot of the courthouse as ‘technical specifications’. Technical because they don’t involve any additional criminality or bad behavior, but rather relate only to the conditions of probation—steady address, work, reporting, curfew etc. The client had never been in jail before. Never set foot on Rikers. The case had been adjourned for three weeks—the mother would spend those three weeks at Rikers Island—with no guarantee she’d get out afterwards and all for disrespecting Gloria Goldstein by bringing a kid to court. “I shoulda known…” my colleague was still shaking her head. “I shoulda known.”

(Note: Several years after this incident, Judge Goldstein (if it really was her) was elevated to the appellate division.)

Wednesday

Another Cop Out (Cut)

As you can see there are a lot of people taking pleas in this book--much like the system itself...

Judge Kiesel nods as the court officers lead Blue away. Legal Aid steps back from the defense table, shaking his head--another small loss in a daily diet of defeat. I’m glad Blue’s wife wasn’t in the courtroom, but I pity Legal Aid having to go outside to try to explain to her what just happened and why. I know from experience that she’ll cry and wail and blame Legal Aid for selling her husband out.




$750 bucks--the difference between what happened to Blue and what happened to the next guy to step up to face Kiesel.

Number 50-something on the calendar is free. Tall, white and angular, and dressed in a nice button down shirt and a clean pair of blue jeans, Mr White steps up from the third row in the audience. He looks Albanian.

Like Blue before him, White is pleading guilty.

Unlike Blue, though, Mr. White is pleading to a harassment violation, a non-criminal offense that is often offered when the complainant doesn’t want to go forward and the defendant is able to afford bail--a DA’s way of squeezing out a conviction on an untenable case.

The disparate treatment of Blue and White demarks the essential divide in the system: it’s not about race-- it’s about cash.

Instead of being coerced , like Blue was, into pleading guilty, White bought his freedom for five hundred dollars, (each judge at arraignments sets bail according to their own strange whims) and in doing so, he bought time and breathing room.

Because White wasn’t languishing in jail, his lawyer had the chance to investigate the facts, fight the case, and wait out the non-criminal offer that usually comes around eventually in most misdemeanor cases.

It’s a quick proceeding.

White’s lawyer tells Kiesel he’s going to plead guilty. Kiesel hardly glances at the man.

“Are you pleading guilty because you are in fact guilty?” she asks half rolling her eyes at the inanity of the oft-repeated question.

“Yeah.” says Mr. White.

“Anyone force you or threaten you to coerce you into entering this plea?” Kiesel asks utterly uninterested.

White knows the drill.

“Nah.” he says without prompting from his lawyer.

Kiesel imposes the sentence the prosecutors recommend—a promise to stay out of trouble for a year and abide by an order of protection.

The whole process takes less than a minute.

Tuesday

The 4th worst place in the nation to be black;

Yes indeedy, there's a new study that ranks states by how disproportionately they incarcerate black folks. And guess what? Oklahoma is the fourth worst place in the country to be black...



Blacks comprise less than 8 percent of the state's population and only half of black residents are old enough to go to prison. But Oklahoma's prison population on May 31, the most recent date available, was 28 percent black, according to the state Department of Corrections.

By comparison, whites make up almost 79 percent of the general population but just 58 percent of the prison population.

The study, entitled 'Ten Worst Places to Be Black,' was published last month by the Black Commentator, an Internet-based magazine on black social justice issues.

The study said only Wisconsin, Iowa and Texas lock up more blacks per capita than Oklahoma."

Gone!

A few more paragraphs about NYPD's "Catch unit" that didn't make the cut. Interesting issue though...

The homicide task force is just down the hall from what was known as the ‘catch unit’— a huge room with row upon row of file cabinets crammed with old perp pics. The catch unit was the home of the pre-computerized mug books. The damage of an arrest always goes far beyond the restoration vindication can provide. Higher profile defendants, whose charges appear on page one, often find the dismissals buried on B-26. Damage to a carefully built reputation is often permanent, and exposure to the acid of the criminal justice system is often permanently scarring. Most of my clients, however aren’t on page one, or any page for that matter. They’re the undifferentiated chum that power the system. And so it’s their freedom rather than their reputations at stake.



Criminal procedure law section 160.50, requires that if a criminal action is terminated in favor of the accused—that is if the charges are dropped, or the client is acquitted, all of the information—fingerprints and photographs especially, are supposed to be destroyed. The theory, of course is that innocent people don’t below in the perverse databases of criminal justice administration. But as any policy maker knows, unless there are sanctions for a violation of a rule or policy, it is likely to be ignored. Judges have ruled that an if a photograph is retained illegally, and placed in a photobook, any subsequent identification is still OK. It’s why careful families are so upset by otherwise insignificant encounters with the police. Stopped for reckless driving, even though the case is dismissed, the police may illegally retain a picture. Many years later, that old photo, the one that according to the law was supposed to have been destroyed, can come back in haunting ways. I’ve seen this in dozens of cases over the years—innocent kids wrongly identified from age-old photos that no longer look anything like them, charged in cases where that faulty identification that is the sole evidence. Their remedy—a civil suit that no contingency fee lawyer will touch.

The result of the judicial decisions refusing to penalize the police for unlawfully retaining old photos, is a whole parallel unofficial photo system—usually Polaroid pictures of suspects taken separately from the official mug shots, retained when they should be destroyed—and used, often wrongly, to identify people who should never be in the database at all. The “catch” unit, along with several places in the narcotics unit, was where many of those illegally retained pictures made their home.

Pardon ?

Getting away from the book for a moment, consider this: Gerogia is about to Pardon a Black Woman who was already Executed :

"The only woman ever executed in Georgia's electric chair is being granted a posthumous pardon, 60 years after the black maid was put to death for killing a white man she claimed held her in slavery and threatened her life.


Lena Baker--Electrocuted in 1945 after a one-day trial

The Georgia Board of Pardons and Paroles has decided to pardon Lena Baker and plans to present a proclamation to her descendants at its Aug. 30 meeting in Atlanta, board spokeswoman Scheree Lipscomb said Monday.

Baker was sentenced to die following a one-day trial before an all-white, all-male jury in Georgia."

Monday

Copping out...

This, cut from a much longer passage about why innocent people plead guilty...
(Please remember these are scraps headed for the slag heap--posting them just makes me feel better about chopping them out of the book....)

Even now, after more than a decade in the system, my family and friends exhibit a muddled skepticism when I mention these rudimentary truths of the system: that big city justice, is more about the judge you draw, than evidence they’ve got; that having just a few thousand dollars for bail is what makes the difference between jail and freedom; that innocent people plead guilty all the time.



Back in the courtroom, there is still no judge. Your lawyer wanders languidly though the thigh high swinging gates that guard the well of the courtroom. They are battered and scarred, like tan saloon doors that have seen too many bar fights. They flap loudly in his wake. To the left, on the prosecution’s table, is a large low box of files. Inside it appear to be the 30 or 40 cases left to be heard in the afternoon. The assistant DA’s arrayed around the box seem almost impossibly young. The women, draped with cheap early career professional wear, black leather pumps and a profusion of pearls. Their jackets, in navy and back and grey betray a kind of corporate shabby chic, like first year law associates at downmarket firms in Rochester or Dayton. They wear just a touch of makeup, their hair is teased and styled, most of them are white.

Your lawyer, significantly older but rumpled in the way that seems to pervade the courthouse, walks up to them; there are smiles and a moment of nodding. A long legged blonde assistant DA, rifles though the long file box and shakes her head. Your heart sinks.

Legs notices a white file folder, exactly like the dozens of others, lying next to the box. She picks it up. Your lawyer nods, and you quietly offer a prayer of thanks.

There’s more conversation, a little more animated now, your lawyer is gesturing in a pleading kind of way, his hands out, fingers spread and slightly bent, his thumbs pointed 45 degrees out from his body, in a “c’mon gimmie a little somthin’ here,” gesture. Legs is shaking her head in obvious disagreement, your lawyer is focused, his eyes are narrowed, almost angry—mid pitch. You lean forward trying to get a sense of who’s saying what, when then the Judge walks in:

“Come to Order!” the court officers shout as the softly murmuring courtroom quiets to a hush broken by the chatter of Legs and your lawyer, and a few other pairs of defense lawyers and assistant DA’s all engaged in the days work of processing cases—processing you and the rest of the people you’ve been sitting with for the better part of the year.

Your lawyer nods at Legs, and striding again through the gates, confers with the court officer calling in the cases. The court officer shuffles around some papers, and from the bottom of a pile picks up a sheaf of papers, stapled together, the back page a muted sky blue. “Add on to the calendar…voluntary return on a warrant, 2004BX100001” intones the court officer for the 75th time that day, “People vs. Your Name charged with 165.15.” Your lawyer stands at the defense table, Legs has moved front and center for the prosecution, and as you enter the well, another court officer slides in behind you, blocking your way, hands on his hips.

Standing in the dingy well of the courtroom, waist pressed against the battered wooden table, centered at the tattered, hand-lettered piece of notebook paper commands, simply, “Stand Here" it’s hard to get your mouth to work, to say what you know you have to say...

Saturday

Statements...

Statements provide a peek into the craziness of crime as well as its sheer banality. Some statements become oddly familiar—hardly a drunk driving case goes by without the prosecutor saying, (often completely deadpan) “710.30(1)(a) The defendant stated in sum and substance “I had two beers.”



It’s almost never a single beer, and never three. Every once and again, someone—usually a Russian guy or a Pole will admit to half a bottle of vodka, one guy’s memorable statement was “excuse me, but I’m about to be sick.” but for some strange reason, as a general matter, two beers is everyone’s favorite DWI lie. Comically, the statement is usually followed by the DA’s accounting of the ‘blow’—that is the reading on the intoxilyzer machine. So “I had two beers.” is often followed by the droll recitation of the fact that a client had a blood-alcohol level of .18—nearly twice the legal limit and a good indication that the more honest statement might have been “I was on my second six-pack.”

The constant recital of similar statements, also serves to make crime, and clients seems fungible. When every fourth domestic violence case contains the common refrain in “We had a fight,” or “she (insert conduct here) and so I slapped her,” it becomes harder to see cases individually, to probe and weigh their nuances in the search for the kind of individualized justice the system ought to aim for.

Of course wacky clients and crazy cases often yield comic relief in otherwise dry criminal proceedings.

“Ah two statements here judge,” the boring prosecutor in his perfect blue blazer says calmly as he flips distractedly through one of the 80 files for the evening, “First statement at 10:16 p.m at the corner of 161st and 3rd the defendant stated in sum and substance to arresting officer Figueroa: ‘You’re a pussy, take off that badge and I’ll kick your ass. Second statement, 11:22 p.m at the 48th precinct, defendant stated in sum and substance to officer Figureroa, ‘ You’re a pussy, I would have kicked your ass if you hadn’t sprayed that shit in my face.’ No further notices.”

or:

“710.30(1)(a) at the time and place of arrest to officer Loreth: ‘suck my dick.’ no further notices.”

Friday

More Trimmings...

John (not his real name) came into my life at 5:16 P.M on July 17th of 2001. I was sitting in my office, recovering from a long day when the phone rang: “Mr. Feige?” The unfamiliar voice on the other end of the phone makes my name sound like ”Ferg”

“Detective Infante 48 Pct here. We’ve got line up—homicide” Detective Infante has the clipped officious delivery of a movie cop. “You’re the lineup guy right?”


(This is a DIFFERENT John Katzman)

I was a little flummoxed—detectives don’t normally call me looking for counsel for a lineup, and though I’d done a lot of work on the subject of getting a fairer lineup procedure adopted, I didn’t think my fame ran to the NYPD. “Yeah, I’m the lineup guy” I said hesitantly, “Who’s in custody, and why are you calling me?”

“Guy’s name is Katzman” Infante tells me brusquely--”And we gotta do this one now—we’re doin’ in at the 48 in one hour. Consider yourself notified”

I know most of my clients—and particularly those charged with Murder, and I am sure I have never had a Katzman. This is strange, I think. Detectives hate having lawyers around for a lineup, something very unusual must be going on if the cops are calling for counsel.

It was my first glimpse of how resolute John Katzman was. It was as if a lifetime of incarceration had produced a patina of professionalism. John, had insisted on a lawyer for the identification procedure, and calmly told the detectives over and over “I understand my rights, I don’t wish to waive them and I’d ask you to please contact a lawyer for me”. He was the one in a thousand that was completely unflappable, smiling patiently at the police as they badgered and bullied and threatened. John, nodded politely, and explained quietly over and over, how important it was that everyone respect his right to remain silent and his right to an attorney—rights he fully intended to exercise.

Lucky me.

The thing is, when a detective calls after 5:00, and says that a lineup needs to happen that night, two things are certain; first the detective is hoping you can’t or won’t make it, and second, that it’s going to be a long night.

Infante is still on the phone waiting…

“You got fillers yet?” I ask trying to gauge just how long the night is going to be.

Fillers are neighborhood guys, often homeless. The NYPD pays them 10 bucks to stand in a lineup beside the suspect. Fillers are a critical part of any lineup—not just because they are a necessary pre-requisite, but because the degree to which they match the suspect has a huge impact on the degree to which the lineup is a fair one.

In most cases, the fillers in New York City lineups are atrocious. Finding guys willing to do it is difficult and cops see getting them as a chore. The result—they take pretty much anyone they can get, and the result of that in turn are almost absurd situations in which there is no one else in the lineup who really resembles the person the cops want the witness to pick.

Infante tells me he’s working on getting fillers now.

“Fine. I’ll call you in 45 minutes. Whenever it goes down, I’ll be there.”

No restaurant opening for me.

Kimmy was pissed. My ex-girlfriend and all around partner in fun, Kimberly Stevens lead the kind of New York life kids from Wisconsin dream about: Restaurant opening one night, movie premier the next, constantly swinging from one star-studded magazine party to the next. Kim, was a contributor to the Style pages of the New York Times, and got so many invitations she could barely keep track of them.

Even as an Ex, I was regularly the beneficiary of her social largesse—often claiming the top slot in the pathetic competition for the coveted +1 designation.

Calling her, I try to explain that I’m not going to make the opening:

“Sweetie…these things just happen…it’s not even a client of mine…it was just a call out of the blue.”

“Well why doesn’t someone else do it?” she reasonably wanted to know.

“It’s a murder honey—and I’m almost certain to wind up with it anyhow—so I’m just gonna do it. I’ll call you from the precinct and let you know…”

Click.

As sad as it is to disappoint a friend, there is a deep satisfaction in being the kind of public defender that defies expectations. Going the extra mile is alluring precisely because in a justice system deluged with low expectations, decent performance can have a transformative impact. The reality is Infante doesn’t expect someone who isn’t getting paid anything extra to give up a Thursday night to sit around the homicide task force waiting for fillers. To him, the early evening call was a bluff he was sure he’d win. John too, locked in his cell in a crowded precinct, didn’t think they’d find anyone at 5:30. But in the same way that defying the stereotype of the public defender makes missing a party or an opera worthwhile—it makes showing up at the precinct--the later the better—supremely satisfying.

5:50: Infante still has no fillers.

I have used the time to round up a few summer interns to keep me company. Matt Davis, a clean cut kid who would eventually grow his hair long and graduate from Harvard Law School, and Scott Levy, who, after his graduation from Princeton, would go on to become a great investigator. Neither has been to a lineup before.

I brief them, and we wait.

Just after 7, Infante calls to say he’s got fillers. Like a number of things detectives regularly say, “I’ve got the fillers” is always a lie. We leave anyway. With the cigarette stop at the gas station, the 48th precinct is 20 minutes away.

Long before Bronx homicide moved to the stately renovated manor house that eventually housed the marquee assignments of Bronx Cop-dom—(Special Victims, Sex crimes and RIP (a special robbery squad)), the Bronx Homicide Task Force was jammed into a small squad room on the second floor of the rundown 48th precinct. Buried under the hulking pylons of an elevated section of the Cross Bronx Expressway, the 4-8 was a dingy but vibrant stationhouse built in a style that would have made a soviet architect swoon for it’s brutal unadorned efficiency.

The entrance, facing the underside of the highway, opens into a reception area reminiscent of Hill Street Blues. Walking in, Matt and Scott are treated to a typical NYPD tableau: a large central desk, filled with baskets of forms, packed with milling uniformed cops and presided over by a disaffected desk sergeant. On the side, more cops--pairs and trio’s gathered around corkboards jammed with flyers—union messages, wanted posters, and row upon row of recent regulations.

“I’m here for the line up—the homicide.” I tell the Sargent.

“Who’re they?” is all he asks me motioning toward Matt and Scott.

“They’re with me.” I say. “Investigators.”

“Have a seat,” the Sergeant says, gruffly picking up a phone and motioning toward a row of uncomfortable chairs pushed up against the opposite wall. Five minutes later we’re cleared, and head upstairs.

Walking into the Homicide Task Force office, I pass through knee high swivel gates -- saloon doors for Lilliputians. It has the feel of stalking onto the Wild West.

Infante is waiting.

“He’s over there.” is all he says, hooking a thumb toward the cage where John is sitting.

It’s 7:35 at night and while most of the kids I went to law school with are sitting around fancy conference rooms in six hundred dollar loafers, or heading home to suburban houses, I’m in the middle of the Bronx in a pair of dirty blue jeans about to meet a supposed murderer.

I couldn’t be happier.

“Mr. Katzman,” I say, walking over to the bars, and slipping a card through them. “My Name is David Feige, and I’m gonna be your lawyer. These two guys,” I nod at Matt and Scott, “are investigators from my office, they’re just here to watch.”

John regards me with warm eyes and an easy smile. I lean in, face pressed up against the bars, back to the hubbub of the homicide task force room. I haven’t yet seen John’s RAP sheet, and have no idea whether or not he’s been through the system before so I start with the basics:

“Mr. Katzman,” I say carefully, “I don’t know much about what’s up here, so all I can tell you is this: They’re looking at you for a homicide, they wanna do a lineup, and that means we gotta be serious, and we gotta be careful. Now I don’t know if you’ve said anything to them yet but…”

John cuts me off. “I’m familiar with the process.” he says evenly. “It’s alright…I understand. I haven’t made any statements…” He trails off and I smile.

Now I know what I’m dealing with.

Interviewing clients at a precinct can be a dangerous proposition. Most of the time, they’re desperate to get to a lawyer—desperate to explain their side of the story, na├»vely certain that they can talk or explain their way out from behind the bars. Many of them have already made statements to the police, and some are baffled as to why the explanation hasn’t proved sufficient to set them free. Faced with a lawyer, many clients wrongly think that re-iterating their statement will help, and that once the lawyer is convinced, it’s a simple matter to set them free.

In that, as in many things, they are wrong.

Generally, I preempt any such discussion by making clear at the outset that I don’t want to talk about the case or lack of a case. Leaning further into the bars hands on either side of my head, I make this point to John. “I don’t want to discuss anything about what might or might not have happened right now,” I tell him, “so everything we talk about tonight, is just gonna be about procedure.”

John, has no illusions. “No problem at all.” he says.

I like him already.

“And by the way Mr. Katzman…” I nod as my right hand, palm down, snakes through the bars, fingers covering the cigarette pack below. Reaching out, knowing exactly what is going on, John holds my gaze, while takes my hand gently, relieving me of the Newports.

“Thanks for coming down.” he smiles.

“My pleasure.”

Newports are a sure fire way to start off on the right foot with a client. A sealed pack of Newport 100’s—(sealed to protect me against any allegation of passing real contraband) slipped wordlessly between the bars, just after I introduce myself—is an unspoken proclamation of empathy—I know you’re stressed out, I know being in a cage really sucks—I know you want answers that I can’t provide. But I know the drill, I’ll bend the rules and right now this is about the most I can do for you.

Cops use this as well. Newports are the perfect gift. They are (or were until they were banned from Riker’s recently) a favored form of jailhouse currency—worth favors and commissary all around the island. Slipping someone a pack, assuming they’re not fresh faced and scared (in which case they’ll just get jumped and robbed of the cigs), will put them in good stead for their first week or so on the inside.

At 7:45, Infante still has no fillers. I hand him a written request asking him to do the lineup a particular way; he throws it in the garbage.

“I’m gonna do this my way.” he says.

“Why don’t you and your investigators just wait downstairs.”

Another half an hour.

I call Kim on the cell phone to tell her I’ll be even later than I anticipated. I can imagine her shaking her head on the other end of the phone. “Ok doll.” is all she says.

Somewhere around 8:15, three hours after Infante assured me he had his fillers, five men walk in, herded by two uniformed officers. Ranging from 5’ 6” and 150 pounds to 6’2” and 235, they seem to have little or nothing in common with John who is 5’10” and 210 pounds. The men file by, joking with one another as they ascend the steps.

Twenty minutes pass, and finally Infante is ready.


“Everybody ready?” Infante asks. And then, without waiting for an answer, he turns, and heads for the viewing room.

And there, in the narrow room, my back pressed up against the wall, two extra detectives crowding in, I get my first look at the witnesses against John. Two sharp raps on the one way glass. Everyone stiffens. The blinds go up.

“See anyone you recognize?” Infante asks coolly, as a wan looking woman scans the lineup.

Seconds tick by in agonizing silence as she looks back and forth among the men before her.

“Take your time.” Infante says, “No one can see you…” his voice trails off.

“I don’t see anyone.”

“Take your time.” Infante again—an edge in his voice.

Seconds tick by.

“I don’t see anyone.” the woman repeats feebly, seeming confused.

“Just try to remember…” Infante again, it’s been 45 seconds maybe more, the tension is palpable—Infante is trying to force a pick…

”She just said she doesn’t see anyone.” I say sharply.

“Quiet counselor!” Infante snaps, but my voice has refocused the mounting tension.

“Sorry.” the witness says simply. And she’s led out. The blinds come down. Infante is glaring at me.

“One more.” it’s another detective from the squad—ready to bring in the next witness. Once again, the lights in the little room go off. There is the rap on the window, the stiffening. A man this time, a tall African American man with darting eyes. It’s unclear whether he is high or just nervous, but he stoops toward the window peering carefully through it.

“See anyone?” Infante asks.

The man starts to make a light humming sound, like he’s thinking.

“Take your time…” Infante urges, while the man seems like he’s going to say something any moment. His lips are pursed and he’s still making that gentle humming sound. I’m counting the seconds off, trying to keep track of how long it’s taking him when he finally says something….

“Nope”.

That’s it. Infante is visibly upset.

“Look again!” he says sharply. My heart is racing, and I’m trying to decide whether or not to interrupt again, the prospect of two no-hits in a lineup making the entire evening seem like a very worthwhile temporal investment. The guy still hasn’t said anything. It’s been over a minute.

“Are you sure?” Infante says. “No one can see you…don’t be afraid.”

The man is shaking his head, but Infante’s urging seems to fluster him. He is taking one more look—almost exaggerating the motions of attentiveness when I finally say

“Seems like that’s a no.”

“Yeah.” says the guy. “I don’t see no-one”.

“Thanks for coming in.” Infante says, but the tone makes it clear that the end of the sentence is “you fucking skell.”

I make a note on my pad. Two no hits. The lineup room door is opened, and John is escorted back to the cell.

The fillers relax, tearing off their fake moustaches, and signing the lineup vouchers so they can get their ten bucks.

“Stay calm.” I tell John standing at the gate to the cell. “It was two no hits.”

He just nods.

I ask Infante for copies of the lineup polaroids.

“Forget it.” he snaps, you’ll get ‘em in discovery.

I fix him with serious gaze “Detective, with two no-hits, and no further witnesses, I assume you’ll be releasing my client?”

Infante ignores me.

Another detective ambles over. “What happened?” he asks.

“Two no hits.” Infante says.

The other cop raises an inquisitive eyebrow, but Infante nods sharply hooking a thumb toward the cage where John is standing:

“Book him anyway.”

Thursday

Bit o' Book...

I'm spending a lot of time these days editing the book, chopping out sentences and paragraphs and pages to move the narrative along. As it turns out, there are a few occasions when I'm on the fence about cutting things--some of them will get chopped and wind up...well...here. So without further ado, some over-written scraps for the wasteheap of excess verbiage...

After a few years of being a public defender, you realize that are two states of being in the world: In and Out. In meaning in jail. Out meaning free. Somehow, against this essential dichotomy, every other distinction pales. Black and white, rich and poor, vicious and passive all fade next to the essential question of self-determination. Some of us are able to walk where we like, rest or move at will, eat or try to when we are hungry. Others are manacled, move when told to, eat on someone else’s schedule, and are shipped like chattel to points of another’s desiring. Of my first three cases of the morning, James, is out, Jesus and Antoine are in.

Up in the Bronx, once you’re in, you’re pretty much in. And once you’re out, you’re pretty likely to stay out. A physicist might imagine in and out like phase change points. Moving water that few degrees between –1 and 1 or between 99 and 101 takes a lot more energy than anywhere else in the otherwise linear progression of the energy /temperature graph. And just as it takes a lot of energy to put someone in—the lawyers fight like hell, the families cry, there’s extra paperwork to do, and it takes a lot of guts to let someone out: the prosecutors fight like hell, invoking the crying of the victim’s family, and there’s extra paperwork to do. As a result, the culture in the Bronx, tends to disfavor the capricious changing of this essential state of being. And so, unlike other places, in the Bronx, In and Out tend to be fairly static categories, set early in a case and pretty much constant until the resolution of the situation.

In Manhattan, by contrast, people are walking out and stepping in all over the place. When the prosecution misses a deadline or fails to be ready for trial for a long time, judges will actually consider releasing a defendant. Of course, when the prosecution becomes ready again, the same judges have no compunction about putting them right back in jail again. This fact suffuses the Manhattan courthouse with an edgy vigor predicated on the accurate notion that no one is safe. Clients who come to court free, often leave locked down behind the steel mesh windows of a blue prison bus. (Bud Goodman here?) In the Bronx, on the other hand, things feel much more casual—the possibility of imminent incarceration more a vague reality than an immediate fear.

Riot at San Quentin

A Section of San Quentin: " State Prison remained locked down a day after one of the largest riots at the facility in more than two decades

Wednesday

No No Not Nutriloaf!

First a confession: I ate prison food yesterday. I decided that it was important to actually understand what it is we serve to our inmates. Now let's be clear: I LOVE to eat. I ask for seconds on airplanes for heaven's sakes. But what I saw yesterday at Graterford prison was awful--a "turkey" product even I couldn't stomach, a slice of "meat" that was literally impossible to saw through with my plastic knife, and "apple juice" that tasted more like paint thinner.

This prompted some thinking about the various and legion indignities of incarceration. And just then, in the midst of my musing on prisons and cuisine, I find this truly foul article about a truly foul idea:

Nutriloaf.



Ten ingredients make up "nutriloaf," an intentionally unappetizing yet fully nutritious meal that may soon be served to inmates causing trouble within Vermont's prisons through such behavior as throwing food or bodily fluids.

What do prison officials think of Nutriloaf?

"It changes behavior," said Bob Kupec, facilities executive with the Department of Corrections.

"As you eat this you notice the loss of sodium and sugar," said Corrections Commissioner Rob Hofmann.

Aside from serving as culinary castigation, the loaf offers other advantages. It can be served without potentially dangerous utensils and it doesn't lend itself to smearing or throwing like some cafeteria foods, Hofmann said.

Here is the recipe:

6 slices whole wheat bread, finely chopped
4 ounces non-dairy cheese, finely grated
4 ounces raw carrots, finely grated
12 ounces canned spinach, drained
4 ounces seedless raisins
2 cups Great Northern beans, cooked and drained
4 tablespoons vegetable oil
6 ounces tomato paste
8 ounces powdered nonfat or skim milk
6 ounces potato flakes

Make sure all wet items are drained. Mix all ingredients in a bowl, either by kneading with hands (wearing plastic gloves) or with a spoon. The mixture should be stiff and just moist enough to spread. Form three loaves in glazed bread pans. Place pans in oven in a pan containing water to keep bottom of loaf from burning. Bake at 325 degrees for about 45 minutes, until each loaf reaches an internal temperature of 155 degrees. Makes three loaves, or three meals, each containing 940 calories.

(Wanna read what corrections officials talk about when they talk about nutriloaf? click here

Virginia Still Lagging...

An editorial in a recent local Virginia paper noted that "Virginia's much-reviled, lowest-in-the-nation mandatory compensation caps for court-appointed attorneys remain a joke. Until recently, a charge punishable by life in prison earned a lawyer no more than $1,096, even for a full-fledged trial.

Defense of lesser crimes, and particularly those committed by juveniles, were even more ludicrously compensated. An extra $2 million allotted by the General Assembly last session improves those numbers a smidgen. The $1,096 inched up to $1,186, for instance. But that's still a ridiculous sum for, say, a five-day, first-degree-murder trial.

The fairest plan would be to remove the caps altogether, paying attorneys based on actual work."

It was a worthwhile point, well made.

Welcome to the United States

"Foreign citizens who change planes at airports in the United States can legally be seized, detained without charges, deprived of access to a lawyer or the courts, and even denied basic necessities like food, lawyers for the government said in Brooklyn federal court yesterday."

From the prison industrial front...

I had the pleasure of spending the day in a maximum security facility today--in Graterford PA. It was amazing--long tiers of cells, men in the yard.


More on that soon. Meanwhile:

"If the Will County Jail expansion opens in 2008 as planned, its inmate population is likely to reach capacity the very same year, county officials acknowledged Monday. Officials also confirmed that they have yet to figure out how to pay the extra $8 million or more a year the larger jail will cost to run. As a result, planning for yet another jail addition is likely to get under way soon after the expansion opens, and voters could be asked if a new sales tax is needed to pay for day-to-day operations, officials said."

Monday

Perhaps we should forgo elections...

It's a little scary when the largest donors to judicial races are coal and mining interests or corporate lobbying groups assembled to generate tort reform...

This just in:

In the wake of last years costliest and possibly nastiest elections ever for state Supreme Court justices, a few states are drawing up changes to curb threats to the impartiality and fairness of their legal systems.

At the state level, it isn't grueling Senate confirmation hearings at the center of judicial battles, as is the prospect in store for U.S. Supreme Court nominee John Roberts. It's soaring campaign spending and bare-knuckled special interest politics.

At least one state -- West Virginia -- is considering scrapping judicial elections altogether after state voters were bombarded by more than 4,000 TV attack ads in 2004 during the most expensive high court race in state history.

West Virginia is one of 22 states that elect their high court justices in head-to-head races. "

Sunday

Sex Offenders Banned From Storm Shelters

That's right--Florida Sex offenders should go to prison if the weather gets bad. After all what better place to seek comfort and shelter from the storm than a prison?



The policy was created to keep sex offenders and predators away from children, said Robby Cunningham, a spokesman for the Department of Corrections. Genius.

Saturday

D.A pulls rank, gets woman arrested...

This from Crime and Federalism..

Friday

Deaf Mute Wrongly Held in Jail for Two Years...

Imagine what it's like when you can't tell your jailers that you're supposed to be free. That's exactly what happened to Joseph Heard.

Mr. Heard was illegally held in the D.C. Jail for nearly two years after a court ordered him to be released from custody. During his unlawful imprisonment, the District never provided Mr. Heard with any communication assistance, even though he is deaf and unable to speak. As a result, he was unable to effectively communicate to anyone the fact that he was being
illegally held. While he was illegally detained, the private contractor --the Center for Correctional Health Policy and Studies, Inc. (CCHPS) --performed medical testing on Mr. Heard and gave him potentially-dangerous anti-psychotic medications, all without communicating to him the dangers of those treatments or obtaining his informed consent.

Wednesday

Nudist's naked burial wish denied

He came into this world naked, spent much of his time in it nude, but will - against his specific wishes - depart it fully clothed.

Robert Norton, of Pekin, Illinois, was often prosecuted during his lifetime for gardening and wandering outside his house in the nude.

Clothed in his coffin:

Brenda Loete said she never spoke to Norton despite living next door to him for more than a decade.

"We didn't really know him. We just had him arrested," she said.

She had spent years taking her daughter to the park rather than letting her play in the garden because of the naked old man next door, she said.

"Normally, if we had him arrested in the spring he'd be gone for the summer and we wouldn't have to worry about him until the next spring."

The cycle of arrest and prosecution lasted over four decades, until the World War II veteran was admitted to a nursing home.

He fought 20 arrests for indecency since his first in 1962, arguing that he had a constitutional right to public nakedness, the Associated Press reported.

Eight Rape Victims can be Wrong...

On Wednesday, Miami-Dade prosecutors say they will ask a state judge to vacate Luis Diaz's convictions and sentences based on DNA evidence that was not available 25 years ago.

Mr. Diaz says he was never a rapist. So do his children, former wife and colleagues. But in 1980, eight assault victims swore otherwise, and that was enough to send Mr. Diaz, a fry cook and father of three, to prison for life.

Lawyers for Mr. Diaz, now 67, say that his case is the best evidence yet that witnesses can make devastating mistakes, and that such testimony, however earnest and convincing, cannot be trusted.


Tuesday

Rock On Howard...

I am so loving Broward County Public Defender Howard Finkelstein. First the no meet and plead plan and now this:

Howard and Chiles
"In a fiery letter to judges this week, Finkelstein charged that defendants who can afford to hire a private attorney get their cases heard first in some courtrooms while the poor with public defenders must wait. (Exactly--welcome to my world...)

'A judge's practice of calling public-defender cases last signifies to our clients that the judge sees them as less important than private attorney clients and that their lawyer is not respected,' Finkelstein wrote. 'Routinely pushing my clients to the back of the bus is unacceptable.'

It's Finkelstein's warning about the state Code of Judicial Conduct that has judges in an uproar. In the letter, Finkelstein noted that the code requires judges to avoid the appearance of prejudice based on socioeconomic status. Judges who violate the code can be removed from office. Some judges are interpreting Finkelstein's mention of the code as a thinly veiled threat to file complaints against them, says Broward's Chief Judge Dale Ross.

Even before the letter, Finkelstein had the judges upset because his office filed a complaint last month against Circuit Judge Leonard Feiner. The complaint accuses Feiner of making biased statements about the courthouse's Haitian cleaning crew for moving his phone, coffee mug and desk supplies on his courtroom bench. "

Go Howard!