In her wonderful way, Dahlia Lithwick has put together her own top 10 list for 2006--of The 10 most outrageous civil liberties violations of 2006. No surprise, it's a wonderful read including:
Number 10: Attempt to Get Death Penalty for Zacarias Moussaoui...
Number 6: The State-Secrets Doctrine...
Number 2: The Military Commissions Act of 2006
And for number 1, just click the link above...
Saturday
Friday
Ice Mass Snaps Free in Arctic
A little off topic I know, but the crazy warm weather and terrifying and substantive climactic changes have got me even more concerned than usual...
Rape Charges Dropped The Rest of the Case Will Follow Soon
Rape charges were dropped in the Duke case today. Setting the stage for a trial on charges that carry just as much time. It's a perfect prosecutorial trick--one I've seen prosecutors use all the time. Use penalty inflation to your advantage. The classic example in New York (which the Court of Appeals has mercifully finally put a stop to) was to charge every defendant with two kinds of Murder--Intentional and Depraved. That way when the jury acquitted of intentional murder and convicted of Depraved, jurors thought they were compromising, when in fact, the verdict was a distinction without a difference and almost everyone convicted that way got slammed just as hard at sentencing as someone convicted of the intentional murder.
So here, the DA has just fiddled with the charges but not the life-destroying penalties.
Duke DA Mike Nifong
All that said, reading between the lines, I think the case goes away in the next few months. The ostensible reason is that the CW is going to have some doubts about her identification. That will allow the DA to cover his ass just enough to possibly avoid the disciplinary charges I think might be (and probably should be) filed against him.
Do let's bear in mind though: the conduct of the DA here is disgusting, but it is by not means unusual. Sad as it seems, this is how the game is played. Thank heavens we have Duke to hold up a mirror to the system, but woe be to those who make the mistake of believing this unusual.
So here, the DA has just fiddled with the charges but not the life-destroying penalties.
Duke DA Mike Nifong
All that said, reading between the lines, I think the case goes away in the next few months. The ostensible reason is that the CW is going to have some doubts about her identification. That will allow the DA to cover his ass just enough to possibly avoid the disciplinary charges I think might be (and probably should be) filed against him.
Do let's bear in mind though: the conduct of the DA here is disgusting, but it is by not means unusual. Sad as it seems, this is how the game is played. Thank heavens we have Duke to hold up a mirror to the system, but woe be to those who make the mistake of believing this unusual.
The Bankrupt-Your-Family Calling Plan
The loathsome gouging of incarcerated inmates by politically connected phone companies has long been one of those issues that is regularly raised and never solved. Still, it's heartening to see this excellent editorial from the NYT.
Wednesday
I'm spending Chanukah
For the first time in years, well, actually maybe ever, I am actually doing what Tom Lehrer so famously sang about: spending Chanukah in Santa Monica. And though i'm not quite wearing sandals, lighting candles by the sea, I did watch a beautiful sunset over the pacific.
And I'm not sure whether it's the pacific effect of the Pacific, general holiday happiness or whether I'm just tired from the transcontinental flight (which left at 6:00 a.m), but for some reason I found myself particularly pleased by a totally unsolicited e-mail from someone I've never met, who read the book and here as December draws to a close called it "the best book I've read all year." (and yes, he goes on to make clear that he reads a lot of books). So happy Chanukah to me.
And I'm not sure whether it's the pacific effect of the Pacific, general holiday happiness or whether I'm just tired from the transcontinental flight (which left at 6:00 a.m), but for some reason I found myself particularly pleased by a totally unsolicited e-mail from someone I've never met, who read the book and here as December draws to a close called it "the best book I've read all year." (and yes, he goes on to make clear that he reads a lot of books). So happy Chanukah to me.
Sunday
The AG Weighs In...
Here's an interesting coda to my ongoing debate with several people about my friend Randy Cohen's column in the Ethicist a few weeks ago...
For those of you who followed this, Randy was besieged with letters insisting that he had made a legal error in advising silence to an IT guy who found what he suspected was child porn on his bosses computer. Now having been consulted concerning the legal implications, my analysis was on the line here as well. But what appeared today in the letters section of the NYTM feels, well, vindicating. There's actually a letter from the Attorney General of the United States. And while he vociferously disagrees with Randy's position, he makes no attempt at all to argue that there is a legal obligation to report.
Ah victory. Here's the letter...
The AG Himself...
The Boss's Computer
When a technician discovered child pornography on the company president's computer, the Ethicist advised "silence" (Dec. 3). This advice was reckless and naïve.
Each image of child pornography is a crime scene, and its possession is a felony in 42 states and under federal law. Furthermore, reproducing such images again victimizes the innocent child. The Ethicist flippantly advises silence because speaking up would be "too ineffectual in protecting children." But real children have been rescued by the discovery of images. Without the images, we cannot find and rescue victims or punish the predators. The Ethicist demonstrates a disappointing lack of understanding of how law enforcement works.
This is unacceptable, and I urge all Americans to reject this poor advice. A child's life could hang in the balance all because a self-described "ethicist" muses over vague excuses rather than advising immediate action.
Alberto R. Gonzales
United States Attorney General
Washington
For those of you who followed this, Randy was besieged with letters insisting that he had made a legal error in advising silence to an IT guy who found what he suspected was child porn on his bosses computer. Now having been consulted concerning the legal implications, my analysis was on the line here as well. But what appeared today in the letters section of the NYTM feels, well, vindicating. There's actually a letter from the Attorney General of the United States. And while he vociferously disagrees with Randy's position, he makes no attempt at all to argue that there is a legal obligation to report.
Ah victory. Here's the letter...
The AG Himself...
The Boss's Computer
When a technician discovered child pornography on the company president's computer, the Ethicist advised "silence" (Dec. 3). This advice was reckless and naïve.
Each image of child pornography is a crime scene, and its possession is a felony in 42 states and under federal law. Furthermore, reproducing such images again victimizes the innocent child. The Ethicist flippantly advises silence because speaking up would be "too ineffectual in protecting children." But real children have been rescued by the discovery of images. Without the images, we cannot find and rescue victims or punish the predators. The Ethicist demonstrates a disappointing lack of understanding of how law enforcement works.
This is unacceptable, and I urge all Americans to reject this poor advice. A child's life could hang in the balance all because a self-described "ethicist" muses over vague excuses rather than advising immediate action.
Alberto R. Gonzales
United States Attorney General
Washington
Friday
Florida Halts Executions...
How's this for a big Oops...
Executions in Florida normally take no more than about 15 minutes, with the inmate rendered unconscious and motionless within three to five minutes. But yesterday Angel Diaz appeared to be moving 24 minutes after the first injection, grimacing, blinking, licking his lips, blowing and appearing to mouth words. So they dosed him again.
As a result of the chemicals going into Diaz's arms around the elbow, he had an 12-inch chemical burn on his right arm and an 11-inch chemical burn on his left arm, Hamilton said. As a result of this fiasco, Florida has halted executions, at least for now.
Executions in Florida normally take no more than about 15 minutes, with the inmate rendered unconscious and motionless within three to five minutes. But yesterday Angel Diaz appeared to be moving 24 minutes after the first injection, grimacing, blinking, licking his lips, blowing and appearing to mouth words. So they dosed him again.
As a result of the chemicals going into Diaz's arms around the elbow, he had an 12-inch chemical burn on his right arm and an 11-inch chemical burn on his left arm, Hamilton said. As a result of this fiasco, Florida has halted executions, at least for now.
Wednesday
My Latest Book Review...
In today's Washington Post, I review "Sex, Lies and Handwriting: A Top Expert Reveals the Secrets Hidden in Your Handwriting. The piece is titled You Can See It In Their I's .
Monday
Interesting exchange...
First an observation: There are few things scarier than watching a rodeo in the big bar at Hooters Las Vegas. Trust me, you don’t want to know…
Secondly, a lengthy follow up to something I wrote last week about some of the critical mail my friend Randy Cohen was getting based on his column in the Ethicist about 10 days ago. And though that probably should have been the end of things, it seems I just couldn’t keep well enough alone. Looking around, I found several letters to local papers that made the infuriating mandatory reporter argument, and well, I went a bit off.
Below is a rather amazing correspondence I had with the author of one such letter to the editor. I’ve taken out his/her name and omitted a few details as this was originally a private e-mail exchange. If nothing else, it was another great lesson in the power of the internet to parse questions like this and provide direct access to people who opine on things and even occasionally to come to some comfortable place of disagreement.
It all started when I saw the letter. Maybe because I was bored, or maybe because I got genuinely angry at what I felt was the very public dissemination of misinformation, I fired off the following…
Dear Mr -------,
I was distressed to read your letter to the -------. While you are certainly entitled to your opinions concerning ethics, you would be wise to avoid making assertions about legal matters. You are quite wrong about the law in Texas, (which is why the only people making mandatory reporter arguments in this context are social workers and child advocates rather than lawyers) and you do the public a terrible disservice by spreading misinformation.
What is your basis for making the allegation that the Texas statute makes this individual a mandatory reporter?
Do you have any evidence of anyone in a similar situation being prosecuted for such an offense?
The law you cite is quite similar to many around in the US. Almost every jurisdiction has child protective laws on the books and most impose reporting requirements. But here, as with everywhere, the condition precedent to the reporting requirement is some specific knowledge of a child being harmed. This is the critical bit--"A" child, as used in the statute, contemplates a particular child and the goal of the statute is to deal with particular children in danger.
Now if S.M.N had seen a picture of Maggie--his next door neighbor's 10 year old--in a sexually compromising position, then I'd agree he'd likely be obligated to report that abuse--but he'd be telling on Maggie's parents, not on the president of the company, because Maggie's parents had created the conditions contemplated by the statue. Here, with random pictures of unidentifiable kids who may or may not be in the jurisdiction, there is certainly no obligation at all. Under your misguided and bizarre reading of the statue, if a magazine published a photo of a woman hitting her child, every singe citizen who saw the photo and didn't call authorities would be criminally liable, as would anyone who viewed a U-tube video of random kids playing unsafely. Indeed, under your theory, a picture of a child soldier in Sudan would require a call to alert the authorities that somewhere a child was being harmed. This statue was never meant to penalize such behavior, nor criminalize most of the population and it is dangerous, and irresponsible to suggest otherwise publicly.
Here there is no specificity, no indication even that a subject child might be residing in the jurisdiction. Though it's pretty to think that the law might require such vigilance, absent specificity, it most certainly doesn't.
Yours was a truly shameful instance of ignorance in the service of ideology.
An honest academic would endeavor to correct the situation. I certainly hope you will.
Sincerely,
David Feige
____________________
Dear Mr. Feige,
Thank you for your response to our editorial letter published in the _______this week. Please note that I am an attorney, licensed in Texas, in addition to being a psychologist. As for whether or not there have been any criminal prosecutions of persons for similar offenses, I was in court in Harris County, Texas, three weeks ago and watched a man receive seven years probation for possession of a single picture of a 15 year old nude child in which the face was obscured. There are no evidence that the model was a know person to the man, simply that he was guilty of possession of that picture of some unknown person. The Judge, Brock Thomas, even lectured the defendant, an indicating that he gave a light sentence.
One does not need to know the identity of the child in order to report abuse or neglect and that is not a requirement of the law in our jurisdiction. Child abuse reporting laws are designed not only to protect children but to work in tandem with the criminal code that is designed to punish those who abuse children.
Now, as for required reporting, which seems to be the principle problem you note with our letter -- Texas law is quite clear in making everyone report who has reason to believe that a child has been abused or neglected. Specifically, Texas Family Code Section 261.101 is as follows:
§ 261.101. PERSONS REQUIRED TO REPORT; TIME TO
REPORT. (a) A person having cause to believe that a child's
physical or mental health or welfare has been adversely affected by
abuse or neglect by any person shall immediately make a report as
provided by this subchapter.
(b) If a professional has cause to believe that a child has
been abused or neglected or may be abused or neglected, or that a
child is a victim of an offense under Section 21.11, Penal Code, and
the professional has cause to believe that the child has been abused
as defined by Section 261.001 or 261.401, the professional shall
make a report not later than the 48th hour after the hour the
professional first suspects that the child has been or may be abused
or neglected or is a victim of an offense under Section 21.11, Penal
Code. A professional may not delegate to or rely on another person
to make the report. In this subsection, "professional" means an
individual who is licensed or certified by the state or who is an
employee of a facility licensed, certified, or operated by the
state and who, in the normal course of official duties or duties for
which a license or certification is required, has direct contact
with children. The term includes teachers, nurses, doctors,
day-care employees, employees of a clinic or health care facility
that provides reproductive services, juvenile probation officers,
and juvenile detention or correctional officers.
(c) The requirement to report under this section applies
without exception to an individual whose personal communications
may otherwise be privileged, including an attorney, a member of the
clergy, a medical practitioner, a social worker, a mental health
professional, and an employee of a clinic or health care facility
that provides reproductive services.
(d) Unless waived in writing by the person making the
report, the identity of an individual making a report under this
chapter is confidential and may be disclosed only:
(1) as provided by Section 261.201; or
(2) to a law enforcement officer for the purposes of
conducting a criminal investigation of the report.
If you want to review Texas law on this matter you can go to the Texas Statues at the following website:
http://tlo2.tlc.state.tx.us/statutes/fa.toc.htm
I understand that others may have different views of reporting, just as Randy Cohen did. I have the view expressed in our letter and believe that Texas law requires it. Other jurisdictions may be different. Fair enough.
Now, how in the world did you happen to pick up this letter from a Texas newspaper when you live in New York?
Sincerely,
______
____________________________
Dear Mr. ______,
Thanks for your thoughtful reply. I did check the statute before I wrote you, but my analysis of it is the same. You mention a case in which someone was just sentenced (and presumably required to register as a sex offender, rendering him unemployable) for possession of a single photo in which the face is obscured. If anything such a thing supports Mr. Cohen's position concerning the rather severe sanctions he mentions. The fact that the model wasn't known to the possessor of the image in no way undermines my argument. It goes without saying that the vast number of images are of children unknown to the possessor, nor is that a requirement for securing a conviction in a possession case. But that is not the question here, nor does it rehabilitate your erroneous reading of the statute.
When I asked whether anyone had been prosecuted under the section, I was asking about the failure to report section. Obviously Texas and every other jurisdiction pursues child exploitation and pornography cases very very zealously. So I re-iterate the question: Has any citizen (and here I think we can agree the the definition in the statue would not render the writer of the letter a "professional") been prosecuted for not calling the police concerning harm to an unknown child? I think the answer is obvious--no. Because such charges could not be brought.
Assuming your e-mail renders them, you've just seen a severely malnourished child (one of the sections) and one who is obviously far too young to be carrying a firearm. Will you be calling the police to report these? And if not, how is this distinguishable?
Though almost every jurisdiction has laws similar to the one you cite, there is, so far as I know never been a court anywhere in this country or in Canada that has taken your position or validated your reading of the statute. Moreover, I am interested in how you'd argue the question of harm: does looking at the picture unbeknownst to the child "adversely affect that child's physical or mental health or welfare." And if so how? (bearing in mind that the economic arguments fail in this context) Or is that the production of the photo? If not, what is the specific adverse effect on that child?
Anyway, I came to the letter because Randy is a friend who was deluged by lots of angry mail some of which made the claim that there was a duty to report. Being a conscientious guy he asked me to look into it and tell him what I thought. Given what I've uncovered I believe such suggestions are grossly irresponsible. I came across your letter in looking into the matter, and, you should know wrote to you completely on my own, without asking (nor informing Randy that I was going to do that). I really do think it's dangerous to try to impose on people an obligation particularly one that is as broad as you believe this to be, when there is, in my view, no reasonable legal ground on which to do so.
As I said, I've got no issue with disagreeing with the ethical analysis--as my father used to say, "that's what makes a market" but on the law stuff at least, I still think you might want to consider a retraction.
Best,
David.
________________________
Dear Mr. Feige,
A few years ago there was a criminal case brought In Harris County against some neighbors in an apartment complex where a child died from abuse. Given the extent of the damage done to the child over the course of his short life the prosecuting attorney figured the neighbors had to have known about the abuse and should have reported. I do not know what happened in that case. You are quite correct, failure to report cases would be rare and difficult of proof. The case that I cited in my letter that was edited from the published version is Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) that deals with non-accusatory reporting. For the view of the Texas Supreme Court you might read that case.
You are also correct in that the law seems to require some extreme reporting such as child abuse that we see on television -- Remember Michael Jackson waving his baby over the balcony railing... There is another equitable (in Texas law and equity are in the same court) principle that has to be invoked in such situations -- the law will not require us to do something that is futile (don't flog a dead horse). Our criminal laws are designed, in part, to stop trafficking in materials that society considers offensive, including illegal drugs and child pornography. Trafficking involves a provider and a consumer. Payment for the illegal drugs or images is irrelevant; however, quantity is important to punishment.
If you talk to Mr. Cohen about what you find as you look at this matter, please also indicate to him that both Dr______ and I understand the difference in law and ethics (that comment was edited also) and that analysis under either law or ethics may lead to different conclusions. However, ethics generally set a higher standard of conduct than laws do. We expect that children who are victimized in whatever context deserve protection. The poor zhlub who got seven years probation for a single picture got way more punishment than I would have given him had I been on the bench, but he did need to stop that conduct, just as I believe that the boss in Mr. Cohen's article needs to stop gathering illegal images on his computer.
__________________
Hi Again,
I think we're getting somewhere--and your Michael Jackson analogy is good. The thing is, even there, we KNEW who the kid was--Michel Jackson's child. So with this law, according to your reading, you and most Texans have already comitted a crime by having seen it and not reported it and yet you want to argue that it's even broader? I just don't see it.
And as I said--the neighbor cases in which a tortured kid is screaming for help while getting burned alive are exactly the kinds of cases we SHOULD bring and the instances in which reporting is genuinely mandated. As I said in my first e-mail, if the guy had recognized his neighbor's daughter then in BC and in Texas and in several other jurisdictions, he'd have a duty to report.
Bird, by the way, helps my position--insofar as it expressly declines to adopt the reasoning of Tarasoff setting an even higher standard.
But let me put this another way. You've just admitted to having committed, by your own definition, a crime (re: Michael Jackson). Now am I obligated to report that to the Bar or the licensing board of a professional psychological association? I ask not because I'd do it, but to illustrate the reason that we shouldn't and don't attach consequences to such omissions. Moreover, I'd suggest that if I did (again I won't--it's only hyperbolic) they'd find against my complaint and find that you had no duty to report Michael Jackson, just as this IT guy had no LEGAL duty to report his boss. This is why statutes are construed narrowly and why, in the end, your assertion about duty to report is incorrect.
If I've managed to convince you, do tell the ______ to retract the statement. And if not, it's been a lovely exchange. I'll forward some of this to Randy--I think he'll be interested.
Meanwhile,
Yours in disagreement,
David.
________________________
Dear Mr. Feige,
Remember there is an equitable principle of not flogging a dead horse to be applied to the law rule of reporting. I acknowledge that I violated the Texas reporting rule when I failed to call CPS when I saw Michael Jackson endanger his child but equity suggests that I not be prosecuted for that omission since Texas has no jurisdiction. In the case Mr. Cohen presented, the employee does not know the age of the depicted child or know all the children of the boss, his nieces and nephews, friend's children, etc. to know whether the depicted child is a minor or among those possibly known to the boss; those matters are for the proper authorities to discover. Again I am left to believe that reporting is the best ethical and legal approach to the problem for the employee.
One thing mentioned by Mr. Cohen and rejected was for the employee to clean the hard drive of the questionable images -- that does little except to protect the company. I have tired to find an ethics code for information specialists but have been unsuccessful. However, the one IT person whom I consulted said she would feel obliged to report what was found, at least within the context of the company and perhaps more widely depending upon what was depicted. She has headed several large IT programs; I respect her judgment but understand that since she was worked in public heath care and academic institutions she may be somewhat biased. In your work to discover what the standard for conduct is I hope you will talk with some IT professionals in large corporations to see what they might do with the scenario presented by Mr. Cohen.
______________________
Hi again,
Thanks for this. I will looks around, though in the bit I have done, I've gotten divergent answers (which, of course is why it poses an interesting dilemma in the first place. As to equity as opposed to law, this is precisely the problem: There is little equity in the law in this area and frankly, (as the letters and comments I've seen on this matter amply demonstrate) scant tolerance for dissent. That's precisely why we can't effectively make equitable arguments in court--they come down to either sentencing arguments or jury nullification arguments, and if you're making either of those, you've already lost your license, your livelihood or your liberty.
Thanks for the exchange….
Secondly, a lengthy follow up to something I wrote last week about some of the critical mail my friend Randy Cohen was getting based on his column in the Ethicist about 10 days ago. And though that probably should have been the end of things, it seems I just couldn’t keep well enough alone. Looking around, I found several letters to local papers that made the infuriating mandatory reporter argument, and well, I went a bit off.
Below is a rather amazing correspondence I had with the author of one such letter to the editor. I’ve taken out his/her name and omitted a few details as this was originally a private e-mail exchange. If nothing else, it was another great lesson in the power of the internet to parse questions like this and provide direct access to people who opine on things and even occasionally to come to some comfortable place of disagreement.
It all started when I saw the letter. Maybe because I was bored, or maybe because I got genuinely angry at what I felt was the very public dissemination of misinformation, I fired off the following…
Dear Mr -------,
I was distressed to read your letter to the -------. While you are certainly entitled to your opinions concerning ethics, you would be wise to avoid making assertions about legal matters. You are quite wrong about the law in Texas, (which is why the only people making mandatory reporter arguments in this context are social workers and child advocates rather than lawyers) and you do the public a terrible disservice by spreading misinformation.
What is your basis for making the allegation that the Texas statute makes this individual a mandatory reporter?
Do you have any evidence of anyone in a similar situation being prosecuted for such an offense?
The law you cite is quite similar to many around in the US. Almost every jurisdiction has child protective laws on the books and most impose reporting requirements. But here, as with everywhere, the condition precedent to the reporting requirement is some specific knowledge of a child being harmed. This is the critical bit--"A" child, as used in the statute, contemplates a particular child and the goal of the statute is to deal with particular children in danger.
Now if S.M.N had seen a picture of Maggie--his next door neighbor's 10 year old--in a sexually compromising position, then I'd agree he'd likely be obligated to report that abuse--but he'd be telling on Maggie's parents, not on the president of the company, because Maggie's parents had created the conditions contemplated by the statue. Here, with random pictures of unidentifiable kids who may or may not be in the jurisdiction, there is certainly no obligation at all. Under your misguided and bizarre reading of the statue, if a magazine published a photo of a woman hitting her child, every singe citizen who saw the photo and didn't call authorities would be criminally liable, as would anyone who viewed a U-tube video of random kids playing unsafely. Indeed, under your theory, a picture of a child soldier in Sudan would require a call to alert the authorities that somewhere a child was being harmed. This statue was never meant to penalize such behavior, nor criminalize most of the population and it is dangerous, and irresponsible to suggest otherwise publicly.
Here there is no specificity, no indication even that a subject child might be residing in the jurisdiction. Though it's pretty to think that the law might require such vigilance, absent specificity, it most certainly doesn't.
Yours was a truly shameful instance of ignorance in the service of ideology.
An honest academic would endeavor to correct the situation. I certainly hope you will.
Sincerely,
David Feige
____________________
Dear Mr. Feige,
Thank you for your response to our editorial letter published in the _______this week. Please note that I am an attorney, licensed in Texas, in addition to being a psychologist. As for whether or not there have been any criminal prosecutions of persons for similar offenses, I was in court in Harris County, Texas, three weeks ago and watched a man receive seven years probation for possession of a single picture of a 15 year old nude child in which the face was obscured. There are no evidence that the model was a know person to the man, simply that he was guilty of possession of that picture of some unknown person. The Judge, Brock Thomas, even lectured the defendant, an indicating that he gave a light sentence.
One does not need to know the identity of the child in order to report abuse or neglect and that is not a requirement of the law in our jurisdiction. Child abuse reporting laws are designed not only to protect children but to work in tandem with the criminal code that is designed to punish those who abuse children.
Now, as for required reporting, which seems to be the principle problem you note with our letter -- Texas law is quite clear in making everyone report who has reason to believe that a child has been abused or neglected. Specifically, Texas Family Code Section 261.101 is as follows:
§ 261.101. PERSONS REQUIRED TO REPORT; TIME TO
REPORT. (a) A person having cause to believe that a child's
physical or mental health or welfare has been adversely affected by
abuse or neglect by any person shall immediately make a report as
provided by this subchapter.
(b) If a professional has cause to believe that a child has
been abused or neglected or may be abused or neglected, or that a
child is a victim of an offense under Section 21.11, Penal Code, and
the professional has cause to believe that the child has been abused
as defined by Section 261.001 or 261.401, the professional shall
make a report not later than the 48th hour after the hour the
professional first suspects that the child has been or may be abused
or neglected or is a victim of an offense under Section 21.11, Penal
Code. A professional may not delegate to or rely on another person
to make the report. In this subsection, "professional" means an
individual who is licensed or certified by the state or who is an
employee of a facility licensed, certified, or operated by the
state and who, in the normal course of official duties or duties for
which a license or certification is required, has direct contact
with children. The term includes teachers, nurses, doctors,
day-care employees, employees of a clinic or health care facility
that provides reproductive services, juvenile probation officers,
and juvenile detention or correctional officers.
(c) The requirement to report under this section applies
without exception to an individual whose personal communications
may otherwise be privileged, including an attorney, a member of the
clergy, a medical practitioner, a social worker, a mental health
professional, and an employee of a clinic or health care facility
that provides reproductive services.
(d) Unless waived in writing by the person making the
report, the identity of an individual making a report under this
chapter is confidential and may be disclosed only:
(1) as provided by Section 261.201; or
(2) to a law enforcement officer for the purposes of
conducting a criminal investigation of the report.
If you want to review Texas law on this matter you can go to the Texas Statues at the following website:
http://tlo2.tlc.state.tx.us/statutes/fa.toc.htm
I understand that others may have different views of reporting, just as Randy Cohen did. I have the view expressed in our letter and believe that Texas law requires it. Other jurisdictions may be different. Fair enough.
Now, how in the world did you happen to pick up this letter from a Texas newspaper when you live in New York?
Sincerely,
______
____________________________
Dear Mr. ______,
Thanks for your thoughtful reply. I did check the statute before I wrote you, but my analysis of it is the same. You mention a case in which someone was just sentenced (and presumably required to register as a sex offender, rendering him unemployable) for possession of a single photo in which the face is obscured. If anything such a thing supports Mr. Cohen's position concerning the rather severe sanctions he mentions. The fact that the model wasn't known to the possessor of the image in no way undermines my argument. It goes without saying that the vast number of images are of children unknown to the possessor, nor is that a requirement for securing a conviction in a possession case. But that is not the question here, nor does it rehabilitate your erroneous reading of the statute.
When I asked whether anyone had been prosecuted under the section, I was asking about the failure to report section. Obviously Texas and every other jurisdiction pursues child exploitation and pornography cases very very zealously. So I re-iterate the question: Has any citizen (and here I think we can agree the the definition in the statue would not render the writer of the letter a "professional") been prosecuted for not calling the police concerning harm to an unknown child? I think the answer is obvious--no. Because such charges could not be brought.
Assuming your e-mail renders them, you've just seen a severely malnourished child (one of the sections) and one who is obviously far too young to be carrying a firearm. Will you be calling the police to report these? And if not, how is this distinguishable?
Though almost every jurisdiction has laws similar to the one you cite, there is, so far as I know never been a court anywhere in this country or in Canada that has taken your position or validated your reading of the statute. Moreover, I am interested in how you'd argue the question of harm: does looking at the picture unbeknownst to the child "adversely affect that child's physical or mental health or welfare." And if so how? (bearing in mind that the economic arguments fail in this context) Or is that the production of the photo? If not, what is the specific adverse effect on that child?
Anyway, I came to the letter because Randy is a friend who was deluged by lots of angry mail some of which made the claim that there was a duty to report. Being a conscientious guy he asked me to look into it and tell him what I thought. Given what I've uncovered I believe such suggestions are grossly irresponsible. I came across your letter in looking into the matter, and, you should know wrote to you completely on my own, without asking (nor informing Randy that I was going to do that). I really do think it's dangerous to try to impose on people an obligation particularly one that is as broad as you believe this to be, when there is, in my view, no reasonable legal ground on which to do so.
As I said, I've got no issue with disagreeing with the ethical analysis--as my father used to say, "that's what makes a market" but on the law stuff at least, I still think you might want to consider a retraction.
Best,
David.
________________________
Dear Mr. Feige,
A few years ago there was a criminal case brought In Harris County against some neighbors in an apartment complex where a child died from abuse. Given the extent of the damage done to the child over the course of his short life the prosecuting attorney figured the neighbors had to have known about the abuse and should have reported. I do not know what happened in that case. You are quite correct, failure to report cases would be rare and difficult of proof. The case that I cited in my letter that was edited from the published version is Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) that deals with non-accusatory reporting. For the view of the Texas Supreme Court you might read that case.
You are also correct in that the law seems to require some extreme reporting such as child abuse that we see on television -- Remember Michael Jackson waving his baby over the balcony railing... There is another equitable (in Texas law and equity are in the same court) principle that has to be invoked in such situations -- the law will not require us to do something that is futile (don't flog a dead horse). Our criminal laws are designed, in part, to stop trafficking in materials that society considers offensive, including illegal drugs and child pornography. Trafficking involves a provider and a consumer. Payment for the illegal drugs or images is irrelevant; however, quantity is important to punishment.
If you talk to Mr. Cohen about what you find as you look at this matter, please also indicate to him that both Dr______ and I understand the difference in law and ethics (that comment was edited also) and that analysis under either law or ethics may lead to different conclusions. However, ethics generally set a higher standard of conduct than laws do. We expect that children who are victimized in whatever context deserve protection. The poor zhlub who got seven years probation for a single picture got way more punishment than I would have given him had I been on the bench, but he did need to stop that conduct, just as I believe that the boss in Mr. Cohen's article needs to stop gathering illegal images on his computer.
__________________
Hi Again,
I think we're getting somewhere--and your Michael Jackson analogy is good. The thing is, even there, we KNEW who the kid was--Michel Jackson's child. So with this law, according to your reading, you and most Texans have already comitted a crime by having seen it and not reported it and yet you want to argue that it's even broader? I just don't see it.
And as I said--the neighbor cases in which a tortured kid is screaming for help while getting burned alive are exactly the kinds of cases we SHOULD bring and the instances in which reporting is genuinely mandated. As I said in my first e-mail, if the guy had recognized his neighbor's daughter then in BC and in Texas and in several other jurisdictions, he'd have a duty to report.
Bird, by the way, helps my position--insofar as it expressly declines to adopt the reasoning of Tarasoff setting an even higher standard.
But let me put this another way. You've just admitted to having committed, by your own definition, a crime (re: Michael Jackson). Now am I obligated to report that to the Bar or the licensing board of a professional psychological association? I ask not because I'd do it, but to illustrate the reason that we shouldn't and don't attach consequences to such omissions. Moreover, I'd suggest that if I did (again I won't--it's only hyperbolic) they'd find against my complaint and find that you had no duty to report Michael Jackson, just as this IT guy had no LEGAL duty to report his boss. This is why statutes are construed narrowly and why, in the end, your assertion about duty to report is incorrect.
If I've managed to convince you, do tell the ______ to retract the statement. And if not, it's been a lovely exchange. I'll forward some of this to Randy--I think he'll be interested.
Meanwhile,
Yours in disagreement,
David.
________________________
Dear Mr. Feige,
Remember there is an equitable principle of not flogging a dead horse to be applied to the law rule of reporting. I acknowledge that I violated the Texas reporting rule when I failed to call CPS when I saw Michael Jackson endanger his child but equity suggests that I not be prosecuted for that omission since Texas has no jurisdiction. In the case Mr. Cohen presented, the employee does not know the age of the depicted child or know all the children of the boss, his nieces and nephews, friend's children, etc. to know whether the depicted child is a minor or among those possibly known to the boss; those matters are for the proper authorities to discover. Again I am left to believe that reporting is the best ethical and legal approach to the problem for the employee.
One thing mentioned by Mr. Cohen and rejected was for the employee to clean the hard drive of the questionable images -- that does little except to protect the company. I have tired to find an ethics code for information specialists but have been unsuccessful. However, the one IT person whom I consulted said she would feel obliged to report what was found, at least within the context of the company and perhaps more widely depending upon what was depicted. She has headed several large IT programs; I respect her judgment but understand that since she was worked in public heath care and academic institutions she may be somewhat biased. In your work to discover what the standard for conduct is I hope you will talk with some IT professionals in large corporations to see what they might do with the scenario presented by Mr. Cohen.
______________________
Hi again,
Thanks for this. I will looks around, though in the bit I have done, I've gotten divergent answers (which, of course is why it poses an interesting dilemma in the first place. As to equity as opposed to law, this is precisely the problem: There is little equity in the law in this area and frankly, (as the letters and comments I've seen on this matter amply demonstrate) scant tolerance for dissent. That's precisely why we can't effectively make equitable arguments in court--they come down to either sentencing arguments or jury nullification arguments, and if you're making either of those, you've already lost your license, your livelihood or your liberty.
Thanks for the exchange….
Thursday
Friend fight
My good friend Randy Cohen, is being taken to task quite a bit recently for a courageous column he wrote in the New York Times Magazine.
Here's the question:
I am an Internet technician. While installing software on my company’s computer network, I happened on a lot of pornographic pictures in the president’s personal directory, including some of young children — clearly less than 18, possibly early teens. It is probably illegal and is absolutely immoral. Must I call the police? I think so, but I need my job.
S.M.N., Vancouver
Yes, she's actually over 18 but can you tell?
Randy's answer was, in essence, do nothing. He wisely pointed out the situation was fraught with uncertainty (see above), and went on to discuss the obscene sentencing scheme for mere possession of images. In the end he opted to counsel silence. Not surprisingly the comments came fast and furious, including this from our friend Daniel Radosh.
The vitriol laden nonsense was to be expected given the current hysteria about child molestation, but frighteningly, there were some who made the disturbing argument that pursuant to the BC Child, Family and Community Service Act everyone (including the author of the letter) would have a duty to report. Now this argument has gained some traction, but it is in essence total nonsense and it's worth taking a moment to debunk.
The law cited above is quite similar to many here in the US. Almost every jurisdiction has child protective laws on the books and most impose reporting requirements. But here, as with everywhere, the condition precedent to the reporting requirement is some specific knowledge of a child being harmed. This is the critical bit--"A" child, as used in the statute, contemplates a particular child and the goal of the statute is to deal with children in danger in the context of a family.
Now if S.M.N had seen a picture of Maggie--his next door neighbor's 10 year old--in a sexually compromising position, then I'd agree he'd likely be obligated to report that abuse--but he'd be telling on Maggie's parents, not on the president of the company, because Maggie's parents had created the conditions contemplated by the statue. Here, with random pictures of unidentifiable kids who may or may not be in the jurisdiction, there is certainly no obligation at all. Under the critics bizarre reading of the statue, if a magazine published a photo of a woman hitting her child, every singe citizen who saw the photo and didn't call authorities would be criminally liable, as would anyone who viewed a U-tube video of random kids playing unsafely. Indeed, under her theory, a picture of a child soldier in Sudan would require a call to alert the authorities that somewhere a child was being harmed. This statue was never meant to penalize such behavior, nor criminalize most of the population.
Here there is no specificity, no indication even that a subject child might be residing in the jurisdiction. Though it's pretty to think that the law might require such vigilance, absent specificity, it most certainly doesn't.
In the end, despite the backlash, Randy's position is absolutely correct, and he deserves kudos for staking out and defending a proper if very unpopular position.
Here's the question:
I am an Internet technician. While installing software on my company’s computer network, I happened on a lot of pornographic pictures in the president’s personal directory, including some of young children — clearly less than 18, possibly early teens. It is probably illegal and is absolutely immoral. Must I call the police? I think so, but I need my job.
S.M.N., Vancouver
Yes, she's actually over 18 but can you tell?
Randy's answer was, in essence, do nothing. He wisely pointed out the situation was fraught with uncertainty (see above), and went on to discuss the obscene sentencing scheme for mere possession of images. In the end he opted to counsel silence. Not surprisingly the comments came fast and furious, including this from our friend Daniel Radosh.
The vitriol laden nonsense was to be expected given the current hysteria about child molestation, but frighteningly, there were some who made the disturbing argument that pursuant to the BC Child, Family and Community Service Act everyone (including the author of the letter) would have a duty to report. Now this argument has gained some traction, but it is in essence total nonsense and it's worth taking a moment to debunk.
The law cited above is quite similar to many here in the US. Almost every jurisdiction has child protective laws on the books and most impose reporting requirements. But here, as with everywhere, the condition precedent to the reporting requirement is some specific knowledge of a child being harmed. This is the critical bit--"A" child, as used in the statute, contemplates a particular child and the goal of the statute is to deal with children in danger in the context of a family.
Now if S.M.N had seen a picture of Maggie--his next door neighbor's 10 year old--in a sexually compromising position, then I'd agree he'd likely be obligated to report that abuse--but he'd be telling on Maggie's parents, not on the president of the company, because Maggie's parents had created the conditions contemplated by the statue. Here, with random pictures of unidentifiable kids who may or may not be in the jurisdiction, there is certainly no obligation at all. Under the critics bizarre reading of the statue, if a magazine published a photo of a woman hitting her child, every singe citizen who saw the photo and didn't call authorities would be criminally liable, as would anyone who viewed a U-tube video of random kids playing unsafely. Indeed, under her theory, a picture of a child soldier in Sudan would require a call to alert the authorities that somewhere a child was being harmed. This statue was never meant to penalize such behavior, nor criminalize most of the population.
Here there is no specificity, no indication even that a subject child might be residing in the jurisdiction. Though it's pretty to think that the law might require such vigilance, absent specificity, it most certainly doesn't.
In the end, despite the backlash, Randy's position is absolutely correct, and he deserves kudos for staking out and defending a proper if very unpopular position.
Monday
This is what we do to our citizens?
This image horrifies me.
This is Jose Padilla, an American citizen who has been subjected to torture right here in the US by our very own government. Held for more than 3 years without charges in a military brig, he is now being prosecuted in Miami. The government has made a motion to preclude the defense from discussing the conditions of his confinement. Why? It might inflame the jury. Imagine that.
This is Jose Padilla, an American citizen who has been subjected to torture right here in the US by our very own government. Held for more than 3 years without charges in a military brig, he is now being prosecuted in Miami. The government has made a motion to preclude the defense from discussing the conditions of his confinement. Why? It might inflame the jury. Imagine that.
Saturday
Contemptless
A judge decided not to hold the police department in contempt despite the fact that it seems they've not done enough to investigate Colleen Brubaker, a chemist who is awaiting trial on allegations that she stole 2,700 painkiller pills to feed her own addiction.
Public defender Bradley Bridge believes hundreds of drug cases - involving pills or other drugs, such as cocaine - could be tainted by Brubaker's handling of them from the time she started in the lab in 1999 to her resignation in May. The District Attorney's Office has withdrawn 18 cases, the majority of them misdemeanors, because of Brubaker's involvement."
Public defender Bradley Bridge believes hundreds of drug cases - involving pills or other drugs, such as cocaine - could be tainted by Brubaker's handling of them from the time she started in the lab in 1999 to her resignation in May. The District Attorney's Office has withdrawn 18 cases, the majority of them misdemeanors, because of Brubaker's involvement."
Tuesday
Stop Jailing the Juvies...
Though this is really not the kind of study you'd think anyone would actually need, I'm glad that the Justice Policy Institute has done the study that shows what all of us in the system already know: "rather than promoting public safety, detention — the pretrial “jailing” of youth not yet found delinquent — may contribute to future offenses. Studies from around the country show that incarcerated youth have higher recidivism rates than youth supervised in other kinds of settings."
Here's the core finding: "Detention is widely misapplied, according to the report by the Justice Policy Institute, a Washington, D.C.-based group that studies adult and juvenile justice policies. Although detention facilities are meant to temporarily house those youth who are likely to re-offend before their trial or who are unlikely to appear for their court date, many of the youth in this country’s 769 detention centers do not meet these criteria. Seventy percent of youth in detention are held for nonviolent charges. More than two-thirds are charged with property offenses, public order offenses, technical probation violations, or status offenses (like running away or breaking curfew). Youth of color are impacted disproportionately by the overuse of detention. In 2003, African-American youth were detained at a rate 4.5 times higher than whites; and Latino youth were detained at twice the rate of whites. In the same year, black youth were four times more likely to be incarcerated in Louisiana than whites and received longer dispositions than white youth even though there was little difference in the severity of offenses committed or in prior offense histories.
“Not only does inappropriately detaining youth cost taxpayers millions of dollars a year, but the overuse of detention generally does not make our communities any safer,” said Bart Lubow, head of JDAI (Juvenile Detention Alternatives Initiative), a project of the Annie E. Casey Foundation that works to build better futures for disadvantaged children and their families. “Across the country, jurisdictions are looking for more effective policies and practices to promote community safety and better outcomes for youth. JDAI sites have reduced adolescent detention, strengthened juvenile justice systems and saved money -- all without compromising public safety."
Here's the core finding: "Detention is widely misapplied, according to the report by the Justice Policy Institute, a Washington, D.C.-based group that studies adult and juvenile justice policies. Although detention facilities are meant to temporarily house those youth who are likely to re-offend before their trial or who are unlikely to appear for their court date, many of the youth in this country’s 769 detention centers do not meet these criteria. Seventy percent of youth in detention are held for nonviolent charges. More than two-thirds are charged with property offenses, public order offenses, technical probation violations, or status offenses (like running away or breaking curfew). Youth of color are impacted disproportionately by the overuse of detention. In 2003, African-American youth were detained at a rate 4.5 times higher than whites; and Latino youth were detained at twice the rate of whites. In the same year, black youth were four times more likely to be incarcerated in Louisiana than whites and received longer dispositions than white youth even though there was little difference in the severity of offenses committed or in prior offense histories.
“Not only does inappropriately detaining youth cost taxpayers millions of dollars a year, but the overuse of detention generally does not make our communities any safer,” said Bart Lubow, head of JDAI (Juvenile Detention Alternatives Initiative), a project of the Annie E. Casey Foundation that works to build better futures for disadvantaged children and their families. “Across the country, jurisdictions are looking for more effective policies and practices to promote community safety and better outcomes for youth. JDAI sites have reduced adolescent detention, strengthened juvenile justice systems and saved money -- all without compromising public safety."
Friday
Oops...
Yet another exoneration. And this one too comes with a lesson about the faulty mechanics of the criminal justice system. According to the AP:
Marlon Pendleton was cleared by DNA tests that the original lab analyst refused to conduct. ''It was no surprise to me,'' Pendleton, 49, told the Chicago Tribune on Thursday in an interview at the Dixon Correctional Center. ''I always knew I was innocent.'' Pendleton demanded DNA testing after his arrest, but police lab analyst Pamela Fish. said there wasn't enough genetic material to test the evidence. Pendleton was convicted based on the victim's identification.
The expert who conducted the new tests said he was surprised at Fish's report ''because I found a reasonable amount of DNA.'' Fish's work has been challenged in the past. In one case, Fish -- who no longer works for the police department -- testified that semen found on a body could have belonged to three defendants. A DNA expert later examined Fish's notes and said they showed none of the four men had a blood type matching the samples.
Oops.
Marlon Pendleton was cleared by DNA tests that the original lab analyst refused to conduct. ''It was no surprise to me,'' Pendleton, 49, told the Chicago Tribune on Thursday in an interview at the Dixon Correctional Center. ''I always knew I was innocent.'' Pendleton demanded DNA testing after his arrest, but police lab analyst Pamela Fish. said there wasn't enough genetic material to test the evidence. Pendleton was convicted based on the victim's identification.
The expert who conducted the new tests said he was surprised at Fish's report ''because I found a reasonable amount of DNA.'' Fish's work has been challenged in the past. In one case, Fish -- who no longer works for the police department -- testified that semen found on a body could have belonged to three defendants. A DNA expert later examined Fish's notes and said they showed none of the four men had a blood type matching the samples.
Oops.
Wednesday
The things people say...
Ok, I just had to link to this Editorial from the Lexington Herald-Leader. The headline? "Hippies still trying to ruin the country." Yes, I'm serious. Read it, and savor the passages like [Hippies believe that]"...America's armed forces are neo-Nazi stormtroopers who delight in burning babies to further the aims of imperialistic corporations." Really.
The screed was written by a woman named Jenean McBrearty.
I believe this is her...
Here's another bit of her thinking: "For aging hippies, it's easier to keep blaming old enemies than to confront new ones, especially the young and ruthless. Hating a military-industrial complex is safer and less tiring. It's less complicated -- and less dangerous... Their BAWL (Buddha-Allah-Wicca-Lenin) is better than some old Judeo-Christian God.
In their heart of hearts, lefty loonies do want America to lose in Iraq and every military theater. They want outside enemies to accomplish quickly the demolition of American capitalism, using the violence the lefty loonies are too old, too scared and too well-invested to use."
After savoring her love, feel free to contact the author. She's at: jeneanmacb@hotmail.com
The screed was written by a woman named Jenean McBrearty.
I believe this is her...
Here's another bit of her thinking: "For aging hippies, it's easier to keep blaming old enemies than to confront new ones, especially the young and ruthless. Hating a military-industrial complex is safer and less tiring. It's less complicated -- and less dangerous... Their BAWL (Buddha-Allah-Wicca-Lenin) is better than some old Judeo-Christian God.
In their heart of hearts, lefty loonies do want America to lose in Iraq and every military theater. They want outside enemies to accomplish quickly the demolition of American capitalism, using the violence the lefty loonies are too old, too scared and too well-invested to use."
After savoring her love, feel free to contact the author. She's at: jeneanmacb@hotmail.com
Sunday
Perv-cop to ho: Strip!
Ok, so I'm tempted to start an occasional feature in which readers can submit NY Post-style headlines (like the one above) for hilarious or oddball criminal justice stories. So in that vein, I bring you this story, and invite you to write up your own headline...
MANCHESTER, N.J. -- A police officer who claimed he was conducting his own prostitution sting and strip search ended up being the one arrested.
Authorities arrested James Michael Jackson, a police officer with the state Department of Human Services, and charged him with sexual assault and sexual misconduct for the so-called sting. Jackson, 34, of Toms River, arranged through a service for a woman to meet him Wednesday at a local hotel in Manchester. When she arrived, Jackson, carrying a badge and gun, told her she was under arrest. He made her take off her clothes and consent to a body cavity search before letting her go, said Ocean County Assistant Prosecutor Martin Anton.
As a police officer, Jackson had authority to make arrests, but not through an undercover operation of his own, Anton said.
MANCHESTER, N.J. -- A police officer who claimed he was conducting his own prostitution sting and strip search ended up being the one arrested.
Authorities arrested James Michael Jackson, a police officer with the state Department of Human Services, and charged him with sexual assault and sexual misconduct for the so-called sting. Jackson, 34, of Toms River, arranged through a service for a woman to meet him Wednesday at a local hotel in Manchester. When she arrived, Jackson, carrying a badge and gun, told her she was under arrest. He made her take off her clothes and consent to a body cavity search before letting her go, said Ocean County Assistant Prosecutor Martin Anton.
As a police officer, Jackson had authority to make arrests, but not through an undercover operation of his own, Anton said.
Saturday
Smack--A republican abandons ship...
State Senator Sam Kitzenberg switched parties yesterday, abandoning the GOP and shifting the balance of power in the Montana State Legislature toward the democrats.
According to the Billings Gazette Kitzenberg said he's not the same person he was when he came to the Legislature 12 years ago, and that he's more sympathetic toward "the people without in Montana." He noted that 20 percent of Montanans have no health insurance and that thousands of children and other Montanans go to bed hungry.
When asked why he didn't run as a Democrat in 2004, Kitzenberg said he'd thought about it, but that a Democrat filed to run against him, so he ran again as a Republican.
According to the Billings Gazette Kitzenberg said he's not the same person he was when he came to the Legislature 12 years ago, and that he's more sympathetic toward "the people without in Montana." He noted that 20 percent of Montanans have no health insurance and that thousands of children and other Montanans go to bed hungry.
When asked why he didn't run as a Democrat in 2004, Kitzenberg said he'd thought about it, but that a Democrat filed to run against him, so he ran again as a Republican.
Friday
Happy travels...
After a whirlwind trip to Seattle to speak at the Washington State Bar Association, I'm heading home again. I'd forgotten what a wonderful city this is--full of cool bars and great seafood. From my hotel room, I can see Pudget Sound, the space needle and the (San Juan?) mountains in the background. It didn't hurt that yesterday was one of the only clear days this month. I also got to see a hero of mine, Paula Deutsch--who if you've read the book you know all about, Anyway, she is now a federal public defender here in Seattle and as inspiring as ever. All in all a fine trip.
Tuesday
German Prosecutor Investigating Rumsfeld
The times reports that aGerman Prosecutor has been asked to investigate Rumsfeld: "Emboldened by the resignation last week of Secretary of Defense Donald H. Rumsfeld, lawyers today asked a German prosecutor to investigate Mr. Rumsfeld on allegations of war crimes, stemming from the treatment of prisoners held in military jails in Iraq and at Gitmo."
The lawsuit is ambitious, naming not only Mr. Rumsfeld and Mr. Gonzales, but also John C. Yoo and Jay S. Bybee, two former Justice Department lawyers who helped draft the Bush administration’s legal arguments for treatment of suspected terrorists. It also names Lt. Gen. Ricardo S. Sanchez, the military’s former commander in Iraq. Brig. Gen. Janis L. Karpinski, who commanded Abu Ghraib and was punished for the abuses there, has offered to testify.
The lawsuit is ambitious, naming not only Mr. Rumsfeld and Mr. Gonzales, but also John C. Yoo and Jay S. Bybee, two former Justice Department lawyers who helped draft the Bush administration’s legal arguments for treatment of suspected terrorists. It also names Lt. Gen. Ricardo S. Sanchez, the military’s former commander in Iraq. Brig. Gen. Janis L. Karpinski, who commanded Abu Ghraib and was punished for the abuses there, has offered to testify.
Monday
He's Baaaack....
Darius McCollum, a man continually being arrested for crimes involving trains is back in jail again.
Darius represents everything that is wrong with our criminal justice system. We lock people up without dealing with the underlying problems. Instead of promise we see predator, instead of harnessing what could have been a benign obsession, we layer prison sentence after prison sentence, ignoring the human story in favor of a pathetic mechanistic approach to criminal justice that costs the taxpayers a fortune and gets society absolutely nothing.
Darius is obsessed with trains, he’s loved them almost since birth, and driven them since age 15, when he made headlines by driving an E train from Herald Square to the World Trade Center. His love of the transit system though has proven unhealthy--over the years Darius has been arrested 18 times for transit related crimes.
Darius has been diagnosed with Asperger’s syndrome—a disorder in which sufferers can become obsessed with particular topics, often exhibiting, as Darius does, an astonishing level of expertise. This significant fact didn’t come up until rather recently though-- when it was brought to the attention of the presiding judge who last sentenced Darius. Despite the fact nothing Darius has done has ever caused an injury or even recklessly endangered anyone, at that sentencing, in 2001, Justice Carol Berkman wasted no time in deriding Darius, ignoring the Aspergers and sentencing him to 2 1/2 to 5 years in state prison.
In ‘Catch me if you can’ Steven Spielberg’s 2002 blockbuster based on the true story of con artist Frank Abagnale Jr., a buttoned down G-man played by Tom Hanks, stalks and eventually arrests a daring and inventive check forger played by the ever limber Leonardo Dicpario. The film, set in the late 60’s and early 70’s probes the emergent bonds between cop and crook, delicately delving into the minds and humanity of each of the fundamentally isolated characters.
It is, in fact isolation that binds Abagnale, and his pursuer Carl Hanratty in their five year pas-de–deux replete with daring escapes, complex mind games and Christmas eve heart to hearts. And in the end, after forging nearly 2 million dollars in checks, and posing as a doctor, lawyer and an airline pilot it is Abagnale whose pathological dedication to his craft wins our hearts and, ultimately, Carl’s.
Abagnale goes to jail, of course, but the second act of his career, the one culminating in a book and a Spielberg biopic, results from his pursuer’s intervention—the Federal Bureau of Investigation gives him a job catching other crooks—the perfect use for an otherwise imperfect passion.
Darius McCollum is, in a sense, the Frank Abagnale Jr. of the train yards.
Darius, like Frank, started young in crime. Since his original foray, back when he was a student in a technical high school, Darius has been arrested over and over invariably for transit related offenses. He has at one time or another impersonated a conductor, a motorman and a superintendent. He has put out track fires, helped out flag crews and helped inspect malfunctioning trains for debris. His knowledge of the transit system is encyclopedic and legendary. Darius is as much the trainman’s trainman as Abagnale was a forger’s forger. And yet there is a critical difference between them.
Frank Abagnale’s forgery netted him nearly two million dollars—money swindled from others which he used to support a lavish lifestyle of fancy cars, high culture and world travel. Darius, on the other hand had none of these amenities. He was once charged with attempted grand larceny—the charge relating to a vehicle he signed out and back in again precisely according to procedure. There was no fine wine, fast car, or world travel for Darius McCollum—just gritty days cleaning and prepping busses at far flung depots, or directing traffic and repairing electrical boxes in the gloomy semi-darkness far below the ground.
After being sentenced for his crimes, Frank Abagnale, was granted early parole at age 26. For the $2 million dollars in bad checks, and multiple escape attempts, he spent just under five years behind bars. Following his release, he got job with the FBI. Darius McCollum is 39 years old. He has spent nearly a third of his life behind bars
Perhaps it’s the glamorized world of the biopic, but maybe Frank Abagnale did reap the benefits of a better time—one in which we understood the malleable boundary between lonely cop and accomplished criminal. A time when we were willing to allow for the possibility that someone could cross over that line. Perhaps it’s that Frank Abagnale was glamorous and white, while Darius is a pudgy African American. Or perhaps it is because being a forger and an escape artist is just sexier than impersonating a transit worker. But Darius McCollum is back in jail having never been given a chance to put his passion to work on the right side of the law—having been branded a criminal early, the system ignored a dozen chances to break the cycle of offense and incarceration—simply by giving Darius a job with the Transit Authority. We’ve never even tried, and for that we are all to blame. It seems that Darius’ McCollum’s life of incarceration begs the self same question that Frank Abagnale’s posed and answered some 30 years ago.
Darius represents everything that is wrong with our criminal justice system. We lock people up without dealing with the underlying problems. Instead of promise we see predator, instead of harnessing what could have been a benign obsession, we layer prison sentence after prison sentence, ignoring the human story in favor of a pathetic mechanistic approach to criminal justice that costs the taxpayers a fortune and gets society absolutely nothing.
Darius is obsessed with trains, he’s loved them almost since birth, and driven them since age 15, when he made headlines by driving an E train from Herald Square to the World Trade Center. His love of the transit system though has proven unhealthy--over the years Darius has been arrested 18 times for transit related crimes.
Darius has been diagnosed with Asperger’s syndrome—a disorder in which sufferers can become obsessed with particular topics, often exhibiting, as Darius does, an astonishing level of expertise. This significant fact didn’t come up until rather recently though-- when it was brought to the attention of the presiding judge who last sentenced Darius. Despite the fact nothing Darius has done has ever caused an injury or even recklessly endangered anyone, at that sentencing, in 2001, Justice Carol Berkman wasted no time in deriding Darius, ignoring the Aspergers and sentencing him to 2 1/2 to 5 years in state prison.
In ‘Catch me if you can’ Steven Spielberg’s 2002 blockbuster based on the true story of con artist Frank Abagnale Jr., a buttoned down G-man played by Tom Hanks, stalks and eventually arrests a daring and inventive check forger played by the ever limber Leonardo Dicpario. The film, set in the late 60’s and early 70’s probes the emergent bonds between cop and crook, delicately delving into the minds and humanity of each of the fundamentally isolated characters.
It is, in fact isolation that binds Abagnale, and his pursuer Carl Hanratty in their five year pas-de–deux replete with daring escapes, complex mind games and Christmas eve heart to hearts. And in the end, after forging nearly 2 million dollars in checks, and posing as a doctor, lawyer and an airline pilot it is Abagnale whose pathological dedication to his craft wins our hearts and, ultimately, Carl’s.
Abagnale goes to jail, of course, but the second act of his career, the one culminating in a book and a Spielberg biopic, results from his pursuer’s intervention—the Federal Bureau of Investigation gives him a job catching other crooks—the perfect use for an otherwise imperfect passion.
Darius McCollum is, in a sense, the Frank Abagnale Jr. of the train yards.
Darius, like Frank, started young in crime. Since his original foray, back when he was a student in a technical high school, Darius has been arrested over and over invariably for transit related offenses. He has at one time or another impersonated a conductor, a motorman and a superintendent. He has put out track fires, helped out flag crews and helped inspect malfunctioning trains for debris. His knowledge of the transit system is encyclopedic and legendary. Darius is as much the trainman’s trainman as Abagnale was a forger’s forger. And yet there is a critical difference between them.
Frank Abagnale’s forgery netted him nearly two million dollars—money swindled from others which he used to support a lavish lifestyle of fancy cars, high culture and world travel. Darius, on the other hand had none of these amenities. He was once charged with attempted grand larceny—the charge relating to a vehicle he signed out and back in again precisely according to procedure. There was no fine wine, fast car, or world travel for Darius McCollum—just gritty days cleaning and prepping busses at far flung depots, or directing traffic and repairing electrical boxes in the gloomy semi-darkness far below the ground.
After being sentenced for his crimes, Frank Abagnale, was granted early parole at age 26. For the $2 million dollars in bad checks, and multiple escape attempts, he spent just under five years behind bars. Following his release, he got job with the FBI. Darius McCollum is 39 years old. He has spent nearly a third of his life behind bars
Perhaps it’s the glamorized world of the biopic, but maybe Frank Abagnale did reap the benefits of a better time—one in which we understood the malleable boundary between lonely cop and accomplished criminal. A time when we were willing to allow for the possibility that someone could cross over that line. Perhaps it’s that Frank Abagnale was glamorous and white, while Darius is a pudgy African American. Or perhaps it is because being a forger and an escape artist is just sexier than impersonating a transit worker. But Darius McCollum is back in jail having never been given a chance to put his passion to work on the right side of the law—having been branded a criminal early, the system ignored a dozen chances to break the cycle of offense and incarceration—simply by giving Darius a job with the Transit Authority. We’ve never even tried, and for that we are all to blame. It seems that Darius’ McCollum’s life of incarceration begs the self same question that Frank Abagnale’s posed and answered some 30 years ago.
Red (R)over Red (R)over let blue states come over...
Here's a nice piece about howKarl Rove got it all wrong.
The no longer laughing Mr. Rove
As Newsweek reports it... "Rove's miscalculations began well before election night. The polls and pundits pointed to a Democratic sweep, but Rove dismissed them all. In public, he predicted outright victory... Rove believed his 'metrics' were far superior to plain old polls...Rove thought the polls were obsolete because they relied on home telephones in an age of do-not-call lists and cell phones. Based on his models, he forecast a loss of 12 to 14 seats in the House, enough to hang on to the majority. Rove placed so much faith in his figures that, after the elections, he planned to convene a panel of Republican political scientists in order to study just how wrong the polls were"
Oops. My bad.
The no longer laughing Mr. Rove
As Newsweek reports it... "Rove's miscalculations began well before election night. The polls and pundits pointed to a Democratic sweep, but Rove dismissed them all. In public, he predicted outright victory... Rove believed his 'metrics' were far superior to plain old polls...Rove thought the polls were obsolete because they relied on home telephones in an age of do-not-call lists and cell phones. Based on his models, he forecast a loss of 12 to 14 seats in the House, enough to hang on to the majority. Rove placed so much faith in his figures that, after the elections, he planned to convene a panel of Republican political scientists in order to study just how wrong the polls were"
Oops. My bad.
Saturday
PrisonSucks.com:
Just wanted to give a nod to PrisonSucks.com whose research and statistics on the prison industrial complex are just outstanding. Their Prison Policy Initiaive and Prisoners of the Census sections are excellent, as are some of the stats. Here's one I happen to like: In South Africa under apartheid (1993) Black males: were incarcerated at a rate of 851 per 100,000. And in the U.S. under George W. Bush (2004) that rate was 4,919 per 100,000.
Westward Ho...
After finally getting my first full week at home in NYC since August, I'm hitting the road next week--this time do a CLE in Seattle.
This one--put on by the charming people at the Young Lawyers Division of the Washington State Bar Association has some cool panels on Eyewitness Identification (in which I get to go at it with Mark Larson the Chief Criminal Deputy of the King County Prosecutor's Office) Kid Witnesses, Confrontation and all sorts of other things public defenders and criminal lawyers find groovy.
I'm actually looking forward to the CLE and to making good use of my new favorite toy, and, of course lugging home some excellent King Salmon.
No--I didn't catch this one (though I could probably eat it).
This one--put on by the charming people at the Young Lawyers Division of the Washington State Bar Association has some cool panels on Eyewitness Identification (in which I get to go at it with Mark Larson the Chief Criminal Deputy of the King County Prosecutor's Office) Kid Witnesses, Confrontation and all sorts of other things public defenders and criminal lawyers find groovy.
I'm actually looking forward to the CLE and to making good use of my new favorite toy, and, of course lugging home some excellent King Salmon.
No--I didn't catch this one (though I could probably eat it).
Wednesday
Now THAT's a happy meal!
Two police officers sued Burger King because, they claim they were served pot burgers.
Yes indeed while the rest of us were gripped with Election fever (I was up until three chanting at the television like a lunatic) this little tidbit came over the wire...
Mark Landavazo and Henry Gabaldon, two uniformed cops say they were riding in a marked patrol car when they bought meals at the drive-through lane October 8 of a Burger King restaurant in Los Lunas, New Mexico.
The AP reports that "The officers ate about half of their burgers before discovering marijuana on the meat, the lawsuit said. They used a field test kit to confirm the substance was pot, then went to a hospital for medical evaluations."
Medical Evaluation? Dude, just hit the doughnut shop...
Yes indeed while the rest of us were gripped with Election fever (I was up until three chanting at the television like a lunatic) this little tidbit came over the wire...
Mark Landavazo and Henry Gabaldon, two uniformed cops say they were riding in a marked patrol car when they bought meals at the drive-through lane October 8 of a Burger King restaurant in Los Lunas, New Mexico.
The AP reports that "The officers ate about half of their burgers before discovering marijuana on the meat, the lawsuit said. They used a field test kit to confirm the substance was pot, then went to a hospital for medical evaluations."
Medical Evaluation? Dude, just hit the doughnut shop...
Monday
You could be a private lawyer!
I just don't know what it is about legal journalists reporting on public defenders. They just can't seem to help themselves from being condescending twits. We PD's know full well how the world looks down upon us. We live with families, friends and even clients who assume that we're only doing the work because we couldn't get a better job. But somehow, it continues to rankle when the chattering classes (whom we'd like to think know better) also fall prey to this.
Tony Mauro
Here's a perfect and egregious example: In today's Legal Times, Tony Mauro writes about Frances Forsman, the federal defender of Nevada who just argued Whorton v. Bockting concerning the retroactivity of Crawford v. Washington . The headline is "SELF-DESCRIBED 'OLD HIPPIE' WINS HIGH PRAISE IN HIGH COURT DEBUT" The entire article is about what a brilliant argument Forsman made. Indeed, despite the fact that, as Mauro notes "Supreme Court justices are notoriously stingy with praise for the lawyers arguing before them." Mauro recounts that "As Foreseman's half hour was about to end, Justice Stevens leaned forward and said, "May I ask you a personal question? Were you a moot court finalist?" Startled, Forsman said she was not. Stevens replied, "I attended a moot court at Notre Dame in about your year and it was an awfully good moot court." The audience laughed, but it was clearly a compliment."
Impressive indeed. So what does Mauro want to know about this impressive advocate (who he notes has also led the Nevada state bar and taught trial advocacy at UNLV's law school?) Well, here's what he sees fit to close his piece with--perhaps the most offensive, demeaning, condescending and obnoxious question he could possibly ask. "Oh no" you may be thinking, "He didn't!" oh yes he did. The one place Mauro injects himself into the piece as posing a question, this is what he asked:
"Has the Stevens compliment resulted in job offers from the private sector yet?"
That's right folks. If you're a public defender, it doesn't actually matter what you do or what you accomplish. Summa Cum Laude from Harvard? (several current Bronx Defenders) Supreme Court Clerk? (a friend who went to PDS) President of your state bar association? (Forsman) Law professor? (lots of us) or Brilliant Supreme Court Advocate? None of it makes any difference to the idiots out there who simply can't grasp that some people might actually want to do the righteous work pf being a public defender for reasons having nothing to do with the money. It just doesn't compute. People still think that PD's are where they are not by choice, but because they just couldn't get a better job.
When is Mauro going to do the breathless profile of the new class of Bronx Defenders most of whom graduated from top law schools and clerked at the Federal Appellate Level who turned down jobs at the highest paying firms in the country to come work in the Bronx? When will it occur to him to write about the lawyers who have left Paul Weiss to join us as PD's? Sadly, probably never.
Tony Mauro
Here's a perfect and egregious example: In today's Legal Times, Tony Mauro writes about Frances Forsman, the federal defender of Nevada who just argued Whorton v. Bockting concerning the retroactivity of Crawford v. Washington . The headline is "SELF-DESCRIBED 'OLD HIPPIE' WINS HIGH PRAISE IN HIGH COURT DEBUT" The entire article is about what a brilliant argument Forsman made. Indeed, despite the fact that, as Mauro notes "Supreme Court justices are notoriously stingy with praise for the lawyers arguing before them." Mauro recounts that "As Foreseman's half hour was about to end, Justice Stevens leaned forward and said, "May I ask you a personal question? Were you a moot court finalist?" Startled, Forsman said she was not. Stevens replied, "I attended a moot court at Notre Dame in about your year and it was an awfully good moot court." The audience laughed, but it was clearly a compliment."
Impressive indeed. So what does Mauro want to know about this impressive advocate (who he notes has also led the Nevada state bar and taught trial advocacy at UNLV's law school?) Well, here's what he sees fit to close his piece with--perhaps the most offensive, demeaning, condescending and obnoxious question he could possibly ask. "Oh no" you may be thinking, "He didn't!" oh yes he did. The one place Mauro injects himself into the piece as posing a question, this is what he asked:
"Has the Stevens compliment resulted in job offers from the private sector yet?"
That's right folks. If you're a public defender, it doesn't actually matter what you do or what you accomplish. Summa Cum Laude from Harvard? (several current Bronx Defenders) Supreme Court Clerk? (a friend who went to PDS) President of your state bar association? (Forsman) Law professor? (lots of us) or Brilliant Supreme Court Advocate? None of it makes any difference to the idiots out there who simply can't grasp that some people might actually want to do the righteous work pf being a public defender for reasons having nothing to do with the money. It just doesn't compute. People still think that PD's are where they are not by choice, but because they just couldn't get a better job.
When is Mauro going to do the breathless profile of the new class of Bronx Defenders most of whom graduated from top law schools and clerked at the Federal Appellate Level who turned down jobs at the highest paying firms in the country to come work in the Bronx? When will it occur to him to write about the lawyers who have left Paul Weiss to join us as PD's? Sadly, probably never.
A tragic loss--Frank Dunham Jr.
The world should have have more crusaders like Frank Dunham. He was a brilliant lawyer, (he was the Federal Public Defender that personally argued Hamdi) and a wonderful and engaging person. In our strange line of work, there is a certain extraordinary honor in being described in the headline of an obit as someone who "defended terrorism suspects' rights" but that is what Frank did, and did brilliantly.
We're all better for his passion.
Here he is defending Zacarias Moussaoui
We're all better for his passion.
Here he is defending Zacarias Moussaoui
Thursday
Betting the house...
Check out this graph of futures trades on the GOP control of the House...
The market seems to like the democrats...
The market seems to like the democrats...
6th Circuit Shame
Adam Liptak is right on this one:
Defense lawyers in capital cases are often criticized for conducting superficial investigations of their clients’ backgrounds, but Ferdinand Radolovich’s performance in a Kentucky case, one that ended in a death sentence, may have set a new standard.
“Apparently,” a federal judge wrote in 2001, “neither attorney Radolovich nor the prosecution knew of petitioner’s actual identity until his case had been affirmed on appeal.”
When he was later challenged about the quality of his work on the case, Mr. Radolovich testified that he was an accomplished death penalty lawyer at the time, having tried four capital cases. The real number was zero, the federal judge, Jennifer B. Coffman, found, and Mr. Radolovich has been indicted for perjury for his statement.
But none of this has helped the inmate in question, who was sent to death row as James Slaughter but whose real name is Jeffrey Leonard.
Yesterday in Cincinnati, splitting 7 to 7, the United States Court of Appeals for the Sixth Circuit declined to rehear the case.
For shame.
Defense lawyers in capital cases are often criticized for conducting superficial investigations of their clients’ backgrounds, but Ferdinand Radolovich’s performance in a Kentucky case, one that ended in a death sentence, may have set a new standard.
“Apparently,” a federal judge wrote in 2001, “neither attorney Radolovich nor the prosecution knew of petitioner’s actual identity until his case had been affirmed on appeal.”
When he was later challenged about the quality of his work on the case, Mr. Radolovich testified that he was an accomplished death penalty lawyer at the time, having tried four capital cases. The real number was zero, the federal judge, Jennifer B. Coffman, found, and Mr. Radolovich has been indicted for perjury for his statement.
But none of this has helped the inmate in question, who was sent to death row as James Slaughter but whose real name is Jeffrey Leonard.
Yesterday in Cincinnati, splitting 7 to 7, the United States Court of Appeals for the Sixth Circuit declined to rehear the case.
For shame.
Tuesday
Bush and Chevron...
I find this utterly horrifying. The times has an astonishing piece about Chevron today. It reports that:
"The Interior Department has dropped claims that the Chevron Corporation systematically underpaid the government for natural gas produced in the Gulf of Mexico, a decision that could allow energy companies to avoid paying hundreds of millions of dollars in royalties.
The agency had ordered Chevron to pay $6 million in additional royalties but could have sought tens of millions more had it prevailed. The decision also sets a precedent that could make it easier for oil and gas companies to lower the value of what they pump each year from federal property and thus their payments to the government.
“The natural gas processing business lends itself almost uniquely to chicanery,” said Spencer Hosie, a lawyer who has represented the states of Louisiana and Alaska in several court fights over oil and gas royalties.
Um yeah. And this is happening in an era of high gas prices and obscene profits for oil companies. Frankly, I don't understand why we're not pounding this issue with voters.
"The Interior Department has dropped claims that the Chevron Corporation systematically underpaid the government for natural gas produced in the Gulf of Mexico, a decision that could allow energy companies to avoid paying hundreds of millions of dollars in royalties.
The agency had ordered Chevron to pay $6 million in additional royalties but could have sought tens of millions more had it prevailed. The decision also sets a precedent that could make it easier for oil and gas companies to lower the value of what they pump each year from federal property and thus their payments to the government.
“The natural gas processing business lends itself almost uniquely to chicanery,” said Spencer Hosie, a lawyer who has represented the states of Louisiana and Alaska in several court fights over oil and gas royalties.
Um yeah. And this is happening in an era of high gas prices and obscene profits for oil companies. Frankly, I don't understand why we're not pounding this issue with voters.
Monday
Conspiring Judges?
According toThe New York Law Journal The state Commission on Judicial Conduct is investigating whether two Manhattan judges should be charged with colluding for political reasons to issue a decision highly critical of District Attorney Robert Morgenthau's office shortly before last year's hotly contested Democratic primary.
The commission is examining whether Acting Supreme Court Justice Michael R. Ambrecht (See Profile), the author of the decision, consulted with Acting Justice William A. Wetzel (See Profile) before issuing the ruling.
It is investigating whether Justice Wetzel was influenced by his support for Leslie Crocker Snyder, Mr. Morgenthau's opponent. The commission has received reports that Justice Wetzel stated to attorneys and others in his courtroom that assistant district attorneys should support Justice Crocker's campaign and that he would assume a top position in the Manhattan office should she win.
You might remember Judge Wetzel--he was the one that essentially assured that awful conviction of Oliver Jovanovic by refusing to admit the explicit e-mails the supposed victim had sent.
Ah, The rough and tumble world of Manhattan Justice.
The commission is examining whether Acting Supreme Court Justice Michael R. Ambrecht (See Profile), the author of the decision, consulted with Acting Justice William A. Wetzel (See Profile) before issuing the ruling.
It is investigating whether Justice Wetzel was influenced by his support for Leslie Crocker Snyder, Mr. Morgenthau's opponent. The commission has received reports that Justice Wetzel stated to attorneys and others in his courtroom that assistant district attorneys should support Justice Crocker's campaign and that he would assume a top position in the Manhattan office should she win.
You might remember Judge Wetzel--he was the one that essentially assured that awful conviction of Oliver Jovanovic by refusing to admit the explicit e-mails the supposed victim had sent.
Ah, The rough and tumble world of Manhattan Justice.
Sentate Majority?
As this is the first full week I've had in New York since August, it's finally time to sit back, get some work done and check in on the state of the world.
Daily Kos caught my eye this morning, reporting that "One Republican strategist close to the White House gave this forecast: "We're going to lose Pennsylvania, Ohio and Rhode Island. That's three. Virginia, I think we hold. Tennessee, I think we hold. I'm less certain we're going to hold Missouri and I'm least certain we hold Montana. But to take control, Democrats have to win three of those four, and that's unlikely."
Sadly, I tend to agree. I've already gone and done what I can for Claire McCaskilland Harold Ford (and Deval Patrick who seems to have the Mass. governor's race all but sown up) but I'm still a pessimist about actually getting control of the Senate. That being said, I'd be so very very happy if it happened.
Given that we're in the home stretch, you might be amused (as I have been) by the Intrade - 2006 Mid Term Elections FuturesTrading (not to mention the futures on the indictment of Scooter Libby). Right now Intrade puts the chances of the democrats taking the house at 68 percent and taking senate at 23 percent. The long odds for big bettors is GOP house Democratic Senate (6%). And for those optimists who think we'll take 'em both, contracts for Democratic control of both houses are right about 25.
Meanwhile, let's keep hoping for that one extra win.
Daily Kos caught my eye this morning, reporting that "One Republican strategist close to the White House gave this forecast: "We're going to lose Pennsylvania, Ohio and Rhode Island. That's three. Virginia, I think we hold. Tennessee, I think we hold. I'm less certain we're going to hold Missouri and I'm least certain we hold Montana. But to take control, Democrats have to win three of those four, and that's unlikely."
Sadly, I tend to agree. I've already gone and done what I can for Claire McCaskilland Harold Ford (and Deval Patrick who seems to have the Mass. governor's race all but sown up) but I'm still a pessimist about actually getting control of the Senate. That being said, I'd be so very very happy if it happened.
Given that we're in the home stretch, you might be amused (as I have been) by the Intrade - 2006 Mid Term Elections FuturesTrading (not to mention the futures on the indictment of Scooter Libby). Right now Intrade puts the chances of the democrats taking the house at 68 percent and taking senate at 23 percent. The long odds for big bettors is GOP house Democratic Senate (6%). And for those optimists who think we'll take 'em both, contracts for Democratic control of both houses are right about 25.
Meanwhile, let's keep hoping for that one extra win.
Friday
NYLJ Review...
So, I'm told that INDEFENSIBLE was reviewed last week in the New York Law Journal. And though my interest in the book is waning quickly, (time to start working on other things I think). I'm told that the review was penned by a sitting Supreme Court Justice. So ok, I'm curious. If anyone happens to have a copy, or a link to it, by all means send it along.
Credit where credit is due...
I've been a bad blogger. Very very bad. In particular, I have inadvertently failed to follow the blogging code of tipping my hat to those who have drawn my attention to cool things that wind up on the blog. And of all the potentially aggrieved parties, none are more legitimately aggrieved than my friend Mitch--sailboat owner, former physics professor at Harvard, and all around smart guy who reads things like for fun.
Anyway, he was inspiration for yesterday's post on Blogging Lawyers and for a few others in the past and so, to make up for my failure to properly credit him, here's one huge hat tip.
Thanks Mitch!
Anyway, he was inspiration for yesterday's post on Blogging Lawyers and for a few others in the past and so, to make up for my failure to properly credit him, here's one huge hat tip.
Thanks Mitch!
Could this be the end?
Slashdot reports a potential Crack Down on Blogging Lawyers.
"The New York bar has proposed new rules which would define blogging as advertising. Should these rules be enacted, any New York lawyer who blogs on any legal topic in New York would be required to submit any new blog post to the New York Bar for review."
But fear not readers, should such a bar be enacted, at least until the appellate decisions came down, I'd just switch to blogging about food.
Wednesday
A worthy first video post...
Keith Olbermann has, for sometime been one of the most eloquent and passionate spokesmen for the left--at least on live television. But he may have outdone himself here. "You sir" he says of Bush and the wellspring of freedom, "have fouled that spring." It's good stuff. I'd rather see 2 minutes of course, rather than nearly nine, but still, the guy is good.
Keith Olbermann has, for sometime been one of the most eloquent and passionate spokesmen for the left--at least on live television. But he may have outdone himself here. "You sir" he says of Bush and the wellspring of freedom, "have fouled that spring." It's good stuff. I'd rather see 2 minutes of course, rather than nearly nine, but still, the guy is good.
Tuesday
Good news in Kentucky...
Less than a week after an interesting discussion about media strategy and the importance of all of us public defenders speaking out about the work, comes excellent piece from the Louisville Courier-Journal titled "Public defenders in state stretched thin despite hirings" The piece discusses the urgent need for PD's in Bullitt county Kentucky (really). and lauds the legislature for helping to provide PD's for the indigent in the county.
The PD's of Bullitt County!
The PD's of Bullitt County!
On the road again...
I'm now at a 4-H lodge in a dry county in Kentucky to teach at the Kentucky Department of Public Advocacy.
My home for the week.
DPA has a fantastic pilot project which is beginning the process of engaging social workers in the important process of criminal defense work. This move toward "holistic" representation (pioneered by my former office The Bronx Defenders and adopted in Maryland among others) is truly an important development, and I'm lucky to be a part of it.
Mercifully there is now Internet access so blogging continues...
My home for the week.
DPA has a fantastic pilot project which is beginning the process of engaging social workers in the important process of criminal defense work. This move toward "holistic" representation (pioneered by my former office The Bronx Defenders and adopted in Maryland among others) is truly an important development, and I'm lucky to be a part of it.
Mercifully there is now Internet access so blogging continues...
Monday
Lynne gets 28 months...
Tragically, crusading attorney Lynne Stewart was sentenced to 28 months in prison today despite her admirable career and devotion to the poor and opressed. But thank heavens Judge Koeltl granted .her bail pending appeal.
Lynne
The entire case is a travesty.
Lynne
The entire case is a travesty.
Sunday
That wacky weed...
Canadian troops fighting Taliban militants in Afghanistan have stumbled across an unexpected and potent enemy -- almost impenetrable forests of marijuana plants.
"The challenge is that marijuana plants absorb energy, heat very readily. It's very difficult to penetrate with thermal devices ... and as a result you really have to be careful that the Taliban don't dodge in and out of those marijuana forests," said General Rick Hillier, chief of the Canadian defense staff in a speech in Ottawa.
"We tried burning them with white phosphorous -- it didn't work. We tried burning them with diesel -- it didn't work. The plants are so full of water right now ... that we simply couldn't burn them," he said.
Even successful incineration had its drawbacks.
"A couple of brown plants on the edges of some of those (forests) did catch on fire. But a section of soldiers that was downwind from that had some ill effects and decided that was probably not the right course of action," Hillier said dryly.
"The challenge is that marijuana plants absorb energy, heat very readily. It's very difficult to penetrate with thermal devices ... and as a result you really have to be careful that the Taliban don't dodge in and out of those marijuana forests," said General Rick Hillier, chief of the Canadian defense staff in a speech in Ottawa.
"We tried burning them with white phosphorous -- it didn't work. We tried burning them with diesel -- it didn't work. The plants are so full of water right now ... that we simply couldn't burn them," he said.
Even successful incineration had its drawbacks.
"A couple of brown plants on the edges of some of those (forests) did catch on fire. But a section of soldiers that was downwind from that had some ill effects and decided that was probably not the right course of action," Hillier said dryly.
Saturday
Sound Familiar?
A judge dismissed sexual molestation charges after finding that a prosecutor had engaged in prosecutorial misconduct..
What did prosecutor Laura Robles do? She questioned a witness about the defendant's sex life moments after the judge huddled privately with attorneys and told Robles not to discuss Jimenez's sex life.
Another interesting fact--the defendant was a cop.
Redlands Police Officer Justin Jiminez
What did prosecutor Laura Robles do? She questioned a witness about the defendant's sex life moments after the judge huddled privately with attorneys and told Robles not to discuss Jimenez's sex life.
Another interesting fact--the defendant was a cop.
Redlands Police Officer Justin Jiminez
Thursday
Scary...
No wonder we get a bad name sometimes.
This from Law.Com
A New York City bodega worker who was denied a public defender even though his attorney did not inform him of a potential conflict of interest, repeatedly failed to appear in court and suggested he "wasn't going to do a very good job at trial" has been given a second chance to argue a motion to vacate his guilty plea on a charge of possession of crack cocaine.
What judge denied the bodega worker a public defender?
Micki Scherer .
Now I used to think, (back when I practiced in front of her in Brooklyn), that Scherer was a decent judge, but the intervening years have changed my opinion substantially, and this does nothing to rehabilitate her.
This from Law.Com
A New York City bodega worker who was denied a public defender even though his attorney did not inform him of a potential conflict of interest, repeatedly failed to appear in court and suggested he "wasn't going to do a very good job at trial" has been given a second chance to argue a motion to vacate his guilty plea on a charge of possession of crack cocaine.
What judge denied the bodega worker a public defender?
Micki Scherer .
Now I used to think, (back when I practiced in front of her in Brooklyn), that Scherer was a decent judge, but the intervening years have changed my opinion substantially, and this does nothing to rehabilitate her.
Sunday
Waterboarding...
I feel like my earlier post about waterboarding in which I posted the demonstration video didn't provide quite enough detail--particularly that highly trained navy seals can usually break in about two minutes and that it was the Khmer Rouge that really got good at this. Here's what they used:
Greed Get's 'Em Again...
For the past five years, Sen. George Allen, has failed to tell Congress about stock options he got for his work as a director of a high-tech company. The Virginia Republican also asked the Army to help another business that gave him similar options.Imagine that. A Republican Senator caught with his hand in the cookie jar. Well at least it's not someone else's pants. Strangely, we'll wind up caring more about Foley than this, Iraq, Torture, Human Rights, Civil Rights etc.
Just sad.
Just sad.
Wednesday
Bill O'Reilly Labels Foley a Democrat...
No really. Here's a screenshot from Fox News Yesterday:
Hat tip to brad blog for this one.
Hat tip to brad blog for this one.
Tuesday
They asked for it!
Matt Drudge and the right wing pundits have a new tactic in La Cage Au Foley: Blame the victims.
Matt "They asked for it" Drudge
Here's the quote: "these 16 and 17 year-old beasts...and I've seen what they're doing on YouTube and I've seen what they're doing all over the internet -- oh yeah -- you just have to tune into any part of their pop culture. You're not going to tell me these are innocent babies. Have you read the transcripts that ABC posted going into the weekend of these instant messages, back and forth? The kids are egging the Congressman on! The kids are trying to get this out of him. "
Funny, most people don't believe it when my clients who are charged with sexual abuse of kids talk about how much the kids wanted them to do what they did, how the kids seduced them...never seemed like a viable defense but now that they're saying it, who knows?
Thanks Crooks and Liars.
Matt "They asked for it" Drudge
Here's the quote: "these 16 and 17 year-old beasts...and I've seen what they're doing on YouTube and I've seen what they're doing all over the internet -- oh yeah -- you just have to tune into any part of their pop culture. You're not going to tell me these are innocent babies. Have you read the transcripts that ABC posted going into the weekend of these instant messages, back and forth? The kids are egging the Congressman on! The kids are trying to get this out of him. "
Funny, most people don't believe it when my clients who are charged with sexual abuse of kids talk about how much the kids wanted them to do what they did, how the kids seduced them...never seemed like a viable defense but now that they're saying it, who knows?
Thanks Crooks and Liars.
Monday
This is waterboarding
Just so we're clear about what the president wants the authority to do.watch the video and decide if it's torture.
Saturday
Curses Foley'ed Again...
This is astonishing. Big republican congressman grandstands on kid-porn issues, while cybering with underage pages.
Mr. Strip off the Boxers
I rarely ever want anyone to go to prison, but here, the schadenfreude overwhelms me.
Mr. Strip off the Boxers
I rarely ever want anyone to go to prison, but here, the schadenfreude overwhelms me.
Wednesday
Tuesday
Hearts and Minds...
We'll come back to the fact that Andy Fastow was sentenced to just 6 years for his role at Enron...
Fastow...
In the meantime though, it's nice to be able to bring you (along with the usual yammering) this lovely post...esoteric appeal:
"Indefensible :
Anyone who has talked with me about my possible carreer paths in law has likely heard me use the phrase "public defender" and "over my dead body" in the same sentence. One of my largest objections to that was that I know I'd get someone who deserved to be locked up in jail and have the key thrown away and I'd have issues providing the best possible defense for this guy.
Thursday David Feige came to Northeastern to talk about his book, Indefensible: One Lawyer's Journey into the Inferno of American Justice. He spent 15 years as a public defender. During his presentation (which was amazing) he said that he never lost a night's sleep defending someone who was guilty, so I asked him about it during the Q+A. So he told us about George.
George was the worst person he ever defended, and he defended him twice. George would hold taxi drivers up at gun point and steal their radios. George would threaten David and David's co-workers. George would not plead down his charges. David said two things that really got to me about George. The first was that you can't feel bad getting this guy off if the DA can't prove their case. Him stealing would be nothing compared to the legal system failing in convicting a man on evidence less than a reasonable doubt. The second thing he said to me was that each and every one of these people, however sociopathic, are humans. You spend enough time with them to realize this and as soon as you don't recognize them as human you are doing yourself a great injustice, but the injustice you are doing them is much much worse.
I bought his book and will read it whenever I get the chance, I'm also going to look into a Co-op in PDs office."
Now I remember why I run around doing these lectures, and why, in the end I wrote the book.
One heart at a time.
Fastow...
In the meantime though, it's nice to be able to bring you (along with the usual yammering) this lovely post...esoteric appeal:
"Indefensible :
Anyone who has talked with me about my possible carreer paths in law has likely heard me use the phrase "public defender" and "over my dead body" in the same sentence. One of my largest objections to that was that I know I'd get someone who deserved to be locked up in jail and have the key thrown away and I'd have issues providing the best possible defense for this guy.
Thursday David Feige came to Northeastern to talk about his book, Indefensible: One Lawyer's Journey into the Inferno of American Justice. He spent 15 years as a public defender. During his presentation (which was amazing) he said that he never lost a night's sleep defending someone who was guilty, so I asked him about it during the Q+A. So he told us about George.
George was the worst person he ever defended, and he defended him twice. George would hold taxi drivers up at gun point and steal their radios. George would threaten David and David's co-workers. George would not plead down his charges. David said two things that really got to me about George. The first was that you can't feel bad getting this guy off if the DA can't prove their case. Him stealing would be nothing compared to the legal system failing in convicting a man on evidence less than a reasonable doubt. The second thing he said to me was that each and every one of these people, however sociopathic, are humans. You spend enough time with them to realize this and as soon as you don't recognize them as human you are doing yourself a great injustice, but the injustice you are doing them is much much worse.
I bought his book and will read it whenever I get the chance, I'm also going to look into a Co-op in PDs office."
Now I remember why I run around doing these lectures, and why, in the end I wrote the book.
One heart at a time.
Sunday
Go Green...
As it turns out, going green is easy. So easy, in fact that I just switched and I encourage all readers to do the same. With the deregulation of energy, comes choice, and to my delight (having just found out about this program) for literally one cent more per kilowatt hour, you can insure that your share of energy consumption comes from renewable, zero emissions grid.
You even get a tax break.
If you live in NY, all you have to do is
by click here and sign up. If you're not in NY, click here to see your options.
So Switch. It's painless and it's righteous.
Thursday
Hello Harvard...
Sorry for the lack of posts--I've been up giving a little talk at Harvard Law School.
Be back soon. Meanwhile, consider this:
One of the architects of the new indigent defense system in New Orleans faces a contempt hearing -- and possibly jail time -- after Criminal District Judge Frank Marullo on Wednesday ruled Steve Singer did not comply with his order to swiftly appoint lawyers to three defendants facing death penalty charges.
Marullo had called Singer into his courtroom Wednesday morning to explain who would take over the three capital cases on his docket, which include a first-degree murder charge and two cases of aggravated rape of a child younger than 12.
The previously appointed lawyers for all three defendants recently quit the Orleans Parish Indigent Defender Program after its newly appointed board decided to no longer allow its lawyers to have private practices on the side. The new policy requires all public defenders in New Orleans to be full-time staff attorneys.
Tough going down there....
Tuesday
I got sued...
Newsday and a number of other papers are reporting that I've been sued by former ADA Sara Schall. And though I haven't yet been served with papers, I do, thanks to the lovely reporters, have a sense of what she alleges.
Oh my--if ever there were a pathetic vanity suit this is it. She's actually suing me because I called her "dowdy" I mean get serious. Leaving aside that I think she is dowdy, you can't actually sue people for that. It's almost hilarious. I know you think I'm kidding but the lawsuit actually says Ms. Schall "took great care with her personal appearance and grooming." How awesome is that?
Oh, hey, don't bother googling her--there's no picture available so you can't even judge for yourself.
Anyway, what's really going on here is that she, along with many others doesn't like the fact that INDEFENSIBLE reveals the systemic and personal shortcoming of justice in the Bronx. This is all about the fact that I've written a book that tells it like it is, and done it while naming names. It seems pretty clear that Ms. Schall just can't stand being called out and my guess is that she's just horrified that her actions have been brought to light. She also seems to forget that truth is an absolute defense.
Sunday
Doing it right...
I spend a lot of time railing about the awful press coverage our clients get. So I feel as if it's only fair to give credit where credit is due.
In this case, to CARA BUCKLEY for this excellent piece. I suspect Buckley is a stringer (given that she has just a few more solo NYT Bylines than I do). And my sense is that she's someone who mostly chases down otherwise overlooked crime stories. Nonetheless, this is an excellent example of what happens when someone is willing to look beyond the crime, at the client beneath.
Well done.
In this case, to CARA BUCKLEY for this excellent piece. I suspect Buckley is a stringer (given that she has just a few more solo NYT Bylines than I do). And my sense is that she's someone who mostly chases down otherwise overlooked crime stories. Nonetheless, this is an excellent example of what happens when someone is willing to look beyond the crime, at the client beneath.
Well done.
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my controversial book about a day in my life as Public Defender in the South Bronx is finally available for Kindle and Ipad.
