The Kleptocracy Continues...

Hard to believe, but the rich are getting even richer. New government data indicate that the concentration of corporate wealth among the highest-income Americans grew significantly in 2003, as a trend that began in 1991 accelerated in the first year that President Bush and Congress cut taxes on capital.

In 2003 the top 1 percent of households owned 57.5 percent of corporate wealth, up from 53.4 percent the year before, according to a Congressional Budget Office analysis of the latest income tax data. The top group's share of corporate wealth has grown by half since 1991, when it was 38.7 percent.

In 2003, incomes in the top 1 percent of households ranged from $237,000 to several billion dollars.

For every group below the top 1 percent, shares of corporate wealth have declined since 1991. These declines ranged from 12.7 percent for those on the 96th to 99th rungs on the income ladder to 57 percent for the poorest fifth of Americans, who made less than $16,300 and together owned 0.6 percent of corporate wealth in 2003, down from 1.4 percent in 1991.



I've been getting quite a bit of mail about the recent posts about the St. Petersburg Times series on public defenders. Interestingly much of it has focused on a point I made about Charley Demosthenous's education and bar passage record, and most of it seems to misunderstand my point.

PD talking with a juvenile client

So let me try again: I think PD's do the most righteous work in the world. I was one for almost 15 years and continue to do indigent defense work to this day. My point isn't about Charley's education--it is about the St. Petersburg Time's editorial decisions. What appalls me about the series is not that Charley seems to be a kindly, vaguely pugilistic hack who is getting his chops working at the PD's office because the prosecutors wouldn't hire him--while I wish there weren't such people doing this sacred work, I accept it as the occasional reality--but rather that the newspaper picked him to follow and him as a placeholder for all of us. That editorial decision is unforgivable. My point is not that PD's need any particular qualification, but rather that they are constantly portrayed as bottom feeders rather than the highly skilled, deeply dedicated and terrifically passionate people they are. Had they at least picked someone who cared about clients rather than his own manliness, it might have been passable. Instead the series is insufferable.


Next Installment

South Florida Public Defender Cliche-Fest Four continues tomorrow with the next installment of the utterly predictable adventures of Charley Demosthenous the low rent public defender on a personal quest to become a "man" by doing a jury trial.

Charley in his office

The entire premise of this series is offensive--worthless shit lawyer seeks personal redemption in thankless job he doesn't really care about. And though there are a few nice throw away lines about the clients (mostly guilty of course and generally disagreeable) and even a few cute details about Charley's feuds with the asinine prosecutors, there is nothing to suggest systemic failure or shortcoming, nothing at all about the politicization of the judiciary, the revolting antics of corrupt prosecutors, or the misuse of bail to coerce pleas. Instead this series relentlessly panders to every criminal justice cliche: The defense lawyers would rather be prosecutors, The clients are faceless and almost always described solely in terms of their alleged crimes, The PD's are poorly dressed and see jury trials as about their own skills rather than the fate of the clients...

Nowhere are there dedicated well credentialed lawyers like those at The Bronx Defenders.

Imagine what a different piece it might have been if it followed Jake Stevens, one of our senior trial lawyers--a man who went to Harvard undergrad, NYU law school, speaks three languages, and loves his clients, or Josh Bowers who clerked for the second circuit, and left one of the most prominent white-collar criminal firms to do god's work in the South Bronx. Imagine for a moment a piece that bothered to look at how they integrate into a criminal practice the work of BDX social workers like Jenny Crawford (Columbia School of Social Work and also Bi-lingual) Such a piece might actually have had something meaningful to say about the criminal justice system instead of simplistically situating an idiotic coming of age story in a PD office.

Let's be clear, the argument above has nothing to do with whether someone with a fancy pedigree will be a better public defender than someone from a third tier school, but it does have to do with dispelling the cliche that only poorly qualified people become Public Defenders and that most PD's are in the work for self-agrandizment.

Thanks to Mike Hope for the tip.

The $40 lawyer

Heaven help us. The St. Petersburg Times Floridian has decided to run a lengthy series on a year in the life of a PD. So who should they pick? Could it be a brilliant highly skilled, graduate of a top law school (the sort of lawyers we usually hire at The Bronx Defenders)? Of course not.

This being Florida, and these being public defenders, even the most well meaning members of the fourth estate can't escape their pathetic reliance on stereotypes. As a consequence, I bring you Charley...described in the pull quote as follows:

"After passing the Bar exam on his fourth try, Charley Demosthenous wasn't exactly a hot property. Even his father thought he should go sell screwdrivers. Representing the poor and miserable was his last chance to be somebody."

Stereotypical PD Failure Charley

It's shit like this that makes me happy I've written a book of my own. I'll be relieved when somewhere in the world there is a piece of PD literature that doesn't assume we all failed the bar, or wanted to be prosecutors.

More on this appalling series as it progresses....


We Lose...

Well, it was a long road and a lot of litigation, but the jury has spoken and in the traditional argot of juries, they said something best translated as "Go home. You Suck."

Yes, indeed, I got a bad verdict in the trial--a defense verdict. And I admit it--I was completely flabbergasted. The idea that we'd just lose hardly crossed my mind. The jury, clearly frustrated after a very long very slow trial basically scored it two experts for us, two experts for them and decided to call it a draw. The one thing they didn't seem to want to do was weigh credibility--one of the few things both sides urged them to do.

The good news, of course, is that this wasn't a criminal trial, and so, in the end, no one goes to jail. It was all about money, and frankly, after 15 years of being a PD, it's awfully hard to get too exercised about who gets the money. Yes, I definitely thought our client was seriously wronged, and there's no question in my mind at least that the defendant (Dr. Herbert Brown DDS who, it turns out had another malpractice case filed against him that he won in part on statue of limitations grounds at the appellate level) totally butchered our client. Moreover, I took it as a point of pride that we only asked for what we really thought the case was worth. Alas, it turns out that at least for now, the case is worth exactly nothing.

I'll post a longer review of the trial soon, along with some of the many things I learned about civil litigation (it's neither). But for now, it's time to start copyediting the book, working on the flap copy (pretty cool I must say) and heading out for a big-assed meal of tasty indian food.


I Sum Up Monday...

Sadly copyediting will have to wait a few days.
Summation and jury charge is coming up Monday. Should have a verdict soon thereafter.

Stay tuned...

And wish me luck...


Trial and Book Update...

Sorry I've been too busy to blog much recently.

The trial continues slowly, with the last defense witness to testify tomorrow.

It's very strange this civil stuff--the defense really has no case, but interposes this bizarre series of technical defenses that are all form over substance. "I only got a photocopy not the original" kind of stuff. Worse still is what they're doing to try to keep their client from taking the stand. I'll tell that story when the case is over. Suffice to say It's made me a bit crazy.

Expect a verdict Friday or Monday.

On the Book front...

The good news is the legal review of the book is done and I've passed with flying colors. Nothing actionable in the thing, just good old fashion strong opinion! I'm very pleased by this especially since I really wanted to name the names of judges and prosecutors I write about, and I have and can.

They are messengering me the copyedited manuscript tonight (unfortunately I won't get it because I'm down at my co-counsel's office working) and I should get a chance to see the final version very soon. Looks like Galley's in February.

Ok, back to preparing jury instructions, and my cross of the last supposed expert.


A dream delayed

Sorry for the light blogging...
Here's an image for the day:

Dr. King with a Bandaged John Lewis

Thanks to Slate for there new series of photos from the Magnum archive.


Second Thoughts...

Trial Update: We're off today and courts are closed on Monday, so I'm off for a few days--a nice and much needed breather. We'll continue tuesday and should be summing up by Friday.

Meanwhile, The Times has a great article today titled A Fallen Judge Rethinks Crime and Punishment It's about Judge Roland Amundson, a former very conservative law and order judge who was convicted and sent to prison.

Judge Roland Amundson

What is so interesting is not just his prison awakening--there's hardly a judge up there that has any idea what they're actually sentencing someone to--but rather the humanity of the other inmates, formerly just abstractions to him.

Here's a particularly nice bit:

His last night behind bars, Roland Amundson was sitting in the prison library when he felt the large shadow of someone standing over him. He looked up to see the inmate others feared the most, a former motorcycle gang leader who had been convicted of killing a man in a bar fight - a murder so violent the court doubled the standard sentence.

The man wanted to talk.

Mr. Amundson had been the appellate judge who upheld that unusually strict sentence. Now, he was just a fellow prisoner, inmate No. 209383. "He asked if I remembered him," Mr. Amundson recalled in an interview in December. "He wanted me to know he didn't hold any hard feelings against me."

The encounter in October, Mr. Amundson said, was one of a dozen times in his three and a half years in prison that he was confronted by inmates whose sentences he had ordered or upheld in 15 years as a judge. Those experiences and Mr. Amundson's other dealings as a convicted felon - at his sentencing, prosecutors turned the words of his rulings against him to justify a longer term - have shaken the world view of a man who, from the bench, thought he knew all there was to know about crime and punishment.

more here...


Very Sad...

Bill Bryson, one of the most renowned criminal defense lawyers in Alaska, is dead. He was a great instructor, a talented lawyer and charming colleague. I taught with Bill at the National Criminal Defense College (and ate lots of the home smoked salmon and halibut he brought every year to the faculty meetings) and like many many others will miss him.

Bill Bryson

From the article in the Anchorage Daily News

One of the state's best known criminal defense attorneys is dead by his own hand.

Bill Bryson, 58, was found by friends about 6:30 p.m. Tuesday at his West 15th Avenue home, police said. State Medical Examiner Franc Fallico said he died of a self-inflicted gunshot wound to the head.

Although Bryson had financial and personal troubles over the years, friends said they knew of no precipitating cause for his suicide. An elegant, even flamboyant figure on the legal scene, Bryson was widely valued as a trial attorney and as a teacher of young lawyers here and nationally. At the time of his death, he was on the city Parks and Recreation Commission and was passionately committed to building a track-and-field facility for kids in Mountain View, said attorney and longtime friend Nancy Shaw.

Bryson was among a group of young law school graduates who came to Alaska in the early 1970s and stayed to make names for themselves. He arrived in 1972 with a brand new degree from Boalt Hall, the law school at the University of California Berkeley, to work in Juneau for Alaska Supreme Court Justice Robert Boochever. His colleagues that year included other future stars: Anchorage defense attorney Phil Weidner, former Superior Court Judge Doug Serdahely and former U.S. Attorney Mike Spaan.

Bryson had a seat at the defense table for many high-profile cases over the past 30 years, representing some of Alaska's more notorious criminal defendants, including as local counsel for Neil Mackay, acquitted of killing Alaska Airlines pilot Robert Pfeil; as co-counsel for Andrew Nelson, convicted of killing former girlfriend Sandra Pogany; and as trial lawyer for Scott Walker, convicted of kidnapping pioneer Mildred Walatka but acquitted of killing her. He did even more work behind the scenes, negotiating deals for clients who had nothing to gain by taking their case to a jury.

For many years he was on the board of the National Association of Criminal Defense Lawyers and usually spent a couple of weeks a year teaching at association workshops back East, Weidner said. Colleagues in the defense bar regularly called on him for help with cases ---- "whenever we had a situation one of us hadn't faced before," said attorney Rex Butler. "He had faced them all."

Bryson was witty and upbeat with a reverberant voice an actor would envy. His friends plan to remember him the way he would want to be remembered, with a big party on Jan. 27, at 7 p.m. at Josephine's restaurant.


Off for a day...

The trial is suspended today, which gives me a moment to bring you the most recent awful news from the sentencing front.
Weldon Angelos's Term of 55 Years was Upheld this morning.

Lisa Angelos cries after her brother is sentenced to 55 years

You will recall that Angelos was the Utah man with no criminal record who was convicted in 2003 of selling several hundred dollars worth of marijuana on three occasions and sentenced to 55 years by Judge Paul Cassell--a very conservative judge, who himself was appalled by the sentence he believed he was required to impose.

"To sentence Mr. Angelos to prison for essentially the rest of his life is unjust, cruel and even irrational," the judge said. Then Cassell did just that, while calling on President Bush to commute Angelos' sentence to one more in line with his crime. (Don't hold your breath).

In other news, the DC circuit has weighed in on Booker retroactivity (no surprise there) New Jersey and California are headed toward being states with moratoriums on the death penalty, and strange bedfellows in California (a prosecutor and a defense attorney) are trying to come together to modify the three strikes rules.



Still on trial...
While I'm away, feel free to amuse yourselves with the Crab Palette


Blood on her hands?

“An innocent man is going to be murdered tonight. When my innocence is proven, I hope Americans will realize the injustice of the death penalty as all other civilized countries have.”

Those were Roger Coleman’s last words before he was executed in 1992.


They may prove to be prophetic. Just a few days ago, Virginia Governor Mark Warner ordered DNA testing to determine whether or not it was Coleman who had raped and murdered his sister-in-law in 1981.

Interestingly, as Criminal Appeal reminds us, Coleman also made some significant law...

"This is a case about federalism" was the first sentence in Justice O'Conner's majority opinion in Coleman v. Thompson, 501 U.S. 722 (1991), a seminal case on federal habeas review of claims defaulted in state court. Invoking the two F's (federalism and finality) the Court held that Coleman would have no federal habeas corpus review of his claims of ineffective assistance of trial counsel because he had defaulted on his claims by filing his notice of appeal from the state trial court's denial of his state habeas petition one-day late. The Court held that untimeliness was an adequate and independent ground for dismissal of the state habeas appeal. The Court also held that a procedural default in state court can be excused on federal habeas review only by a showing of cause and prejudice. Because there is no constitutional right to counsel in state habeas proceedings, state habeas counsel's late filing of the notice of appeal was not sufficient cause to excuse the default. Coleman was the executed in 1992.

Justice O'Connor

It will be interesting to see whether, if it turns out that because of her grotesque and picayune ruling, an innocent man was executed, Justice O'Connor will finally change her view on the death penalty. Having some blood on your hands can, I think do that to a person, even a Supreme Court Justice.


Week One Done...

Still O.T.
Still chugging along through our case in chief.
So far so good.

In other news:


As you avid readers may remember, I was down in Missouri last month teaching at a public defender conference. Well it seems that our faculty dinner and the party after it made an impression. As it turns out, another one of the presenters--the legal humorist Sean Carter. ( Caricatured above) has actually written about it in his column in the ABA journal.

Now do you really need to guess who was sitting across from Carter at the aforementioned dinner? Why, yes it was yours truly, flanked by the inimitable and raucous Asheville attorney Steve Lindsay

Here's a selection...

"In my travels, I have had the good fortune of meeting many interesting lawyers. Last month I had the pleasure of spending three days with a very interesting group of public defenders in the Midwest.

To put it simply, these men and women were the most down-to-earth lawyers I’ve ever met. Of course, if the rest of us worked for prison-level wages, we’d probably find it hard to be pretentious (or adequately nourished).

Also, given the fact that PDs spend so much time in jails and prisons working with criminal defendants, some of their clients’ streetwise traits and mannerisms have rubbed off on them. This is particularly true in regard to their language. To say that they often expressed themselves in colorful terms is the greatest understatement since Survivor-winner Richard Hatch’s 2001 tax return.

I haven’t heard so much profanity since watching an episode of HBO’s prison show, Oz. In fact, in many ways I felt like I was in Oz–—the prison, not the land of Dorothy. At any moment I half expected someone to walk up and inform me that they had purchased me for a carton of Marlboro Lights. Of course, given my rugged good looks, that kind of transaction is bound to take place at even corporate and large law firm events.

Needless to say, my fears were overblown. I wasn’t forced to join a PD gang for protection. Nor did I have to get a tattoo or shank the hotel concierge to earn my stripes. In fact, the event organizer (i.e., the "shot caller") even refused to take my dinner dessert, even though I dutifully offered it to her each evening in the "commissary."

To tell the truth, once I got over my fear of becoming someone’s property, I had a blast! In addition to knowing several thousand words to describe various parts of the human body, these lawyers know how to party, old-school style. They did away with the goose liver pâté and chicken on a stick, the glasses of wine and the string quartet playing in the background. Instead (and I’m not making this up) they had a bowl of Cheetos in the corner, real liquor in plastic cups and a boom box blaring gangsta rap. Now, that’s how you throw a (bleeping) party!

At the end of the week, I was left with two thoughts:

I should have kept my wallet in my front pocket.
I wish my other clients were just as down-to-earth..."



Opened this morning.
First witness is done.
Continuing tomorrow!
More soon.


Jury Selected...

The jury is selected.
Opening statements are tomorrow...

I'll keep you posted...


Goodnight and (wish me) Good Luck...

I'm prepped and ready and off to do a (gasp) civil trial starting first thing in the morning. I got my exhibits printed, laminated and mounted, my trial binders organized, my note pads all arranged, and expert witnesses on call. I've got directs and crosses mapped out, and motions...ah motions...basically, I'm good to go! So expect some very light blogging over the next week to 10 days.

And wish me luck!

Want a taste? I knew ya did.

One of my many exhibits...


Starting the Year in the NYT

Good Morning and happy New Year!
My first piece of the year was published today in the New York Times Arts and Leisure section. It's called We Find the Defendant Not Guilty (if That's O.K. With Everyone) and is the more polished version of my earlier musings about the show "In Justice" originally posted here.

So a big thanks to Jeff Sherr in Kentucky who originally sent me the link to the new show and piqued my interest.

"In Justice" premiers tonight (though the second episode is a bit better than the first).