You got somethin' to say about cops?

Down in south florida, a CBS investigative team set out to determine how easy it is to complain about police behavior. What they found won't shock most of you--of the 38 police stations the team went to, all but 3 refused to give them the forms. What's sweet about this though, is that they were taping. And some of the tapes are priceless in how perfectly they capture the subtle intimidation cops use all the time. Take a look at this video for a sample. It captures Sergeant Peter Schumanich in the act of being a perfect cop.


Sergeant Peter Schumanich

As you watch Sergeant Peter Schumanich's excellent customer service skills please understand that this kind of behavior is ubiquitous. Another little note--when Schumanich was exposed, instead of resigning or apologizing, he sued CBS and went to court to try to get a TRO to preventing the station from airing the video.

How totally cool...

Ok, so on Friday evening I posted the link to the pre-order page for my book, and within 10 minutes someone had actually bought it. Over the weekend, several more followed suit. I have to admit I find this completely, insanely cool. So far, I haven't even really dealt with any of the PR issues surrounding marketing a book, so this is all very new...



As of today, I'm inside 100 days until publication. I'm supposed to get the page proofs in the mail either today or tomorrow. I've got less than a week to look over them, mark them up and get them back so they can produce galleys...

You can get it if you really want!

Indefensible is almost here, but...


For those of you dying to read my book (that means you Tom!) I've set up a new page where you can not only pre-order, but pre-order a personalized copy. (This is mostly for public defenders and readers of the blog)



On the site you can order a copy which I'll send to you as soon as I can get the books, sign and inscribe them all and get them into the mail (figure somewhere in the second week of June).

Let's do the numbers...

In order to facilitate the settling of criminal justice debates, I thought I might link to a great source for answers: The Bureau of Justice Statistics. Here's a little snapshot of Felony Defendants in Large Urban Counties, from 2002.



As it turns out, An estimated 56,146 felony cases were filed in the State courts of the Nation's 75 largest counties during May 2002. About a fourth of defendants were charged with a violent offense. Two-thirds of defendants were charged with either a drug (36%) or property (30%) offense.

Thirty-eight percent of all defendants were detained until the court disposed of their case, including 6% who were denied bail. Murder defendants (92%) were the most likely to be detained. Nearly all (95%) convictions obtained during the 1-year study period were the result of a guilty plea. About 5 in 6 guilty pleas were to a felony. The mean prison sentence for violent felony convictions was about 10 years and the median was 5 years. For nonviolent felonies the mean was about 3 years and the median 2 years. Murder (40 years) and rape (10 years) convictions carried the longest median sentences.

Overcharging in Overdrive

Here's a nice little potential injustice...

Michael Toter, a 16 year old kid is being charged and tried as an adult for reckless vehicular homicide. He faces 2-6 years in prison.



Now his might make some sense if there were drugs or alcohol involved, but in Toter's case, there weren't. The basis of the recklessness allegation is that he was speeding--9 miles over the limit in a 45 mile an hour zone, on his way back from school.

Let's be clear, there is some basis (though feeble) to prosecute Toter. The problem is that this sort of reckless crimes should be prosecuted in juvenile court where there is flexibility in sentencing not adult court where the result is a prison sentence for a decent kid who got into an accident.

As is the policy here at INDEFENSIBLE, you should know that District Attorney John Newsome is the guy responsible for this utterly foolish decision.

You can sign a petition addressing Newsome's decision

here

Coverage like this makes me want to vomit...

This obscenity by ANEMONA HARTOCOLLIS (of the New York Times) perfectly captures the reasons public defenders never ever want to talk to the press. Not only are most reporters asinine when it comes to portraying the clients, they're actually snotty about the lawyers. At least the ones who toil in obscurity on behalf of poor folks. This though may set a new mark for grotesque condescension.

Don't even get me started on this one.

When a Cop Turns PD

Thisoutstanding article chronicles what happens when a police officer actually switches sides and becomes a public defender.



Of course, few people out there ever really hold it against an ex-prosecutor when they become a white collar defense lawyer. But how do cops react when one of their own becomes a public defender? Just like cops--with threats, intimidation and baseless allegations. Ah read on...

After the PD testified as an expert on police practices, the cops, in their newsletter ran an article essentially soliciting people to make disciplinary complaints.

"“If you confided with Ed about fudging a report, engaging in undetected misconduct, harboring ill will toward a particular person or class of persons, prior discipline, poor evaluation, or even making a mistake, you have shared private and confidential information,” if he violated that confidence, the newsletter urged, they should report him to the disciplinary committee.

How did we let this guy plead?

Zacarias Moussaoui is now permanently banned from helping to select a jury which will determine whether he lives or dies. The ban is the result of his constant crazy outbursts in court and his regular disruption of the proceedings. Now I've been in a similar situation, and even once tried a case with a defendant who was so disruptive he was removed from court, and, when he refused to come back, tried in absentia.

Moussaoui in his Fed-wear

But as I watch the Moussaoui lunacy unfold, I keep wondering--how did we let this guy plead guilty in the first place. How is it that a judge who seems as decent and considered as Brinkema seems to be, found him able to waive his defense, and enter a plea to capital charges?

Here's an account of today's shenanigans from the LA Times:

"Today's hearing was set up for the judge to go over the individual jury selection process. She began by saying her "main reason" was to "determine how Mr. Moussaoui plans to behave." He wasted no time telling her.

Speaking in Arabic and English, Moussaoui rose and called the proceedings nothing more than my "organized death." In April he pleaded guilty to capital murder for participating in the Sept. 11 terrorist plot, but also claimed that he was being recruited to fly an airplane into the White House at a later date. The question now is whether he should be sentenced to death or life in prison with no parole.

Moussaoui started today by disavowing any allegiance to France, calling it a "nation of homosexual Crusaders." He said, "I tell you I am a Muslim.... I am not a frog."

Brinkema could not silence him.

"Today is my death, today is my death," he repeated, angry that the judge would not excuse his defense lawyers and let him represent himself.

"If I don't make sure that these people are not going to represent me, I know that I am dead, OK?"

But even then, Moussaoui said, he did not expect justice. "You own everything," he told the judge and the lawyers seated around him. "You are America — the defense, the judge, the attackers. These people are American. I'm Al Qaeda. I'm a sworn enemy of you. You, you, you, you. For me, you are enemy."

Fantastic Journalism

In an unprecedented three year investigation, the San Jose Mercury News has uncovered for the public what those of us in the system have always known: Our criminal justice system is rife with error.


San Jose

Over the next week or so, as I plow through their exhaustive coverage, I'll be posting at some length about this series. It deserves the attention.

Here's how it starts:

"The Santa Clara County criminal justice system failed Miguel Sermeno.

Sermeno was arrested on felony hit-and-run charges after walking the half-block from his house to the scene of an accident. An overzealous deputy district attorney ignored evidence that pointed to a more likely suspect, instead winning a wrongful conviction.

The system failed Bobby Herrera.

Herrera pleaded guilty to assault for a shooting he did not commit, buckling to pressure from an incompetent lawyer who bled his family for thousands of dollars but never investigated the case. Even after the key witness admitted she falsely accused him, indifferent state appellate court justices let his five-year prison sentence stand without explanation.

The system failed Frederick Brown. Brown was sentenced to 26 years to life for possessing stolen property, after he hauled away a truck that had been stripped of parts as it sat idly near his home for a year. The trial judge refused to instruct the jury on a key point of law: Brown was not guilty if he believed the truck was abandoned.

The three cases are among hundreds examined in an unprecedented three-year Mercury News investigation of the Santa Clara County criminal justice system that shows a disturbing truth:

A dramatic number of cases were infected with errors by prosecutors, defense attorneys and judges, and those errors were routinely tolerated. In dozens of cases, the errors robbed defendants of their right to a fair trial. And in a small number of the very worst cases, they led people to be wrongly convicted.

The study reveals ``a basic truth about how the criminal justice system operates,'' said Laurie Levenson, a former federal prosecutor who teaches criminal law and ethics at Loyola Law School in Los Angeles. Levenson was one of seven experts in criminal procedures and ethics who reviewed the Mercury News findings. ``A lot of sausage gets pushed through that machine. Errors that help the prosecution are common. The uneven nature of criminal justice is a serious concern.''

The Mercury News began its investigation in late 2002, as concerns emerged about the quality of justice in a series of high-profile cases. To test how the system worked more broadly, the newspaper reviewed the records of five years of criminal jury trial appeals decided by the California 6th District Court of Appeal -- 727 cases in all. In addition, the newspaper uncovered about 200 cases of questionable conduct that were not part of the study period, by reviewing files and interviewing lawyers.

The result is an unparalleled look at the extent, nature and impact of errors in a criminal justice system.

The review established that in 261 of the appellate cases reviewed -- more than one in every three of the total -- the criminal trial had been marred by questionable conduct that worked against the defendant. In only about one in 20 cases did the defendant win meaningful relief -- either a new trial or a significantly reduced sentence -- from higher courts.

The problems occurred at every phase of a trial, and in every part of the system."

Lash Back...

Now even though Tom McKenna has basically called me ugly and suggested I have a financial motive for being against the incarceration of the innocent, he's a regular blog reader and commenter and so, because I'm a good guy and don't mind being called ugly even by a guy who looks like this...


Tom 'McKenna' More


I'm going to respond to his recent comment on my attack on Josh Marquis. (previous seething posts here and here)

Our argument centers on the absurd numerology Marquis used in a NYT Op-Ed that argued that the error rate in the justice system was incredibly low (See post below for background).

Tom argues that "guilty pleas should be part of the equation, since the question is how well does our system identify and convict the guilty. Guilty pleas are part and parcel of showing that the system works in that the police found the correct perpetrator, the prosecutor charged him with the correct offense, and the defense attorney and the client reached a conclusion that a guilty plea was in the client's best interest."

Now this is an interesting approach, and one I'm inclined to agree to provided Tom agrees with me that pleas to lesser offenses demonstrate error on the part of the prosecutors, and dismissals (which should then be counted as exonerations) demonstrate errors on the part of both police and prosecutors. Under that metric, the system errs about 80 percent of the time. Of course he won't do this. It's the little straw man to introduce the argument...

Look--if you want to understand how absurd the Marquis/McKenna position is, think of it as a football game. There are many plays on which penalties aren’t called, sometimes rule violations are missed, other times a flag is thrown but after the ref’s huddle it’s determined that there was no infraction. Sometimes there is a call that gets reviewed by instant replay. If you’re looking to figure out how disputed calls were accurate, you look at the number of plays challenged and those that get reversed, you don’t divide the number of reversals by the total number of plays by all teams in an entire season. The reason is simple—and mirrors the criminal justice system—only a small number of plays are contested, just as a small number of cases go to trial. If you want to find out how good the truth-finding function of a trial is, look at the disputed calls, not the total number of plays.

This isn't complicated. What it is, is a concerted effort by prosecutorial zealots to mislead. And that's unfortunate for all of us.

Shame on Josh Marquis

I'm back after a lovely west coast swing, and finally able to devote a few minutes to debunking the latest load of lard dished by our favorite prosecutorial shill Josh Marquis.


No innocence Marquis

You'll all remember his recent Op-Ed in which he whined about how awful it is that people are concerned about the wrongfully convicted, arguing that "Americans should be far more worried about the wrongfully freed than the wrongfully convicted." Nice.

Leaving aside the classically republican rhetorical slight of hand by which he cases prosecutors (the ones with all the guns, cops and political power) as underdogs, the essence of his argument is laid out in this twisted bit of numerology which somehow escaped the usually clear thinking folks at the times.

He writes: "To start, only 14 Americans who were once on death row have been exonerated by DNA evidence alone. The hordes of Americans wrongfully convicted exist primarily on Planet Hollywood. In the Winter 2005 Journal of Criminal Law and Criminology, a group led by Samuel Gross, a law professor at the University of Michigan, published an exhaustive study of exonerations around the country from 1989 to 2003 in cases ranging from robbery to capital murder. They were able to document only 340 inmates who were eventually freed. (They counted cases where defendants were retried after an initial conviction and subsequently found not guilty as "exonerations.") Yet, despite the relatively small number his research came up with, Mr. Gross says he is certain that far more innocents languish undiscovered in prison.

So, let's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent — or, to put it another way, a success rate of 99.973 percent.

This is among the most absurd argument the times has ever published. It's essentially tautological--in that it takes as it's premise that a study of exonerations is somehow equivalent to the number of wrongly convicted people. If you want a higher error rate compare the number of people exonerated with the number of cases the innocence project took and poured time into. Or perhaps compare the number of people put to death in Illinois to the number exonerated (then we're looking at an error rate of 50 percent) I'm not actually suggesting that half the people in prison are innocent, but rather in a glib way, showing how the grotesque manipulation of data can yield nonsensical results. And the ones Mr. Marquis invents are nonsensical.

There's another reason his "calculations" are stupid and misleading. He wants to count all felony convictions, not those in which someone was convicted at trial. Most people in the system acknowledge their guilt and cop a plea. Getting a sense of how well the system works requires tossing those results. Do that and by a conservative estimate Mr. Marquis's vaunted error rate shoots up to over one in 10--the kind of failure rate that would actually get any product recalled and the manufacturer sued.

At Long Last...

I've had a chance to read the third installment of the $40 lawyer, that awful series in the St. Petersburg Floridian


Our PD Hero with Gun

Here's what jumped out at me: The consistently low expectations. The fact that crappy lawyering is not only accepted but seems to be misperceived as good. Take the following passage about the PD's first awful trial:

"He can't really deny his client exposed himself, so he casts the act as one of road rage, done not for sexual kicks but in retaliation for being flipped off. He invites jurors to consider whether dogs mount each other for sex or for dominance. He compares prosecutors, in their presentation of the evidence, to incompetent fast food clerks.

"You have received your Big Mac. You have received your supersize Coke. But where's the supersize fries?"

The jury deliberates just six minutes. It must be some kind of world record. Barely enough time for them to hustle into the little room, sit and vote. The Flasher is guilty as charged, one count of misdemeanor lewd and lascivious behavior.

No one looks surprised, not even the Flasher. He gets 30 days.

Michelle Florio, who has supervised Charley since he left the juvenile division, is impressed with the fight he put up. She knows right away whether a lawyer has the chops for trial work. This one does. She sees presence, fire.
"He has no fear," she says. "I truly believe he's going to be one of the great ones."

Are you kidding? One of the great ones? for asking couching reasonable doubt in terms of suupersize fries? For keeping a jury out for six minutes? And why the hell can't he argue that his client didn't do what they said he did? This is pathetic.

Out In LA...

Sorry for the long delay in posting. I've been in Los Angeles for the week tromping around seeing friends, having "meetings" and copy editing the book.



There is, of course much to blog about including The final installment of the Saga of the Florida PD entitled Judgment and the inane and misleading Op-Ed penned by famed prosecutorial putz Joshua Marquis (you can find it here)

In particular Marquis's absurd numerical argument concerning innocence needs some trashing. He'll get it here just as soon as I can find a few extra minutes.

Meanwhile in book news, the flap copy from the book is pretty much done.

Here's how it starts:

“I like the cold. On cold nights, people stay off the street corners; less corner traffic means fewer arrests and fewer arrests mean a lighter arraignment load. All year long, I sleep with the window open, hoping the air drifting in might signal a frost…”

INDEFENSIBLE is public defender David Feige’s hair-raising, dark, and stirring account of a single hot day in the South Bronx—a day informed by crime, punishment, desperation and hope. Following Feige through the underworld of big city justice, we meet sly lawyers and batty judges, hapless defendants and crooked cops, lost souls and courageous giant-killers...

More on that soon as well.