Where I am...

About 20 miles from Moab Utah.
Just a short hop from Canyonlands National Park and Arches National Park.
Places where it looks like this at sunset:


Canyonlands

After some work, a few days of R&R before my lecture in Asheville.
It's good to be me.

The Cover is up...

Some book news:

1. The cover of the book is finally up on Amazon.

2. Galleys are printed and look kind of cool. I'm told they've already been sent out for reviewers.

3. Jami Floyd, the host of Court TV's the best defense just finished the book and offered this blurb...


Jami Floyd

“A must read for anyone who cares about American justice. Indefensible is a gripping journey into the dark world of crime and criminals. Feige not only gives us a blow-by-blow account of how criminal justice actually works, but guides us toward a more sensible and just system in the future. What results is a uniquely honest and passionate account of life and law from a dedicated lawyer who holds nothing back.”

So far so good...

Imagine my surpise...

When I learned that Doreen Boxer, a former colleague from the Legal Aid Society was just named the first woman public defender in San Bernardino County California. Doreen was a good lawyer back in the early 90's when I started and has obviously kicked some serious ass since. She'll oversee a $24 million dollar program and a staff of about 200 people.


John Roth--the former PD that Doreen is replacing...

So let's see, Kathleen Rice is now the DA in Nassau, Doreen Boxer is the PD of San Bernardino and me? I'm clearly getting old.

In Black and White...

According to the NYT, A rash of recent studies have demonstrated again what most of us already know: "Black men in the United States face a far more dire situation than is portrayed by common employment and education statistics,and it has worsened in recent years even as an economic boom and a welfare overhaul have brought gains to black women and other groups."



Why? "First, the high rate of incarceration and attendant flood of former offenders into neighborhoods have become major impediments. Men with criminal records tend to be shunned by employers, and young blacks with clean records suffer by association, studies have found."

Add this to what we know about policing strategies and arrest patterns and I think some people could be excused for seeing in these tea leaves a vast (maybe even right wing) conspiracy.

Good to be me...

So as the comments about the Slate piece filter in (thus far more good than bad), I spent the day doing something I may love more than anything else. Skiing. 'Twas a perfect day if you love fresh snow and empty lifts (ok and near-white-out conditions at the top). I got fresh tracks all day.


Not my actual tracks but close

I skied like a complete lunatic, and several times today I actually had that peak ski experience--deep, steep (steeper than the picture above anyway) and straight--leaving perfect lines on otherwise untouched chutes.

Ah heaven.
I'll meander back to criminal justice after a beer and a shower...(The Tankleff case is going to make me blow a gasket)

A New Slate Article

Thanks to a quick writing binge on tuesday night and unusual lucidity on the plane yesterday, I have a new piece on Slate.

It makes the case that what was unusual about what Carla Martin did in the Moussaoui case was that she did it by e-mail, thus making it undeniable. This really isn't about what she did (prosecutors do it all the time) but that fact that she left an electronic trail.

By any other name...

There is a reason I love public defenders, friends and readers so much. In response to my earlier posting about the vaguely legal dust-up over a story in the book about a lawyer who went off on a judge, I've gotten a number of e-mails and a few comments. And you, my friends and readers are essentially unanimous in your advice. "Take the high road" seems to be the overwhelming sentiment. Judy tells me to avoid righteous indignation, and Windy actually wants me to call and make peace.

So thanks all--I appreciate the fact that you all encourage the emergence of my better self. And you'll be pleased to know that I did decide to take the high road. While the story is in there, I didn't just change her name, I omitted names completely--sticking with "a lawyer I once knew." I even took out details that might have been painful. And then, once again, I went to bed feeling good. I was actually considering Windy's advice and thinking I might just make that reassuring call.

But the saga continues...

The lawyer called again.

This time, though he suggested that we might be able to put this whole thing to rest if I were to send the revised version to him so his client could tinker with it. Now I might have read it to her had she called me directly--after all I was willing to do that initially, but after all this, to hand over the text to the subject of the story just seemed stupid, and the truth of the matter was, once again, I felt like my good intentions had been misunderstood and my good will squandered. I said no.

So that's where we are. I don't hurt her at all (even though based on the record that would be unbelievably easy to do) nor do I identify her. But I wind up leaving this whole episode regretting that I bothered to try to do something nice. Or maybe just disgusted at the way people throw the weight of their entitlement and privilege around. She'd have made more headway by just being cordial, but the truth is, as anny points out, she's probably just scared. Still, had I just published she'd have been hurt but wouldn't have had any legitimate claim against me anyhow. So maybe in the final analysis the lesson here is that wasn't worth trying. Then again, as all of you point out, taking the high road needs to be it's own reward.

Thanks for the e-mails and comments...

Off to MSNBC...

I'm heading off to MSNBC to the Rita Cosby show.


Cosby...

We'll be talking about the Littlejohn case sometime between 9 and 10.
And I'm not wearing a tie.

Pride and Predjudice...

So the last few days have been a nice mix of festive and frustrating. Festive because the book is essentially done and gone, and frustrating because of a little encounter with another lawyer...

In the book I had a little story (I mean tiny) about a woman who went off on a judge. She was a decent lawyer and dedicated to her clients and I didn't really want to hurt her feelings or surprise her and so just because I was feeling all sweet, I called her to let her know what was up. Now let's be clear, the story I recounted was exactly as I'd heard it from several sources, I'd corroborated a part of it by getting the pertinent numbers and it was portrayed very sweetly in the book as something I not only understood, but in a certain sense, admired. Anyway, I had been thinking about changing her name just because I liked her but figured I'd call just to see whether she had really strong feelings about it...



Suffice to say she was far from thrilled and almost immediately started maneuvering. I've made a good life far from that whole thing, please don't dredge it back up was the most compelling argument. And listening to her talk about her life now, I was feeling bad and thinking well I guess I'll change it, and then she started to shift rhetorical gears and started in on a line that went something like this: I have connections, I know lots of lawyers, and what you heard is wrong. I have the transcript...

Well, say I, by all means, if you think it's wrong and you want me to correct it, just send me the transcript and of course, I'd be happy to change it. She refused (which might tell you something). Whatever. I hung up figured that on balance there was no need to make her so unhappy and so last night I went back and took her name and all her identifying details out of the book.

I then go to sleep thinking i've been sweet, and figuring I'll call her in the morning and tell her not to worry about it.

I never made that call.

Because before I could, my lawyer at the publishing house gets a call from some fancy media lawyer who is being all aggressive and trying to bully his way into taking the whole incident out. (And that's not gonna happen) But I've already taken her name and all the identifying details out of it and so now I'm peeved that she's trying to bully me and worse, that at the end of the day, something I did to be sweet, will come across as a victory for some hard blowing tall building lawyer with nary a leg to stand on.

The weird thing is that I felt nothing but kindness about the whole thing until she got a lawyer to be all pushy and entitled. I mean I'm not an idiot--filing some kind of suit would be the worst thing in the world for her--given that it'd make public and relevant all the personnel records, disciplinary hearings and other bad things that might exist concerning the incident . So why, I wonder, use the hammer when the supplicant's sweetness would have been so much more effective?

So now I'm sitting around trying to tame my pugilistic nature, and let the sweetness reign rather than give in to my vindictive inclination to put her name back in, along with the (clearly identified as such) rumors, the arrest number, the charges, and what happened to her afterwards. Hell, when you want to lay low why would you threaten? Especially when there's a record of an arrest and a transcript that you want to keep under wraps that has (thus far) never been circulated? I dunno. Just seems weird to me, and so self-defeating. Gosh.

So I think I'm still inclined to take the high road on this one but I have to admit it's a much tougher call now.

So readers, what would you do?

Ah, the best intentions gone awry.

The Mayfield Mishap

Remember when the FBI wrongly arrested Brandon Mayfield after claiming that his prints had been found on a bag of detonators related to the Madrid train bombing? (you can read the piece I wrote about it for Slate here)


Mayfield

Well DOJ has finally released it's report about the case. You can find the PDF here. As it turns out, even according to DOJ, the Patriot act is partly to blame for the fiasco. Both because it dismantled the walls between intelligence and criminal investigators and partly because of it's scarily low standards for the use of National Security Letters.

The result: in the chilling language of the report: "After Mayfield was arrested on the material witness warrant and the Court denied his request to be released to home detention, the USMS assigned Mayfield to be confined at the MCDC. From May 6 until May 12, he was housed in the administrative segregation unit where he was kept in his cell for up to 22 hours per day. "

The report goes on to note though "We found that Mayfield's conditions of confinement did not violate the material witness statute. We also did not find evidence that Mayfield was mistreated during his confinement. We found that he was housed under conditions that were consistent with the normal practices of the USMS and the MCDC for criminal defendants and material witnesses. "

Gotta love this headline...

This from Today's Law Journal:

Judge: No Separate Laws for 'Successful' People

"The state does not have separate, more flexible criminal laws governing the actions of the wealthy, a judge in Brooklyn, N.Y., has ruled."



Thanks for the news flash Judge. Now get real.

Thanks to O for the tip.

Unjust Desserts…

Some 40 years after Vietnam, despite an offer of clemency from President Ford and a pardon by President Carter, a marine unit is rounding up Vietnam war deserters and throwing them in jail. That’s right Mr. President…

In a feat of almost unimaginable hypocrisy, the military is going after Vietnam era deserters in an attempt to decrease the current desertion rate (there are now more than 8,000 deserters from the war in Iraq).



This guy, for example, spent 5 months in jail—four of them in solitary before being released without disciplinary charges. For more on this you can click here

Zack is back, and other musings...

Three items of interest, and one prediction:

Item One: Parental notification laws do not seem to have a significant effect on abortion rates. A New York Times analysis of the states that enacted laws from 1995 to 2004 — most of which had low abortion rates to begin with — found no evidence that the laws had a significant impact on the number of minors who got pregnant, or, once pregnant, the number who had abortions. A separate analysis considered whether the existence or absence of a law could be used to predict whether abortions went up or down. It could not.



Item Two: Prisoner Lawsuits may soon be toast. Cert was just granted in three consolidated cases that could have a huge (and not very good) impact on prison condition litigation.



Item Three, "A federal prosecutor asked a jury this morning to sentence Zacarias Moussaoui to death, saying that his willful decision to conceal his knowledge of the Sept. 11 terrorist plot when he was arrested weeks earlier makes him responsible for the thousands of deaths on that day."

Prediction: I think this is a bunch of crap, and no matter how disruptive and looney Moussaoui may be, I believe (contrary to everyone else in the world it seems) that a jury--even a Virginia jury will most likely sentence him to life rather than death in a stinging rebuke to the Federal Government. You heard it here (and only here) first. Hope springs eternal.

Cool Book News...

The last few weeks have been spent getting "blurbs" --those little quotes that go on the back of the book. The exciting part of this is that people (just a few) are finally reading the book--or at least the manuscript. Here's a recent one from Professor Charles Ogletree



"Indefensible is a tour de force! It offers an exploration of a little known culture of our criminal justice system and is unapologetic in telling it like it is. This book leaves no subject untouched in canvassing a young public defender's work in the gritty criminal courts of New York. You won’t be able to put it down.”

—Charles J. Ogletree, Jr., Harvard Law School Jesse Climenko Professor of Law and the Executive Director of the Charles Hamilton Houston Institute for Race and Justice, author of All Deliberate Speed

I just HAD to post that on Oscar night.

The rich guarding the poor...

"At the historic San Quentin State Prison near San Francisco, one out of five guards was paid more than $100,000 last year." according to this report.



Around the entire state of California, one out of every 10 rank and file CO's were making over 100 grand a year. Average base pay is 57,000 a year (far more than we pay our public defenders mind you).

And despite it's dire financial condition, California spent $$277 million last year on guard overtime. Seems like a poor resource allocation decision to me.

Pregnant Inmates Shackled During Labor

"'Though these are pregnant women,' said Dina Tyler, a spokeswoman for the Arkansas Department of Corrections, 'they are still convicted felons, and sometimes violent in nature. There have been instances when we've had a female inmate try to hurt hospital staff during delivery.



'Dee Ann Newell, who has taught classes in prenatal care and parenting for female prisoners in Arkansas for 15 years, said she found the practice of shackling women in labor appalling. 'If you have ever seen a woman have a baby,' Ms. Newell said, 'you know we squirm. We move around.'

Twenty-three state corrections departments, along with the federal Bureau of Prisons, have policies that expressly allow restraints during labor, according to a report by Amnesty International U.S.A. on Wednesday"

"This is the perfect example of rule-following at the expense of common sense," said William F. Schulz, the executive director of Amnesty International U.S.A. "It's almost as stupid as shackling someone in a coma."

Ethnic Courts...

Attacking what he called racial and ethnic segregation, the Phoenix district attorney filed a federal lawsuit yesterday against Arizona court programs set up to provide treatment for Spanish-speaking and Indian drunken-driving offenders."


Phoenix DA Andrew Thomas

The programs are not actually courts. They are probation programs that steer people to therapy and other treatment in an effort to combat alcohol addiction, though a judge may impose jail or other sanctions for people who violate the terms.

What does he really care about? Mr. Thomas, a Republican, said he acted out of an obligation to uphold the Constitution. But then, of course he let the real deal slip, saying the Spanish-language and Indian courts had resulted in disparate treatment among offenders, with defendants in the special courts receiving lighter penalties for violating probation.

Ah, that's what this is about.

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.