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.

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.

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.

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.

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).

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...

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.

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

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...

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.

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.

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.

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.

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!

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.

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!

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...

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.

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.

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

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.

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.

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.

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.

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.