O.T

I'm on trial, so Blogging might be a bit sporadic...

I'm trying that case in which Officer Roughneen broke my client's arm in three places causing her permanent nerve damage. I crossed him today--he's huge, about 6'1" and built like a wrestler. My little client, meanwhile is a slight 40+ year old woman.

I'd forgotten how physical trials are for me--sweat and adrenaline had a viscous effect on my body and already I'm exhausted and achy and we haven't even gotten to the sleeplessness.

What's really funny is that in a certain way not that much is at stake -- it's a misdemeanor trial--and yet the truth and equities are so profoundly on our side that the case feels huge to me emotionally. This poor woman was so awfully abused, and the system has treated her so badly, and the DA's office has acted so awfully in failing to dismiss the case that this is just one of those must-win cases. Nothing else will do, nothing but a full vindication at trial would be even remotely satisfactory. The reality is that in a case like this--that really rare case (I might even say once-in-a-carreer case) where there really is outrageous police abuse, very serious physical injury, and an utterly inexcusable prosecution, for there to be any semblance of justice, someone has to be strong enough to just say "Not Guilty."

One nice moment--officer Roughneen, who says he never saw my client get injured and never caused any of her injuries, it turns out said the same thing in a different lawsuit where he and his buddies broke someone else's bone. But in that case, his own department didn't even believe him and discipline was recommended against him and instead of going to trial, he pled guilty. Here despite what he doesn't see, there are horrible bruises all over my client's body--bruises for which Roughneen has no excuse or explanation.

We continue tomorrow....

Quoth Moi...

My cheap thrill of the day?Being quoted a Village Voice article about a girl fight:

"This case is a classic illustration of why the hate crime statutes are problematic, says Bronx lawyer David Feige, an outspoken critic of them. 'These laws sound good--that's why they were passed. But they serve no purpose except to give prosecutors an even heavier bat. They don't deter criminal acts in the least. It's complete political posturing.'"

Outspoken? Moi?

Get Married, Go to Jail

Yep, here's another example of domestic violence law gone insane:
A woman takes out a restraining order. Then she decides she doesn't want it. In fact she decides she wants to marry the guy. They petition the judge to lift the order. He refuses. They get married. He get's arrested. Yep it's true. And it's yet another example of DV law gone wild.

More on this soon.

How Prosecutors Control Judges

Here's an interesting story about what happens when a gutsy judge stands up to a self-important prosecutor:

"Onondaga County District Attorney William J. Fitzpatrick recently continued his efforts to control the local judiciary by filing an Article 78 proceeding against two Syracuse City Court judges, Langston C. McKinney and Kate Rosenthal, seeking to restrain them from such 'unlawful' arraignment practices as scrutinizing felony complaints for legal sufficiency and refusing to consider, for purposes of sufficiency or bail, information that the District Attorney had labeled 'confidential' without providing that information to defense counsel."

What's even more shocking is that this DA managed to get judge McKinney relieved of arraignment duties after the judge expressed concern about the sufficiency of a complaint.

Disgusting.

Pressure mounting for Judge O'Connor's Resignation

As you recall, Judge Eileen O'Connor became a favorite target of my criticism when she put a young african american kid in jail for allegedly lying about an arrest during voire dire. (See posts here)

Well, the movement to remove her is heating up.Yesterday, the kid's advocates lashed out at the judge

The Miami Herald reports that:

"The attorney for a black 19-year-old Broward resident jailed by Broward Circuit Judge Eileen O'Connor because he allegedly lied about his arrest history during jury selection stepped up the pressure Monday for O'Connor to step down from the criminal bench.
''Time is of the essence,'' the lawyer, Bill Gelin, said at a press conference Monday at the Broward County Courthouse in Fort Lauderdale. ''Put yourself in the position of an African-American defendant. You may already think the system is stacked against you to begin with, and you read in the newspapers that the judge has not disclosed'' a racial complaint filed against her on a judicial application."

This one does not deserve to be on the bench.
(Thanks as always to Bill of The Florida Masochist)

Erratum--Blogger Bloopers

Every once and again, it's important to stop, take stock and own up to some big blogging bloopers. I seem to have made a few of late, so let me say in advance: My bad.

In particular,Skelly points out that my recent post (see below) about Washington State I erronously suggested that the series was recent. In fact as Skelly correctly suggests:

"It was a good series; it came out in April 2004. In 2005, it turned out to be a catalyst:

Second Substitute House Bill 1542 passed both houses of the legislature. It was designed to provide a state “down payment” of $25 million on woefully inadequate criminal indigent defense funding, albeit with “null and void” language if funding wasn’t provided. Although major funding was not provided, $1.3 million was allocated in the 2005-2007 biennium to the Washington State Office of Public Defense to provide intensive training to new public defenders, to give legal and expert services to those public defenders, particularly in isolated areas around the state, and to work with public defenders as they enter into appropriate contracts with local government. There is $1 million to fund a pilot project as well. In future years, we will be seeking additional state funding for this major responsibility currently borne entirely by the counties.

Skelly points out that things have changed since the time that article was published.

My Bad.

Secondly, on the subject of Judge Jennifer Brunner, I got this from Robert Essex, a public defender in Franklin County who appears before her regularly:

"I am more than familiar with the type of judge you refer to who constantly looks to the prosecutor and says "What do you want to have happen?" I, like you, deal with this everyday and it is extremely frustrating.
The situation in this case, however, involved an attorney who I am confident in saying over 95% of the defense bar in this city believes was out of line. Mr. Vogel is not a "legal aid" lawyer as you incorrectly state. He is a lawyer in private practice who has since been removed from the court appointment list due to his irrational behavior.

Although you are correct about many judges constantly siding with the prosecutor, I hope you are responsible enough to recognize you may be wrong about this one."

If a public defender is willing to publicly back a judge while diming out a fellow defense lawyer--yes that means quite a bit to me. So let me publicly recognize that I might be wrong about this. I'm still very concerned about a jail sentence of 40 days for something that doesn't on it's face seem contemputous, but I am also willing to allow for the possibility that the lawyer was a bit off his rocker (as Mr. Essex suggests). Not a full-fledged retraction, but certainly worth a public airing.

So is a 40 day jail for suggesting that the judge was trying to coerce a plea extreme? Feel free to post away about my errors or your assement of Judge Brunner's conduct.

Washington's State of Injustice

CORRECTED: In 2004, The Seattle Times published an outstanding (if frightening) expose Titled: An Unequal Defense - The failed promise of justice for the poor. It details a number of failures in the indigent defense system in Washington State focusing (unfortunately) on some really really bad lawyers.


It does, however, also get into some of the many systemtic issues that plague public defenders--low pay and absurd caseloads--in particular, while doing a nice job of elucidating exactly how the perverse financial incentives inherent in some of the assigned counsel plans conspire to really hurt indigent defendants.

A worthy read, if depressing.

Some Findings...

If you're reading this and haven't yet read the The Seattle Times Expose, I mentioned above, here are a few findings:

A growing number of Washington counties and towns use fixed-fee contracts for public defense, capping what they pay regardless of caseload. In Toppenish, a small Yakima County town, one lawyer was paid the equivalent of $21.08 a case.

• Few counties set limits on caseloads, meaning lawyers have less time per case. In 2002, the caseload of one Cowlitz County public defender was 6½ times the limit recommended by bar groups. She dropped her contract in despair, calling the work "malpractice per se."

• Some attorneys layer jobs — boosting their income but diluting their time. The lawyer who made $21.08 per case in Toppenish (for 797 cases) also defended indigents in Wapato (511 cases) and presided as a municipal-court judge in Sunnyside (3,963 cases) — and had a private practice.

• Washington state has ignored pleas to help local governments fund public defense. Nationally, states average 50 percent of those costs; Washington pays 5.5 percent.

Just a little story...

The Daniel Webster Houses, hulking high-rises stuffed into a neighborhood already riddled with drugs and violence, contain just over 600 apartments. Built in 1965, with all the idealism of the age, the Webster Houses now stand for almost everything that is wrong with project living: staggering poverty rampant disease, and short life expectancy.



My investigator's task in the case: Find Tony.

Tony was the man that our client, (inexplicably known on the streets as Boobalock), was alleged to have shot. Tony, was a gangster himself, and he led the rootless itinerant life of someone perpetually on the run. Everyone knew him, of course—he was a fixture in the Webster Houses (where he went by the street name ‘debo’). He ostentatiously cruised his territory in a tricked out Mazda MPV, wearing the pirate eyepatch he got after the shooting. But even though Tony may have been east to spot, he was hard to talk to, and he wasn’t much interested in meeting my investigator--Ben.

Ben spent so much time tracking Tony in the Webster Houses that his usual lunchtime banter morphed into excited disquisitions on the ticket scalping business run out of several apartments, and the rivalry between Sex Money Murder bloods and the Gansta Killer Bloods. Almost every day, he had new information to share about life there and the cat and mouse game that he and Tony were playing.

Eventually, of course, Ben found him--he always did--it's what made him great. Debo was in the Ulster county jail serving some time for a drug case. And when they finally came face to face, they both chuckled about the game both had played—Debo had been holed up at his child’s mother’s house the whole time—he not only knew Ben, but could describe the make, model and color of the car he drove. As it turned out, when Ben pulled up, Debo went out the fire escape.

“Tell Boobablock, I ain’t testifying against him” Debo said. “I ain’t got no clue who shot me.”

That’s the kind of information that makes spending the better part of a month cruising the Webster houses or trekking up to the Ulster county jail worthwhile. But as with all information, what is helpful is never dispositive.

Boobalock took a plea anyhow.

Scary Sentencing Proposal

Gonzales Proposes New System of Sentencing. This could be very bad.

Do Unto Others

First let me reiterate: I don't like seeing people go to prison. It's a tragic waste in most cases. But that being said, even I have moments of Schadenfreude and the recently discovered Kozlowski sentencing letter prompted one of those moments.


Here's what happened: In 1995, Girish P. Shah was convicted of stealing about a million dollars from Tyco. He could have gotten a fairly light or a fairly heavy sentence. Kozlowski himself saw fit to write to the houston sentencing official, to recommended that the former assistant controller at Tyco 'be sentenced to incarceration for a maximum term.' The letter went on to state that stealing from a company is 'a particularly egregious crime.'

In the letter Kozlowski also went on to censure Shah for stealing from stockholders and breaching his fiduciary duty, writing that 'wrongdoing of this nature against society is considered a grave matter."

Oops. That's gonna hurt. And frankly, it should. I think it was my grandmother that said 'what goes around comes around.'

How to Deter White-Collar Crime--My Most Recent Piece

You can read my first piece for The Nation (online) here.

It takes the position that white collar criminals are the only rational actors in the criminal justice system and as such respond to deterrents. It also suggests that it is the conditions of confinement rather than the term of imprisonment that makes the difference. So what to do?

Send the corporate crooks to max joints.

Asinine Agents' Audi Key Outrage

Yep, the fight against terrorism now includes taking your car keys. Yes indeed, in Dallas, where Rick Perry is busy thwarting probation reform, the airport screeners are busy confiscating dangerous looking car keys.

Perry Screws the Probation Pooch

Texas Gov. Rick Perry just vetoed critical probation reforms, along with 18 other criminal justice measures.


John Whitmire

Senate Criminal Justice Committee Chairman John Whitmire called the veto a "huge loss for public safety." The probation reforms had been widely hailed but were opposed by...yep...prosecutors.

Adding Insult to Injury

Six months after Massachusetts agreed to compensate wrongly convicted felons, 10 former inmates who have applied for money still haven't seen a cent

Mass. AG Thomas Reilly

The former prisoners -- two of whom spent about 19 years each behind bars for crimes they did not commit -- have filed claims dating back to January under a law that provides a maximum of $500,000 for erroneous convictions. However, Reilly, who represents the state in such claims, appears to be adopting an adversarial approach.

Ever Wonder How PD's get Paid?

Gosh, my recent post on the indigent defense report card spurred quite a flurry of comments.

Calm down people. Yes, I know the difference between assigned counsel and PD's (see my Slate piece Public Offenders - Why criminals in Massachusetts are getting out of jail free )
And Tom, the figure I got was from a nice reputable newspaper called The Chicago Tribune Feel free to take issue with them but do spare us all any rant that includes the phrase 'liberal media' or 'believe what you read'.

I tend not to like to yammer about assigned counsel rates--most lawyers, after all are making a decent living and doing far better than most people. But that's not the point. The point is that fee caps create terribly perverse financial incentives that in turn cause bad representation. It's hard to go to trial on your own dime. I've done it--in a murder case, and I gotta tell you, I felt like a chump--a righteous one, but a chump. The judge came in and he was getting paid, the prosecutor, he was drawing his salary, the court officers, the clerks and the stenographer were all making money every hour every day. But not me. Having done it, I can tell you it is not reasonable to expect people to work for free. Ask yourself, Tom, in the dark night of your soul, whether you'd change your trial/plea behavior if you weren't getting paid a salary.

And as for all of you wondering where the money comes from...
Here you go:

So How's it Going? An Indigent Defense Report Card

Every year, I spend a week of my time teaching at the National Criminal Defense College in Macon Georgia. It's a wonderful program that brings together dedicated defense lawyers and helps them to become even better. This year, (as usual) I'll be down there for the second half of the July session. One of the things that always amazes me about being there are the stories I hear from PD's around the country about just how awful the systems they work in are. I was thinking about that when I saw the following:

In Louisiana, defendants may sit in jail for years before trial. (This can happen in NY too!) One defendant waited eight years.

In 2002, a defendant in Louisiana was convicted of second-degree murder in a trial that lasted six hours, even though his public defender had been representing the victim at the time of his death as well as an eyewitness against her client, which were clear conflicts of interest. The lawyer had met with her client all of 11 minutes prior to trial.

In Clark County, Nev., public defenders assigned to juvenile cases are expected to handle more than seven times the number of cases recommended by national standards.

Two states, Pennsylvania and Utah, provide no state funding for public defender systems - despite the 1963 Supreme Court ruling requiring such funding - and fewer than half of the states provide only partial funding.

Wisconsin funds a public defender program, but the eligibility threshold is so low that an estimated 11,000 defendants who meet the federal poverty guidelines failed to qualify for a public defender.

The Mississippi Legislature created a statewide public defender program but never funded it, and last year the legislation creating the system was revoked.

In Virginia, public defenders who handle felony cases are allowed a maximum of $395 per case, even if the case goes to trial.

Finally Some Movement in Montana

Montana's system for providing criminal defense lawyers for the poor is so flawed that some defendants have been sitting in jail waiting for their day in court for longer than the maximum sentence that could be imposed.

But finally there is some movement....:

This month, with the state facing a lawsuit filed by the ACLU, legislators approved a public defender law that is designed to bring sweeping change and is being hailed as a national model for providing defense lawyers for the poor.

The legislation would be the first in the country designed to address key principles of a public defender system adopted by the American Bar Association in 2002, according to David Carroll, of the National Legal Aid & Defender Association, the organization that recently studied Montana's system. The study was conducted at the request of the American Civil Liberties Union as part of its lawsuit."

It's about time.

Adelphia Founder Gets 15 Years, Son, 20.

John Rigas and his son Tim got banged yesterday for using Adelphia communications as their own private piggy bank. Aging John got 15 years, his son, 20.

John Rigas
Now White collar crime begs some very complicated questions. Indeed, Andy Serwer at fortune laments:
"Founder John got 15, but he's 80 and in poor health. His son Timothy got 20. Forgive me, but I cannot see giving life sentences for non-capital crimes." I hope he takes the time to make that point in his Fortune column the next time an aging drug defendant gets a functional life sentence. We'll see.

Book News...

Sorry for the sporadic blogging...


But I have some exciting book news: The publication date for my book has been set for May 2006--so stay tuned for more exciting updates...

Victory in the Big Supremes

Ronald rompilla will get a new trial the US Supreme Court has ruled.


Ronald Rompilla has his death sentence overturned.

In a sharply divided opinion, the court ruled 5-4 that Rompilla's lawyers were ineffective for failing to find some background materials contained in an earlier case file.

This is a nice decision--recognizing the hard work of defense lawyers but holding them to an appropriately high standard. It is another step toward the court's inevitable reversal of some of their more outrageous 'ineffective' jurisprudence.

Yummy for Rummy and Cheney Too!

Halliburton will build anew $30 million detention facility and security fence at the U.S. naval base at Guantanamo Bay, Cuba

Staying awake one of biggest challenges of Enron trial

I love this headline:Staying awake no easy task at Enron trial Here's what the Houston Chronicle has to say about the case:

--The judge started a coffee habit just to keep from drifting off. A juror, lawyer and journalist regularly close their eyes. And a court officer once actually had to jostle awake a guy in the front row. No, the Enron Internet trial can't be confused with a swashbuckling adventure movie. It's not like a page-turning thriller. This is No-Doz country.


Jack Zimmermann

When one of the defense lawyers in the Enron Internet trial — which enters its 10th week Monday — asked U.S. District Judge Vanessa Gilmore what to do if a juror naps, she, like other judges, said it's the lawyers' problem.

"That's y'alls problem. That means the case is boring," she told attorney Jack Zimmermann well before the technology-heavy Enron Broadband Services case entered its third month. "I can barely stay awake. I don't even drink coffee, and I'm drinking it every day."

Indiana PD on Trial

This post from a fellow blogger and Public Defender in Indiana:

"The greatest trial lawyers in the world are not the ones watched, covered, and adorned by the media. The greatest trial lawyers in the world are the public defenders, who do their work in empty courtrooms, without the press, without an audience and, sad to say, most of the time without the family of the person on trial.Each day, the public defenders in that grim and dismal setting open their mouths for the dumb; for the rights of all who are racked desolate by time, by circumstances, by class, by race, by hatred.

Big Day for Voting Rights!

Iowa Gov. Tom Vilsack said Friday he will sign an executive order on Independence Day restoring voting rights to thousands of felons who have completed prison, parole and probation terms.

The order will mean automatic voting rights restoration for "disqualified electors'' who finished their time in prison, on probation or on parole as of July 4. The order also creates a streamlined process for offenders released from state custody or supervision in the future.


This is a terrific victory.

Some Iowa Republicans are of course, against voting. "Are we going to let baby rapers and meth producers vote?'' said Rep. Clel Baudler, R-Greenfield, chairman of the House Public Safety Committee. "I would guess this will be a major election issue in 2006."

(Doesn't it feel like the pararaph after that last one should read...And then he snickered his little republican snicker--and rubbing his hands together in anticipation muttered to an aide, "It won't be long now before we pass that democrat disenfranchisement act... Ha! Once we criminalize all non-republican voting we can finally gorge ourselves at the public trough, eliminate our own taxes and make the poor our slaves!")

Scientology and your Tax Dollars

So given all the hoopla, I thought it'd be interesting to take a peek at scientology--as it turns out, I was wondering about what the heck they believe and whether it was an actual religion. (as usual my buddy Daniel Radosh was already all over it.) So here's a little primer on the "religion" and, just as interestingly, their tax status...

As it turns out Scientology did not start as a religion. In 1950, pulp writer L. Ron Hubbard published an essay on achieving perfect mental health in Astounding Science Fiction magazine. He called his program Dianetics. It teaches that every mental aberration—neurosis, compulsion, repression—and most common physical ailments are caused by subconscious mental images of past trauma. Hubbard dubbed these images “engrams.” He created a device called an e-meter, a kind of simplified lie detector, to detect buried engrams. As a person tells the story of his or her life, trained Scientologist “auditors” use the e-meter to ferret out the traumatic engrams, bring them to conscious awareness, and clear them.

After being raided and barred from making medical claims he switched to making it a religion.



About 75 million years ago, Hubbard told his followers, a galactic dictator named Xenu imprisoned billions of beings on the planet Teegeeack, later known as Earth. He then dropped hydrogen bombs on them and implanted them with sexual perversions, false religion, and other psychoses. Later, the contaminated “body thetans” escaped and attached themselves to other thetans, otherwise known as human beings. To reach the final stage of Scientology, one must telepathically contact the parasitic body thetans and persuade them to let go.

And now to the LAW...

In 1967 The IRS ruled that Scientology was NOT a religion, but rather a comercial operation designed to make Hubbbard rich. It revoked it's tax exempt status. Scientologists fought back by breaking into government offices and planting bugs and stealing documents. (nearly a dozen leaders were eventually convicted of conspiracy as a result) But in the early 90's after a private meeting with "church" leaders, the IRS reversed itself.

Even more interesting: unlike most people, scientolgists can deduct their very expensive training as a "donation" to the church--yep that's right, we're funding the training of scientologists, described in one appeals court ruling as the "IRS's chosen people"
(Thanks to 'The Week' from whom I cribbed liberally)

Even Law Professors Cop out to things they shouldn't

Proving a point I regularly make in the book, here's a nice post by a law professor who was just too tired to fight the state over principle. It's a perfect example of how the frictional costs of fighting a case can overcome otherwise reasonable concerns like process, or even guilt or innocence.

Funny and Easy to Blog...

Though I usually stick with indigent defense, wimpy venal judges, and prosecutorial zealotry, every once and again it's worth posting a reminiscence a bit of the book, or in this case, a little cartoon that seems germane given the Gitmo news this week.

Not as if we didn't know this

But still fascinating to learn the actual numbers....

According to a new study, Race is a huge factor in job offers for Ex-Convicts. The study, the first to assess the effect of race on job searches by ex-convicts, also found that black men who had never been in trouble with the law were about half as likely as whites with similar backgrounds to get a job offer or a callback. Black men whose job applications stated that they had spent time in prison were only about one-third as likely as white men with similar applications to get a positive response.

How does that translate? For every 10 white men without convictions who got a job offer or callback, more than 7 white men with prison records also did, the study found. But the difference grew far larger for black applicants: For every 10 black men without criminal convictions, only about 3 with records got offers or callbacks. Because ex-convicts with jobs are far less likely to commit further crimes, this is a very significant finding in terms of understanding the revolving door...

Clever Little Gadfly Swatted

A clever providence lawyer who argued that Chief Justice of the RI supreme court should be stripped of his title, got his butt handed to him by the CJ's buddies on the court.

Attorney Keven McKenna's had argued that Chief Justice Frank Williams gave up his job when he accepted a spot on a military review panel. He cited the state constitution, which said elected officials can't hold dual offices.

Clever, if ineffectual.