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.

The Kleptocracy Continues...

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



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

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

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

Clarification...

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


PD talking with a juvenile client

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

Next Installment

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


Charley in his office

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

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

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

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

Thanks to Mike Hope for the tip.

The $40 lawyer

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

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

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


Stereotypical PD Failure Charley

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

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

We Lose...

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



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

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

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

I Sum Up Monday...

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


Stay tuned...

And wish me luck...

Trial and Book Update...

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

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



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

Expect a verdict Friday or Monday.

On the Book front...



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

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

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

A dream delayed

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


Dr. King with a Bandaged John Lewis

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

Second Thoughts...

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

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


Judge Roland Amundson

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

Here's a particularly nice bit:

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

The man wanted to talk.

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

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

more here...

Very Sad...

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


Bill Bryson

From the article in the Anchorage Daily News

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

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

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

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

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

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

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

Off for a day...

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


Lisa Angelos cries after her brother is sentenced to 55 years

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

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

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

Onward...

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

Blood on her hands?

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

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


Coleman

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

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

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


Justice O'Connor

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

Week One Done...

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

In other news:


Carter

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

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

Here's a selection...

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

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

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

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

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

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

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

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

Progress...

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

Jury Selected...

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



I'll keep you posted...

Goodnight and (wish me) Good Luck...

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

And wish me luck!

Want a taste? I knew ya did.


One of my many exhibits...