Why idiot prosecutors are successful:

Joshua Marquis, some prosecutor in Oregon writes this letter to the editor in response to my profile of Jeff Fisher in the LATM. It is a great example of why idiot prosecutors succeed as well as they do. Like so many republicans, they've mastered the art of the righteously asserted lie. And as most rhetoricians will tell you, when you're free to make up facts, it's easy to win an argument.

Here are some choice samples:

"The Blakely vs. Washington decision prohibits judges from giving anything more than a minimal sentence to felons who have been found guilty beyond a reasonable doubt"

--Uh dude, did you READ Blakely? That's just a complete fabrication.

Here's another:

"Members of the criminal defense bar are thrilled with the Blakely decision. The system is already heavily weighted toward their client, and their sole job is to get that client off the hook."

--Ah...Heavily weighted toward our clients? That's absurd. And yes our job is to get our clients off the hook--is this guy seriously implying that we should fundamentally alter the role of the defense lawyer? Oh...I know...let's make it so that if a client confesses we testify against them!! Cool, that'll work really well!! Give me a break.

And finally:

"Long after Fisher becomes rich by defending America's largest corporations, those of us who devote our lives to protecting the victims of the Blakelys and Crawfords of America will be trying to explain to a battered woman or an abused child why their assailant may walk away from court with nothing but a big smile on his or her face."

First off, Jeff did most of his work on both Blakely and Crawford pro-bono, so this is just a cheap shot. Secondly, Mr. DA, don't give me that righteous bullshit--especially delivered through a false syllogism. Like thousands of others, I've personally spent almost 15 years in the trenches of the criminal justice system, giving voice to the voiceless and teeth to the very constitution you would trample in your prison-fueled zeal. And my bet is that you've made a lot more money than I have.

Either you haven't read the decisions, or you're just mendacious in your arguments: If you've lost a case because of Crawford, one of two things is true: either the complainant doesn't want to go forward and YOU CHOOSE not to force her, or you lost the case because YOU were lazy and failed to call the witnesses relying instead on inadmissible stuff. In other words, if you lost, it was because in your prosecutorial arrogance you were so used to just getting inadmissible hearsay into evidence, that you didn't bother to do it right.

And if you didn't get the sentence you wanted...well my guess is you probably haven't been charging and submitting special informations to comply with the constitutional mandate of the US supreme court. Again--it's your arrogance that's loosing the cases--you just don't FEEL like comporting with constitutional requirements so instead of bothering, you'll just whine and lie and blame Blakely or Crawford. How about just do the work and quit whining? Or better yet--take responsibiilty yourself.

If, after either Blakely or Crawford you wind up explaining to a battered woman or an abused child why their assailant may walk awake from court smiling, and if you explain it by blaming either decision, you're not only arrogant and foolish, but incompetent as well.

It doesn't surprise me that a District Attorney would blame a nice pro-bono lawyer for correctly arguing a consitutional point. (Let's bear in mind that Fisher's arguments were accepted by the United States Supreme court and both opinions were written by none other than Antonin Scalia) and it surprises me even less that instead of just working a little harder to comport with the consitution as interpreted by the Supreme Court, a District Attorney would choose instead to whine and fib about how the ruling (rather than himself) will be to blame for his losses.

Can you imagine being prosecuted by this guy? God help the innocent residents of Astoria Oregon.

His Supreme Court Wins Won't Benefit 'Victims'

Pay to play--and then pay some more

In a perfect parable of the price of political access, this from the Times:

The New York Times > Washington > Price of Bush Inauguration Party Is Too Rich for Some


How low can we go?

Presaging the glut of year-end statistic pieces, comes this one on the murder rate:

As Murders Fall, New Tactics Are Tried Against Remainder

Politics and the criminal law...

Thanks to the republicans, it's time to completely abandon the pretense that the law is blind to the parties it judges:

"In Texas, state Republican legislative leaders and party officials are considering some maneuvers of their own in light of the investigation. One proposal would take authority for prosecuting the campaign finance case away from the Democratic district attorney in Austin and give it to the state attorney general, a Republican."

The New York Times > Washington > G.O.P. to Make Ethics Inquiries Harder to Begin


More hagiographic horseshit...

I just can’t stand it—could we suck any more desperately at the nauseating teat of prosecutorial adulation? Janet Albertson, “Woman of the Hour?” Give me a break.

Long Island: Woman of the Hour


Walking through the Met today, I wandered into a fantastic exhibition of Gilbert Stewart's portraits of early Americans. I haven't been to a museum in a while, and as I meandered through the wonderful paintings, I was flooded with resentment toward this government and our president.

Seeing the faces--stoic George Washington, or the piercing, intense portrait of 90 year old John Adams, I was struck by how far we've fallen. Ours was a country founded on religious tolerance and a belief in government for the people, not a theocracy devoted to corporate welfare at the expense of the people. To have so abdicated the principles our founding fathers held dear, and to have done so in their names, seems to me the worst sort of hypocrisy.

I have suspected (since the election of 2000) and am becoming more and more convinced that ours is a society in irrevocable decline, that the glorious vision of those great pasty-faced men will gird the history books alongside stills from desperate housewives and political loyalty oaths.

These eight years will be remembered as the beginning of the end. I'm furious at democrats for abdicating the moral high ground here. Republicans aren't conservatives: they are corpocrats. And we aren't liberals, or even progressives, the values we cherish are enshrined right there in the constitution and the federalist papers. We're the originalists. It's time to take back the title.

The Metropolitan Museum of Art - Special Exhibitions: Gilbert Stuart


Cape Fear...

Since most of my posts have been news related rather than Public Defender related, I thought I'd even the score with a recent experience shared by many PD's:

I’ve been at cocktail parties where well-groomed, well-intentioned people have asked me if I’m scared at work. They seem perplexed when I explain that I never am. They ask me, whether I’ve been afraid of clients, whether if I loose a case I’m afraid they’re going to come back, looking for me, or looking to avenge themselves on the system through me. They seem to imagine a tattooed Robert DeNiro playing the vengeful Max Cady in the movie Cape Fear.

Cape Fear of course was the film in which Cady, a recently released rapist played by DeNiro stalks his former defense attorney who, it turns out, withheld evidence that might have allowed him to win the case. It’s quite clear in the movie that DeNiro was guilty, and it is made abundantly clear that he is a bad and scary man. But, the strange thing about the movie is that once I realized that Cady, guilty, or otherwise, had actually been betrayed by his own lawyer, I was rooting for him.

Of course, I’ve had clients who I feel I have failed. They are the ones, most people would assume I’d be afraid of. Oddly, the opposite is usually the case. Cape Fear was released in 1991, two years before I lost the trial that sent Jimmy (not his real name) to jail. Jimmy and his girlfriend had every reason in the world to hate me. We’d gone to trial: I’d assumed the responsibility for getting him his life back, for defending him against horribly unjust and untrue allegations, and I’d utterly failed him. I'd walked beyond my skill and experience and because I did, I’d screwed up and grievously screwed up his life.

On April 9th With Jimmy nearing the end of his sentence, I got a letter from his girlfriend. He'd had been in jail for over a month already. Typed carefully on a sheet of ivory bond paper, here is what she wrote to me:

Dear David,

I am writing this letter on behalf of Jimmy. I know I have thanked you many times before, but I wanted to express my gratitude further.

I sincerely appreciate all the help you’ve given Jimmy, and the concern you have shown for him. As you know, the outcome of this case was devastating for both Jimmy and myself. This has been a very frustrating time for us. It is a relief to know that I can count on you to answer any questions I may have when others can’t (or won’t) I know that you must be overloaded with work, yet you always find the time to help us. There should be more people like you working within this system.

Willie was very fortunate to be appointed an attorney whose willingness and perseverance has made some differences. I hope all your clients will be as lucky as we were.


That’s what I got for utterly fucking up his life. Guess I should be scared huh?

Better filibuster

If resistance to Bush means anything anymore, it means we absolutely must filibuster these SOB's. Not compromise, Not settle, Not negotiate, but filibuster every single one of these evil bastards and the the chips fall where they may.

The New York Times > Washington > Bush to Renominate 20 Judges Whom
Democrats Have Resisted


Jeff Fisher Rocks

Jeff Fisher gets some nice ink from the National Law Journal, Just a few weeks after my profile of him ran in the LATM.

National Law Journal -- An associate rocks criminal procedure

No Mercy...

Among the tens of thousands of incarcerated New Yorkers, the Governor, this year, has found it in his heart to grant clemency to....

No one.

The New York Times > New York Region > No Inmates Will Get Clemency, Pataki Decides


How do you spell Az-hole?

R-i-g-i-d p-r-o-s-e-c-u-t-o-r....

This profile of Rick Romley, an Arizona prosecutor, nicely answers every law student's question about whether you can do more justice as a prosecutor. Of course not.

The New York Times > National > New Chapter for Prosecutor Who Went by the Book


Assisted Suicide...

Interesting that we'll prosecute someone for assisting a suicide, But when the guy who wants to end his life is on death row, we'll let him dismiss the lawyers trying to talk him out of dying.

The New York Times > New York Region > Judge Denies Public Defenders' Move to Halt Killer's Execution


Find my client guilty... Doh!

In an unfortunate decision, the Supreme Court fails to reverse a case in which the defense lawyer opted to conceed guilt to preserve his credibility in the penalty phase of a death case.

The New York Times > National > Lawyer Backed in Conceding Client's Guilt


The Decline and Fall...

What else is there to say about the Bush era than this:

Yet people who spend $800 on a bottle of Cristal do not always feel compelled to drop a dollar in Mr. Richard's jar...

The New York Times > New York Region > Standing Sentry, Armed With a Towel


Finally Someone Likes Me...

Since writing often feels like shouting into the void, I have to admit to obsessively seeking feedback. Finally a blogger in LA takes notice of my recent profile. Ken Reich in 'Take Back the Times' blogs:

"Two other articles in the L.A. Times Sunday also were, by themselves, worth the price of the paper: In the Times Magazine, David Feige told the story of young Seattle lawyer Jeffrey Fisher, who has argued two major cases before the U.S. Supreme Court and won both of them"

You like me, you really like me...

Thanks Dude.

Take Back the Times


Welcome to the Jungle

In an unusually savage indictment, Ben Weiser takes aim at the slowest judge in the land. Oddly, though I don't countenance absurd delays, I'll usually take a decent but slow judge over a quick and awful one. The hell with the rocket docket--screw the fourth circuit. Justice delayed is sometimes justice denied, but justice denied...well that's always justice denied.

The New York Times > New York Region > Judge's Decisions Draw Notice, for Being Conspicuously Late


They Fry Inmates Don't They?

Adam Liptak does a good job of exposing the Texas Court of Criminal Appeals and the Fifth Circuit as the hypocritical activists they are--especially when it comes to ignoring due process violations in southern death cases. Here are a few samples:

The two courts have been resistant to claims involving withheld evidence, lies told by prosecutors and problems in jury selection...

The consequence, some experts say, is a Texas criminal appeals court largely unleavened by general practitioners and the kind of top legal talent that fills corporate boardrooms. Indeed, seven of its nine members are former prosecutors who tend to run on tough-on-crime-platforms and, critics say, embody the court's anti-defense bent.

"No one runs for the Court of Criminal Appeals on a platform of vindicating constitutional rights," said Professor Steiker, the University of Texas law professor.

Thanks Adam.

The New York Times > National > Rulings in Texas Capital Cases Try Supreme Court's Patience


My latest piece...

My profile of Jeff Fisher, the brilliant Seattle lawyer who argued two of the most influential criminal justice cases in the US Supreme Court last term is coming out in the LA Times Magazine this weekend. Click below for a sneak peak.

The Supreme Beginner



Today's New York Times features a grotesque hagiography of Nancy Grace—self professed undefeated prosecutor and Court TV star anchor. Nancy, flacking for her new book explains that she, unlike everyone else "speaks for the victims."

First, a note of confession: Nancy Grace is indeed, as the article suggests, personable. I've been a guest on her show several times and she's utterly pleasant.

But arguing (with a straight face no less) that "no one speaks for the victims" is absurd, and even offensive. Everyone speaks for the victims--there's not a soul out there who doesn't. Sorry Nancy, when was the last time you saw a crowd outside a courtroom rooting for an acquittal. Just doesn't happen.

On a related note: My last murder case was dismissed yesterday--not on any technicality, but because my client, who was in jail for months until a righteous judge let him out, was utterly and completely innocent. The case is a nice object lesson in why Nancy and her ill-considered if popular prosecutorial zeal is so dangerous. The first ADA (who himself wasn't as much of a zealot as Nancy) hardly bothered to review the mass of material that supported my client's innocence: Let the jury figure it out seemed to be his position. The problem is, as even Nancy might admit, juries make mistakes sometimes--especially when zealous prosecutors go after them mistakenly thinking that they are just there to prosecute rather than do justice.

Mercifully, a year later a new ADA took over. This one, a thoughtful sober ex-military guy, spent an extraordinary amount of time looking over the case and concluded, rightly that my client was innocent. He then had the courage to go all the way up the chain of command and get authority to dismiss the case. Justice was done.

Nancy's preferred version: Innocent guy goes to prison for life.

The New York Times > Arts > Television > As Court TV Gets Ever Bolder, So Does Its Star