Why Criminal Defendants Get a Raw Deal...

Those who complain about defendant's constant appeals and delaying tactics seem utterly unaware of just how rarely any of those appeals yield a fruitful result. They also tend to forget about prosecutorial delay. Most of this is an informational distortion. Even though a miniscule number of the criminal cases appealed are ever reversed, pretty much every time one actually is, we read about it.

While crazily pro-prosection decisions rarely make the papers, when they do they provide a nice window into just how militantly anti-defendant most judges are. Here's a nice example:

The Wyoming Supremes

On Nov. 23, 1977, Jack Humphrey died of a single bullet wound to the head.

On April 11, 1980, two years and four months later, a grand jury in the District Court of Natrona County, Wyo., indicted his wife, Rita Ann, for murder in the first degree. Asserting her innocence, she moved immediately for a preliminary hearing. In a separate motion, she demanded a speedy trial.

On Aug. 22, 1980, after the state failed to establish probable cause, the District Court issued an order dismissing the indictment.

On March 5, 2004 , the state suddenly revived the murder charge against her. Roughly 24 years had passed since the original indictment. She again moved to dismiss as a violation of her constitutional right to a speedy trial.

The District Court granted her motion. Judge W. Thomas Sullins noted that during this period, the county sheriff's two investigators had died. Two key witnesses for the defense also had died. The fatal weapon, a .243 Winchester rifle, had disappeared. The victim's watch, thought to be important evidence, was no longer available. Over the years, various audiotapes, transcripts, records and polygraph examinations also had vanished. In a "non-inclusive" list, the judge counted 14 items of lost evidence -- enough to demonstrate that the delay had critically prejudiced the defendant's ability to prepare for trial.

Two months ago the Wyoming Supreme Court reversed. Chief Justice Michael Golden conceded that 24 years and eight months, by his count, had elapsed between the indictment in 1980 and the scheduled trial in 2005. Nevertheless, there had been a long hiatus when Mrs. Humphrey was not in custody and no indictment was actively pending against her. Those 24 years, in the court's view, had to be excluded from the calculation of the "speedy" trial required by the Constitution's Sixth Amendment.

This reasoning seems to be belied by the applicable supreme court precedent--the 1972 opinion in Barker v. Wingo . That case involved the bloody murder of an elderly couple in Christian County, Ky. in 1958.

Justice Lewis Powell spoke for a unanimous court, but he clearly had a hard time in establishing guidelines for appeals under the Sixth Amendment's "speedy" clause. Nothing good could be said of Willie Barker or his co-defendant, Silas Manning. The crime was exceptionally brutal, but the evidence was unusually weak. For tactical reasons the commonwealth wanted to try Manning first. If he were convicted, he could testify against Barker. It took six trials before Manning finally was convicted.

Meanwhile, Barker too was mostly out on bail. Over a period of five years his trial date had been continued 16 times. With Manning's testimony, Barker at last was tried, convicted and sentenced to life. He appealed under the "speedy trial" clause of the Sixth Amendment.

Powell, a soft-spoken Virginian, was tough on crime. His heart bled for victims, not for their assailants. He had little sympathy for Barker, but five years of delay? As a constitutional matter, he asked, how speedy a trial is a "speedy" trial? He waffled: "We cannot definitely say how long (a delay) is too long in a system whose justice is supposed to be swift but deliberate. ... It is impossible to do more than generalize about when those circumstances exist."

I think it's safe to say 24 years isn't "Speedy."


A Rare Report...

At last, a decent story about a public defender! Ok, so it comes from a small corner of Northwest Arkansas, but still...

BENTONVILLE -- This holiday season, Robert Lee is drawing encouragement and hope from an unexpected source: his attorney in a drug case.

When Lee was jailed last spring, suspected of manufacturing methamphetamine, his life and 22-year marriage went into a tailspin.

Public Defender Jay Saxton Talks to a Client

Lee is like nine of every 10 people accused of a felony in Northwest Arkansas -- he has a court-appointed attorney.

"I talked to eight attorneys; they all told me the same thing, 'This is what is going to happen (with your case).'" Private attorney fees would cost $3,000 to $12,000, and Lee couldn't afford them.

Not having been in trouble before, he went reluctantly to the Benton County Public Defender's Office. "I thought I'd be like roadkill, where the city scoops you up and throws you in the trash."

As his drug case unfolds, Lee admits he lives "on pins and needles. You have so many things running through your mind, and you have no control over what's going to happen. But the brightest spot of all this is (public defender) Jay Saxton. For the most part, he has kept me 'up.'"

Behind the scenes, about 180 public defender attorneys in Arkansas churn out defenses for 73,000 people a year. The state took over responsibility for paying staff attorneys in 1998, but much of each office's success in managing caseloads depends on contributions from local counties.

Benton County pays for three extra attorneys -- and Washington County supports one part-time and one full-time attorney. That keeps down caseloads, which soar to more than 800 per attorney in other parts of the state such as Pulaski, Perry, Jefferson and Lonoke counties.

Benton County keeps caseloads below 300 per attorney and Washington County below 400.

"Jay always makes time when I need it," Lee said of his attorney. "He's like a Matlock to me. I think I'm better off than with a private attorney. You're really a person; they get to know you. They care about people; that's why they'll take a lower-paying job."

Lisa Parks, a deputy public defender who's worked in both counties, said she loves the job because "this is the lowest point in people's lives, but typically it doesn't define who they are. Often, this is the first time (defendants) ever had anyone listen or speak for them. Even when they end up in prison, they know somebody fought for them."

Taking money out of the picture may strengthen the relationship, Parks said.

Kudos to Robin Mero of The Morning News, a local Arkansas newspaper, for defying the stereotypes by writing and reporting this story.

Welcome Andrew...

Just wanted to welcome Andrew Hearst to my little blogroll. Andrew is a graphic designer and the all around cool guy behind One of the things he loves to do is play with the idea of magazines by mixing and matching headlines and design styles.
Here is another delightful example...


Credit where credit is due...

Dawn Turner Trice, a columnist for the Chicago Tribune has done a wonderful thing. She's allowed a chicago public defender to tell her own story. It's reprinted below for your holiday pondering. What may be astonishing to most of you who don't do the work is Trice's subjects decision, after what she'd been through to become a public defender rather than a prosecutor. Now obviously I do the work for somewhat different reasons and I don't take refuge in process arguments, but I do think it's important to understand that for many poor people of color, the system is so corrupt that defense work really is community work and that some of the most important changes come from escaping that system not perpetuating it.

Dawn Turner Trice

This is the season for giving and, as Brunell Donald has come to understand, one especially invaluable gift is the gift of forgiveness.

Donald is a 30-year-old Cook County public defender. When she was a toddler, her father was carted off to the penitentiary for selling drugs. At 10, she watched helplessly as her mother was brutally murdered.

By the time Donald went to college, she'd been a ward of the state for 8 years, living in foster and group homes.

If you follow child welfare statistics, you'd see the unmistakable pattern that suggests wards don't often fair too well. But, as you'll see, Donald is a woman of uncompromising faith and determination. She isn't one to cower in the face of great odds.

I started talking to Donald a couple of months ago. When I finally sat down to write, my words didn't seem to do justice to her remarkable journey. So, I decided to step out of the way and allow her to tell her own story. This is the first of two parts, in Donald's own voice--with minor editing from me.

My mother was a drug addict. My father was involved in the sale of narcotics. He went to college but dropped out and decided to pick up a street trade.

My mother was from a small town outside of Birmingham, Alabama, and my father was from Chicago. They met when she was in her late teens; he was in his late 20s. My parents never married but they lived together.

I can remember being a little girl and everything seeming normal for a while.

But when I was 3 or 4 years old, the feds raided our apartment on the West Side. My father was later convicted for selling drugs and sentenced to 10 years in the penitentiary. My mother and I would visit him there, and I remember eating vending machine hamburgers and playing cards with my dad. That was my joy.

Then, one day, my mother stopped taking me to visit him. She never told me why.

After my father left, we lost our provider and my mother had to fend for herself. She started prostituting and using drugs. I remember her being on welfare. Two years after my father went away, my mother had my sister. I remember all of us standing in the church line for cheese and canned goods.

By then, we were living on the North Side. It was so weird what went on in that house. I didn't realize how dysfunctional it was until I was an adult. I remember the prostitutes coming over. They would stop by to change their wigs, wash the makeup off their faces and wash their bodies, all in the bathroom sink.

They would also eat my Frankenberry cereal. I never could keep enough. They were prostituting all night and by morning they'd be so hungry.

My mom would press their hair and cook meals for them. My mother was a caretaker of people.

But bad things sometimes happen to good people. My father was violent and when he lived with us. She would call the police when he hit her. They would come but my mother never pressed charges. When he left, the beatings stopped, but the pain didn't.

The last year my mother was alive was 1985. In July, I threw her a birthday party. I was only 9 years old. I invited all of her friends and family. We had cake, spaghetti and chicken.

I turned 10 years old Aug. 5. By November she was dead.

A drug dealer wanted $250 dollars that she owed him. She couldn't pay him so my mother, sister and I went on the run to relatives' houses for a couple of weeks.

We came back on Nov. 4, 1985. The next day, the dealer knocked on our apartment door. I opened it.

He came in and said, "Hey, Vonne."

My mother sent me to my room. From the hall, I could hear him saying, "Where's my money?" In my room, I turned on the television to watch a cartoon. Then I heard her scream.

I ran out to the living room to see him stabbing her over and over.

I started to scream and he said if I didn't shut up, he'd kill me too. By the time it was over, he'd stabbed her 39 times.

When I was 5 years old, I told my mother that I was going to be a lawyer. I was watching an old "Perry Mason" rerun. My mother said, "Your momma ain't a lawyer; your daddy wasn't a lawyer, so how you gone be a lawyer?"

Over the next few years, all of my interactions with the police and court system during my childhood were pretty rough, but they prepared me for who I am today.

When my mom died, I didn't know death was permanent. I saw her stretched out on the floor that last time and I thought she was going to get up. She had gotten up before after she'd been beaten.

When I saw her in the casket, I kissed her forehead. It was freezing cold, but I still didn't know she wasn't coming back.

Though my father attended my mother's funeral, we lost touch afterward, and my sister and I became wards of the state.

- - -

We wound up in the foster home of a close friend of the family. She believed wholeheartedly in corporal punishment--beating with broomsticks, belts, and pots and pans. I'm not saying we were perfect, but getting beaten was the last thing we needed.

My sister and I were in that house for five years. After that, we went to live in Evanston with my great aunt, who had a doctorate. She had a beautiful home. But by then, I couldn't appreciate it. I was so hurt and angry. I was rebellious.

For years I was an insomniac because I was afraid of being awakened in the middle of the night to be beaten for some transgression that happened earlier in the day.

After a year, my aunt was like, "You have to go." I left but my sister stayed.

I ended up in a group home in Aurora at 16. I was there for a year and a half. I would sneak out at night while there, too.

But, through it all, I never missed a day of school. I had wanted to be a lawyer since I was 5. Even when I was doing wrong, I was still going to school.

- - -

When I was 16, I met my mentor. He was my pediatrician. He told me years later that he'd never met anyone who was so smart and articulate who'd come through the child welfare system.

I've always known about college and I knew that was the path I was on. My mentor said that if I ever needed anything, I could call him for a letter of recommendation, advice or just to talk. He never expected anything in return. He helped me find financial aid. School would let out and I wouldn't have a home to go to, so he helped me find places to stay.

- - -

I went to undergraduate school at Northern Illinois University and then to law school at John Marshall Law School in Chicago. I passed the bar the first time.

He told me that just because people had more money than me, that didn't make me inferior. Before I met him, I rarely felt good enough. I was a fat kid and never had the right clothes. He was a big self-esteem booster for me.

An elementary teacher was another mentor. She was the first person who helped me realize my voice had power. She would enter me into oratory contests and spelling bees. When I told her I was going to be a lawyer, she believed me. She believed in me.

- - -

Still, my life had a big hole in it. I didn't know my father. On the outside, I was working hard and striving, but I was depressed and angry with the world.

My father and I were reunited in 1996. I was about to graduate from college. We started slowly, meeting during holiday get-togethers with other family members I didn't know. We cried together. We're still building, moving forward.

I love my father very dearly. I'm a strong believer in the Bible. It says honor thy mother and father. It doesn't say honor them only if they have led perfect lives.

In his 61 years of life, my father has made mistakes. So have I. So who am I to judge? I knew I had to forgive him for not being there for my mother and me, and for the path he chose.

I had to forgive the woman who beat my sister and me for five long years. I had to forgive the man who murdered my mother. He's now serving a life sentence in prison.

- - -

At the beginning of the year, I'll begin work in the felony trial division in the courthouse at 26th and California. My father had been incarcerated there many times. Now I'll be standing up there as a defense attorney.

Yes, I'll be defending murderers. And those who have wronged people in other ways. But I am there to defend the Constitution. Everyone is innocent until proven guilty.

As a Cook County public defender, I tell my clients I can relate to them. I know what murder is like firsthand. I know what misery is like firsthand.

In my office, I give away `U-Turn Permitted' fliers. I tell my clients that I'm a witness they can change their lives.


Adam Nadel...

I woke up this morning and stumbled across a fantastic photo essay called "The Face and Voice of Civilian Sacrifice in Iraq" by my old college friend Adam Nadel. It is published in Today's New York Times.

One of the photos in Adam's NYT photo essay

The Times describes the essay as follows:

"To take his own measure of the war for The New York Times, Adam Nadel broke from the compulsions that dictate the days of many photographers in Baghdad, the suicide bombings and roadside explosions and assassinations that fill the morgues and the hospitals. Over weeks, he went in search of those who had survived attacks, and others whose lives had been upended by the violence. He visited them in their hospital wards, in their neighborhoods, and in their homes, and captured, in images and in words, what the war has meant for them.

Their portraits and their stories compel attention, not because they have endured worse than others, but because their miseries are so commonplace, because they stand for what thousands of Iraqi families have endured, directly or through ties of community and tribe. In his or her own way, each of these survivors is a totem for all, in a war where nobody has an exemption from the bombs and the bullets and the carelessness, or mischance, that determines who lives and who dies."

Adam's work is fantastic. And the images portray, some of the more graphic images I'd complained we were missinghere.

Another of Adam's pictures--this from the West Bank

For more of Adam's great work, check out his photo essay called"Rwanda Testimonies".

Great job. Congratulations man.


Book News...

Good news on the book front...

The legal review should be done in two weeks, copy editing a week thereafter.

My new publication date: June 2nd.

It's all starting to get very exciting!

Happy Holidays.


Arrest the CIA?

This is what happens when we flout rules, alienate allies and squander our moral standing in the world. Let's all say a big thanks to President Bush. What you see below is a direct result of his infantile isolationist foreign policy.

MILAN (Reuters) - A Milan court has issued a European arrest warrant for 22 CIA agents suspected of kidnapping an Egyptian cleric from Italy's financial capital in 2003, Prosecutor Armando Spataro said on Friday.

An Old Arrest Warrant

Milan magistrates suspect a CIA team grabbed Hassan Mustafa Osama Nasr off a Milan street and flew him for interrogation to Egypt, where he said he was tortured.

Prosecutors asked the Italian Justice Ministry last month to seek the extradition of the suspects from the United States, but Justice Minister Roberto Castelli has not yet decided whether to act on the request.

A European Union warrant is automatically valid across the 25-nation bloc and does not require approval of any government.


And while I'm on it, why isn't there a movement to impeach Bush over his obviously illegal surveillance program? It is a serious violation of the law that directly subverts constitutional protections. If ever there were cause for impeachment, it seems that this is it.

Insane Tennessee Caseloads

Tennessee Public Defenders were appointed to a record 183,136 criminal cases during Fiscal Year 2005. This is a 6.5 percent increase over last year. These cases involved a record 313,400 charges, a 5.6 percent increase over last year’s record level.

The backlog of charges remains at a critical level. “Of the 313,400 new charges handled by public defenders last year, our attorneys were able to close out cases involving 292,882 charges,” says Jeff Henry, Executive Director of the Public Defenders Conference. “That means we started this fiscal year with a backlog of 20,518 charges left over from previous years.”

Director Henry points out that the Tennessee General Assembly authorized 23 new public defender attorneys in 2004. “We are grateful for the added resources,” Henry says. “However, we are still far short of the number of positions recommended by the State Comptroller’s updated Weighted Caseload Study of 2005.” That study, commissioned by the General Assembly, recommends that the Public Defenders Conference employ an additional 120 attorneys to adequately handle the state’s indigent defense caseload.

Each public defender attorney was appointed to an average of 911 cases last fiscal year. Public defender caseloads in Tennessee significantly exceed national recommendations. The universally accepted national standards have remained the same since they were adopted by the National Advisory Commission in 1974. Those standards are no more than: 150 felonies or 400 misdemeanors or 200 juvenile court cases or 25 appeals per attorney.


The pleasures of freedom...

LIVINGSTON, Texas (AP) -- A condemned prisoner who got a taste of freedom last month when he escaped from a county jail said Wednesday his flight was worth it even though he was caught after three days on the run.

Charles Thompson

"It was great," Charles V. Thompson, 35, said from death row in his first public comments about the November 3 escape from the Harris County Jail in downtown Houston, Texas.

"I got to smell the trees, feel the wind in my hair, grass under my feet, see the stars at night. It took me straight back to childhood being outside on a summer night," he said.

Thompson said he rode trains for more than two days to the Shreveport, Louisiana, area and posed as a Hurricane Katrina refugee to get some money before he was arrested there.

"It was short lived, but I think it was worth it," he said from a tiny visiting cage outside death row in the Polunsky Unit of the Texas Department of Criminal Justice.

Thompson said he expects to pay for his escape by getting no leniency from Texas courts in his legal appeal. He said prison officials asked if he would try another escape.

"I said, 'I don't think there's any holes in your security here,' " he said. "I'm pretty much resolved to my fate. Concrete box 23 hours a day. Just sit in there and think about how they're going to kill you."

Judge Quits Secret Court...

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret court set up by the Foreign Intelligence Surveillance Act, sent a letter to Chief Justice John Roberts Monday notifying him of his resignation.

Judge Robertson

Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants, sources said. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004, and insisted that the Justice Department certify in writing that it was not occurring.

Now let's bear in mind that the FISA court has authorized more than 99 percent of the warrants that the government has asked for, all of which raises the question: How do they know they're spying on terrorists at all? If they had any firm idea they'd have probable cause and could a FISA warrant...

Welcome back to McCarthyism.


Cointelpro-part deux

The Bush administration claims to be the enemy of big government. And yet, we learn today...

The Bush Administration

That counterterrorism agents at the Federal Bureau of Investigation have conducted numerous surveillance and intelligence-gathering operations that involved, at least indirectly, groups active in causes as diverse as the environment, animal cruelty and poverty relief, newly disclosed agency records show.

One F.B.I. document indicates that agents in Indianapolis planned to conduct surveillance as part of a "Vegan Community Project." Another document talks of the Catholic Workers group's "semi-communistic ideology." A third indicates the bureau's interest in determining the location of a protest over llama fur planned by People for the Ethical Treatment of Animals.

The documents, provided to The New York Times over the past week, came as part of a series of Freedom of Information Act lawsuits brought by the American Civil Liberties Union. For more than a year, the A.C.L.U. has been seeking access to information in F.B.I. files on about 150 protest and social groups that it says may have been improperly monitored.


Decline and Fall

Two articles in the papers today encapsulated for me everything that is wrong with this country.

The first, from the NYT style section detailed the new trend in super high end cocktails, breathlessly detailing things like the Seablue restaurant's martini made with super-premium vodka and Beluga caviar for $275 or Duvet's off-the-menu drink made with aged cognacs, vintage Champagnes and garnished with a vanilla orchid petal - for an astounding: $1,500. (The club says it has sold five or six Duvet Passions since introducing the drink Valentine's Day.)

The second describes a study of charitable giving. It finds that working-age Americans who make $50,000 to $100,000 a year are two to six times more generous in the share of their investment assets that they give to charity than those Americans who make more than $10 million. The least generous of all working-age Americans were the young and prosperous - the 285 taxpayers age 35 and under who made more than $10 million - and the 18,600 taxpayers making $500,000 to $1 million. The top group had on average $101 million of investment assets while the other group had on average $2.4 million of investment assets.

On average these two groups made charitable gifts equal to 0.4 percent of their assets, while people the same age who made $50,000 to $100,000 gave gifts equal to more than 2.5 percent of their investment assets, six times that of their far wealthier peers.

Let them drink Louis XIII.


Evo Morales Gets Me Thinking

Evo Morales was elected to lead Bolivia this week. He's a coca farmer who believes in coca leaf.
And though he's been posturing against cocaine, it does make me wonder what would happen if a country like Bolivia just legalized and taxed production. What if they just said: "Yeah we grow Coca, and that's the official position of our government."


Morales is an interesting guy and his personal story has been a political asset in a country that regularly ranks as the poorest in South America, where more than 60 percent of the people live in poverty and 70 percent are indigenous. A Morales presidency breaks Bolivia's tradition of being led by Caucasian heads of state who hail from the country's elite.

He's built his campaign on bold promises to nationalize Bolivia's vast natural-gas resources and to legalize the cultivation of coca leaf, which is the prime ingredient in cocaine.

In Argentina last month at a summit of hemispheric leaders, Morales condemned U.S. policies, such as free-trade agreements and open markets, that he said exploited poor Latin America countries.

This will be interesting.

Bush Pays Back...

This from a new investigative series by the Toledo Blade:

President Bush's corporate champions see the spoils of his administration in coal. And timber. And credit-card payments, Afghan electric lines, Japanese bank transfers and fake crab.

Among Mr. Bush's top fund-raisers:Nicholas Taubman, CEO of Advance Auto Parts Inc. "Right to Repair Act" -- a bill that will bolster his $4.65 billion company, forcing automakers to share information on car parts and technology.

America's business leaders supplied more than $75 million to return Mr. Bush to the White House last year -- and he has paid dividends.

Bush administration policies, grand and obscure, have financially benefited companies or lobbying clients tied to at least 200 of the president's largest campaign fund-raisers, a Toledo Blade investigation has found. Dozens more stand to gain from Bush-backed initiatives that recently passed or await congressional approval.

The investigation included targeted tax breaks, regulatory changes, pro-business legislation, high-profile salaried appointments, and federal contracts.

Mr. Bush's policies often followed specific requests from his 548 "Pioneers" and "Rangers," who each raised at least $100,000 or $200,000 for his 2004 re-election. The help to business fund-raisers sometimes came at the expense of consumers or public health concerns.

Peter and The Price of Oil

My pal Peter Maass has a great essay in today's New York Times Magazine about the cost of oil. In it he argues that the domestic environmental movement does us a disservice by keeping our own country so very free from the despoliation associated with oil extraction.

The argument is similar to one I make about why I like seeing the homeless in Manhattan. I want the noisy rich constituents of the upper east side to have to step over a homeless person on the way to Wall Street. Sure, it's a frank reminder of the income disparity of this country, but it's also a good way to insure that homelessness actually gets some attention. Shove the problem into the Bronx or to Riker's and you can be sure it'll sink to the bottom of any resource allocation discussion.

Or as Peter so succinctly put it: "Perhaps a few more drilling platforms in our most precious lands and waters would make us understand that the true cost of oil is not posted at the gas pump."


Bush bugs you...

If warrantless domestic spying sounds like the kind of thing we just won't do...
Think again.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.


Another Apostate

Why is it that even open minded, left leaning, otherwise intelligent, public spirited, trained lawyers can't seem to get past traditional stereotypes about public defenders. I mean, I expect the usual tripe from almost everyone else, but it rankles acutely when it comes from those I think should know better.

Case in point: Noah Levitt's Slate piece about cross-border justice.


In it Levitt, (a guy who writes for counter-punch and alternet and goes hog wild about his lefty cred in his bio) writes that:

"The Mexican high-court decision (concerning extradition) shines a 50,000-watt searchlight on the fact that the United States frequently denies citizens of other countries—primarily Mexico—the right to access their consulates when facing legal problems in this country." Levitt goes on to explain that "American law enforcement officials frequently ignore these rights, and foreign criminal defendants find themselves facing jail, deportation, or worse without ever having had access to their consulate, which might have been able to obtain higher quality counsel than the overworked public defender otherwise assigned to their case."

In other words, the big problem with failing to abide by a treaty our government has signed is that foreign nationals wind up having to be represented by PD's? I find this insinuation particularly galling given that Levitt is writing in the context of the prosecution of Mexican nationals--does he have any idea just how good the Federal Defender programs in San Diego or Southern Arizona (which handle a highly disproportionate number of those cases) are?

It's worth a look. If there's another criminal defense lawyer in Arizona that can hold a candle to Jon Sands--the the Federal Public Defender for the District of Arizona,I've never heard of him.


Bait and Snitch...

Kudos to Slate for running this excellent piece about snitching. In it, Alexandra Natapoff makes an obvious (at least to a PD) but important point about the "Stop Snitchin' " T-shirt drama.

The T-Shirt in question

She writes that though the controversy over the shirt looks, at first blush, like a dustup over a simple counterculture message launched by some urban criminal entrepreneurs: that friends don't snitch on friends. But it is, in fact, a symptom of a more insidious reality that has largely escaped public notice: For the last 20 years, state and federal governments have been creating criminal snitches and setting them loose in poor, high-crime communities. The backlash against snitches embodies a growing national recognition that snitching is dangerous public policy—producing bad information, endangering innocent people, letting dangerous criminals off the hook, compromising the integrity of police work, and inciting violence and distrust in socially vulnerable neighborhoods.

Exactly right and succinctly put.

Radosh Rocks:

So just a quick shout-out to my friend Daniel Radosh who had yet another piece in The New Yorker. He is totally rocking the house--not just with that piece, but with his new book too.

Radosh himself...

According to Publisher's lunch:

New Yorker, Playboy, and Radar contributor, and blogger Daniel Radosh's RAPTURE READY!: Adventures in the Strange Pop Culture of the Religious Right, an investigative account of the burgeoning multi-billion dollar Christian media industry, to Nan Graham and Brant Rumble at Scribner, at auction, by David Kuhn at Kuhn Projects (NA).

Any book that goes at auction means, good money for Daniel--so brother, congratulations, and the next round is on you.


Hold the Sheriff in Contempt?

Yep, that's exactly what an Ohio judge is looking to do, according to the charmingly named Youngstown Vindicator:

"Mahoning County Sheriff Randall Wellington's civil contempt hearing in Youngstown Municipal Court will proceed as scheduled Dec. 28, with municipal Judge Elizabeth A. Kobly on the bench.

The matter dates back to Nov. 29, when Judge Kobly sentenced Ronald A. Tomlin, 19, of Hudson Avenue to seven days in the county jail after he was convicted of domestic violence. Judge Kobly's one-page, two-sided journal entry included a handwritten note on the back that read: "Sheriff not to release early."

Wellington says jail personnel received only the front side of Judge Kobly's journal entry. Without that notation, and with a federal mandate limiting jail population to 296, Tomlin was released Nov. 29 and would have been required to complete his sentence later.

Deputy sheriffs arrested Tomlin on Nov. 30, the same day Judge Kobly ordered Wellington to appear at a show-cause hearing and explain why he should not be found in contempt.

For Wellington to prove that his personnel did not receive Judge Kobly's "Do Not Release" order, a chain of custody must be established, and that makes Judge Kobly a witness, Gains (the prosecutor who is representing the sheriff) wrote in his affidavit, which was filed Dec. 5. The judge cannot preside and be a witness without the appearance of bias or prejudice, Gains said.


Who calls the shots at Fox?

During last month’s street riots in France, Fox News ran a banner during a news segment, reading: “Muslim riots.” Billionaire Saudi Prince al-Walid bin Talal, who owns 5.5% of Fox News, was unhappy with the tagline:

"I picked up the phone and called Murdoch… (and told him) these are not Muslim riots, these are riots out of poverty. Within 30 minutes, the title was changed from Muslim riots to civil riots."

Fair point, but also nice to know that the piper knows who pays him.

Tookie Dies Tonight...

Governor Schwarzenegger's decision not to halt Mr. Williams' execution by injection at 12:01 a.m. Tuesday is his third rejection of a petition for a stay of execution or clemency since he took office in 2003.

Stanley "Tookie" Williams

Clemency has not been granted to a death row inmate in California since 1967.

Of course, as Deputy District Attorney John Monaghan, 53, urged Gov. Arnold Schwarzenegger on Thursday to deny the Crips gang co-founder clemency, he faces legal troubles of his own--for killing a man he confronted while working as a reserve sheriff's deputy. In February 2003, Monaghan shot and killed an unarmed driver he had pulled over while working as a San Bernardino County sheriff's reserve deputy.

Ironic Eh?

The thing is, if Tookie Williams doesn't deserve clemency--now remember that's a life of incarceration rather than death--who does? We're long past the point where there's even a glimmer of hope for clemency for those on death row. And as I pointed out in this OpEd in the LA Times A prison without hope is a dangerous place indeed.

Sick Ric Strikes Again--Ten Years For Stealing Beer

So while I was off in Missouri eating BBQ and teaching public defenders how to improve their Voire Dire skills, Sick Ric Howard was dispensing his foul form of justice again.

Judge Howard--known to Indefensible readers as "Sick Ric"

Thanks to TalkLeft for this one:

Adam Bollenbach was 16 when he stole a six-pack of beer from an open garage. Apart from being young, he’s bipolar and suffers from ADHD. His crime merited an apology, repayment for the beer, and enough supervision to assure that he obtained treatment for his mental health problems. So why is this Florida teen serving a ten year sentence?

Months earlier, Adam had been charged as an adult for theft of a bag of potato chips from his school lunchroom. This charge was dropped, but according to the law, once charged as an adult, you cannot be charged as a juvenile.

Adam went before Circuit Judge Ric Howard who admitted that he was using Adam as a teaching tool in front of other juvenile offenders. The result was a sentence of 10 years in prison.

After a year and a half in prison, a request was sent to have Adam's case reviewed. It was denied, stating that a minimum of serving two years was required before review. Within months, Adam was stabbed in the neck with an ice pick by a fellow inmate.

A second request for clemency was sent in November 2003, requesting review of the case in fear that Adam would not make the two-year requirement. The case is now set for a Clemency Review meeting on Dec. 15 in Tallahassee.

If the Clemency Review committee gives Adam an "unfavorable" recommendation, he’ll have to wait three more years to renew his request. At that point, he will have served at least six years for stealing a six pack of beer when he was a juvenile. Ron Lundberg, who writes about Adam’s story today, asks the right question:

Just how much blood does the justice system demand for stealing a six-pack of beer?

Lundberg would like to see the Clemency Review committee flooded with letters in support of Adam. If you want to write, please send your letters to:

The National Alliance for Mental Illness (NAMI),
P.O. Box 641312,
Beverly Hills, FL

Your letters will be presented at the Dec. 15 Clemency Review meeting, where (though unlikely) justice could finally prevail and Adam Bollenback could be released.


Freezing and remote..

I'm in Missouri for the rest of the week, teaching advanced voire dire to a bunch of Public Defenders from the great state Missouri.

The training is being held at lake of the Ozarks, MO.

seen here without the snow or tourist attractions

LOTOMO is about a three hour drive from Kansas City so getting here really is a pain the the ass. But the work is righteous, the PD's here are zealous, and I had a five pound burnt ends sandwich from
Arthur Bryants to keep me happy.
All in all, life is good.


The ABC's of Innocence...

Oh yes, just what we need...More innocence!

Now comes the ABC contribution to the police procedural: In Justice featuring Kyle MacLachlan of twin peaks fame as "a blustery but charismatic attorney named David Swayne. A legendary litigator, Swayne is the head of the Justice Project, a high-profile, non-profit organization made up of hungry young associates who fight to overturn wrongful convictions, liberate the falsely accused and discover the identity of those really to blame."

The hungry sexy cast...

The tease continues: "Whether the ego driven Swayne is doing this in the pursuit of justice or publicity remains to be seen. Thank goodness he has his partner, crackerjack investigator and ex-cop Charles Conti, to keep him honest. He's the serious to Swayne's swagger and together they work to rectify the mistakes of the justice system one case at a time."

An Ex Cop?
Pursuit of justice or publicity?
Discover the identify of those really to blame?

You've got to be kidding.

I'm very interested in how this one plays out, but given the promo material it's easy to see another potential stomach turner particularly given the moral simplicity of the setup.



I have always maintained that one of the biggest tools of oppression in the criminal justice system is bail. The truth is that bail is traditionally used (at least in the big city courthouses where I've practiced) as a device through which to coerce pleas out of poor people who wind up copping out to get out.

So imagine my dismay upon finding that, according to an upstate paper (that deserves kudos for even identifying the issue)most of Syracuse's City Court judges are setting bail at two and three times more than they did 10 years ago for both the most serious and least serious crimes.

The paper goes on to report that In that time, the lengths of jail stays for people accused but not yet convicted of crimes has also doubled and tripled.


Strange star moment…

First some good news! My trial is adjourned until the beginning of January. And while I was ready to go and actually looking forward to doing the case, the adjournment gives me even more time to prepare and paves the way for me to do a little teaching for the Missouri Public Defender next week.

So I’m on my way out of a little holiday party last night (thank you adjourned trial) standing at a corner on Madison Avenue, when a young woman taps me gently on the shoulder, and says—“Oh my god—I’m so sorry to interrupt, but I just had to tell you--your lecture last week was just so totally amazing…”

Now I’m with my friend Laura Kipnis who looks at me completely perplexed. In truth, I’m perplexed too, and since this sort of thing has never really happened to me before, I’m convinced she’s made a huge mistake. “Gosh thanks” I stammer in something less than my best too-cool-for-school delivery. Obviously, I’m looking at her blankly, because she too seems to have a moment of doubt. “This is my boyfriend,” she says pointing to the thin handsome kid next to her, “he’s a cop, and we went to see your lecture and I just thought you raised the best points…”

He’s a cop…some dim memory of something having to do with cops is forming in my brain when she says “At the CUNY graduate center—right?” she’s starting to sound cautious when it hits me—she’s talking about the The Restless Sleep panel discussion I did a few weeks ago.

I kind of can’t believe it, but there she is, all smiles and sweetness, and she’s being so genuine, and it turns out she’s not mistaken after all, and all of a sudden I perk up and we go on to chat for about 5 minutes about cold cases and being a cop in Harlem (where the boyfriend who is a rookie is assigned), and, as Arlo Guthrie might say, all kinds of int-er-esting stuff about life and panel discussions and the CUNY graduate center and then, right there at the pinnacle of my very first micro star moment, I realize I’m being a complete dork, and with a big smile on my face I finally pull myself away from the narcissistic thrill of being recognized to go and have myself a ruben sandwich at the nearby Irish bar.



Had to take a break to mention...

That the Little, Brown & Co spring catalog is out and INDEFENSIBLE is in it.

I must admit, this feels pretty cool--and it makes the whole process seem very, very real, and very immediate. Obviously, I'll blog about the process as it continues toward what I hope will be a May/June publication date.

But for now--here, for the first time, a look at my little page in the spring catalog, including a glimpse of what the cover of the book might look like:

Cool huh?



I'm in the midst of preparing for a trial, so expect some very light blogging over the next few days...

Thanks to Skelly for this picture
which pretty much captures it...


Meet n' plead....

Just cut this little anecdote...

“Listen, brother,” I start again. I’m addressing one particular client. Unlike all the others, he hasn’t yet talked to a lawyer. It’s late; night court is almost over, and I have a choice. I can either leave this kid for the day shift—meaning another night in the cramped cells behind the courtroom—or I can try to get him out in front of the judge. The kid is charged with selling three bags of marijuana to an undercover officer.

Meet and plead...

And while he’d been arrested before he has only one previous criminal conviction, it is a pretty good bet that the judge will give him time served—essentially a sentence of the day or so it takes to get the kid from the streets to the courtroom. Around me, the other men are filtering out one by one to be arraigned. Most pled guilty to the charge or to some lesser charge, receiving a fine, time served, or some community service. Some, charged with more serious crimes, have bail set and are brusquely returned to the well.

I turn to the kid: “I had you pulled because it’s late and the judge is gonna leave soon and I need to know if you want to take time served to get outta here. You are charged with selling marijuana. I can probably get you out, but it’d require that you plead guilty,” my voice trails off, but the kid only has one question.

“Tonight?” he asks, giving me a hard look to see if I’m serious.

“Yeah, brother, right now, cop to the sale and you’re outta here.”

“Let’s do it,” he says, breaking into a broad grin.

Our lawyer-client relationship: 15 seconds.


Mea Culpa...

About three weeks ago, I posted a lengthy rant about a piece by Johnathan Elderfield in the Chicago Tribune titled THE EMOTIONAL PRICE OF BEING A PROFESSIONAL WITNESS In it Elderfield recounted how hard it is to be photo editor and how deeply the pictures he saw every day weighed on him.

Child with dead dad

(You can read my original post here)

In my post, I explained that I feel quite strongly that the fourth estate has been asleep at the switch on the war, and that the most egregious omissions are in the photo-journalism department. I attacked Mr. Elderfield for his whiny tone, and chastised him, writing:

"Why are you, Jonathan Elderfield, the only one to have seen these pictures? Why is it that every time I open the paper I see antiseptic crap rather than the hard hitting news photos it turns out you've been sitting on all these months? The photos that accompanied the news piece were indeed graphic--far more graphic than anything I've ever seen in the tribune or elsewhere. They have the power to bring the horror of war home, and yet all they do is eat at you rather than the conscience of the nation. They ruin your lunch rather than affect public opinion. This seems to be a total abdication of your responsibility as a journalist and an editor, and rather than feel sorry for your pain, all I can muster is fury at your complicity in a whitewash that continues to cost innocent lives on a daily basis."

Well, thanks to the miracle of Blogging and Google, I got a message tonight from Mr. Elderfield himself. As it turns out, Elderfield and the Tribune did in fact run almost all of the photos he mentioned. Which leads me to say: I'm sorry. I got my facts wrong.

After a very brief correspondence he sent me the names of the photographers and their agencies as well as the dates the pieces ran. While I couldn't find them on the Trib site, I did find them elsewhere, and I have no doubt at all that they did indeed run in the Chicago Tribune just as Mr. Elderfield says.

Here's the one of the kid spattered with her parent's blood.

What I find interesting though, is that having now tracked down what I think are the pictures, I'm still disturbed. It seems to me that most of them sounded more graphic and horrifying than they actually looked. For example, here's an account that accompanied the picture above (Chris Hondros is the photographer who took the photo)

"One of the starkest incidents in recent weeks occurred on the evening of Jan. 18 in the town of Tal Afar, a trouble spot west of the city of Mosul, where a platoon from the 25th Infantry Division was on a foot patrol. Chris Hondros, a photographer for Getty Images, an American photo agency, said that soldiers of the Apache company were walking in near darkness toward an intersection along a deserted commercial street when they saw the headlights of a sedan turning into the street about 100 yards ahead. An officer ordered the troops over their headsets to halt the vehicle, and all raised weapons. One soldier fired a three-shot burst into the air, but the car kept coming, Mr. Hondros said, and then half a dozen troops fired at least 50 rounds, until the car was peppered with bullets and rolled gently to a stop against a curb.

"I could hear sobbing and crying coming from t he car, children's voices," Mr. Hondros said. Next he said, one of the rear doors opened, and six children, four girls and two boys, one only 8 years old, tumbled into the street. They were splattered with blood. Mr. Hondros, whose photographs of the incident were published around the world, said that the parents of four of the children lay dead in the front seat. Their bodies were riddled with bullets, and the man's skull had smashed."

It seems to me that the writing here is more powerful than the images, and that just seems wrong. I guess that while I clearly owe Mr. Elderfield an apology, (and I offer it unreservedly) I am still disturbed by the same point that tuned me up initially. Where are the graphic terrifying photos?

Photo's like this:

Or this:

I guess I still wonder why, If we can get pictures of Brad Pitt frolicking on some remote island beach we can't get disturbing pictures of the horrors of war, or even just shots of flag draped coffins? Is it possible that it's just because they say so? I mean, we know that there are more horrible photos in circulation that document what happened at Abu Ghraib--(in a chat I heard Sy Hersh, mentioned something about a feather...) But they've never been published.

What I tried to convey then, (though I was wrong about what the Trib published) was that I thought Elderfield's piece, (while interesting and confessional) didn't seem to address the larger and, I think more pressing question. And that's too bad--particularly because Elderfield would have been such a good person to have done so.

At least that part I stand by.


People are so nice!

Yesterday I wrote an admittedly provocative piece in Slate about the whole Bob Woodward thing.
Such mail I got...and so nice too.

Here's a sampling:

Allan Jones of Los Angeles, CA wrote:

"Just where do you get this BS?
"Given the administration's outrageous conduct in leaking Plame's name, and allowing ....."
You need to adjust your tin foil hat and take some meds!

James Sramek had this to say:

Plame wasnt covert.....your "lawyer" title is a joke.
Gonna get burned....

Bush continues to out-poker all liberal pant wetters...

And some guy with Ebay in his return address wrote:
Regarding the story above, I couldn't get past the first line...
Everyone now knows that Ms. Plame was not a covert CIA operative. Why don't
you try the facts sometime?

C. Galipeau added:

In your first sentence in your article about Valerie you state that someone in the Bush administration leaked the identity of a covert CIA agent. I didn't have to read any further than that to understand you are a typical left wing nut job. First, ol' Val was not covert any longer, she was pushing a pencil in DC. Secondly, the lefty wacko theory that she was "outed" to get back at Joe Wilson has been disproven. So... that makes 2 lies in the first sentence alone. Are all liberals liars or all all liars liberal? Nitwit.

One of the things I find most interesting about all this is the consistency of the liberal hating critique. Most of the really virulent hate mail followed exactly the same pattern...

Now, of course, I got lots of thoughtful responses too (thank you Cecilia, Stephen, Mike, Michael, Cynthia, Zaynab among others), and even when someone does not agree with it's always nice to get feedback. Ok, almost always nice.


Thanksgiving Feast...

One of the coolest things my old office does, is throw a thanksgiving for clients. Every year, our homeless and hungry clients can count on a decent meal and a festive atmosphere. I't some of the best food in the Bronx, and one of my favorite occasions of the year. Sadly this is the first year I won't make it.

Of course, One of the worst parts about working up there, is the utter lack of decent food. Up near Supreme Court, there is a Burger King and an old deli where Judges, court officers, ADA’s and defense lawyers stand cheek by jowl waiting for mediocre club sandwiches. And across the concourse, near the criminal court, there is a food court where the aggressively obese can choose from various fried fast food flavors. Finally, down a bit further, near my office, is the dirty sandwich bodega where for five bucks I can get a sloppy helping of rice, beans and an indeterminate protein product. For years, I ate every lunch at the same place: The Feeding Tree—a superb hole-in the wall serving phenomenal Caribbean food. They demolished it though-- to make room for a new, even larger criminal courthouse. So now, on a good day I eat at the gas station—a new British Petroleum station which because of it’s corporate standardization, brings croissants and salads to the South Bronx. And the gasoline fumes aren’t too bad.

Have the urge to make a thanksgiving day donation to The Bronx Defenders--the most righteous public defender office in this great nation of ours? Just click here...

Don't Tell, Ask...My latest Slate piece...

Here's another of my little pieces sure to stir up some controversy. It defends Bob Woodward and makes the point that Woodward's silence hasn't betrayed the nation, the Washington Post readership, or anyone else. Legally speaking, all Woodward's discretion did was force Special Prosecutor Patrick Fitzgerald to do his job. The real discussion here shouldn't be about why Woodward didn't come forward; it should be about why Fitzgerald didn't call.

Bob Woodward

iven the administration's outrageous conduct in leaking Plame's name, and allowing for Woodward's special place in the pantheon of modern journalism, it is easy to feel betrayed both by his silence and by his seemingly unnecessary public pronouncements. But make no mistake about it: Patrick Fitzgerald is a tenacious prosecutor. He found Judith Miller despite the fact that she (unlike Matthew Cooper) hadn't gone public with what she'd been leaked; he found creative ways to pressure potential targets and witnesses into signing confidentiality waivers, and when that didn't work, he showed no compunction about jailing journalists, all in the pursuit of the information he wanted. Fitzgerald had all the power here. The failure was his—not Woodward's.


A Must Read.

As usual, Jennifer Gonnerman turns in a
phenomenal piece.
This one, a homage to an essentially unknown ex-con, is a magnificent example of the kind of journalism there should be more of in the country. Way to go Jen!

Jen Gonnerman

Here are the first few paragraphs...

On the day that Rosa Parks's casket was on display in the rotunda of the U.S. Capitol building, here in New York City the body of another battler for civil rights lay in the city morgue. Nobody seemed to notice that Marc LaCloche had died; 12 days after his death, his body was still unclaimed.
Marc never inspired a boycott or sparked a movement, but he fought for a precious, and seemingly simple, right: to work as a barber. The prison system had trained him to cut hair while he was locked up for first-degree robbery, and he'd worked in prison barbershops for years. But after his release in 2001, the state refused to allow him to work as a barber.

Few ex-prisoners who are rejected for a barber's license fight back. Marc did. An administrative law judge reversed the state's decision, and Marc worked in a midtown barbershop for three months until the state appealed his case and took away his license. He found a lawyer and brought his cause to State Supreme Court in 2003.

Marc's court battle attracted the attention of the local media. Few people knew that the state was training prisoners to perform a job they couldn't legally do once they were freed. The judge ordered the state to hold a hearing about Marc's application. At the hearing, he'd have to prove he had "good moral character."

You can also find more on her and on her book here.


This makes me cringe...

My regular readers know that I'm hesitant to rag on other PD's, but every once and again, it's important to remember that not everyone in our hallowed business does business like we do. And so, I bring you the shameful tale of Randy Smith who bid cheap and won the Public Defender contract in Grant County in Washington State.

Randy Smith

(Remember friends--though referred to as a PD, this guy is really an exemplar of why states need a real PD system rather than assigned counsel plans--or worse, county wide contract bidding (You can see my piece in Slate about this here))

Now the fact that Grant County was an embarrassment is not news--everyone's known for ages that the Grant County "PD's" office was awful. (It's why the ACLU sued them....hey, was that you Vince?)

Anyway, as the Seattle Times points out, as part of the settlement Grant County agreed not to rehire two attorneys whose work was condemned by plaintiffs. But guess what?

"One of the two attorneys, Randy Smith, will apparently keep the court-appointed clients he already has — including Evan Savoie, a teenage murder defendant facing trial in April in one of the most highly publicized cases in Grant County history.

This is Evan--now 15.

Savoie and a co-defendant, Jake Eakin, are believed to be the youngest murder defendants to be tried as adults in Washington state since the 1930s. They were charged with stabbing and killing Craig Sorger, 13, on Feb. 15, 2003, in Ephrata.

Savoie and Eakin were 12 then and are 15 now. Eakin pleaded guilty last spring to being an accomplice to the killing and was sentenced to more than 14 years.

The case has received attention not only because of the defendants' ages, but because of concerns about whether they could get a fair trial. The case brings together a trial judge who has been censured for incompetence, a prosecutor convicted of a drug felony and a public-defense system that is among the state's worst.

Last year, two of Grant County's chief public defenders were disbarred. Both were found by the Washington State Bar Association to have solicited money from clients they were supposed to represent for free. Now, the Central Washington county has agreed to prohibit Smith and another attorney from entering into new contracts as public defenders.

Collectively, those four attorneys have represented thousands of felony defendants too poor to hire their own counsel.

"It appears that this kind of shoddy defense has been going on in case after case after case, for year after year," said David Zuckerman, a Seattle attorney who is handling the appeal of a former Smith client challenging his conviction.

In the class-action lawsuit, plaintiffs criticized Smith's work in two cases. They alleged that in one case Smith didn't know how to enter a simple document into evidence, and that in the other he misinformed a client about the consequences of a guilty plea, resulting in a sentence of up to life imprisonment.

Smith holds a public-defense contract that will expire at the end of this year. The settlement requires Grant County not to hire Smith again after that, but doesn't affect the court-appointed clients he already has, said LeRoy Allison, chairman of the Grant County Board of Commissioners.

"It applies to future contracts, not current or past," Allison said. "So the impact of that determination isn't for today's clients or yesterday's clients, but for future clients."

Allison said the prohibition doesn't mean that Grant County agrees that Smith and the second attorney are unsuited to do public-defense work. The condition was demanded by the ACLU of Washington, Allison said.

Support from colleague

Smith began representing Savoie in March 2004. Monty Hormel, a veteran Ephrata attorney in private practice, has also been appointed to represent Savoie. Hormel said Friday that Smith is still on the case — and that he hopes he stays on.

"I have found him to be an astute and excellent young attorney," Hormel said. "It's a pleasure to deal with him."

Grant County Prosecuting Attorney John Knodell also praised Smith, calling him "highly competent." (You know you're really in deep shit when the prosecutor calls you "highly competent"--it's probably the best argument I've heard for hanging it up.)

Anyway, when Smith received the Savoie case, he had been an attorney for fewer than four years. The Washington Defender Association, which provides training and support for public defenders statewide, offered to help find other attorneys to try the case. But Smith, in a Seattle Times story last year, said outside counsel wasn't needed.

"Is there something about my law degree that is somehow less because I have an office in Grant County?" he asked. "I find that a little offensive. Maybe I'm young and cocky, but I think I'm pretty good."

The other attorney the county has agreed not to rehire is Ted Mahr, a former public defender who no longer holds a contract. Mahr said Thursday that nobody had informed him that the county would not again hire him. He defended his work, saying, "I work very hard and do a good job for my clients."

Sweeping changes

The class-action lawsuit was filed last year by the ACLU of Washington and Columbia Legal Services. It alleged Grant County's public defenders were overworked, unqualified or laboring under contracts that punished them financially for spending time on cases.

The two sides settled this month, with Grant County agreeing to sweeping conditions, including a cap on attorney caseloads. The settlement must still be approved by a judge.

In court documents, plaintiffs criticized Smith's work on behalf of Ramon Murillo, charged last year with the rape of a child. The prosecution's case hinged largely on a statement Murillo made to Moses Lake police.

A detective said Murillo confessed. But the most damning admissions he attributed to Murillo came only after police turned off a tape recorder. Murillo later denied confessing.

When plaintiffs' lawyers asked Smith why he didn't challenge the detective's account, Smith said he trusted the detective to tell the truth. Smith said he and the detective were personal friends who attend the same church and play basketball together. (Oh god, this makes me want to slit my wrists.)

Murillo pleaded guilty to first-degree child molestation. He was initially sentenced to a maximum of about five years, only to have prison officials notify Grant County that Murillo's conviction carried a mandatory sentence of five years to life in prison, according to court records.

Zuckerman, Murillo's appellate attorney, said the prosecutor, judge and Smith all failed to realize that Murillo's plea would result in a possible life sentence.

When notified of the mistake, the court should have allowed Murillo to withdraw his plea or seek other relief, Zuckerman said. Instead, the judge hit Murillo with five years up to life."

And we wonder why, with stories like this around, our clients are suspicious of us...


Sick Ric gets slick...

The latest legal developments in the case of "Sick Ric" Howard and his obscene sentencing of a poor african american kid to 30 years in prison, highlight an aspect of the justice system--how intransigent judges use procedural dodges to hurt criminal defendants.

Newly Slick Judge 'Sic' Rick Howard

INVERNESS - Circuit Judge Ric Howard on Tuesday denied an emergency motion that William Thornton's defense team had filed.

Thornton, 18, is serving a 30-year prison sentence for the deaths of a Citrus County couple in a December 2004 traffic collision. Thornton's public defenders had asked the judge to expand the 60-day time limit during which he could consider a motion to modify Thornton's sentence. Howard recently told the public defenders he couldn't hear any motions in the case because they already had filed an appeal. The case is outside of his jurisdiction until the 5th District Court of Appeal grants him permission to rule, he said at the previous hearing. At Tuesday's hearing, Howard denied the public defenders' motion, repeating that the case is outside his jurisdiction, at least for now

In other words, because the defense actually abided by the strict time limits on filing appeals sick Ric won't even decide WHETHER to extend the 60 day sentence modification period. It's a way of forcing a choice between his sleazy justice (and potentially faster results) and a more tempered view from above that could take a years...


A Courtroom Affair...

Excerpts from a Times story:

A Queens man in prison for murder has filed a motion for a new trial, based on accusations that the judge unfairly helped Queens prosecutors and had an affair with one of them, which tainted his judgment.

The accusations came from the judge's former law clerk in a complaint to the State Commission on Judicial Conduct. Ms. Memblat claimed that Justice Rios began a sexual relationship in 1996 with a Queens prosecutor, Meryl A. Lutsky. Ms. Memblatt charged that Justice Rios openly flirted with Ms. Lutsky in court and made humorous hints of their affair. In an interview yesterday, she said she became concerned about the relationship for fear that it might adversely affect some defendants' cases. Her complaints to the commission were included in Mr. Johnson's motion, which was filed Tuesday...

The source for the story, Ron Kuby gives defense lawyers a nice lesson on how to swing for the fences in a press conference. Here is the printed account of that interview...

Ron Kuby

In an interview yesterday, Mr. Kuby said that Ms. Memblatt's complaint indicated that Justice Rios gave the prosecutor in the case "a secret tutorial" on how to convict Mr. Johnson.

"Is it too much to ask that my client get one fair trial without sex or secret coaching?" he said. "If the D.A.'s office knew Justice Rios had an ongoing sexual relationship with one of their prosecutors, the judge had a real motive to maintain good relations with other Queens prosecutors."

Mr. Kuby said that he was confident Mr. Johnson would get a new trial and that it would certainly include "lots of lurid testimony about sex and corruption in the Queens courthouse."



Cape fearless...

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 W. to jail. W. 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 W. nearing the end of his sentence, I got a letter from his girlfriend. 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 W. 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 W, and the concern you have shown for him. As you know, the outcome of this case was devastating for both W. 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.

W. 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?


Classic Coverage

Joining the always awful NY Post, the New York Daily News runs yet another absurd piece today about a sentence reduction.

Under the blazing headline "Rocky Law May Free Drug Thug" the paper writes that:

"A drug dealer whose gang shot an undercover cop in Harlem in 1989 got a break yesterday when a Manhattan judge slashed his sentence, largely on the word of a high school teacher whose students met the inmate on field trips.
Kevin Rivers, now 35, could be released in as little as two years, despite a long disciplinary record in prison. He was sentenced to 33 years to life on drug charges after being acquitted of wounding the cop."

In other words--he didn't shoot an undercover, rather he was acquitted of that charge (nor was he convicted of conspiracy or acting in concert) but sentenced on a drug case to 33-life. That's why he's eligible for re-sentencing--because he was ACQUITTED. This is just typical misleading crap.


My Life...

Nora* is hungry. She is literally hungry. Hunger doesn't seem possible. Hunger can’t possibly happen here, to people I know, to decent people. But Nora is hungry. I hear it in her voice. "It's a favor," she says hesitantly when she calls, "like...a financial favor." She's never asked me for a financial favor in the 8 years I've known her.

Even for me, even now, even after seeing what I've seen, the idea of hunger--of actually not having enough money to buy the food one needs, seems impossible. There must be something else, I think, drugs, some foolish extravagance that broke the budget, a pair of sneakers or snazzy outfit. But this is Nora. She is one of the most modest people I've ever encountered. She works all the time, hustling to put together two and three jobs, waitressing at diners, cleaning houses, baby-sitting: anything to add a few dollars, to save, as she has been for ages for her own apartment, to finally get out of the shelter system.

I am in Chicago. I'm skeptical. Hungry doesn't seem possible.

"I'm in Chicago darling," I tell her. "Can this wait a few days?"

There is desperation in her silence. "Of course. I'm sorry. No problem." She says bravely, but I can hear her. She is panicking.

“Nora, tell me the truth,” I’m skeptical “what is going on?”

“The bills just got away from me,” she says quietly, “and I’m a little short until next week—you know--in a food way.”

In a food way?

“How much do you need?”

“Like 40 dollars…”

“40 dollars? 40 dollars is going to feed you for a week?”

“David, I don’t feel comfortable asking for more.” She says quietly. I can make it with 40 dollars. It’ll be okay. 40 dollars is good.”

Her check doesn’t come for 7 days. She has a toddler. $40 dollars seems an obscenity, a single meal at a mediocre Manhattan restaurant. 40 dollars seems impossible.

“Nora,” I say, “If you are really hungry…” it just slips out, she is really hungry. I know it, I know her. I know what it takes for her to call me, to ask me something like this—for money. And yet I can’t get over my disbelief. And so I say “really” and I cringe as I do, as I hear my own condemning skepticism, the skepticism of a thousand people I’ve met at cocktail parties who raise their eyebrows when I talk about hunger and desperation, about the clients I represent in the south Bronx, about their lives and the razor thin margins on which they survive. And yet here is Nora.


I hate myself for saying it.

“Can you make it until tomorrow?”

That silence again. “Sure.” She says, but I know in that moment it is worse than I suspected.

“I’m landing tonight at 7, can you get to Manhattan? I’m going to meet you at my house and I’m going to get you 100 dollars.”

“My house?” she should come to my house? I can’t be bothered going out of my way. I’m the one on the plane, I’m the one with the valuable time, I’m the one handing out the cash. Of course she should come to me.

But I hate myself for saying that too.

“I’m going to call you as soon as I land.” I say. “If you haven’t heard from me by 7:30, call me. I’ll meet you at my house and I’ll get you the money.

“I’m sorry David…sorry for asking…I didn’t know who else to call.”

“It’s alright darling, I’m glad you called. I’m going to help. I’m going to see you tonight. You can call me anytime.”

At least, I think, I’m am going to help…

*(not her real name)


Sick Ric Get's a Whupping on the OpEd Page

I've been posting for some time (see posts here and here.) about a vile judge named Rick Howard and the inexcusable sentence he imposed on William Thornton. Well, it seems the St. Petersburg times has picked up the case and they published the editorial listed below earlier this week. Let's hope it has an effect.

Sick 'Ric' Howard

Meanwhile, there is also a petition for Jeb Bush or an appellate court to right this terrible wrong. You can sign it here

Here's part of what the St. Petersburg times had to say:

Look up the word "travesty" in the dictionary and William Thornton IV should come to mind. The young man who had no criminal record was recently sentenced to 30 years in prison for his role in a tragic traffic accident that left two people dead.

Thornton was only 17 when he tpleaded no contest to two charges of vehicular homicide arising from a Citrus County traffic accident. Two people who weren't wearing seat belts died in December after Thornton, who didn't have a driver's license, ran a stop sign while speeding. After cresting a hill, Thornton was surprised by the coming intersection and tried unsuccessfully to use the brakes and the emergency brake to stop before entering the crossroad where the crash occurred. Since the accident, a sign has been posted warning motorists of the stop sign ahead.

Thornton said he was advised by his attorney to seek the mercy of the court rather than go to trial. He expected to receive a sentence comparable to what was recommended by state corrections and juvenile justice officials - house arrest or a couple of years of juvenile detention.

But Circuit Judge Ric Howard is partial to unduly harsh sentences, particularly for juveniles. Howard sentenced Thornton to two 15-year sentences to be served consecutively, the maximum allowable under state law.

Thornton received bad advice from his public defender, who has since left public service. An open plea before a judge known for aggressive sentencing was a recipe for injustice. Now, the Office of the Public Defender for the 5th Judicial Circuit is trying to correct matters.

Thornton's new public defenders have filed an appeal before the 5th District Court of Appeal, asserting among other claims that Thornton's plea wasn't voluntary due to his youth and lack of appreciation of the potential consequences. This seems like a promising and justifiable basis for reversal. At the same time, Thornton's attorneys have asked Howard to allow Thornton to withdraw his plea, or grant a sentencing rehearing, or modify the original sentence.

Unfortunately, the State Attorney's Office is refusing to lend its support to a modification of Thornton's sentence. Do prosecutors really think justice or taxpayers are served by warehousing this young man for the next 30 years?

Yes, two people died and Thornton should face serious consequences for his actions. But the sentence meted out, while technically legal, is shockingly out of proportion to the offense. What Thornton did was unintentional. He should not be punished as if he set out to harm his victims.

Meanwhile, Howard should be removed from the case. During Thornton's sentencing, Howard disparagingly referred to the criminal record of Thornton's father, specifically pointing to the 30-year sentence that Howard himself imposed last year. This suggests that a consideration beyond Thornton's own conduct entered the sentencing determination.

If the courts don't sharply reduce Thornton's sentence to something more in accordance with the recommendations of state officials, then the governor and clemency board should step in. After two years following Thornton's conviction, the governor, with the approval of two Cabinet members, can commute Thornton's sentence to make it less severe.

Gov. Bush can look to his own family for an example of this kind of tragedy and how the legal system can deal compassionately with tragic traffic accidents. When his sister-in-law and our country's first lady was 17 years old, the then-Laura Welch ran a stop sign in Midland, Texas, striking a car and killing a young man. In that case, no charges were filed.

Thornton's life should not be ruined because he received some bad legal advice and had the misfortune to ask for mercy before a judge who has none to give.

Tough Times in Missouri

In a few weeks, I'll be heading down to Missouri to do a training program on jury selection at the public defender's office. Unfortunately, through no fault of the office or the dedicated people who work there, the public defender system is struggling. My good friend Jeff Sherr who is the training director for the Kentucky Department of Public Advocacy send me a recent article that reported that Missouri ranks 47th in public defense funding, and that caseloads there are soaring 80 percent above standard (a standard, mind you set by John Ashcroft). The office hasn't been given money for new lawyers in over 5 years.

Although Missouri’s code of ethics for lawyers prohibits accepting new clients if doing so would compromise the quality of representation an attorney can provide, public defenders cannot refuse to accept cases assigned to them.

“The law keeps piling on the cases,” Robinson said. “You still have the same ethical duties, but there’s no way to say no.”

For example, in an office in Hannibal, four attorneys, one secretary and an investigator handled 1,692 criminal cases spread over six counties last year. That adds up to 423 cases per attorney, 80 percent more than the recommended annual caseload.

“I always fear I’m not spending enough time to be as thoroughly prepared as I should be,” said Hannibal District Defender Raymond Legg, who often works 12-hour days. “It’s crisis management. I’m running from courthouse to courthouse, jail to jail.”

The typical public defender working in the trial division, which does not include death penalty or appellate cases, Robinson said, can afford to spend an average of five hours and 38 minutes on each case, based on dividing the number of cases by total attorney work hours. Almost half of all cases represented by a public defender result in a guilty plea. Only 786 trials came out of last year’s closed caseload of 84,801.

“We would hope there would be more trials,” Robinson said, but they take more of attorneys’ time. “They have a whole file cabinet of clients they have to worry about.”

It is high time for the legislature to step up and fix this problem.