More Bush Sponsored Corporate Welfare

This is guaranteed to boil the blood--another massive giveaway to corporate America at the expense of the government and citizens.


The years of sodomy I now recall

Dahlia Lithwick does (as usual) a great job of illuminating the debate about repressed memories. Oh My Gawd--I can't believe it! I just remembered that the CEO of a major multi-national beat me with a pipe wrench! Quick call a civil lawyer!


Forensic Confusion

Here’s a nice illustration of some of the problems that can pop up in the use of forensic evidence. This, in the context of the shroud of Turin. Turns out the shroud may be more than 1,000 years older than previously thought. It’s not that the carbon dating was wrong—it’s just that the tiny sample they chose to test came from a patch rather than the original shroud—like so much science--valid result, invalid conclusion. Good thing no one was on trial.


Yeah Baby!

Could it be that in their humiliation democrats are actually growing a backbone? It appearsfrom this article, that democrats are finally finding the guts to stand up and not only ask the not-so-tough questions, but actually do something—in this case stall confirmations. It’s something that they should be doing a lot more of in defiance of an out of control administration that has counted on the Dems to roll over. It’s about time they started resisting.


And While I'm at it...

Please check out this blurb about the Florida Supreme Court's rejection of CSAAS The case it refers to is Hadden v. Florida which basically held that CSAAS didn't even pass the Frye test--that is it was not generally accepted in the scientific community. Did I mention this was bogus psuedo-science?

Talk about a crock

So judge Melville is going to allow an expert on child abuse. Just in case you've never had the pleasure of reading or hearing such testimony, hold on tight, it's scary stuff. Much like Rape Trauma Syndrome, Child Sex Abuse Accommodation Syndrome can be found in any case in which an allegation has been made. As it turns out, everything is 'consistent' with CSAAS delayed reporting--no problem, prompt reporting, no sweat. Prosecutors love this stuff--it can make even the biggest dog of a case sit up and bark--credibility problems with your CW? Hey, just bring in an "expert" to legitimize the dubious testimony.

Patrick Fitzgerald gets spanked...

A judge accused a federal prosecutor of misconduct for turning grand jury materials over to a plaintiff's lawyer in a hospital-fraud case, sparking a dispute that has led to an investigation of several lawyers in the U.S. attorney's office, court records show.


The Greater of Two Evils

In this article about the race for Manhattan DA, the times reports that "Leslie Crocker Snyder plans to mount a serious challenge to Robert M. Morgenthau, the longtime Manhattan district attorney" That's not itself news, but the fact that she was encouraged to run by law enforcement unions after Morganthau released the kids in the central park jogger case should give you some idea of just how appalling and repellent this woman is.

In her years on the bench, Snyder was one of the most awful, disgusting, pro-prosecution jurists ever, routinely handing out extreme sentences, gloating over convictions, and regularly trampling over defendants and their attorneys. Her judicial temperament was closer to avenging wacko than to sage. She was, in short the kind of judge that could use her judicial career to position herself to run for prosecutor. Now THAT's terrifying.

I'm not a big fan of voting for DA's to begin with, but please--if you are in fact a Manhattan resident--do NOT vote for this woman.



On a more serious note, here's a smart Adam Liptak piece about the federal sentencing guidelines. It suggests that even wtih Booker and FanFan, federal judges are likely to follow the guidelines. He delivers a number of interesting compliance statistics concerning state systems that use an advisory system. Of course, when he delivers a bit of bad news about the Feds--citing a low compliance in Arizona, he fails to mention WHY that district is so regularly below the guidelines: The federal docket in AZ has a highly disproportionate number of imigration cases. And as Liptak should know, (and as he should have pointed out,) enforcement of the immigration laws varies substantially between 'normal' jurisdictions and border states--this is a product of the inexhaustable supply of potential criminal defendants streaming across the border--border states understand that you can't actually just lock everyone up for a decade for illegal re-entry...


Rat Race

This interesting Fox Butterfield piece is a good example of how wrong headed most criminal justice thinking is. Butterfield, a wonderful writer and one of the best there is at highlighting criminal justice issues, nonetheless fails to ask or answer some of the important questions in a piece about the sad death of Rickey Prince, a kid murdered after agreeing to testify in a gang case.

First of all, who was the boneheaded prosecutor who gave the kid up in open court and what happened to him? Why was it necessary in a plea allocution to name the witness rather than declare "a witness known to the grand jury" or "to the DA's office."

Second, in discussing what is to be done Butterfield reports on legislation to admit hearsay from "intimidated" witnesses--a notion that, especially after Crawford v. Washington, seems patently, even absurdly unconstitutional. Foolish ideas like that don't deserve uncritical repetition in the paper of record, and Butterfield should know better.


Another Slate Piece

Here they are: my latest musings about the sorry state of indigent defense and an obscure Supreme Court ruling that screws the indigent...

Pro Se Can You See? - The absurd Catch-22 at the heart of Kowalski v. Tesmer. By David Feige

Ethics Offensive

Ok, you simply must readthis phenomenal essay on the republican 'ethics offensive' by Quin Hilyer it does a fantastic job of outlining the corruption of the current republican-led congress and provides a model for the democratic response.

"Compare the actions taken by the GOP Congress in 1995 and 1996 to the recent actions of Congressional Republicans: Back then, House Republicans loudly trumpeted their strict new near-ban on lobbyists' gifts to representatives and staffers; in 2003, they gutted the gift ban by raising the gift-value limit by about tenfold. Back then, they put stricter limits on the types of free junkets available to members and staff; in 2003, they exempted "charitable" junkets from those limits. Back then, they boasted about opening the legislative process to public scrutiny by making all committee hearings (unless classified for security reasons) open to the public; now, they write most of the significant parts of their bills behind the closed doors of House-Senate conferences."

This is a must read.

Bush, Yushchenko, Dioxin

For a man suffering from Dioxin poisoning, Viktor Yushchenko is lucky. Yushchenko’s ascension to the Presidency of the Ukraine was aided by the passionate support of his Ukrainian constituents, and intense international pressure that helped persuade his opponent to negotiate and the Ukranian Supreme Court to order a do-over. Good thing he wasn’t running for president against George W. Bush.

There is no question that Yushchenko’s supporters were partially responsible for his eventual success, they took to the streets, camping out in tent cities that paralyzed much of the country. But equally indisputable, is that Yushchenko’s bid for the presidency was dramatically aided by intense international scrutiny and pressure. The result were new elections widely believed to hold greater legitimacy that the last round. And while Yushchenko’s election is a victory for Ukraine, it is also testament international community’s power to gently enforce democratic norms and create positive change in the domestic affairs of a member nation.

As an outsider, Bush has made clear that clean elections in the Ukraine are important to him. "There's just a lot of allegations of vote fraud that place their elections, the validity of their elections, in doubt," Bush said on November 26th, "The international community is watching very carefully. People are paying very close attention to this”.

Such sentiments seem strange coming from Bush. In his resolute refusal to heed international opinion about our domestic issues, and his lassiez-faire attitude toward voting irregularities, he seems the wrong messenger for this particular message. Had Yushchenko been running in place of John Kerry, and had the same problems emerged here in the US, the outcome of the Yushchenko/Bush match-up would have been anything but a victory for democracy.

Imagine for a moment Bush’s reaction to the international community’s electoral concerns: The French telling us how to run an election? Unthinkable. Not only would Bush have utterly refused to acknowledge international opprobrium, he’d have used it to galvanize anti-Yushchenko sentiment.

And demonstrators in the streets? Mass arrests in the name of stability would have been not only countenanced, but encouraged. A tent city on the Mall in Washington would have lasted just a few hours before the national guard and thousands of police arrested everyone in sight and carted off the refuse. The scary thing is, Americans would’ve been just fine with that. As it turns out, we’ve become a country too complacent to complain and too fat to demonstrate.


Booker, Dano!

The Booker opinion is nothing short of bizarre (as Scalia points out.) It all seems so good right now, but (and this is a BIG but) beware the congressional reaction.


This just in: As has been widely anticipated, the Supreme Court, in a tangeled opinion, has extended the decision in Blakely to the federal sentencing guidelines ruling that the guidelines are no longer mandatory!


The PD Life

Here is another installment of my PD reminiscences for those of you wondering what life is like. This is a scrap I couldn’t really use in the book…

I have four different courtrooms left to visit and my pager is going wild. I am still getting used to the new courthouse, sizing up judges, meeting court clerks and court officers whose good graces are essential to being successful in the courtroom. An old colleague of mine once told me “make the entire room love you”. If you have the approval of the court staff you can get away with anything.

My first stop is on the fourth floor--to take a plea on a drunk driving case. It goes smoothly except for the part where I realize half way though the plea that the Spanish interpreter who is supposed to be translating is actually outside the courtroom. This becomes evident when my client, who is looking around absently fails to even respond to any of the judge’s questions. “you are giving up your right to remain silent…Do you understand” the judge demanded. My client smiled and nodded his eyes wide, his head nodding in a way that made it utterly clear that he didn’t have a clue what was going on. Oops, I thought to myself realizing that there was no interpreter up there with us. “does he need an interpreter”, the judge asked wearily? “Ahh. It looks like it” the ADA mutters. Just then, the interpreter wanders in and the plea proceeds. The ADA on the case then mistakenly tries to impose a fine greater than the maximum allowed by the statute. After fixing this little problem and saving the client 250 dollars, the plea gets entered and I head off to another courtroom.

Nothing was going right in the F part either, some kid was sentenced on two cases but neither clerk signed the papers to send him upstate. As a result, the kid bounced back and forth between courtrooms for the better part of a week, getting woken up at 4:00 am from Rikers, heading to court, only to be sent back with papers indicating to corrections that he needed to be brought to a different courtroom. The problem took about a half an hour to clear up by which time I was late for AP-3. My client there, a young kid charged with unlawful possession of a knife, was still patiently waiting for his case to be called. When I arrived, he was watching as Judge Recant yelled “ Sir: Either you are guilty or you’re not....WHICH IS IT” over and over at a frightened little man with darting eyes charged with patronizing a prostitute.

It takes 20 minutes to get the knife case called, but when it finally happens, I smoothly enter a plea getting the kid sentenced to two days of community service. The process takes less than a minute. My pager starts going crazy again, and I head down for the arraignment part to pick up yet another case. In the elevator an older black man glowers at me and says loudly “You’re all a bunch of Motherfuckers… Jesus commin down to smite you… He will have vengence....motherfucker”


How bad is Texas?

Ever wonder just how bad things can get? Check out Scott Henson's great blog on the state of criminal justice affairs in Texas. Recently he's been doing a nice job of covering the fallout from the Tulia case, including the Tom Coleman perjury trial.


In this fantastic article on prosecutorial misconduct, Steve Weinberg does a great job of exposing the mechanics of tainted prosecutions. It's a good read for those concerned about the issue.


A Shock Shocker:

It wouldn’t be a normal day in the Bush 2 presidency without disastrous news. Today’s is the elimination of the Federal Shock Incarceration program —the only decent sentencing option for low level, first time offenders. Despite the fact that the program saves over $9,000 per enrolled inmate, Bush don’t like it. Funny, he’s just the kind of guy who would have benefited from it back in his coke-snorting days.


No Low to Which They Will Not Stoop...

If you can come up with a more nauseating combination of moral bankruptcy and sycophancy than this one, do let me know—the Bush administration admits (ooops) that they paid a black conservative commentator almost a quarter of a million dollars to tout No Child Left Behind to his African American viewers and other African Americans in the news media.

Uh, using taxpayer dollars to fund partisan propaganda…does that sound like a bad idea to anyone else up there? Remember the fabricated news segments the administration created and distributed? This is worse than shameless—it’s corrupt.
TV Host Says U.S. Paid Him to Back Policy


Prosecutorial Misconduct Yields Dismissal in Spy Case

Kudos to Judge Cooper for having the guts to do the right thing!All Charges Are Dismissed in Spy Case Tied to F.B.I.


Big win for the "patriot" act...

Well, good thing we have that old USA PATRIOT act! Now we can send the NJ doofus with the laser pointer to prison 25 years. Phew. That dude scared me.
Man Charged Under Patriot Act for Laser


How many times do I have to tell you?

How many times do I have to tell you?
Don’t talk to the FBI—not if you’re guilty, not if you’re innocent, not under any circumstances. Just say “I love you guys, you’re beautiful, but I don’t speak to lawmen without a lawyer.” If they persist—which they will, just say—“Beautiful guns you have—are those Glock 10’s? But like I said”—and at this point hand them card with a lawyer’s name on it—“this guy talks for me—have a nice day.” Then walk away. If they get in your way say—“If you are going to arrest me, then do so—otherwise please excuse me” Say nothing else—it is never, and so far as I’m concerned I mean never in your interest to talk to them. Had this guy followed that simple advice, he'd probably still be having corn pops with the kids this morning instead of feeling the steel.
The New York Times > AP > National > Man Charged With Aiming Laser at Aircraft

NOA just gets worse and worse

NOA (see post below) supports non-unanimous verdicts in murder cases...

Measure to void unanimous verdict rule in murd


No Ordinary Asshole (sorry Immy)

As it turns out, Joshua Marquis—the guy who wrote that idiotic letter about the Fisher profile—is a highly regarded spokesman for the prosecutorial lobby—the National District Attorney’s Association.

So I thought it might be interesting to see just what it is that these guys believe. And so with a little help from our friends at Google, I bring you:


In an article about mental retardation and the (now forbidden) execution of the mentally retarded:

"Those (guidelines) are extraordinarily subjective. IQ tests themselves are subjective," said Joshua Marquis, district attorney in Astoria, Ore., a state that now must craft a ban. "IQ tests . . . can vary by 20, 25 points. It's going to be a very difficult road."

Huh? Does this guy just completely make shit up? Is he a complete idiot, or, given his national status as a bigwig prosecutor can we conclude that these guys don’t care about the truth?

Just to be clear—IQ tests are incredibly delicate psychometric instruments, and 20 points on an IQ test standardized at 100 is a full standard deviation. A 25 point variance is more than a SD. Does this guy think anyone would use such an instrument? This is foolishness on the order of Holocaust denial.

Here’s another:

In an article on the sorry state of indigent defense, a major newspaper began it’s story like this:

MARKS, Miss., April 11 — Diana Brown met her court-appointed lawyer for the first time on the day she pleaded guilty to several serious crimes five years ago. They spent five minutes together and have not spoken since.

"You are guilty, lady," the lawyer, Thomas Pearson, told Ms. Brown, according to her sworn statement, as he met with her and nine other defendants as a group, rattling off the charges against them.

He told her she was facing 60 years in prison for assault, drunken driving and leaving the scene of an accident, and should accept a deal for 10 years, court papers say. He gave her five minutes to decide. Offered no other defense, she took the deal.

What does Marquis say in this same article in response?

"We are looking at a completely different world than Clarence Gideon saw," Joshua Marquis, district attorney in Astoria, Ore., said. "In noncapital cases, indigent defendants get anywhere from an A to a C defense. I think they're entitled to a C-plus level defense."

Huh? Does this guy READ? Again, is this ignorance or do DA’s not really give a shit about indigent defense—sorry was Thomas Pearson a C+ defense? The point is, again, these guys don’t care about process, they just want to prosecute, win and incarcerate.

Ready for more:

On sequential lineups—something I know a fair bit about having been the (or maybe one of the) first in the country to file a motion seeking a double-blind sequential lineup, Marquis says this:

"it will be much more difficult for the [witness] to offer any identification," says Joshua Marquis, district attorney of Oregon's Clatsop County, best known as the home to the town of Astoria. "What we're trying to do is find the truth. We ought to make it easier, not make it more difficult."

While he agrees that lineups shouldn't be suggestive, Mr. Marquis says the research supporting reform is "thin"; indeed, some psychology experts question whether existing studies provide enough support for sequential lineups.

Sorry Charlie—that’s more bullshit. Go read the science. And as for the experts—the DA”s have found only TWO EXPERTS IN THE ENTIRE WESTERN HEMISPHERE (and only one in the US) who agree with them. One of them—Ebbe Ebbeson is a notorious prosecutorial hack who testifies for them constantly. And even Ebbesen doesn’t dispute the core findings of Wells et al—he just thinks we should do some more research.

Again, what’s going on here is the reason I hate prosecutors—they do that republican thing—they spout lies as if they are truth—they deny science and employ lies in the service of a profoundly corrupt agenda.

I know you’re getting bored but it goes on and on.

Marquis doesn’t believe that most people exonerated by DNA are innocent: Really.

When a newspaper reports that:

A comprehensive study of 328 criminal cases over the last 15 years in which the convicted person was exonerated suggests that there are thousands of innocent people in prison today.

Almost all the exonerations were in murder and rape cases, and that implies, according to the study, that many innocent people have been convicted of less serious crimes. But the study says they benefited neither from the intense scrutiny that murder cases tend to receive nor from the DNA evidence that can categorically establish innocence

Marquis says in the same article:

“that many of the people exonerated under the study's definition may nonetheless have committed the crimes in question, though the evidence may have become too weak to prove that beyond a reasonably doubt.”


Did I mention he want’s to kill Kids?

"Juries recognize, in some cases, that those under 18 are not the children we might want to believe they are," said Joshua Marquis, a longtime prosecutor in Astoria, Oregon, and a member of the board of directors of the National District Attorneys Association. "They don't benefit from the juvenile justice system, and can be held fully responsible for their actions."

Or that he want’s to bar possibly innocent inmates from being able to demand the DNA tests that might exonerate them?

"If we had unlimited resources, you might say, 'So, there are a couple hundred more people who want DNA testing. What's the harm?' " said Joshua Marquis, the district attorney in Astoria, Ore.

"But there are 500,000 rape kits [containing evidence] sitting on the shelves of police stations across the country right now, untested because we don't have the resources."

So basically, Astoria Oregon has a District Attorney who believes that IQ tests can’t reliably establish mental retardation, that poor people don’t deserve good lawyers, that the police shouldn’t use a kind of lineup that results in fewer innocent being wrongly convicted--that we should allow the execution of juveniles but prevent wrongly convicted people from proving their innocence through DNA.

And this guy speaks for the National Association of District Attorneys. Do you STILL wonder why I hate them?


A good read...

This piece on Judge Jed Rakoff's struggle with the constitutionality of the federal death penalty
A Legal Quest Against the Death Penalty