Costly Ramparts...

This piece reports that the fallout from the Ramparts LA police corruption scandal settlements may reach $70 million. That's a lotta bad cop.

Early April Fools...

This hilarious and ingenious fax came from...
Well, I'm not sure who (though I suspect it was Mike Jaffe...)
It is hilarious. Here's a sample...
Morgy Clip

Yeah...seems likely huh?


Cameras in the courts...

More on the mass. crackdown on judges! This one is great. They're going to videotape the judges who need a little demeanor help.

Alaskan Reefer Madness!

White House expert: Pot is dangerous :

"A White House official on Wednesday testified to marijuana's dangers during the second hearing of a bill that aims to criminalize Alaskans' possession of more than an ounce of the drug.

Researcher David Murray of the White House's Office on National Drug Control Policy told a Senate committee that marijuana users develop serious cases of psychosis and other problems from inhaling doses of carcinogenic chemicals.

'This is a dirty, dirty drug,' Murray said.

Relax dude. Seriously...


Ever Wonder?

What happens when you win in the US Supreme Court? Read it and weep. Ralph Howard Blakely, in whose name Jeff Fisher won a landmark case in the US Supreme Court was just sentenced to 35 years. After the High Court made its decision, the DA's office came up with a jailhouse snitch to say that Blakely had tried to have his ex-wife murdered. Instead of releasing him, they charged him with solicitation to commit murder.

Same judge, same prosecutor. For shame.

My Review of Courtroom 302 (The Washington Post)

Here is my review of Steve Bogira's new book about the criminal justice system. It was published in the Washington Post today.


More on Medellin...

This fine piece by fellow slatester, fellow Soros Justice Fellow and all around good-fellow Emily Bazelon, gives some nice insight into the arguments on the Medellin case.

Night Court Momma...

Organizing some files, I found this little scrap from a few months ago...

I took my mother to night court a few months ago. After a dozen years of being a public defender, it seemed like the right time to give her another taste of my daily or nightly life. She’d come to court before—once, when I was a young lawyer still traversing the halls of Brooklyn criminal court, even then she was struck by the volume of the justice dispensed in one of my days—8 judges, a dozen cases, half a dozen pleas. Back then, I remember mom being both jazzed and terrified at this strange and abusive world, so far from the sedentary Wisconsin world I grew up in.

And, as the years went by, and I migrated quietly north, to Harlem and then, finally to the Bronx, when relatives or company enquired, mom would still trot out her long stale recollections of that far-away afternoon. And so, just last month, in New York for a conference, it seemed time to refresh her recollections. This time at the beginning of the process—the very first time poor clients meet their lawyers—in arraignments, and often at night.

As far as I could tell, it was the smell that rocked my mother’s world. Sweat and urine and homelessness—the smell of the pens. I glanced over at her as we passed through the barred steel gate, down the graffiti scarred hallway back to where dozens of people, many destined to be my clients were caged. She wrinkled her nose—unused to the peculiar pungency, and almost grimaced, as if to say, “I get that this is criminal court but does it really have to smell so bad?”

She sat through 6 or 7 interviews, farebeats, petit larcenies and drug possession cases.

“Hi, my name is David Feige, and I’m gonna be your lawyer; uuh, and this.." I said, hitching a thumb next to me,

"This is my mom.”

"Hi” they’d all say,

“Hi” she’d reply with a sheepish grin—real alleged criminals look a whole lot different up close—when you know their names and actually listen to their stories.

“Do you mind if my mom, stays while we talk?" I’d ask.

No one did.

Big Death Day

The Supreme Court will hear arguments today on therights of foreigners on death row these 'consular access' cases will be very interesting, sitting as they do at the intersection of some serious doctrinal debates about the role of international law and treaties in domestic affairs and tensions between the executive and judicial branches of government.

On a personal note, I'm proud to say that I was an early adaptor on this--arguing back in the late 90's in dingy Bronx Criminal Court that my client had been denied consular access. I was laughed out of court by the way.


I just like the headline...

Deficient judges get added training.Ah, if it were only that easy...

Horrific Hanophy Hagiography

Sad Days for the New York Daily News as it serves up an appalling puff piece praising a Queens Judge who has “sentenced killers to prison for a cumulative 5,700 years minimum” Yippee! In repeatedly throwing away the key he’s destroyed 232 lives (of those he’s sentenced) probably left over 1,000 kids fatherless, and cost the state (assuming the defendants actually serve out their minimum terms,) somewhere north of 250 million dollars. Quite a legacy—a quarter of a billion dollars we failed to spend on educating our kids. Glad the NYDN saw fit to put him on the cover.


Tell Me Your Name or go to Jail...

Maryland nearly passes a bill making it a crime not to identify yourself to a cop.
Interestingly, most of the cops I know insist that this is already a crime and will arrest you for being an asshole if you refuse to give your name (as you are entitled to) They see this as simple justice...

Wherefore Mercy oh Niggardly Bush?

With all this talk about mercy and second chances (ain't that the Christian way?) the Republican president now has exercised his constitutional powers to grant pardons only 37 times, almost half as many times as his father, President George H.W. Bush, a Republican, did during his single term in office, and only one-tenth as frequently as former President Bill Clinton, a Democrat. Even after accounting for the tendency among presidents to grant most of their pardons late in their tenure, Bush's record of meting out mercy still looks slim in terms of sheer numbers.

For shame.

I didn't believe it at first...

But here it is--the statute that some other bloggers have termed the "Texas Futile Care Act as it turns out, it seems to actually be called the "Advance Directives Act."

And it does seem to suggest (see sec. 166.046) in what can be appropriately termed outrageous hypocracy, that a physician (backed by an ethics board) can pull the plug despite a directive.

This whole Schiavo thing feels so Orwellian. Up is down, poor is rich. Good story trumps good policy.


12 inches of fresh snow

I think I'm reaping some nice Karmic reward here.
a perfect ski day. Too tired and happy to blog.
More fulminating soon.

Also, I think Schiavo may be a Republican Waterloo...

That doctor they trotted out?


More on Jews and Juries

Sorry again for the intermittent blogging. I just finished a lecture in Roanoke yesterday, did a quick final edit on a book review for the Washington Post (look for it next week). And flew to Salt Lake City...

But to the news...

This follow up on the jury selection controversy in San Jose...

A former California prosecutor testified Tuesday that he colluded with a judge to exclude Jews from the jury in a capital case that ultimately sent the defendant to death row.

"No Jewish person can sit on a death penalty jury and vote for death," the judge said, according to Quatman.

Gotta love my people.


Indigent Defense in Michigan

Sorry for the belated blogging--I've been in Roanoke VA giving a lecture. Here's a little piece from the Petoskey News-Review that explains the mechanics of indigent defense financing in a rural Michigan county. Hey--it's better than nothing.


Have Threats In The Courts Become a Fact of Life?

This twittering piece in the NYT highlights the perfectly predictable responses to the Atlanta shooting. The most disturbing bit to me, of course was the bit about the attack on a public defender:

"While it might seem counterintuitive that a defendant would attack his own lawyer, some public defenders say it is commonplace for their clients to disparage them.

"In any prison, the person most inmates name as responsible for them being there is 'the dump truck P.D.,' " said David Coleman, the public defender in Contra Costa County, Calif. "Thus, the razor or weapon used against a public defender is all too common."

Ah...yes, our clients disparage us constantly (and often with good reason) but attacks? "all too common?" what does that mean? How many wouldn't be all too common? I expect more from my PD brethren--a more sanguine approach, a more levelheaded acceptance that violence happens everywhere, it will always happen, and that the answer is that you deal with it effectively when it does. Otherwise, we'll soon be looking at having our allegedly dangerous clients tried from their cells.

Need more death lawyers?

Texas's latest great idea: former prosecutors with no experience as defense attorneys can now qualify for appointment to death penalty cases.
Perfect. Tryin' to kill 'em is kinda like not trying tryin' to kill em right?


My Latest OpEd (NY Times)

Titled 'Put Down Your Gun', this is my latest NYT Op-Ed.


Cops do the zaniest things

Like getting arrested for stuffing a banana in their pants and flashing passersby

Souring the American Dream

Read this little item and weep. It concerns a new bill introduced in Congress by Reps. Robert Ney of Ohio and Paul Kanjorski of Pennsylvania that would demolish many of the protections states and the federal government have carefully erected against predatory lenders, exposing millions of homebuyers to the loss of their savings and even their homes.

You go guys!


“I don’t want to read this” Judge Webber says curtly, rolling her eyes just a little and pushing away a social worker’s pre-pleading report. Webber is one of my favorite judges—wickedly quick, deeply comfortable with her judicial power, and thoroughly happy to throw it around. But Troy Webber does not like excuses or explanations; she likes pleas, and trials—the quick disposition of cases. To her, cases are best understood not as human drama, but as fact patterns to be weighed, measured and properly priced. Webber is a successful hedge fund manager in the marketplace of criminality.

Back before Troy Webber ever dealt with felony cases, when she was in criminal court, even then she was unusual. “That’s your offer people?” she’d snap, throwing a disapproving look toward the crowded prosecution table littered with files. “ahhh” young assistant DA’s learned quickly to take cues from Webber, “does the court have a suggested disposition?” many of them would ask, essentially deferring to Webber the ultimate question of what a case was worth. She always had a suggestion. “Violation, three days community service” she’d say crisply nodding toward the defense as if to warn them not to quibble. “Right?” she’d ask the defense attorney—also well advised to listen to Webber’s proposed solution. “Yes judge” was the usual reply. “People?” Her head tilted dangerously to one side, the subtle sign that her patience with the case before her was waning—usually about 40 seconds into a proceeding. “New offer judge—violation and three days community service.” Assistant DA’s who defied Webber often found cases adjourned for months, the speedy trial clock slowly eating up their leverage. And defense attorneys who balked at what she considered reasonable were tortured too—short motions schedules, fast trial dates, no more chances. She had no compunction about dismissing cases, or forcing their dismissal, even when it meant that someone with a long record might be back on the street—to her, the work was about the aggregate not the individual—and power and consistency, were her stock in trade.

It is a little strange that I like Troy Webber as much as I do—she’s not a compassionate judge, or even a particularly temperate one. But below her quick disposition exterior, she’s thoughtful and smart, and, unlike many other jurists I have the misfortune to appear before, fundamentally decent. Given a choice, Webber is usually willing to take a chance on a kid, or get rid of a case, even one that seems scary and violent, with a reasonable plea. Just as she isn’t particularly sensitive to a defendant’s background, she isn’t held hostage by the prosecutorial hysteria about the gravity of cases either.

This fact has helped me get rid of otherwise difficult cases more than once. Tough clients and bad facts can make for intractable cases. Almost every criminal case when analyzed carefully, has holes in it. It’s one of the things that keeps defense lawyers busy, and prosecutors at the negotiating table. But every once and again there is a case where the evidence is really overwhelming, and the crime itself is bad. Those cases are recipes for disaster. There is little or no incentive for the prosecutor to negotiate, and so to really torture a defendant, they shift their focus shifts toward shaming judges into toeing the line they draw. Sadly, many judges, particularly in bad cases, are unwilling to undercut the prosecutors even when they are being absurdly unreasonable. Mercifully, Webber isn’t one of them.

“What’s this one about?” Webber asked me once, sporting her characteristic bemused smile and calm delivery. I was up at the bench in her cramped courtroom with a colleague looking desperately to plead a case out. The crime was bad—two separate robberies both using a stun gun. The second turning into a car-jacking when the police rolled up. My client, still in the car, pushed the stunned driver out the door and took off hoping to elude the police. A chase ensued, yielding a car accident, a foot pursuit and a long leap off a 30 foot embankment which in turn produced a incapacitated client lying on the railroad tracks with a compound fracture amid a litter of recently discarded evidence and a cop with a twisted ankle.

The district attorney’s office was up in arms over the case—it wasn’t just the robberies—those were fairly routine, but he had the termertity to flee, and in the process had injured a police officer…judge Webber was perfectly calm. “Just a stun gun?” She asked. “Yup” I said. “give him 8 flat concurrent and he’ll plead on both today” I said in courthouse shorthand for a plea to two violent felonies with 8 year sentences to be served at the same time. “Your honor!” the assistant district attorney exclaimed as if the mere mention of a plea was an affront to the dignity of the people of the state of New York. Webber just shot her a dismissive glance, “any other real injuries here?” she asked “Well…”the assistant DA huffed, forefinger flipping her bangs head shaking like she couldn’t believe that anyone, even a judge whose docket that day including half a dozen shootings, stabbings, and any number of gunpoint robberies and push in burglaries, might belittle the officer’s sprained ankle. By the time she was ready to complete the sentence, Webber had looked back toward me. Ignoring the young assistant’s huffing, Webber raised an inquisitive eyebrow. I shook my head silently—no there is no real injury here I telegraphed. “step back” was all she said, giving me the tiny nod that meant you got a deal.


Great Idea! Issue a fake subpoena

This piece reports that a pissed of government official issued bogus subpoenas to find out who was sending e-mails critical of her job performance.

"Initially, Mercadante denied they were criminal subpoenas and characterized them as "investigative subpoenas."

But the subpoenas carried the header "People of the State of New York" and demanded that Time Warner disclose information "in a certain criminal matter." The subpoenas said the records were being sought for a "Colonie Police Department criminal investigation."


Go Ernie go...

For nearly a quarter century, Ernie Chambers has waged a seemingly quixotic war against Nebraska's death penalty. Each year since 1973, the Omaha lawmaker and only black member of the Legislature, has introduced a bill to abolish capital punishment.

How's it going for old Ernie?
Read all about it..


More Prosecutorial Skullduggery in Queens

Wiretaps of our main witness?? Oh--riiight...those...

Some gems from an article about how the Queens DA's office utterly failed to turn over evidence utterly damaging to the credibility of their complainiant:

For all its complex turns, the Vitiello case underscores the hurdles that often must be crossed before prosecutorial misconduct or mistakes can be corrected.

No one, after all, denied that under long-established case law, Mr. Vitiello should have been given the prosecutor's information about Mr. McDonnell. It could have supported the defense argument that many people had stronger motives to shoot him than Mr. Vitiello, who apparently was no more than a casual acquaintance. The material also might have been used to impeach Mr. McDonnell's credibility, since prosecutors concede that he lied about being a law-abiding citizen.

Nevertheless, during those nine years of Mr. Vitiello's appeals, the district attorney was able to persuade a total of seven New York State judges to either reject or ignore the issue, according to Mitchell Briskey, the Legal Aid Society lawyer who represents Mr. Vitiello.

The prosecutors argued that the assistant district attorney who tried Mr. Vitiello did not know about the investigation of Mr. McDonnell, which was being handled by a different part of the office. "If we had known it, we would have disclosed it," said Jack Ryan, the chief assistant to Mr. Brown.(TO SEE WHY THIS IS COMPLETE CRAP, SEE BELOW) He acknowledged, though, the responsibility for disclosure generally falls on the entire office under the doctrine of "imputed knowledge."

In addition, the prosecutors, in fighting to preserve their conviction, had advanced a novel argument that there was a "law enforcement exemption" that permitted them to withhold the information about Mr. McDonnell because revealing it would have jeopardized the undercover investigation. They maintained that this exemption trumped Mr. Vitiello's right to use the material to defend himself in the unrelated case.

It is just astonishing that these people can twist the law, successfully bullshit judges, and then say "oh, had we but known... we'd have done the right thing..." It is disgusting.

Six Year Olds in Handcuffs?

This interesting piece describes the retrenchment in some school's zero-tolerance policies.

"When schools began greatly expanding zero-tolerance policies against student misbehavior after the shootings at Columbine High School in 1999, few expected to see kids as young as 6 handcuffed and removed from school for throwing a temper tantrum or playing with squirt guns."

It's about time we recognized that school discipline is a school issue, not a criminal justice issue.


Ebber so sorry...

Yep, as we suspected, Bernie Ebbers got convicted today--on all nine counts.
Ouch. He's gonna spend a long time in prison. Now as always I feel awful about people loosing their lives to a prison sentence, and of course I feel terrible for the spouses parents and kids of those doing time. But it just might be time here for me to tip my hand just a bit...

The thing is, white collar criminals are the only rational actors in the system. And as a consequence, they are the only ones who respond to deterrents. As any public defender knows (help me out here guys) our clients aren't ever thinking about results. Their crimes--whether robbing someone to get high, beating or shooting someone in a fight or fit of rage, or stealing because they're hungry--are all about hunger and fear and addiction and need. Our kids are never thinking "Hmmm...what can this get me..." It's just not how it works. Whether the penalty is 2 years or 200 years, our clients by and large don't respond to deterrents. This is one of the huge problems with our system of criminal justice. Policy makers don't understand poverty and desperation and fail to grasp that all their 'tough on crime' posturing is utterly for naught.

But Ebbers, and the other guys in the boardroom...they actually are rational actors, and they do respond to deterrents.

So what do you do? Do you max the guy?

I don't think so.

Take all his money--give it to the shareholders he fleeced and give 100 million or so to an anti-poverty program.
Give him 8 or 10 years--maybe less. But mandate that he, as well as every other white collar criminal go to at least a medium or potentially even a maximum security facility for the first 500 days.

And when it's over? 7500 hours of community serice in any industry he likes--only his income is capped at 75,000 dollars until he's done.

Don't agree?

Post your proposed sentences in the comment section below...

Tiny Bubbles

I don't normally blog about science, butThis Science Times piece about an experiment that might presage desktop fusion, was just so darn cool...


The Bush Propaganda Machine

I'm sure you all sawthis astonishing piece in the NYT about the Bush administration's fabricated news stories.

But now you can
to do something about it. This is a petition drive by (the people who helped with the Sinclair Boycott see my entries on this here and here.) Just click on the link, fill in your information and demand that the FCC do something about this.


More Forensic Tomfoolery

This is huge! A N.J. murder case is reversed Over FBI bullet tests. As it turns out 'chaining' (the process by which the FBI tries to match bullets based on lead/trace metal content) is scientifically unsound.

The AP reports that "The decision is believed to be the first to overturn a conviction based on a challenge to the FBI analysis of the lead content of bullets since the National Academy of Sciences last year raised new questions about the technique the FBI has used for decades to match bullets to crimes."

Quick, think back over your cases...

Curses, FOIA'ed Again

According to this bit from the AP a reporter, Seth Rosenfeld, has a FOIA Request that dates to 1981. He's still waiting to see the records 24 years and 6 judicial orders later.


Just Incredible...

From this piece about Tom DeLay's legal defense fund:

"Among the corporate donors to the defense fund is Bacardi U.S.A., the Florida-based rum maker, which has also been indicted in the Texas investigation, and Reliant Energy, another major contributor to a Texas political action committee formed by Mr. DeLay that is the focus of the criminal inquiry. "

Huh? The co-defendants and co-conspirators are footing the bill for his defense? It's like the mob soldier for whom the Capo sends in the big legal guns--only here the Capo is corporate America...

Sorry for the long absence...

I was out skiing/writing near Salt Lake City. Between the deep thoughts, the slushy snow, and the daily hot tub, I hardly had a chance to blog.

But I'm back, and tempted to post some more cuttings from the book...

But in the interim,here is a nice piece which explains that by avoiding a decision on legalizing possession of an ounce or less of pot, the Nevada legislature has effectively put the measure on the November 2006 ballot. That'll be interesting.


Shut it down!

The NYT reports that a war over judicial nominations is imminent and threatens to shut down the Senate.

Bring it on. Shut it down. And make it clear that it is the republicans that are being anti-American and undemocratic.

Three Strikes Reform

This sensible bill would let some 'Three Strikes' convicts in Washington State seek release after 15 years. It's a good start on a tough issue.


Did Texas Kill an Innocent Guy?

Read it and weep. This is one of the most compelling cases I've seen. Cameron Todd Willingham was killed by Texas despite having been convicted on the basis of disproved forensics.

Worth your time?

Steven Avery spent 18 years in prison for a crime he didn't commit.

His compensation? 25,000. The maximum allowed by Wisconsin law.

Missed This...

Clarence Aaron made the mistake of going to trial in a drug case in Alabama. He was a first time offender. He was sentenced to life. An interesting Blakely/Booker case...


Shame 'Em!

Here, the Burlington Free Press actually publishes all the people charged with crimes and what happened to them...
So very puritan--justice in the cyber-town square...
From Feb. 7th:
Scott M. Larrow, 31, South Burlington, charged with escape - failure to return, felony, in South Burlington on Sept. 27; pleaded guilty; sentenced to three months to one year, consecutive.

More progress in Washington (state)

Imagine this: A bid to revamp public defense receives bipartisan support.

Washington state, of course is a pathetic laggard when it comes to indigent defense. King county, has a fantastic office, but things are not so great around much of the rest of the state. Nationally, states pay an average of 50 percent of public-defense costs, with local governments picking up the other half. In Washington, the state pays 5.5 percent — and that percentage is attributable almost entirely to the fact that the state pays for indigent appeals.

The bill now before legislators calls for the state to help pay public-defense costs — and to condition funding on local governments adopting such measures as restricting public-defender caseloads and providing them with training.

The Bar Gets it Right.

This piece reports that the King County Bar Association wants the state to take the control of drugs away from gangs and street dealers by manufacturing them and distributing them to addicts instead of locking up users and letting the black market thrive.

Finally some sense.

Not like you don't already know this but...Studies in recent years have shown that drug-crime prison sentences have fallen disproportionately on blacks and that more than three-quarters of the $40 billion spent on drug abuse in the United States each year goes toward punishment, not treatment.



Clyde Haberman scores with this great piece about a guy trained in prison to be a barber and then denied his barber's license on the outside because he lacks the necessary good moral character.
He's on welfare now.


Who's in prison?

This piece reports that more than 70 percent of inmates in Texas prisons are black or Latino, nearly double their percentage in the general population.