I'm on trial, so Blogging might be a bit sporadic...

I'm trying that case in which Officer Roughneen broke my client's arm in three places causing her permanent nerve damage. I crossed him today--he's huge, about 6'1" and built like a wrestler. My little client, meanwhile is a slight 40+ year old woman.

I'd forgotten how physical trials are for me--sweat and adrenaline had a viscous effect on my body and already I'm exhausted and achy and we haven't even gotten to the sleeplessness.

What's really funny is that in a certain way not that much is at stake -- it's a misdemeanor trial--and yet the truth and equities are so profoundly on our side that the case feels huge to me emotionally. This poor woman was so awfully abused, and the system has treated her so badly, and the DA's office has acted so awfully in failing to dismiss the case that this is just one of those must-win cases. Nothing else will do, nothing but a full vindication at trial would be even remotely satisfactory. The reality is that in a case like this--that really rare case (I might even say once-in-a-carreer case) where there really is outrageous police abuse, very serious physical injury, and an utterly inexcusable prosecution, for there to be any semblance of justice, someone has to be strong enough to just say "Not Guilty."

One nice moment--officer Roughneen, who says he never saw my client get injured and never caused any of her injuries, it turns out said the same thing in a different lawsuit where he and his buddies broke someone else's bone. But in that case, his own department didn't even believe him and discipline was recommended against him and instead of going to trial, he pled guilty. Here despite what he doesn't see, there are horrible bruises all over my client's body--bruises for which Roughneen has no excuse or explanation.

We continue tomorrow....


Quoth Moi...

My cheap thrill of the day?Being quoted a Village Voice article about a girl fight:

"This case is a classic illustration of why the hate crime statutes are problematic, says Bronx lawyer David Feige, an outspoken critic of them. 'These laws sound good--that's why they were passed. But they serve no purpose except to give prosecutors an even heavier bat. They don't deter criminal acts in the least. It's complete political posturing.'"

Outspoken? Moi?

Get Married, Go to Jail

Yep, here's another example of domestic violence law gone insane:
A woman takes out a restraining order. Then she decides she doesn't want it. In fact she decides she wants to marry the guy. They petition the judge to lift the order. He refuses. They get married. He get's arrested. Yep it's true. And it's yet another example of DV law gone wild.

More on this soon.


How Prosecutors Control Judges

Here's an interesting story about what happens when a gutsy judge stands up to a self-important prosecutor:

"Onondaga County District Attorney William J. Fitzpatrick recently continued his efforts to control the local judiciary by filing an Article 78 proceeding against two Syracuse City Court judges, Langston C. McKinney and Kate Rosenthal, seeking to restrain them from such 'unlawful' arraignment practices as scrutinizing felony complaints for legal sufficiency and refusing to consider, for purposes of sufficiency or bail, information that the District Attorney had labeled 'confidential' without providing that information to defense counsel."

What's even more shocking is that this DA managed to get judge McKinney relieved of arraignment duties after the judge expressed concern about the sufficiency of a complaint.


Pressure mounting for Judge O'Connor's Resignation

As you recall, Judge Eileen O'Connor became a favorite target of my criticism when she put a young african american kid in jail for allegedly lying about an arrest during voire dire. (See posts here)

Well, the movement to remove her is heating up.Yesterday, the kid's advocates lashed out at the judge

The Miami Herald reports that:

"The attorney for a black 19-year-old Broward resident jailed by Broward Circuit Judge Eileen O'Connor because he allegedly lied about his arrest history during jury selection stepped up the pressure Monday for O'Connor to step down from the criminal bench.
''Time is of the essence,'' the lawyer, Bill Gelin, said at a press conference Monday at the Broward County Courthouse in Fort Lauderdale. ''Put yourself in the position of an African-American defendant. You may already think the system is stacked against you to begin with, and you read in the newspapers that the judge has not disclosed'' a racial complaint filed against her on a judicial application."

This one does not deserve to be on the bench.
(Thanks as always to Bill of The Florida Masochist)

Erratum--Blogger Bloopers

Every once and again, it's important to stop, take stock and own up to some big blogging bloopers. I seem to have made a few of late, so let me say in advance: My bad.

In particular,Skelly points out that my recent post (see below) about Washington State I erronously suggested that the series was recent. In fact as Skelly correctly suggests:

"It was a good series; it came out in April 2004. In 2005, it turned out to be a catalyst:

Second Substitute House Bill 1542 passed both houses of the legislature. It was designed to provide a state “down payment” of $25 million on woefully inadequate criminal indigent defense funding, albeit with “null and void” language if funding wasn’t provided. Although major funding was not provided, $1.3 million was allocated in the 2005-2007 biennium to the Washington State Office of Public Defense to provide intensive training to new public defenders, to give legal and expert services to those public defenders, particularly in isolated areas around the state, and to work with public defenders as they enter into appropriate contracts with local government. There is $1 million to fund a pilot project as well. In future years, we will be seeking additional state funding for this major responsibility currently borne entirely by the counties.

Skelly points out that things have changed since the time that article was published.

My Bad.

Secondly, on the subject of Judge Jennifer Brunner, I got this from Robert Essex, a public defender in Franklin County who appears before her regularly:

"I am more than familiar with the type of judge you refer to who constantly looks to the prosecutor and says "What do you want to have happen?" I, like you, deal with this everyday and it is extremely frustrating.
The situation in this case, however, involved an attorney who I am confident in saying over 95% of the defense bar in this city believes was out of line. Mr. Vogel is not a "legal aid" lawyer as you incorrectly state. He is a lawyer in private practice who has since been removed from the court appointment list due to his irrational behavior.

Although you are correct about many judges constantly siding with the prosecutor, I hope you are responsible enough to recognize you may be wrong about this one."

If a public defender is willing to publicly back a judge while diming out a fellow defense lawyer--yes that means quite a bit to me. So let me publicly recognize that I might be wrong about this. I'm still very concerned about a jail sentence of 40 days for something that doesn't on it's face seem contemputous, but I am also willing to allow for the possibility that the lawyer was a bit off his rocker (as Mr. Essex suggests). Not a full-fledged retraction, but certainly worth a public airing.

So is a 40 day jail for suggesting that the judge was trying to coerce a plea extreme? Feel free to post away about my errors or your assement of Judge Brunner's conduct.


Washington's State of Injustice

CORRECTED: In 2004, The Seattle Times published an outstanding (if frightening) expose Titled: An Unequal Defense - The failed promise of justice for the poor. It details a number of failures in the indigent defense system in Washington State focusing (unfortunately) on some really really bad lawyers.

It does, however, also get into some of the many systemtic issues that plague public defenders--low pay and absurd caseloads--in particular, while doing a nice job of elucidating exactly how the perverse financial incentives inherent in some of the assigned counsel plans conspire to really hurt indigent defendants.

A worthy read, if depressing.

Some Findings...

If you're reading this and haven't yet read the The Seattle Times Expose, I mentioned above, here are a few findings:

A growing number of Washington counties and towns use fixed-fee contracts for public defense, capping what they pay regardless of caseload. In Toppenish, a small Yakima County town, one lawyer was paid the equivalent of $21.08 a case.

• Few counties set limits on caseloads, meaning lawyers have less time per case. In 2002, the caseload of one Cowlitz County public defender was 6½ times the limit recommended by bar groups. She dropped her contract in despair, calling the work "malpractice per se."

• Some attorneys layer jobs — boosting their income but diluting their time. The lawyer who made $21.08 per case in Toppenish (for 797 cases) also defended indigents in Wapato (511 cases) and presided as a municipal-court judge in Sunnyside (3,963 cases) — and had a private practice.

• Washington state has ignored pleas to help local governments fund public defense. Nationally, states average 50 percent of those costs; Washington pays 5.5 percent.


Just a little story...

The Daniel Webster Houses, hulking high-rises stuffed into a neighborhood already riddled with drugs and violence, contain just over 600 apartments. Built in 1965, with all the idealism of the age, the Webster Houses now stand for almost everything that is wrong with project living: staggering poverty rampant disease, and short life expectancy.

My investigator's task in the case: Find Tony.

Tony was the man that our client, (inexplicably known on the streets as Boobalock), was alleged to have shot. Tony, was a gangster himself, and he led the rootless itinerant life of someone perpetually on the run. Everyone knew him, of course—he was a fixture in the Webster Houses (where he went by the street name ‘debo’). He ostentatiously cruised his territory in a tricked out Mazda MPV, wearing the pirate eyepatch he got after the shooting. But even though Tony may have been east to spot, he was hard to talk to, and he wasn’t much interested in meeting my investigator--Ben.

Ben spent so much time tracking Tony in the Webster Houses that his usual lunchtime banter morphed into excited disquisitions on the ticket scalping business run out of several apartments, and the rivalry between Sex Money Murder bloods and the Gansta Killer Bloods. Almost every day, he had new information to share about life there and the cat and mouse game that he and Tony were playing.

Eventually, of course, Ben found him--he always did--it's what made him great. Debo was in the Ulster county jail serving some time for a drug case. And when they finally came face to face, they both chuckled about the game both had played—Debo had been holed up at his child’s mother’s house the whole time—he not only knew Ben, but could describe the make, model and color of the car he drove. As it turned out, when Ben pulled up, Debo went out the fire escape.

“Tell Boobablock, I ain’t testifying against him” Debo said. “I ain’t got no clue who shot me.”

That’s the kind of information that makes spending the better part of a month cruising the Webster houses or trekking up to the Ulster county jail worthwhile. But as with all information, what is helpful is never dispositive.

Boobalock took a plea anyhow.

Scary Sentencing Proposal

Gonzales Proposes New System of Sentencing. This could be very bad.


Do Unto Others

First let me reiterate: I don't like seeing people go to prison. It's a tragic waste in most cases. But that being said, even I have moments of Schadenfreude and the recently discovered Kozlowski sentencing letter prompted one of those moments.

Here's what happened: In 1995, Girish P. Shah was convicted of stealing about a million dollars from Tyco. He could have gotten a fairly light or a fairly heavy sentence. Kozlowski himself saw fit to write to the houston sentencing official, to recommended that the former assistant controller at Tyco 'be sentenced to incarceration for a maximum term.' The letter went on to state that stealing from a company is 'a particularly egregious crime.'

In the letter Kozlowski also went on to censure Shah for stealing from stockholders and breaching his fiduciary duty, writing that 'wrongdoing of this nature against society is considered a grave matter."

Oops. That's gonna hurt. And frankly, it should. I think it was my grandmother that said 'what goes around comes around.'

How to Deter White-Collar Crime--My Most Recent Piece

You can read my first piece for The Nation (online) here.

It takes the position that white collar criminals are the only rational actors in the criminal justice system and as such respond to deterrents. It also suggests that it is the conditions of confinement rather than the term of imprisonment that makes the difference. So what to do?

Send the corporate crooks to max joints.


Asinine Agents' Audi Key Outrage

Yep, the fight against terrorism now includes taking your car keys. Yes indeed, in Dallas, where Rick Perry is busy thwarting probation reform, the airport screeners are busy confiscating dangerous looking car keys.

Perry Screws the Probation Pooch

Texas Gov. Rick Perry just vetoed critical probation reforms, along with 18 other criminal justice measures.

John Whitmire

Senate Criminal Justice Committee Chairman John Whitmire called the veto a "huge loss for public safety." The probation reforms had been widely hailed but were opposed by...yep...prosecutors.

Adding Insult to Injury

Six months after Massachusetts agreed to compensate wrongly convicted felons, 10 former inmates who have applied for money still haven't seen a cent

Mass. AG Thomas Reilly

The former prisoners -- two of whom spent about 19 years each behind bars for crimes they did not commit -- have filed claims dating back to January under a law that provides a maximum of $500,000 for erroneous convictions. However, Reilly, who represents the state in such claims, appears to be adopting an adversarial approach.


Ever Wonder How PD's get Paid?

Gosh, my recent post on the indigent defense report card spurred quite a flurry of comments.

Calm down people. Yes, I know the difference between assigned counsel and PD's (see my Slate piece Public Offenders - Why criminals in Massachusetts are getting out of jail free )
And Tom, the figure I got was from a nice reputable newspaper called The Chicago Tribune Feel free to take issue with them but do spare us all any rant that includes the phrase 'liberal media' or 'believe what you read'.

I tend not to like to yammer about assigned counsel rates--most lawyers, after all are making a decent living and doing far better than most people. But that's not the point. The point is that fee caps create terribly perverse financial incentives that in turn cause bad representation. It's hard to go to trial on your own dime. I've done it--in a murder case, and I gotta tell you, I felt like a chump--a righteous one, but a chump. The judge came in and he was getting paid, the prosecutor, he was drawing his salary, the court officers, the clerks and the stenographer were all making money every hour every day. But not me. Having done it, I can tell you it is not reasonable to expect people to work for free. Ask yourself, Tom, in the dark night of your soul, whether you'd change your trial/plea behavior if you weren't getting paid a salary.

And as for all of you wondering where the money comes from...
Here you go:

So How's it Going? An Indigent Defense Report Card

Every year, I spend a week of my time teaching at the National Criminal Defense College in Macon Georgia. It's a wonderful program that brings together dedicated defense lawyers and helps them to become even better. This year, (as usual) I'll be down there for the second half of the July session. One of the things that always amazes me about being there are the stories I hear from PD's around the country about just how awful the systems they work in are. I was thinking about that when I saw the following:

In Louisiana, defendants may sit in jail for years before trial. (This can happen in NY too!) One defendant waited eight years.

In 2002, a defendant in Louisiana was convicted of second-degree murder in a trial that lasted six hours, even though his public defender had been representing the victim at the time of his death as well as an eyewitness against her client, which were clear conflicts of interest. The lawyer had met with her client all of 11 minutes prior to trial.

In Clark County, Nev., public defenders assigned to juvenile cases are expected to handle more than seven times the number of cases recommended by national standards.

Two states, Pennsylvania and Utah, provide no state funding for public defender systems - despite the 1963 Supreme Court ruling requiring such funding - and fewer than half of the states provide only partial funding.

Wisconsin funds a public defender program, but the eligibility threshold is so low that an estimated 11,000 defendants who meet the federal poverty guidelines failed to qualify for a public defender.

The Mississippi Legislature created a statewide public defender program but never funded it, and last year the legislation creating the system was revoked.

In Virginia, public defenders who handle felony cases are allowed a maximum of $395 per case, even if the case goes to trial.

Finally Some Movement in Montana

Montana's system for providing criminal defense lawyers for the poor is so flawed that some defendants have been sitting in jail waiting for their day in court for longer than the maximum sentence that could be imposed.

But finally there is some movement....:

This month, with the state facing a lawsuit filed by the ACLU, legislators approved a public defender law that is designed to bring sweeping change and is being hailed as a national model for providing defense lawyers for the poor.

The legislation would be the first in the country designed to address key principles of a public defender system adopted by the American Bar Association in 2002, according to David Carroll, of the National Legal Aid & Defender Association, the organization that recently studied Montana's system. The study was conducted at the request of the American Civil Liberties Union as part of its lawsuit."

It's about time.


Adelphia Founder Gets 15 Years, Son, 20.

John Rigas and his son Tim got banged yesterday for using Adelphia communications as their own private piggy bank. Aging John got 15 years, his son, 20.

John Rigas
Now White collar crime begs some very complicated questions. Indeed, Andy Serwer at fortune laments:
"Founder John got 15, but he's 80 and in poor health. His son Timothy got 20. Forgive me, but I cannot see giving life sentences for non-capital crimes." I hope he takes the time to make that point in his Fortune column the next time an aging drug defendant gets a functional life sentence. We'll see.

Book News...

Sorry for the sporadic blogging...

But I have some exciting book news: The publication date for my book has been set for May 2006--so stay tuned for more exciting updates...


Victory in the Big Supremes

Ronald rompilla will get a new trial the US Supreme Court has ruled.

Ronald Rompilla has his death sentence overturned.

In a sharply divided opinion, the court ruled 5-4 that Rompilla's lawyers were ineffective for failing to find some background materials contained in an earlier case file.

This is a nice decision--recognizing the hard work of defense lawyers but holding them to an appropriately high standard. It is another step toward the court's inevitable reversal of some of their more outrageous 'ineffective' jurisprudence.


Yummy for Rummy and Cheney Too!

Halliburton will build anew $30 million detention facility and security fence at the U.S. naval base at Guantanamo Bay, Cuba

Staying awake one of biggest challenges of Enron trial

I love this headline:Staying awake no easy task at Enron trial Here's what the Houston Chronicle has to say about the case:

--The judge started a coffee habit just to keep from drifting off. A juror, lawyer and journalist regularly close their eyes. And a court officer once actually had to jostle awake a guy in the front row. No, the Enron Internet trial can't be confused with a swashbuckling adventure movie. It's not like a page-turning thriller. This is No-Doz country.

Jack Zimmermann

When one of the defense lawyers in the Enron Internet trial — which enters its 10th week Monday — asked U.S. District Judge Vanessa Gilmore what to do if a juror naps, she, like other judges, said it's the lawyers' problem.

"That's y'alls problem. That means the case is boring," she told attorney Jack Zimmermann well before the technology-heavy Enron Broadband Services case entered its third month. "I can barely stay awake. I don't even drink coffee, and I'm drinking it every day."

Indiana PD on Trial

This post from a fellow blogger and Public Defender in Indiana:

"The greatest trial lawyers in the world are not the ones watched, covered, and adorned by the media. The greatest trial lawyers in the world are the public defenders, who do their work in empty courtrooms, without the press, without an audience and, sad to say, most of the time without the family of the person on trial.Each day, the public defenders in that grim and dismal setting open their mouths for the dumb; for the rights of all who are racked desolate by time, by circumstances, by class, by race, by hatred.


Big Day for Voting Rights!

Iowa Gov. Tom Vilsack said Friday he will sign an executive order on Independence Day restoring voting rights to thousands of felons who have completed prison, parole and probation terms.

The order will mean automatic voting rights restoration for "disqualified electors'' who finished their time in prison, on probation or on parole as of July 4. The order also creates a streamlined process for offenders released from state custody or supervision in the future.

This is a terrific victory.

Some Iowa Republicans are of course, against voting. "Are we going to let baby rapers and meth producers vote?'' said Rep. Clel Baudler, R-Greenfield, chairman of the House Public Safety Committee. "I would guess this will be a major election issue in 2006."

(Doesn't it feel like the pararaph after that last one should read...And then he snickered his little republican snicker--and rubbing his hands together in anticipation muttered to an aide, "It won't be long now before we pass that democrat disenfranchisement act... Ha! Once we criminalize all non-republican voting we can finally gorge ourselves at the public trough, eliminate our own taxes and make the poor our slaves!")

Scientology and your Tax Dollars

So given all the hoopla, I thought it'd be interesting to take a peek at scientology--as it turns out, I was wondering about what the heck they believe and whether it was an actual religion. (as usual my buddy Daniel Radosh was already all over it.) So here's a little primer on the "religion" and, just as interestingly, their tax status...

As it turns out Scientology did not start as a religion. In 1950, pulp writer L. Ron Hubbard published an essay on achieving perfect mental health in Astounding Science Fiction magazine. He called his program Dianetics. It teaches that every mental aberration—neurosis, compulsion, repression—and most common physical ailments are caused by subconscious mental images of past trauma. Hubbard dubbed these images “engrams.” He created a device called an e-meter, a kind of simplified lie detector, to detect buried engrams. As a person tells the story of his or her life, trained Scientologist “auditors” use the e-meter to ferret out the traumatic engrams, bring them to conscious awareness, and clear them.

After being raided and barred from making medical claims he switched to making it a religion.

About 75 million years ago, Hubbard told his followers, a galactic dictator named Xenu imprisoned billions of beings on the planet Teegeeack, later known as Earth. He then dropped hydrogen bombs on them and implanted them with sexual perversions, false religion, and other psychoses. Later, the contaminated “body thetans” escaped and attached themselves to other thetans, otherwise known as human beings. To reach the final stage of Scientology, one must telepathically contact the parasitic body thetans and persuade them to let go.

And now to the LAW...

In 1967 The IRS ruled that Scientology was NOT a religion, but rather a comercial operation designed to make Hubbbard rich. It revoked it's tax exempt status. Scientologists fought back by breaking into government offices and planting bugs and stealing documents. (nearly a dozen leaders were eventually convicted of conspiracy as a result) But in the early 90's after a private meeting with "church" leaders, the IRS reversed itself.

Even more interesting: unlike most people, scientolgists can deduct their very expensive training as a "donation" to the church--yep that's right, we're funding the training of scientologists, described in one appeals court ruling as the "IRS's chosen people"
(Thanks to 'The Week' from whom I cribbed liberally)


Even Law Professors Cop out to things they shouldn't

Proving a point I regularly make in the book, here's a nice post by a law professor who was just too tired to fight the state over principle. It's a perfect example of how the frictional costs of fighting a case can overcome otherwise reasonable concerns like process, or even guilt or innocence.

Funny and Easy to Blog...

Though I usually stick with indigent defense, wimpy venal judges, and prosecutorial zealotry, every once and again it's worth posting a reminiscence a bit of the book, or in this case, a little cartoon that seems germane given the Gitmo news this week.

Not as if we didn't know this

But still fascinating to learn the actual numbers....

According to a new study, Race is a huge factor in job offers for Ex-Convicts. The study, the first to assess the effect of race on job searches by ex-convicts, also found that black men who had never been in trouble with the law were about half as likely as whites with similar backgrounds to get a job offer or a callback. Black men whose job applications stated that they had spent time in prison were only about one-third as likely as white men with similar applications to get a positive response.

How does that translate? For every 10 white men without convictions who got a job offer or callback, more than 7 white men with prison records also did, the study found. But the difference grew far larger for black applicants: For every 10 black men without criminal convictions, only about 3 with records got offers or callbacks. Because ex-convicts with jobs are far less likely to commit further crimes, this is a very significant finding in terms of understanding the revolving door...

Clever Little Gadfly Swatted

A clever providence lawyer who argued that Chief Justice of the RI supreme court should be stripped of his title, got his butt handed to him by the CJ's buddies on the court.

Attorney Keven McKenna's had argued that Chief Justice Frank Williams gave up his job when he accepted a spot on a military review panel. He cited the state constitution, which said elected officials can't hold dual offices.

Clever, if ineffectual.


More Musing...

I often wonder why defense lawyers are so bad at forcing institutional change in the criminal justice system. It’s not like the system isn’t vulnerable to collective action--after all, the entire construct rests on plea bargains. As everyone in the system knows, there are nowhere near enough judges, jurors, prosecutors or defense lawyers in the Bronx to insure trials for everyone—so systematically refusing to take pleas would wreak real havoc. The problem of course, is judges and prosecutors, understanding the danger in such a move, would do their damnedest to really hurt the first batch of people to go to trial in hopes of dissuading others. That means a group of clients would, essentially be sacrificed in the name of a greater battle—and since we always represent the individual client, and no sensible client would or should be willing to make that sacrifice, organized resistance is something that remains out of reach of even dedicated defense lawyers.


Prosecutorial Witness Tampering...

Having been on something of a judicial jag here recently, I thought it important to shift the spotlight (if briefly) back to prosecutors. In this rather interesting article a defense attorney charges that the prosecution engaged in witness tampering.

Apparently the prosecutors agreed to pay a potential snitch 40,000 dollars

and to terminate his probation if he would set the guy up and then testify against him. The lawyer made the following reasonable argument...."If a defense attorney paid a witness $40,000 to testify for a defendant, she and the defendant would both be charged and indicted for witness tampering. So why should the prosecution be able to get away with it?' His client is a former police chief.

Judicial Shame Watch Update--Critics seek judge's removal

The Miami Herald has taken notice, and written a lengthy piece about the move to remove Judge O'Connor.

What were they thinking?

I've tried to stay away from the NY Times and from Michael Jackson, but the fact that the Times chose this absurd diatribe( brilliantly skewered at has inspired me to violate my policy.

The OpEd, by Kid Crusader Andrew Vachss

is so full of vacuous hyperbole, I'm actually shocked the times published it. Let's enjoy some samples:

Vachss writes that: "pedophilia" was not on trial; a celebrity was." he then continues:

"Does that mean that if a noncelebrity had committed the sex acts alleged in the Jackson trial, he would be facing the endless years of incarceration we were constantly reminded of throughout the proceedings? No. The truth is that a defendant who pleaded guilty would probably have disappeared into the probation-and-treatment maw without a ripple, resurfacing later as a (possibly) registered and (supposedly) rehabilitated ex-offender. Until the next time."

Huh? Pleaded guilty? Is the assumption here that an innocent but poor person would have pled? Or does Vachss, assume that Jackson is guilty and only went to trial because he was a celebrity... Finally to turn this ridiculous rhetorical trick and give it any vague sembleance of truth, Vachss has to assume that this innocent poor person would plead to some lesser unless he thinks Tom Sneddon was going to offer a non-jail sentence to someone he believes to be a serial pedophile.

Next Vachss says this:
"Ask any experienced defense lawyer: the real risks are for an accused person who is innocent. A guilty defendant has many more options available."

What the hell does he even mean? Uh let's see, a guilty guy can plea bargain? Dude, so can an innocent person. A innocent defendant can file motions? Ah, so can a guilty one. Any experienced defense lawyer will tell you that is a ludicrous statement.

Then this:
"The trial of Michael Jackson was a badly scripted melodrama, rendered even more insipid because we could so easily guess the ending."

Um, what shows were you watching? Everyone was predicting a conviction--Fox said it was his last day of freedom, so did CNN and most of the other outlets. So who exactly is the we? And just out of curiosity, I'd really like to see some documented public statement from before the verdict from Mr. Vachss that confidently predicted an acquittal on all ten counts. I dare him or any reader to show me that.

And finally:

"In the months since charges were filed, I have heard people profess intense anguish that Michael Jackson might "get away with it." Each time, I asked these people what other possible miscarriages of justice concerned them, past or present? I asked if they knew that in many states, including New York and California, the penalties for sexual abuse of one's own child are markedly less than those for abusing an unrelated child. I asked each of them if this incest loophole also provoked their outrage; if they were prepared to actually do anything to change such laws. Not one ever answered."

I literally don't have a clue what the point of this paragraph is or what the hell he's talking about. If he's relying on the incest statute, he's not only a buffoon but a stupid one--there is no affirmative defense of family in the NY state penal law in terms of sexual abuse. What that means Andrew, in case you missed it, is that there is an ADDITIONAL crime for sexually abusing your own kids, not a substitute. There is no sex crime that can be perpetrated on a stranger's kid that can't be prosecuted under the same statute when perpetrated on your own--get it? So your entire moronic rant is just factually inaccurate and grossly misleading.

Radosh's response is also worth noting:

In truth I don't know what to make of it--and I have no idea how a piece this bad got into the NYT OpEd page.

Didn't they wonder when they saw the cover of one of his recent books?


Prosecutor accused of taking drugs for leniency

San Francisco prosecutor Robert Roland had a taste for party drugs and a knack for helping people out of scrapes with the law, according to his alleged associates in a federal drug case. According tothis article.

Roland, who was hired in July 2000, was arrested Friday in San Francisco and was released on a $200,000 bond. He appeared briefly in federal court, where the indictment was unsealed.

The indictment accuses him of assisting a man named Robert Nyberg, who was a friend of one of Roland's high school friends, Eric Shaw.

Legal Guide for Bloggers

Given the firestorm over my new judicial list of shame, and the zany suggestion that naming judges who do horrible things is somehow stupid, shameful or illegal, I thought I'd bring you a recently published Legal Guide for Bloggers. Published by the totally groovy Electronic Frontier Foundation,

Though I've only read a small part of it so far, the guide seems to provide cogent and simple advice on dealing with some of the legal issues bloggers face. And yes, the Judicial List of Shame will continue.

A PD Blogger Calls it Quits

Sadly, I'm A PD has left her office, and presumably her Public Defender blog.

Always sad when a commited public defender leaves the work, but perhaps, as she says, she'll be back.


PD's Stand Up to Judge Eileen O'Connor

Regular readers know why former prosecutor EILEEN O'CONNOR made my list of horrible judges:
--First for sending a young african-american juror to jail for four months post here
--Then for lying about her qualifications on her application to become a judge post here
--Then for her racist and anti-semitic attitudes (revealed in lawsuits which named her which the government settled) post here

And just this morning: The South Florida Sun-Sentinel reports that : "Broward Circuit Judge Eileen O'Connor has a policy that forces criminal defendants to take plea deals or live in fear that refusing will result in harsher sentences. The Public Defender's Office argues that O'Connor is improperly taking on a prosecutorial role and she's not examining cases on their individual merits."

The PD's office has moved to have her recused from the case of a 42 year old man charged with stealing batteries.

I have said before and I'll repeat. This woman should not be a judge. You can sign the Petition to Help remove Judge Eileen O’Connor from the bench here.

(Thanks to Bill Jempty of The Florida Masochist for the tip!)

Judge apologizes for jailing juror

Judge PRESTON BOWIE who recently made my Judicial List of Shame has just publicly appologized for jailing a juror saying "This was a mistake on my part, and I apologize for it. A judge, like everyone else, makes mistakes." Darn right.

EILEEN O'CONNOR and JENNIFER BRUNNER listed here on the shame list, on the other hand, have yet to significantly mitigate their reprehensible behavior.

Mo Mo in Lo!

Down in the Bayou an important Indigent defense reform bill has moved to the full House despite opposition from the state's district attorneys.

Moreover, the Louisiana News Star has this excellent report on indigent defense. As regular readers know, there are virtually no state funds for indigent defense in Louisiana. Instead most parishes rely on speeding ticket revenue to fund their public defenders.

Specifically, it has been estimated that it would take $55 million to properly fund the statewide indigent defense system. Currently, the system in the state of Louisiana operates on a budget of about $32 million a year. A little over $9 million of that comes from the state and is spread across the judicial districts. The remainder comes from the individual districts, primarily from $35 traffic ticket fees, a method of funding wholly dependent on the enforcement of traffic laws. Districts with major thoroughfares also traditionally get more money from traffic offenses.


Many Americans Erroneously Believe O'Reilly is a Journalist

Sorry about the sporadic blogging--I was off being a talking head about Michael Jackson. I won't belabor the verdict--it was right and it represented a real step forward. Congratulations Messereau--that was a tough case and a big win.

In other news:

According to a new poll, Bill O'Reilly is more often identified as a journalist

than Bob Woodward.


Overwhelmed? Just sue someone!

The Durham Dept. Of Social Services got pissed off and Sued the Durham Public Defender For $10,000 Taxpayers will pay any eventual judgment. What caused the falling out? The PD was asking for too much information.

And Speaking of Interest of Justice Jurisdiction...

The Supreme Court of Wisconsin just did a very interesting thing: while denying a bid for a new trial on ineffective assistance of counsel grounds, the Court took the unusual step of asking the parties to brief two new questions: Does the Supreme Court have the authority to send the case back to the Circuit Court for reconsideration based on the interest of justice? If so, should it?"

The defendant in the case (pictured below) is a former detective, convicted in 1999 of killing his wife.


Name that Judge? Darn right...

Thanks in part to a post in Crime & Federalism I've been thinking about the importance of naming names in the criminal justice system. And here is what I've come to: I think that judges ought to rise above the fray and decide issues in principled ways, and many of them do. To them, I raise a glass. They have a hard job to do, and they do it well. However, I also think that the right has had no compunction about excoriating judges and politicizing the process. The result has been a week-kneed judiciary cowed into twisting the constitution into pro-prosecutorial knots in order to avoid being labeled 'soft on crime.'

This has got to stop, and I have come to believe that the only antidote is to start naming those who screw over poor people, who commit horrendous acts of unnecessary cruelty, and who rule out of cowardice. And so, without further ado, a list that names names:
Some Really Horrible Judges and what they've done:

JUDGE PAUL 'MAC' PEATROSS--Virginia--Sentenced a defendant to extra time because he hated the defense lawyer. Although discipline was recommended, the Virginia Supreme Court declined to impose it.

JUDGE RALPH FABRIZIO--The Bronx--Refused to dismiss a case because he wanted to protect the city of New York from liability in a civil suit filed against it for the tortious conduct of the police officers.

JUDGE PRESTON BOWIE--Chicago--Dispatched deputies to arrest a pregnant juror.

JUDGE EILEEN O'CONNOR--Florida--Colluding with prosecutors, (she was a former prosecutor herself) she jailed a young african american juror because, she said, he lied about his arrests. As it turns out--both of his cases were non-processed and were not convictions or anything at all. To make matters worse, it seems she herself lied about her qualifications in order to get on the bench, failing to disclose the lawsuits that resulted from her anti-semitic and racist behavior.

JUDGE JENNIFER BRUNNER--OHIO (not as I previously wrote, Pennsylvania)--put a legal aid lawyer in jail for suggesting (my guess is rightly) that she was colluding with prosecutors to coerce a plea from a client. She is now running for higher office.

There are so many more, and perhaps ever month or so, I'll continue to do the hall of shame list. But feel free to contribute in the comments section below, preferably with links to their reprehensible acts.

Recuse yourself! Gutsy PD asks Judge to go

A Virginia Public Defender has filed a recusal motion against JUDGE PAUL 'MAC' PEATROSS seeking to bar him from hearing any cases in which the defendant is represented by the public defender office--quite a gutsy move.

The controversy arose about a year ago when The PD--Jim Hingeley and Albemarle Commonwealth's Attorney James Camblos charged that Peatross, an Albemarle County Circuit Court judge, had engaged in improper conduct, including getting so angry with an attorney that he retaliated against a defendant with a harsher-than-expected sentence. (imagine that! Even the DA admitted it)

In September, the Judicial Inquiry and Review Commission, a seven-member state board, unanimously agreed 'by clear and convincing evidence' that Peatross should be censured or removed from the bench.

Of course the Supreme Court didn't agree. On April 22, it dismissed any notion of censure, and Peatross-- who had recused himself during the investigation-- resumed hearing Circuit Court cases full time.


Reactionary Reactions...

Gosh, that earlier post about Judge Fabrizio really set people off. I've gotten dozens of e-mails and comments questioning my ethics and my integrity and a recent poster just called me a 'fucking moron' for using real names.

My view is rather different. Judges get away with many of the awful things they do because there is no scrutiny and no outcry from the defense on behalf of the voiceless and the disenfranchised. That needs to stop. Yes, it takes some courage to take them on and to name their names, but if not we Public Defenders, then who?

I’d like to say I knew Judge Fabrizio would do what he did--and I certainly expected it (though I never thought he'd actually say the things he said) Still, no matter how long I practice, and no matter how many times I’m thwarted, I still believe, and still hope beyond hope, that one of these days some judge is going to wake up and look hard at the people he or she’s sentencing. I keep thinking that one of these days, one of them just might read something I’ve written and have some insight into the poor innocent woman or the scared defiant kid he’s about to send to prison, and that one fine day, all of the sweat and stress and toil, all the heated arguments and passionate sentencing pleas, all the late night investigation and all the legal maneuvering will somehow coalesce and will, finally, make a difference.

Pregnant Juror Jailed

Judge Preston Bowie had officers arrest a preganant woman who said she was too sick to serve on a jury. After the juror called the court to explain her situation, Judge Bowie dispatched officers to her home. They took her to jail where she stayed until Judge Michael Toomin ordered her released. She is due back before Judge Bowie on Monday.

Ebbers so sorry...

While I'll refrain from commenting at length on the Ebbers sentencing, I will note my sad bemusement at discovering that Ebbers, (who stands convicted of an 11 billion dollar fraud) named his daughter "Treasure." Ouch.


Judge-Fest Four: The Free Speech Free for All:

Kentucky faces the 'mother of all judicial elections' next year, when all but two of the state's 265 judgeships are up for grabs -- without, at present, any rules restricting what candidates can say about the issues or each other.

This should be interesting...

Save two lives, get death (or not)

The Georgia Supreme court voided a death sentence holding that jurors should have heard about the fact that the defendant, two years earlier had put his own life in jeopardy while saving two other people.

Panhandling Pandora's Box

As it turns out, New York City has been arresting hundreds of people under a law declared unconstitutional over a decade ago. The issue (which many defense lawyers and prosecutors inside the courthouse knew about) broke when someone finally did something—in this case filed a federal lawsuit.

New York Times coverage here
New York Daily coverage here.

Interestingly the DA’s have already admitted liability in the case, but argue that someone should have said something. Well guess what? They did---over and over. In fact—not only were the zealous defense lawyers repeatedly asking for dismissal in open court, some even filed written motions (complicated for reasons I can explain later). And what happened to the written motions?

The prosecutors opposed them, and (in at least one case I’m told) none other than Judge Ralph Fabrizio –the same judge who issued the outrageous decision I blogged about yesterday, DENIED a dismissal even though the motion cited the federal case that had held the statute unconstitutional.


The Dark Side of American Policing...

Apropos of my earlier post about Judge Ralph Fabrizio's awful decision this afternoon, comes this great review of what sounds like an amazing book.

As the Seattle Times describes it:

If any big-city police chief has written a book more critical of cops than Norm Stamper, that volume has escaped my attention. Stamper criticizes beat cops, elite cops and chiefs including himself, including his years in Seattle. 'Breaking Rank' is an apt title given the text, but is actually too mild to describe the contents. It seems quite likely that among law-enforcement officers across the nation, Stamper will soon be referred to as Judas."

Just This Week

Thanks to The Carpetbagger Report for...

This Week in Bush

This week we learned that:

1. The Bush White House let a former lobbyist for the American Petroleum Institute re-write a government report on global warming, editing out scientific conclusions he didn't like.

2. Bush's Interior Department offered to overpay a wealthy Republican donor for oil and gas rights on Everglades land that the government apparently already owns, overruling the advice of career officials.

3. The Pentagon's inspector general released a report on a lucrative Air Force contract for Boeing that cost too much for planes the military didn't want. Bush, who has enjoyed generous campaign contributions from Boeing, was involved with the contract, personally asking White House aides to work out the deal and dispatching Chief of Staff Andrew Card to participate in the contract negotiations. When the inspector general's report came out, 45 sections were deleted by the White House counsel's office to obscure what several sources described as references to the Bush gang's involvement in the lease negotiations and its interaction with Boeing.

4. Documents from the U.S. State Department published this week show that the president backed away from the Kyoto global warming treaty after being pressured by ExxonMobil, the world's most powerful oil company, and other industries.

5. Bush officials at the Justice Department inexplicably decided to reduce its settle request with the tobacco industry from $130 billion to $10 billion, and urged government witnesses to soften their recommendations about sanctions.

Again, these stories were published just this week...


I don't know how they do it...

A rare personal reminiscence:

I was in court today—on a case in which a cop named KEVIN ROGHNEEN broke my client’s arm in three places. She’s in her 40’s, a cancer survivor and never had so much as a traffic ticket. The pictures of her injuries are ghastly—the cop caused permanent nerve damage.

I’ve filed a number of motions in the case, (I’m representing her because many years ago she worked in our office. She’s a lovely woman and I promised to help her—I’m trying), most recently a motion to dismiss in the interests of justice.

It was denied today by Judge Ralph Fabrizio. Who makes me want to….

I’ll spare you the tirade about him but he’s insufferable. I’m fairly certain that he never even read the lengthy pleading I filed. Nor, I think, did he even look at the photos I attached, or the medical records or the letters from the community.

It’s funny—the last time the case was on Judge Ethan Greenberg urged me to file the motion. Knowing a bit about the case he called it an obvious Clayton dismissal. I told him that Judge Fabrizio would never do it but he urged me to file it anyway (which, with some effort, I did).

I was right, Fabrizio couldn’t have cared less. But here’s what got me: he denied the motion because she filed a lawsuit against the city.

I kid you not—he said (and I have the minutes and am quoting)

“I think the fact that there is a ten million dollar lawsuit really means that the court should not be dismissing this criminal case”

Nice huh? The judge bases his decision not on the merits but on an attempt to protect the city from deserved liability.


Effort to boot judge off case advances

Guess who?
Yep, my favorite evil judge Eileen O'Connor! You remember--the one who locked up the black kid who reported for jury selection, the one who, it appears, lied on her application for a judgeship, who got the government sued over her treatment of jews and minorities...yeah that one.
Now they're looking to recuse her!

The Miami Herald reports that:

Donald Tobkin, a Jewish lawyer from Golden Beach facing a felony charge of illegally selling a prescription for the painkiller oxycodone, wants Broward Circuit Judge Eileen M. O'Connor removed from his case because he alleges she is biased.

Now it will be up to an appellate court to decide whether O'Connor will remain on his case.

O'Connor could not be reached for comment late Tuesday. She has until Friday to show the higher court why she should not be recused.

In the filing the defendant asserted:
'Judge O'Connor's reported long-standing prejudices, ethnic and religious reprisals against blacks and Jews, will likely contaminate Judge O'Connor's pretrial rulings"

O'Connor denied his motion.

But on Monday, the Fourth District Court of Appeal issued an order indicating it would consider his case.

''I'm very encouraged,'' Tobkin said by phone.
Mohammed Maxwell, a defendant facing a trial on a first-degree murder charge, is also weighing a request to have O'Connor recused from his case.
Maxwell, 24, is black. His attorney, Charlie Kaplan, is Jewish.
Maxwell is expected to decide whether to ask his attorney to file such a motion Friday."

I remind dear readers to sign the petition to recall her.
It's here!

Draft Prado

Judge Edward Prado would be a great supreme court nominee and there is a bi-partisian movement afoot to draft his as the next JSC. As it turns out, Judge Prado is someone I know (if vaguely). Back some 15 years ago, when I was trying to decide what do do with my life, I considered doing a federal clerkship. I sent out a bunch of letters and got a few interviews. One of the places I went was to San Antonio Texas to interview with Judge Prado. Why do I remember this? Not just because he rejected me--(he called me personally to tell me that I was his second choice and that he'd already made an offer to someone else, but that if that person didn't accept, I was in) but because in the hours that I spent with him and with his very cool clerks, he was the only person I interviewed with that convinced me that moving to a place like San Antonio and delaying my desire to be a public defender would have been a good move. He's charismatic, kind, playful and smart as hell. He'd be a fantastic choice--so I heartily encourage you to click here and send a letter to your senator encouraging them to support him.