Had to take a break to mention...

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

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

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

Cool huh?



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

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


Meet n' plead....

Just cut this little anecdote...

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

Meet and plead...

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

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

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

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

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

Our lawyer-client relationship: 15 seconds.


Mea Culpa...

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

Child with dead dad

(You can read my original post here)

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

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

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

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

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

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

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

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

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

Photo's like this:

Or this:

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

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

At least that part I stand by.


People are so nice!

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

Here's a sampling:

Allan Jones of Los Angeles, CA wrote:

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

James Sramek had this to say:

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

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

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

C. Galipeau added:

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

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

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


Thanksgiving Feast...

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

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

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

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

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

Bob Woodward

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


A Must Read.

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

Jen Gonnerman

Here are the first few paragraphs...

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

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

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

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


This makes me cringe...

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

Randy Smith

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

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

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

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

This is Evan--now 15.

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

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

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

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

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

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

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

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

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

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

Support from colleague

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

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

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

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

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

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

Sweeping changes

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

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

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

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

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

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

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

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

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


Sick Ric gets slick...

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

Newly Slick Judge 'Sic' Rick Howard

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

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

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


A Courtroom Affair...

Excerpts from a Times story:

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

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

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

Ron Kuby

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

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

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



Cape fearless...

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


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

Of course, I’ve had clients who I feel I have failed. They are the ones, most people would assume I’d be afraid of. Oddly, the opposite is usually the case. Cape Fear was released in 1991, two years before I lost the trial that sent W. to jail. W. and his Girlfriend had every reason in the world to hate me. We’d gone to trial: I’d assumed the responsibility for getting him his life back, for defending him against horribly unjust and untrue allegations, and I’d utterly failed him. I'd walked beyond my skill and experience and because I did, I’d screwed up and grievously screwed up his life.

On April 9th With W. nearing the end of his sentence, I got a letter from his girlfriend. Typed carefully on a sheet of ivory bond paper, here is what she wrote to me:

Dear David,

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

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

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


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


Classic Coverage

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

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

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

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


My Life...

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

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

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

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

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

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

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

In a food way?

“How much do you need?”

“Like 40 dollars…”

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

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

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

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


I hate myself for saying it.

“Can you make it until tomorrow?”

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

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

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

But I hate myself for saying that too.

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

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

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

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

*(not her real name)


Sick Ric Get's a Whupping on the OpEd Page

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

Sick 'Ric' Howard

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tough Times in Missouri

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

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

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

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

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

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

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

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


Public Defender Elected Mayor

Matthew T. Ryan, A Broome County public defender has been elected mayor of Binghamton, NY


The local paper reports that: "During Ryan's early days in office, he will need to mend fences that have been damaged over the years: one with the police and one with city council. For 15 years, Ryan has been an assistant public defender. The job forced him to challenge many of the charges police brought against his clients. "I'm sure there are some concerns among the officers," he said. "I've had to grill some of them on the stand. But I want to make sure this is a safe community - safer than it already is." Ryan said he will meet with Binghamton Police Chief John Butler today to discuss the future and address several issues.

I'm looking forward to this one.

How often do you see this headline?

Cheerleaders face sex charges...

The perps


Damn Graham

Seems like Senator Lindsay Graham is introducing an Amendment that would strip those designated by the Administration as enemy combatants of the ability to seek habeas review in federal courts. Basically, this is an end-run around the Supreme Court's decision in Rasul v. Bush which held Guantanamo detainees have the right to challenge the legality of their detentions. Amazing, particularly in light of the fact that the big supremes just decided to take a case likely to break his way anyhow.

Georgia on my mind...

I was down in North Georgia last week giving a lecture to the Georgia Association of Criminal Defense Lawyers. For a red state, I like Georgia. I like it mostly because I go down their fairly regularly (I teach every year at the National Criminal Defense College in Macon, GA) and because I have a some friends who do great work down there.

The Hills of North Georgia

Also lecturing at the GACDL conference was my good friend Pete Donaldson. Now Pete is a phenomenal lawyer (I won't even tell you how many murder cases he's won in rural Georgia) a great presence and a very dear friend, and he quoted something in his lecture that I thought was worth reproducing. He attributes it to Cynthia Rosenberry, and it captures nicely the basic contrast in the outlooks of criminal defense lawyers and most other people. In his talk Pete said...

"We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job – our sworn duty – as criminal defense lawyers, to protect our clients from those people."

I couldn't have said it better.


Are you kidding me?

Two whiny editorials in the Chicago Tribune infuriated me this weekend. Both were simpering accounts of how hard it is to be a journalist at a big newspaper. The first, by Jonathan Elderfield, a photo editor contained the following:

Something we don't see every day (but should)

"I am a picture editor at the Chicago Tribune. My job for the last year and a half has been to look at every hard news photograph from across the world and nation that comes into the Tribune's photo system. I have become intimately acquainted with death in Iraq, mostly with the death of the Iraqi people. While there are more than 2,000 dead servicemen and women, there are many times more dead Iraqis.

Every weekday I have seen images of Iraqi dead or of grieving family members. I have seen exploded cars, pools of blood, terrified children, dismembered bodies, bodies in mass graves. My job is to sort through these images of the dead, dying and grieving and to decide what is a good picture, what is acceptable to publish in the newspaper--or what is too gruesome...

It went on to say: "I cannot remember a workday in the last six months when I did not see the aftermath of a shooting or a car bomb. I don't have nightmares or post-traumatic stress disorder but I have images burned in my mind's eye of war atrocities:

There is the photograph of a family whose car was fired upon at night by soldiers in Tal Afar. It shows a frightened little girl, her face spattered in the blood of her dead parents, her screaming mouth wide open, and the legs and gun barrel of a soldier protruding into the corner of the frame.

There is the photograph of the mourning family of 9-year-old Ahmed, killed by a car bomb in Baghdad. The five adult faces I see are all screaming and wailing; their hands are raised to those faces in horror or prayer. The family huddles around the small wood box.

There is the photograph from Haditha that shows about 10 dead Iraqis packed in ice in a morgue--a scene that resembles a fish market. They had been executed in a stadium northwest of Baghdad. The Iraqi government had, in fact, identified them as fishermen."

Now let's be clear, Johnathan Elderfield is an accomplished photographer and seems to have his heart in the right place. Moreover there's no question that such images are incendiary. But leaving aside the whining tone of the piece, there is a much bigger and more infuriating question: Why are you, Jonathan Elderfield, the only one to have seen these pictures? Why is it that every time I open the paper I see antiseptic crap rather than the hard hitting news photos it turns out you've been sitting on all these months? The photos that accompanied the news piece were indeed graphic--far more graphic than anything I've ever seen in the tribune or elsewhere. They have the power to bring the horror of war home, and yet all they do is eat at you rather than the conscience of the nation. They ruin your lunch rather than affect public opinion. This seems to be a total abdication of your responsibility as a journalist and an editor, and rather than feel sorry for your pain, all I can muster is fury at your complicity in a whitewash that continues to cost innocent lives on a daily basis.

Do we want to look at this? No. Should we....?


From "In These Times"

Ryan Grim writes in "In These Times" that:

At some point, everyone ought to throw his or her political theory—whatever it is—up against the wall of reality to see if it sticks. I ran smack into that wall when the state shackled Mark, one of my best friends, and hauled him off to a dank, violent, maximum-security prison for a 17-year stay. His crime: possession of a spoonful of cocaine.


Grim's point about the horror of war on drugs isn't particularly new, but it dies underscore the importance of personal narrative. The piece works not because he's got an important new thesis but rather because right there, up at the top he introduces Mark. It's an important lesson for those of us who write about the system. People make good stories, and the thought of Mark doing 17 years (which does seem an extraordinary sentence for a "spoonful") hits as hard as any of the arguments he expounds below.


You know you're old when...

Your contemporaries start running for office. Yes, indeed. Imagine my surprise upon finding that Kathleen Rice was running for DA of Nassau County against Dennis Dillon who is now 71 years old and has been in office for as long as I can remember.

Kathleen Rice

Now I remember Kathleen from when she started in the Brooklyn DA's office in 1992. She was very cute and rather feisty and though I never much like prosecutors, she wasn't too bad to have a case with. (At least that's what I think--it's possible too that I absolutely hated her but just don't remember). But as I read about her now, even with the haze of her cuteness and my not too terrible memories clouding my brain, I'm reminded of why the entire enterprise of running for DA is distasteful.

The truth is, almost the only way to gain points in a DA's race seems to be to attack your opponent for not being tough enough. It's the worst sort of feedback loop. "I'm going to punish the criminals even more harshly than you..." "More mandatory jail time!" And while Dillon is making an issue of a a pending perjury lawsuit filed against Kathleen alleging that she and others pressured a witness in a double murder to falsely identify Antoine Butts as the murderer. (Butts spent 2 years in Rikers Island before being acquitted at trial.) This doesn't seem to be working. Indeed, raising the question of overstepping the bounds of prosecutorial propriety, while important seems to be a loosing strategy.

Alito is scary...

Some more Alito decisions to keep in mind as we decide between outrage, horror and outright panic:

Alito voted to dismiss a case, brought by Inez Baker and three of her children, who said they had been mistreated by the police when they happened to visit an apartment during a drug raid. "There was," he wrote, "a good likelihood that visitors to the apartment were drug buyers. While it was certainly possible that there would also be some innocent visitors to the apartment (such as the Bakers), I think that there was probable cause to search anyone found on the premises."

Alito--Friend of the powerful

Or how about this: In a 1991 appeal in a murder case from the Virgin Islands in which the defendant had claimed self-defense, the trial judge failed to tell the jury that the prosecution had to prove that the killing was not in self- defense. The majority reversed on that ground. Alito disented. Though he acknowledged that it was possible that the instructions given confused the jury, he wrote, "the mere possibility of prejudice to the defendant is not enough to show plain error."

And as for covering our, often ineffective asses: In a 1997 case, the majority ordered a new trial for a man whose lawyer had advised him to plead guilty to possession of a firearm. Judge Alito disagreed, writing that the lawyer's advice "is properly viewed under our precedents as a tactical decision that, while perhaps debatable, remains safely within the expansive realm of constitutional reasonableness."

When a 1995 panel majority showed special consideration to a Pakistani man seeking to avoid deportation because he was caring for his sick brother, Judge Alito objected. He said that the decision of the Board of Immigration Appeals, or B.I.A., deserved respect and that the board had ruled that humanitarian considerations were outweighed by the man's conviction 10 years earlier for conspiring to import a pound of heroin.

Basically, Alito is the sort of judge who will protect corporations, defer to cops and generally screw the little guy, particularly if the little guy is poor, or Pakistani.


The real deal about prosecutors...

This story seems to me to capture one of the central problems that defense lawyers have with prosecutors. Though it seems that every prosecutor has learned to talk about how they never want an innocent person in prison, they're only out for justice etc, their actions, rather than their self righteous and self important public statements, regularly belie this claim. The problem is that the public only hears what prosecutors say, and rarely look at what they do. This is a case in point.

Alaska State Prison

William Osborne, a man locked up for more than a decade for a crime he says he didn't commit has been trying for years to get a DNA test to prove his innocence. Conclusive evidence exists, he's able to pay for the test himself but the prosecution has been stonewalling, seeking to prevent him even getting the test.

Their most recent salvo: An attempt to bias the judge hearing the motion to have the DNA tested by introducing a supposed "Confession" made to the parole board who had made it clear to poor Mr. Osborne that if he ever wanted to get out of prison he needed to confess.

He did.

Then they denied him parole.

Tests done in 1993 showed that the critical evidence in the case: semen recovered at the scene matched about 16 percent of the black population, a group that included Osborne. He asked for more advanced testing, but his attorney at the time refused, strategizing that the inconclusive results were in his favor because they showed the semen could have come from any number of people.

Far more advanced DNA tests are available now.
"Let's just get the condom and hair tested," his attorney has said. "That's what needs to be done. If they are so sure they have the right guy, just let us spend our money to get it tested."

Of course, while prosecutors insist that they'd never want to see an innocent man in prison, in countless cases like that of Mr. Osborne--who has already spent over a decade incarcerated for a crime he may not have committed, their actions speak far louder than their words.

They want convictions. They want finality. And if that means that men like Osborne rot, it seems that that is a price that prosecutors, at least, are willing to pay.


Hard to get much worse...

Yes it's true, even among the potential disasters, Alito couldn't be a worse choice. He is a conservative activist who doesn't even share Scalia's beliefs in the criminal context. Why? A quick look at Alito's bio should case fear and loathing among hardened defenders everywhere. Guess how he spent his entire pre-judicial career? You got it, as a prosecutor.

Assistant U.S. attorney, District of New Jersey, 1977-1981
Assistant to the U.S. solicitor general, U.S. Department of Justice, Washington, DC, 1981-1985
Deputy assistant U.S. attorney general, U.S. Department of Justice, Washington, DC, 1985-1987
U.S. Attorney for the District of New Jersey, 1987-1990

As Professor Berman at Sentencing Law and Policy points out: "Lawrence Lustberg, a New Jersey criminal defense lawyer who has known Alito since 1981 and tried cases before him on the Third Circuit, describes him as "an activist conservatist judge" who is tough on crime and narrowly construes prisoners' and criminals' rights. "He's very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a Rehnquist as a Scalia trait," Lustberg says.

The difference between being in the mold of Chief Justice Rehnquist and Justice Scalia for the Apprendi-Blakely-Booker line of cases is quite pronounced and consequential. Because of Alito's criminal law background, the pre-hearing conversation and the hearing themselves would likely focus a lot on criminal justice issues (unlike what we have seen with Miers and with Roberts). Regardless of one's view on criminal justice issues, I think it is important and valuable for these issues to be a larger part of the public conversation about the work of the High Court and potential Justices."