Why Criminal Defendants Get a Raw Deal...

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

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

The Wyoming Supremes

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

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

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

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

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

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

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

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

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

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

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


A Rare Report...

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

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

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

Public Defender Jay Saxton Talks to a Client

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

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

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

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

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

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

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

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

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

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

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

Welcome Andrew...

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


Credit where credit is due...

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

Dawn Turner Trice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

- - -

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

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

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

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

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

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

- - -

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

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

- - -

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

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

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

- - -

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

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

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

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

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

- - -

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

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

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

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


Adam Nadel...

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

One of the photos in Adam's NYT photo essay

The Times describes the essay as follows:

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

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

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

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

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

Great job. Congratulations man.


Book News...

Good news on the book front...

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

My new publication date: June 2nd.

It's all starting to get very exciting!

Happy Holidays.


Arrest the CIA?

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

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

An Old Arrest Warrant

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

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

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


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

Insane Tennessee Caseloads

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

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

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

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


The pleasures of freedom...

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

Charles Thompson

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

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

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

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

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

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

Judge Quits Secret Court...

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

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

Judge Robertson

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

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

Welcome back to McCarthyism.


Cointelpro-part deux

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

The Bush Administration

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

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

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


Decline and Fall

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

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

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

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

Let them drink Louis XIII.


Evo Morales Gets Me Thinking

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


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

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

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

This will be interesting.

Bush Pays Back...

This from a new investigative series by the Toledo Blade:

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

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

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

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

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

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

Peter and The Price of Oil

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

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

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


Bush bugs you...

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

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

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


Another Apostate

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

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


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

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

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

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


Bait and Snitch...

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

The T-Shirt in question

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

Exactly right and succinctly put.

Radosh Rocks:

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

Radosh himself...

According to Publisher's lunch:

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

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


Hold the Sheriff in Contempt?

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

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

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

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

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

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


Who calls the shots at Fox?

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

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

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

Tookie Dies Tonight...

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

Stanley "Tookie" Williams

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

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

Ironic Eh?

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

Sick Ric Strikes Again--Ten Years For Stealing Beer

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

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

Thanks to TalkLeft for this one:

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

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

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

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

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

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

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

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

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

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


Freezing and remote..

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

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

seen here without the snow or tourist attractions

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


The ABC's of Innocence...

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

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

The hungry sexy cast...

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

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

You've got to be kidding.

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



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

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

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


Strange star moment…

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

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

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

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

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