When you know the judge...

So here's something hilarious: Judge "Sic" Ric Howard who I've attacked repeatedly on this blog as a pro-prosecution nut has his hands full with a high-profile case in which there is a confession that is absolutely clearly a violation of Miranda.According to this report, he's just delayed his ruling on the issue.

I don't know why he bothered. I'll tell you what he'll do: He'll supress, and he'll insure that the supression doesn't hurt the prosecution. Mark my words. Whatever he does, this will not be a dispositive issue. He'll do only what he absolutely has to while crossing the street to insure a conviction. If I wind up being wrong about this--I'll do something nice for Tom.


Judge Donates Kidney to Ailing Prosecutor - New York Times

A federal magistrate has donated a kidney to an ailing prosecutor who often appeared before him, solving a medical problem but causing perhaps a sticky legal one.The judge said he considers Walbourn a part of his family -- ''until death do us part.'' The prosecutor agrees.

''Both of our families have been through a lot together,'' Walbourn said.


Consentual Oral Sex Nets 10 Year Sentence

Thanks to SC, who sent me an article about the recent Georgia Supreme Court Decision that upheld a 10 year mandatory minimunm sentence for an 18 year old high school graduate found guilty of having consentual oral sex with a girl less than 4 years younger than he was.

The sentence is particularly tragic because starting Saturday, there will no longer be a 10 year mandatory minimum for such conduct. All of which makes me think that there's a point at which abstraction to legal generalities often just obscures the capricious ruination of otherwise valuable lives. And that seems to me to just be tragic.


The Blog | David Feige: Inside The Politics of Prosecution...

My most recent Huffington Post entry is about Garcetti v. Ceballos...

LA County DA Garcetti

Here's part of it...

In 1999, in the small-unincorporated community of Basset, not far from La Puente, Los Angeles County Sheriffs came across what they believed was a stolen and stripped pick-up truck. In a sworn affidavit used to obtain a search warrant, the deputies claimed that they followed some tire tracks from the truck up a "driveway" to a house where they discovered contraband. An arrest was made and People v. Cusky was born.

As Mr. Cusky's case wound it's way through the criminal justice system, Richard Ceballos, a calendar deputy in the Pomona Branch of the Los Angeles County District Attorney's office decided to investigate the case. When he did, he discovered that the "driveway" was actually a street (which wouldn't have retained tire tracks) and the "house" was actually nine houses. Ceballos came to believe that the Sheriff's deputies had misled the court in order to get the warrant. He wrote a memo to his supervisors recommending that that Cusky's case be dismissed.

Instead, it was Ceballos who nearly was.

After a series of contentious meetings, Ceballos's supervisors not only decided to proceed with the prosecution, they removed Ceballos from the case. Rather than seeing his memo as the honorable decision of a prosecutor ethically bound to report misconduct, Ceballos's actions were seen as traitorous. He was accused of "acting like a public defender," and was demoted, denied a promotion and transferred to a distant office for what he described as some "freeway therapy." More than merely being the basis of Mr. Ceballos's lawsuit, the District Attorney's reaction to Ceballos's memo is an object lesson in the obstacles to doing justice even from within the prosecutor's office...

The rest of the post is Here.


Me and Cato...

Based on an e-mail I got from Dianne Blandford the wife of an incarcertaed small business man who is serving eight years for importing shrimpy lobster tails, I started poking around to learn a bit more about his case.

The Spiny Lobster

Among the things I came across was this article from the Cato insitiute called Begging His Pardon It concerns Bush's paltry use of the clemency power (the only executive power he seems reluctant to use) and lists several prisoners worth of clemency (among them Mr. Blandford).

Here are two I found astonishing

* Dane Yirkovsky--serving a 15-year sentence for possession of a single .22-caliber bullet.

In December 1998 he found this bullet while doing remodeling work for a friend who was giving him a place to stay in exchange for the work. Yirkovsky put the bullet in a box in his bedroom. Later that month, the police found the bullet while searching Yirkovsky's room after a call from his former girlfriend, who claimed he had some of her possessions. Because of Yirkovsky's prior convictions for burglary, federal prosecutors charged him under the Armed Career Criminal Act, although he had not threatened anyone and did not have a gun.

* Robert Blandford, Diane Huang, David McNab, and Abner Schoenwetter

Three American seafood dealers and one Honduran lobster-fleet owner are currently doing hard time for importing lobster tails that were the wrong size and that were packaged in clear plastic bags rather than in cardboard boxes. They ran afoul of the Lacey Act, a federal statute that makes it a crime to import fish or wildlife taken 'in violation of any foreign law.'

The U.S. government argued that they had broken Honduran law because some of the lobster tails—3 percent, to be exact—were less than five and a half inches long, and because a Honduran regulation required that the lobster tails be packed in boxes. Yet Honduran officials testified that no laws had been violated.

Nonetheless, Blandford, McNab (the Honduran national), and Schoenwetter, three small-business men with no previous criminal records, were sentenced in 2001 to eight-year terms.


What it's all about...

Another Report From the Road...

Last night, on The Majority Report I was asked why I wrote the book. The answer I gave had a lot to do with the outrage I felt at the treatement of my clients. But "Why did you write the book" has another answer and that is: To try to inspire people to do our righteous work. I've often told myself that if for the 3 year shelf life of the book, even three or four people read it and are inspired to either become public defenders or remain public defenders for another year or two, then in the aggregate, I will have given 25 years of (other people's) service for my two year investment. That would make me really happy.

So you can imagine how heartened I was to come across
this post from "Boni et Aequi- the PD blog":


I was sitting under my desk when I realized that right next to me was the book I had ordered (thanks to Blonde Justice)had not only arrived but was right beside me. It was the evening after a particularily bad trial where I was at war not only with the prosecution, but with my client, and my irritable judge. It was a day when I could have ever so easily walked away from my work. A day where I was progressing quickly through the stages of burnout. Indefensible, that book underneath my desk, brought me back into the fold. It reignited my passion for my work. And for that, I thank its author David Fiege.

To be frank, the book didn't teach me much about law. But, I don't think it is supposed to. When I picked it up, I already knew how dreadfully f$#%ed up the system was. I alredy knew how hard it was to be a public defender. I already knew how on bad days I started to see it as us and them, and not empathize the way I should.

But, what it did give me, what I needed more than anything that day, was to be reminded that a) it ain't just me out there and b) the way I feel today is normal and ok, what I do is important, what I do is a big part of who I am, and as long as I don't give up, I'm allowed to have a bad day or two.

Yes you are.
Thanks for that.


My most recent Op-Ed

Today's Los Angeles Times has my most recent Op-Ed. This one on the demise of the exclusionary rule. It's called "Shredding a constitutional protection that isn't even used."

My First Bad Review...

Well it had to happen sometime. David W. Marston, a former United States Attorney, republican candidate for mayor of Philadelphia and now big firm member (Gibbons Del Deo, Corporate) has just published a review of INDEFENSIBLE this weekend in the Baltimore Sun.

Mr. Marston

Now having a former US Attorney who writes about the FBI review INDEFENSIBLE is a bit like asking James Dobson for his opinion of a Maplethorpe exhibit. Marston’s reaction isn’t particularly surprising, (though it’s always disappointing to learn that someone doesn’t love you). Indeed his criticisms are not only precisely what one would expect from a former prosecutor, but they actually nicely demonstrate why many prosecutors just aren’t my people. Basically, he can’t stand the tone, is appalled at the attacks on prosecutors and judges, and is perturbed by the lack of footnotes. Looking closely at the critique it becomes clear that Marston gets upset at any overt challenge to the existing power structure. Also predictably, Marston has trouble with the notion that the diagnosis of a malady doesn’t always necessitate a prescription.

Rather hilariously, Marson leads with an “Author’s note” attack, arguing that because I put made a small handful of changes to push the narrative along that the whole book is untrustworthy. He does this, I should add, while screwing up his own facts--the book ends after 1:00 A.M not 10:18 p.m, and it compasses far more than 12 hours. He therefore manages two identifiable factual errors in the second and third sentences of a 800 word review while attacking errors he can’t identify in a 95,000 word book. Marston follows up by asserting (wrongly) that INDEFENSIBLE is not a single day (it is). And concludes with no basis whatsoever that this seriously undermines the books critique.

Now that folks is a classic prosecutor argument. Yes, everything in the book may be true, but damn it, if something happened on a different date you should ignore the whole critique. Marston is also disturbed that there isn’t a bibliography. In this he sounds like my old, slightly senile U.S history teacher who used to hector nonsensically about sources. Um—what books or sources exactly should I have been citing? I wasn’t going to quote transcripts—if I did, Marston would have complained about naming client names and reported me to the disciplinary committee. Should I have included pages of “Feige day experience…” IBID…?” It just seems silly to me. I lived it, and if Marston isn’t willing to believe that, that’s his prerogative but “I don’t buy” it certainly doesn’t make for insightful critique. As for the Author’s note itself--had Marston turned in a memoir just weeks after the James Frey thing broke, I think he’d probably understand a bit better. But whatever. Taking a book down for including a conscientious authors’ note is a bit like calling a soldier a “pussy” for wearing an extra flak jacket.

As for his other quibbles, Marston hates that I’m late and seems mortified that I don’t wear a watch. Then again, prosecutors far more than defense lawyers are likely to be praised in their wedding toasts for being “punctual”.

Marston take umbrage too at my description of Dewey Ballentine the fancy law I worked at one summer. He writes that my description is a “ bizarre metaphor.” Now look, I don’t mean to quibble, but if you’re going to review books, you should be at least minimally in command of what a metaphor is. This isn’t one. I explain that Dewey proves a point Foucault makes in Discipline and Punish about social control. Most anyone who knows the book would understand this, and most everyone else would understand that analogy and metaphor are different things. Besides the one time I actually cite a source, Marston attacks—so much for that bibliography argument.

Now make no mistake about it—I welcome criticism, even by former prosecutors (Tom McKenna, a frequent sparring partner over at Seeking Justice actually just posted an interesting review charmingly titled Giving the Devil His Due) and some who have read the book have legitimate quarrels with my point of view and with my writing. Bring that on. I actually like it and even learn from it. But when you ask a guy who thinks like Marson to critique a book like this, I do think that the likely result is what we got--a bunch of picayune quibbles without a substantive basis beyond “you didn’t show your work.” And that’s too bad for all of us.


Skelly's fascinating reaction...

So Skelly at Arbitrary and Capricious has read the book and described it as Indefensible: a love story.

Skelly's blog photo...

Now I have to admit: this is not how I'd ever imagined the book, but I must also say that this is what good criticism/interesting reaction is all about. I think he's right in a sense. Though I never set out to do it, and am a bit mortified by it, Indefensible really is, in some way a romance--my romance--with the entire endeavor of being a PD.

So thanks Skelly--for the wonderful blog and the interesting insight.
(Just PLEASE never post that horrible picture again...)


Lost in the system--and with no prior convictions...

This, you just gotta read.

Wonderful Party...

There are times I look around and can't believe how lucky am. Often it's as simple as being grateful to live in New York City, or to have the life I have, but there are also times like last night where I'm overwhelmed by the kindness of my friends and family and moved by the importance of Public Defender work.

I had my book party last night, in a hip club on 21st street. The kind of place where indistrial light fixtures dangle from the ceiling and the furniture is all faux Phillipe Starke Actually, it was a book party for me and fundraiser for The Bronx Defenders--and it was wonderful. The room was filled with this great mix of people--PD's (the entire office was there) criminal defense lawyers and even one judge who had the courage to show up despite the apparent no-show judicial solidarity policy. The bar was open, the food was bountiful, and the place was, well, rockin.

And among the posse of do-gooders and true believers, there was this amazing contingent of friends and family all of whom were so loving and supportive and sweet it took my breath away. It was, I think, the first time I started to really enjoy the post-book release process, the first time I could get away from being nervous about all the reviews that weren't being written and the shows that didn't want to talk about the book. Obviously a few drinks helped, but the truth is, I was finally able to relax, and look around and feel like I'd done something worthwhile with this book, and to believe that it really had touched a few lives, fannned a few flames, and spoken truth to power.

Now if only this little hangover would behave.


WKYU Radio Interview

Broadcast this morning on Kentucky Public Radio and again this afternoon, here is a link to an interview I did while at the DPA conference.


Faith and Indigent Defense...

Greetings from Erlanger Kentucky,
Or more accurately, the Airport Holiday Inn herein Erlanger where the Kentucky Department of Public Advocacy is having its annual training.

Yes there really are fake plants and a cute fountain...

Having just finished signing some books, and having about 45 minutes before my lecture on eyewitness identification I have a few seconds to sit back and admire the amazingly hard work that PD's around the country do.

Last night, the conservative governor of Kentucky, Ernie Fletcher showed up to give a short speech at the DPA awards banquet. To my amazement, the governor spoke compellingly about the need for indigent defense work and (and put his money where his mouth is adding 6.2 million dollars to the DPA budget). Fletcher told a story of a homeless man admitted to the ER years ago when he was an attending physician. On the admit slip, under diagnosis, someone had written: "Admitted for the dignity of humanity." The governor was quite clear that his interest in the subject was a matter of deep christian faith, and I found myself wrestling with the implications of that...

Quite interesting all in all.


One week in print...

It's been a week since my book was published and like most authors, I find myself trying to make sense of the crazily exaggerated ups and downs.

One quick anecdote: I was on the subway a few days ago—the uptown “C” train to be exact, when a very pretty woman sits down next to me. I am struggling to keep my eyes on the New Yorker piece I'm reading, but I can't help noticing (No--not what you think) that she has pulled out the previous week’s New York Magazine and is flipping distractedly through it. Now I know that right there in the back of that very magazine is the Q&A I had done featuring a big old picture of my smiling mug.

“Oh man—“ I thought to myself, “I’m finally gonna have that crazy experience of not only having my picture in New York Magazine, but actually being recognized…” (Moi? Venal? You Betcha!) So there I am all atwitter as she finally turns the page, glances down, wrinkles her little nose slightly and, without so much a pause, flips to the following page (a cool picture from the 50’s of some longboard surfers catching a wave). We are already at 59th Street, just one stop from home and this is more than a week after the magazine has come out, and right there I'm seeing my chance at that movie experience slipping through my fingers.

There is a solid minute while I ponder.

And then, as the train hurtles through the dark tunnel, I very very gingerly give her a tap on the shoulder. “You just missed the best part of that whole issue.” I say as she looks at me perplexed—doing that understandable evaluation of whether or not I am a sex predator or pervert or something.

I pass it seems.

She gently offers me the magazine and I quickly flip back a few pages, indicating with my eyes that this is the important page.
“Thanks.” She says. And then smiling with recognition “Cool.”

The train rumbles to a stop. I get up.

“Thank you for letting me, make you, make my day.” I say.

She smiles--At least I think she does. And I get off the train.


Attila the Dunn

On Monday, Kate Dunn of Lexington will receive the Gideon Award from the Kentucky Department of Advocacy for her outstanding work on behalf of indigent clients. Congratulations Kate. I'll be there to celebrate.


The 411 on 323

Quite a day here in Indefensible land. Started off on Fox and Friends at 8:45 this morning where I had a friendly go round with the Fox news folks who were angling to get me to dime out a bunch of judges rather than focus on the larger problems in the system. I did some of that of course, but was generally pleased with the tenor of the conversation. Even nicer was the fact that sitting in the green room was a copy of the New York Times with my Op-Ed in it. Needless to say, I figured no one at Fox was ever going to crack the times, having several copies of the New York Post around. So I "borrowed" it.

Between the these two things my Amazon ranking (which I'm embarrassed to admit I watch quite carefully) soared to a all-time high of 323, and, even cooler, #1 on the Law charts. It was actually quite a thrill, if a rather childish one.

If I can pry my fingers from the refresh button, I'll post more soon.


More fun...

I must say, I'm feeling pretty good right now. Tomorrow morning, I'm doing Fox and Friends. And just as I'm doing my pre-interview, out of the blue I get an e-mail from my editor on the OpEd page of the NYT. It looks like the times is going to run an Op-Ed I wrote some time ago about about the pathetic Illinois study of sequential lineups.

Meanwhile, though it's clearly not quite ready for prime time, my new web design is up and if not quite running then at least close. Then of course I'm being flamed at Amazon by some juvenile prankster who has managed to actually boost my sales by creating controversy.
More soon.


Why do I travel again?

The lecture in Portland went well and I was feeling pretty good as I headed to the airport with my suit safely stowed and a half dozen lobsters packed in a blue cardboard box which sadly omitted the obvious "Live Lobsters" label. I was even early for a change--figuring I'd do some work at the airport thanks to WiFi.

And yet, as I was sitting comfortably in the lounge, I noticed an unusual number of people milling around the gate looking harried. A quick inquiry revealed that these were passengers from the previous flight and that the plane sitting outside the window was their plane not mine.

More time to work I thought...

Then they cancelled the earlier flight.

Then they re-booked everyone on mine and announced it'd be delayed 4 hours.

More time to work, I thought...

Then they cancelled my flight. And every flight to New York for the rest of the evening.

Then people went crazy. After much standing in line, I rented a car. I drove to Boston hoping to grab a shuttle or the late train. No dice. And then I drove home from Maine to the airport where I picked up my car and drove back home completely spent. "Why is it" I wondered somewhere in hour 5 of driving in the rain, "that I travel?"

I made it home eventually, and just in time to have the book officially published and after some sleep, to have a festive dinner replete with some vintage champagne I dug up. Adding to the sweetness, was the new review of the book in Entertainment Weekly which gives it (alone among all the 18 books reviewed in the issue) an "A". To put that in perspective consider that along with me in the issue was the new Updike Novel (a "C+") and Tom Zoellner's book about diamonds (a "B+").

So far a clean sweep for all published reviews.

Hopefully that's a streak that will continue.



Pretty much every time I travel I wonder why I don't do it more. Sure, I'm blogging from the sort of 'cool' coffee shop one could find in almost any american city, and yes, I'm drinking only a slight variant of the iced decaf I'd get at home. There are pretty women in fashionably tight shirts and men with canny disaffected looks and in a way it all seems very familiar. but strewn on the table is the Portland Forecaster and the Portland Phoenix with a headline blaring "Hot wet and out of control" Portland in 2106--global warming local impact... And outside, I can get fried belly clams (I will soon) and walk down old cobble-stoned streets while still getting my e-mail and smelling the salt air. It's the perfect combination of familiar and new, connected and novel.

Note to self: Just say yes to anything involving travel.