Curses Foley'ed Again...

This is astonishing. Big republican congressman grandstands on kid-porn issues, while cybering with underage pages.

Mr. Strip off the Boxers

I rarely ever want anyone to go to prison, but here, the schadenfreude overwhelms me.


Podcast Moi...

Just click here to get a podcast of my appearance on The Leonard Lopate Show!


Hearts and Minds...

We'll come back to the fact that Andy Fastow was sentenced to just 6 years for his role at Enron...


In the meantime though, it's nice to be able to bring you (along with the usual yammering) this lovely post...esoteric appeal:

"Indefensible :
Anyone who has talked with me about my possible carreer paths in law has likely heard me use the phrase "public defender" and "over my dead body" in the same sentence. One of my largest objections to that was that I know I'd get someone who deserved to be locked up in jail and have the key thrown away and I'd have issues providing the best possible defense for this guy.

Thursday David Feige came to Northeastern to talk about his book, Indefensible: One Lawyer's Journey into the Inferno of American Justice. He spent 15 years as a public defender. During his presentation (which was amazing) he said that he never lost a night's sleep defending someone who was guilty, so I asked him about it during the Q+A. So he told us about George.

George was the worst person he ever defended, and he defended him twice. George would hold taxi drivers up at gun point and steal their radios. George would threaten David and David's co-workers. George would not plead down his charges. David said two things that really got to me about George. The first was that you can't feel bad getting this guy off if the DA can't prove their case. Him stealing would be nothing compared to the legal system failing in convicting a man on evidence less than a reasonable doubt. The second thing he said to me was that each and every one of these people, however sociopathic, are humans. You spend enough time with them to realize this and as soon as you don't recognize them as human you are doing yourself a great injustice, but the injustice you are doing them is much much worse.

I bought his book and will read it whenever I get the chance, I'm also going to look into a Co-op in PDs office."

Now I remember why I run around doing these lectures, and why, in the end I wrote the book.
One heart at a time.


Go Green...

As it turns out, going green is easy. So easy, in fact that I just switched and I encourage all readers to do the same. With the deregulation of energy, comes choice, and to my delight (having just found out about this program) for literally one cent more per kilowatt hour, you can insure that your share of energy consumption comes from renewable, zero emissions grid.

You even get a tax break.

If you live in NY, all you have to do is
by click here and sign up. If you're not in NY, click here to see your options.

So Switch. It's painless and it's righteous.


Hello Harvard...

Sorry for the lack of posts--I've been up giving a little talk at Harvard Law School.

Be back soon. Meanwhile, consider this:

One of the architects of the new indigent defense system in New Orleans faces a contempt hearing -- and possibly jail time -- after Criminal District Judge Frank Marullo on Wednesday ruled Steve Singer did not comply with his order to swiftly appoint lawyers to three defendants facing death penalty charges.

Marullo had called Singer into his courtroom Wednesday morning to explain who would take over the three capital cases on his docket, which include a first-degree murder charge and two cases of aggravated rape of a child younger than 12.

The previously appointed lawyers for all three defendants recently quit the Orleans Parish Indigent Defender Program after its newly appointed board decided to no longer allow its lawyers to have private practices on the side. The new policy requires all public defenders in New Orleans to be full-time staff attorneys.

Tough going down there....


I'm not 'Dowdy'!

Great stuff. Here's the must read coverage from the NY Daily News

I got sued...

Newsday and a number of other papers are reporting that I've been sued by former ADA Sara Schall. And though I haven't yet been served with papers, I do, thanks to the lovely reporters, have a sense of what she alleges.

Oh my--if ever there were a pathetic vanity suit this is it. She's actually suing me because I called her "dowdy" I mean get serious. Leaving aside that I think she is dowdy, you can't actually sue people for that. It's almost hilarious. I know you think I'm kidding but the lawsuit actually says Ms. Schall "took great care with her personal appearance and grooming." How awesome is that?

Oh, hey, don't bother googling her--there's no picture available so you can't even judge for yourself.

Anyway, what's really going on here is that she, along with many others doesn't like the fact that INDEFENSIBLE reveals the systemic and personal shortcoming of justice in the Bronx. This is all about the fact that I've written a book that tells it like it is, and done it while naming names. It seems pretty clear that Ms. Schall just can't stand being called out and my guess is that she's just horrified that her actions have been brought to light. She also seems to forget that truth is an absolute defense.


Doing it right...

I spend a lot of time railing about the awful press coverage our clients get. So I feel as if it's only fair to give credit where credit is due.

In this case, to CARA BUCKLEY for this excellent piece. I suspect Buckley is a stringer (given that she has just a few more solo NYT Bylines than I do). And my sense is that she's someone who mostly chases down otherwise overlooked crime stories. Nonetheless, this is an excellent example of what happens when someone is willing to look beyond the crime, at the client beneath.

Well done.

Body washes up on 'CSI: Miami' set

Houston, we've got a floater...


Remembrances of things past

Yesterday provided some serious parallax. Watching the same coverage five years later got me thinking. I’d gone back over some of the things I’d been writing and thinking back then, and I have to say, I was astonished.

Among the most surprising, was an exchange I had with Jack Shafer, the brilliant media critic and then deputy editor of SLATE, in early December 2001. It was almost immediately after Bush had first proposed establishing Military Tribunals-- before Gitmo, before Hamdan, before all of it. Back then I’d pitched a piece that argued that the reasons proffered by the administration were nonsense--that the real reason behind the tribunals was to legitimate torture.

I pitched that piece to several places. No one would run it. I found it interesting to look back—not only at my old AOL address, and my cranky style, but also because of just how credulous even the skeptics at serious media outlets were back then. Here’s the exchange…


From: DavidF
Sent: Sunday, December 09, 2001 12:43 PM
To: Judith S
Subject: The Torture Conundrum...


I'd like to do a piece that argues that what the tribunals are about is
not safeguarding secrets about terrorism but making torture a part of
the legal process--that they were created to do an end run around the
evidentiary rules barring the admission of coerced confessions.



-----Original Message-----
From: Jack Shafer
Sent: Monday, December 10, 2001 1:21 PM
To: Judith S Michael K
Subject: RE: David Feige on military tribunals

Does he have anything more than speculation to go on?


From: David F
Sent: Monday, December 10, 2001 8:08 PM
To: Jack Shafer []
Subject: RE: David Feige on military tribunals

It is precisely because we are not allowed to know any concrete details
that some speculation is necessary. However my thinking in this is not
whimsical. I have spent over a decade watching the criminal justice
system make allowances for bad facts (though none as bad as the tragic
deaths of thousands of innocents). I have a good sense of the
deviousness of prosecutors and cops especially when they believe they
are in the right and justified in their actions.

And of course, beyond my own experience, I base my opinion on the


1. The N.Y. Times, The London Times and the Washington Post ran articles suggesting that the FBI was actually considering torture back at the end of October.


2. Not too long afterwards the justice department established the
military tribunal system. It is designed to both to protect our secrets
and to insulate our methods from outside (including judicial) scrutiny.
One of the main features of its design is to essentially suspend the
traditional rules of evidence--almost certainly allowing the FBI to
cross the traditional borders in interrogation tactics and still
successfully prosecute.

It is a terrifying but not illogical leap to argue what I believe--that
this is much more about keeping our abuses out of the public eye than
keeping our secrets out of our enemy's hands.


-----Original Message-----
From: Jack Shafer []
Sent: Tues. Dec. 11, 2001 11:16 AM
To: DavidF
Cc: Judith S; Michael K
Subject: RE: David Feige on military tribunals

Isn't the easier explanation for military courts that the evidentiary standards are lower, the juries aren't made out of civilians, and, primarily, that the offenses violate military codes and not just criminal ones -- not that the courts want to beat confessions out of the accused? Wasn't all of the talk about torture that you cite in the context of preventing another 9-11, not in securing convictions?
I'm all ears, by the way. So drop me another line if you want to discuss this.



From: DavidF
Sent: Tuesday, December 11, 2001 5:20 PM
To: Jack Shafer
Cc: Judith S; Michael K
Subject: Re: Military Tribunals


I'd love to bend your ear about it--so read on or give a call.

You are absolutely right--those are the easier explanations--and
sensible ones to boot which is precisely why they are proffered by the
administration. However, most don't stand up particularly well under
closer scrutiny.

You are right to suggest that 'the evidentiary standards are
lower'--that's exactly the point. What kind of evidence would be
inadmissible in a traditional trial that could come in at a military
tribunal? Almost exclusively this type of confession evidence and
evidence derived from it. Sure there are certain instances in which the
government gets into trouble because it doesn't want to give up a
particular informant (this causes confrontation problems). But time
after time, they have successfully prosecuted people in those
situations--sometimes by requiring judges to be security cleared before
hearing the evidence, and sometimes finding other ways to protect their
informants, including in the deportation context, the use of secret
evidence. But it's important to note that even in the secret evidence
cases, Judges are involved and appellate review is possible.
Interestingly, as the Times reported yesterday, what has been most
striking about the secret evidence cases is just how flimsy the secrets
turn o ut to be--often little more than hearsay or innuendo.

Also, as far as 'the offenses violate military codes and not just
criminal ones' rationale, the key words are 'not just'. I can't think
of an offense that is not already a crime under existing law that would
be covered by a military tribunal--not a one. All the crimes, drugs,
violence, money--all are currently illegal. The sweep of the criminal
law is already vast--and if not vast enough, it is a simple enough
matter to pass a quick bill making some other conduct illegal, without
changing the entire system. So the degree to which the codes are
already co-extensive, coupled with the ease of passing some additional
handy criminal statute, undermines that argument.

And yes, the talk was exactly about preventing another 9-11, but they
also understood that they were stuck--between prevention and
prosecution. They know they couldn't have both under the old system.
They were desperate to do whatever had to be done to prevent another
9-11 but also realized that as soon as a decent lawyer got into the
case, if they were in a traditional court they'd be out of luck. No
judge is going to say the constitution sanctions torture--even in these
circumstances. And thus regrettably, the defendant goes free. I was
never suggesting that courts want to beat confessions out of suspected
terrorists--only that they want to use torture if necessary to get
information without jeopardizing their ability to prosecute.

So on balance, I remain convinced that this was a significant factor in
deciding to take the gigantic leap to military tribunals.

Be well.


From: Jack S
Sent: Wed. Dec. 12th 2001 4:27
To: David F
Cc: Judith S; Michael K

Subject: RE: David Feige on military tribunals


I'm not sure I follow you. Just because the rules are different in
military court doesn't automatically mean that the defendants can't
receive a just trial. In France, for example, evidentiary rules in
criminal cases are a lot less liberal than ours and trials are by
judges, not juries. Is your argument that because it's easier to make a
case in military court that they'll be more prone to torturing suspects?

Lastly, do play devil's advocate for Ashcroft, would you accord full
Miranda rights to all war crime suspects. To, Mr. Hitler, for example?

From: David F
Sent: Tuesday, December 16, 2001 10:54 am
To: Jack S
Cc: Judith S; Michael K

Subject: re: Re: Military Tribunals


My argument is both more radical and more limited than you suggest. I actually believe that military tribunals were created to allow torture. But it’s not because the military is a bunch of sadistic psycho’s looking to exploit lax rules of evidence. I fear I’ve not made the causal relationship clear.

It is not that military tribunals were created and now I am afraid that because of their lax evidentiary rules agents are going to wail away on suspects in the future. Rather, I believe military tribunals were created because agents believed that they needed to wail away in order to gather intelligence, but didn’t want to sacrifice the potential for prosecution. The torture was, in all likelihood going to happen. The tribunal is the legitimizing force—the whitewash created to allow them to do what they believed they needed to do.

Under the new regime, agents are more likely to use illegal methods of interrogation, but more perniciously, they are much more likely to get away with it. We didn’t like the rules because we couldn’t do what we wanted. So we changed them.

I’m not naively wed to the status quo. Sure the French do things differently, and many places rely on a corps of professional judges to hear cases. That’s all great. But they are nonetheless public proceedings with a right to confrontation and appeal. (And BTW, even the French don’t allow coerced confessions.)

Remember how appalled we all were about Lori Berrenson’s trial by some military judges sitting behind a screen? It just felt like a farce. No one pretended to think it was fair. In that context, we had no compunction about questioning or even deriding the supposedly legal protections afforded the accused. And now we seek to duplicate that system. There has to be a reason. It’s clear we are able to legitimately prosecute terrorists and willing to bend the rules—look at today’s decision to try Massoui in a normal criminal court, but do so in the jurisdiction most likely to hand down the death penalty. But what do we do when no judge will sanction what we do? Simple—change the rules, and get rid of those pesky judges.

As for Hitler or Bin Laden; Of course the rules change in wartime and we are able to kill people without legal process. That’s no problem. Hitler is a tough case because his crimes were international war crimes committed during war and not on American soil. That’s why there was Nuremberg. And hey, you want rights and legal protections. I’ll take Nuremberg over Military tribunals any day.

Bin Laden, on the other hand is easy. He’s involved in a domestic mass murder conspiracy. If he is caught and returned here for trial, of course he should be afforded all of the rights we afford any accused criminal. People get so wrapped up in the process they forget that it works. If you think that there is a jury of 12 people in this country that will acquit Bin Laden, you are more of a cynic than even I. His fate is sealed. Why invalidate a process that is basically guaranteed to work?


Even now it's amazing to me that no one would run the piece.
I think it was just this collective desire to believe the administration in our time of national crisis.
Tragic, I think that my paranoia turned out to be prescient.


Five Years...

I have to say, it is hard to believe that it's been five years since I watched the twin towers fall down. The memory is astonishingly crisp. I was standing on a pier on the Hudson river, peering through binoculars, and talking, paradoxically, to my father. As we were lamenting the unfolding tragedy, I watched—both horrified and fascinated as each of the twin towers vanished.

I should have just gone home, but I didn’t. Instead unlike the stream of people filling the sidewalks heading north, I went south. I don’t know exactly what drew me downtown—perhaps I thought that feeling the soot in my lungs or feeling the debris underfoot would make me actually believe what I had just seen—help me understand that the buildings which filled me with awe were gone. That the plaza I used to lie in—staring up, the towers so tall they seemed to bend toward each other, was also gone, an entire ice age passing in a second, utterly changing the world it passed through.

But I went, downtown anyway past Times Square where hundreds of people spilled into the streets eyes on the NASDQ jumbotron, and past Penn Station where thousands of commuters milled around shaking their heads. 80 blocks down—south of canal street.

Down there, just beyond the police lines, the damage took on an earie cast. Planters were knocked over—small pine trees littered the ground. Several inches of soot covered everything and the dust in the air refracted the light making it seem hazy and yellow. There were charred papers everywhere—like a half incinerated tickertape parade had just passed me by. Other than police and firefighters, it was desolate.

An abandoned fruit cart stood alone at the corner of church and chambers. The block was empty, but the fruit still sat perfectly arranged. Plums and bananas peaches and grapes, all covered with a thin layer of soot—a dirty snowfall obscuring the dusty purple of the plums. A single small loafer lay not far away. I don’t know what it was about the fruit cart, but seeing it seemed to bring the enormity of the destruction into sharp focus. The foolishness of my long walk was suddenly very very evident. The dust swirled, a policeman shouted, and I turned to start the long walk home.


When Prosecutors Misbehave...

I know I'm a bit late on this, but it's the sort of thing that is just taylor made for Indefensible. According to this report out of Minnesota the Minnesota Supreme Court has reversed a conviction citing prosecutorial misconduct on an "unprecedented" scale. The Prosecutor, then-Clay County Attorney Lisa Borgen compromised the case by improperly commenting on the defendant's credibility, inflaming the jury's passion, intentionally misstating evidence and making other missteps the high court said.

The Shameful Lisa Borgden

So what else did she do? She made 15 references to an alleged prior shoot-out between the defendant and the victim that was never actually proven to have occurred.

And what happened to her after this stunning slap down? She's a judge, of course.

Hat Tip to Public Defender Stuff.

Another Huff Post...

Today brings a short Huffington Post involving a Q & A with renowned feminist (and friend) Katha Pollitt. Katha's new book Virginity or Death! was published last month and is very much worth a read.



A good series on PD's

The Los Angeles Times is running a week long series about a public defender. This one much better than that old one about burned-out Charlie from Florida. In fact this is shaping up to be a great read.

Ramiro Cisneros--the subject of the LA Times series.

I must admit though, as I read it, I hear strange echoes of the book. As it turns out, while the words are often different, the experiences detailed here are remarkably similar to my own. There is, in the end a nice universality to our struggle.

Still, despite being thrilled they're running this series, in the end, I can't help but be disappointed that a paper willing to devote this much ink to the issue couldn't be bothered reviewing Indefensible...



Ah The Sweet Smell of Policy Success

Afghanistan’s opium harvest this year has reached the highest levels ever recorded, showing an increase of almost 50 percent from last year. According to a recent report.

This year’s harvest will be around 6,100 metric tons of opium — a staggering 92 percent of total world supply. It exceeds global consumption by 30 percent,”

He said the harvest increased by 49 percent from the year before, and it drastically outpaced the previous record of 4,600 metric tons, set in 1999 while the Taliban governed the country.


Amazon Francais? Oui!

Ok, Indulge me. I think that the fact you can get INDEFENSIBLE on French Amazon is super cool! Click here if you don't believe me

Even Better? Le Prix : EUR 20,83

Détails sur le produit
Relié: 276 pages
Editeur : Little Brown and Company (Jui 2006)
Langue: Anglais
ISBN: 031615623X
Dimensions (en cm): 2 x 17 x 24
Classement parmi les ventes 24,060 en Livres en anglais
(Éditeurs : Améliorez vos ventes)

Overpaid and overindulged...

How much do we think Mandy, Brian, Brittany and Ben give to charity?

Ah, it's time for my annual trip to the associate pay vomitorium.

In today's times, Ellen Rosen breathlessly discusses the fact that first year associates at big New York firms now start at 145,000 per year and that doesn't generally include a bonus which can add another five figures. Now it's not so much that I begrudge them the money, instead it's the reverence with which the times treats the absurd sums and the entitlement expressed by the 20-something recipients of the law firm largesse that really pisses me off.

The truth is, associate salaries aren't actually a proxy for skill or ability if they were, they wouldn't be about what a justice of the United States Supreme Court makes, or about twice as much as I made as the Trial Chief of one of the best public defender offices in the country. And while I don't regret a day of the nearly 15 years I spent being a PD, I am disturbed at what I think are the deeply perverse incentive structures that salaries like this create.