Stop Jailing the Juvies...

Though this is really not the kind of study you'd think anyone would actually need, I'm glad that the Justice Policy Institute has done the study that shows what all of us in the system already know: "rather than promoting public safety, detention — the pretrial “jailing” of youth not yet found delinquent — may contribute to future offenses. Studies from around the country show that incarcerated youth have higher recidivism rates than youth supervised in other kinds of settings."

Here's the core finding: "Detention is widely misapplied, according to the report by the Justice Policy Institute, a Washington, D.C.-based group that studies adult and juvenile justice policies. Although detention facilities are meant to temporarily house those youth who are likely to re-offend before their trial or who are unlikely to appear for their court date, many of the youth in this country’s 769 detention centers do not meet these criteria. Seventy percent of youth in detention are held for nonviolent charges. More than two-thirds are charged with property offenses, public order offenses, technical probation violations, or status offenses (like running away or breaking curfew). Youth of color are impacted disproportionately by the overuse of detention. In 2003, African-American youth were detained at a rate 4.5 times higher than whites; and Latino youth were detained at twice the rate of whites. In the same year, black youth were four times more likely to be incarcerated in Louisiana than whites and received longer dispositions than white youth even though there was little difference in the severity of offenses committed or in prior offense histories.

“Not only does inappropriately detaining youth cost taxpayers millions of dollars a year, but the overuse of detention generally does not make our communities any safer,” said Bart Lubow, head of JDAI (Juvenile Detention Alternatives Initiative), a project of the Annie E. Casey Foundation that works to build better futures for disadvantaged children and their families. “Across the country, jurisdictions are looking for more effective policies and practices to promote community safety and better outcomes for youth. JDAI sites have reduced adolescent detention, strengthened juvenile justice systems and saved money -- all without compromising public safety."



Yet another exoneration. And this one too comes with a lesson about the faulty mechanics of the criminal justice system. According to the AP:

Marlon Pendleton was cleared by DNA tests that the original lab analyst refused to conduct. ''It was no surprise to me,'' Pendleton, 49, told the Chicago Tribune on Thursday in an interview at the Dixon Correctional Center. ''I always knew I was innocent.'' Pendleton demanded DNA testing after his arrest, but police lab analyst Pamela Fish. said there wasn't enough genetic material to test the evidence. Pendleton was convicted based on the victim's identification.

The expert who conducted the new tests said he was surprised at Fish's report ''because I found a reasonable amount of DNA.'' Fish's work has been challenged in the past. In one case, Fish -- who no longer works for the police department -- testified that semen found on a body could have belonged to three defendants. A DNA expert later examined Fish's notes and said they showed none of the four men had a blood type matching the samples.



The things people say...

Ok, I just had to link to this Editorial from the Lexington Herald-Leader. The headline? "Hippies still trying to ruin the country." Yes, I'm serious. Read it, and savor the passages like [Hippies believe that]"...America's armed forces are neo-Nazi stormtroopers who delight in burning babies to further the aims of imperialistic corporations." Really.

The screed was written by a woman named Jenean McBrearty.

I believe this is her...

Here's another bit of her thinking: "For aging hippies, it's easier to keep blaming old enemies than to confront new ones, especially the young and ruthless. Hating a military-industrial complex is safer and less tiring. It's less complicated -- and less dangerous... Their BAWL (Buddha-Allah-Wicca-Lenin) is better than some old Judeo-Christian God.

In their heart of hearts, lefty loonies do want America to lose in Iraq and every military theater. They want outside enemies to accomplish quickly the demolition of American capitalism, using the violence the lefty loonies are too old, too scared and too well-invested to use."

After savoring her love, feel free to contact the author. She's at: jeneanmacb@hotmail.com


Perv-cop to ho: Strip!

Ok, so I'm tempted to start an occasional feature in which readers can submit NY Post-style headlines (like the one above) for hilarious or oddball criminal justice stories. So in that vein, I bring you this story, and invite you to write up your own headline...

MANCHESTER, N.J. -- A police officer who claimed he was conducting his own prostitution sting and strip search ended up being the one arrested.

Authorities arrested James Michael Jackson, a police officer with the state Department of Human Services, and charged him with sexual assault and sexual misconduct for the so-called sting. Jackson, 34, of Toms River, arranged through a service for a woman to meet him Wednesday at a local hotel in Manchester. When she arrived, Jackson, carrying a badge and gun, told her she was under arrest. He made her take off her clothes and consent to a body cavity search before letting her go, said Ocean County Assistant Prosecutor Martin Anton.

As a police officer, Jackson had authority to make arrests, but not through an undercover operation of his own, Anton said.


Smack--A republican abandons ship...

State Senator Sam Kitzenberg switched parties yesterday, abandoning the GOP and shifting the balance of power in the Montana State Legislature toward the democrats.

According to the Billings Gazette Kitzenberg said he's not the same person he was when he came to the Legislature 12 years ago, and that he's more sympathetic toward "the people without in Montana." He noted that 20 percent of Montanans have no health insurance and that thousands of children and other Montanans go to bed hungry.

When asked why he didn't run as a Democrat in 2004, Kitzenberg said he'd thought about it, but that a Democrat filed to run against him, so he ran again as a Republican.


Happy travels...

After a whirlwind trip to Seattle to speak at the Washington State Bar Association, I'm heading home again. I'd forgotten what a wonderful city this is--full of cool bars and great seafood. From my hotel room, I can see Pudget Sound, the space needle and the (San Juan?) mountains in the background. It didn't hurt that yesterday was one of the only clear days this month. I also got to see a hero of mine, Paula Deutsch--who if you've read the book you know all about, Anyway, she is now a federal public defender here in Seattle and as inspiring as ever. All in all a fine trip.


German Prosecutor Investigating Rumsfeld

The times reports that aGerman Prosecutor has been asked to investigate Rumsfeld: "Emboldened by the resignation last week of Secretary of Defense Donald H. Rumsfeld, lawyers today asked a German prosecutor to investigate Mr. Rumsfeld on allegations of war crimes, stemming from the treatment of prisoners held in military jails in Iraq and at Gitmo."

The lawsuit is ambitious, naming not only Mr. Rumsfeld and Mr. Gonzales, but also John C. Yoo and Jay S. Bybee, two former Justice Department lawyers who helped draft the Bush administration’s legal arguments for treatment of suspected terrorists. It also names Lt. Gen. Ricardo S. Sanchez, the military’s former commander in Iraq. Brig. Gen. Janis L. Karpinski, who commanded Abu Ghraib and was punished for the abuses there, has offered to testify.


He's Baaaack....

Darius McCollum, a man continually being arrested for crimes involving trains is back in jail again.

Darius represents everything that is wrong with our criminal justice system. We lock people up without dealing with the underlying problems. Instead of promise we see predator, instead of harnessing what could have been a benign obsession, we layer prison sentence after prison sentence, ignoring the human story in favor of a pathetic mechanistic approach to criminal justice that costs the taxpayers a fortune and gets society absolutely nothing.

Darius is obsessed with trains, he’s loved them almost since birth, and driven them since age 15, when he made headlines by driving an E train from Herald Square to the World Trade Center. His love of the transit system though has proven unhealthy--over the years Darius has been arrested 18 times for transit related crimes.

Darius has been diagnosed with Asperger’s syndrome—a disorder in which sufferers can become obsessed with particular topics, often exhibiting, as Darius does, an astonishing level of expertise. This significant fact didn’t come up until rather recently though-- when it was brought to the attention of the presiding judge who last sentenced Darius. Despite the fact nothing Darius has done has ever caused an injury or even recklessly endangered anyone, at that sentencing, in 2001, Justice Carol Berkman wasted no time in deriding Darius, ignoring the Aspergers and sentencing him to 2 1/2 to 5 years in state prison.

In ‘Catch me if you can’ Steven Spielberg’s 2002 blockbuster based on the true story of con artist Frank Abagnale Jr., a buttoned down G-man played by Tom Hanks, stalks and eventually arrests a daring and inventive check forger played by the ever limber Leonardo Dicpario. The film, set in the late 60’s and early 70’s probes the emergent bonds between cop and crook, delicately delving into the minds and humanity of each of the fundamentally isolated characters.

It is, in fact isolation that binds Abagnale, and his pursuer Carl Hanratty in their five year pas-de–deux replete with daring escapes, complex mind games and Christmas eve heart to hearts. And in the end, after forging nearly 2 million dollars in checks, and posing as a doctor, lawyer and an airline pilot it is Abagnale whose pathological dedication to his craft wins our hearts and, ultimately, Carl’s.

Abagnale goes to jail, of course, but the second act of his career, the one culminating in a book and a Spielberg biopic, results from his pursuer’s intervention—the Federal Bureau of Investigation gives him a job catching other crooks—the perfect use for an otherwise imperfect passion.

Darius McCollum is, in a sense, the Frank Abagnale Jr. of the train yards.
Darius, like Frank, started young in crime. Since his original foray, back when he was a student in a technical high school, Darius has been arrested over and over invariably for transit related offenses. He has at one time or another impersonated a conductor, a motorman and a superintendent. He has put out track fires, helped out flag crews and helped inspect malfunctioning trains for debris. His knowledge of the transit system is encyclopedic and legendary. Darius is as much the trainman’s trainman as Abagnale was a forger’s forger. And yet there is a critical difference between them.

Frank Abagnale’s forgery netted him nearly two million dollars—money swindled from others which he used to support a lavish lifestyle of fancy cars, high culture and world travel. Darius, on the other hand had none of these amenities. He was once charged with attempted grand larceny—the charge relating to a vehicle he signed out and back in again precisely according to procedure. There was no fine wine, fast car, or world travel for Darius McCollum—just gritty days cleaning and prepping busses at far flung depots, or directing traffic and repairing electrical boxes in the gloomy semi-darkness far below the ground.

After being sentenced for his crimes, Frank Abagnale, was granted early parole at age 26. For the $2 million dollars in bad checks, and multiple escape attempts, he spent just under five years behind bars. Following his release, he got job with the FBI. Darius McCollum is 39 years old. He has spent nearly a third of his life behind bars

Perhaps it’s the glamorized world of the biopic, but maybe Frank Abagnale did reap the benefits of a better time—one in which we understood the malleable boundary between lonely cop and accomplished criminal. A time when we were willing to allow for the possibility that someone could cross over that line. Perhaps it’s that Frank Abagnale was glamorous and white, while Darius is a pudgy African American. Or perhaps it is because being a forger and an escape artist is just sexier than impersonating a transit worker. But Darius McCollum is back in jail having never been given a chance to put his passion to work on the right side of the law—having been branded a criminal early, the system ignored a dozen chances to break the cycle of offense and incarceration—simply by giving Darius a job with the Transit Authority. We’ve never even tried, and for that we are all to blame. It seems that Darius’ McCollum’s life of incarceration begs the self same question that Frank Abagnale’s posed and answered some 30 years ago.

Red (R)over Red (R)over let blue states come over...

Here's a nice piece about howKarl Rove got it all wrong.

The no longer laughing Mr. Rove

As Newsweek reports it... "Rove's miscalculations began well before election night. The polls and pundits pointed to a Democratic sweep, but Rove dismissed them all. In public, he predicted outright victory... Rove believed his 'metrics' were far superior to plain old polls...Rove thought the polls were obsolete because they relied on home telephones in an age of do-not-call lists and cell phones. Based on his models, he forecast a loss of 12 to 14 seats in the House, enough to hang on to the majority. Rove placed so much faith in his figures that, after the elections, he planned to convene a panel of Republican political scientists in order to study just how wrong the polls were"

Oops. My bad.



Just wanted to give a nod to PrisonSucks.com whose research and statistics on the prison industrial complex are just outstanding. Their Prison Policy Initiaive and Prisoners of the Census sections are excellent, as are some of the stats. Here's one I happen to like: In South Africa under apartheid (1993) Black males: were incarcerated at a rate of 851 per 100,000. And in the U.S. under George W. Bush (2004) that rate was 4,919 per 100,000.

Westward Ho...

After finally getting my first full week at home in NYC since August, I'm hitting the road next week--this time do a CLE in Seattle.

This one--put on by the charming people at the Young Lawyers Division of the Washington State Bar Association has some cool panels on Eyewitness Identification (in which I get to go at it with Mark Larson the Chief Criminal Deputy of the King County Prosecutor's Office) Kid Witnesses, Confrontation and all sorts of other things public defenders and criminal lawyers find groovy.

I'm actually looking forward to the CLE and to making good use of my new favorite toy, and, of course lugging home some excellent King Salmon.

No--I didn't catch this one (though I could probably eat it).


Now THAT's a happy meal!

Two police officers sued Burger King because, they claim they were served pot burgers.

Yes indeed while the rest of us were gripped with Election fever (I was up until three chanting at the television like a lunatic) this little tidbit came over the wire...

Mark Landavazo and Henry Gabaldon, two uniformed cops say they were riding in a marked patrol car when they bought meals at the drive-through lane October 8 of a Burger King restaurant in Los Lunas, New Mexico.

The AP reports that "The officers ate about half of their burgers before discovering marijuana on the meat, the lawsuit said. They used a field test kit to confirm the substance was pot, then went to a hospital for medical evaluations."

Medical Evaluation? Dude, just hit the doughnut shop...


You could be a private lawyer!

I just don't know what it is about legal journalists reporting on public defenders. They just can't seem to help themselves from being condescending twits. We PD's know full well how the world looks down upon us. We live with families, friends and even clients who assume that we're only doing the work because we couldn't get a better job. But somehow, it continues to rankle when the chattering classes (whom we'd like to think know better) also fall prey to this.

Tony Mauro

Here's a perfect and egregious example: In today's Legal Times, Tony Mauro writes about Frances Forsman, the federal defender of Nevada who just argued Whorton v. Bockting concerning the retroactivity of Crawford v. Washington . The headline is "SELF-DESCRIBED 'OLD HIPPIE' WINS HIGH PRAISE IN HIGH COURT DEBUT" The entire article is about what a brilliant argument Forsman made. Indeed, despite the fact that, as Mauro notes "Supreme Court justices are notoriously stingy with praise for the lawyers arguing before them." Mauro recounts that "As Foreseman's half hour was about to end, Justice Stevens leaned forward and said, "May I ask you a personal question? Were you a moot court finalist?" Startled, Forsman said she was not. Stevens replied, "I attended a moot court at Notre Dame in about your year and it was an awfully good moot court." The audience laughed, but it was clearly a compliment."

Impressive indeed. So what does Mauro want to know about this impressive advocate (who he notes has also led the Nevada state bar and taught trial advocacy at UNLV's law school?) Well, here's what he sees fit to close his piece with--perhaps the most offensive, demeaning, condescending and obnoxious question he could possibly ask. "Oh no" you may be thinking, "He didn't!" oh yes he did. The one place Mauro injects himself into the piece as posing a question, this is what he asked:

"Has the Stevens compliment resulted in job offers from the private sector yet?"

That's right folks. If you're a public defender, it doesn't actually matter what you do or what you accomplish. Summa Cum Laude from Harvard? (several current Bronx Defenders) Supreme Court Clerk? (a friend who went to PDS) President of your state bar association? (Forsman) Law professor? (lots of us) or Brilliant Supreme Court Advocate? None of it makes any difference to the idiots out there who simply can't grasp that some people might actually want to do the righteous work pf being a public defender for reasons having nothing to do with the money. It just doesn't compute. People still think that PD's are where they are not by choice, but because they just couldn't get a better job.

When is Mauro going to do the breathless profile of the new class of Bronx Defenders most of whom graduated from top law schools and clerked at the Federal Appellate Level who turned down jobs at the highest paying firms in the country to come work in the Bronx? When will it occur to him to write about the lawyers who have left Paul Weiss to join us as PD's? Sadly, probably never.

A tragic loss--Frank Dunham Jr.

The world should have have more crusaders like Frank Dunham. He was a brilliant lawyer, (he was the Federal Public Defender that personally argued Hamdi) and a wonderful and engaging person. In our strange line of work, there is a certain extraordinary honor in being described in the headline of an obit as someone who "defended terrorism suspects' rights" but that is what Frank did, and did brilliantly.

We're all better for his passion.

Here he is defending Zacarias Moussaoui


Betting the house...

Check out this graph of futures trades on the GOP control of the House...
The market seems to like the democrats...

6th Circuit Shame

Adam Liptak is right on this one:

Defense lawyers in capital cases are often criticized for conducting superficial investigations of their clients’ backgrounds, but Ferdinand Radolovich’s performance in a Kentucky case, one that ended in a death sentence, may have set a new standard.

“Apparently,” a federal judge wrote in 2001, “neither attorney Radolovich nor the prosecution knew of petitioner’s actual identity until his case had been affirmed on appeal.”

When he was later challenged about the quality of his work on the case, Mr. Radolovich testified that he was an accomplished death penalty lawyer at the time, having tried four capital cases. The real number was zero, the federal judge, Jennifer B. Coffman, found, and Mr. Radolovich has been indicted for perjury for his statement.

But none of this has helped the inmate in question, who was sent to death row as James Slaughter but whose real name is Jeffrey Leonard.

Yesterday in Cincinnati, splitting 7 to 7, the United States Court of Appeals for the Sixth Circuit declined to rehear the case.

For shame.