Federal Prosecutor Indicted...

Former U.S. Attorney Richard Convertino has been indicted in connection with Detroit’s ill-fated 2003 terrorism trial. The former prosecutor, and a State Department employee who served as a chief government witness were each indicted on charges of conspiracy and obstruction of justice. The grand jury charged that they had conspired to conceal evidence about photographs of a military hospital in Jordan that was the supposed target of a terrorist plot by the Detroit defendants.

Convertino--the now indicted Former Federal Prosecutor

Interestingly, the times reports that "The indictment lays blame for the collapse of the case against the terrorism suspects at the feet of Mr. Convertino and Mr. Smith. It said the two men conspired "to present false evidence at trial and to conceal inconsistent and potentially damaging evidence from the defendants."

But an investigation by The New York Times published in October 2004 found that senior officials at the Justice Department knew of problems in the case yet still pushed for an aggressive prosecution.

An internal Justice Department memorandum prepared in Washington before the 2002 indictments of the men acknowledged that the evidence was "somewhat weak," that the case relied on a single informant with "some baggage," and that there was no clear link to terrorist groups."

It's also nice to remember that this was the same case in which, according to the times, "The opening of the government's indictment against the terror suspects, drafted by prosecutors in Washington, appeared to have been lifted almost verbatim from a scholarly article on Islamic fundamentalism. And Mr. Ashcroft was rebuked by the Detroit judge hearing the case for publicly asserting — in error — that the defendants were suspected of having advance knowledge of the Sept. 11 attacks."

So who exactly is waging jihad on whom?


4 x 4 fun...

Continuing my adventures in Canyonlands, far from the tumult of the Bronx, my family (in this case dad, sister Lara, her husband Shawn, their two year old and Shawn's parents) rented two jeeps and headed off into Canyonlands to do some rugged driving. The highlight of the trip was the decent down a 1400 foot cliff along a series of steep switchbacks. Here's what it looked like.

Shafer Trail

I must say, it is absolutely beautiful here.
So they need public defenders in remote parts of Utah?

Moussaoui, Undermining Case, Now Ties Himself to 9/11

"Zacarias Moussaoui, who is facing the death penalty for the Sept. 11, 2001, terrorist attacks, took the witness stand in his own defense Monday, only to bolster the government's case by unhesitatingly acknowledging the charges in the indictment against him and adding a few new, self-incriminating statements.

Mr. Moussaoui said he knew in advance of Al Qaeda's plans to fly jetliners into the World Trade Center and asserted that his role on that day was to have been to fly another plane into the White House. He said he was to have been accompanied on the suicidal mission by Richard C. Reid, the so-called shoe bomber who was convicted in a separate failed effort to blow up a plane in flight."

Ok, the guy is crazy and has a death wish. So does that mean we kill him?
I still say no.
Moreover, I stand by my earlier prediction (see March 6th) that he won't get the death penalty despite his asking for it.


Where I am...

About 20 miles from Moab Utah.
Just a short hop from Canyonlands National Park and Arches National Park.
Places where it looks like this at sunset:


After some work, a few days of R&R before my lecture in Asheville.
It's good to be me.


The Cover is up...

Some book news:

1. The cover of the book is finally up on Amazon.

2. Galleys are printed and look kind of cool. I'm told they've already been sent out for reviewers.

3. Jami Floyd, the host of Court TV's the best defense just finished the book and offered this blurb...

Jami Floyd

“A must read for anyone who cares about American justice. Indefensible is a gripping journey into the dark world of crime and criminals. Feige not only gives us a blow-by-blow account of how criminal justice actually works, but guides us toward a more sensible and just system in the future. What results is a uniquely honest and passionate account of life and law from a dedicated lawyer who holds nothing back.”

So far so good...


Imagine my surpise...

When I learned that Doreen Boxer, a former colleague from the Legal Aid Society was just named the first woman public defender in San Bernardino County California. Doreen was a good lawyer back in the early 90's when I started and has obviously kicked some serious ass since. She'll oversee a $24 million dollar program and a staff of about 200 people.

John Roth--the former PD that Doreen is replacing...

So let's see, Kathleen Rice is now the DA in Nassau, Doreen Boxer is the PD of San Bernardino and me? I'm clearly getting old.


In Black and White...

According to the NYT, A rash of recent studies have demonstrated again what most of us already know: "Black men in the United States face a far more dire situation than is portrayed by common employment and education statistics,and it has worsened in recent years even as an economic boom and a welfare overhaul have brought gains to black women and other groups."

Why? "First, the high rate of incarceration and attendant flood of former offenders into neighborhoods have become major impediments. Men with criminal records tend to be shunned by employers, and young blacks with clean records suffer by association, studies have found."

Add this to what we know about policing strategies and arrest patterns and I think some people could be excused for seeing in these tea leaves a vast (maybe even right wing) conspiracy.


Good to be me...

So as the comments about the Slate piece filter in (thus far more good than bad), I spent the day doing something I may love more than anything else. Skiing. 'Twas a perfect day if you love fresh snow and empty lifts (ok and near-white-out conditions at the top). I got fresh tracks all day.

Not my actual tracks but close

I skied like a complete lunatic, and several times today I actually had that peak ski experience--deep, steep (steeper than the picture above anyway) and straight--leaving perfect lines on otherwise untouched chutes.

Ah heaven.
I'll meander back to criminal justice after a beer and a shower...(The Tankleff case is going to make me blow a gasket)


A New Slate Article

Thanks to a quick writing binge on tuesday night and unusual lucidity on the plane yesterday, I have a new piece on Slate.

It makes the case that what was unusual about what Carla Martin did in the Moussaoui case was that she did it by e-mail, thus making it undeniable. This really isn't about what she did (prosecutors do it all the time) but that fact that she left an electronic trail.

By any other name...

There is a reason I love public defenders, friends and readers so much. In response to my earlier posting about the vaguely legal dust-up over a story in the book about a lawyer who went off on a judge, I've gotten a number of e-mails and a few comments. And you, my friends and readers are essentially unanimous in your advice. "Take the high road" seems to be the overwhelming sentiment. Judy tells me to avoid righteous indignation, and Windy actually wants me to call and make peace.

So thanks all--I appreciate the fact that you all encourage the emergence of my better self. And you'll be pleased to know that I did decide to take the high road. While the story is in there, I didn't just change her name, I omitted names completely--sticking with "a lawyer I once knew." I even took out details that might have been painful. And then, once again, I went to bed feeling good. I was actually considering Windy's advice and thinking I might just make that reassuring call.

But the saga continues...

The lawyer called again.

This time, though he suggested that we might be able to put this whole thing to rest if I were to send the revised version to him so his client could tinker with it. Now I might have read it to her had she called me directly--after all I was willing to do that initially, but after all this, to hand over the text to the subject of the story just seemed stupid, and the truth of the matter was, once again, I felt like my good intentions had been misunderstood and my good will squandered. I said no.

So that's where we are. I don't hurt her at all (even though based on the record that would be unbelievably easy to do) nor do I identify her. But I wind up leaving this whole episode regretting that I bothered to try to do something nice. Or maybe just disgusted at the way people throw the weight of their entitlement and privilege around. She'd have made more headway by just being cordial, but the truth is, as anny points out, she's probably just scared. Still, had I just published she'd have been hurt but wouldn't have had any legitimate claim against me anyhow. So maybe in the final analysis the lesson here is that wasn't worth trying. Then again, as all of you point out, taking the high road needs to be it's own reward.

Thanks for the e-mails and comments...


Off to MSNBC...

I'm heading off to MSNBC to the Rita Cosby show.


We'll be talking about the Littlejohn case sometime between 9 and 10.
And I'm not wearing a tie.

Pride and Predjudice...

So the last few days have been a nice mix of festive and frustrating. Festive because the book is essentially done and gone, and frustrating because of a little encounter with another lawyer...

In the book I had a little story (I mean tiny) about a woman who went off on a judge. She was a decent lawyer and dedicated to her clients and I didn't really want to hurt her feelings or surprise her and so just because I was feeling all sweet, I called her to let her know what was up. Now let's be clear, the story I recounted was exactly as I'd heard it from several sources, I'd corroborated a part of it by getting the pertinent numbers and it was portrayed very sweetly in the book as something I not only understood, but in a certain sense, admired. Anyway, I had been thinking about changing her name just because I liked her but figured I'd call just to see whether she had really strong feelings about it...

Suffice to say she was far from thrilled and almost immediately started maneuvering. I've made a good life far from that whole thing, please don't dredge it back up was the most compelling argument. And listening to her talk about her life now, I was feeling bad and thinking well I guess I'll change it, and then she started to shift rhetorical gears and started in on a line that went something like this: I have connections, I know lots of lawyers, and what you heard is wrong. I have the transcript...

Well, say I, by all means, if you think it's wrong and you want me to correct it, just send me the transcript and of course, I'd be happy to change it. She refused (which might tell you something). Whatever. I hung up figured that on balance there was no need to make her so unhappy and so last night I went back and took her name and all her identifying details out of the book.

I then go to sleep thinking i've been sweet, and figuring I'll call her in the morning and tell her not to worry about it.

I never made that call.

Because before I could, my lawyer at the publishing house gets a call from some fancy media lawyer who is being all aggressive and trying to bully his way into taking the whole incident out. (And that's not gonna happen) But I've already taken her name and all the identifying details out of it and so now I'm peeved that she's trying to bully me and worse, that at the end of the day, something I did to be sweet, will come across as a victory for some hard blowing tall building lawyer with nary a leg to stand on.

The weird thing is that I felt nothing but kindness about the whole thing until she got a lawyer to be all pushy and entitled. I mean I'm not an idiot--filing some kind of suit would be the worst thing in the world for her--given that it'd make public and relevant all the personnel records, disciplinary hearings and other bad things that might exist concerning the incident . So why, I wonder, use the hammer when the supplicant's sweetness would have been so much more effective?

So now I'm sitting around trying to tame my pugilistic nature, and let the sweetness reign rather than give in to my vindictive inclination to put her name back in, along with the (clearly identified as such) rumors, the arrest number, the charges, and what happened to her afterwards. Hell, when you want to lay low why would you threaten? Especially when there's a record of an arrest and a transcript that you want to keep under wraps that has (thus far) never been circulated? I dunno. Just seems weird to me, and so self-defeating. Gosh.

So I think I'm still inclined to take the high road on this one but I have to admit it's a much tougher call now.

So readers, what would you do?

Ah, the best intentions gone awry.


The Mayfield Mishap

Remember when the FBI wrongly arrested Brandon Mayfield after claiming that his prints had been found on a bag of detonators related to the Madrid train bombing? (you can read the piece I wrote about it for Slate here)


Well DOJ has finally released it's report about the case. You can find the PDF here. As it turns out, even according to DOJ, the Patriot act is partly to blame for the fiasco. Both because it dismantled the walls between intelligence and criminal investigators and partly because of it's scarily low standards for the use of National Security Letters.

The result: in the chilling language of the report: "After Mayfield was arrested on the material witness warrant and the Court denied his request to be released to home detention, the USMS assigned Mayfield to be confined at the MCDC. From May 6 until May 12, he was housed in the administrative segregation unit where he was kept in his cell for up to 22 hours per day. "

The report goes on to note though "We found that Mayfield's conditions of confinement did not violate the material witness statute. We also did not find evidence that Mayfield was mistreated during his confinement. We found that he was housed under conditions that were consistent with the normal practices of the USMS and the MCDC for criminal defendants and material witnesses. "


Gotta love this headline...

This from Today's Law Journal:

Judge: No Separate Laws for 'Successful' People

"The state does not have separate, more flexible criminal laws governing the actions of the wealthy, a judge in Brooklyn, N.Y., has ruled."

Thanks for the news flash Judge. Now get real.

Thanks to O for the tip.


Unjust Desserts…

Some 40 years after Vietnam, despite an offer of clemency from President Ford and a pardon by President Carter, a marine unit is rounding up Vietnam war deserters and throwing them in jail. That’s right Mr. President…

In a feat of almost unimaginable hypocrisy, the military is going after Vietnam era deserters in an attempt to decrease the current desertion rate (there are now more than 8,000 deserters from the war in Iraq).

This guy, for example, spent 5 months in jail—four of them in solitary before being released without disciplinary charges. For more on this you can click here


Zack is back, and other musings...

Three items of interest, and one prediction:

Item One: Parental notification laws do not seem to have a significant effect on abortion rates. A New York Times analysis of the states that enacted laws from 1995 to 2004 — most of which had low abortion rates to begin with — found no evidence that the laws had a significant impact on the number of minors who got pregnant, or, once pregnant, the number who had abortions. A separate analysis considered whether the existence or absence of a law could be used to predict whether abortions went up or down. It could not.

Item Two: Prisoner Lawsuits may soon be toast. Cert was just granted in three consolidated cases that could have a huge (and not very good) impact on prison condition litigation.

Item Three, "A federal prosecutor asked a jury this morning to sentence Zacarias Moussaoui to death, saying that his willful decision to conceal his knowledge of the Sept. 11 terrorist plot when he was arrested weeks earlier makes him responsible for the thousands of deaths on that day."

Prediction: I think this is a bunch of crap, and no matter how disruptive and looney Moussaoui may be, I believe (contrary to everyone else in the world it seems) that a jury--even a Virginia jury will most likely sentence him to life rather than death in a stinging rebuke to the Federal Government. You heard it here (and only here) first. Hope springs eternal.


Cool Book News...

The last few weeks have been spent getting "blurbs" --those little quotes that go on the back of the book. The exciting part of this is that people (just a few) are finally reading the book--or at least the manuscript. Here's a recent one from Professor Charles Ogletree

"Indefensible is a tour de force! It offers an exploration of a little known culture of our criminal justice system and is unapologetic in telling it like it is. This book leaves no subject untouched in canvassing a young public defender's work in the gritty criminal courts of New York. You won’t be able to put it down.”

—Charles J. Ogletree, Jr., Harvard Law School Jesse Climenko Professor of Law and the Executive Director of the Charles Hamilton Houston Institute for Race and Justice, author of All Deliberate Speed

I just HAD to post that on Oscar night.


The rich guarding the poor...

"At the historic San Quentin State Prison near San Francisco, one out of five guards was paid more than $100,000 last year." according to this report.

Around the entire state of California, one out of every 10 rank and file CO's were making over 100 grand a year. Average base pay is 57,000 a year (far more than we pay our public defenders mind you).

And despite it's dire financial condition, California spent $$277 million last year on guard overtime. Seems like a poor resource allocation decision to me.


Pregnant Inmates Shackled During Labor

"'Though these are pregnant women,' said Dina Tyler, a spokeswoman for the Arkansas Department of Corrections, 'they are still convicted felons, and sometimes violent in nature. There have been instances when we've had a female inmate try to hurt hospital staff during delivery.

'Dee Ann Newell, who has taught classes in prenatal care and parenting for female prisoners in Arkansas for 15 years, said she found the practice of shackling women in labor appalling. 'If you have ever seen a woman have a baby,' Ms. Newell said, 'you know we squirm. We move around.'

Twenty-three state corrections departments, along with the federal Bureau of Prisons, have policies that expressly allow restraints during labor, according to a report by Amnesty International U.S.A. on Wednesday"

"This is the perfect example of rule-following at the expense of common sense," said William F. Schulz, the executive director of Amnesty International U.S.A. "It's almost as stupid as shackling someone in a coma."


Ethnic Courts...

Attacking what he called racial and ethnic segregation, the Phoenix district attorney filed a federal lawsuit yesterday against Arizona court programs set up to provide treatment for Spanish-speaking and Indian drunken-driving offenders."

Phoenix DA Andrew Thomas

The programs are not actually courts. They are probation programs that steer people to therapy and other treatment in an effort to combat alcohol addiction, though a judge may impose jail or other sanctions for people who violate the terms.

What does he really care about? Mr. Thomas, a Republican, said he acted out of an obligation to uphold the Constitution. But then, of course he let the real deal slip, saying the Spanish-language and Indian courts had resulted in disparate treatment among offenders, with defendants in the special courts receiving lighter penalties for violating probation.

Ah, that's what this is about.