I'll show you mine if...

This astonishing story is a perfect coda to a year of awful criminal justice stories. It turns out that our bizarre sex obsession in not limited to posting cops in airport stalls to play footsie.

These days, Columbus, Ohio is posting topless sunbathers in public parks to flirt with guys. After some sexy chatty fun, the babe asks to see the junk in the trunk. Whip it out though, and you get arrested. GENIUS!! More sex perverts to prosecute!!! Really and truly. It makes me sad for the state of our union.


Is Judge Alemán an "Evil Unfair Witch" and is it wrong to say it?

So one thing is very clear. A lot of people don't like Broward Circuit Judge Cheryl Alemán. Her temper and tempermemnt have been the subject of so many complaints that she is now essentially on trial as a result.

Witch Judge?

Now a strange side note to this whole thing is that one of the lawyers who complained about her, now may lose his license for a blog entry he wrote. It seems that in Broward county, the only thing worse than having injudicious judges who appear capricious and vindictive (and hold lawyers in contempt), is actually saying something about them.

Another hilarious bit: it appears that one of the judges who came to Judge Aleman's defense by testifying for her was none other than Judge Eileen O'Connor who I have posted about here, here and here (for you regular blog readers, she was the judge who tried to sentence a potential juror to 4 months in jail).

This whole episode shines a very unflattering light of what passes for justice in Florida. I supposed I shouldn't be surprised to learn that both these petty tyrannical jurists were appointed by Jeb Bush. Still, it does makes me wonder what is wrong with Broward County and with the judicial system down there.


Bronx Bomb--New Courthouse Unfit for Use

As usual, it wasn't the community, nor the interests of Bronx residents that stopped today's move into the new Bronx hall of Justice. Instead it was some Bronx Supreme Court clerks and judges who halted the process.

And so goes the half a billion dollar boondoggle designed to streamline the incarceration of ever more poor Bronx residents.

See you in February...


Comedy Writers are Funny...

Among the funny WGA strike related things isthis Zagat-Style Guide To WGA Picketing Hit tip to the dazzling Nikki Finke.


Excellent News on Retroactivity

The US Sentencing Commission finally make crack reductions retroactive!

Vick Gets 23 Months, Black 6.5 Years

Michael Vickgot 23 months and a lecture today for dog fighting while Conrad Black got 6 1/2 years for his role in a multi-million dollar fraud. It was the same day the Supreme Court loosened the reins on federal judges, allowing them much broader discretion to sentence defendants to below guideline numbers. I've blogged before about how troubling I find the Vick case and the sentencing colloquy does nothing to dissipate my sense that the whole case is a travesty.


'Loony' lawyer in a Bronx courtroom

Yes indeed, according to the New York Daily News, Mark Brenner, the guy who sued me for saying he once kicked a client in open court "has been barred from taking any court-appointed work" Why? Because he kicked the client.

What I find amazing about this is that according to Brenner's lawyer the disciplinary committee investigated and cleared him. I find that strange since there were a number of eyewitnesses, (one of whom told me that Brenner admitted to kicking the guy) as well as the transcript (which as the article above suggests) makes totally clear he kicked the guy, not to mention a call to 911, and a complaint from the client himself.

So while we're on the subject of Brenner, It's also worth noting that every count of his suit against me has now been dismissed and I will not be surprised if, as a result of all this, he winds up disbarred. And of course there's also the little matter of a counter-suit.

Stay tuned.

On the picket lines...


Finally a Window into what Really Happens...

Recorded on a Suspect’s Hidden MP3 Player, a Bronx Detective Faces 12 Perjury Charges

Wow, a lying cop? A Bronx detective who falsely testifies about an interrogation? Say it isn't so!

This is the kind of story that should be required reading for manhattan jurors.


New Time for New Orleans?

Not if the judges there can help it. The stuff that's going on down there is absolutely unbelievable. Judges, used to doling out attorney assignments as patronage are getting pissy with the public defenders who have gone down there to try to fix the atrocious system.

Take Steve Singer for example:


He was held in contempt for helping an indigent client get a lawyer. And though the judges order was reversed, the Singer story tells you almost everything you need to know about a profoundly bankrupt system and the lengths it'll go to protect "the way they do things down there."


Here come the thought police...

A Wisconsin Teacher was arrested fora Blog Comment in which he praised columbine and yes, the police came a knockin' and the DA didn't just dismiss the case as absurd. Oy! What is this country coming to?


New York City Taxi Fare Finder

Ok, This is wickedly cool. It tells you how much the taxi fare should be from any two points in NYC, making it much easier to figure out if you've been scammed. (Which it turns out, I haven't)



A must watch...

World Bridge Championships...

This you won't believe!

These Women might be banned from Bridge for their sign.

Welcome to Conservative Correctness



World’s worst prosecutor smacked down by his own constituents

So it looks like one good thing happened this little-noticed election day. Comeuppance has finally come for Astoria Oregon Prosecutor Joshua Marquis, the staunch death penalty defender who has argued over the years that innocent people basically never get convicted and that even DNA exonerations don’t mean someone is actually innocent. Though the final tally is still unofficial, it seems that the residents of Clatsop County have defeated a ballot measure Mr. Marquis supported which sought to make him one of this highest paying DA’s in the state.

That’s right, a single issue ballot initiative. The issue: His salary.

Josh Marquis

The hysterical history of the proposal, tells you everything you need to know about Joshua Marquis and provides a pretty window into the particular mindset of a rabid prosecutor. Marquis, a small town DA with an big city ego ingratiated himself to media outlets around the country by seeming willing to defend almost any prosecutorial excess. This was probably a lot of fun and it all went well for a while. In part due to his burgeoning national profile Marquis was re-elected to be the DA of Clatsop County. But having national aspiration can also lead one to ignore the home fires, and after repeatedly failing to turn in required performance evaluations and being dogged by suggestions that he is “abusive to staff” his own county commissioners voted to stop paying him the stipend they traditionally awarded him on top of his state salary.

Now most people when they have their pay cut feel stung and many with some spine might either resign or come in to their bosses and say “hey, clearly you’re unhappy, so let’s figure out how to make this better.” But no. A guy who was trying to become president of the National Association of District Attorney’s isn’t gonna just get the message. (Marquis recently lost that presidential election, presumably because even a group of prosecutors doesn’t want someone quite as rabid as he is leading them). So what did Marquis do? The end around.

Marquis supported an effort to gather thousands of signatures in order to make a law saying that he should get more money. Instead of making peace with his commissioners, or trying to understand why they might be unhappy with his antics, he arrogantly believed the voters would just authorize a pay raise. This, as much as anything else Marquis has written or said provides genuine insight into his view of what the law is and how it is to be used. The law, he seems to think, is an instrument of his own personal advancement, and it is to be used for precisely those purposes. It isn’t hard to see why that’s a dangerous attitude in a prosecutor.

Thank heavens, the citizens of Clatsop County thought different.


The strike and the issues...

A must read post...

It's from Blonde Justice: and it's great.


It's the stock price stupid...

Want to end the strike? Figure out a way to hit the stock price.


Conservative Authors Sue Publisher

Ok, This is totally hilarious! My favorite bit is when the big conservative authors whine “Why is Regnery acting like a Marxist cartoon of a capitalist company?” Um, because they are. THis is what you get little workers. Shafted like the millions of hard working Americans whose labor you spit on, while extolling the virtue of corporations.

Gosh, I haven't had schadenfreude like this in a while.


Strike two...

Today, I walked a picket line for the first time since the ill-fated Legal Aid strike of 1993. Why am I on strike? Well, as a newly minted member of the Writer's Guild of America, it turns out we're striking because the guild has demanded a very small share of of the income generated from the distribution of content (jokes, drama, etc) over the internet. Just what a small chunk the guild wants is quite astonishing.

How much do you think the writer should get on the sale of a twenty dollar DVD? Pick a number and scroll down below the picture of my friend Randy and I on the line...

My Friend Randy Cohen and I on the line at NBC today

Ok, what did you guess? (leave your guesses in the comments section). The answer is that the writer gets about 4 cents. That's not 4 cents on the dollar, that's 4 cents total. And on internet stuff the producers offer is zero. Low, I think by anyone's standards.

Anyhow, I've got lots of thoughts about the picketing itself, but they'll have to wait for now...


Wacky judge jails PD for refusing to try a case he was just assigned

An Ohio judge has ordered the arrest of a county public defender.

Judge John Plough ordered sheriff's deputies Wednesday to take Assistant Public Defender Brian Jones into custody because he was not prepared to go to trial. He was held five hours before he was released on bond.

Judge Plough

The judge was pissed off even though the PD had only had the case for a day or two.

This is the second time Plough has ordered the arrest of a public defender, said Dennis Lager, the county's chief public defender. He said Plough also threatened to take similar action twice in 2006.

THis is how is goes...

Terrorism laws applied not to international terrorists, but to run of the mill murders I said it then and I'll say it again. It's a stupid useless state statute. Pass a nice sounding law, and all you do is give prosecutors more power.


Help Make Crack-2 Retroactive

While the Retroactivity for Crack Sentence Cuts is being Debated, here is something you can do!

Send a comment to the US sentencing Commission by November 1st.

You can write to:

United States Sentencing Commission
One Columbus Circle, NE, Suite 2-500, South Lobby
Washington, DC 20002-8002,
Attention: Public Affairs-Retroactivity.

Or just call Michael Courlander, Public Affairs Officer, (202) 502-4590.

Tell them to make the crack sentence modifications retroactive.


Smoked Signals...

Lexus Magazine--My Guide to American BBQ

Book review: "Indefensible"

Nice to know people are still reading and enjoying the book. This from just a few days ago.


Sheriff Joe Arpaio--Big Wimp

The vindictive petty sheriff himself...

So this guy actually had newspaper executives arrested. Really. Despite claiming to be "America's toughest jailer...

"I managed to uncover stories about deaths in Arpaio’s jails, assaults on inmates (including one paraplegic inmate whose neck was broken by sadistic guards), and the dirty tricks that “America’s Toughest Sheriff” aimed at his political opponents—despite the fact that Arpaio blocked every one of our (perfectly legal) public-records requests and fired employees whom he even suspected of speaking to New Times.

When I moved to New Times Los Angeles in 1999, John Dougherty returned to the Arpaio story and really turned up the heat. Though the constant parade of television journalists arriving breathless with admiration for Arpaio’s “courage” never slowed, Dougherty pressed ahead with the real story: that there has hardly been a more untrustworthy politician in Arizona, and perhaps in the rest of the country as well.

Taking advantage of post-9/11 privacy statutes, for example, Arpaio had convinced the county to remove from public view records of the million-dollar commercial real-estate transactions he was making. How, Dougherty wondered, was a modestly paid county sheriff making those kinds of deals? Arpaio blocked every attempt to answer that question, and then did something even more outrageous: He convinced the county attorney to charge New Times and Dougherty with a felony for including his home address in the Internet version of a story about his real-estate dealings."

What kind of cop...

Arrests someone for standing around in times square? Officer Momen Attia. Yep. He's a cop who arrested someone for standing in times square talking to some friends. Genius.


You know things are crazy when...

You find that the person on a panel making the most sense is former Manhattan ADA Linda Fairstein. But so it seems from this posting about a panel on "grey rape" which is, from what I can tell a cute new moniker used to describe something lighter than date rape but slightly shy of disappointing sex.

Fairstein the sensible?

Robert D. Laurino, chief assistant prosecutor for Essex County in New Jersey spoke absurdly of “undetected rapists — the small minority of men who have committed hundreds of rapes on campuses.” Such predators, he claimed often have “sophisticated strategies” for sexual exploitation that involve deceiving women into imbibing strong alcoholic beverages. Whoa! Where lurk these super-predators? In some Austin Powers movie?

The usual alarmists then trotted out the standard nonsense about how no one reports rapes and how they're the hardest cases to prove. Until it was, of all people the former head of the Manhattan DA's sex crimes unit who was left to talk some sense into the gaseous hysterical group. It was Fairstein who explained that "there is a higher rate of false reporting (about 9 to 10 percent) for acquaintance rape than for most other crimes." It was Fairstein who explained that contrary to the claims "The prosecution rate for rapes by strangers is “astoundingly high,” and it was Fairstein who concluded that "“Certainly, in the criminal justice system there’s no such thing as gray rape. Gray rape is not a new term and not a new experience. For journalists, it may be, but for those of us who had worked in advocacy or law enforcement, this description of something being in a gray area has been around all the time. It’s always been my job in law enforcement to separate out the facts.”

It's too bad that there wasn't a defense attorney or level headed person there to debunk the junk, but (and I never thought I'd say this since I almost always disagree with her) thank heavens Linda Fairstein was there to talk something resembling sense.


How many times do I have to say it?

"The expected obstruction of justice charges from the feds are related to Kerik's statements to Bronx prosecutors, the sources said."

I said it after Martha. But did the well-represented Bernard Kerik listen? No...

So let me try this again: Never talk to cops or prosecutors. Ever. Under any circumstances. Just say "I don't talk to cops or prosecutors. Only my lawyer does." Got that?

Never. Not Ever. Not for any reason. Period.


Ex - Prosecutor on Trial Over Withholding Documents

"A former federal prosecutor's ambition led him to withhold evidence that could have helped the defense during the nation's first major terrorism trial after the Sept. 11 attacks...surprise? Hardly.

What is both sad and hilarious is that this guy is now a defense attorney.
Here's his website: A conversion a bit late in the coming if you ask me.


Deputy Shooter...

Wisconsin Deputy Sheriff sought after six kisd shot at a house party...


U.S. Prosecutor Held in a Child Sex Sting Kills Himself

Someday someone will realize: There are no 10 year old kids out there looking for sex--only twisted undercover cops and nut job vigilantes posing as little kids and mastering the use of emoticons. You'd think an Assistant United States Attorney would know as much.


We're all going to prison...

The police have raided an art exhibit, confiscating a famous photo owned by Elton John

'Klara and Edda Belly-Dancing'' is among 149 images comprising Nan Goldin's ''Thanksgiving'' installation.

Not the image in question

Northumbria police said the photo was taken from the BALTIC Center for Contemporary Art in Gateshead, northeastern England. They confirmed Tuesday that an image had been taken from an exhibit ''to assess whether or not an offense had been committed.''

Both Goldin and the gallery have declined to comment.

''The photograph exists as part of the installation as a whole and has been widely published and exhibited throughout the world,'' the 60-year-old rocker said.

''It can be found in the monograph of Ms. Goldin's works entitled `The Devil's Playground' (Phaidon, 2003), has been offered for sale at Sotheby's New York in 2002 and 2004, and has previously been exhibited in Houston, London, Madrid, New York, Portugal, Warsaw and Zurich without any objections of which we are aware.''

And yet, at least here, according to current thinking, to look at it, or even to think about it might be criminal.

Gotcha ya.


The Magna Carta for sale...

Somehow it's fitting to me that in this day and age the Magna Carta Is for sale.


Convicted of an Uncharged Murder!

Kudos to Simple Justice for bringing us the inside tale of a how the system really works.

Let's see as SJ recounts it, the real story behind People v. Flores goes as follows:

In the normal course, the top count of depraved indifference murder was dismissed after the court inspected the grand jury minutes for sufficiency. So far, great. But from that point on, the case went downhill fast.

Nassau County DA Kathleen Rice--for shame!

The Assistant District Attorney wasn't very proud of this dismissal, so no one was told of it and the decision was buried in the file. The defense attorney never bothered to mention anything to his client, and was subsequently replaced by a new attorney, who never bothered to read the file for the decision on motions.

The Court Clerk who marked the count dismissed did so in the wrong place, the wrong side of the file jacket. When the case was sent to a new judge for trial, the new clerk looked in the correct place on the file jacket and saw nothing there. The trial judge never read the file and didn't know of the order dismissing the charge. And the prosecutor never bothered to mention anything to anyone as the case went to trial.

And so the case was tried, and the defendant convicted of murder. And no one knew. Well, not exactly no one, as the Nassau County ADA knew that he had gotten a conviction for a dismissed count, but he was npt about to screw up a good conviction by dredging up bad memories.

It took a court data input clerk, about a month after the conviction, to realize that something went wrong. Very wrong. So what does he do? As an employee of the court system, he naturally notifies the District Attorney (who else would he tell?). But this time, someone realizes that they have made a huge mistake and word spreads about the murder conviction on a dismissed count of an indictment.

And so, the Trial Judge promptly vacates the conviction and chastises all involved, himself included, for this shocking failure? No, no. The Trial Judge decides that it doesn't matter. A conviction is a conviction, even without a charge, and sentences the defendant to the maximum. For good measure, he maxes out the defendant on the lesser counts as well.


Thirty Million for the Duke Boys?

Thirty MIllion Dollars!

Normally I'm all for sticking it to the state when they screw up, but the Duke case is now officially out of control.
Nifong went to jail today. Fine. I can live with that, even though I believe he's a scapegoat and that his disbarment and jailing does more harm to the system by intimating that this sort of thing actually happens when prosecutors cheat when in fact most do it with impunity and never get caught or sanctioned. But now the times reports that "the three students he accused were in talks with the city for a settlement of $30 million "

Are you kidding me?

That's grotesque. The DA has now done more jail time than the kids. There are dozens of poor and yes, black exonerees who actually spent decades in prison or on death row for crimes they didn't commit and they get pittances. Why do these kids deserve 30 million dollars? (And this On top of the huge settlement Duke's almost certainly already paid?) What's happening here is just more big rich white daddy extortion. It's shameful.


DNA? We don't care about that round here...

This should shock you. Despite the DNA Test, a Prosecutor Is Retrying Case

After the DNA results came back in 2002, The defendant, Mr. Brewer was moved from death row to the county jail, where he stayed for five years. Why? Because Mr. Allgood the prosecutor was still seeking the death penalty, Mr. Brewer was not eligible for bail.

After the initial negative, Mr. Allgood tested the DNA found on the girl against that of two men who visited Mr. Brewer at the house the night of Christine’s disappearance. The men were not a match. He also ran a second test that excluded Mr. Brewer’s male relatives. But he did not run the profile against the state’s DNA database, saying in an interview that no such database exists.

That was a surprise to John M. Allen, the assistant director of the state crime laboratory, who said, “We’ve been up and running on our DNA database for years.”

Gotta love it.


So this is what it takes...

This great piece, called "Using Muscle to Improve Health Care for Prisoners" is a look at Robert Sillen, the man appointed by a Federal Court in California to deal with the prison health care crisis in the state. Here are a few choice bits:

"Mr. Sillen...attributed the state’s prison problems to tough-on-crime lawmakers who made political hay out of sentencing laws that filled the state prisons without expanding either the facilities or their services. He has a standard diatribe concerning the criminal justice system that includes issues like the neglect of poor neighborhoods and the lack of alcohol treatment programs. “I wouldn’t even be here if it weren’t for the politics,” Mr. Sillen said. “No one gets elected in Sacramento without a platform that says, ‘Let’s get rid of rapists, pedophiles and murderers.’ ”"

Good read.


Read by the judiciary?

A big hat tip to Grits for pointing to this article about blogs judges read. It was published in "Case-in-Point" the publication of the national judicial conference and lists, you guessed it, INDEFENSIBLE as one of the blogs judges interviewed for the article read.

Well thanks, and I have to say, I'm a bit surprised.

In other legal news, Michael Vick pled guilty today, insuring a prison sentence and risking a lengthy if not permanent ban from the NFL. Vick, of course is accused of hanging and beating weak fighting dogs to death. Now many of my opinions are wildly unpopular, but this may be even more so than usual.


Here's the thing: Almost everyone I talk to gets insane when they discuss this case. They want him in prison, they think a ban from the NFL is just. They seem to have less sympathy for a guy who tortures little doggies than even for some pedophiles. And yet, the irony of this position never seems to come up. I had a conversation about the case today over meatloaf. Really, with a group of lovely people, many of them wearing animal hides, and all of them scooping tortured animal into their mouths as they fulminated against evil Michael Vick.

Now sure, we're eating the animals we tortured and he was just beating the crap out of them for almost no reason at all, still, I can't help thinking that, once again, this guy is just the latest casualty of a puritanical culture of prosecution that is, ultimately, about what the Juvenal called way back in the first century, "bread and circuses."

Gonzales could get say in states' executions

This guy decides who dies?

Given that he's shown himself at best incompetent and at worst a perjurer, it seems absurd to give Attorney General Alberto Gonzales "fast track authority" over state executions. But that's exactly what's happened.


Seattle's grace...

An audit by Seattle's city council found out what happens when you try to save money in indigent defense--you get what you pay for. Basically the problems with the new public defender program include lawyers in municipal court handling too many cases, not meeting with clients and providing representation that's pretty mediocre.

If lawyers are juggling too many cases, people accused of crimes "are not going to be getting adequate legal services," Nick Licata, the committee chairman, said this week. "Cases could drag on longer, and there's a greater chance of appeals down the road."

Duh. That's what you get when you shift cases from a respected office like the King County PD.


Secret's Out...

So I guess once something's in the Hollywood Reporter it's really no longer a secret. Or maybe it's just when you make it to Skelly . In either case, though I've been avoiding blogging about it, I think it's time to just come on out and admit that I'm now living in a little apartment in California with a view of palm trees and sand. When I open my window in the morning, I can actually hear the surf. And though this all feels very very far from my life as a PD, I'd like to think that though I'm not currently doing the hard work my colleagues are, I've still got a little something to give.

In this case, a TV show. One that, (if all goes well) might finally paint our clients as the complex human beings they are, show the complexities of our struggle for justice for the poor and disenfranchised, and maybe, just maybe, shed a little light on the cruel and capricious system we all spend our days fighting. A tall order perhaps, but hey, a hollywood writer can hope no?

Anyway, I figured I'd finally mention it since I think I'm actually getting over the fear that I'm in one very protracted episode of Punk'd.

Our pilot starts shooting in a few weeks and in the meantime, I'm learning what a DP is and what he does, talking to wardrobe people and scouting locations. Turns out a lot goes into making an hour of TV. It's all strange and very exciting. I'll blog about it more soon...


Bad ID's make bad cases. Doh!

Ah, innocence, so powerful, so publishable. In today's times, Adam Liptak discusses a Study of Wrongful Convictions and concludes, as does the author that "Professor Garrett’s study strongly suggests, that there are thousands of people serving long sentences for crimes they did not commit but who have no hope that DNA can clear them." You don't say?

Can't wait to see Josh Marquis debunk this one.


I won a prize!

Ok, not really a prize, but honorable mention.

The Literary Awards Committee of the Wisconsin Library Association (WLA) selected 10 books by Wisconsin authors for Outstanding Achievement. I'm one of them. Hey, it ain't the national book award, but it's still pretty cool.


PD's vs. CJA Lawyers?

It turns out the Public Defenders come out on top

"But the study concludes that lawyers paid by the hour are less qualified and let cases drag on and achieve worse results for their clients, including sentences that average eight months longer." A very interesting read.


Administration refuses to issue prison health report

According to Dr. Carmona, Bush's own Surgeon General, the administration is squelching a report on the inadequacies of our prison health care system...

“The correctional health care report is pointing out the inadequacies of health care within our correctional health care system,” he said. “It would force the government on a course of action to improve that.”

Because the administration does not want to spend more money on prisoners’ health care, the report has been delayed, Dr. Carmona said.

“For us, the science was pretty easy,” he said. “These people go back into the community and take diseases with them.” He added, “This is not about the crime. It’s about protecting the public.”

It doesn't get much more disgusting that that.


A Good Reason to Hate Billionaires

Meet Tom Perkins a guy who has spent 130 Million dollars building a yacht. He charges 440,000 bucks a WEEK to charter it, but Mr. Rich doesn't want to pay the taxes on it. Imagine that. A few months rent to support the system that made him rich is somehow abhorrent to him. The good news: He's not going to get to show off his obscene plaything in NY harbor lest he have to pony up the cash. Much like his yacht, he should be banned from this country for being a greedy pig.


Political Hiring in Civil Rights Division

This Washington Post expose is a must read.

More kindness...

Weird Pic huh? A google image of "kindness"

So this Slate piece is like the gift that keeps on giving. There are heated discussions about it on blogs (including LawProfs) and the amazon ranking for the book shot up crazily (and yes I really did check). And then today, just as I was feeling a bit blue (for reasons I'll omit here), I got an e-mail that really made my day. Here's what it said:

The day that your book appeared in my mailbox at work... I had ended a long week in court with a difficult judge. I got an envelope with your book and a note from my former training attorney that said he thought I could relate to what you went through and that you wrote well about the struggles of being a public defender....

I read your book in two days. I couldn't put it down. I started shouting out loud while I was reading at some points, I read entire paragraphs to my best friend here at the office, and I passed it along to another good friend here as soon as I was done. Your book reminded me that even hard-working, super-talented lawyers like you feel like case processors a lot of the time. It reminded me to appreciate the small victories. It made me want to go to work the next day and be a better lawyer.

Wow. It doesn't get much better than that.


A trial for Nancy Grace...

That very interesting wrongful death action against Nancy Gracegoes to Court.


I get mail....

I usually get some comments about my Slate pieces, but this last one must have struck a nerve. Leaving aside the huge number of posts and the rollicking debate in Slate’s “Fray”, I’ve personally received many more e-mails that usual. And while I’m sure that had something to do with posting my web address (thus making it easier to write) I’m beginning to think that these questions of prosecutorial misconduct have really hit a nerve.

So just for fun (and without attribution) here’s a lightly edited sample of the feedback I’ve gotten on the piece. Some good, some not so happy…

. . . . . . . . .

“As a former prosecutor, I read your Slate article, One-Off Offing, with interest. I agree with your statements that prosecutors are “afforded almost unparalleled discretion to do their jobs,” and that “young prosecutors too often see their goal as winning rather than doing justice.” But I must take issue with your statement that it is a “rare [state] case in which problems involving the withholding of potentially exculpatory evidence don’t arise.” Really? In my experience, the exact opposite is true. And in a small jurisdiction such as I served, the spotlight on the prosecutor to “win” a big case shines very brightly.

One other small point. Twice you refer to Evans, Seligmann and Finnerty as “boys.” In North Carolina juvenile cases involve children under the age of 16 who are delinquent and children under the age of 18 who are undisciplined, dependent, neglected, or abused. Evans, Seligmann and Finnerty are not “boys.” Why choose to identify them as such?”

. . . . . .

You are the man, what can I say. As usual, it needed to be said, and everyone is afraid to say it lest they be ostracized as crazy or biased. But you and I both know it's true that the type of crap Nifong pulled is standard operating procedure. The hypocrisy of vilifying this guy while keeping our heads in the sand on the larger issue is mind-boggling. Let's all go watch unlawful interrogations by the Good Guys on Law & Order! Ugh.

. . . . . .

Your Slate article about the Nifong disbarment was right on the money and should be distributed far and wide. I have spent my entire career (15 years in legal services and 21 as a public defender --- now doing only death cases) representing the poor, powerless and disliked (to say the least) and though I have seen the misconduct you wrote about, no prosecutor has even been reprimanded. Thanks for the article and keep up you good work.

. . . . . . . .

That was a very strong and troubling piece in Slate on prosecutors.

. . . . . . . . .

I just wanted to write and tell you that I thought your last Slate piece on the Nifong case was great. I have been saying much the same thing to our local media down here for the last couple of months. I also am enjoying your book very much (I was a public defender in San Francisco for a couple of years) and may assign it as my optional "book club" book for my 1L Criminal Law class next year.

. . . . . .

Sorry, but I thought it was an especially weak article that appeared in Slate today. There are number of factors that you don't mention or don't give sufficient weight to that at least weaken your major points. The two I would like to mention are: the egregious flim-flam that Nifong was running; and second, his motivation. Both of these in combination serve to ameliorate the otherwise wretched behavior of the legal profession and the press during the few weeks early in this case.

To consider motivation first: Nifong had 28 years in as a Durham County prosecutor, and was recently named to the DA position by the governor, an otherwise elective office. Mike's first action was to fire Freda Black, an assistant DA. When the Duke case broke, the primary season was in full swing in Durham with Mike showing a distant second to Freda in the
race for Democratic nominee for the DA's office. There was every likelihood that Freda would win the nomination and also win the pro forma election in the fall, and that her first act as DA would be to fire Mike. After 28 years. That was the motivation.

Egregious behavior: Nifong was so positive, so assertive, so graphic in his presentations to the press about what he knew and what the evidence would show, that even skeptics like myself thought he had the goods on the Duke lacrosse players. It was beyond imagination at the time that he could have behaved, not so badly, but so foolishly. If he didn't have the goods, we would find out eventually and he would be in serious trouble. We were assuming guilt until innocence was proven, on the basis of a trust in the DA. When the DNA tests came back showing 100% negative results, Nifong lost all trust. I think we have to give a pass to all those who acted in good faith in believing the district attorney. Nifong was acting out of desperation, and we couldn't appreciate how far he was capable of going.

I could say more but don't want to try your patience.

. . . . . .

I just read your piece in Slate. Outstanding, I agree 100%. I am looking foreword to your book, will pick it up locally. Thanks for a great read.

. . . . . . . . .

Your article was a fast read and it certainly resonates… I think that we've all learned a fair number of nasty problems in the CJ system over the last
1.25 years in a variety of problem areas. There were problems with
police misconduct in the Duke case as well and it is unclear as to whether these will come to any meaningful light…Not all of the students had the resources to fight the DA and some had to borrow it. Legal costs ran $80K per defendent per month and even a lot of upper-middle-class families would be stressed by the costs alone.

. . . . . . . .


My latest Slate piece...

Think the disbarment of Duke prosecutor will do any good? Think again.

Party Hacks--The New Immigration Judges

This new analysis of Bush's picks for immigration judge makes clear that instead of real qualifications, the administration uses ideology as the determinant in deciding who will be an immigration judge. will be an immigration judge

No longer blind or even visually impaired

Military Judges Dismiss Charges

Military Judges Dismiss Charges for 2 Detainees

Time to bring back Habeas Corpus.


Don't F***k with SUV's

A 13 year sentence for torching some SUV's to make a point about our environmental policy? Yep.
Give thanks to our beloved federal prosecutors.


$750 Semen Salad

How can you resist a headline like "Teen Sentenced for Semen Salad Dressing "?


Who Is a Rat?

This excellent Adam Liptak piece is worth a read. It's about the website Whosarat claims to be the internet's largest database of informants and undercover officers. Pretty clearly legal, (as it's based on public filings) this seems to me a lovely side effect of the government's consistent attempts to make criminal records and court cases available online to everyone. Of course the government is looking for ways to crack down on it and it's use.

Strangely as of the writing of this blog post, the website seems to be blocked (leaving me to wonder whether XICOM Technologies which seems to be doing the blocking is about to be hit with a very large lawsuit) but here's the old interface:

Uh-Oh Alberto...

In an ad in the Washington Post today, a number of his old Law School Classmates Criticize AG Alberto Gonzales.

In an open letter they say: "As lawyers, and as a matter of principle, we can no longer be silent about this administration’s consistent disdain for the liberties we hold dear,” those classmates said in a letter to Mr. Gonzales today. “Your failure to stand for the rule of law, particularly when faced with a president who makes the aggrandized claim of being a unitary executive, takes this country down a dangerous path.”

While I don't think you need to go to Harvard to understand this one, I'm glad a bunch of those who did, do.


Why the rich get richer...

The I.R.S. has curtailed many audits in tax havens because obstructionist rich people can make it too time consuming to force them to pay.

In one typical case, the I.R.S. spent four years investigating a person with businesses in both the United States and an unnamed overseas tax haven. The investigation included 20 summonses, 23 demands for documents, 5 missed appointments and 2 refusals by the person being investigated to supply information. After four years, the government still did not know how much money had been moved to the tax haven.


Table For One

My latest--a little contribution to the new Conde Nast business magazine. Portfolio .


Another defeat for prosecutors...

As everyone knows these are tough times in which to try a sex case. Particularly a case involving a previously convicted sex offender. Nonetheless, every once and again, a jury has the courage to acquit Perhaps the Duke is having an effect after all.

Click here to see if photo from America's Most Wanted now reads "Oops"



No forms, no loopholes, just an 'E-Z' tax

Whoo Hoo!
Go Daddy!

They just ignore the science they don't like...

A congressionally commissioned study on abstinence programs concludes that:

"Students who participated in sexual abstinence programs were just as likely to have sex as those who did not."

In fact, the data shows that "those who attended one of the four abstinence classes reviewed reported having similar numbers of sexual partners as those who did not attend the classes. And they first had sex about the same age as other students -- 14.9 years"

We spend almost 200 million dollars a year on these programs.

The Bush conclusion:

Officials said one lesson they learned from the study was that the abstinence message should be reinforced in subsequent years.


Another Innocent?

All five witnesses recant but the defendant is still in prison.


Still Guilty After All These Years - New York Times

Inthis outstanding Op-Ed Scott Turow, elegantly explains the importance of Statues of Limitation. I don't often finish a piece and think "hmmm...I've often made that point, but never quite as well." Here, that's exactly what I did. Give it a read.


What's next night time appointments?

This totally outrageous story explains how Bush misused the interim appointment power. In this case, he tried to bypass congressional approval claiming he could appoint Sam Fox, (a big fundraiser for the swift boat campaign) to an interim appointment because congress was in the middle of a one week recess.

What's next? Night time appointments? The claim that since congress wasn't in session at 4:00 a.m he can bypass them? Senator Chris Dodd's comment? "Bush's actions were "deceptive at best and illegal at worst." I'm inclined to go with the latter.


Someone with a name doesn't like me...

There's something very interesting and immediate about the reader reviews on Authors read them. Constantly. This is true of everyone I know who has written a book. The reader review forums give an author the sense that the book exists, that it's reaching an audience, and that they have real reactions to the work. The problem is that, the interface is constructed in a way that allows anonymous reviews to proliferate. The result of this is a skewing toward the extremes in which (the almost inevitable) angry people savage a book, while an author's friends don the guises of anonymity and heap praise upon their friends. And though I pretty much avoided asking anyone to write nice reviews believing that the democratic process would all sort itself out, I've certainly been asked, on occasion to contribute a nice blurb for a friend.

It's partly because of that skewing that the most recent Amazon reader review caught my attention. Unlike other negative reviews (many of which I believe were posted by a single disgruntled individual) this one used the amazon "Real Name" function, suggesting that there was actually someone willing to pan the book under his own name.

All this made me wonder (actually for the first time) what the numbers would look like if I considered in my self-evaluation, only people who were willing to sign their names to their reviews. Suffice to say, I wish I had thought of this calculational trick a long time ago.

As it turns out, by my quick count, of the 53 posted amazon reviews, 26 were from "real name" people. Of them, 24 of the 26 gave the book 5 stars and rave reviews, one gave it four stars and a nice review. The recent one star review (which was actually pretty nice aside for his hating the "liberal blather" of the book) was the only one from a "real" person. So thanks Mr. Johnson--for your candid views, your courage in signing your name, and by doing so, for giving me a new way to look at the reactions to the book.


Who Pays?

A DECISION by the Georgia Court of Appeals last week will spare the state’s cash-strapped public defender organization about $5 million annually, the group’s director said Friday.

A three-judge panel last week said that counties, and not the Georgia Public Defender Standards Council, were responsible for paying for trial transcripts needed for the council’s indigent clients to appeal their criminal convictions.

“If the counties had prevailed in this particular case, it would be a financial burden that we simply could not have survived,” said council director Mike Mears.

The ruling, said Mears, “is a ray of sunshine in an otherwise cloudy sky right now.”


Bush Hacks Interfered With Tobacco Case

In another outrageous story out of the politicized Bush Justice Department, The leader of the Justice Department team that prosecuted a landmark lawsuit against tobacco companies said yesterday that Bush administration political appointees repeatedly ordered her to take steps that weakened the government's racketeering case. They even ordered her to read verbatim a closing argument they had rewritten for her.


Woody Harrelson's Father Dies in Prison - New York Times

Charles Harrelson, died of a heart attack in the Supermax federal prison where he was serving two life sentences for the murder of a federal judge, officials said Wednesday.


Dahlia does it again

The most engaging legal journalism of the day comes, yet again, from Dahlia Lithwick at Slate (disclosure: She's my editor there and a great one.)

Just read this piece. You won't regret it.

Repositioning the Democrats...

Say what you will, republicans aren't stupid. Huffpo is reporting that in just a few hours prominent conservatives will launch an effort to restore civil liberties

Now this is all well and good but it suggests to me that the democrats have failed to sufficiently position themselves as "small government" when it comes to this stuff. Aparently, though the new conservative package will try to "restore congressional oversight and habeas corpus, end torture and extraordinary rendition, narrow the president's authority to designate 'enemy combatants,' prevent unconstitutional wiretaps, email and mail openings, protect journalists from prosecution under the Espionage Act, and more.'"

Just makes me sad that democrats aren't associated sufficiently with these obvious populist positions.


A part of the PATRIOT Act that must go...

The administration has long used the PATRIOT act to provide some camouflage and even legitimacy to it's loathsome and often unconstitutional activities. So it's high time that the democrats started looking to repeal some portions of it, starting with the Naming of Prosecutors. Mercifully it looks like that's where congress is finally headed.


Bag man Pete...

This excellent New York Times piece details the degree to which Republican senator Pete Domenici was responsible for the dismissal of United States attorney, David C. Iglesias.

Bag man Pete

Here's the good stuff: "Mr. Iglesias said he had believed that his bosses shared his view that United States attorneys should stay above the fray. “I thought I was insulated from politics,” he said in an interview. “But now I find out that main Justice was up to its eyeballs in partisan political maneuvering.”

Since his ouster, Mr. Iglesias has received support from other federal prosecutors, who say the department failed to honor its obligation to ensure that decisions about prosecutions are free of political taint.

“People who understand the history and the mission of the United States attorney and Justice Department — they are uniformly appalled, horrified,” said Atlee W. Wampler III, chairman of a national organization of former United States attorneys and a prosecutor who served in the Carter and Reagan administrations. “That the tradition of the Justice Department could have been so warped by that kind of action — any American should be disturbed.”

28 Counts?

A sixth-grade science teacher who was accused of having sex with a 13-year-old student has been sentenced to 10 years in prison. Rachel L. Holt, 35, had pleaded guilty to second-degree rape. She sobbed in court Friday as Superior Court Judge Calvin L. Scott gave her the mandatory minimum sentence. Prosecutors had wanted Scott to sentence Holt to the maximum of 25 years.

Holt was initially charged with 28 counts of first-degree rape. Police accused her of having sex with the boy that many times during an intense weeklong affair.


Oops. It was Rove after all.

Rove e-mailed about the US Attorney firings well before Gonzales was even AG