One of the worst convictions ever

A San Diego jury convicted Cynthia Sommer in what can only be called a case of "Trial by Character Assassination". This appalling verdict explains why some prosecutors think they can get away with bringing charges even when utterly unsupported by the evidence.

How sad.

I should note that Ms. Sommer's defense attorney Robert Udell (with whom I was on C.TV this morning) did her a real disservice by putting up up to testify, and then failing to even elicit a denial. It's pretty shameful.



Here's a headline you don't see to often. "Public Defender running for D.A" But it's true. Here are the amusing first paragraphs:

Elizabeth A. Ziegler of Harmony Township, Forest County, is a candidate for Forest County district attorney.

She will seek the Republican nomination to the four-year post in the May 15 primary election.

Hmm, does this make you wonder how good a PD she was? What do we think a PD might be like as a DA? Fascinating....


Another nice review...

I just found out that the Legal Director of the ACLU of Ohio has written a review of INDEFENSIBLE. I post it here because, well, it's the kind of review that makes me feel like the book said what I wanted it to say and did what I wanted it to do--(that being among other things) to inspire a few in our wonderful army of righteous lawyers to keep on battling for justice.

Jeff Gamso--Legal Director of the ACLU of Ohio

This isn't the usual sort of post, but David Feige's book, Indefensible: One Lawyer's Journey into the Informo of American Justice, isn't the usual sort of book.

Feige was the trial chief at the Bronx Defenders - the Public Defender office in the Bronx, N.Y. The book tells the story of one, fifteen-hour day on the job, fleshed out with story after story of what actually happens in the criminal courts. He doesn't pull punches, and he names names of actual judges and prosecutors (and might well be severely disciplined for violating the Mark Gardner rule were he in Ohio).

Feige was the lawyer so many of us who do the work because we believe in it and care about the clients wish we were: smart, articulate, wise, dedicated, gutsy, and more successful than he had any right to be. But even with all that, he too often processes cases rather than working them. And he is victimized by mindless (and often cruel) prosecutors, venal judges, and a system of unrelenting and crushing horror. The book is about all of that (and about the few good judges and decent prosecutors, I should add). It's about dealing with the horror and the pain and the clients and the courts and the prosecutors and the cops and the corrections officers and the ghetto itself. It's about the cases. It's about all that and how you deal with it and then get up and go back to work the next day. It's about the anger. And the love. And it's about the small group of dedicated lawyers and investigators with whom Feige worked.

When one of them threatens to crumble, it provides an occasion to discuss burnout:

"Burnout is stealthy. It rarely arrives with the bang of revelation; rather it's the creeping suspicion that maybe everyone around you is right -- your clients really are scum, the sytem really is completely broken, and you can't really touch anyone's life anyway. It is the sneaking sense of futility that undermines your resilience, that makes you unable to wake up the morning after a defeat, ready to fight twice as hard. Burnout sets in when outrage ends. It happens over time, and it hastens with every cataclysmic conviction. My personal theory is that most public defenders can't survive much more than three of these before they start to fry.

"The ones we plead guilty don't count. Neither does the incarceration of clients we care about -- that stuff happens every day, and if we only had three of those in us, we'd last about a week in the work."

Anger, love, righteous indignation. Guilty clients and innocent (or sort-of innocent) ones. Feige's is the truth we all know and live with a measure of honesty and decency and inspiration. And if that doesn't help you get up in the morning and go to work, I don't know what will.

Jeff Gamso

Jeffrey M. Gamso
Legal Director
ACLU of Ohio
4506 Chester Avenue
Cleveland, Ohio 44103


Berkman Strikes Again...

Huge hat tip to Blonde Justice for sending me this priceless story about one of our favorite judges--Carol Berkman. For those of you who read INDEFENSIBLE, the name might sound familiar. She was the one who, at a bench conference many years ago, told me that if I asked one more question, she'd make my life a living hell. Of course it was also Judge Berkman who sentenced Darius McCollum to prison.

So what's she doing now?

Threatening to hold a legal aid lawyer in contempt...
And to think she herself was once a legal aid lawyer.


My first podcast

Here I am doing my first podcast--as the questioner ofThe Ethicist (It's the brand new one--1/19)


Death 31 Years After Shooting Leads to a Murder Indictment

Welcome to the Bronx where, a death 31 years after a non-lethal shooting, has caused the DA to file murder charges.

Prosecutors decided to pursue the murder charge after the medical examiner’s office determined that the decedent's death at age 65 (in 2005) had been caused by the 1974 shooting for which the defendant had served time for assault in the 70's.

The Bronx DA

Let's think about that for a second. What that means is that all those clients we plead on assault cases are basically in jeopardy forever. So, practice note to all my former colleagues and anyone practicing in New York these days: Given this rather absurd policy, it seems like a new condition of any plea should be an agreement not to re-classify the case after a certain period of years.


Very cool...

Every year Kirkus Reviews publishes over 5,000 book reviews, covering every major book issued by a significant publisher. Along with Publisher's Weekly, Kirkus is one of the authoritative voices in the world of publishing.

Given all that it was a thrill and an honor to find out that I was included in their Best Books of 2006 List. The list included only 30 titles (that's both fiction and non-fiction). And if you look on page 8...there I am.


PD leader jailed

One of the leaders of the New Orleans public defender office spent three hours in jail Tuesday after Chief Juvenile Court Judge David Bell found him in contempt because his attorneys were not ready to go forward in Bell's courtroom.

The judge, David Bell, was upset that no public defender was in his courtroom when he was ready to start this morning, and he drove to the defender’s office and waited outside for Stephen Singer, the chief of trials, to arrive.

The judge took Mr. Singer to his courtroom, where he found him in contempt for not being prepared to provide representation and ordered him jailed for 36 days, three days for each of the 12 items on Tuesday’s docket. Mr. Singer then spent about five hours in jail before a state appeals court stayed the order.


Four Judicial Nominees Ask to Withdraw

Goodbye Haynes!

William Haynes, William Myers and Terrence Boyle have all decided to abandon their quest for confirmation to federal appellate courts. Another nominee, Michael Wallace, let it be known last month that he, too, had asked Bush to withdraw his nomination.

Times they are changin' for the better.


Please send her back to the education beat...

I cringe every time I spy the byline of New York Times reporter Anemona Hartocollis. As most readers know, I often have critical things to say about criminal justice coverage, but here, for one of the few times I can think of (Other than Andrea Peyser whom I always loathe), I feel little but blanket condemnation for the work of a supposedly serious journalist.

I think it was this piece that initially vaulted Hartocollis from merely inept to genuinely hateful. But now, almost every time I read her, I wind up infuriated--struck by her mindless story selection, artless prose and insufferably simplistic analysis. This recent piece is another fine example.

The thesis of this peice--now hold onto your hats here people--Criminal defendants, interrogated by the police, often make statements! No Shit! People talk? Defendants make statements? Quick stop the presses. This idiotic truism (what's next? Old Hippies Known to Eat Granola? Most New Yorker's Partial to Shoes?) actually gets play and is used as a thematic thread with which to sow together a bunch of statements from high profile defendants we've already read about in the Times. Nothing interesting, nothing newsy, frankly, nothing at all, pabulum journalism of the worst sort.

I think what bothers me most is that Hartocollis seems not to understand her subject matter. Combine this with her ever-arch tone, and what you have is something that crosses the line from really annoying to downright dangerous. In an era in which a brilliant journalist like Jack Hitt can be raked over the coals for supposed oversights that could very well be simple differences of opinion, it is obscene that someone like Hartocollis can get away with--notwithstanding prominent play for--a piece that clearly misunderstands the centerpiece of her story (the voluntary disclosure forms used by the DA's).

Note to the NYT:

1. Contrary to what Hartocollis says, VDF's are not "the bane of defense lawyer's existence." The VDF is merely a form used to comply with the requirements of CPL 710.30 (1)(a) which requires disclosure of the sum and substance of a defendant's statements. We may not like the statements (and usually don't) but the VDF is actually welcome--a bit of insight into their case early on.

2. The statement "and they often try to suppress them (VDF's) so they cannot be used in court." is absurd. No one has ever tried to suppress a VDF. The statement's contained in one, yes--always, but the VDF? Absurd.

What's really going on here? Hartocollis doesn't get what she's writing about. The only reason to use the term "VDF" (which, by the way often also discloses identification procedures, and occasionally other information as well) rather than "statement" is that Hartocollis thinks that "VDF" sounds sexy or sophisticated, and that if she just wrote "Statement" her entire story might appear as transparent as it actually is. In her terminological temerity, Hartocollis reminds me of a guy I knew who, when he'd bring his car to the mechanic would try to throw around some automotive terms 'cause he thought it made him sound knowledgeable. In fact it revealed him to be a blowhard.

So here's my plea: Please send Hartocollis back to cover education. Or better yet something even lighter--cars or fashion or travel perhaps. Because like so many others, I rely on the times for genuine analysis and substantive reporting not the pathetic rehashing of non-stories using dated terminology re-imagined as sexy.



I was in court not so long ago. It was the first time in a month or so that I'd set foot in the criminal courthouse. Funny how quickly the lunacy fades. And even more amazing perhap--how quickly it rushes back. The particular case I was handling was a sort of watered down DV case--the kind of thing that shouldn't have come to court in the first place. The right disposition of the case is what's known in New York as an "ACD" or an adjournment in contemplation of dismissal. It basically means that after a period of six months or a year (for family offenses and marijuana cases), the case is dismissed and the record is sealed theoretically returning the client to status quo ante.

Now without boring you with the details, suffice to say, I got the ACD. Moreover the prosecutor and I agreed that the term of the ACD should be six months rather than a year (this being possible because there was a non-family offense on the docket). The motion was made, the application granted the record of the 6 months term abundantly clear. And then, my client and I sat down for the usual "wait for the paperwork." Now normally when I was a PD, I didn't have time to sit around and wait for the paperwork, so I'd just leave clients waiting there and would tell them to come to the office if they had questions--then I'd dash off to whatever emergency was next on the hit list. But with my new lazy writing life and minimal practice, these days I've got all the time in the world to wait around, and so wait I did.

An hour and 40 minutes later, the clerk calls my client's name and up we go for him to sign off on the limited order of protection that will be in effect for the term of the ACD. Glancing down though, I saw that the clerk has indicated that the term is a year. So up I go, diffidently explaining that that's a mistake. "Talk to the judge" I'm told. Ok, I know the judge, he used to be up in the Bronx, no sweat. But then begins the long courtroom dance. First talk to the clerk, then the court officer, then another court officer, then the court officer talks to the judge, judge says ok, and it's time to start (once again) "waiting for the paperwork." This time the court breaks for lunch and we've got to come back at 2:15 (we've been there since 9:45).

2:15 comes and goes, and now, some three and a half hours after the case should have been done with, the clerk once again calls my client's name. Up we go. And yes, a new order of protection. This one inexplicably good until 2008. "Wrong year." I say, but by this time it's clear they're just messing with me. The clerk scribbles out the "08" and writes in "07" He doesn't initial anything and the whole page is mostly illegible at this point.

"What about the dispo sheet?" I ask, showing him the other page that still has "1 year" checked. "Oh, go ahead and change that." he tells me. "I can't change an official court document." I say. Disgusted he takes my copy and once again, just checks the other box (both are now checked). "What about the original?" I ask. "I'll do it later" he tells me firmly.

There's a rail between me and the clerk, and even if I wanted to go up and watch him change the original it would never have happened. So there I am, having spent an entire day just trying to get a simple disposition, and I have, except that the paperwork is all screwed up, and everyone seems pissed off at my reasonable request that we just do the paperwork right so that my clients isn't laboring under an order of protection for an extra six months, and all I can think is that there's no way this is going to get into the registry properly, and that at the end of the day, I'm going to have to order the minutes, go back to court and spend another entire day to fix what should have been done right in the first place. And all of a sudden the insanity of criminal court comes flooding back to me.

It's strange. It hasn't been that long, but still, I'd almost forgotten. And then, as I was contemplating the absurdity of the whole situation and the amount of time it was going to take to get a simple task done right, I actually thought to myself--someone should write a book about this crap. And then I remembered, I did. And it actually made me happy for a moment....

And speaking of the book...two nice things: First another really nice amazon review. I've almost never blogged about these (there are almost 50 reviews now) but every once and again when I go check them out, there's something really sweet and heartening that just makes me smile--the kind of reviews that talk about how the book has inspired someone or actually made them want to go and do the work. That, at the end of the day makes it all worth while. Also, neatly, I made a few Best Books Of The Year lists. A few more are here and here. That feels good...