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

No--Don't curb your enthusiasm...

Juan Catalan, unjustly imprisoned for nearly five months after being charged with a murder he didn't commit was exonerated by unused daily footage shot for the HBO comedy series "Curb Your Enthusiasm.

Well, the case was dismissed, .and last week he received a $320,000 settlement of a lawsuit filed against the City of Los Angeles.

What happened to Judge Chase?

I am sure it's often very frustrating being a judge. It's a tough job, but some seem to acclimate better than others. This great piece chronicles the strange decent of one New York immigration judge--Judge Jeffrey S. Chase.



Judge Chase was recently assigned to desk duties after the Second Circuit (in it's second stinging reversal) found that " Judge Chase’s decision show “a plethora of errors and omissions,” and that his tone during the hearing was unacceptable.

The panel pointed to a ”disturbing” incident in which the judge appeared to tread on lawyer-client privilege when he asked Mr. Ba if he had lied to his lawyer: “Yes or no?” “’It is inconceivable,” the panel wrote, that Judge Chase, “as a judge and lawyer, would not know the impropriety of that question.”

Absolutely corrupting power

"The FBI's director, Robert Mueller, admitted the bureau had abused the enhanced powers vested in it through the U.S. Patriot Act.


FBI Cheating on NSL's

According to a recent report, by investigators in the DOJ’s Office of the Inspector General (OIG) “the FBI used NSLs (NATIONAL SECURITY LETTERS) in violation of applicable NSL statutes, Attorney General guidelines, and internal FBI policies.” A large number of the infractions, according to the OIG, violated the Electronic Communications Privacy Act (ECPA): “In addition, we found that the FBI circumvented the requirements of the ECPA NSL statute when it issued at least 739 ‘exigent letters’ to obtain telephone toll billing records and subscriber information from three telephone companies without first issuing NSLs.” Exigent letters are produced when FBI agents feel they need immediate information, and the OIG found that these claims were exaggerated in many of these cases.

“Moreover,” the report continues, “in a few other instances, the FBI sought or obtained information to which it was not entitled under the NSL authorities.” These “instances” appear to be clear and quite extreme violations of NSL statutes: using an ECPA NSL to secure educational records; obtaining telephone records that were not part of a national-security investigation; and obtaining credit reports as part of a counterintelligence investigation.

This is why we shouldn't ever surrender powers like this to the government.

Every night is a Saturday night massacre...

There is mounting evidence that the Bush administration regularly pressures supposedly autonomous United States Attorneys when they step into the politically charged arena of republican corruption.

The latest? A former federal prosecutor in Maryland said Monday that he was forced out in early 2005 because of political pressure stemming from public corruption investigations involving associates of the state’s governor, a Republican.
The depravity of this administration and it's willingness to subvert justice seems almost limitless

Andrew Thomas--over everyone's dead body...

Arizona deserves what it gets. Maricopa county already has an imbecilic sheriff who likes to make inmates wear pink underpants


Shameful "Sheriff Joe"

But now come a rabid prosecutor whose Policy Shift on the Death Penalty has overwhelmed the Arizona Court system. According to the NY Times:

"During his two years in office, Andrew P. Thomas, the county attorney, has nearly doubled the number of times that the office has sought the death penalty, even though the number of first-degree murder cases prosecuted by the county has remained more or less the same for a decade.

A policy change that he enacted has contributed to a backlog of capital cases here that has crippled the county’s public defender system, left roughly a dozen murder defendants without representation, and prompted rancor and demoralization in the agencies that defend capital cases."


Mr. Death Penalty Himself

Go Jan...

This Newsday piece about bushmeat highlights the constitutional challenge filed by my dear friend Jan Rostal at the Federal Defenders. In it she argues that the consumption of bushmeat has religious significance that should be protected...go Jan.


Jan as Court TV's Justice Factory Correspondent

Why bother voting for democrats?

The times reports that there may finally be an accord on Bill to Detain Sex Offenders. The legislation, properly held by by democrats while Pataki was in office is now front and center.

Governor Spitzer made the bill a priority, calling for it recently in his first annual address to the Legislature. And his budget proposal called for the addition of 335 state workers to handle civil confinement efforts, the largest staff increase he has proposed.

The agreement calls for the creation of a new state office of sex offender management, an official briefed on the agreement said. It calls for greater supervision of sex offenders once they are paroled, and would create a new class of crime, a sexually motivated felony, in which prosecutors could try to prove that someone intended to commit a sex crime, even if such a crime was not actually committed, the official said.

It's this sort of pandering, and the irresponsible erosion of civil liberties that can make me regret my vote.

Just grotesque....

The Padilla hearings are underway. Yesterday, some of the jailers were forced to testify about the conditions. in the brig.



But the real outrage of the day was the absurd testimony of the supposedly independent shrink:

"But the Bureau of Prisons psychologist, Dr. Buigas, disagreed with the diagnosis of post-traumatic stress disorder. He said Dr. Zapfs testing was invalidated by the fact that Mr. Padilla was handcuffed during the tests, a condition imposed on Dr. Zapf by prison officials."

So the prison officials for Padilla to remain cuffed, and as a result the defense analysis is flawed. Truly Kafkaesque.

Long Time No Blog...

Things have been very busy around here recently.



As of about six weeks ago, I'm technically "Professor of Law and Director of Advocacy Programs" at Seton Hall University School of Law. Really. Scary but true. The first time someone called me "Professor Feige" I actually turned to look over my shoulder expecting to see my father behind me. It's all still a bit strange.

Make no mistake, it's a great job full of smart and interesting new colleagues. I've even gotten used to (and dare I say rather like) taking a commuter train over to Newark every so often. But the warm immersion doesn't stop me from spending a fair amount of time struggling with what it means to my life to have partially retreated to the safety of the academy. It's strange to have taken yet another step away from the front line work that engaged me for so long, particularly since my passion for the work and my belief in it's righteousness remains undimmed.

The oddity of the whole situation came home to me this afternoon at Yale where I just finished doing a panel at the Rebellious Lawyering Conference.


The beautiful Yale Law Building

I was on a panel with Steve Bogira (whose wonderful book "Courtroom 302" I reviewed for the Washington Post) and Kate Rubin Somewhere along the way I found myself exhorting the young dedicated law students to just go do public defender work, urging them to throw their hearts and minds and passions into the work while they were still young and able to do so. And somehow, even though I did the work myself and stuck with it for over a decade, I still felt a tiny bit like an impostor. Whether this is merely a symptom of getting old or whether it bespeaks something deeper remains to be seen. My guess is that, a bit to my own surprise even after the years I've been out of the work and the many times I've described myself as "a writer" I still find it dislocating to confront how far I seem to have drifted from being a PD.

Drug Maker Pledges $10 to Cancer Society - New York Times

Here's a great headline from the NYT website: Drug Maker Pledges $10 to Cancer Society



Obviously they meant ten million, but I love the idea that a huge drug company cut a check for 10 bucks.

PD Stuff and Me...

I'm home today (after a long night) writing up some answers for the new Public Defender Stuff Monday Musings feature. Greg, I must say, has done a terrific job of bringing together the disparate blogs and voices in the PD world and I'm looking forward to both cranking out my answers and hearing what my fellow (and female) PD bloggers think about some of these issues.

Another fun piece...

I just found out that the article I did for Lexus Magazine a few months ago--the one that sent me over to Innsbruck Austria to interview a very hip solar architect--is now on the Lexus website. So as it turns out, you don't even need to drive a fancy car to read my most recent piece.

Duty...

Guess who just got a Jury Summons?

Yes indeed, I've been called upon to do my civic duty. The only interesting question here is: What are the odds I actually wind up on a jury?

What'dya think?

Welcome to my world.

This great piece highlights the abuse of "failure to appear" charges in Ct, focusing on a woman who arrives 45 minutes late to court once among some 40 appearances. When the underlying drug charges were dismissed the nasty prosecutors went to trial and secured a conviction on her felony failure to appear. Lovely.

Pathetic...

Froth, fear, and fury. That's the huge headline in Boston today after some blinking lights in the form of a cartoon network character paralyzed much of Boston, shutting down roadways, subways (with the help of a coast guard cutter) the Charles river. C'mon people. A little less hysteria and a little more common sense huh?

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.

Unusual...

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.

Paperwork...

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...