Wednesday, October 29, 2008

Powerful Ad

I'm testing a new way to post video:

http://link.brightcove.com/services/link/bcpid1185304443/bctid1885474357

Tuesday, October 28, 2008

Charles Meets Barack

Saw this at Digby's Blog. Watch it! It's quick and good.

Tuesday, October 07, 2008

Sarah Palin and Alaskan Independence Party (AIP)

Hear Gov. Palin welcome attendees to the 2008 Alaska Independence Party gathering.

Wednesday, March 12, 2008

Ending This Blog - Starting Another



I've always felt a little uneasy blogging under this address, as it probably looks like I'm calling myself a "TLC Warrior" from the title. In truth, I created this address for the purpose of turning TLC list serve arguments into discussions, as a lot of people complained about having to sort through 50 email messages a day that were from people arguing over politics or passing along news. I thought a blog was a much better way to deal with this, but it didn't pan out.

I also felt a little funny about using the "TLC" name, as I didn't ask permission and just thought the address would be easy for people to remember, hoping that it would turn from "my" blog into "our" blog as people got used to it.

But it didn't happen, so I created a new blog. Come check it out.

http://nelawyer.blogspot.com/

Thursday, March 06, 2008

Nullifying the War on Drugs- Updated



A couple weeks ago, I attended a graduation ceremony for a new drug court program for parents who have been charged with child neglect. The new program meets weekly, so the judge gets to know the participants well, and sanctions or rewards them quickly if they're either messing up or doing great. Of the participants, more than half were former clients from my days in the Public Defender's Office, so I got to see how the people I helped get into drug court were doing.

The results were stunning. A person who was graduating, whom I met for the first time in jail, and who was on the verge of losing his parental rights when he entered drug court, was doing well enough now to graduate and return to his family's home. I was helping another person enter drug court that day and it was great to see a former client, doing well, have all kinds of great advice to a current one. It reminded me of the AA principle of "one alcoholic to another" as I stepped out of the way and allowed a former meth user instruct my current client on the best way to navigate the system to remain both drug and jail free.

It was also nice to see a different approach to dealing with the issues of drug addiction that make up most of my criminal cases. Drug courts, per se, are not the answer as the effectiveness depends on the structure, but, in general, they are a step in the right direction, assuming the bad elements of the old punishment-based system don't creep in and destroy the unique elements that make well-structured drug courts work well.

Along those same lines, yesterday Time.com featured an article by the writers of HBO's The Wire. I noticed it for two reasons: first, I subscribed to HBO just yesterday, partially to be able to see series like The Wire and movies like Taxi to the Dark Side, which will be hard to find anywhere else. Second, I flagged the article for the frank way it discusses the drug war. While fictional series like "24" seem to be having a negative influence on public policy, perhaps another fictional series can affect the drug war debate positively by demonstrating realities that politicians of both parties won't touch. For example, the article states:

Yet this war grinds on, flooding our prisons, devouring resources, turning city neighborhoods into free-fire zones. To what end? State and federal prisons are packed with victims of the drug conflict. A new report by the Pew Center shows that 1 of every 100 adults in the U.S. — and 1 in 15 black men over 18 — is currently incarcerated. That's the world's highest rate of imprisonment.

The drug war has ravaged law enforcement too. In cities where police agencies commit the most resources to arresting their way out of their drug problems, the arrest rates for violent crime — murder, rape, aggravated assault — have declined. In Baltimore, where we set The Wire, drug arrests have skyrocketed over the past three decades, yet in that same span, arrest rates for murder have gone from 80% and 90% to half that. Lost in an unwinnable drug war, a new generation of law officers is no longer capable of investigating crime properly, having learned only to make court pay by grabbing cheap, meaningless drug arrests off the nearest corner.

What the drugs themselves have not destroyed, the warfare against them has. And what once began, perhaps, as a battle against dangerous substances long ago transformed itself into a venal war on our underclass. Since declaring war on drugs nearly 40 years ago, we've been demonizing our most desperate citizens, isolating and incarcerating them and otherwise denying them a role in the American collective. All to no purpose. The prison population doubles and doubles again; the drugs remain.
Our leaders? There aren't any politicians — Democrat or Republican — willing to speak truth on this. Instead, politicians compete to prove themselves more draconian than thou, to embrace America's most profound and enduring policy failure.


The article ends with a proposed solution that I've never argued for but have always wanted to request: jury nullification.

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

Jury nullification is American dissent... If some few episodes of a television entertainment have caused others to reflect on the war zones we have created in our cities and the human beings stranded there, we ask that those people might also consider their conscience. And when the lawyers or the judge or your fellow jurors seek explanation, think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren't fictional.


What do you think?

UPDATE: nebraska law on jury nullification is sparse, but in Nebraska v. Green (1990), 236 Neb. 33 (1991) the Nebr. Supreme Court held that "Although a jury may acquit an accused even if its verdict is contrary to the law and the evidence, the defendant is not entitled to have the jury instructed about the power of jury nullification."

Friday, February 29, 2008

Siegelman Case Update



I've been reading Naomi Wolf's "The End of America" and last night read how when she initially heard about the U.S. Attorneys Scandal, she predicted, to a friend, that the attorneys replaced would be in swing states, where politically-motivated prosecutions could swing elections. What was scary about her description was that she said she knew this, as she'd been reading about Joseph Goebbels at the time and sensed that Karl Rove was behind this.

But as much as the Siegelman case is being described in horserace terms, the 60 Minutes story featured former Arizona Attorney General Grant Woods, who is both a Republican and godfather to John McCain's children.

But Grant Woods, the former attorney general of Arizona, says the case should never have gone to trial. “The prosecutor's gotta look at it and say, ‘Hey, is this the sort of thing that we're really talking about when we're talking about bribery?’ Because what the public needs to know here is there is no allegation that Don Siegelman ever put one penny in his pocket,” he says.

Richard Scrushy did make donations totaling $500,000 to that education lottery campaign, and after serving on the hospital board under three previous governors, Scrushy was re-appointed by Siegelman.

But Woods says that’s politics, not bribery. “You do a bribery when someone has a real personal benefit. Not, ‘Hey, I would like for you to help out on this project which I think is good for my state.’ If you're going to start indicting people and putting them in prison for that, then you might as well just build nine or ten new federal prisons because that happens everyday in every statehouse, in every city council, and in the Congress of the United States,” he says.

“What you seem to be saying here is that this is analogous to giving a great deal of money to a presidential campaign. And as a result, you become ambassador to Paris,” Pelley remarks.

“Exactly. That's exactly right,” Woods says.

Siegelman was campaigning in the 2006 Democratic primary as he went to trial. “We’re going to turn this bus into what we call the night shift, because after the trial every day we’re gonna be hittin the trail every day,” he said.

But he lost in the primary. After two months, the jury deadlocked twice, then, voted to convict on its third deliberation. Many legal minds were shocked when federal judge Mark Fuller, at sentencing, sent Siegelman directly to prison without allowing the usual 45 days before reporting.

“He had him manacled around his legs like we do with crazed killers. And whisked off to prison just like that. Now what does that tell you? That tells you that this was personal. You would not do that to a former governor,” Woods says.

“Would you do that to any white collar criminal?” Pelley asks.

“No, I haven't seen it done,” Woods says.

“Help me understand something. You're blaming the Republican administration for this prosecution. You're saying it was a political prosecution. You are a Republican. How do I reconcile that?” Pelley asks.

We're Americans first. And you got to call it as you see it. And you got to stand up for what's right in this country,” Woods says.


Now former Reagan administration official, and obvious Republican, Paul Craig Roberts summarizes the case like this:

The Siegelman case makes it clear exactly what Bush, Rove, and the disgraced Bush flunky, Alberto Gonzales, intended by firing the eight Republican US attorneys. These eight refused to politicize their office by falsely prosecuting Democrats in order to achieve a Rovian political agenda. Apparently, there were only eight honest persons among the 1,200 Republican US attorneys. Bush, Rove, and Gonzales had no problem with the other 1,192.

Former Alabama Supreme Court Justice Terry Butts said that justice in America today is about political agendas, "not about convicting real criminals." Butts said that Siegelman’s attorneys and allies expect reprisals from the US attorney’s office and Alabama’s Republican establishment.

Karl Rove refused to testify about the case before Congress.

On February 25, Fox "News" gave Karl Rove airtime in which to deny the accusations and evidence against him, which he did.

The Department of Justice [sic] refuses to release Siegelman trial documents to Congress.

Siegelman’s family home was broken into.

Siegelman’s attorney’s office was broken into and ransacked.

Jill Simpson’s house was burned down, and her car was run off the road.

This is the way "justice" works in Bush Republican Amerika.


Think about that last line and remember that Roberts is a "a former Assistant Secretary of the US Treasury and former associate editor of the Wall Street Journal, has been reporting shocking cases of prosecutorial abuse for two decades."

Has he changed or have the Neocons taken the Republican party in a direction that's non-conservative, where the Justice Department becomes a tool of Bush's Brain?

Monday, February 25, 2008

60 Minutes Story on Selective Prosecution Blacked Out



When I heard that 60 Minutes would broadcast a story about former Alabama Democratic governor Bernie Siegelman in which a former GOP campaign worker claims she was asked by Rove to look into whether he was having an affair, I spread the word by emailing the TLC listserve.

The story aired last night but you can find the video here. >

An AP story from yesterday described what the 60 minutes segment would describe:

"A former Republican campaign worker claims that President Bush's top political adviser, Karl Rove, asked her to find evidence that the Democratic governor of Alabama at the time was cheating on his wife...

Jill Simpson, who has long alleged that Rove may have influenced the corruption prosecution of former Gov. Don Siegelman...

Simpson testified to congressional investigators last year that she
overheard conversations among Republicans in 2002 indicating that Rove
was involved in the Justice Department's prosecution of Siegelman."


Governor Siegelman sits in jail in Alabama, but the 60 Minutes story was sure to make voters in Alabama question whether the prosecution was motivated by Justice or by a politicized Department of Justice doing Karl Rove's bidding. So what did most of the voters see?

Nothing.

Strangely enough, "technical difficulties" meant that many viewers in Alabama encountered a service interruption during the broadcast. As Scott Horton writes at No Comment:

I am now hearing from readers all across Northern Alabama—from Decatur to Huntsville and considerably on down—that a mysterious “service interruption” blocked the broadcast of only the Siegelman segment of 60 Minutes this evening. The broadcaster is Channel 19 WHNT, which serves Northern Alabama and Southern Tennessee. This station was noteworthy for its hostility to Siegelman and support for his Republican adversary. The station ran a trailer stating “We apologize that you missed the first segment of 60 Minutes tonight featuring ‘The Prosecution of Don Siegelman.’ It was a technical problem with CBS out of New York.”


But Horton, unlike the viewers in Alabama, was able to check out this story:

I contacted CBS News in New York and was told that “There were no transmission difficulties. The problems were peculiar to Channel 19, which had the signal and had functioning transmitters.” Channel 19 is owned by Oak Hill Capital Partners, who can be contacted through Rhonda Barnat, 212-371-5999 or rb@abmac.com. Oak Hill Partners represents interests of the Bass family, which contribute heavily to the Republican Party. Viewers displeased about the channel’s decision to censor the broadcast should express their views directly to the station management or to the owners.


Strangely enough, when I go to the link from the AP story I referenced yesterday, and quoted above, I read that "the story is no longer available." Why? As Horton states:

Hopefully the Associated Press editors will start paying close attention to the reporting that is moving over the AP wires with a Washington dateline about the Siegelman case. We now have the second straight AP story filled with highly tendentious and misleading statements which are carefully set out to mirror the attack line put out by the Alabama G.O.P., but using the wireservice’s own voice.


Horton lays out the misleading statements made in the article, and evidently it was later withdrawn. More stunning than the allegations themselves is the substance of the investigation. As Horton states:

The CBS piece, for which I was repeatedly interviewed, came through on its promise to deliver several additional bombshells. The most significant of these was the disclosure that prosecutors pushed the case forward and secured a conviction relying on evidence that they knew or should have known was false, and that they failed to turnover potentially exculpatory evidence to defense counsel. The accusation was dramatically reinforced by the Justice Department’s failure to offer a denial. It delivered a fairly elaborate version of a “no comment,” and even that came a full twenty-four hours after it had conferred with the prosecutors in question. The gravity of the accusations made and the prosecutors’ failure to deny them further escalates concerns about the treatment of the former Alabama governor.

...

But the show was dominated by one of 52 former attorneys general from 40 of the 50 states who have called for a Congressional probe of the conduct of the Siegelman case, former Arizona Attorney General Grant Woods. He leveled a series of blistering accusations at the Bush Administration’s Justice Department. With the Alabama G.O.P. this evening issuing a near-hysterical statement in which it characterizes the CBS broadcast—before its transmission—as an anti-Republican attack piece, it was notable that Woods, like the piece’s other star witness, is a Republican. Not just any Republican, either. Grant Woods is co-chair of the McCain for President leadership committee, and a lifelong friend and advisor to the presumptive 2008 G.O.P. presidential candidate. Woods is also godfather to one of the McCain children.

Attorney General Woods has this to say about the Bush Justice Department’s prosecution of Siegelman: “I personally believe that what happened here is that they targeted Don Siegelman because they could not beat him fair and square. This was a Republican state and he was the one Democrat they could never get rid of.”


No wonder "the base" is not comfortable with McCain. Consider for a second, the nature of the allegations:

The basic charge is that businessman Richard Scrushy gave $500,000 to the Alabama Education Foundation, a vehicle Siegelman created to run a campaign for a state education lottery, and Siegelman in exchange appointed him to the state’s hospital oversight board.


And that these allegations are being made by the Bush Administration's highly politicized Justice Department:

Karl Rove pursued financing for the Bush-Cheney campaign in 2000 and again in 2004 by organizing a special elite status—called “Pioneers” and “Rangers”—for persons who donated or raised $100,000 or more for the campaign. These donors understood that if they wanted to be appointed to a government office, like an ambassadorship, they only had to ask for it.

So how many Bush-Cheney donors in amounts of one hundred thousand and more were appointed to government offices or to positions in the Bush-Cheney transition team? The answer is one hundred and forty-six (146). And in how many of those cases did the Justice Department initiate investigations of corruption? The answer is zero (0).

Are prosecutors above the law?


Are all pigs equal but some pigs more equal than others? That's the issue I worked on yesterday in a brief involving whether prosecutors have a right to review presentence reports, or PSI's.

The case involves a lawyer friend who, knowing that the trial court routinely allowed prosecutors to review PSI's, moved to preclude them from doing so in his client's case.

The statute involved allows the judge to determine who can review PSIs, but also imposes a requirement that the judge first decide whether review by the person seeking it is in an offender's best interests. As the statute, Neb. Rev. Stat. § 29-2261(6),says:

Any presentence report… shall be privileged and shall not be disclosed directly or indirectly to anyone other than a judge, probation officers to whom an offender's file is duly transferred, the probation administrator or his or her designee, or others entitled by law to receive such information... The court may permit inspection of the report or examination of parts thereof by the offender or his or her attorney, or other person having a proper interest therein, whenever the court finds it is in the best interest of a particular offender.


Pretty clear that not just anyone can view these PSI's, right? Well, the judge didn't see it this way, for whatever reason, and decided that the statute was inoperable against the State, as it was a "party" to the action. Fair enough. Take it up on appeal.

But the prosecutor, at the hearing on the Defendant's Motion to Preclude him from reviewing the "privileged" PSI, the prosecutor said:

“If the State doesn't have that information [in the PSI], the state will have to assume the worst on every individual defendant, assume they're not employed, things of that nature, and to make a recommendation for the maximum.”


Wow. In other words, if you don't let us see it, we'll just have to assume that the information is terrible and ask for the max every time.

Isn't this a perfect reason to be a criminal defense lawyer? The prosecutor can't read the plain meaning of a statute and threatens, should the judge apply the statute against him, to assume the worst and max them all out.

So much for a prosecutor's "duty to seek justice."

Wednesday, February 20, 2008

Goodbye to the Exclusionary Rule?



In another example of being boiled slowly, and thus not feeling the change, in today's New York Times comes
this article
describing a new case accepted for certiorari:

Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.

The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.

In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.

He was convicted in a federal prosecution, with both the Federal District Court in Montgomery, Ala., and the United States Court of Appeals for the 11th Circuit, in Atlanta, refusing his request to suppress the evidence.

There was no dispute that Mr. Herring’s arrest lacked probable cause, and that both the arrest and the search were therefore unconstitutional. But the 11th Circuit, citing the Supreme Court’s most recent discussion of the exclusionary rule, in a case from 2006, said suppression of reliable evidence placed a heavy toll on the criminal justice system and should be used as a last resort.


Also, last week, during an interview with the BBC, Justice Scalia said that "It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that."

At the time, I wondered what the implications of this statement were to Scalia's view of interrogations of U.S. citizens. For example, if the ticking time bomb scenario prompted him to believe that "sticking something under the fingernail" were permissible, what does he also believe about a suspect being interrogated during an "exigent circumstances" scenario?

Is it "absurd" to think that Scalia wouldn't apply the same logic?

The Times article also hints about the possibility that exclusion will be, well, excluded, as a remedy next term:

Often in the past, the Supreme Court’s acceptance of a criminal defendant’s appeal suggested that the court was inclined to overturn the conviction. But this appeal, Herring v. United States, No. 07-513, which was prepared as a student project of Stanford Law School’s Supreme Court litigation clinic, might turn out to be a case for Mr. Herring of “watch out what you wish for.

In the 2006 decision to which the 11th Circuit referred, Hudson v. Michigan, five justices expressed deep reservations about the utility of the exclusionary rule. That 5-to-4 decision refused to apply the exclusionary rule to evidence found by police officers who burst into a Detroit man’s home to execute a search warrant without first knocking and giving the man a chance to respond. Justice Antonin Scalia’s majority opinion appeared written to solicit further challenges to the rule’s application.

Saturday, February 09, 2008

Our First Caucus



The Nebraska Democratic Party wanted to do something different this year and adopted a caucus system for the first time. Of course, when the system was adopted, the goal was to encourage more grassroots involvement, to get people out talking and voting with their feet and voices rather than simply filling out an oval.

But no one predicted that the tight race would put Nebraska Democrats in a position of actually having an effet on a national election. It's not a position we're used to in this land of Go Big Red that seems to be a deeply red state as well. In fact, someone at the caucus I attended said, "I didn't know there were this many Democrats in Omaha!", and we were at one of 15 sites in Douglas County.

So the sudden importance of Nebraska brought the voters out in droves and made it difficult to prepare for both a new caucus system and a new surge of voters. According to the Lincoln Journal Star:

Sarpy County had one caucus site for 28,000 registered Democrats, triggering traffic backups for miles and complaints from voters while changing the way officials conducted the caucus.

“To only have one polling place for the third largest county in our (state) was certainly a mistake,’’ said Joe Pilakowski, a 31-year-old high school teacher from Papillion. “It’s kind of a mess.’’

Law enforcement shut down Highway 370 and the intersection leading into the site — a school cafeteria — because the area was packed with cars.

The influx of people was so massive that volunteers began collecting preference cards for people who preferred Obama or Clinton, then allowing them to leave. Traditional caucus procedures allow for more interaction, with supporters standing on either side of a room trying to persuade the undecided and not-so-sure supporters of other candidates to join them.

“People are threatening to leave, and we didn’t want anyone to leave without being counted.’’ said Marea Bishop, 43, of Bellevue, a volunteer at the caucus. “The turnout is so far above all our wildest dreams.’’

“Desperation,’’ Sarpy County Democratic Party Chairman Burke Summers said when asked why officials changed procedures at the last minute. School officials wanted the school cleared of caucus-goers by midafternoon to make way for a pair of youth basketball games.

Fought, the state party spokesman, said it was up to each county’s party leaders to adjust plans in the best way possible without drastically deviating from the procedures.

An early count showed that 6,000 people showed up at the school to caucus, including 2,000 people who registered Saturday. About 1,500 of the new registrants had switched from other parties.

“There’s a hell of a lot fewer Republicans in Sarpy County than there were yesterday,’’ Summers said.

The turnout was so high that officials in Douglas and Sarpy counties announced that they would delay the announcement of their results at least one-and-a-half hours.

“We had no ability to imagine anything,’’ Fought said. “That was part of the challenge here because we’ve never done this before.’’


While I sympathize with the position party officials are in, it was easy to imagine that something was different this year and that a surge of voters could be expected. I know this because the wild atmosphere at the caucus I attended was just like the atmosphere I experienced on Thursday night as 12,000 people showed up for Barack Obama's speech in Omaha. The arena held only 10,000, but I was lucky enough to be one of the overflow crowd allowed to enter an adjacent arena, where 1000-2000 people who showed up but couldn't fit into the main event were allowed to come in out of the cold.

Obama appeared and spoke to us before he went upstairs, and my two daughters and I thus got to see him from 100 feet away rather than seeing him on stage with 10,000 other people.

So any party officials who went to the Obama rally had to have known that if people would turn out that strong on a Thursday, a Saturday a.m. caucus was sure to be packed.

I arrived late and was one of the last to be admitted, but the crowd was easily 5 to 1 for Obama. It was simple to spot the Clinton "crowd" because it looked like they were standing at the back of the event. It wasn't until the crowd started chanting that I realized obama's group wasn't the event, they were only one side of it. It wasn't even close.

I predict Obama will win easily based on what I saw on Thursday in downtown Omaha and today in the west side of the city. The results should be in soon, but count on an Obama win.

Friday, January 25, 2008

Liberty or Death?



In the debates accompanying each party's primary, much is being said about government's proper role in helping the poor, in fighting terrorism, and about crime, among many other things. In fact, in recent weeks the Clinton and Obama camps have brought racial issues into the mix, almost as never before, and Toni Morrison's famous characterization of Bill Clinton as "America's first black President" (yeah, right) has been brought up many times. John Edwards, at least in my view, has stayed out of this, choosing instead to target corporate greed as one of the most pressing problems we face.

But one issue has been largely missing from the debates. I was surprised to find out today that all 3 Democratic Candidates are pro-death penalty, via this Alternet story.

"Clinton, Obama and Edwards all support capital punishment. It's a position you'd be hard pressed to find on their websites, and they might not be bragging about it the way they might have in, say, 2000. Or 1996. Or 1992, the year their party's pro-death penalty stance was codified in its official party platform and then-presidential candidate Bill Clinton made a campaign trail detour to Arkansas, where he presided over the execution of mentally damaged prisoner Ricky Ray Rector. Nevertheless, all three hold on to their pro-death penalty stance, as have virtually all leading Democrats running for office in the past 20 years.

Why so much longstanding support for capital punishment? It is the easiest way to combat the quadrennial charge that Democrats are "soft on crime."


As the article goes on to say, this support was likely due to the way "Michael Dukakis was lampooned after a 1988 debate in which he failed to wax bloodthirsty when asked if he'd want to execute a theoretical rapist/murderer if the victim was his wife, Kitty."

I'm not trying to lambast the Democrats for this "stand," or rather lack thereof, as they obviously make it for complicated reasons.

But isn't the nation crying out for leadership on issues like this? Couldn't Edwards, who's likely to lose anyway, fulfill his mission of focusing the race on the right things by confronting this issue? For example, remember the way all three candidates tried to appeal to African American voters in South Carolina this week? Wouldn't it have been wonderful to see Edwards draw attention to this issue by pointing out the fact that, as Bill Moyers recently stated:

"Amnesty International urged the UN to pass a resolution for a moratorium on capital punishment declaring that it 'has never been shown to deter crime more effectively than other punishments.'... The American Bar Association has also called for a moratorium on capital punishment. And in late October, just moments before a prisoner in Mississippi was scheduled to die by lethal injection, the Supreme Court issued a stay of execution. This month, New Jersey became the first state in 40 years to abolish the death penalty, sparing the lives of eight men on the state's death row."


One of those executed in Texas three years ago was Dominique Green. Thomas Cahill, author of HOW THE IRISH SAVED CIVILIZATION, is coming out with a new book about Green's life, and death, as he turns his attention to more recent history. Cahill, in an interview with Moyers, describes Green's case as:


"[W]hat actually happened was-- and it's in an instance of how badly this is done in Texas, there were four kids. One of them was white. He was not charged with anything. Ever. And you cannot interview him til this day.

BILL MOYERS: Why?

THOMAS CAHILL: You can't find him. But he exists. I know his name. And the other three were black. Dominique was the youngest. And the two others turned against him to get lighter sentences, it looks to me. And they decided that he would take the rap. He was certainly guilty of robbery. I don't think he was guilty of murder. But even if he was, I don't think --- that's not what I see in this. What I see in this is that we as a country are actually sacrificing children to an evil God, to the God of whatever this justice is that we-- instead of take-- instead of doing something for Dominique Green who grew up without the aid of civilization, we condemn him to death, and to the torture of 11 years on death row. There was a trial. There was very bad representation. The judge that Dominique came up before was the same judge who in a slightly earlier appeal had been asked to reverse a decision because the lawyer who represented this kid in this earlier trial, had slept throughout the trial. And everyone had seen that and everyone knew about it. And the judge, in his decision, said, "The Constitution gives you the right to a lawyer. It doesn't say whether he has to be awake or not." So, I mean, this sort of-- there is, I think throughout the country but especially in the state of Texas, there is a kind of collusion among lawyers whether they're prosecutors or defenders, and judges, and an awful lot of horrible things happen in order to get as many people as possible executed.

Cahill also describes in this interview the fact that Green eventually became close with the two sons of the man who was killed, even describing how Green's rosary was given to one of the boys. You can read the article online at the links or download it for free on itunes.

I have great respect for John Edwards and the attention he's directed toward important issues other candidates are conveniently and self-servingly not bringing up. But it surprised me to hear that, despite his leadership on other issues facing the poor, he hasn't taken a stand against the death penalty.

Wouldn't the sleeping judge presiding over Green's trial and the way Green drew the support of the Pope and, presumably at least, of his victim's children make for a good story for John to tell, much as he uses individual stories to highlight issues that are being ignored?

Or have we reached a point where it's impossible for a viable candidate to do anything other than pander to the audience by pretending that the death penalty isn't (1) expensive to administer, (2) incapable of being remedied should further evidence ever be produced, much as DNA advancements have done recently, and (3) disproportionately applied to poor and African American defendants?

Wouldn't that stand not only be the right one to take, but also indicative of the leadership the public desperately craves?

Monday, January 21, 2008

MLK Day: Dream Not Realized, Irony Not Dead



I woke up this morning, switched on the local news, and saw the news crawl stating two things: "Martin Luther King Day Holiday," and then "All City Offices Closed Except Garbage Services." I kept watching and saw that the forecast high with 14° with an 80% chance of snow. But the station wanted to let us all know that there was no need to panic. Garbage collection would go on as scheduled.

How ironic that on Martin Luther King, Jr., Day, the one city service that is not interrupted is garbage collection, undoubtedly one of the most difficult, dirty jobs in the city. Sure, much of their work is now automated, but they almost always have to get out of the truck and manually throw bags of garbage into the back of the truck at every house. They have a dirty job, but they work hard and move fast; their shoes, pants and often their coats grimy with our slop, spilling out of the cans, bags and bins.

Why is it ironic that garbage collection continues on Martin Luther King Day, but almost all county and city employees get the day off, except those with a worst job?

As the Washington Post writes,

"On Thursday, April 4, 1968, Martin Luther King Jr. had retreated to room 306 of the Lorraine Motel, worrying about a sanitation strike in Memphis and working on his sermon for Sunday. Its title: "Why America May Go to Hell." For King, whose focus had shifted from civil rights to antiwar agitation and populist economics, the Dream was turning dark. He had been depressed, sleeping little and suffering from migraines. In Washington, his plans for a massive Poor People's Campaign were in disarray. In Memphis, King's first march with striking garbage men had degenerated into riot when young black radicals--not, as in the glory days, angry state troopers--broke King's nonviolent ranks."


King himself would later tell his audience, in calling for boycotts of various products and businesses, that "only the garbage men have been feeling pain," urging them to "redistribute" this pain. From his famous "I've Been to the Mountaintop" speech, King said:

"And so, as a result of this, we are asking you tonight, to go out and tell your neighbors not to buy Coca-Cola in Memphis. Go by and tell them not to buy Sealtest milk. Tell them not to buy -- what is the other bread? -- Wonder Bread. And what is the other bread company, Jesse? Tell them not to buy Hart's bread. As Jesse Jackson has said, up to now, only the garbage men have been feeling pain; now we must kind of redistribute the pain. We are choosing these companies because they haven't been fair in their hiring policies; and we are choosing them because they can begin the process of saying they are going to support the needs and the rights of these men who are on strike. And then they can move on town -- downtown and tell Mayor Loeb to do what is right.

But not only that, we've got to strengthen black institutions... Now these are some practical things that we can do. We begin the process of building a greater economic base. And at the same time, we are putting pressure where it really hurts. I ask you to follow through here."


In fact, King himself traveled to Memphis, the site where he was later assassinated, to support striking garbage men:

"On February 12, 1968... 1,300 sanitation workers in Memphis, Tenn., decided that enough was enough. They went on strike to force the city to recognize their union, AFSCME Local 1733. The walkout capped a long history of mistreatment and disrespect amid shameful working conditions.

The strike was a defining moment for the modern labor and civil rights movements. Officially, the men were after rights and raises, but the signs they carried made clear that their struggle was for much more — dignity and respect.

Dr. Martin Luther King Jr. traveled to Memphis to support the striking workers. The evening of April 3, he delivered his famous “I’ve Been to the Mountaintop” speech to a packed room of strikers and supporters."


So, to recap:

- In mid-February 1968 King went to Memphis to support striking garbage men.
- On April 3, 1968, King said that only striking garbage men had been feeling pain, telling his audience to redistribute that pain with wider boycotts.
- The next day, April 4, 1968, Martin Luther King, Jr., was assassinated.
- But today, the day we honor the legacy of Dr. Martin Luther King Jr., the only workers who provide city services are the sanitation workers, the "garbage men" who now include "garbage women" as well.

So, as we celebrate Martin Luther King Jr. Day, remember that this hero whom the government later rightly recognized with a national holiday, was subjected to an illegal wiretapping by that same government that now takes a holiday in his honor. In fact, the FBI, led at that time by J. Edgar Hoover, even tried to convince King to commit suicide, threatening to expose alleged adulterous meetings with women to his wife in public if he refused. From the "STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS" prepared for the United States Senate in 1976,

"The FBI mailed Dr. King a tape recording made from its microphone coverage. According to the Chief of the FBI's Domestic Intelligence Division, the tape was intended to precipitate a separation between Dr. King and his wife in the belief that the separation would reduce Dr. King's stature. The tape recording was accompanied by a note which Dr. King and his advisers interpreted as a threat to release the tape recording unless Dr. King committed suicide. The FBI also made preparations to promote someone "to assume the role of leadership of the Negro people when King has been completely discredited."


What a gift it is that the FBI's dream of discrediting Dr. King did not become a reality and that we now honor him with a national holiday. But, if you think his dream has been realized, ask a garbage collector. And then ask yourself, WWMD if he were alive today?

Saturday, January 19, 2008

The Unequal Protection Claws



Scott Horton writes a great online column for Harpers Magazine called "No Comment" that I highly recommend. Today's entry, entitled "Blackwater and the Administration of Justice," covers a scandal you may have forgotten about, suffering understandably from "scandal fatigue." He writes:

I spent the better part of the last year looking in some detail into a series of legal policy issues surrounding private security contractors, a process that culminated in the issuance of a report last week entitled Private Security Contractors at War: Ending the Culture of Impunity.(4 MB PDF)

The report deals with an entire industry which has popped up like mushrooms after a spring rain. But when you examine this issue, and particularly its government relations aspects, you come very quickly to a focus on one particular company, Blackwater USA, whose baroque conduct seems to supply the material for novels, if not articles in Soldier of Fortune Magazine.


Horton then goes on to describe how Senior Bush Administration officials are intertwined with Blackwater in both marketing the firm to foreign governments. In fact, he describes speaking with local government officials in Azerbaijan and Jordan who told him of "extensive marketing efforts on Blackwater’s behalf by seniormost officials of the Bush Administration" and that they "pressured and cajoled the local officials to use Blackwater" even "offer[ing] substantial incentives in the process."

It's not hard to see why W found a lot in common with Blackwater founder Erik Prince, as Prince is described as "born to wealth and privilege" in a family "with a long track record of involvement in Republican and Religious Right politics." But Horton also offers evidence for his assertion that Blackwater's relationship with the Bush Administration is "truly extraordinary in many respects." He writes:

One career State Department observer put it to me this way. “In Blackwater’s dealings with the Department,” he said, “I often find myself wondering who is the service provider and who is beneficiary of the services.” His point was simple: Blackwater exercised an unseen influence over the process of contracting and supervision; often the Government seems to be working for them.


So, with this insider relationship between the government and a well connected contractor in mind, remember the investigation of Blackwater employees killing Iraqis in Baghdad's Nisoor Square last September? Last week an article in the New York Times described a briefing given privately on Capitol Hill discussing the Justice Department's investigation into prosecuting Blackwater, whom the Iraqi government now wants expelled from Iraq for its role in the killings. As Horton writes:

After giving the usual disclaimers, the briefers went on to state that notwithstanding the FBI’s conclusion that the facts showed multiple homicides for which no viable defenses existed, at present the prospects that charges would be brought were slim. Why? Two reasons were advanced. First, they stated that Acting Deputy Attorney General Craig Morford had severe reservations about whether the Military Extraterritorial Jurisdiction Act (MEJA) would apply in a case like this, and in any event, it had never been applied this way. Second, they said that State Department investigators had granted limited immunity to those who gave statements and they were skeptical that they would be able to build a case than would not collapse under the weight of that grant of immunity.

I interviewed two persons who were present at those briefings and who requested that their names be withheld. Both had roughly the same reaction. I thought these people were supposed to be prosecutors. It sure didn’t sound that way to me. They sounded like criminal defense counsel arguing against bringing charges. But even more telling one added, “They seemed to be focused on the reaction from their audience. It was as if they were really engaged in an exercise trying to judge ‘if we walk away from this, what kind of blow-back are we going to get?’”

Horton goes on to convincingly describe why he disagrees with the government's "analysis" of whether MEJA applies, saying that "even if it doesn’t, the Justice Department seems to have lost track of a number of other statutes that provide a basis for prosecution, like the War Crimes Act." The article concludes with this:

"...the Justice Department’s briefing showed an amazing willingness to drop the whole thing, rather than build a case.

And this does raise a question about Blackwater’s relationship with the Government, including the Justice Department. In the end, I believe this whole story will tell us much more about the inner working of the Bush Administration and its grossly disfigured Justice Department than it tells us about Blackwater. After all, although it needs to abide by it, Blackwater is not responsible for enforcing the law. That responsibility rests now with a team that seems to be very uncomfortable whenever questions of law enforcement affect the “home team.” And ultimately Americans may judge that a far bigger and more worrisome problem than the tragedy that occurred at Nisoor Square."

- I. Lewis Libby pardoned after jury conviction, just when he would have started talk ing to be granted a "substantial assistance" departure and perhaps avoid prison.
- Telecom retroactive immunity from past law violations pushed and likely to pass. - Prosecutors fired who went after the "home team," replaced with partisan, unexperienced Liberty University grads fresh out of law school.
- Secret Service agent sent to Guam after calling for probe into whether other agents changed their stories after talking to Cheney.
- 470 days of missing emails at the White House.
- And politicians on both sides afraid to stand up for the rule of law or to speak up for it to be applied equally for fear of being labelled "pro-terrorist."

Those who don't understand history are deemed to repeat it and last week Glenn Glenn Greenwald described the way criminal procedure applied differently depending on your social class in Ancient Rome:

...this change of procedure was accompanied by the increasing use of different scales of punishments according to the person of the delinquent.

For purposes of criminal jurisdiction the citizen body fell into a class of honestiores (including members of the Senatorial and Equestrian Orders, municipal magistrates and senators, and soldiers of all ranks), and another of humiliores.

For the same crime a privileged offender might suffer simple banishment, an unprivileged one would be sentenced to penal servitude in the mines;

in capital cases the honestior would be put to death quickly and cleanly, the humilior might be thrown to the beasts.

A person of higher status still enjoyed the right of appeal to the emperor, and he remained exempt from torture, except in trials of treason ... but these privileges were withdrawn from those of the lower order. From the time of Severus [early 3rd Century] the principle that the law was a respecter of persons pervaded the whole of the Roman criminal jurisdiction, a rule which constituted one of Rome's most harmful legacies to the Middle Ages.


Doesn't it sound, at least in the above description, like at least in Ancient Rome the law applied equally no matter what class you came from, except for the fact that appeals were available only to the upper crust? In other words, nowhere does the author describe different laws applying to different classes, only different punishments being meted out. All pigs were equal, at least in this description, regarding whether they broke the law; the inequality came later, when punishment was delivered. But now, in this age of the Gated Community, Orwell's satirical remark seems to have come true: some pigs are more equal than others.

It's as if the ancient proverb that "He who has the gold makes the rules" has become outdated. The new version is "He who has the gold, and the political connections, doesn't have to follow the rules."

And yet next week, as I stand beside some drug-addicted, uninsured, unemployed young person facing a jail sentence, or a termination of parental rights, or a fine that'll take food out of the kids' mouths, someone will think, and perhaps say, "how can you defend those people?"

Friday, January 18, 2008

Secret Service Agent: ‘The VP's [security] detail is involved in a cover-up,’


It must be hard being a Secret Service Agent assigned to Dick Cheney. Consider the plight of Agent Virgil Reichle, who was assigned to guard the Vice President in 2006 while Cheney stayed at Colorado ski resort. A man named Steven Howards approached the veep, told him his Iraq policies were "disgusting" and touched him on the shoulder in the process.

About 10 minutes later Agent Reichle, who had not witnessed the incident himself, but who had spoken to two agents who were present, arrested Mr. Howards, telling him that he was being charged with assaulting the vice president. Later, Howards (who spent about three hours in jail) was charged with misdemeanor harassment that charge was later dismissed at the request of local prosecutor Mark Hurlburt. (you may remember him as the prosecutor of Kobe Bryant)

Now Mr. Howards has filed a civil lawsuit and the agents are contradicting each other in depositions. As the New York Times reports today (h/t David Feige):

The agent who made the arrest... said in a deposition that he was left hanging with an untenable arrest because two agents assigned to the vice president had at first agreed with a Denver agent that there had been assault on Mr. Cheney by Mr. Howards, then changed their stories to say that no assault had occurred.

Mr. Reichle, who did not witness the encounter, said in his deposition that he believed the vice president’s security detail had wanted the Howards arrest to go away so that Mr. Cheney would not be inconvenienced by a court case.



Basically, agents Doyle, McLaughlin and Daniels witness the man touch Cheney. Then, according to Reichle, Doyle describes the contact to Reichle and Daniels and McLaughlin agree. Reichle then arrests Howards, who is released 3 hours later.

Here's where it gets interesting. When Daniels and McLaughlin later claim in written statements that no assault occurred, Agent Reichle is left looking foolish. Reichle and Daniels then talk on the phone, but offer differing accounts of what was said. According to Reichle,

“I asked him if someone was pressuring him to change his testimony,” Mr. Reichle said in the deposition.

“What did he say?” asked Mr. Lane, the lawyer for Mr. Howards.

“He says, ‘No,’ ” Mr. Reichle said. “I said, ‘Well, this isn’t the rendition that I had heard three to four hours ago.’ ”

“And what did he say?”

“He hung up,” Mr. Reichle said.


So Reichle asks his supervisor to subject all the agents to lie detector tests (Where's an illegal wiretap when you need one!) and then, according to Reichle, who was asked what in a deposition his supervisor's reaction to this request was:

"“Don’t go there, Gus.”

[Deposing lawyer:] “What does that mean?”

“It means let it lie, drop it,” Mr. Reichle said.

In his deposition, Mr. McLaughlin said that Mr. Reichle had used the word “cover-up” as early as the morning after the encounter."


But here's the punchline of the article, and it's easy to miss. Where do you suppose Agent Reichle, the man who claimed Cheney's security detail changed their stories and left him hanging out to dry, works now? He's still a Secret Service agent. But as the article says, Agent Reichle,

"...has since been transferred to Guam."

Friday, January 11, 2008

Controversy Over Giving Teen Killers the Possibility of Parole?



Last year, as I described in a previous post, the vote on a United Nations resolution calling for the abolition of life imprisonment without the possibility of parole for children and young teenagers was nearly unanimously approved. The vote was 185 to 1 with the United States the lone dissenter.

A similar issue is before the U.S. Supreme Court this term in Pittman v. South Carolina, a case which boils down to the question of, as I asked in a previous post, whether "30 Hard Years for a 12-Year Old Killer" is "cruel and unusual punishment" under the Constitution.

As the New York Times said describing Pittman and the issues surrounding it,

"the United States stands alone in the world in convicting young adolescents as adults and sentencing them to live out their lives in prison. According to a new report, there are 73 Americans serving such sentences for crimes they committed at 13 or 14."


Now a State Senator from Nebraska is taking action on the issue. Dwite Pederson's bill would not require that those who were classified under Nebraska law as "children" when they committed murder be given parole, it would simply change Nebraska law to allow for the possibility of parole after either 20 of 25 years. According to the World-Herald article this morning:

In the bill introduced by State Sen. Dwite Pedersen of Omaha, those convicted of murder before their 18th birthdays could be considered for parole after 25 years.

Those convicted of murder before their 16th birthdays could be considered for parole after 20 years.


The article also notes that "Eight states and the District of Columbia prohibit the sentencing of youth offenders to life without parole. Colorado is the most recent to ban the sentence, acting in 2006."

The article describes a young woman, recently convicted of a murder, who would have been, and possibly still could, take advantage of the change in the law. Understandably, the family of the murder victims disagree, saying,

"[The girl, now 18, who was 17 when she committed murder] was proven guilty in a court of law of being involved with the murder of two innocent individuals even though she was a teenager when the crime occurred. If she was old enough to be capable of committing the crime, she is old enough to serve a life sentence without parole. . . . No matter what remorse or rehabilitation she undergoes now or in the future, she is still being allowed to live a life, even if it is not of her choosing. [The murder victims] were not given that opportunity."


You can't really refute the fact that a murder victim doesn't have the opportunity to live, but isn't that really addressing the issue?

The question is, do we want to deprive the parole board of having the possibility to grant parole to a person who was a "child" in Nebraska when they committed their crime? Do we want to deprive the "child," when they grow up and reach their 40's of having the opportunity and the incentive to rehabilitate themselves, to behave themselves in prison, to build a good case for parole when they reach their 40's?

What do you think?

Wednesday, January 09, 2008

Another Reason to Never Wear an Ascot



From the ABA Journal a few hours ago...

A Milwaukee judge known as a fastidious dresser held up a sentencing hearing for three hours yesterday because a prosecutor came to court wearing an ascot.

Judge William Sosnay said the ascot violates a court rule that requires lawyers to wear neckties and “borders on contemptuous," the Milwaukee Journal Sentinel reports.

“This is not about the definition of an ascot or a necktie," Sosnay said. "This is an issue which I believe deals with the integrity of the court."


When you threaten to hold a person in contempt for wearing an ascot, how much integrity do you have left?

I wasn't there, so maybe there's more to the story: Is the judge standing up to a prosecutor who pushed the limits of the rule requiring neckties or is he so anti-elitist, so blue collar, that a red ascot ignites a flame in his brain akin to to the one that led Ralphy to go over the edge in what became known as the "Scut Fargas Affair" in A Christmas Story?

The Milwaukee Journal article says that "the three people in the gallery ... had to wait two hours, 58 minutes" because of the "Ascot Affair." Said one of the innocent bystanders who ahd to wait:

"Don't they got a novelty shop in this place somewhere so he can buy a tie?"


I guess the more they fight with each other, the less anger they'll have to direct toward our clients?

Time for a Trial Lawyer in the White House?



With a few alterations to make it anonymous, shown below is an email I sent to a person writing on a listserve I subscribe to, describing my thoughts on John Edwards' campaign compared to Barack Obama's. I don't doubt that the poster, who stated his earnest belief that Obama has something intangible that Edwards does not, genuinely believes this and believes in Obama. I'm just pointing out my frustration with Obama's criticizing Edwards for being a "trial lawyer" and making the mistake Bob Kerrey did a couple weeks ago when he inaccurately described Obama as attending a "madrasa:" repeating a right wing talking point that will come back to haunt you later, in the general election. Anyway, here it is:

"It may be true that Obama speaks with fire and faith and shows an "ability to move a nation” with his charisma, but could he learn something from Edwards?

I agree with you that Obama is passionate and charismatic, but if he tells
voters that the best proof of his commitment to public service is that he
“didn’t become a trial lawyer” will he truly challenge corporations?

In other words, if you already adopt the language and stereotypes of the
corporately-funded “tort reform” crowd, will you stand up to them once you’re in
office?

I think Obama is an amazing candidate, but can’t figure out why he’d attack
Edwards this way. Perhaps it’s just a ploy to win, but if he eventually does
win, wouldn’t Edwards be a great running mate?

In short, while Obama’s Iowa victory is an amazing event, isn’t it also amazing
that a trial lawyer, who was outspent 3 to 1 by both Hillary and Obama, and who
refused to accept any PAC or corporate cash, got 30% of the Iowa vote, coming in
second?

It looks to me like the country is ready for “sweeping social change” but that
Obama still thinks, like a lot of Democrats, that you have to attack your own
constituencies to win.

While Obama is exciting, I still think only Edwards is saying what truly needs
to be said and having a great effect, win or lose. In fact, Danny Glover
stumped convincingly for him on Democracy Now a couple days ago, presumably
because Edwards said things like this:

- And this is what I see in America today. I see an America where last year the
CEO of one of the largest health insurance companies in America made hundreds of
millions of dollars in one year.
- I see an America where ExxonMobil’s profits were $40 billion just a couple of
years ago. . .
- All of that happening at the same time this picture of America emerges.
- Tonight, forty-seven million Americans will go to bed knowing that if their
child gets sick, they’ll have to go to the emergency room and beg for
healthcare…
- Thirty-five million people in America went hungry last year in the richest
nation on the planet.
- And tonight, 200,000 men and women who wore our uniform proudly and served
this country courageously, as veterans, will go to sleep under bridges and on
grates."

I think Obama’s win shows an appetite for “sweeping change” but wish he’d talk
more about the numbers, and the people behind them, that Edwards courageously
talks about.

Maybe then I’d have more of his favorite word, “hope,” that he will push to
change the hold corporations have on our lives, laws, political parties, and our
justice system.

If you can’t even accurately describe the problem, and have to resort calling
the guy who does a "greedy trial lawyer," will you really address the corrupting
influence of corporate power once you get in office, having gotten there with
both charisma and corporate cash?"


Oh yeah, I wrote this yesterday, when the conventional wisdom was that Obama's nomination was inevitable. I guess that's why they play the games: the pundits often get it wrong.

What do you think?

Tuesday, January 08, 2008

Criminal Defense Lawyer Video Game?



I used to worry about what my kids thought of my job when I was a public defender and they were in elementary school, hearing constantly from groups like MADD and DARE about how the police put bad guys behind bars, where they belonged. How would they rationalize, in their young minds, the fact that Daddy later stood beside these "bad guys" in court, trying to keep them out of jail, where all the authorities seemed to say they belonged.

I always thought I'd have to wait and explain this when they were old enough to see shades of gray in what their teachers described or when they realized that even the police need policing and the truth in Lord Acton's famous phrase about "all power corrupt"ing and "absolute power" tending to corrupt absolutely.

But then my daughter comes home with a new video game on her Nintendo DS called Phoenix Wright: Ace Attorney.

Yes, that's right criminal defense lawyers, a children's video game has one of us as the hero. His catchphrase? "OBJECTION!" delivered with his hand pointing directly at the bad guy, the prosecutor! As the Gamespot website describes the game:

"The game has you controlling Phoenix Wright, a lawyer fresh off the bar who is, initially, more than a little nervous. The first case you take on, a murder trial in defense of Phoenix's dopey best friend, Larry Butz, serves as a tutorial in which law firm chief Mia Fey guides you through the ins and outs of courtroom procedure...
. In Phoenix Wright: Ace Attorney, discovering the killer is not the surprise; instead, it's the way in which you bring him or her to justice. The events surrounding the murder always end up leading to the false accusations of innocent witnesses, and as a defense attorney, it's Phoenix's job to get a verdict of "not guilty," despite the lying witnesses, shady prosecutors, and a judge who sometimes forgets the letter of the law. "


Hilarious. And it seems to be finding a great reception in America after its introduction in Japan. According to Wikipedia:

Phoenix Wright: Ace Attorney was very hard to find in stores shortly after its North American release because of a shortage due to unexpectedly high demand...
The game received generally favorable reviews, most of which cited its interesting stories and enjoyable characters as strengths... Gamespot bestowed a "great" 8.8 score.


But, in a review that's bound to garner lots of respect for our profession's much maligned role in in the halls of corporate law firms, Marilyn Manson described the game as "$%#@ amazing" during an interview with E!

So, no more hemming and hawing when people ask you what kind of law you practice or say "how could you?" Just say, like PeeWee Herman said to Dottie at the end of his Big Adventure, "I don't have to play Phoenix Wright, Ace Attorney; I live it."

Tuesday, January 01, 2008

29-Year Old P.D. Builds Supreme Court Case Against Death Penalty



Lucky for me this article came out after the Simple Justice award...

One of the biggest capital punishment cases to come before the U.S. Supreme Court in a generation was put together largely by a young, fresh-out-of-law-school member of Kentucky's overworked and underpaid corps of public defenders.

David Barron, 29, filed an appeal on behalf of two Kentucky death row inmates, arguing that the three-drug cocktail used in lethal injections across the country can cause excruciating pain, and thus amounts to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution.

After three years of long hours on Barron's part, the Supreme Court agreed to hear arguments in the case on Jan. 7...

Legal experts said the Kentucky case apparently got the attention of the high court because it arrived fully developed -- it went through a full-blown trial with more than 20 witnesses, who argued both sides of the question of whether inmates suffer extreme pain while immobilized, unable to cry out.


David, whom the article describes as a "hardcore Boston Red Sox fan" who "draws professional hope from the way the Red Sox finally won the World Series after 86 years of futility" says:

"There's something to be said about representing the people who society casts aside," Barron said. "They are the ones often left to fend for themselves."


While that attitude is exactly what I admiringly described earlier today in this post, let's face it: The Boston Red Sox didn't win the world series two out of four years by paying their players what "most Kentucky's public defenders" receive as starting pay in Kentucky, $38,000 a year.

In fact, the Red Sox paid their players the second highest amount last year in Major League Baseball, $143,123,714, second only to the New York Yankees $195,229,045.

In contrast, "Kentucky spends about $33.5 million in 2005 (the last year for which numbers were available) on a population of 4.1 million. That's about $8.14 per person for public defense -- 23rd among the 30 state-run public defender offices nationally. Oregon leads the nation at $23.75 spent per person."

When I read the article about Kentucky Public Defenders, I thought of how impressed I was with the people I met at NCDC in 2003 who came as both teachers and students from Kentucky's statewide p.d.'s office. And then, I read a quote from an NCDC instructor I remember well:

"It's an uphill battle," said Ernie Lewis, head of the Kentucky Department of Public Advocacy. "We can't provide an O.J. defense."


Maybe not. But O.J. had the assistance of a few former p.d.'s, such as Barry Scheck and Peter Neufeld, on his "dream team." Sadly, however, what the article says about the perceptions of public defenders in the legal community at large is probably true, at least of most lawyers:

"Public defenders work one of the lowest rungs of the legal profession, one that is often not very highly regarded by other lawyers. Many young lawyers right out of law school often get their start as public defenders, and often race from case to case with barely enough time to read the file, much less do the in-depth investigation attorneys in private practice can do."


I'm not sure I agree with the assertion that P.D.'s have "barely enough time to read the file" as the good ones refuse to go in unprepared, and even go to jail rather than try a case on one days notice. Personally though, I was frustrated by the demands on my time when I was a p.d., as I seemed to go from one catastrophe to the next, like an "emergency room lawyer." Now I have the luxury of more time to investigate and prepare, but I'm also thankful for the time I spent as a p.d. It was great training but, at least for me, the time had come to try to pay down those student loans before my own kids needed to start taking them out.

Perhaps if we committed to paying off the student loans of state public defenders who stay in the job after getting the training, or at least allowed them to do some private work on the side, we wouldn't lose so many to the private sector so quickly.

It's great that David prepared and brought this case, which will be argued in less than a week. It's even better that he "was paired with... a fellow public defender with at least a decade of experience" as it takes both commitment and experience to adequately represent what Clarence Mock calls "the citizen accused."

Why Me?



I am very honored to be Criminal Defense Lawyer of the Year by Scott Greenfield at Simple Justice. Actually, I'm a little stunned. The exchange I had with the Juvenile Court Judge was posted almost as an afterthought, and I wasn't sure anyone would even notice. So, thank youver ymuch for the honor, Scott.

My first thought was to demand a recount or to ask why some other nominee like Jon Katz, Mark Bennett, Sunwolf or Barry Scheck wasn't named. After all, I'm in my sixth month of private practice, having worked in the Public Defenders Office for the last seven years since law school, proud to be a criminal defense lawyer but not exactly gifted with the talents these people consistently display in major cases. To paraphrase what George Kennedy said to Cool Hand Luke, I haven't done any "world shaking." (although I do have big plans for the new year!)

But then I read Scott's explanation of why he picked me. He writes...

"It's not that this incident reflects a picture perfect response to an overreaching judge, or an incident that one hopes to create through intransigence or disrespect. It was simply a brief snapshot of how a lawyer, without any reason to anticipate a confrontation, finds himself forced to make a decision as to whether he wants to fulfill his role in the scheme of the criminal justice system or play dead to appease a judge or just avoid confrontation at the expense of his client. This represents the sort of everyday decisions that defense lawyers are required to make, and David's choice, as a young lawyer faced with potentially harsh consequences, showed the fortitude that reflects the finest of the criminal defense bar."


After I read this, I feel a lot better about accepting the award because it shows Scott wasn't so much highlighting what I did as using this incident as a way to highlight the often thankless work criminal defense lawyers are required to do, often at low pay, while constantly being asked "how can you defend those people?" and being thought of as rich, slimy crime-enablers.

I didn't do anything extreme or brave; i just did what most other criminal defense lawyers would have done in the same situation. Like most of you every day, and like I said in the transcript, "I’m trying to do my job, the job you asked me to do." I didn't do anything heroic; I just stuck to my guns while the judge escalated the situation way beyond the way things usually go in the courtroom.

You would have done the same thing; you just haven't been confronted with a judge who would push things this far yet.

But the point is, as criminal defense lawyers, we all take these stands every day. Usually they don't involve handcuffs for us, but we take stands that protect people from the awesome power of the state, usually while simultaneously being thought of as the lowest rung in the legal hierarchy and accused of being "pro bad guy," as if that's all that were at stake in the criminal justice system.

So I'll gladly take the award and dedicate it to next year's winner: the "in the trenches," student loan buried, broken down car driving, criminal defense lawyer who refuses to work for the state or for the corporations, who doesn't give a rat's ass how his or her entry reads in next year's bar magazine, who fights for his or her clients even when they refer to him as a "public pretender" (I heard this one so much it became funny), who's the least likely ever (like me) to ever win a "lawyer of the year award" but who keeps fighting anyway, focused on keeping playing an essential role to keep the power of the prosecutors and the state in check and keep the criminal justice machine from feeding on more poor people.

Keep being a person with convictions, even though you may be standing beside a person with several priors.

So, at the risk of sounding like one of those satirical Budweiser commercials, "Here's to you Mr. or Ms. Simple Justice criminal defense lawyer of the year 2008." May you be just as surprised and shocked as I was to get an early morning email naming you as such and think "Why me?"

I mean, if I deserve it, you do too. Go get'em, tiger.

Friday, December 21, 2007

"Greatest Humiliation ... Ever"



From the "Best of the Web" website (h/t Digby) comes a story about a young woman from Iceland who decided to take a trip to New York for some holiday shopping and soon found herself cuffed in the airport. (Who knew you could be in line one minute and cuffed the next?)

Last Sunday I and a few other girls began our trip to New York....
-As I waited [airport officials] to finish examining my passport I heard an official say that there was something which needed to be looked at more closely and I was directed to...Homeland Security [and] told that... I had overstayed my visa by 3 weeks in 1995 [and] would not be admitted... and would be sent home on the next flight... A detailed interrogation session ensued.
-I was photographed and fingerprinted... asked questions which I felt had nothing to do with the issue... [and] forbidden to contact anyone...
-I was then made to wait... for 5 hours.
When 5 hours had passed and I had been awake for 24 hours, I was told that they were waiting for officials who would take me to a kind of waiting room. There I would be given a bed to rest in, some food and I would be searched.
-What turned out was something else. I was taken to another office exactly like the one where I had been before and once again along wait ensued.
-At this office all my things were taken from me [but I sent}... a single sms [message?]}to worried relatives and friends when I was granted a bathroom break. After that the cell phone was taken from me...
-I was exhausted, tired and hungry. I didn't understand the officials' conduct, for they were treating me like a very dangerous criminal...
-I was removed from the cubicle and two armed guards placed me up against a wall.
A chain was fastened around my waist and I was handcuffed to the chain. Then my legs were placed in chains.
-I asked for permission to make a telephone call but they refused.
So secured, I was taken from the airport terminal in full sight of everybody.
-I have seldom felt so bad, so humiliated and all because I had taken a longer vacation than allowed under the law...
-We ended up in front of a jail. I could hardly believe that this was happening. Was I really about to be jailed? I was led inside in the chains and there yet another interrogation session ensued.
-I was fingerprinted once again and photographed. I was made to undergo a medical examnination, I was searched and then I was placed in a jail cell. I was asked absurd questions such as: When did you have your last period? What do you believe in? Have you ever tried to commit suicide?
I was completely exhausted, tired and cold.
-Fourteen hours after I had landed I had something to eat and drink for the first time...porridge and bread...
-I was afraid and the attitude of all who handled me was abysmal to say the least. They did not speak to me as much as snap at me.
-Once again I asked to make a telephone call and this time the answer was positive... [but] the telephone was setup for collect calls only and it was not possible to make overseas calls.
-The jailguard held my cell phone in his hand. I explained to him that I could not make a call from the jail telephone and asked to be allowed to make one call from my own phone. That was out of the question.
-I spent the next 9 hours in a small, dirty cell. The only thing in there was a narrow steel board which extended out from the wall, a sink and toilet.
-I wish I never experience again in my life the feeling of confinement and helplessness which I experienced there.
-I was hugely relieved when, at last, I was told that I was to be taken to the airport, that is to say until I was again handcuffed and chained.
-Then I could take no more and broke down and cried. I begged them at least to leave out the leg chains but my request was ignored.
-When we arrived at the airport, another jail guard took pity on me and removed the leg chains. Even so I was led through a full airport terminal handcuffed and escorted by armed men. I felt terrible.
On seeing this, people must think that there goes a very dangerous criminal. In this condition I was led up into the Icelandair waiting room, and was kept handcuffed until I entered the embarkation corridor.
-I was completely run down by all this in both body and spirit. Fortunately I could count on good people and both Einar (the captain) and the crew did all which they could to try to assist me.
-My friend AuĂ°ur was in close contact with my sister and the consul and embassy had been contacted.
-However, all had received misleading information and all had been told that I had been detained at the airport terminal, not that I had been put in jail. Now the Foreign Ministry is looking into the matter and I hope to receive some explanation why I was treated this way.


Welcome to Tom Tancredo's America, baby! Crime is a disease and he's the cure! Maybe next time you'll think twice before you stay 3 extra weeks, or come over here to spend your money! Here's an explanation for you: don't do the crime if you can't do the time! Don't come for our sales if you don't like our jails!

(I know, I shouldn't laugh at things like this, but they're so stunning that I almost have to.)

How many times could criminal defense lawyers retell the part of the story below, after meeting with clients?

I saw the officials in this section handle other cases and it was clear that these were men anxious to demonstrate their power. Small kings with megalomania. I was careful to remain completely cooperative...


Yeah, guns and cuffs have a way of making you "cooperative," don't they? Tazers work pretty well too, I'm told.

Thursday, December 20, 2007

Death of a Jazz Legend / Addict



About 20 years ago, when I was in college, my dad took me to Washington, DC for a week as he had business, and a hotel room, there at the height of cherry blossom time. One night he insisted that we go to Blues Alley, a small jazz and blues club in Georgetown. I remember telling my dad the cover was too much, that he should save his money, but he insisted that I have this experience.

When we got in the club, I was amazed how intimate the atmosphere was. I could look right into the saxophonist's eyes as he played. In fact, when we sat down I remember him looking at us, as if concerned that we would be drawn into the music, as if he was trying to draw some energy from the crowd. It reminds me of Josh Karton's statement about real artists being that way because they're more concerned with what the audience is hearing, and how they're reacting, that in how the material is being delivered. In short, he seemed to focus on us and this created an incredible experience, and my first exposure to live jazz.

My dad was right. It was worth the cover as it's not often you remember a night 20 years ago that vividly. As my former poetry teacher described the feeling of writing a good poem, it was a "vertical moment in an otherwise linear life."

The man's name was Frank Morgan and he died last week at age 74.

On Tuesday, NPR's Fresh Air featured a 1987 interview he did (I saw him in 1988) and I was amazed to hear that he spent about 20 years of his life in prison, struggling with a heroin habit that he finally kicked in the mid-80's. The tragic part of the interview was that he described being treated like a celebrity in prison but being "a little fish in a big sea" on the outside. He described being able to play every day in prison and even said, as quoted on wikipedia:

"The greatest big band I ever played with was in San Quentin. Art Pepper and I were proud of that band. We had Jimmy Bunn and Frank Butler, and some other musicians who were known and some who weren't, but they could play. We played every Saturday night for what they called a Warden's Tour, which showed paying visitors only the cleanest cell blocks and exercise yards. But people would take that tour just to hear the band."


The NPR interview can be heard at this link. Wikipedia outlines Morgan's story:

Frank Morgan showed a great deal of promise in his early days, but it was a long time before he could fulfill his potential...in 1947 and was approached by Duke Ellington who wanted the then 15-year-old Frank to go on the road with his band. Frank's father wanted his son to finish school so the Ellington gig never materialized, but by the time he was 17, Frank was working at LA's Club Alabam, backing the likes of Josephine Baker and Billie Holiday. Morgan worked on the bop scene of early-'50s Los Angeles, recording with Teddy Charles (1953) and Kenny Clarke (1954), and under his own name for GNP in 1955.

Unfortunately, around that same time Frank followed his idol and mentor Charlie "Bird" Parker into heroin addiction, and spent most of the next thirty years serving time for thefts to support his habit. Yet except for periods in the Los Angeles County jail system, he never strayed too far from music. At most penal institutions, there were bands made up of inmates, and Morgan was greeted as a celebrity. He was constantly made gifts of mouthpieces, drugs, food, cigarettes.

When he was not incarcerated Frank performed occasionally around LA, but it was not until 1985 that Morgan, with the help of artist and future wife Rosalinda Kolb, managed to leave his life of "questionable interests" behind him and once again concentrate on his music. Resuming his recording career after a thirty-year hiatus, releasing "Easy Living" in June 1985, Frank was rediscovered and his unique history, combined with his equally unique sound and story-telling ability on his horn, made him a media star. He made multiple appearances on the Today Show in the '80s and '90s; starred in "Prison-Made Tuxedos," an off-Broadway play about his life, in 1987; was the first subject of Jane Pauley's "Real Life" primetime TV show on NBC in 1990; and won the Down Beat Critics Poll for Best Alto Saxophonist in 1991.

Wednesday, December 19, 2007

Is 30 hard years for a 12 year old cruel and unusual?



That's the issue in Pittman v. South Carolina, a case in which a 12-year old who shot and killed both of his grandparents was sentenced to 30 years in prison without the possibility of parole. A petition for cert was filed yesterday in the Supreme Court (h/t How Appealing) alleging that:

...the 30-year sentence violates Christopher Pittman's Eighth Amendment protection from cruel and unusual punishment.

Such a lengthy sentence is "unconstitutionally disproportionate as applied to a 12-year-old child," according a copy of the petition provided by the Juvenile Justice Foundation. It said Pittman "is the nation's only inmate serving such a harsh sentence for an offense committed at such a young age."


Opponents of Pittman's sentence have created a web site devoted to his release, or at least his ability to apply for parole before he's in his mid-40's.

Don't get your hopes up. As I said in a previous post:

The vote on a United Nations resolution calling for the abolition of life imprisonment without the possibility of parole for children and young teenagers was nearly unanimously approved. In fact the vote was 185 to 1 with the United States the lone dissenter.


Or, as the New York Times described our national response to these issues compared with other nations:

[T]he United States stands alone in the world in convicting young adolescents as adults and sentencing them to live out their lives in prison. According to a new report, there are 73 Americans serving such [life without parole] sentences for crimes they committed at 13 or 14.