"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 Auður 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.

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.

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.

Don't Believe the Snitch

Yesterday, Major League Baseball was rocked by the release of the Mitchell Report which contained allegations of widespread steroid use by current and former players.

Of course, the place most people turned were the names of players who, by their very inclusion in this very official looking report, were obviously guilty. Quickly, sportswriters like Dan Wetzel of Yahoo! Sports, in an article entitled, "Clemens is no different than Bonds" jumped to the conclusion that just being mentioned in the report, for people such as the Rocket, was enough proof to convict. Not only that, but the entire legend of a guy I saw pitch in the College World Series 22 years ago, was "gone." As muckraking journalist and truthseeker Wetzel put it:

It's all gone now, the legend of Rocket Roger dead on arrival of the Mitchell Report; one of the greatest pitchers of all time, his seven Cy Youngs and 354 career victories lost to history under a pile of lies and syringes. Clemens was injected with performance-enhancing drugs and human growth hormones by his former trainer starting in 2000 and continuing many times through the years, trainer Brian McNamee told George Mitchell in great detail.

Wetzel, showing a laughable lack of knowledge about people's ability to lie openly in court when it serves their interests, even says...

"The smoking gun comes from McNamee, a former New York Yankees employee who used to work as a personal trainer for Clemens and his buddy Andy Pettitte, who is also cited in the report. McNamee is also a witness in a federal investigation and spoke to Mitchell and federal investigators under the penalty of perjury."

In other words, McNamee's allegations must be true as they were:
1. In the Mitchell Report
2. Given in "great detail," and
3. Spoken under "Penalty of Perjury"

So they must be true, right? "Why even have this trial?," in other words. I mean he's been convicted in the press and the press never gets it wrong, especially after the lessons they learned on those WMD's, right?

Well, as Neil Young once said "there's more to the picture than meets the eye" (hey, hey, my my!). You see, Mr. McNamee wasn't merely talking under penalty of perjury and "in great detail," he was also out to save his own skin. He's not merely a former Yankee employee. He's also a snitch.

As Roger's lawyer says,

Clemens's lawyer, Rusty Hardin, said he had been told that McNamee was pressured by Jeff Novitzky, a tax investigator for the U.S. government, to give up names or face prosecution. McNamee agreed to cooperate with federal prosecutors under the terms that he would not be charged with a crime if he told the truth to the federal authorities and to investigators working for the report's author, former Senator George Mitchell.

Hardin criticized Mitchell, for naming players based on uncorroborated allegations. "He has thrown a skunk into the jury box, and we will never be able to remove that smell...,"

When I was in law school I clerked for a great lawyer named Clarence Mock. I was hooked on criminal defense work when I read a transcript in which the police took a witness to the scene of a "crime" and asked for the truth. After he told them he saw nothing about 20 times, the officer said something to the effect of "Do you know what we do to people who cover up for crimes? We charge them as accessories and they're punished the same way the criminals are. In this case, that could mean the death penalty."

After the witness continued to deny seeing the alleged perpetrator, our client, at the scene of the crime, even under threats of getting the death penalty (an obvious bluff) he finally began asking to go home and claiming to be hungry. The officer said something like, "Just tell us what you saw and we'll go eat those hamburgers that are in my car." Of course, immediate hunger outweighed possible future lethal injection and the "witness" started telling the officer the "truth," that he'd seen our client standing by the side of the road. So they pat the witness on the back, thank him for telling the truth, and go eat the burgers. The only problem was as soon as the dog got his treat, he didn't want to play anymore and said, "You know, everything I told you I made up. I didn't see anybody there."

I tell this story, which later lead to an acquittal before a judge, to illustrate the lengths the state will go to to get the "truth" which is occasionally nothing more than the information necessary to fulfill their current theory of the case.

The "penalty of perjury" and the "great detail" that lie behind the lies that are told in court all the time don't compare to the threat a snitch is facing when told:
1. Tell us the truth.
2. We'll keep asking you until you tell us what we want to hear.

I have no idea whether the Rocket used the roids. But I know that the greatest pitcher of the modern era shouldn't be convicted on the word of a "Yankees employee," who not only had to endure the horror of working under Steinbrenner, but who was telling the authorities what they wanted to hear to keep from being a trainer in what Spongebob refers to as "the stony lonesome."

His own "performance" was enhanced by his desire to stay out of jail. Before we ruin and write off the Rocket, maybe we should consider the source: the snitch.

Discovering the Client's Story and Telling it Well

Josh Karton says we are all "hard-wired" for stories. Recently I saw this dramatized when I picked my daughter up at Borders at 2 a.m. after she waited for hours to buy the last Harry Potter book. Even in this digital age, it was amazing to see thousands of people at one bookstore and to realize there were many other bookstores that looked the same way in Omaha and perhaps millions of bookstores across the country looking the same way.

But how do we tell the judge a good story, one that doesn't simply entertain them but makes them genuinely empathize with our client and minimize the sentence she's facing?

I tried something new once after losing several appeals of termination of parental rights cases before the Nebraska Court of Appeals. I began my argument with the question, "May I tell you a story?," assuming that while they liked the respect inherent in "May it please the Court," that they were up for something different and perhaps bored with it. I knew it would get their attention and that I needed to do that to have a shot at winning this longshot appeal.

I went on to tell a story, seemingly unrelated to the case, about me watching baseball on t.v. and my wife asking me "How can you watch this stuff day after day? It's so boring." I said to her, and to them, "Yeah, you're right, it's boring but," I went on, "it's the only thing on t.v. that you don't know the ending to. And once in awhile, it's not boring; it's magical, and somebody digs down deep and surprises you, and you see an ending that's more dramatic than anything any made for t.v. drama. That's when it's amazing, when you see somebody get a chance to prove themselves against all odds, and they do something dramatic, right there live, before your eyes. That's why I watch baseball," I said, "for those moments when people do amazing things that you never expected."

The judges were still looking at me dumbfounded, and, while they hadn't even answered my question about whether they wanted to hear a story, I took their silence as agreement and carried on anyway. That's when I brought the story back to the case, saying "and that's what this case is all about, my client never had the chance to step up to the plate. And because she didn't get this chance, we never got to see how this story might have ended, how something magical might have happened..."

And then I went into my argument about how my client's parental rights should not have been terminated, how she didn't get the chance to see if she could do what was asked of her in an evaluation that was before the judges as an exhibit. The phrase "she never got a chance" became a theme that I hoped they would take back with them. I think I even mentioned something about the Bad News Bears, hoping they might have taken their kids there and remembered the scene at the end where the game ends early to chants of "Let Them Play!" as I wanted to get my client another chance to "play" too.

But, it didn't work.

I lost the case. But I felt like my presentation, my story, worked despite the fact that we lost, because the "live event" seemed to get their attention. My goal was to get them to look at the case differently, more closely, and to have the phrases I used echoing in their minds when they read the exhibits and crafted their opinion.

I wish I would have had the chance to ask them whether my odd way of beginning an argument repelled or attracted them to my client's cause. I knew it was a tough case to win and that drastic action was necessary. But, it didn't work, we didn't win, so I can't claim anything other than a feeling that it came off pretty well, but evidently not well enough.

Maren Chaloupka once wrote that there is a fine line between a "courtroom stunt" and a successful, engaging presentation that ultimately wins the case. My story might sound like a stunt described in words, but it felt like it hit home, even to judges who were uncharacteristically speechless throughout my argument.

But, let's face it. We've all seen and perhaps even performed courtroom stunts that had good intentions but didn't work in the moment. So what's the difference between a stunt and a good story? A stunt is about the lawyer's ego, about her need to be "different" or simply on stage. A good story, however, is about the client, about getting the judge to see that person as something other than a case number or offense, empathizing with the client's choices and background and sentencing the person accordingly, mercifully.

I've told some good stories in court that got the judge's attention, but I've also tried and failed, when my ideas sounded better in rehearsal than "on the stage" of a courtroom. But I've also seen a lot of lawyers who are afraid to do anything that's not "by the book" even when the case cries out for something creative and unorthodox, when not doing so turns the trial into a slow plea.

One phrase I remember from NCDC is "a trial is a contest between competing stories. The prosecutor is handed her story in the form of the police reports. But this is only one side of the story and until we discover our client's story, their story will win and our clients will lose." I have even heard a law enforcement officer say that "it's all in how you write the report" as if he was aware that what he wrote would be accepted as the truth, even when he was simply making up stories.

One luxury of private practice that I didn't have as a public defender is the extra time to "discover the story" of the client. In fact, the other day I met with a client for an hour before we cancelled her warrant, learned all about why she missed court, how she moved away to be closer to the couple who wanted to adopt her baby and then moved back to Omaha with the child after deciding to keep it. I learned that she came to Omaha after meeting the father of her child, how she met him while travelling across the country selling magazine subscriptions, and how he promised her a great life here, thousands of miles away from her family, and how he beat her up when she got here. She was charged with assaulting him, with damaging his car, and with disorderly conduct, but that was only the last chapter in a story that needed to be discovered.

When we got to court, the judge I'd picked as likely to let my client go with no bond was gone, replaced by a judge who would set a bond if we didn't enter a guilty plea that day to either assault, damage to property, or disorderly conduct. But the hour spent discovering her story paid off as the judge, after hearing my client's story behind missing her trial date, for purposes of deciding whether to set a bond, later asked the prosecutor to drop the assault and damage to property charges and plead to the disorderly conduct for a $25 fine.

The car my client had scratched with the paint can, that I was worried would lead to payments of restitution, was not important to the judge after he heard how the owner had two previous domestic violence convictions for assaulting my client and how she'd been struggling with what to do with the baby he'd left her with. The hour spent "discovering the story" paid off and probably saved her days in jail and hundreds in restitution, and perhaps an assault conviction. I didn't have to even attempt a courtroom stunt as her story was engaging enough by itself.

But how do you know when the time is right to step out of "lawyer mode" and try storytelling techniques that hopefully grab the fact finder's attention and win for your client? Like Jeff Bridges says about Duracell, "it just has to work." But if staying in "lawyer mode" isn't working, maybe it just has to change?

Defendant's "Failure" to Testify?

Mark Bennett, a student of Terry McCarthy, who knows the importance of choosing language that not only doesn't demean your client but which describes him or her in the best possible light, spots something subtle but potentially important in Texas' Criminal Jury Instructions:

"You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify..."

Nebraska's instruction isn't quite so bad, but is entitled, "DEFENDANT'S FAILURE TO TESTIFY." (NJI2D Crim. 9.4) It doesn't mention the word "failure" in the instruction, but the judge reads the title before getting to the instruction itself:

"The defendant has an absolute right not to testify. The fact that the defendant did not testify must not be considered by you as an admission of guilt and must not influence your erdict in any way."

There is also no mention of the source of the privilege, but the comment says "the committee left mention of the Constitution to argument of counsel." In other words, it looks like defense attorneys need to start arguing for (1) a mention of this as being a "Constitutional" right and, (2) objecting to it being described as a "failure."

In fact, my former boss, Tom Riley, is arguing a death penalty case right now and I'm guessing that the defendant won't testify, meaning that the jury will undoubtedly hear about his "failure" when the judge instructs the jury. I'm sure my boss has more than this on his mind right now, but, in a case like this, even a subtle word choice might be the difference between life and death.

"I'm a piece of (deleted) and now I'm going to be [in]famous"

Those are the words Robert Hawkins wrote in a note left in his room before he went to the Westroads Mall and opened fire randomly with an AK-47. From the local news story...

"Maruka-Kovac said Hawkins lived with her, her husband and their two sons. She said that the last time she saw him, she thought he was going to pick up his eyeglasses. The last time she talked to him, about 40 minutes before the shooting was reported to police, he told her he was sorry to be a burden and thanked her for taking him in. He also told her for the first time that he had been fired.

"I tried to talk to him and say, 'Come on home. We'll work it out,'" Maruka-Kovac said.

She said he told her it was too late, and that he'd left some notes in his room to explain why.

"He wrote, 'I'm a piece of (deleted) and now I'm going to be famous,'" she said.

Maruka-Kovac said she found the notes, called Hawkins' mother and then the police. It wasn't long before reports of the shooting were everywhere.

"I had a sick feeling when I heard about it," she said. "I can't believe he would go this far. He was a good-hearted kid. He was just going through some rough times."

I was in court getting a 12-year old's warrant cancelled when the news came that two had been shot at Westroads Mall, a mall where my wife used to work about five years ago. Then, after I stopped into another lawyer's office to talk about a personal injury case, the news came that 8 were dead. My wife, who was very familiar with that store, describes it as the most open of any retail store, with a clear view from the third floor onto the two lower floors and few walls or obstacles to hide behind besides racks of clothes.

Like a lot of criminal defense lawyers, my first thoughts went to "I hope it isn't one of my clients" as a lot of us can easily think of people about whom the question seems to be not "if" but "when."

The two scenes I'll remember most about this incident are the guy sitting next to me, by himself, at a stoplight, pushing up his glasses and wiping away tears, evidently hearing a report on the radio or just thinking about what the only news story has been around here lately. The other "scene" I'll remember is my dad calling and leaving me a message asking if we were out Christmas shopping last night and then saying, "but give me a call, would you?" It reminded me of the time he called at 6:30 a.m. when I was in college to "make sure I'd checked my oil lately."

Luckily there were a lot of officers on duty for Bush's visit, which evidently made the response quick. Unfortunately when they got there, they only found the effects, and ultimately the cause, lying next to his step-father's AK-47, smuggled in under his black sweatshirt.

Naomi Klein's The Shock Doctrine

As a follow up to yesterday's post about Paul Krugman's dire forecast about the economy, below are two paragraphs that stood out as I read Naomi Klein's great book The Shock Doctrine.

A more accurate term for a system that raises the boundaries between big government and big business is not liberal, conservative or capitalist but corporatist. Its main characteristics are huge transfers of public wealth to private hands, often accompanied by exploding debt, an ever widening chasm between the dazzling rich and the disposable poor and an aggressive nationalism that justifies bottomless spending on security. For those inside the bubble of extreme wealth created by such an arrangement, there can be no more profitable way to organize a society. But because of the obvious drawbacks for the vast majority of the population left outside the bubble, other features of the corporatist state tend to include aggressive surveillance, once again, with government and large corporations trading favors and contracts, mass incarceration, shrinking civil liberties, and often, though not always, torture.
...
That is how the shock doctrine works: the original disaster -- the coup, the terrorist attack, the market meltdown, the war, the tsunami, the hurricane -- puts the entire population into a state of collective shock. The falling bombs, the burst of terror, the pounding winds serve to soften up whole societies much as the blaring music and blows in the torture cells soften up prisoners. Like the terrorist prisoner who gives up the names of comrades and renounces his faith, shocked societies often give up things they would otherwise fiercely protect... Evacuees at the Baton Rouge shelter were supposed to give up their housing projects and public schools. After the tsunami, the fishing people in Sri Lanka were supposed to give up their valuable beachfront land to hoteliers. Iraqis, if all had gone according to plan, were supposed to be so shocked and awed that they would give up control of their oil reserves, their state companies and their sovereignty to U.S. military bases and green zones.

I'm not finished with the book yet, but I am amazed at the parallels Klein draws between the will to torture, the will to invade, and an almost fundamentalist view of free markets with no tolerance for any interference. She describes true believers of Milton Friedman's economic philosophies as believing that the real enemy of progress was not communism or totaliarianism but instead people who believe in a mixed economic system in which government steps in to correct the effects of an unregulated free market.
Sounds a lot to me like a group of group of people whose supporters would write books with titles such as "In Defense of Internment" or "Treason" or even "How to speak to a Liberal, if you must." As Bill Maher says, they run on a platform of "government doesn't work" and then get into power and prove it.

It's time to get beyond labels such as "Democrat" and "Republican" and instead begin to look at candidates in terms of their "Corporatist" tendencies.

Paul Krugman's Scary Observation

It's a little off topic, but I read this quote from New York Times columnist Paul Krugman from his Monday column. Frightening, don't you think?

The financial crisis that began late last summer, then took a brief vacation in September and October, is back with a vengeance. How bad is it? Well, I’ve never seen financial insiders this spooked — not even during the Asian crisis of 1997-98, when economic dominoes seemed to be falling all around the world.

This time, market players seem truly horrified — because they’ve suddenly realized that they don’t understand the complex financial system they created.
...
Why was this allowed to happen? At a deep level, I believe that the problem was ideological: policy makers, committed to the view that the market is always right, simply ignored the warning signs...And free-market orthodoxy dies hard. Just a few weeks ago Henry Paulson, the Treasury secretary, admitted to Fortune magazine that financial innovation got ahead of regulation — but added, “I don’t think we’d want it the other way around.” Is that your final answer, Mr. Secretary?

I haven't had a chance to read Krugman's latest book, The Conscience of a Liberal, yet, but am currently reading Naomi Klein's The Shock Doctrine about the "Chicago Boys" and their effect on modern economies, and politics. If you've read the book, you know the phrase "free-market orthodoxy" is an understatement as used to describe the followers of Milton Friedman, true free-market fundamentalists, as described by Klein.

Alan Arkin on Acting (and Lawyering?)

Ever since I had the chance to attend seminars with Josh Karton, (the actor and writer turned trial lawyer instructor) I've been fascinated with how much lawyers can learn from actors. After all, when we're in trial, why not apply the techniques of the people whose specialty is captivating a live audience? Why try to reinvent the wheel in the courtroom when the techniques of the stage translate so well?

Josh Karton assisted Neil Kaytal before he argued Hamdan v. Rumsfeld before the Supreme Court and reportedly was able to get the brilliant law professor to be much more persuasive by placing nine of his kids' teddy bears in chairs before him during "warmup" arguments. This got the obviously extremely intellectual law professor to speak much more like he would if he'd been at home, telling his wife and kids about why the case was so important, rather than as a law professor making his first Supreme Court argument.

Some will laugh at that idea, thinking that the Supreme Court makes it's decisions purely intellectually, having no time for theatrics, "tricks," or teddy bear talk.

But you can't argue with the result, as Hamdan represented one of the most decisive blows to the excesses of the Bush administration thus far.

So I've tried to read up on the subject (even though an author I love, Anna Devere Smith, accurately says that "talking about acting is like dancing about architecture") and came across a book called "The Actor Speaks:Twenty-Four Actors Talk About Process and Technique" which features interviews of actors discussing their craft. The best interview is that of Alan Arkin, and includes this quote:

“The only time I was able to have a good time was when I got to the point in the role was playing me. When I wasn't acting anymore. It happened to me for the first time I was 19, and I became a junkie for that experience. The driving force, not only of my work of my life, is that experience. When you're not doing it anymore, it's just happening. You were just off somewhere in the sideline going “ Go, Go! Don't stop! It's okay!” Doing 50 things you never did before and that you’ll never do again. It’s playing you. The first time it happened was a play... I was playing something that I had no understanding of it all, a soldier home on leave, a husband and a father -- none of which I had ever experienced. I killed myself on the production... Then in one of the dress rehearsals, I went on stage, and I was no longer there. The character was there, and I just had to get out of the way. It was like downhill skiing on an endless perfect run, or surfing the perfect wave in Hawaii. Someone once asked me if it was an out of body experience. It never occurred to me that it was but the way people describe it, it feels that way. I felt like it was 40 feet away watching the performance. All my critical faculties were off with my observer, but onstage there was nothing but the character. Both of those people were me.

What took me years and years to find out was that this experience could happen to anybody in any walk of life. I became a junkie for acting, because I felt that the power of that experience lay in acting. It took years to discover that it didn’t lay in acting, it lay in me. Experiences like that cannot happen unless you are deeply devoted to whatever you're pursuing.”

I've been trying to become a good trial lawyer since I believe in the "role" trial lawyers play and also because I've found what my trial ad teacher told me to be true. He said something to the effect of "It's often a lot of work but unlike some other areas of the law, it's occasionally exhilarating."

But I've also found it true that the "experience" is rarely "exhilarating" unless I'm "deeply devoted to whatever [I'm] pursuing."

This experience reminds me of something Josh Karton said when I had the opportunity to work with him at Trial Lawyers College. I don't remember the quote exactly and haven't reviewed my notes in awhile, but remember him saying something like: "When you care about the audience's experience more than your own, something magic happens."

Doesn't Karton's advice sound like it will take you to that place Arkin described when he "felt like it was 40 feet away watching the performance."

As lawyers it's not about us, it's about the client, but if our "performance" motivates the jury and thus helps the client, don't we all need to realize what took Arkin "years and years to find out", that the experience of really connecting with an audience and using your own exhilaration to help your client win "could happen to anybody in any walk of life," even a lawyer whose law school experience probably taught her to check her emotion and heart at the door of the courtroom?

Please Don't Label My Client

Last week I caught a portion of an NPR show called The Parents Journal which featured Dr. Scott Shannon, author of Please Don't Label My Child. The book's subtitle gets closer to its real point: "Break the Doctor-Diagnosis-Drug Cycle and Discover Safe, Effective Choices for Your Child's Emotional Health"

At first I thought this was another John Rosemond wannabe, simplifying a complex problem into a simple solution and who was probably more of a political commentator than a true child advocate. But I was wrong. It was a story he told that convinced me he was truly onto something. I haven't read the book, but the story reminded me of a lot of delinquents who have their symptoms treated but sometimes aren't able to address the root of their problems.

Dr. Shannon described a child being referred to him who was exhibiting a lot of behavior problems in school. After diagnosing him as something along the lines of "oppositional defiant" the doctor prescribed mood stabilizing drugs and the kid's behaviors improved greatly. End of story? Nope, not quite.

Shortly thereafter the kid disclosed ongoing sexual abuse, meaning that the behaviors weren't organic, but were more like a pool ball responding to being struck, repeatedly, by an outside source. In "numbing" the child's behaviors rather than getting to the root of them, the doctor was confusing causes and effects, and perhaps allowing the continuance of an abusive situation for a young child.

So that's what brought the book about. It reminded me of the juvenile delinquency client who disclosed to me that he'd been sexually abused by an older relative. Until we learned this, we treated the symptoms without realizing that they were responses to abuse and not manifestations of delinquency.

I haven't read the book yet, but I wonder how many other kids are "treated" this way: comfortably numbed and blamed, even sent back to abusive situations when the focus is on them and not on the source of the behavior.

Medication can be miraculous, but it can also be an easy way out for doctors, judges, attorneys and providers. Like Juvenile Detention Centers, it's probably overused, becoming the default treatment when the bureaucracy fails to get to the root of a kid's problem.

Along those same lines, Scott Greenfield at Simple Justice links to a link to a New York Post OpEd by an autistic man suffered from a system that tried to make him be "normal" when he was simply misunderstood. An excerpt:

"My isolation, combined with a longstanding rift I had with my family, led to severe depression by age 9, which went undiscovered until I was 14 or so. Unable to express my emotions, I was placed in outpatient therapy for four years, which was enough to allow me to see my existence as valid. In all, I'd say that part of my life wouldn't have happened if I were better understood and wasn't persuaded that I was diseased, disordered or sick and in need of a cure.

Parents, educators and others who work with autistic people should take these words to heart, and continue to do all they can to work with autistic kids and teens, rather than trying to make them normal."

Feeding the Wolves

I met an old friend from law school today for lunch and we discussed how many lawyers seem to enjoy arguing over every detail, even when it does their client a disservice. When I got back to the office, I found this story from the Trial Lawyers College listserve:

Two Wolves

One evening an old Cherokee told his grandson about a
battle that goes on inside people. He said, "My son,
the battle is between two 'wolves' inside us all.
One is Evil. It is anger, envy, jealousy, sorrow,
regret, greed, arrogance, self-pity, guilt,
resentment, inferiority, lies, false pride,
superiority, and ego.

"The other is Good. It is joy, peace, love, hope,
serenity, humility, kindness, benevolence, empathy,
generosity, truth, compassion and faith."

The grandson thought about it for a minute and then
asked his grandfather: "Which wolf wins?"

The old Cherokee simply replied, "The one you feed."

A lot of lawyers feed the wrong wolf, in my opinion, but I have to admit that this is something I need to work on as well. Which wolf do you think law school teaches you to feed?

20 years for $1500?

I occasionally use craigslist to sell things around the house. In fact, I tried to sell a piano (later gave it away) for $200 and got an email telling me to take it off the market tand that a "cashier's check" for $200 was on its way. That message was then followed by another that said the man's assistant had accidentally made the check out for $1200 and that if I could just cash the check and give the difference to the man who picked up the piano, we'd all be happy.

The "buyer" was from Nigeria and apparently had just inherited a bunch of money from a Nigerian prince. How could I lose?

As if that wasn't suspicious enough, the check arrived in a fedex envelope (I'd heard they do this to avoid mail fraud charges) and when I called the company to verify the check, they told me their checks had been used in frauds all across the country.

But other than this, I've had good luck with Craigslist as long as I've followed their advice to trade locally and get cash.

Then last night, bored after a day of eating and football, I checked the "legal services" portion of Omaha Craigslist for the first time, and saw this ad:

Misdemeanors $750; Felony - Fourth and Third Class - $1,500. Call David Tar***, Tar*** Law Office, 402-960-****.

I've never met this lawyer, but we share the same first name and the same first three letters of our last name. Even our phone numbers are very similar as both start with "960" and end with combinations of "3321." I've even received the guy's mail by mistake in the past.

Here's the problem, though. A "third class" felony in Nebraska carries, under section 28-105, this penalty:

Class III felony Maximum - twenty years imprisonment, or twenty-five thousand dollars fine, or both. Minimum - one year imprisonment.

So, you're a criminal defendant in Nebraska, facing up to twenty years, and you see an ad for a lawyer who will represent you for a flat fee of $1500! You think, "that's less than $100 per potential year;" what a deal!

But think about that for a second: You're facing up to 20 years in what Spongebob once called "the stony lonesome," you need a competent lawyer who will stand up against the awesome power of the state and you're scared. But, like most criminal defendants, you're also broke, living paycheck to paycheck, and you probably were found indigent and had a public defender appointed to represent you, as in Douglas County the "indigency hearing" usually consists of the judge asking you if you want to hire your lawyer or have a free one appointed.

Like a person diagnosed with cancer, however, you might, after talking to your p.d., decide to get a second opinion and scout out what a private attorney will cost. Then you find a guy who will take your case for just $1500!

But what will $1500 buy you, you ask? Well, you assume your lawyer is the expert, so you put your trust in him or her, again like a person facing a cancer diagnosis.

But, let's be honest, do you think that will buy you a motion to suppress, a focus group to prepare for your jury trial, hours of preparation, years of experience in dealing with the varied personalties of judges, prosecutors and potential jurors?

Nope. It will buy you a quick plea.

It's like going to the doctor for a pain in your head and having her tell you "I can fix that for $1500;" it won't buy you brain surgery. It will probably buy you a quick prescription even if your ailment truly cries out for $100,000 in medical care.

Not a fair comparison you say? After all, a doctor could save your life, but this lawyer is only dealing with TWENTY YEARS OF IT!

You see my point? You don't go to a doctor and say "Fix my problem for $1500." You let him or her diagnose you and decide whether you need $1000 worth of treatment or $100,000. And if you find someone who says she'll fix you for $1500 without first diagnosing your condition, run the other way fast!

Find a lawyer you feel comfortable with, who has passion, who cares about your case and the next 20 years of your life. Ask questions and be a consumer, finding out if he or she is a member of the local criminal defense attorneys association, if they've ever been to NCDC, or to Gerry Spence's Trial Lawyers College.

Find out if they've ever been a prosecutor and ask yourself whether that is important to you, whether it signals what you want in a lawyer.

Like an attorney picking a jury and asking herself whether a teacher, for example, will make a good juror for you, none of these questions should be decisive in itself. It's like my friend Terry McCarthy told me, "Don't single issue people."

What he meant, as he was teaching me to pick jurors, was to find a good person and not to strike someone simply because I found one thing out about them.

Find someone you trust, who seems competent, passionate, affordable and caring, kind of like the way you'd choose a doctor if you were facing a cancer diagnosis.

Above all, don't be cheap. And don't be intimidated. Shop around until you find someone you trust, who will fight for your rights and stand up against the cops and the prosecutors for you.

Don't trust 20 years of your adulthood to someone who says they'll take care of you for $1500.

If they do it right, they'll be earning less than minimum wage on a complicated felony. And if they do it wrong, you might be earning less than minimum wage in
"the stony lonesome" with your lawyer's name tattooed on your knuckles the way Jerry Seinfeld envisioned his Uncle Leo doing pullups.

Shop around. Don't try to "shop victoriously" for a lawyer, thinking cheaper is better or that competence is uniform.

The life you save might be your own.

Giuliani on the Exclusionary Rule

In an interview with The Weekly Standard, Rudy says this about his views on the exclusionary rule:

"I remember once I had a case in court, wasn't mine, it was one of my colleagues', I'm pretty sure that's right. I remember it right, and a judge ruled that the seizure of the evidence and the guns was illegal. And the assistant U.S. attorney, who thought the ruling was wrong, got up and said to the judge, 'Do I have to give it back to him? Since it's his property, does it mean he leaves the courthouse not only a free man, but do I, should I, judge, should I give him the drugs and guns back?' And the judge got very angry. I think he was disciplined, the assistant U.S. attorney was disciplined, and I thought he was making a real point that the judge shouldn't have gotten angry about, because in essence--well, we didn't have to give the drugs and the guns back--but I'm pretty sure that a drug dealer, and a potential murderer, got out of the courthouse that day, and he got some more drugs, some more guns. Why should innocent people in society pay the price of mistakes that law enforcement officers make? And finally, when they're just mistakes, which happen in an intricate business like law enforcement, why, why the hell--why the heck--are you making society more dangerous as a result of it?"

Without a hint of irony, the article goes on to say,

"In his view, the judiciary--not the legislature or the executive or all three coequal branches--is the final arbiter of a law's constitutionality. In a July interview in Iowa, Giuliani explained to me the role each branch ought to play in the functioning of government. "It's real simple," he said. "The legislature makes laws, the executive carries out those laws, and the judiciary interprets them. And if any one of the three oversteps their bounds, it seems to me, we've actually deprived the American people of the liberty and the freedom and the democracy they have."

What about the judge who "ruled that the seizure of the evidence and the guns was illegal" and, following the Supreme Court's interpretation, ruled that the evidence be excluded at trial? Wasn't that judge simply carrying out his role and applying a law on the books that required the exclusion of evidence against the accused that was seized illegally in violation of the Fourth Amendment?

The interviewer then asks Rudy, "What do you do if you disagree with a law Congress has passed, I asked."

"Then you go to court," he said.

Here's where it gets really scary...

As mayor of New York City, Giuliani put these ideas [sic] into practice and, if you listen to him long enough, you begin to understand that if he becomes president he will attempt to apply them on a global scale."

Then Giuliani gets to this stunning paragraph, (which Andrew Sullivan describes in his blog at the Atlantic)

"Someone once said to me that what they don't get about the Democrats, and even some Republicans that do this, is they're more concerned about rights for terrorists than the terrorists' wrongs," Giuliani went on. "I mean, this granting of rights to criminals and terrorists, even when they're necessary, come with a price, a price at the other end of it. Even for the ones that are necessary, like, let's say, the Miranda ruling, it's one you agree with--there's a price for that. Maybe it's one worth paying. The exclusionary rule, there's a big price for that: Criminals go free. They walk out of court. If you say, you know, no aggressive questioning, then we're not going to find out about situations. If you say no wiretapping, well, there'll be conversations going on, planning to bomb New York, or Los Angeles, Las Vegas, and you're not going to find out. And, when we draw these lines, at least let's be honest with people about the consequences of them. Let's not fool them into thinking that there is no consequences to this. People will say that aggressive questioning doesn't work. I, you know, I . . . Honest answer to that is, it doesn't work all the time. Sometimes it does."

Wow. First it was "enhanced interrogation" and now it's "aggressive questioning." As Andrew Sullivan responds:

"Rights for terrorists"? How about rights for terror suspects? I'm sorry but those of us who support the Constitution, the rule of law, the Geneva Conventions, and the separation of powers are not in love with the evil that terrorists do. And it's deeply offensive to say we have more concern with terrorists' rights than with their wrongs. We have concerns about human rights and civil liberties - things that Islamists want to destroy.

We are just aware that demagoguic over-reaction can destroy liberty more profoundly than any terrorist act. And by demagoguic, I mean the notion that opposition to torture or detention without charges or warrantless wiretapping or a law-free executive is somehow pro-terror. It is, rather, pro-freedom. And freedom, in the end, is the only real answer to Islamism's evil.

Notice, moreover, that Giuliani seems to harbor no notion that any terror suspect in the US is innocent until proven guilty, and assumes a complete, reflexive conflation between "criminals" and those charged with a crime, as if no government official could ever confuse the two, or ever make a mistake and decide to cover it up. Notice also his assertion that some Democrats want no wiretapping, period. What they and rule-of-law Republicans favor is wiretapping with warrants, and minimal oversight, to prevent abuse. Again: what's staggering to me is that Giuliani never seems to contemplate that such abuse is even possible. Nothing could be more alien to a truly conservative mindset.

It seems to me that a vote for Giuliani is a vote for a police state that uses torture.

To people who think Giuliani will make a good president, I say "let's not fool them into thinking that there [will be] no consequences to this."

Scott Horton, Again, on Maher Arar

Scott Horton, writing in his Harper's column, describes the case of Maher Arar, the man who was snatched in New York and sent off to Syria to be "questioned" by the Syrians 'cause, you know, "we don't torture."

Of all the Bush Administration’s many perversions of the justice system, there is something particularly distressing about the case of Maher Arar. A Canadian software engineer, he was changing planes in JFK on his way home to Canada after a Mediterranean vacation when American law enforcement snatched him up. Arar had been fingered as a terrorism suspect by Canadian authorities. Within a brief period of time, he was interrogated, locked-up and then bundled off to Jordan with directions for transshipment to Syria, a nation known to use torture. Indeed, it was plain from the outset that he was shipped to Syria for purposes of being tortured, with a list of questions to be put to him passed along. Never mind that Syria is constantly reviled as a brutal dictatorship by some Bush Administration figures who openly dream of bombing or invading it… the Syrians, it seems, have a redeeming feature—their willingness to torture the occasional Canadian engineer as a gesture of friendship to the Americans.

Read the entire article, and his on-going column for that matter. Harar's treatment and the subsequent stonewalling is particularly stunning but fortunately all is now right with the Bush administration. Here is a quote from Bush's speech to the Federalist Society, as illustrated by Glenn Greenwald. Bush should truly be commended for delivering it without cracking a smile. He truly is the perfect ventriloquist's dummy for Dick Cheney, whose secret service name is "Edgar" (Bergan) while Bush's is "Charlie" (McCarthy). Here is what he said, straightfaced, to wild applause at the Fed Soc:

The President's oath of office commits him to do his best to "preserve, protect, and defend the Constitution of the United States." I take these words seriously. I believe these words mean what they say.

Actually he believes these words mean what John Yoo thought they meant when Yoo wrote:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

"The words mean what I say and mean what I want," in other words.

Scott Horton on Mukasey / Waterboarding

Scott Horton writes in Harpers about the real reason Attorney General nominee Michael Mukasey (who will likely be confirmed after Senators Schumer and announced their willingness to support his nomination yesterday) repeatedly refuses to state that waterboarding is torture:

The New York Times says the issue is one of legal culpability of those who have administered the program. In a speech I delivered in Ohio last October, “When Lawyers Are War Criminals,” I went over this analysis in some detail and concluded it was incorrect. The CIA personnel, military personnel and contractors all have immunity. But there is a class of persons who are probably not immunized in any effective way by the current statutes, namely the administration officials who authored this scheme: Dick Cheney, David Addington, Donald Rumsfeld, Jim Haynes and a handful of others. They are the figures “on the line” who are most adamant that Mukasey (or any substitute for Mukasey) provide them with the protection they feel they need.

Try to fathom Mukasey's dilemma for a second and what it says about where we are as a nation. The person nominated for chief law enforcement officer of the nation cannot say that a technique banned by the Army Field Manual, used extensively by the Pol Pot regime in Cambodia (remember The Killing Fields?), and by the Spanish Inquisitors cannot be described as "torture" because to do so would subject officials at the highest levels of government to prosecution for war crimes as well as force them to admit that Bush's claim of "We don't torture" was another outright lie.

A former federal judge, Mukasey cannot state as an official what he believes as a person, that pouring water continuously over a person's face while his legs are elevated to create the sensation of drowning, is torture. He can't say this as he undergoes the nomination process else he have to later admit that his description would or at least should require him to prosecute those who nominated him as chief law enforcement officer.

As Hamlet said, "That it should come to this!"

Then today, it is revealed that a Justice Department official who replaced Jack Goldsmith at the White House's Office of Legal Counsel, personally had himself waterboarded to judge whether it amounted to torture. As ABC News describes it:

A senior Justice Department official, charged with reworking the administration's legal position on torture in 2004 became so concerned about the controversial interrogation technique of waterboarding that he decided to experience it firsthand, sources told ABC News....Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use... But Levin never finished a second memo imposing tighter controls on the specific interrogation techniques. Sources said he was forced out of the Justice Department when Gonzales became attorney general.

If Levin found waterboarding terrorizing, think how it feels when you are not held in a controlled environment but instead led to believe it will be kept up until you drown. Mukasey finds this "repugnant" but can't call it "torture" because the Federalist Society screeners know this characterization will subject even Cheney and Addington to future prosecutions.

Sound like a guy you want as chief law enforcement officer? A majority of Democrats on the Judiciary Committee think so and his nomination seems inevitable.

As depressing as this is, consider another article by Scott Horton where he describes the fate of a member of the Nazi party and a lawyer.

I want to talk about a man who deserves to be remembered in the course of this meeting. He was more than merely a "good German;" indeed, he was a man whose powerful moral example serves as a model for all of us today, a man who represents the ethical pinnacle of our profession. And the strange thing is that he was a staff lawyer at the German defense ministry during the Second World War. His name was Helmuth von Moltke. His tenacious advocacy of the Geneva and Hague Conventions in the face of withering criticism and suspicion from the Nazi hierarchy saved the lives of thousands of civilians and prisoners, particularly on the Eastern Front and in the Balkans. It also led inextricably to his execution at the hands of the Nazis in 1945.

Disgusted by an atmosphere in which law was constantly subverted to political expedience, Moltke envisioned harsh prosecutions of politicians and lawyers who engaged in such antics as an essential purgative. In a draft dated June 14, 1943, Moltke envisioned a special international criminal tribunal to be convened at the conclusion of the Second World War for the purpose of bringing to justice those who violated the laws of war. Lest there be any doubt, it was principally the men he worked with every day in the Wehrmacht whose punishment he foresaw. In view of mounting evidence of a crime of genocide, and out of concern that international customary law failed yet to provide a medium for its punishment, he advocated an expansive posture for prosecution. "Any person who violates the essential principles of divine or natural law, of international law, or of international customary law in such a fashion that makes clear that he contemptuously disregards the binding nature of such law shall be punished," he wrote in a plan for a post-war tribunal in 1943.

I come to the example of Moltke for another reason, namely that he very properly puts the emphasis not on the simple soldiers who invariably operate the weaponry of war, but on those who make the policies that drive their conduct. And in that process, his stern gaze falls first on the lawyers. In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law – as Jackson said "the basic building blocks of civilization"? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated?

These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system."

How will history judge lawyers today? Is Rudy Giuliani right when he says that torture depends on who's doing it?

More on Matt Diaz

Scott Greenfield of Simple Justice (recently nominated as one of the best legal blogs in the 2007 Weblog Awards) wrote a post last week in response to my posts about the plight of Matt Diaz, the Navy lawyer who secretly sent the names of all Guantanamo Bay detainees to one of the lead plaintiff's lawyers who was suing to have the names released.

As Greenfield observes:

I would very much like to write...that Diaz is an American hero for having bucked the military, given life to the Supreme Court's Rasul decision, and fought a government that he believed was violating the law. I would like to, but I can't...

I don't doubt Diaz's claim that there was no way up the chain of command that would have altered the government's decision to stonewall the defense lawyers seeking information about the Gitmo detainees. He had no lawful means to act to achieve the outcome he sought. Aside from his covert (and ill-conceived) plan to send the CCR lawyer a Valentines card, he was stuck. Frustration, coupled with a personal sense of morality, drove him to this act.

But Matthew Diaz was not like some corporate whistleblower. He ... was a Lieutenant Commander in the United States Navy... He picked his side, and upon putting on the uniform, undertook certain bedrock obligations that are larger than his personal vision of right and wrong at any given moment.

...

The military cannot function without discipline and following orders. We are not talking about orders to commit a crime or an atrocity. We are talking about orders that, for better or worse, reflect a position being argued at the highest levels of government, and challenged in the courts of the nation...

If Matthew Diaz wore anything other than a uniform, I would not hesitate to applaud his act of conscience. But once he chose Navy dress whites, the obligation that goes with the uniform trumps his right to act upon personal choices. He knew that. He chose the uniform. He violated his obligation. As wrong as our government can be, Matthew Diaz was more wrong."

I have to admit, Greenfield has a point. The fact that the information was released shortly thereafter, via a FOIA request, not only mitigates the punishment that Diaz received, it also demonstrates that his actions weren't the last resort. He may, from his position in Gitmo, viewed his actions this way, but later developments proved that the secret release wasn't necessary as the judge later ordered it anyway. In fact, I left the following comment at Greenfield's blog:

Before I found your post I asked one of my favorite, most trusted former colleagues at the public defenders office about Diaz's situation and, to my surprise, she (perhaps because she is married to a Marine and has spent a lot of time working military bases) made the same points you did.

Then, after I found your post, I had to reflect on my own frequent criticisms of people who cavalierly advise that violating the law isn't a problem if you're one of the "good guys." Giuliani said something similar to this today when he described the definition of torture "depend[ing] on who's doing it."

So I probably went a little too far arguing that Diaz is a like a modern day Rosa Parks. After all, she wasn't wearing a uniform and the fact that the information he revealed was ultimately released pursuant to a judge's order illustrates that Diaz's actions weren't a last resort more than it shows "no harm, no foul" as I previously argued.

I wonder though if he didn't see his acts as a last resort when he sealed the Valentine, thinking about his dad sold down the river by a bad lawyer and having to witness things like waterboarding and to hear the Navy argue things that the names didn't need to be released because the detainees had other ways to obtain lawyers, [WTF? They were in Gitmo!] while at the same time hearing his own government argue that these men, some as young as 13, weren't entitled to lawyers while they were being deliberately held out of U.S. territory in the hopes that geography would keep their cases out of the reach of U.S. Courts.

Diaz faced up to 20 years but he ended up getting 6 months to think about his mistakes. I know that's what they were, and guess that he does too, but I feel a little like an Monday morning quarterback describing them that way, here, from the safety of my new home.

My defense of him and offers to help amount to an argument for sentencing, I guess, rather than an argument about guilt. Perhaps when others, like the telecom execs and a certain ex-attorney general, are held accountable for their actions around this same time will Diaz's six months in the brig sit a little better with me.

Reminds me of the sarcastic quote about the law, in its "majestic equality" forbidding the stealing of bread and sleeping under bridges.

But you make a good point about the military being necessarily based on following lawful orders and the law being the law. I just hope as a nation that we're still up to making it apply to Alberto or George with the same energy that we want applied to Mr. Diaz.

As much as I agree with Greenfield's point that the law is the law, and the military is rule-based by necessity, I feel like I need to listen to Diaz before I judge the decisions he made.

So I'll ask him to respond to these points. I know he has a lot of his plate right now, and responding to a blog post probably ranks a little lower than finding a job to feed his family. Still, maybe he'll enlighten us all about what he was going through and what he was witnessing at the time. Hopefully he'll write a book someday, but I'm sure he has other priorities right now.

Update: Here's a story about a bizarre email from Col. Boylan in Iraq that sheds some light on something that might have been on Diaz's mind at the time: the fact that the top brass seems more concerned with how the war is described in the media than in how it's unfolding on the ground.

It will be interesting to see where this goes, since it involves Gen. Petreaus' spokesman claiming that he was the victim of identity theft when an email was received and subsequently published by a blogger. For a guy who's supposedly had his ".mil" address highjacked, he doesn't seem all that concerned with an investigation, making his claim of identity theft almost laughable.

Matt Diaz Needs A Job!

As a follow up to the post just below this one about Matt Diaz and my efforts to help him get into Trial Lawyers College, I received this email:

Mr. Tarrell:

Thank you for the kind comments on your blog. I know the workshop would be an awesome experience. In the run up to my trial, I listened to Mr. Spence's book, "Win Your Case," on my Ipod during my long runs. I was close to doing my case pro se and had I done so, I would have definitely used what I learned from the book.

I would love to attend Mr. Spence's workshop, but don't know if I'm eligible. My Kansas license has been suspended pending my appeal - which could take at least 18 months to get through the Navy's intermediate appellate court. I'm not expecting any relief at that level, so it'll most likely be a longer wait while I take an appeal to the Court of Appeals for the Armed Forces. In the meantime, I'm flooding the market with my resume for almost any job that will take me. I'll miss practicing law (I already do, greatly).

I'll keep tuning in to your blog. Thanks for doing it. Lots of good topics. I watched the video of Mr. Spence talking about the Mayfiled case you posted on Sep 20. I really do envy his work.

Thanks,

Matt Diaz

That's quite a compliment to Gerry Spence and everything Trial Lawyers College is about. Matt strikes me as a modern day Rosa Parks, but most heroes aren't recognized at the time they act heroically but only when we look back on what they did through the lens of hindsight.

Right now Matt needs a bar license, but his is suspended pending his appeal. He also needs a job. Helping him out, if anyone knows of one or is willing to give him a chance, seems like a great way to reward Mr. Diaz's courage and willingness to do the right thing. The names were later released via a FOIA request by the CCR later, but Diaz was still prosecuted. Unlike Scooter, no pardon was granted. I wonder if we will say the same thing about Alberto "Fredo" Gonzalez, if his possible prosecution ever takes place.

I'm still going to try to help him get into TLC this summer, but, like the status of his bar license, that's up in the air as I'm not sure whether the rules would allow an unlicensed lawyer to get in . Also, the Board members might not want to give up a spot that a licensed lawyer could occupy.

The way I look at it, however, do you know anyone who's sacrificed more for our legal system in recent years?

He believed in the importance of legal representation enough to take a tremendous chance. He got caught after a likely terrified plaintiff's lawyer (Don't you bet she thought she was being set up by the government she was suing?) told a federal judge about what she'd received. The judge then told her to notify the Justice Department which easily traced the information back to Diaz's computer at Gitmo.

For taking this chance, Diaz lost (1) his freedom for six months, (2) his military career and, (3) his civilian law license.

Now he just needs a job. Can anyone help him out?

Matt Diaz Needs Our Help

In yesterday's New York Times, (free subscription required) I read Tim Golden's amazing story of Matt Diaz, the Navy JAG who will be released from a Navy brig later this month after being convicted of releasing the names of the 551 Guantanamo Bay detainees to a civilian lawyer who was to get the information and begin stonewalled by the Navy. As the article describes what brought him from jail worker at Gitmo to jail inmate in the brig:

Sitting at a secure desktop computer, he printed out page after page of classified information, pulling each batch from the printer in case anyone wandered by. When he was done, Diaz had assembled a document 39 pages long. In tiny type, it listed names, prison serial numbers and other information for each of the 551 men who were then being held by the United States at Guantanamo Bay...

Now, Diaz knew he was crossing a line. For nearly two weeks after printing the list, he kept it locked inside the safe in his office. On another late night, he carefully trimmed the pages down to the size of large index cards. Then, on Jan. 14, the last night of his tour, he went back to the office one more time. While his colleagues were getting ready for his farewell dinner, he slipped the stack of paper inside a Valentine’s Day card he had bought at the base exchange. It was an odd touch. The card showed a cartoon puppy with long ears and bubble eyes and the greeting, “Hope Valentine’s Day is just your style.” Diaz would later say that he chose it because it was big enough to hold the list. He also hoped the lipstick-red envelope might pass unscrutinized through the Guantánamo post office."

Matt, now around 40, joined the Navy at 17 after his father was convicted of murder in California and sentenced to die in the gas chamber. His father, Robert, was convicted of killing elderly patients during his work as a nurse. But Matt's father Robert...

"...had never been in trouble with the law. No one had seen him inject the patients with lidocaine. Nor, despite the high levels of unmetabolised lidocaine in their bodies, was it certain they had been murdered. But Robert Diaz was the only nurse who was on duty when all of them died, and he sometimes carried preloaded syringes of lidocaine in his pocket. Two vials of the drug were found in the search of his home. (Robert said he had simply forgotten to empty his pockets before leaving work.) Prosecutors never offered a motive for the killings, but Diaz was arrested in November 1981 and charged with the murders of 12 patients.

“That’s when things started falling apart,” Matthew Diaz told me. At 16, he was left to fend for himself. He drifted back to Indiana, where his mother lived, but returned to California the next summer as his father’s trial approached. He soon dropped out of high school, found a job washing dishes and moved into a San Bernadino motel with a 28-year-old woman who had become his girlfriend.

Diaz stood by his father, but Robert Diaz’s legal defense was a debacle. Because he could not afford a private attorney, his case fell to a public defender’s office that was beset with dissension and budget problems. Robert’s attorneys persuaded him to forgo a jury trial and take his case before a judge — a move that was almost unheard of in a capital murder case."

Waiving a jury right? I admit there are rare cases where it's appropriate, but they're very rare. I remember interviewing for a scholarship to the National Criminal Defense College and talking about the number of bench trials I'd been stuck with when the interviewer said "Bench trials? Around here we call those slow pleas."

That's the way Robert's case ended up and his lawyer, "presented no new evidence or character witnesses in the penalty phase, noting simply that [Robert] Diaz was only 46 years old and had saved the taxpayers money by not having a jury trial." As you may have guessed, in April of 1984, Robert Diaz was sentenced to to die in the gas chamber. You can also probably guess where this left Matthew as well.

"For much of his adult life, [Matt] Diaz was the person in his family most likely to do the right thing. He was the one who would come to the rescue when someone needed help, the one who got through college and graduate school, the one who often kept the peace. His parents divorced bitterly when Diaz was 6, and he spent the next years careering back and forth between them. As children, Diaz, his older sister and their two younger brothers slept for a time in a single bed, cooking their own meals and shopping for groceries when the food stamps arrived. “We couldn’t count on our parents,” his sister, Shari Bravo, said, “but we counted on each other.”

Matthew probably counted on the lawyer at the Center for Constitutional Rights to do the right thing with the information he presented, but these are scary times to be a lawyer in her position. Can you imagine what she thought when she received these names? Am I being set up by the government? Is this a joke? She probably never guessed that the information was coming from inside the prison, from a whistle blower who knew what it was like to have a family member in prison and long for a competent lawyer to try to get you out. But, after considering turning the names over to the press (Can you imagine the fear a reporter would feel upon getting this information?) she decided to alter the federal judge who asked her to turn the info over to the Justice Department, who easily tracked the leak to Diaz.

"When we spoke a couple of months later at the brig in Charleston, Diaz was less contrite. He said he bore no resentment toward Olshansky and the Center for Constitutional Rights for turning his valentine over to the authorities; in fact, he was sending the group donations of $25 a month. Looking back, he insisted that he tried to do the right thing in the wrong way. “There was nothing else that I could really do,” he said. “I could have gone up the chain. But nothing I said would have ever left the island.”

Diaz is reviewing his own trial transcripts now — as he once reviewed his father’s — and working on an appeal with the same California lawyer who has handled his father’s appeals. Shortly before his scheduled release from the Charleston brig this month, he was stripped of his license to practice military law. He said he is unsure how he will support his family now but that he is thinking of trying to find work in legal aid, even if he is disbarred as a civilian lawyer too.

When I read this I emailed the author and am trying to secure Mr. Diaz a scholarship to Gerry Spence's Trial Lawyers College. I thought of him because Gerry defended Brandon Mayfield during the time I went to "the ranch" in 2005, resulting last month in a frustratingly little discussed blow to the Patriot Act.

The author emailed me back and forwarded my emails along to Diaz. I hope he takes advantage of this offer to help as I know many people who would chip in to help and know also that the things he learns there would help him come to terms with what he's done, with the amazing courage it took, and how he could continue to be a people's lawyer in civilian court. I know also that going to the ranch would connect him to a network of like minded people who believe in the rule of law and the importance of standing up to the government for the people.

I hope Mr. Diaz contacts me so I can explain this to him. Going to the ranch was a life-changing experience for me, and hope it could do the same for him. I know he deserves our help and a soft place to land when he walks out later this month, disbarred from the military and cast off by a government that purports to represent the land of the free and the home of the brave.

[Note: The information at issue was later released lawfully pursuant to a Freedom of Information Act request.]

2 Addiction Stories

One of the blessings/curses of working in the area of criminal defense is the stories you to be a part of. As a public defender I felt, and still occasionally do in private practice, like a part time lawyer and full time drug counselor. With that in mind, a couple client's stories came to mind that other day:

(1) She told me she used her child's photos to cut lines of meth, thinking it would persuade her to stop using it by giving her a reason to feel guilty. While this sounds sick, she was at least trying to quit. However, she was an addict, meaning she was, by definition, unable to quit by herself. So while she had the desire to stop, she lacked the essential tools and thus kept cutting lines whith her baby's picture until she eventually fond a way into inpatient treatment which finally matched her desire to her true needs, her wishes to the realities of methamphetamine addiction. Wanting to quit, and the self-flagellation she attempted- using a photo in the place of a razor blade- only made her more desperate, which led to more drugs, which led to more guilt, which led to more self-flagellation, which led to more depression and more drugs. Only when she found a way to break this cycle, did she put down the drug and the picture and face the real child and the real future. She behaved very insensitively, but was in reality very sensitive. She numbed herself and guilt couldn't snap her out of it. Only real treatment helped.

(2) Another client told me that asking her to "just stop using" was like asking me to "just stop breathing." After all, like breathing, she couldn't remember living without it, used it every day to live through it, and had begun to use it almost unconsciously. Like a drowning person pullng down a potential savior, she would do virtually anything to get it if you tried to get between her and what had become like air to her. My first reaction was that she was making excuses, but the longer I thought of her description, the truer it rang. She was describing addiction to a non-addict and I missed her point. Later, though, it sunk it. What would it be like to be so addicted that you couldn't stop? And how frustrating would it be to have people yelling at you and simplifying your situation as if the solution were as simple as just walking away.