Thursday, October 25, 2007

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.


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?

Tuesday, October 23, 2007

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.

Thursday, October 18, 2007

A "Mr. Smith" Moment

Remember the scene in "Mr. Smith Goes to Washington" when Jimmy Stewart uses a filibuster to hold up legislation and then convinces his colleages to rethink their positions after a passionate speech?

Congressional Democrats caved today on the issue of whether to grant immunity to telecommunications companies that violated the law by illegally releasing information. In short, enough Democrats caved in to Bush's demand that these lawsuits not go forward despite the fact that:

1. We do not yet know the extent of the lawbreaking since its shrouded under a state secrets defense.
2. We know that at least one telecom refused to go along with the government's request for information and claimed it couldn't release the information since it would violate the law to do so.
3. We know that one judge has found AT&T's arguments silly, writing that "AT&T cannot seriously contend that a reasonable entity could have believed the lalleged domestic dragnet was legal." (Judge Reggie Walton, of Scooter Libby fame, opinion here)

Glenn Greenwald has an excellent post on what is truly at stake in this legislation, but what's important right now is Senator Dodd's move to put a hold on this capitulation and grant of retroactive immunity for corporate lawbreakers.

I just rewarded him for his courage with a small donation. Maybe his move will start a mini revolt and spark the "opposition" party to stop this move which grants lawbreakers immunity for past crimes before we have a chance to see the extent of the violations.

Wednesday, October 17, 2007

185 to 1

Here's the issue: Should young adolescents who are convicted of crimes as adults be sentenced to life without the possibility of parole? 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.

According to the New York Times article (H/T Talkleft):

...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.

What do you think? Do we spoil the child if we spare life without any chance of parole if you were a child when you first arrived there? Remember, we're not asking whether we let them out, only if a judge or parole board should be able to let them out in the future if they're sufficiently rehabilitated?

Along those same lines, should we hold boys as young as 13 at Gitmo?

Monday, October 15, 2007

Law Firm Believes Phone Lines Tapped By Feds

This article, from the Burlington (Vermont) Free Press describes a law firm which defends clients currently held in Gitmo, and which believes its phone lines are being tapped and attorney-client communications compromised. The firm...

"that represents clients at Guantanamo Bay, Cuba, and in Afghanistan is warning its Vermont clients that it believes the federal government has been monitoring its phones and computer system... “Although our investigation is not complete, we are quite confident that it is the United States government that has been doing the phone tapping and computer hacking,” said the letter."

The lawyer who is interviewed goes on to say that the cause "could be a routine infection introduced into the machine by e-mail" but that "Given the phone situation, a number of another anomalies we’ve observed over time... we think we have legitimate cause for concern."

Here's the problem in a nutshell:

"Gensburg represents a client in Afghanistan as well as one of the prisoners held by the United States in Guantanamo Bay."

(h/t The Next Hurrah)

Thursday, October 04, 2007

Mr. Rogers saves PBS from politicians

"Alright Rogers, you've got the floor" begins the crusty Senator before Mr. Rogers begins speaking, requesting money for public television.

Gerry Spence talks about dealing with difficult judges, or as he describes it, dealing with "his honor, the tyrant."

Watch the difference in the Senator's tyrannical beginning until the moment (around 5:00) when he says "Well, I'm supposed to be a pretty tough guy and this is the first time I've had goose bumps for the last two days."

Notice how Rogers counters cynicism with hope and respect, staying in the moment and remaining respectful throughout.

I don't mean to spoil the ending, but isn't it this method, this credibility that leads the Senator to say at the end, "I think it's wonderful. Looks like you just got your 20 million dollars."

Monday, October 01, 2007

The last lecture of Randy Pausch 1

I've heard a lot of "buzz" about this lecture from a 46 year old computer science professor who is dying of cancer. It's quite long, but if what i've heard is correct, it's well worth it.

“You can’t just stand out here. We have ordinances.”

From TalkLeft, I found this article from the New York Times, called "Reporting While Black" which describes an African American reporter's experience trying to interview suspected gang members in Salisbury, North Carolina (population 30,000).

One part of the article that caught my attention was this scene when the 37-year old reporter approaches some young black men on the street, whom he suspects of selling drugs, to interview them:
“Man, you a cop,” said another. “Hey, this guy’s a cop!”

“You’ve got me wrong,” I said trying to sound casual as the men looked at me warily. I started to pull my press identification out of my wallet. “I’m a reporter. I’m just trying to talk to you about your neighborhood.”

In the distance I heard neighborhood lookouts calling: “Five-O! Five-O!” — a universal code in American ghettos for the approaching police. I thought they were talking about me, but thought again as three police cars skidded to a stop in front of us.

A tall white police officer got out of his car and ordered me toward him. Two other police officers, a white woman and a black man, stood outside of their cars nearby. I complied. Without so much as a question, the officer shoved my face down on the sheet metal and cuffed me so tightly that my fingertips tingled.

“They’re on too tight!” I protested.

“They’re not meant for comfort,” he replied...
After a quick check for outstanding warrants, the handcuffs were unlocked and my wallet returned without apology or explanation beyond their implication that my approaching young black men on a public sidewalk was somehow flouting the law.

“This is a dangerous area,” the officer told me. “You can’t just stand out here. We have ordinances.”

“This is America,” I said angrily, in that moment supremely unconcerned about whether this was standard police procedure or a useful law enforcement tool..

It's an interesting article, and I don't cite it as an example of aggressive police tactics but rather to gauge your thoughts on the author's point that "the problem is that when the police focus on gangs rather than the crimes they commit, they are apt to sweep up innocent bystanders, who may dress like a gang member, talk like a gang member and even live in a gang neighborhood, but are not gang members."

After all, we are talking about what is probably suspicious behavior: a well-dressed man approaching people visibly selling drugs in a high-crime area after dark. However, in this case, and in a lot of others no doubt, the individual caught up was, in his words:

At 37 years old, I’m beyond the street-tough years. I suppose I could be taken for an “O.G.,” or “original gangster,” except that I don’t roll like that — I drive a Volvo station wagon and have two young homeys enrolled in youth soccer leagues.