Friday, January 25, 2008

Liberty or Death?

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

Monday, January 21, 2008

MLK Day: Dream Not Realized, Irony Not Dead

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

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

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

As the Washington Post writes,

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

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

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

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

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

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

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

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

So, to recap:

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

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

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

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

Saturday, January 19, 2008

The Unequal Protection Claws

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, January 18, 2008

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

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

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

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

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

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

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

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

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

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

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

“And what did he say?”

“He hung up,” Mr. Reichle said.

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

"“Don’t go there, Gus.”

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

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

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

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

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

Friday, January 11, 2008

Controversy Over Giving Teen Killers the Possibility of Parole?

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

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

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

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

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

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

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

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

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

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

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

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

What do you think?

Wednesday, January 09, 2008

Another Reason to Never Wear an Ascot

From the ABA Journal a few hours ago...

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

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

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

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

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

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

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

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

Time for a Trial Lawyer in the White House?

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

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

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

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

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

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

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

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

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

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

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

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

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

What do you think?

Tuesday, January 08, 2008

Criminal Defense Lawyer Video Game?

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

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

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

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

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

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

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

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

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

Tuesday, January 01, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why Me?

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

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

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

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

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

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

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

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

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

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

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

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