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."

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?

Another Reason to Never Wear an Ascot

From the ABA Journal a few hours ago...

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

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

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

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

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

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

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

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

Time for a Trial Lawyer in the White House?

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

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

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

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

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

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

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

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

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

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

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

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

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

What do you think?

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."

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.

"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.