The rantings of a Public Defender constantly fighting against society's pervasive Police Industrial Complex. Enjoy the unique perspective of one whose life's work is to fight the system through the system.

Thursday, December 22, 2005

A book worth reading - Death Row Defender

I recently read a book that is well worth reading if you are a mystery fan, a crime fiction fan, or someone interested in the criminal justice system, all things that I am interested in. The boook is Death Row Defender, and the writer is Ray Dix. First, a disclaimer, many months ago Ray wrote me about his book, and later sent me a copy. To the extent that Ray sent me the book for free, saving me $12 and the trouble of going to the store or buying online, my review could conceivably be colored by his generosity. That being said, I've had other books sent to me by other writers that have not merited reviews in the past, so that should allay you concern that I'm writing this out of some misguided sense of $12 obligation.

Ray's book is about an death penalty appellate lawyer named Woody Thomas in Florida who picks up his newest case. A young man named John Clayton is on death row accused of raping and killing a woman several years earlier. He is set to be executed shortly, and Thomas is tasked with looking to see if there were any issues missed in the case worthy of further appellate review that may save his life. Only, Clayton doesn't want Thomas to "save his life" (ie - get him life in prison), Clayton wants to get out, because he's innocent. Fat chance.

The book takes you through the legal process of death row inmates, as well as the underlying trial, and the drama behind the initial killing, coverup, and attempts to dissuade Thomas from conducting his investigation into the underlying crime. The story is very interesting, the drama is very real, and aside from the thriller aspect to the book, it gives a terrific insight into the life, mindset, and complexity of a defense lawyer. Rather than being a bleeding heart do-gooder, which is how most people probably think of defense lawyers, Thomas is that, but he is also hardened by his time serving in Vietnam, rough around the edges at times, sensitive and caring at others. He maintains a high degree of incredulity about both things his client and law enforcement say to him. He has close friends in both camps (as many defense lawyers do). In short, he is a complex person with a complex past who you begin to really like as the story goes on.

The book is a quick read, once you start it is engrossing and hard to put down. Good thing it isn't too long, as I tend to put aside things like, well, work, when I find a good book, which I did for this book. There were many times in court when I was all too accomadating to other lawyers in court letting them go ahead of me while reading the book.

In closing, I would highly recommend this book. The name doesn't say much about the book, but don't hold it against Ray and his book. I could easily see this becoming the type of book where the character recurs in many future volumes dealing with new cases. Unfortunately, in contrast with books like those of Patricia Cornwall, Jonathon Kellerman or other mystery writers, one would not expect to have lawyers continually run into the type of excitement that Woody Thomas seems to find himself in this case. If he does, then that would be a jurisdiction that I would never like to practice in. So, if you can make him a reucurring character, go for it Ray, if not, I enjoyed his one appearance in print.

Now, can I get a piece of the movie deal......:)

Tuesday, December 13, 2005

Tookie is Dead

Well, all the bluster and positioning are over, and Tookie has been executed. I haven't written a huge amount about the death penalty of late, but it is something that certainly affects my life, as someone who currently represents someone whom the prosecution seeks to kill, and someone else that they very well may seek to kill in the near future when they make their decision about it.

I have long been ambivalent about the death penalty. In many respects, I have no problem with the notion that as a society, we are so angry at someone that we will kill them. I mean, I have certainly hated people enough that I wanted to kill them, and we're not even talking about violent crime. There are times I want to be able to run bad or rude drivers off the of the road in complete anger and disgust. Of course, in the sober light of day, with a little reflection, that looks ridiculous. But certainly, if someone raped my wife or molested my kids, even if they didn't kill them or inflict any "lasting" bodily injury, I would not be happy with a long prison sentence, or even a life sentence, I would want to kill the person.

The fact that society harbors those feelings towards those who do evil is no surprise, or frankly, concern to me.

Certainly, practical concerns about the application of the death penalty bother me. The fact that it is used overwhelmingly (nationwide, although not in California over the last 30 years) against minorities and poor people. The fact that people on death row, especially in places with a lesser sense of "justice," have been given very unfair trials, which have even led to innocent people being left on death row. It is unclear if or how many innocent people have been executed since the death penalty's resumption in the 1970s, in large part due to the fact that far less resources are expended in clearing the already dead, vs the not quite yet dead. Add in that the fact evidence is usually destroyed after an execution and the fact that whatever is left over is almost never allowed to be tested for possible claims of wrongful execution, and it is clear that some innocent have probably been killed (there are cases out of Texas and Virginia in which it appears potentially innocent people were executed).

The final "logistical" problem (as opposed to any moral concerns) one may be concerned with is the randomness of it's application. How someone convicted of a particularly heinous crime one place gets life, while someone convicted of a more "benign" murder somewhere else is executed, frequently due to differences of race, gender, sexual orientation, race of the victim, or more importantly, political considerations of the local or state prosecution or judiciary.

But, these are not the concerns that leave me ambivalent (remember that ambivalent doesn't mean neutral, but rather having feelings in both directions, which is how I feel). I feel ambivalent due to the sterile nature of the process. We take something as emotional as revenge, life for a life, anguish over the death of a loved one, and we transport it to this sterile environment of a courtroom, or a jail cell, and finally to an execution chamber where they use all means possible to keep someone alive so that they can kill him cleanly, at a date and time of their own choosing, not someone else's. This is why people are rushed to the hospital so that they can be held alive a few more days (such as if they try to commit suicide) so that they can be killed by the state.

The sterility of the process belies the vengefulness that begat the policy. And it somehow seems unseemly for the state to go about the sterile application of cold-blooded vengeance. Obviously, the state kills people all the time in a justifiable manner (war, for instance?), but that is not sterile, clean and premeditated (at least, we hope). Recognizing that people will invariably die due to state policies (such as building the Golden Gate Bridge or the Panama Canal, where thousands died), it is very different to act with great pomp and circumstance and formality while the state goes about extinguishing a human life.

As I see the state ramp up it's death apparatus, the cold blooded and steely manner in which the state kills stands in such marked contrast to me from the manner in which the actual victims live in permanent red-hot anger - something that does not abate, regardless of an eventual execution.

And this brings up the point that seems most obvious to me as I sit and reflect on any wrong done toward me over time - there will hardly ever be true personal satisfaction from the ultimate revenge. Listen to the statements of the families of the victims, over and over they say the same thing, at every execution - "he died too nicely," "he got more years than my family member did," "he didn't have the same pain my family member did," and on and on. In attempting to mete out the ultimate revenge, the state perpetuates a system of vengeance that is not, ultimately, any more satisfying than life in prison would end up being.

Sure, maybe we could have trials within a week of the offense, and execute within a month, and emotions will be equally raw, so that the crime and punishment will have a far greater symbiosis, but we have to recognize what every efficiency we put into the system causes - more failures.

Ultimately, I don't know if our desires - red hot vengeance and true justice, can ever result in a system that will give us the society we want. So, while I don't mourn for the killer over their victims, I still feel this disquiet as the state's machinery of death continues on.

But, it is clear that probably the vast majority of people in the state overwhelmingly approve of his execution, and that the state machinery of death will continue unabated for years to come.

Wednesday, December 07, 2005

Delay does a "Public Defender" in definition of Victory

For those of us who work with cases that can be complete losers all the time, we are used to coming up with creative definitions of victory. Doing a death penalty trial and your client gets life without parole? That's called a huge victory. Client is offered 10 before trial and gets 5 after trial? Another huge victory. He gets convicted of only 3 of the 5 counts in the complaint? That's a victory. On trial for murder and is convicted of manslaughter? That's a huge victory also.

So, seeing the Republican reaction to Tom Delay's getting one of 3 counts dismissed yesterday reminds me of being a public defender. Which suggests to me that his case sucks about as bad as our typical client's case sucks. They probably have boatloads of evidence against him, and on come small technical grounds he was able to get a dismissal of one charge. I noted that none of his arguments to dismiss the other counts were substantive arguments going to the heart of guilt or innocence as to the main allegation. For instance, he argued that money laundering is only for illegal activities (not true), and that money laundering has to be with cash only, not checks (also not true, but very creative, I can only assume that we'd see a lot of drug dealers doing transactions by check if that actually was the case).

So, the fact that he's trumpeting the dismissal of one count sounds so, well, shall we say it, "Public Defender" to me. It smacks of the little victories we often have to be satisfied with as we are getting are asses handed to us in the courtroom.

Of course, they feel all the more satisfying often because we are frequently going up against DAs who consider anything less than a complete conviction a devestating loss. The fact that they acted like they lost makes it feel all the more satisfying for us.

Anyways, fight on Delay, it's nice to see you in the role of the underdog, the poor persecuted individual against the big evil government. I'm sure the memories will stick with you once you get back to the majority leader position when you're finally acquitted, and that you will be reformed - a champion of the underdog.

Yeah, right.