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......:)

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.

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.

A very scary Virginia terrorism case

I had vaguely rememberd hearing about this case a while ago. A US citizen of Jordanian descent was in Saudi Arabia at a religious school, was arrested by Saudi authorities accused of terrorism, held there for 2 years where he confessed to joining al Qaeda and plotting terrorist acts (including to kill President Bush), before being turned over to US authorities, extradited and tried here for terrorism.

Sounds like a straight forward terrorism prosecution, right?

Oh, yeah, and he claims that he was tortured into giving a confession there.

Huh, tortured in Saudi Arabia? Our close allies there would never do that, would they? Come now, torture people, in Saudi Arabia? Isn't that a humane place where a primacy is placed on human rights, where punishment is only meted out grudgingly and after maximum consideration? Uh, no, that would not be Saudi Arabia.

So, how on earth is our government prosecuting someone for a confession, apparently made without any corroborative evidence of his membership or actions, made in a Saudi prison? Am I missing something here? One of the world's more repressive governments gets a confession from someone while they're imprisoned for 2 years? Isn't that presumptively tortured? Can't we assume for the sake of an argument that just about any statement that comes from a person held in a Saudi jail is elicited through torture, that the Saudi government could probably get Michael Jordan to deny ever playing basketball, to get Martha Stewart to sing the virtues of using your fingers at a fancy meal, to get George Bush to admit making an error? Our government is now prosecuting people in our courts using only testimony extracted from Saudi police?

Am I missing something here? I hope. Tell me that there is more to this than a Saudi confession. Yes, I know US doctors examined him and say that the 4-10 lines down his back (4 if your a government doctor, 10 if you're his doctor) are consistent with not only torture, but just as likely of being scratched on the back with someone's nails, or something benign like that. But, haven't these repressive governments become good at torturing people with things like electric shocks to the genitals, so that they don't leave marks? Alright, I realize that FBI doctors were permitted to visit him, and they thought he was not being tortured, but he was there for 2 years. Did they visit him daily, weekly, 2 times the whole time he was there? And didn't the Nazis manage to clean up a couple of the ghettos before walking the Red Cross through them just enough for the Red Cross to say that they were not terrible places to be?

Give me a break, I really hope that there is more to this case than has been reported. If not, the jury had better come back not guilty (although, understand that they brought this case in Alexandria, Virginia for a reason, they're far more likely to get a conviction there). And regardless, what does this say about our fight for freedom around the world that we're stooping to this level to prosecute people? This is the freedom we're fighting for? Bring me back some of the old tyranny of the 60's, 70's, 80's and 90's.

Arnold's Special Election Flop

I've tried to keep bare-knuckled politics out of my blog, meaning that I could easily blog for hours about every political situation here, but then my blog would be no different than the multitude of political blogs out there, only far less in-depth and not nearly as good. People who do observe this blog would quickly abandon me completely (those who haven't already, due to my recent dearth of posting). However, some stories that are political of the "bare-knuckle" sort, impact directly on my life as a public defender. Those stories usually relate to political fights over judicial appointments and the Supreme Court, but here in California, the recent special election had special resonance for Public Defenders, and all other public employees statewide.

This special election we just had in California was only partially over the issues specifically named in the 6 "Republican" propositions. What it was really over was an attempt by Arnold and the Republican establishment to strip working people and unions of their power in Sacramento so that corporate interests could take control. One of the propositions that did not make it on the ballot because it was so poorly written would have ended the whole notion of defined benefit pensions, as most government employees presently have (yours truly included). There has been an assault on defined benefit pensions for a few years now, starting at the top, in Washington (attempts to turn social security into a 401k plan), and Arnold continued it here in California.

Defined pensions have become less popular over the years, in part due to very poor management of them by corporations (with corporate defined benefit pensions), state governments, and the employees who have received huge benefit increases in lieu of pay raises, knowing that the Pension Benefit Guarantee Corporation would cover any future losses.

Arnold almost put a proposition on the ballot here in California that would have done that for all new public employees, but failed when the terribly written proposition was found to also have stripped survivor benefits police and firefighter pensions. As I've always written on this site, if you want to fight a losing political battle, fight it against firemen and cops, because they rule the state and local governments (anyone in uniform with guns makes a perfect political prop - in the state and local government it's cops and firemen, ditto for federal officials, with the addition of the military). Arnold just messed up by going after the men in uniform (and nurses too, they are mildly popular, but not nearly as much so as police and firemen).

Public Defenders in much of California are tied in with the District Attorneys (so maybe those clients who say we are just DAs in other clothes are right? - Just kidding, of course not), so we make the same money. This makes sense, we work for the same agency, doing much of the same work (although I would contend that our job is much more difficult), under the same conditions. Defined benefit pensions are just one compensation for the fact that, as attorneys, we could easily go out and make much more money in the private sector than we do here, but we don't, in large part out of idealism. The compensation of a defined benefit pension is one of the carrots that keeps us in the county for a long time, rather than having a frequent mill of people moving in and out of the office, and thus having to constantly retrain people to do the job (an expensive prospect). Furthermore, our pensions are in large part self-sustaining, so that in good times, the county dips into our pensions to pay off their general fund, while in bad times the county has to fund our pensions through additional payments beyond what we already pay into the system. However, in our relatively well-run county (in contrast to someplace like San Diego), our pension system is doing very well without any need for a county bail-out on the horizon.

So, the rejection at the polls of Arnold's initiatives was a huge victory for Public Defenders, as well as for much of the rest of the working people of the state. I believe that if public employee unions could not as easily give large sums of money to political causes, then the only voice that would be heard in state and local jurisdictions (as well as the federal government) would be corporate voices, which already outspend public employee unions by huge amounts. Since the interests of union workers is generally the same as the working middle class and lower classes everywhere, the large amount of worker's interests are covered when public employee unions are heavily involved politically. Squeezing out that voice would result in the squeezing out of regular people who cannot donate $25,000 per person to sit with the governator, and would squeeze out their interests as well.

California's recent election results were a vindication of the working person, and since public defenders are squarely in that group, it was a victory for us as well.

Libby almost pled, but Fitz wanted "serious" jail

Just read this article from Time Mag that suggested that a plea deal was in the works last week before the indictment of Libby came down where Libby would plead to some charges. The deal allegedly broke down because Fitzgerald wanted "serious" jailtime for Libby. Couple that with this post on the Drudge Report which suggests that Fitzgerald may call Cheney as a witness, and that Cheney will refuse to testify pursuant to Executive privilege, and you have the makings of what I predicted before - a presidential pardon in the works.

As far as I'm concerned, the only question is when does Bush do the pardon. Clearly, he has to wait until after the mid-term elections, since he looks so weak right now, and he's clearly dragging his party down, this would be a nail in the coffin. So, does he do it right after the mid-terms, before the new Congress convenes (this would depend on how the Republicans do in the mid-terms, I guess, because it would probably never happen if the Democrats retake Congress), sometime during the next Congress, or after the next presidential election and before he leaves office (again, this would probably depend on whether, God forbid, one of his toadies like Condi wins in 2008).

It seems clear that Libby is willing to fall on his sword to protect Cheney. Let's be real, is there any doubt that Cheney was intimately involved in the decision to leak Plame's name? Libby goes and picks Cheney up at his house every morning so they can drive in together. Libby is as close to a shadow president you can get without being assigned directly to the president, as opposed the VP. If Libby was willing to plead, but not to too much jail, it means he'll fall on the grenade for Cheney, as long as he doesn't have to sing for the Grand Jury against Cheney.

I have to think that a pardon has been either explicitely offered for playing along, or at least implicity offered. Does anyone think that Bush, the most famously loyal to a fault president in the nation's history, is going to let someone like Libby go down while he was pushing Bush's most cherished pet project, the overthrow of Hussein? C'mon now, who could really believe that.

Libby Indicted!!! Rove Spared (for now)!!!

All I have to say is, about time. Congress could clearly not be relied upon to investigate serious charges like the outing of Plame, and a politically connected prosecutor would not be trusted to bring charges like this nor to actually investigate with the tenacity that Fitzgerald appears to have investigated the case with.

I still doubt seriously that Libby will ever spend a day in jail. Even if he is convicted by a jury of his "peers," he will then appeal his case to a appellate court that is packed with right wingers who in many cases have an agenda to help out their political party. They will know who buttered their bread. Even assuming that it gets far enough to that point, I can assure you of one last fact - In the days between the 2008 presidential election and the January 2009 inaguration of a new president, Bush will, like his father, pardon anyone involved in this case.

As long as Libby can put off his day of reckoning for 3 more years, he is home free. My guess (I've been wrong before: see my Supreme Court speculation and Martha Stewart speculation), Liddy never has to meet up with his new cellmate Bruno and explain where his nickname Scooter comes from. But, as I've said, Republicans don't go to jail, they only put people there.

What if.....A Democratic Ken Starr as Special Prosecutor

I remember thinking how absurd it was that a Clinton hater was made special prosecutor for Whitewater (in which, of course, he found no wrongdoing). But, turnaround should be fair play. Even though the Republicans are calling Paul Fitzgerald "overzealous," the simple fact is that he is about as apolitical as they come, pretty much what you would want in a special prosecutor who is pursuing politically charged allegations. So, why have him if they didn't get someone like him for Clinton.

For special prosecutor, if he declines to indict (or even if he does, but doesn't go high enough), I suggest he be replaced with .... John Kerry. He was once a prosecutor, he can investigate this as well as anyone. Why not choose him, he'll certainly be as balanced and fair as Ken Starr was, so isn't turnabout fair play, or not? Is there a different standard for judging Republican wrongdoing than Democratic? Remember, Fiske was replaced as incdpendant counsel by Ken Starr, not because he had done anything wrong, but for appearances purposes after a new OIC (office of independant counsel) statute was introduced (of couse, the real reason Fiske, a Republican, was replaced was because he wouldn't endorse any of those loopy Republican theories that Vince Foster was murdered by Hillary). I say we get a new one after Fitzgerald is done with this Grand Jury. And I say we get John Kerry as our new independant prosecutor.

It's only fair, and lord knows, Republicans are all about fairness.

Great rendition of what is a typical PD/Client conversation

Over at Live Journal, there is a great rendition of a typical conversation that I seem to have with clients on at least a weekly basis (maybe less so, since I tend to handle more serious cases, and thus have less volume, but certainly back in the misdemeanor stage of things).

Thanks to Skelly over at Arbitrary and Capricious for the great link. Skelly has a jury out now for a few days. I know how agonizing that can be. My last jury went out on a Friday, and came back on Tuesday (Monday being a court holiday), so I had to stew on it for the whole weekend. I hate jury deliberations. Good luck Skelly!

Tom Delay - Guilty until proven innocent?

I just did a trial where, during jury selection, I had some of the most right wing reactionary possible jurors expressing themselves. Basically, this was what they had to say: "If you are charged with a crime, it means you are probably guilty, because the DA would never charge someone who didn't do it, so even without any evidence, I would find the defendant guilty." "If you assert your right to remain silent, you do so because you are guilty." "Being charged with a crime is evidence of guilt." "Being in a gang means that you are guilty of anything that gang does, even if you have no part in it."

You get the idea, these people were so out there, they made Torquemada (Spanish inquisitor, for those who don't know, or never saw History of the World Part I) look reasonable by comparison.

So, it got me to thinking, do any of those right wingers believe that Tom Delay must be guilty? I'm sure they don't, but he is an indicted felon. A grand jury of disinterested citizens has found probable cause that he committed a crime, even after being presented with any exculpatory evidence (I'm sure right wingers will now loudly protest that a grand jury could indict a ham sandwich, which I don't dispute, but hey, am I going to be the looney liberal to suggest that the system is weighted against criminal defendants? No, I'll leave that to the right wingers right now).

I wish that I had thought to ask these potential jurors this question.

I did get a nice couple of lines in, though. You see, during investigations into police misconduct, or any time there is an officer involved shooting, and Internal Affairs wants to question the officers, they have to read them their rights first (never mind that they're not in custody). The officers are then given COMPLETE IMMUNITY on what they say, so that it cannot be used against them in any way in a criminal matter, so that they can investigate the potential misconduct. This means, practically speaking, that the police can rarely be charged with crimes after they've given these "compelled statements." How many other jobs do you have where you can keep your job and assert your 5th Amendment right to remain silent in the face of potential prosecution? None that I know of. So, if all criminal defendants who don't testify, or assert their 5th amendment rights, are guilty, does this mean that all cops who assert their rights and then have to give compelled testimony are also guilty of the underlying crime they're refusing to speak of?

I asked this of those obstinate jurors, and you could see them crumbling behind the walls of congnitive dissonance that they've hidden behind. You could almost hear them muttering to themselves "Must...watch...Fox...News...NOW!!!"