Wednesday, July 23, 2014


Tonight, I am angry.

Legitimately, thoroughly, heart-breakingly angry.

I am angry for my colleagues in Arizona. For days, weeks, months, the intrepid defenders representing Joseph Wood, who was executed today, have been fighting to get information about the lethal injection process. They, like any good defenders, wanted to know what the procedure would look like, what drugs would be used, where the drugs came from, what kind of training the people administering the drugs had. They argued to court after court that we couldn't assess whether executing Joseph Wood would violate the Eighth Amendment prohibition on cruel and unusual punishment without that information. Not only were they shot down by every court, they were vilified by the public, criticized in online comments sections, accused of filing frivolous motions, grasping at straws, doing whatever they could to eek a little more money out of the taxpayers. And in the end, they had to watch someone they cared about (because it is possible to care about people even after they've done horrible, terrible, heinous things) suffer through a prolonged death. (In a way that proved they were right all along to want the information they had sought, but small comfort that is to them tonight.)

I am angry for the portion of the American populace that wants no part of the death penalty. We think it's ugly, dirty, beneath the dignity of this great nation. We think intentional killing is wrong no matter who does it or why. Tonight, we feel guilty, we feel sorrow, we even feel dirty because we haven't been able to stop things like what happened to Joseph Wood in Arizona tonight. Our failure to win the day on abolition of the death penalty makes us complicit in your murder and that makes me angry.

I am angry for the reporters who had to watch Joseph Wood's prolonged death, that included him gasping and struggling for breath for nearly two hours. I am angry for the prison guards and other staff who were charged with trying in vain to do this thing they had no business doing. These are people trying to do their work, trying to be honest and lawful and genuine. And yet, they will now be forced to remember forever the sounds of Joseph Wood gasping for breath, the sights of him struggling as his execution went against plan. Actual people are tasked with carrying out the acts that will end human lives and with documenting those acts for the public. Those people pay a price and I am angry on their behalf.

I am angry for all of the men and women on death row throughout the nation who have to live in purgatory on earth, wondering if that could be the fate that awaits them next week, next year, or 10 years from now. No matter what you've been or done, no one should have to live with that kind of mental torture. We none of us think what their victims endured was ok because human beings shouldn't treat each other with such carelessness, such disdain. True adherence to that ideal means we shouldn't be ok with treating any human beings that way, no matter how much some humans might "deserve" it on some cosmic score card of pain.

I am angry as hell at the people who insist on keeping the death penalty alive in this country. It should be a relic, something we discarded along with lynchings, Jim Crow laws, denial of women's suffrage, and any number of other things civilized, enlightened societies are better without. I am furious that they insist some people waive their rights to live, deserve whatever manner of torture we can think of, etc., without recognizing the cost the rest of us pay when harmless, defenseless people are intentionally killed. We will be a better society when those people are finally defeated. I am angry that they keep us from being our best selves.

I am angry for Joseph Wood. He suffered a terrible, painful death. He gasped for breath, snorted, struggled for almost 2 hours. He will never now be able to tell us what it felt like. And while, yes, his victims also undoubtedly suffered in ways we will never be able to imagine, that doesn't make it wrong for me to condemn his suffering on top. We are supposed to be better than common criminals. If I could speak to Joseph Wood, I would tell him how righteously angry I am on behalf of his victims. That anger towards his actions does not in any way limit my ability to look Joseph Wood's torturers in the eyes and express the same righteous anger about Wood's subsequent suffering. Any time a human being suffers at the hands of another human, anger is justified.

There is no good way to kill a human being. Death is ugly. When left to run its own natural course, death can also be beautiful, transcendent even. But the ugliness is always there. When it comes as the result of the intentional act of human hands, there's no hiding the ugly. The ugly will always reveal itself. There is no method human beings can devise of intentionally killing each other that won't eventually reveal the ugly underbelly. Firing squad, hanging, drawing and quartering, lethal injection, electrocution, even Madame La Guilllotine herself. Every single method has been botched. Every single method has resulted in human suffering. Every single method is beneath us.

There is no good way to kill a human being. So for the love of all that is good, stop freaking trying.

There will never be a good way to kill a human being.

Wednesday, July 16, 2014

Listen to the smart judge, California

I've long known that California, of all states, had by far the most dysfunctional death penalty system. At last count, they had 748 defendants on death row. In total, over 900 individuals have been sentenced to death since California reinstated the death penalty in the post Furman-era of the mid-70s. Yet since 1976, only 13 people have been executed. If you take the total amount the state has spent on death penalty cases since 1976 and divide it by those 13 executions, it's a staggering number (as in several hundred million dollars). Since 2006, there haven't been any executions and there's no reason to think there will be one any time soon because the state has no execution protocols in place. Meanwhile, new death sentences are being imposed every year, so the death row population is ever-increasing.

I knew that the average length of time defendants spent on California's death row dwarfed the national average, that death row inmates in Cali were more likely to die from natural causes than execution, etc. I knew that one of the main problems was a lack of resources. Not enough lawyers, to start, because there's not enough money to fully-staff public defender offices and way not enough money to entice private attorneys to take on these cases. Then, of course, there's no money for the additional resources a defense attorney needs to handle post-conviction procedures correctly, like to hire investigators and experts, track down witnesses, etc. I knew that the death penalty in California was a pointless exercise in futility.

But even with all that knowledge, I was still  not quite prepared for the depth and breadth of the dysfunction in California as it was laid bare today in a federal district court opinion finding the California death penalty system to be unconstitutional. The defendant, Ernest D. Jones, through his lawyers at the Habeas Corpus Resource Center (HCRC) argued that the systemic dysfunction and delay that permeates every level of post-conviction review in California rendered his death sentence arbitrary in violation of the Eighth Amendment. Arbitrariness is a key word in death penalty case law; it's the thing we've been striving to pretend doesn't exist in our death penalty schemes. In this context, the arbitrariness argued by the defense and agreed to by the federal court was in how few death sentences will actually be carried out and that there's just no telling which few inmates it will be carried out on. There's really no rhyme or reason to why those 13 guys were the ones who were executed. No will there be any sensible distinction between the say 5-10 guys now on death row who are executed and the other 740 who will avoid that fate.

Because of the ridiculous delays and the sheer randomness of which cases finally make it through the system, this federal district court judge found California's death penalty unconstitutional. It's what people in the know have been saying for years. It's beyond refreshing to see a judge own it.

The thing that most floored me as I read this decision was how long it really takes to get attorneys appointed on direct appeal. In a normal state where the process is working as it should, the appointment of appellate counsel* should happen at roughly the same time as the pronouncement of sentence. A defendant is formally sentenced, the trial attorney files the notice of appeal (often on that day, but definitely within about 10 business days), and appellate counsel is appointed. It's not at all uncommon for all of that to be done on the day of sentencing. It's pretty easy to write a name on a form and then send a copy of that form on to appellate counsel. Then appellate counsel gets the appeal rolling, filing the necessary documents at the appellate court, requesting transcripts, etc.

But in California, it's not that simple. In California, as I learned in today's decision, it takes 3-5 years for appellate counsel to be appointed. 3-5 years. That is 3-5 years that a person newly convicted of murder and sentenced to death must wait around in prison without an attorney, without anyone to ask about the process, without anyone on his side. Maybe to some of you, that doesn't inspire a whole lot of sympathy. But to me, being in prison and facing a death sentence without one single person to turn to for guidance is unimaginable. One thing I wonder about is whether the transcripts are being prepared in those intervening years or whether that process waits until there is an attorney appointed? It's bad enough that defendants have to wait 3-5 years before an attorney begins working on the case, but it would be even worse if "working" on the case involves all that preliminary, time-consuming stuff like compiling the record and ordering transcripts.

California's death penalty quagmire doesn't get better after the direct appeal, either. There are lengthy delays in the appointment of the attorneys who handle state and federal habeas review. This is the part of the process that frustrates the crap out of kill-happy politicians and a public who doesn't understand why there are so many appeals. But it's an essential part of the process. Generally, it's only in habeas proceedings that defendants can raise issues related to the performance of trial counsel. Since effective assistance of counsel is a constitutionally-guaranteed right, it's kind of a big deal to make sure that right wasn't denied. And yet, in California, again, we're talking an average of years before habeas counsel is appointed.

The delays inherent in California's death penalty system aren't because defendants are pulling tricks and being difficult. It isn't because attorneys are filing frivolous motions and meritless appeals. It's because for literally years, there is no one doing anything on these cases. There is, in fact, no one to do anything on these cases.

That the California system has been irretrievably broken for years is not news. Back in 2008, a commission offered numerous suggestions for clearing up the quagmire. But in 2014, nothing has changed. The courts are more backlogged than ever.

Really, this judge just had the courage to say what so many people have been thinking for years. California, your death penalty is a joke. No, worse. It's a disaster. You've hopelessly, irrevocably mucked it up. It cannot be fixed. You will never execute the defendants you have already sentenced to death; you will definitely not get to any new death sentences. You're throwing bad money after good into this thing and getting absolutely nothing out of it. So stop. Just stop. Take this decision as your opportunity to once and for all get out of the death penalty business while you still have some dignity.

The only way for California to fix its death penalty is to abandon it.

*It really needs to be different counsel for a couple of reasons. Trial work and appellate work are very different beasts, for starters. But you also want fresh eyes on the case and counsel who will be free to identify if prior counsel made mistakes.

Tuesday, June 17, 2014

And we'll never be judges

I don't want to be a legislator or a political appointee heading some bureaucracy. I don't want to be a city or county commissioner or a school board member. I don't even want to be a judge.

But it really chaps my hide to know (not think, not guess, but know) that even if I wanted to pursue any of those jobs, the job I've dedicated myself to thus far would disqualify me. Once a public defender, never an anything else in public life.

We, the public defender community, have long known that we were not going to be able to stay in this role if we someday want to be judges. Fortunately for me, I'm an advocate through and through, so that was never a problem for me. But I have colleagues who would have loved to be judges, and who would have been marvelous judges, who get overlooked at every opportunity. Part of that is the networking angle. We're not attending the right meetings (because we can't afford it and our offices can't afford to cover us), we're not meeting the right people, becoming known in the right circles. Of course, prosecutors get to be judges, but public defenders don't.

It's more than just the financial aspect, though, because even those who do much private criminal defense work don't get to the bench.

It really shouldn't come as a surprise, then, to learn that being a public defender is a bar to all kinds of other jobs. We saw earlier this year how representing a particularly disliked death row defendant, no matter how tangentially and no matter how meritorious the issue, disqualified an attorney from joining the Justice Department. And now we see that the ratio of former prosecutors and judges to former public defenders in Congress isn't a fair fight, either. The key comparison: right now, the House has 32 former prosecutors; since 2000, only 5 former public defenders. I'd be curious to see the resumes of those former PDs, too, because I'd guess they had work between being public defenders and running for office. Prosecutors can run for office; public defenders have to have transition jobs before they can run.

The Washington Post story has examples of attack ads that have run against those defenders who do try to run for public office. Defend one accused murderer or child rapist and that'll be the first thing your opponent points out about you. I know exactly which case of mine would be the first mentioned in the attack ad against me if I ever tried to run for office. I think I can guess which would be second. After that, though, there's a whole slew of stuff to choose from. They'd need to buy a full half hour ad to properly rake me across the coals for all the bad guys I've tried to help.

What is this about? Why is public defender work so disrespected? Except it goes beyond disrespect. Public defender work is downright despised. I can't even work up a whole lot of anger about it, anymore. The public defender hate just leaves me feeling so defeated.

We're good people. We're good lawyers. We're not idiots who just couldn't get better jobs. We actually do this work because we believe in it. It's work you should believe in, too, if you like the Bill of Rights. It doesn't just stop at the Second Amendment, you know. There are, in fact, 4 Amendments that focus on the rights of those suspected of and charged with crimes. One of them even guarantees every criminal defendant the right to the assistance of counsel. So you could even say we're true patriots, doing a job specifically outlined in the Constitution. You're welcome, by the way, for all that security in your person and effects against unlawful searches.

But instead of getting thanks, we get crapped on. We're laughed at, derisively called "public pretenders." (Yeah, that's really original and we've never, ever heard it before.) We're confronted at parties with outraged queries of how on earth we can sleep at night. We're vilified on comment forums. We're the red-headed step-children of state agencies, being asked to do more and more work with half the resources of other state lawyers (I'm looking at you, prosecutors). Then when we still manage to do good things with those limited resources, we're just more hated. And to top it all off, we're not allowed to have any role in public policy discussions because there's always someone there to point out that the work we do is somehow "incompatible with justice."

It's a sin and a shame that the perspectives that we have aren't valued, that our experiences aren't represented in state houses or Congress, that we aren't desired contributors to policy discussions. We would actually have something worthwhile to contribute, if you'd all stop insulting us and hating us long enough to listen.

But you won't and I'm too tired to fight. So, go on. Keep hating and disrespecting me, my colleagues, and the work that we do. Just know, though, that if any of you anti-public defender folks ever get arrested for DUI or accused of rape or murder, one of us will be there to stand beside you in court, no matter what sort of mud and disrespect you've flung at us. We don't pick and choose who is worthy of a defense. We stand on the principle that everyone has Constitutional rights that should be respected. Even you jerks who wouldn't vote for one of us because of our principles. We're just that damn principled.

Tuesday, June 10, 2014

Gitmo: The elephant in the Bergdahl room

The President struck a deal to get an American soldier held by the Taliban in Afghanistan back and the world went crazy. By the world, I really mean tv pundits and Republicans who knee-jerk oppose anything and everything this President does. People who just weeks ago were criticizing him for not getting Bowe Bergdahl back were all of a sudden incensed that he struck a deal with the Taliban to do just that. (And don't even get me started on Andrew Napolitano's ridiculous "he could be charge with giving aid to terrorists for releasing these guys" nonsense.) It's been fascinating to watch from a political standpoint.

But there's a really important legal, criminal defense even, point that must be emphasized. What we should learn from the Bergdahl incident is this: Gitmo is now and has always been a terrible, horrible, no good, very bad idea and we have got to end it. We are running out of time to find a graceful way to end it and denial about the need to end it isn't helping.

For centuries, the world has recognized certain rules about how to handle captured enemy soldiers during war. Countries were allowed to keep those soldiers, rather than release them so they could wind up back on a battlefield killing again, but within accepted parameters. And when the war was over, everybody sent the captured soldiers back home. The more amorphous war on terror, where we weren't really fighting a defined foreign power made things a tad more complicated. We weren't at war with Afghanistan itself, just the nasty elements that were allowed to grow in the more lawless regions of that country.

When the prison/detention camp thingy in Cuba was first created, it was a creative extension of normal international prisoner of war standards. We called the Taliban and Al Qaeda fighters we captured "enemy combatants" so we could detain them under international prisoner of war standards rather than trying to put them all through criminal court. It was definitely uncharted territory, which made it so tricky.

But that was over a decade ago. At some point, we had to know we couldn't just hold these guys for the rest of their lives. Some who had provable ties to actual terrorist acts, like Khalid Sheikh Muhammad, we could try in criminal court, where presumably they will be convicted and we can then hold them forever. Because due process and international law both allow people convicted of murder in criminal court to be incarcerated for life. Combatants captured on a battlefield, not so much. We were never going to be able to make criminal charges stick against most of them, the vast majority of them, even. At some point, we were always going to have to start sending them home, even the really bad, high-ranking Taliban guys. It doesn't matter how much they hate us or how much harm they might hope to do to us. The French and the British didn't stop hating each other the moment a war ended, but they still sent each other's men home. Even if that meant they'd face off in battle again some day. We just don't get to keep them forever.

So since we have to accept that reality that eventually we will have to close Gitmo and release most of its inmates, we might as well get something for them when we can.

In the wake of the Bergdahl swap, it would be nice if we could have a serious discussion, then, about what we are going to do with all the rest of them. When and how will we release them (there is no "whether"), to which nations, and with what, if any, conditions. It would be lovely if we could calmly and rationally face this reality head on, if we could think about what other things we might negotiate about as we release more detainees. Instead of speciously whining that we made America less safe on behalf of the son of a man who looks too Muslim.

Tuesday, June 3, 2014

Q: When is a 12-year-old an adult? A: NEVER!

Way back in my law school days, I interned at a public defender office in Wisconsin, working on juvenile cases. I saw a wide range of cases, from Pokémon card theft to vandalism to battery. There was arson and some plain old runaway stuff. I saw a case involving a teen girl subjected to a search of her bra that wasn't too different from a US Supreme Court case. I saw kids from all different kinds of families, different socioeconomic backgrounds. And I saw kids of all kinds of ages, as young as 8, as old as 17.

Know what I didn't see? I didn't see one single juvenile I might have mistaken for an adult. Didn't matter what they were charged with or how old they were. They were universally just scared kids. (And I knew from scared kids as I was a 26 year-old broke law student.) The 14 and 15-year-olds I saw would have gotten crushed in the adult criminal system.

So I come with that perspective when I say I cannot fathom what on earth the prosecutors in Waukesha County are thinking by charging two 12 year-old girls as adults. It boggles the mind.
 As I've ranted before, Teenagers really aren't adults, so we shouldn't treat them as if they are when it comes to crime and punishment. But these girls aren't even there yet. They're still looking ahead to their teenage years! Go to any 7th grade classroom anywhere and try to find me even one kid who you would feel comfortable putting in adult court. I'm telling you now, that kid does not exist.

I can't believe I have to write this. I don't want to have to keep beating this very sad drum. But there is no justification for charging and trying a 12 year-old child as an adult. None. Doesn't matter what the crime is, what the child's IQ is, or what the child says about why it happened. All 12 year-old kids are kids and need to be treated as such.

Please, prosecutors of the nation, stop making me have to rant about this. Just stop doing it. We have a juvenile justice system for a reason. It's to deal with the 12-year-olds who commit crimes, yes even very serious crimes. Trust it. It actually can work if you let it.

Did you hear the one about the judge beating up the defense attorney?

I don't know what's going on in Brevard County Court. I don't know if their courts are hopelessly back logged with defendants waiting for court dates. I don't know if the prosecutor's office there is charging too many cases, refusing to negotiate deals, if the public defender's office is stretched too thin due to understaffing, or some combination of all of the above. But there is clearly something happening, leading to some simmering tension.

That tension boiled over yesterday when Judge John Murphy asked assistant public defender Andrew Weinstock what he wanted to do with a case and the PD doggedly said more than once that he wasn't waiving. The conversation was about whether Weinstock's client would get a speedy trial. It sure seems the judge was determined to get a waiver of that constitutional right. The judge was certainly annoyed at the PD's refusal to cooperate. It can be very inconvenient for courts when defense attorneys actually insist on protecting their clients' rights. The judge told the PD he was pissing him off, told the PD to sit down. The PD said he had a right to be there and to stand up for his client.

What happened at first isn't all that odd. It's the kind of exchange that most judges and PDs will have at some point. "Please waive your client's constitutional speedy trial right because my docket is a mess and I don't know how we'll fit it in," says the Judge. "Not our problem," replies the PD.

It's what happened next that sets this one apart. The Judge said he would throw a rock at the PD if he had one. Then he suggests the two should go outside. And the PD does. The video doesn't follow the pair into the hallway, but an altercation can be heard, some thumps, and I thought I heard some profanity. This article includes the video.

The PD says as soon as they got into the hallway, the judge started punching him. No discussion, no attempts to work out their personal differences, just punching. After a minute or so, the judge comes back into the courtroom (to some applause, yikes) and takes a minute to gather his breath. Doesn't seem like the PD returned fire at all. For all the bravado he exhibited leaving the courtroom at the judge's invitation, he surely knew a lawyer punching a judge is a career-ending move sure to land that lawyer in jail for at least a night.

Now, I can get plenty ranty about what this judge did to the PD. The PD was absolutely wrong to leave the courtroom as he did, though, of course, one rarely exhibits the best judgment in the heat of the moment. Ideally, the PD would have stuck to his guns on the waiver issue and then asked for recusal after the threat of physical violence. But the judge is totally at fault here. You don't get to punch people! You definitely don't get to punch defense lawyers for having the gall to defend their clients' rights!

This judge should be removed from the bench. I'd be ok with him not facing criminal charges if he suffers that consequence. He does not belong on the bench, with people's lives at stake, if that's how he handles conflict, especially when the conflict is purely because a defense lawyer refuses to bend to his will. What defense attorney would feel comfortable appearing before this judge now? I wouldn't. Even if he wouldn't hit me, the real physical intimidation that occurred in this case with this attorney will linger in his courtroom. So far, the only statement has been that this judge will not sit on any of this attorney's cases, but I don't think that begins to address the problem. This may have been the only attorney to have suffered actual physical injury at this judge's hand, but it won't be the only attorney affected.

But there's much, much more to this than has been covered in any of the articles I've read about the incident. The judge went on to do something else that should get him removed and that sheds more light on what his real motivations were.

The entire time this incident was occurring, the poor defendant stood quietly and respectfully at the podium. He was still there when the judge, and the judge alone, returned to the courtroom. He stood there quietly as the judge composed himself and regained his breath. And then, the judge addressed him.

The judge asked the defendant what he wanted to do. Not about sticking with that attorney or being reassigned, not about sticking around to see if another PD could show up to continue the scheduling hearing. Nope, he asked the defendant a substantive question about setting a trial date. Did the defendant want a trial date or did he want to waive his speedy trial right? That's right, the judge went back to a defendant who was represented by counsel but whose counsel was not in the courtroom because said counsel had just been beaten up by the judge and asked the defendant to waive the very constitutional right his counsel just got beat up for refusing to waive! Of everything that happened, that to me is the most outrageous. The judge couldn't get that damned public defender to cave, but maybe not that he's out of the way, the defendant will.

A judge doesn't get to interact that way with a defendant who is represented by counsel. He certainly doesn't get to create a conflict with the attorney so the attorney can't come back in the courtroom and then treat the defendant as an unrepresented defendant. What is a defendant supposed to think at that moment? If I don't waive my right, what will this judge do to me? A defendant shouldn't have to worry that he will suffer consequences for invoking a constitutional right.

Fortunately, this defendant stood firm and refused to waive his right. Had he waived it, that should have been a slam-dunk win for the defense because no way would that waiver have been valid. But none of that takes away from how unacceptable it was that the judge asked the question in the first place. He had no business conducting any business with that defendant while he stood in court without his appointed attorney. I wonder if any other defense attorneys (or prosecutors, for that matter) were in the courtroom when the judge addressed the defendant. I would hope one would have stood up and suggested no hearing should proceed in that fashion. But what lawyer would want to challenge that judge after what had just happened?

What this judge did is despicable and it is behavior that has no place on any bench in any courtroom.

Friday, May 30, 2014

Public defenders don't get to pick our clients. We don't get to pick what kind of cases we get. I take whatever client and whatever conviction comes through my door. I believe that's the only principled way for me to do my job. The presumption of innocence applies to all defendants, no matter how obnoxious or unpleasant. And the constitutional guarantees of due process, etc., apply to all charges. I wouldn't be honoring what I say I believe in if I would turn a client or a type of case away.*

This doesn't mean, though, that you don't sometimes read the details of a case that fell to someone else and think, "I'm glad that one didn't land on my desk."

*unless, of course, a personal conflict develops, in which case the client is better off if I pass the case off to someone else. But I do all I can to avoid those conflicts from developing.
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