Bump and Update: The second article in the series is out today, Attorney Profited, But his Clients Lost

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Original Post 4/4/04

The Seattle Times is doing a series on the pitiful state of the public defense system in Washington. Today's article, For some, free counsel comes at high cost, is a must-read. How lawyer Guillermo Romero ever got to be a contract public defender is beyond us, but he did, and he's not the only one.

In a rape case, he once filed a motion seeking "D and A testing." What he meant was DNA. He gave lousy advice, according to disciplinary officials. You can't appeal, he told one client, when the client certainly could. You can leave the country before trial, he told another, when the client certainly could not. He allowed the state to take liberties. He didn't object when a prosecutor compared his client to Hitler. He didn't object when the same prosecutor argued that everyone who goes to rock concerts uses drugs. He didn't object when police transcribed the tape-recorded statement of a teenage murder suspect and inserted damning words the boy never uttered. Romero couldn't object, because he had never bothered to listen to his client's taped confession. ....Twice, reviewing courts ruled that he was so incompetent, the adversarial system had collapsed.

One of the problems with the Washington State system is that 2/3 of the counties use a contract system for indigent defense.

Warnings about such contracts have been sounded for three decades, but the state has refused to enforce public-defense standards or to help fund indigent defense at the trial level except in extraordinary cases.

There is so much more to this article, please read the whole thing.

by TChris

The federalization of crime may help politicians craft a "tough on crime" image, but it makes no sense to burden federal courts by criminalizing behavior that state governments can effectively regulate. Michael Oxley, R-Ohio, is exercised about "dirty old men" who use their cell phone cameras to photograph girls "through peepholes." He wants to make it federal crime. House Majority Leader Tom DeLay thinks the legislation is "common sense to protect families."

Some Democrats support the bill. Rep. Charles A. Gonzalez, D-Tex., says the bill is about decency and privacy. Maybe, but the breadth of the law is troubling.

It would establish fines or penalties of up to a year in prison for digital offenders who knowingly capture "an improper image" of a person's "naked or undergarment-clad genitals, pubic area, buttocks or female breast" when the individual has "a reasonable expectation of privacy."

Whether a person in a particular environment has a "reasonable expectation of privacy" is often ambiguous, and there may be circumstances in which the first amendment right to disseminate non-obscene images outweighs a claim of privacy. Some of these battles are being waged in state courts that have enacted similar laws. Unless and until it becomes clear that a nationwide problem exists (are there really a lot of peepholes around?) and that the states are incapable of fixing it, Congress should resist the temptation to create yet another federal crime.

by TChris

Dennis Kozlowski narrowly escaped conviction when, after hearing evidence for six months, his jury was discharged and a mistrial declared. While the media focused on the ill-fated trial of the former Tyco CEO and his co-defendant, The New York Times reports that other white collar prosecutions are in the works, and that some have already been more successful.

Last week, Jamie Olis, a former midlevel executive at Dynegy, a Houston energy company, was sentenced to more than 24 years in prison for his role in accounting fraud at the company. The sentence was one of the most severe imposed in a white-collar fraud case, prosecutors and defense lawyers said.

The judge who sentenced Olis explains his reasoning here.

Prosecutors are also pursuing executives at other publicly traded companies, including Computer Associates, a software maker, and the McKesson Corporation, a pharmaceutical wholesaler. Despite the mistrial in the Tyco case and a mistrial last year in the prosecution of investment banker Frank Quattrone, New York criminal defense lawyer Ira Sorkin says that corporate fraud cases can be easy for the government to win.

The evidence in white collar cases tends to be dull, and jurors could not have been happy that the Tyco trial took six months. Prosecutors should learn a lesson from the Tyco trial: jettison weak charges, focus on the things you know you can prove, and get to the point as quickly as you can.

In a strange twist of the child porn laws, a teen in Pittsburgh is charged with child pornography for taking pictures of herself and posting them on the internet. Law Prof Michael Froomkin says:

To me this seems a real case of arresting a victim, the person the rule is designed to protect, and a fairly poor use of prosecutorial discretion. I could vaguely understand it if it were a profit-making business, but this sounds from the admittedly sketchy news report as if it’s more a case of a confused, probably lonely, child who needs counseling (and friends), not a trial and a police record.

It’s true that child porn is an unusually strict liability crime, in which possession alone, without intent or even knowledge, constitutes the offense. It’s also true that police and prosecutors are not always reasonable about some kinds of offenses. Still, this prosecution simply cannot be what the drafters of this statute had in mind.

by TChris

Since 1982, stockbroker Irvin Rosenfeld has had the federal government's permission to use marijuana to treat pain from a chronic bone condition. In 2001, Delta Airlines refused to allow Rosenfeld to board a flight from Florida to Washington, D.C. because he wanted to take his marijuana with him. Rosenfeld complained to the Department of Transportation that Delta was discriminating against him by failing to accommodate his disability.

In a victory for advocates of medical marijuana, the DOT agreed that Delta should have allowed Rosenfeld to board the plane. The DOT dismissed Rosenfeld's claim, however, ruling that Delta had reason to doubt Rosenfeld's entitlement to use the drug since so few people are allowed to possess marijuana. Rosenfeld plans to appeal the denial of a remedy.

by TChris

Federal court is no place for a kid. The Bureau of Prisons doesn't have a juvenile institution, and it has few resources to assist the rehabilitation of a juvenile offender. The federal system has little use for such resources because federal prosecutions of juveniles are relatively rare. In fact, the federal Juvenile Justice and Delinquency Prevention Act recognizes that accused juvenile offenders should generally be prosecuted by states, which typically have specialized juvenile courts and a host of rehabilitative services that are not readily available in the federal system.

Why, then, was a 14 year old boy in Maine prosecuted in federal court for setting fire to a boatyard? And why was he sentenced to 30 months in a maximum security juvenile prison in Pennsylvania (under contract wth the federal Bureau of Prisons) instead of keeping him close to home, as federal law requires?

The boy's family and lawyer think it's because former President Bush lost a boat engine in the fire. Whatever the reason, the boy is the only juvenile from New England (or from New York, Ohio or Pennsylvania) in the custody of the Bureau of Prisons.

An appellate court has ordered the judge who presided in the boy's case to give his sentence a second look. The First Circuit held that Judge George Singal did not adequately consider the "location and rehabilitative capabilities" of the Pennsylvania detention facility. The boy's family hopes that he can be placed in a facility closer to home where more counseling and educational opportunities will be available.

by TChris

Here's a warning for those of you who don't live alone: try not to do so much laundry, and make sure that everyone in your household doesn't take a hot shower on the same day. Not only will you save money on your electric bill, you may save yourself from having your door kicked in by the police.

Dina Dagy's family learned that lesson after the police and their drug-sniffing dog searched the Dagys' Carlsbad, California home. They were armed with a warrant that they obtained on the strength of the Dagys' $250 to $300 monthly electric bill, which the police deemed suspiciously high. Suburban families that use a lot of electricity, the police reasoned, must be growing marijuana in their basements.

Or not.

What they found when they showed up ... was a wife and mother who does several loads of laundry a day, keeps a dishwashing machine going, has three electricity-guzzling computers and three kids who can't remember to turn the lights out when they leave a room.

Dagy finds it hard to believe that a high utility bill would be enough reason to issue a search warrant. She's right. But police say that they followed standard procedures. In addition to noticing the high bill, they sent the drug dog to sniff around the house, and they viewed the dog's reaction as evidence that marijuana was being grown inside. So much for the reliability of drug dogs, or of the humans who interpret their responses.

They also noticed the family had put its trash out that morning, something police say drug growers often do to hide the evidence. In the Dagys' case, however, it was trash day.

If taking out the trash on trash day doesn't prove guilt, what more evidence could the police possibly need?

While the police should be faulted for invading the Dagys' privacy on the basis of such flimsy evidence, the judge who disregarded the Fourth Amendment by issuing the warrant also deserves a share of the blame. Judges swear an oath to uphold the Constitution. That didn't happen here.

by TChris

Pamela Martinez was given a life sentence under California's three-strikes law for stealing a toolbox. Fortunately, her conviction was overturned on appeal. She entered into a plea bargain that resulted in a nine year sentence and was released after serving five. In the two-and-a-half years since her release, Martinez has become a dependable employee and a responsible citizen. Now, having realized that it mistakenly released Martinez about two months early, California's prison system wants her back.

The ACLU justly criticizes the state for spending $2 million just to "derail her hard-won successes." Martinez says her crimes were caused by a drug addiction that she's placed behind her. Now that she's finally gotten her life together, California wants to tear it apart.

Gov. Arnold Schwarzenegger deserves credit for recognizing that this act of bureaucratic lunacy will not benefit the state. After the state supreme court upheld Martinez' return to prison, Gov. Schwarzenegger wrote to the court with a formal request to commute the remainder of Martinez' sentence. The court will consider the request after it reviews a report from the state Board of Prison Terms. In the meantime, Martinez hopes that a superior court judge will stay her return to prison (now scheduled for Tuesday) while the supreme court makes its decision.

by TChris

Utah has joined the growing list of states that are dropping out of the Multistate Antiterrorism Information Exchange, or MATRIX. TalkLeft's background information about the crime-fighting database can be found here.

Gov. Olene Walker recognized that law enforcement agencies have a legitimate need to share information, but not at the expense of equally legitimate interests in protecting privacy.

Walker's announcement comes a day after a panel that she appointed to review the MATRIX recommended steering clear of the pilot crime-fighting network until "adequate oversight" is established to assure that the billions of public and private records it collects on citizens aren't misused. The panel also suggested that the Legislature decide what shape oversight should take.

Only five of the original thirteen partner states remain in the MATRIX program. Those that have abandoned the program share concerns about its potential for abuse.

©ivil libertarians and those opposed to big government fear the breadth of data stored in the MATRIX will allow law enforcement to spy on law abiding citizens. Its data mining capabilities, for example, would allow police to create lists of people who fit criminal profiles based on their ethnicity, address or credit history.

by TChris

More than two years behind schedule and $120 million over budget, the FBI hopes to finish modernizing its computer system by this summer. Will it all have been worth it?

The upgrade, known as Trilogy, is intended to move the FBI from decades of dependence on paper to the digital age. But congressional investigators and some lawmakers question whether the bureau can even run the new system.

The total cost will be about $600 million, not counting another $20 million that the Bureau wants so that its agents can read classified emails. Let's hope that $20 million is sufficient to keep high school hackers from busting into the system and publishing the classified information on the internet.

The General Accounting Office questions whether the FBI has an "overall vision that provides a guide for moving from current computer needs to those of the future."

Although the FBI is working on such a plan, the GAO said the entire system could be at risk of duplication, overlap and lack of integration. The GAO concluded that the FBI faces "a major challenge" in overcoming these obstacles.

Parents of Arkansas schoolchildren have filed suit in federal court to stop random drug testing of their kids . The testing had been implemented after a vote by the local school board.

[Parent Mr.] Plopper, a journalism professor at the University of Arkansas at Little Rock, said the administrators and school personnel "who support and maintain suspicionless drug testing are like schoolyard bullies who torment students just because they can. "In this case, however, these people are worse than such bullies because they are educated and should know better than to turn the civil liberties of equal protection and privacy into empty promises."

The complaint alleges that the policy violates the rights of the student plaintiffs under section 29 of the Constitution of Arkansas, as well as the 14th amendment of the United States Constitution.

We hope Mr. Plopper and the other plaintiffs win the suit. Scientific studies show random drug testing is ineffective:

A University of Michigan study of 76,000 students nationwide between 1998 and 2001 concluded that testing appeared futile as a deterrent. For instance, 37% of high school seniors had tried marijuana in schools with drug testing; in schools without drug testing, 36% had tried marijuana. "Randomly testing kids is incredibly ineffective," said Ethan Nadelmann, director of the Drug Policy Alliance.

This is not just about a small school district in Arkansas. Last week, Bush proposed spending $25 million on student drug testing. At the risk of repeating ourselves, students should not have to shed their constitutional rights at the schoolhouse door.

by TChris

The Senate is considering a bill today that would make it a federal crime to cause the death of, or injury to, a fetus during the commission of other federal crimes. A similar bill has passed the House, and the legislation is supported by the President.

Update: The bill passed the Senate by a vote of 61-38. It will be now be sent to the President for his promised signature.