Daily Show Rips Nancy Grace Over Duke Case

My longstanding disgust for Nancy Grace is well-known to regular readers of this blog. Her coverage of the Duke Lacrosse "Rape" Case provided a nice vehicle for Jon Stewart and the good folks at The Daily Show to rip her a new one. Enjoy!

Why are Child Prostitutes Treated Like Criminals Instead of Sexual Abuse Victims?

I can't read the actual article because either the magazine's website is down right now or my internet connection sucks, but a Salon blogger on women's issues notes a New York Magazine article about how child prostitutes are treated in the U.S.A. The bottom line is that, despite the fact that these girls are legally incapable of consenting to sex, and that many of them are essentially "sex slaves," they are frequently treated like nothing more than criminals when they are arrested for prostitution. There has to be a better way.

FBI Doesn't Want Jurors To See How They Get Confessions

In the midst of the U.S. Attorney firings scandal, the New York Times has uncovered a fascinating little tidbit. Apparently, one of the fired prosecutors got the FBI all up-in-arms because he challenged a policy that forbids FBI agents from recording interrogations with suspects without supervisor approval. That's right--they're forbidden from preserving an accurate record of the interrogation. Why? Well, that's where it gets even better. Apparently, one of the major "legitimate" policy reasons put forward by the FBI is that jurors might not like what they see:

Psychological tricks like misleading or lying to a suspect in questioning or pretending to show the suspect sympathy might also offend a jury, the agency said. “Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants,” said one of the once-secret internal Justice Department communications made public as part of the investigation into the dismissals of the United States attorneys.

Interesting. So, they don't want jurors to see precisely what they do to obtain confessions because they think the jurors might find what they do "improper," even though it's not. Or, maybe, because the jurors, upon seeing the actual interrogation process, might be more inclined to believe defense assertions that the confession was false. It is very true that lying to suspects and applying extreme psychological pressure are "perfectly lawful," but it's also true that use of these techniques can result in false confessions, and that the average juror doesn't have an understanding of how these techniques play out. And the FBI doesn't ever want them to.

Quick Hits

I got slammed this afternoon, and don't have time for a long post, but there is a lot of interesting stuff in the news, law wise, so here is a list of stuff to check out:

*One of those terrorist-loving lawyers for the Gitmo detainees publishes an open letter to Cully Stimson in Salon and it is awesome.

*The dedicated lawyers at the Cook County Public Defender's Office are fighting back against budget cuts that would mean a bunch of lawyers there losing their jobs, and their already high caseloads getting even higher.

*Bill O'Reilly, adamant defender of children against sex offenders, thinks Shawn Hornbeck didn't escape his abductor for over four years because it liked it since he didn't have to go to school.

*The judge and the DA apologized to James Waller yesterday in court when his DNA exoneration was made official, but I think it would be nice if someone tracked down the jurors who didn't do their job and got some apologies from them. They convicted the guy in 46 minutes based on an obviously bad voice identification and in the face of an alibi. Step up and take some responsibility for violating your oath and sending an innocent man to the pen for 30 years, jurors! Maybe future jurors will learn a lesson.

*I told the prosecutor yesterday that my case set for trial on Tuesday should be dismissed because he didn't have the evidence to prove it, and this morning, he dismissed it. Wow. That's pretty cool.

A Juvenile Case with a Little of Everything

The Los Angeles Times has an interesting article today about a juvenile case in Long Beach with a little of everything--race, violence, questionable eyewitness identifications, and, just like in juvenile cases in most states, no jury.

Why Don't Parents Hire Lawyers for Their Kids?

There has been a lot of talk around the public defender blogosphere regarding a recent study on the effectiveness of public defenders versus private defense attorneys, as outlined in this Op/Ed piece in the New York Times. Much of the discussion has focused on the methodology of the study and whether it is an accurate depiction of the private attorney/public defender issue. But I am much more interested in the conclusion of the opinion piece--that marginally indigent defendants (those who qualify as indigent, but who could manage, with sacrifice and assistance from family and friends, to hire a good, private attorney) who are guilty tend to rely on public defenders, while the marginally indigent innocent tend to hire private counsel.

As I was thinking about this conclusion, it struck me that, in the county where I practice, virtually none of the juveniles accused of crimes are represented by hired counsel. As juveniles, they are all presumed indigent, and entitled to be represented by my office. But, just like an adult defendant, they have the right to hire private counsel if they choose. As children, it's highly unlikely they'd be capable of retaining an attorney on their own, so if private counsel is employed, it is because their parents have chosen to pay the money to do so.

Many of my clients come from poor families, those whom I would classify as truly indigent, and not marginally indigent. But, there are quite a few that come from middle class families as well. Certainly, many of these parents could marshal the resources to hire a private attorney. And yet, except on very rare occasions, they choose not to. Why? Is it because these parents don't care about their children's cases as much as they would care about their own? That they don't think whatever consequences their child might receive from the juvenile system are severe enough to merit laying out the money for an attorney? That they don't believe in their children's innocence? Or are they simply more willing to trust a public defender to do the best job that can be done than they would be if it were themselves standing accused?

I am not a parent. But I often hear parents say that they would sacrifice their lives for their children--that they would do anything to protect their children, no matter the personal consequence. But when it comes to their children being threatened with sanctions in the criminal justice system, that doesn't seem to be the case. At least not in the county where I practice. Or, maybe it says something about the children that end up in the juvenile justice system. Is it possible that a good percentage of the kids who end up in the juvenile system have parents who aren't so self-sacrificing? That they aren't the parents who would do anything to protect their children, no matter the personal consequence?

I think I do a very good job for my clients. And I like to believe that I get them just as good results as they would get if they hired a private attorney. But, if the prevailing viewpoint in society is that public defenders don't do as good a job as hired attorneys, why do so many parents entrust their children to me, instead of doing whatever it takes to pay a private lawyer to stand up for the rights of their children?

Fox News Analysts Have a Thirst for Justice . . . For Rich, White Defendants

I don't know if I've had one single post about the Duke rape case. That doesn't mean I haven't been following the case--it's pretty hard to ignore. In fact, I have been paying pretty close attention to the news coverage. I'm a criminal law junkie, and it is one of those stories that is hard to resist. But one thing about this case, or rather, about the news coverage of this case has really fascinated me. I can't recall ever seeing a rape case covered by the media with such vehement support for the defendants, and such skepticism and hostility towards the prosecutor and the accuser. It certainly didn't start out that way. As many criminal cases often do, when the police and the prosecutor control the information, all the initial reports looked really bad. If you believe the ethics police in the North Carolina bar, that was because the DA was violating all sorts of ethical rules about pre-trial statements to the media. At any rate, as more of the actual evidence--physical evidence, witness statements, medical evidence, lineup procedure, etc.--started coming out through court filings, the case began to take a different turn. At this point, it seems that 90% of the legal experts commenting on the case think it is a dog, that it should be dismissed, and many would also add that the DA has screwed it up so royally that he should quit.

But, since virtually the beginning, most of the folks at Fox News--normally big on law and order--have been almost uniformly skeptical of the accuser and the prosecution, and supportive of the defendants. Sean Hannity, in particular, has been an outspoken advocate for the accused and equally outspoken in his outrage at the prosecutor and the accuser. She is a slut, a drunk, a liar. The prosecutor is a disgrace, a violator of civil rights, and needs to be thrown out of office, disbarred, if not prosecuted himself.

Honestly, I think this case is a disgrace. I think it would be a travesty to take the case to trial. The identification procedures used were atrocious, the accuser's account of events has changed as often as she has spoken about it, and the physical evidence is either virtually nonexistent or exculpatory. Heck, one of the accused has about as airtight an alibi as you can have without actually being locked up in jail at the time of the "crime." So, yeah, I think the case should be thrown out. If the DA doesn't have the good sense to dismiss it, the judge needs to have the balls to toss it based on the prosecutorial misconduct, and impermissibly suggestive identification procedures.

As someone who rants and raves when people are wrongly accused, I should be thrilled that someone like Sean Hannity at Fox News is so outspoken in his indignation. But, here's my problem with Sean Hannity. When has he ever given a damn about a poor defendant, wrongfully accused or convicted? When has he called on the federal government to investigate a prosecutor for civil rights violations committed against someone who didn't go to a prestigious university or have a wealthy family? When he rails against the prosecutor for abusing his authority in this case just to get elected, does he ever consider what responsibility he and his Fox co-hort Bill O'Reilly have when they threaten the political futures of elected officials who refuse to pass draconian sex offender laws that, they must admit in light of the Duke case, sometimes end up being imposed on innocent people? I haven't seen any evidence of that. The title of my blog comes from the Martin Luther King, Jr. quote, "Injustice anywhere is a threat to justice everywhere." I might suggest to Sean Hannity that, over this long holiday weekend, he reflect on that quote. And perhaps he might acknowledge that all across this country, the poor are subjected to injustices perpetrated by police officers and prosecutors not doing their job. And they don't have millions of dollars to fight back like the Duke players do. And that, perhaps, if he spent some time urging the people and politicos in this country to do something to prevent and to rectify those injustices, then the chances that rich, white boys from Duke will fall prey to those same injustices would be significantly less.

Public Defending in New Orleans Still Rough Going

Being a public defender in New Orleans since Katrina has been, to put it mildly, hell. There are nowhere close to enough attorneys to represent all their clients. And I don't mean not enough to meet ABA guidelines. No public defender office I know of has that. They are really struggling. And that is just the beginning. There are a people locked up who are completely lost in the system, people are waiting months and months in jail for a trial on misdemeanor charges, without ever seeing a lawyer. It is a disaster. Some judges have threatened to throw out large numbers of cases of people sitting in jail because there is no one to represent them. And yet, there are many diligent public defenders doing what they can to bring some sense of fair representation to the indigent. So, it doesn't help matters when a judge gets so pissed off that no public defender is in his courtroom when he's ready to go that he marches over to the PD's office, drags the trial chief to his courtroom, finds him in contempt, and sentences him to 36 days in jail. Not surprisingly, an appeals court stepped in after a few hours and stayed the order. But, seriously, I can completely understand that the judge's frustration might be boiling over, but throwing one of the people who is actually trying to do something about it in jail doesn't help matters. I doubt that makes more people want to come work there. "Come be a public defender in New Orleans, where your caseload is so overwhelming that you get thrown in jail for not being in four places at once!"

I'm Having a Constitutional Crisis About My Low Salary, Too

Pardon my French, but Chief Justice Roberts (pictured at left) really pissed me off with his recent annual report on the federal judiciary. As Slate's Dahlia Lithwick explains here, Roberts spent pretty much the whole report on judicial pay, concluding that the lack of a pay raise in a number of years threatened a constitutional crisis. According to Roberts, a lot of these federal judges could make a lot more than the $165,000-175,000 per year they make as judges if they were law school deans or partners at big civil firms. Well, tough cookies. It's called public service, Mr. Chief Justice. Many of us do it for much, much less than federal judges do. And we don't have the job security of life tenure. Or people calling us "Your Honor" all the time. Suck it up.

This is the United States of America

The New York Times had a long article in the Sunday paper about the legal goings on down at Guantanamo Bay. Short summary: it sucks. To say that the proceedings lack any sense of due process is a huge understatement.

Top 10 Civil Liberties Violations of 2006

In the spirit of all those year-end top 10 lists (I know it's 2007, already--I was busy!), Slate's Dahlia Lithwick, my favorite legal commentator, published her top 10 list of the worst civil liberties violations of the year. Sadly, I don't have much hope that the list will be any shorter at the end of 2007.