$100 Flat Fee for Misdemeanors?

See any problems with an attorney who is willing to take cases for this rate? I found this World Herald article from May 12, 2005:

A court-appointed lawyer in Douglas County Court who spends 20 minutes representing someone with a traffic ticket is now paid the same as a lawyer who spends 20 hours defending a suspected murderer.

Douglas County judges have changed the pay for court-appointed attorneys from $50 an hour to a flat fee of $100 for any traffic or criminal case. The attorneys represent indigent defendants when a public defender has a conflict of interest.

The change, which took effect May 1, is expected to save the county $10,000 a year, said presiding Douglas County Judge Thomas McQuade.

Douglas County Public Defender Tom Riley and some Omaha attorneys are concerned that a poor person charged with a crime could see second-rate representation as a result of the change.

Riley said the pay change causes him concern and raises some questions.

"It puts a lot of lawyers in private practice in the difficult position of deciding whether they're going to take appointments and represent the indigent," he said.

Riley said that a lot of young lawyers cut their teeth on court- appointed work and that the lower pay could discourage them from getting involved.

McQuade said yearly increases in attorneys' fees prompted the change.

Years ago, he said, the county spent between $30,000 and $35,000 to pay the attorneys. Now, he said, it's up to between $85,000 and $90,000.

"It's been kind of a creeping thing," he said. "This is just a way that we thought we could just control our budget a little bit better."

He said the change won't jeopardize poor defendants. He said 90 percent or more are represented by the Public Defender's Office.

McQuade said the judges asked some lawyers before changing the pay whether they would accept court-appointed cases at $100 a case, and many said yes.

"We got a very large list of lawyers who said, 'Absolutely, we'll do that,'" he said.

But Eric Whitner, an Omaha defense attorney who took 10 to 15 appointments per year under the old pay structure, said he'll no longer take on the cases.

Whitner, who charges $150 per hour for misdemeanor cases and $200 an hour for felonies, said the $100 rate is "an insult to me. It's an insult to my staff."

Scaling back the already insufficient pay "sends the wrong message," he said, and raises a concern that indigent defendants won't get access to experienced, knowledgeable lawyers if the Public Defender's Office can't defend them.

"They deserve adequate representation, just like anyone else," said Whitner, a member of the Nebraska Minority and Justice Task Force.

McQuade said there's "no question" that the court-appointed lawyers do more than $100 worth of work representing the defendants from the time of arrest until a case is concluded in County Court or transferred to District Court.

Under the old payment system, the "vast majority" of court- appointed lawyers made agreements with judges to charge only between $50 and $150 per case, even though they worked more than one to three hours, McQuade said.

"Obviously, they were willing to go ahead and sacrifice something just to help out," he said.

The flat fee applies only to cases in county court. In district court, attorneys are paid $65 an hour for out-of-court work and $80 an hour for in-court work. The pay is capped at $12,000 for first- degree murder and $3,500 for any other criminal charge. A judge has flexibility to pay more for an extended or complex case.

Court-appointed attorneys in Lancaster County Court are paid $50 per hour, with no limit on the number of hours, said Becky Bruckner, the court's judicial administrator.

Omaha defense attorney Mike Fabian, who has done a lot of court- appointed work, also questioned the change.

"It just causes me some concern that there is no means by which different types of more serious cases can be reviewed and adjustments made so that all of the assets are there to defend the case," he said.

McQuade said the county's first duty is to make sure indigent clients have adequate, competent representation.

"If we can get it done for less money, the same kind of work, I think it's our duty to make sure we try to do that," he said.

What do you think? Can we truly "get it done for less money" with the "same kind of work?" How many misdemeanors get tried to juries when the lawyer's fee is capped at $100? Not one that I know of in ten years.

What do you think Thomas Jefferson, who called trial by jury "the only anchor yet imagined by man by which a government can be held to the principles of its constitution" would say about such an arrangement?

Seeking TLC Feedback

As I've driven across the city this week, I've written many blog posts in my head, silently promising to write them down when I get home. Somehow, the brilliant idea doesn't sound so great once I find the chance to type and I postpone writing long enough to forget what I meant to say.

But when I sit down tonight, still trying to adjust to Daylight Savings Time, hoping to write something worthwhile, that sheds more light than heat, it occurs to me that, as Gerry Spence once said, there's a good reason why we were given two ears and only one mouth.

So rather than talking, I'd rather listen.

Rather than telling you what I think, I want to hear what you think about the Board Shakeup at TLC, the alumni meeting in Dallas, and whatever else is on your mind. Anonymous comments are allowed, but please keep things civil while still keeping it real.

What's on your mind, that you'd like to see the F Warrior Board discuss in Dallas?

Good News!

I don't know about you, but I can use some. While a lot of news is bad, I came across a story that hasn't gotten much attention but which I found uplifting. As a prelude, one year ago tonight, Obama was elected. When he proposed to sit down with Professor Henry Louis Gates, Jr., and the Police Sergeant who arrested him, James Crowley, people reacted largely according to the way they voted: some admired the gesture and some laughed at it.

But when I read this week that two men met quietly in a Cambridge bar, talking for an hour over a couple beers, out of the spotlight and barely reported in the press, I thought it was a good sign. The two men? Henry Louis Gates, Jr., and Sgt. James Crowley, minus Barack Obama. As the article described it:

Harvard Professor Henry Louis Gates and Cambridge police Sergeant James Crowley were spotted at a pub in Cambridge Wednesday night.

The owner of "River Gods" told WBZ the two sat in a booth together and talked for about an hour.

While many of Obama's campaign promises have been broken and many of Bush's worst policies continued, the fact that what was called the "Beer Summit" led to a second round of talks, and beers, I take that as Reason for Hope.

Email from the High School

Went to a seminar this afternoon about malpractice risks for attorneys, simply for the insurance discount, bored to death and thankful for the internet access. Halfway through, I get an email from my daughter's high school:

We were alerted by the Omaha Police Dept. that a student had left his home earlier today and was probably armed. While no threats of any kind were directed toward the school or any students, we followed our established procedures to ensure the safety and security of all students. Furthermore, we also worked with the Omaha Police Department who did find the student a short time after they had alerted the school of this matter, thus bringing this incident to a close.

Knowing what I do about bureaucracies, I cynically suspected either exaggeration or minimization, but also suddenly realized what was important, why I leave the house in the morning, and that risks can appear where you never suspected them.

Is TLC a Cult?

A commenter leaves a message:

Do you think TLC is a cult?

The question reminds me of a line from the movie The Survivors when Walter Matthau's character confronts Robin Williams' "Donald Quinelle" who's joined a cult of survivalists:

Sonny Paluso: You think Wes is God, don't you.
Donald Quinelle: No, not God, Just an ordinary man. Maybe a little ahead of his time, but just an ordinary man.
Sonny Paluso: Wes is an asshole.
Donald Quinelle: Blasphemy! Oh, you'll smoke a turd in hell for that!

In other words, Gerry isn't a God, he's just an ordinary man and anyone who says differently has blasphemed our Dear Leader and must be either reprogrammed or shunned! Boil up a batch of Kool Aid, somebody's starting to sober up!

Just kidding. My honest answer is that I don't think it is. But I fear it's becoming a cult of personality, more loyal to personalities in power than to the principles that made it such an amazing experience.

I'm on the F Warrior Board. One of our rules, newly created, is that we can't divulge internal discussions. I'm not saying I agree with it or not, but it's a rule, voted in, after a particularly heated argument.

I bring it up to demonstrate why I edited the email I sent to the rest of the FWB tonight. I didn't selectively edit for my own purposes, in other words, but to comply with the rules. What I said might answer the question:

I was looking forward to Dallas but responses like [X's] that accuse the questioner of being "distrustful" make me think our meeting, so helpful last year, will likely degenerate into personal attacks and tests of loyalty (which is defined as not asking any tough questions) rather than an honest dialogue about what's best for the alumni.

It's true that change is hard, but it's also true that what organizations need is a variety of viewpoints and people with a willingness to ask tough questions and debate honestly. It's also true that our mission is independent of the TLC Board and that our Board was designed to support the alumni rather than the TLC Board.

In fact, dig out your Spring '06 Warrior where [] describes the beginnings of the F Warrior Club as "from the moment of its inception, it was designed to be comprised of the Alumni, by the Alumni and for the Alumni.. While supportive of TLC the F Warrior Club was always meant to be autonomous, answering only to the needs of the Alumni."

He goes on to say that the FWB was then created and "was never meant to govern, but only to serve the interests of the club."

Are we living up to that foundation now, assisting the President as he drafts explanations of his decision to "reorganize" the board toward obsequiousness, accusing each other of being "distrustful" when someone respectfully asks questions or points out that what she saw at Grad II differs from the official company line, undoubtedly in the name of fulfilling her role representing her regions' alumni?

And rather than accusing people who ask questions like this of having [issues] or of [spreading innuendo] perhaps we should be asking ourselves what is the best way to carry out our mission statement, the best way to "answer only to the needs of the alumni" as [T] put it several years ago.

Our interpretations of how to serve the alumni will differ, which is why we're all necessary. My fear is that our meeting will quickly become part witchhunt (for whoever forwarded [Y]'s email to [Z]) and part loyalty test where anyone who asks tough questions won't have them answered but will instead be attacked personally, accused of being distrustful for daring to speak out. My other fear is that, much like the TLC Board, we will degenerate into sycophancy toward personalities rather than carrying out TLC principles.

Not exactly what the alumni need right now, at such a trying time, in my opinion. How about instead we strive for transparency to the alumni who may be, understandably, confused about what's going on inside TLC?

Why not encourage all of us to speak openly, without fear from personal attack, much like we're taught to honor the gifts jurors share with us in voir dire?

I'm glad you're optimistic, [] but I'm not so sure, given what I've seen so far. Gerry says "love is always the winning argument" but I'm afraid we've forgotten it and that it will tear us apart in Dallas when we so desperately need to come together...

P.S. [X], Thank you for your courage in speaking out and being real. We know what happens to people who dare to exhibit these traits on the TLC Board, but we should encourage them on ours if we're truly "answering only to the needs of the Alumni."

TLC Board Shakeup

Just heard that new TLC President Jude Basile made some changes to the TLC Board of Directors, the "Big Board" as it's known. Out are Kaitlyn Larimer, Fredi Sison, Carl Bettinger, Lynne Bratcher, and Gerry's wife Imaging Spence.

As I said on our F Warrior conference call when asked my feelings about these changes:

"I think it's bullshit. Those people are my heroes"

And they are. But they're gone. And they, other than Imaging, also were the three highest vote receivers in Norm Pattis' blog survey.

I was surprised, but apparently others, at least those who voted, were not.

Why We Need Healthcare Reform

My daughter asked if her 15-year old best friend could stay the week, as one parent is going out of town and the other doesn't have room in the apartment that she shares with a friend to save money. Last Friday morning, after I agreed to this, my daughter told me:

"Dad, we need to get there early since she's got a broken toe and they don't have health insurance and they can't afford to take her to the doctor so they're just letting it heal on its own which means she needs extra time to walk to class, so can you get us there fifteen minutes early all week?"

Thickening Blue Line?

I ran a 10K this morning in downtown Omaha with thousands of other runners. I came in just over 56 minutes, which isn't fast but about killed me, especially since I haven't run more than 10 times this year.

One reason I was able to run without stopping was the people who came out to cheer us on, to yell out our pace and simply to watch. It was uplifting to be out early on a beautiful Fall morning, running in perfect weather and for a good cause, as the proceeds went to the American Lung Association. At the end of the race, my lungs were expanded yet exhausted.

The only downside to the morning came from a few of the police officers who waited along the route. I knew most of them from court and waved at them as we ran by. I even knew a few of their first names and yelled them out. Most waved back, a few even remembering my name. It was great.

But a few simply stood there behind mirrored shades, neither waving or even acknowledging my presence as we ran by. I understand this when it happens in court, how when you're with your fellow officers you don't want to acknowledge that you occasionally have conversations with a defense attorney. It always strikes me as funny, however, sort of like high school, how one group can't acknowledge that they associate with a different group when their friends are around.

The good news is that for every officer who stands there like the man with no eyes in Cool Hand Luke, there seem to be more who are willing to wave back on a Sunday morning, who seem willing to follow the law rather than becoming it.

I hope the ratio stays that way.

Real Lawyer?

Met with a 19 year old today who is confronted with a choice: plead to a charge that he’ll likely win at trial or wait for two months to take his case before a jury. The story he told me, about joining a gang as a kid when his family wasn’t there, and then finding out that only a few of this new “family” was true to him, was terribly sad. He described “taking a charge” for two felons after being pulled over in a car with a gun under the seat. Since he wasn’t a felon, taking the hit for them gave him some cool points and saved them from going to back to prison.

My wish would be to take the case to trial, but I’m not the one who has to wait it out in a jumpsuit. Still, I try to tell my clients that it’s my job not only to take care of them in the short-term, but also to make sure they’re advised to think about the consequences, in the long term, of another conviction. When I was a Public Defender and a client would ask to come in right away, to plead guilty and thus get an “out date” to visualize, I used to say, “give me a week and I’ll save you a month” or “give me a month and I’ll save you a year” in some circumstances. Put in these terms, it brought home the fact that the certainty they wished for, that drove them crazy in jail, wasn’t something to grab at teh first opportunity. Better to wait until the time was right and claim the type of certainty that not only made you feel better in the short term but also kept you from sitting in jail any longer than necessary.

But who am I to decide? While I tell people whether I think they should go to trial, I always tell them it’s their decision. How easy is it for me to say, “wait in jail for a couple months to go to trial” when I get to walk out of jail and sleep in my own bed that night?

During my first year out of law school, when I was working as a p.d. in misdemeanor court, a client called me with a compliment I’ll never forget. He said, “you’re a real lawyer.” It meant a lot, but it was also a little double edged. What I’d done for him, that made him call me with this compliment, was to assist him in pleading guilty to a charge that he would likely have won at trial. He was simply happy because he’d gotten out of jail before his trial date, which was better that he’d expected. He’d disregarded my advice to go to trial and chosen to admit to a weak charge, being unable to make bond and likely a little nervous about going to trial.

He thought I was a real lawyer not because I fought to take his case to trial, but because I arranged a deal that got him out of jail earlier than he’d expected, but which had also planted yet another charge on his record.

While I was worried about sufficiency of evidence and innocence, he was more concerned with sleeping in his own bed. I couldn’t blame him, but I didn’t feel very “real.”

Removing Gang Signs

I have a client who is in inpatient treatment for meth addiction. She called me the other day, asking about getting the tattoo on her neck removed, as she’s reached the level of the program where she can begin working again. I guess there are only certain places you can find jobs when you have a visible gang tattoo on your neck. She wanted out of those type of jobs, even after just a few months of sobriety. A good sign, I guess. Her tattoo is of the number 13, apparently for the 13th Street Surenos. I’ve never asked her about it, but it’s hard to miss the numbers.

Last Sunday morning, when I woke up early, put the kayak on top of the car and kayaked around an almost deserted lake about a mile from my house in West Omaha, I saw this same symbol spray-painted on a concrete wall as I passed under a bridge, between a couple boats. The letters “Sur” were scrawled beneath it, a symbol of a South Omaha gang about 10 miles from 13th street, on the edge of the suburbs.

The morning kayak ride was a good way to forget about the pain, the violence and the drug addiction I deal with all the time. But the symbol, close to home, was a reminder that the problems on 13th street will eventually show up on our own streets if they’re not properly addressed.


My client tells me she’s heard of free laser tattoo removal of gang tattoos and wants to ask her friend about it. I thought of approaching the prominent Omaha dermatologist, the guy who founded lovelyskin.com, and asking him to donate a free laser tattoo removal, a reward six months of sobriety.

Do you think he’ll laugh? Since he probably lives “out west” where I do, I can show him the gang symbol on the bridge, tell him that if he takes the gang symbol off her neck, I’ll find a way to remove the sign from his neighborhood.

Do you think there’s a chance?

High Stress Job

I was in Douglas County District Court this week when I heard the Thunder Collins verdict was about to be announced. I have great respect for his lawyer, Steve Lefler, and always like the drama of a verdict, so I went in. As I waited in the courtroom, I struck up a conversation with a reporter, which wasn't hard as most of the 15 odd observers were members of the press. When I mentioned how difficult a trial such as this must be on the lawyers and their families, the reporter, whom I recognized from a lot of tv broadcasts, said, "I know how stressful it can be. I used to be a prosecutor in Denver." He went on to say that he gave it up, not only being a prosecutor but the practice of law altogether, and became a reporter.

When I mentioned that I empathized, having not had enough sleep this week and waking up in the wee hours thinking about cases, he said he used to do that too. "Now I sleep like a baby," he said.

I still couldn't imagine doing anything else though. As stressful as it is, I still find it exhilarating enough to make it all worthwhile.

Bloodsport

Had a chance to get away last weekend to Chicago with my family. It was wonderful. On Sunday, I jumped on the subway just before gametime and walked, ticketless, to U.S. Cellular Field, where the New York Yankees were taking on the White Sox. I walked past the ticket scalpers standing along the street and offered the guy right outside the stadium a little less than face value, it being the bottom of the first inning by that time.

The game was great, the stadium amazing, and the chance to see Mariano Rivera pitch and Melky Cabrera hit for the cycle a once a life chance for me. It was the third regular season major league game I'd ever seen and the first one that didn't take place at Kaufmann Stadium in Kansas City.

The only downside of an otherwise spectacular day came when the Yankee fan stood up, holding a sign, shouting "New York Yankees" in the middle of what used to be Comiskey Park. It was all in fun and the White Sox fans around me started shouting things back and joking around with the Yankee fans in our area.

Then the Chicago Police charged down to the section below us and a guy in a White Sox uniform stood up, obviously mad at whatever had just happened to him or because of those $6.75 plastic bottles of Miller Lite that circulated between the aisles a few times per inning.

When the cops, all eight of them, pulled the man up out of his seat, it was obvious he was upset. He seemed to be "making his case" to the cops, gesturing wildly and yelling. Then one cop who was standing one step down from the man, between him and the seat he had just been sitting in, tackled him, taking his head straight into the concrete steps of the aisle. Then, as the guy struggled beneath him, the cop stayed on top of him, knees of his chest as the guy appeared to be struggling either to get up or to breathe.

Then three more cops charged down the aisle, one slapping the guy in a headlock and the others each grabbing a leg, the cop who tackled him standing up as if taking down an unarmed drunk guy who was not threatening you while you're surrounded by six of your friends in body armor with tazers and guns was some type of contest.

What struck me most, however, wasn't the unnecessary violence, but the way the crowd applauded as the four officers drug the guy away, as if this was a part of the entertainment, the game. The guy next to me even remarked "he should have at least taken a punch at the cop out here since you know they're going to beat the *#$% out of him in the back."

We Don't Need No Stinkin' Dogs!

I lost a motion to suppress once because the judge believed the police officer who claimed to have smelled marijuana coming from my client's car as it passed perpendicular to him as he was stopped at a stoplight. Since the officer found a roach in the ashtray, but no other marijuana, the judge believed the officer, and the arrest, which ended up resulting in a DUI stop, was upheld to my disbelief.

Now the press believes officers like this without any question about the outrageousness of this claim. As a local TV station reported today:

"Two Omaha Police Officers can credit their noses for one of the latest marijuana busts. While in their cruiser they smelled the odor of marijuana from the car they were following.

According to the report the officers were following a green 1999 Dodge Dakota pickup north on 52nd Street on Wednesday, July 8th, when the officers noticed the odor of marijuana.

Believing the marijuana smell was coming from the pickup ahead of them they slowed the cruiser, and the odor disappeared. Officers pulled the pickup over at 52nd and Northwest Radial Highway and told the two occupants in the vehicle why they were stopped.

The officer say the passenger admitted to smoking a "roach" recently, and told them it was still in the ashtray.

The passenger was taken out of the pickup and searched. Officer say they found .13 ounces of marijuana in a baggie in her front left pocket.

Nekeesha Lewis, 24 was cited for possession of marijuana and released."

Reasonable search?

Are we "going to be going after him for that?"

Compare these two New York Times articles, both describing prominent Neocon Paul Wolfowicz: First, in 2002, an article described Karl Rove calling Mr. Wolfowicz and asking him to speak at the White House regarding the Bush Administration's stances on the Middle East. Describing as a "soft-spoken" person whose "world views... were forged by family history" after the "rest of his father's family perished in the Holocaust," it quotes him as saying:

''That sense of what happened in Europe in World War II has shaped a lot of my views,'' he said. ''It's a very bad thing when people exterminate other people, and people persecute minorities. It doesn't mean you can prevent every such incident in the world, but it's also a mistake to dismiss that sort of concern as merely humanitarian and not related to real interests.''

Admirable, right? But still, whose views wouldn't be shaped by such a traumatic family history? It reminded me of my 15-year old daughter, who picked up Schindler's List last night at the video store, stopped in halfway through, unable to bear the dramatized horrors as she was unable to fathom the real horror that was represented on the screen.

But today's New York Times quotes Wolfowicz, secondhandedly, taking a different stance toward similar war crimes. James Risen's article, headlined "U.S. Inaction Seen After Taliban P.O.W.’s Died," claims:

After a mass killing of hundreds, perhaps thousands, of Taliban prisoners of war by the forces of an American-backed warlord during the 2001 invasion of Afghanistan, Bush administration officials repeatedly discouraged efforts to investigate the episode, according to government officials and human rights organizations.

The article goes on to describe how "in 2002, Physicians for Human Rights asked Defense Department officials to open an investigation and provide security for its forensics team to conduct a more thorough examination of the gravesite" but were "met with blanket denials from the Pentagon."

The next year, according to a "former defense official, who would speak only on condition of anonymity:

"... prisoner deaths came up in a conversation with Paul D. Wolfowitz, the deputy secretary of defense at the time, in early 2003.

“Somebody mentioned Dostum and the story about the containers and the possibility that this was a war crime,” the official said. “And Wolfowitz said we are not going to be going after him for that.”

Wolfowicz' response? You'll recognize the line, repeatedly repeated by many Bush Administration players:

In an interview, Mr. Wolfowitz said he did not recall the conversation. However, Pentagon documents obtained by Physicians for Human Rights through a Freedom of Information Act request confirm that the issue was debated by Mr. Wolfowitz and other officials.

If we've learned anything from the Bush years, it's that the word of an official "who wishes to remain anonymous" shouldn't be enough to establish the truth about anything. Still, if true (the FOIA docs should shed light on this) how do we reconcile these two statements?

Juxtapose Wolfowicz' statement that "what happened in Europe in World War II has shaped a lot of my views" with his alleged statement that "we are not going to be going after him for that." When you read in the same article that the "that" Wolfowicz was allegedly claiming "we weren't going to be going after him for" referred to "killings" that...:

...occurred in late November 2001, just days after the American-led invasion forced the ouster of the Taliban government in Kabul. Thousands of Taliban fighters surrendered to General Dostum’s forces, which were part of the American-backed Northern Alliance, in the city of Kunduz. They were then transported to a prison run by the general’s forces near the town of Shibarghan.

Survivors and witnesses told The New York Times and Newsweek in 2002 that over a three-day period, Taliban prisoners were stuffed into closed metal shipping containers and given no food or water; many suffocated while being trucked to the prison. Other prisoners were killed when guards shot into the containers. The bodies were said to have been buried in a mass grave in Dasht-i-Leili, a stretch of desert just outside Shibarghan.

A recently declassified 2002 State Department intelligence report states that one source, whose identity is redacted, concluded that about 1,500 Taliban prisoners died. Estimates from other witnesses or human rights groups range from several hundred to several thousand.

How do you decide that "we're not going to be going after him" for stuffing prisoners into closed metal shipping containers when thousands were killed and buried in mass graves when your "views" were shaped by "what happened in Europe in World War II?"

"The Consequences Might Have Been Worse"

NPR banned the word "torture" to describe things, like waterboarding, that were done to detainees by government employees or contractors. Instead, they're described, in language that mirrors governmental euphemisms, "harsh interrogation techiques." Here's how NPR Ombudsman Alicia Shepard described NPR's reasoning:

I recognize that it's frustrating for some listeners to have NPR not use the word torture to describe certain practices that seem barbaric. But the role of a news organization is not to choose sides in this or any debate. People have different definitions of torture and different feelings about what constitutes torture. NPR's job is to give listeners all perspectives, and present the news as detailed as possible and put it in context...To me, it makes more sense to describe the techniques and skip the characterization. For example, reporters could say that the U.S. military poured water down a detainee's mouth and nostrils for 40 seconds.

When Glenn Greenwald called her on this twisted logic, he pointed out that NPR had no such policy against calling other countries' techniques "torture." For example, in a July 3, 2009 story about the plight of a Gambian journalist, an NPR story stated:

Musa Saidykhan had been a reporter in his home country of Gambia for more than a decade when he was arrested and later tortured by government officials.

NPR's Alicia Shepard refuses Greenwald's request for an interview, but later appeared before him on a Seattle NPR station on Tuesday. In explaining NPR's policy against using the word torture to describe U.S. government actions and its willingness to use it to describe Gambia's, Shepard commented:

In that case, these were strictly tactics to torture him, to punish him, versus in the United States, and the way that it's used, these are tactics used to get information. The Gambian journalist was in jail for his beliefs.

In other words, when Jack Bauer does it, its not torture. His beliefs, being pure, make it so. But the techniques the dark-skinned guy performed on Jack's friend that drove Jack into the rage? That's different. That's torture.

And those detainees in Gitmo who are held without charge or trial indefinitely? We can't call what our government does to them torture because that's not the role of a journalist. And those detainees are different than the Gambian who "was in jail for his beliefs."

As Greenwald pointed out, not only is her belief that American officials' motives were pure highly questionable, but the willingness to characterize torture as dependent on the motive of the would-be torturer is deeply troubling. (Somehow I don't think the judge or jury will buy my argument that while my client performed the actions that constituted the crime, his pure thoughts along the way mean that the law doesn't apply to him!)

As sickening as Shepard's logic is, however, it's also familiar. It's troubling to hear her boldly claim that the motive of the actor determines whether the action is noble or detestable, technique or torture, but it's the same argument the government puts forth in carrying out the death penalty, isn't it? In other words, the state's position that a killing by a citizen can, in some cases, be so terrible that the state needs to kill this person is similar to Shepard's belief that the motive and not conduct determines whether an action is heroic or villainous.

I saw a shirt once that asked, "How can it be o.k. to kill someone to show that killing someone is wrong?" I know my answer to it, but also don't think the death penalty is going away anytime soon. As depressing as that is, my bigger fear is that another question, a new one, will be asked.

Imagine a police report that stated, Shepard-like, that "the tazer was not at anytime deployed to torture him, nor to punish him, but simply to get information." It sounds strange now, but it's getting closer to sounding completely normal. Don't believe me? Consider this story regarding a local police chief's use of a tazer on a 14-year old girl:

A 14-year-old Tucumcari girl is recovering at an Albuquerque hospital after being shot in the head with a Taser dart by Tucucmari Police Chief Roger Hatcher...
The girl was hit in the head Thursday by one of two darts fired simultaneously as she was fleeing, Hatcher said...
Hatcher said be believed he had no other option.

“There’s a lot of issues,” Hatcher said. “She committed a delinquent act. She was running from police across traffic without looking.”
Hatcher said he chased her, ordered her to stop and “then did what I had to do.”

After a CAT scan, a hospital resident told her the dart was “in her brain a little bit, but not much,” Akin said.

She was in pediatric intensive care following the surgery, Akin said. “She seems OK, but she she’s in a lot of pain. Her head is hurting her real bad.”

Police were trying help Akin because she and her daughter had been fighting, Akin said.

Akin said while she could understand the use of a Taser on an adult, it shouldn’t be used on a child.
Akin also said her daughter has epilepsy...
Akin said she and her daughter were arguing over a cell phone...

Hatcher said he got out of his vehicle, called to her and she ran in front of his patrol car across Monroe Street without looking for traffic.

Both were in a dead run when the Taser was fired, Hatcher said.

Hatcher said if he’d been able to grab her and put her on the ground, he would have done it instead of firing the Taser. “There was a lawful reason to do that,” said Hatcher. “I didn’t have another choice and had to get her stopped.” Akin and her daughter were new in town, Hatcher said, and he did not know where she would go. Hatcher said if he had not stopped her the consequences might have been worse.

If a police chief can justify tazering a 14-year old epilepsy victim because she fought with her mom and refused his command to stop by claiming she didn't look both ways while running into the street, claiming, Shepard-like, that while applying electric shocks to people in custody is only wrong if used to punish or not when it's used to supposedly keep her safe, the use of the tazer for "getting information" is not far off.

In an example of shifting attitudes toward tazering, consider what the mother of the 14 year old girl said shortly after hearing that the electrical prongs penetrated her daughter's brain:

Akin said while she could understand the use of a Taser on an adult, it shouldn’t be used on a child.

Fortunately one of the officers reviewing these events is interested in investigating whether charges should be filed:

Hatcher said he plans to refer the case to the Juvenile Probation Office Monday for possible charges.

The tines, they are a changing I guess.

"Post Acquittal Detention"

Yesterday, the General Counsel of the Department of Defense, Jeh Johnson, testified before the Senate. As Spencer Ackerman described the scene:

Asked by Sen. Mel Martinez (R-Fla.) the politically difficult but entirely fair question about whether terrorism detainees acquitted in courts could be released in the United States, Johnson said that “as a matter of legal authority,” the administration’s powers to detain someone under the law of war don’t expire for a detainee after he’s acquitted in court. “If you have authority under the law of war to detain someone” under the Supreme Court’s Hamdi ruling, “that is true irrespective of what happens on the prosecution side.”

Martinez looked surprised. “So the prosecution is moot?” he asked.

“No, no, not in my judgment,” Johnson said. But the scenario he outlined strongly suggested it is. If an administration review panel “determines this person is a security threat” and “for some reason is not convicted of a lengthy prison sentence, I think we have the authority to continue to detain someone” under “law of war authority” as granted by the September 2001 Authorization to Use Military Force, Johnson said.

Think about that for a second, and how it might apply to someone like Salim Hamdan. After he was convicted by a military jury, Hamdan's attorneys argued for a sentence of less than five years. The government, however, asked the jury to sentence Hamdan to between 30 years to life. The jury agreed with the defense and sentenced Hamdan to serve 66 months, after he had already served 60. The Pentagon, after asserting that it had the ability to continue to detain Hamdan beyond the end of his sentence, transferred him to Yemen where he served the remainder of his sentence before being released last January.

Then, shortly after Salim Hamdan was released, Barack Obama, elected on a platform of "change," was sworn in as President. But what has changed? Glenn Greenwald accurately describes the Obama Administration's newly-announced "post acquittal detention" policy as "an Orwellian term (and a Kafka-esque concept) that should send shivers down the spine of anyone who cares at all about the most basic liberties." He goes on, accurately in my view, to describe the Obama administration's stance as even worse than Bush's:

In its own twisted way, the Bush approach was actually more honest and transparent: they made no secret of their belief that the President could imprison anyone he wanted without any process at all. That's clearly the Obama view as well, but he's creating an elaborate, multi-layered, and purely discretionary "justice system" that accomplishes exactly the same thing while creating the false appearance that there is due process being accorded.

In short, that's not change we can believe in, that's even worse than more of the same.

Being In the Moment, On the River

Last weekend, during a visit to my mother’s house, I faced a familiar problem: I wanted to make time to do what I wanted to do but could also find about ten other things I should be doing. I was about a half mile from the Platte River, a river I spent a lot of time on as a kid, and had noticed the previous day that the water was running high for this late in the summer, high enough to float a kayak. I’d brought mine along on this trip, hoping to sneak in a seven mile jaunt down the river “if I could find the time.”

If I wrote my own verse to Julie Andrews’ “These are a few of my favorite things,” canoeing or kayaking down a river would find some room upfront. But, sitting there thinking of all the relatives I needed to visit and the work that needed to be done, I suddenly realized that while kayaking on a river was constantly on my mind as something I’d love to do for fun, I hadn’t found the time in years. Sure there were some trips to the lake once in awhile, but, at least for me, there’s nothing better than getting away from all people and all roads for a little while, perhaps coming around a bend and looking a whitetail buck, still in velvet, standing on the river bank.

But, I thought, I don’t have any way to get to the river, a half mile away or no definite way to get back when I get to the bridge seven miles downstream. Then, perhaps remembering the scene from Easy Rider where Peter Fonda throws his watch down in the parking lot, I grabbed my kayak, my cell phone a bottle of water and a paddle and started walking. What I thought was going to be a half mile walk became much easier as I realized I could drop the boat and paddle across a lake rather than following the road to the river bridge. I wasn’t sure how close the river channel came to the far edge of the lake, but I was on the water, off on a long overdue adventure at last.

As I drug the kayak out of the lake, wondering how long I’d have to portage again, I saw the river channel, flowing strong, about fifty feet from the lake. Just a few minutes before I hit the river, I’d been standing in the yard of my mother’s house, thinking the river was too far, the time too short, and the water probably too low. Sure I had to trespass a little bit, but, looking back, no one seemed to notice, or at least be chasing me. So I kicked off the bank the way you might if you were launching a canoe, and almost got wet, realizing that even when you’re having fun and undertaking an adventure, you still have to obey the laws of gravity.

A few minutes later, I came around a bend and saw that small whitetail buck I mentioned earlier, and was amazed at how brown his coat was, being more used to seeing them when it faded a little, in the winter. I later saw many Great Blue Herons, the only ducks and geese left being the decoys caught in logjams. Around one bend I surprised a doe who was in the middle of the river, likely crossing but perhaps just cooling off, who ran off as if I’d caught her naked, taking a bath, which I guess was true.

The storm that looked inevitable passed harmlessly, the wind nicely cooling me off along the way. By one cabin a “Chessie” must have smelled me as he barked before I got close and sounded as if he might come leaping off the bank as he protected his home from that strange green shape that carried a silent guy in a blue hat holding a white paddle, a pair of binoculars around his neck.

As I passed under an old railroad bridge that had been converted into a bike trail and walking path, strangely deserted on the Fourth of July, I playfully grabbed the rope hanging down into the water. Being more used to canoeing than kayaking, I almost learned how easy they are to tip when you foolishly grab a stationary object while facing across the current, but miraculously righted myself, probably more from the four-letter words that involuntary came bursting out of my mouth than from the paddling I did with my arms. Somehow I still got pretty wet and added a half inch of water to the bottom of the boat, thankful though that I still had my gear and was more dry than wet with just a mile or so to go.

When I reached the bridge and pulled my cell phone out of the ziplock bag, I called home and convinced my brother to pick me up. It had only been about two and a half hours since I’d charged off without a clue or a plan, but it worked out. I felt like a new person, however, when I pulled up at home.

I found the time to do what I wanted to do, for the first time in years, and it didn’t cost a thing. I’m sorry I didn’t do it sooner and vowed to do it more often.

I also want to get back to blogging. Sorry I’ve been gone so long. I may kayak first, but I’ll write about it later.

Lame Attempt at Humor in Court

I’m in court today, arguing a motion to reconsider a sentence. The judge accepted the defendant’s plea of guilty to speeding (over 100 in a 55 zone) and his plea of not guilty to willful reckless driving. The problem was that the judge, in addition to imposing a fine, also ordered that the defendant’s driver’s license be revoked for 90 days under the authority of a statute that reads:

Upon conviction of any person in any court within this state of any violation of (1) any law of this state pertaining to the operation of motor vehicles or (2) any city or village ordinance pertaining to the operation of a motor vehicle in such a manner as to endanger life, limb, or property... the judge ... may... order the revocation of the operator's license.”

You see how the offense must “endanger life, limb, or property?” Because of that, a case held that the statute inapplicable to the charge of speeding. so, I’m asking the court to reinstate my client’s driver’s license because, under the statute, its order was unlawful.

I hand the judge the case, hand the prosecutor a copy and, as they read it, I remark that it’s a 1976 decision but that the statutory language is the same. The judge, deep in thought (he’s an intelligent judge), says, jokingly of course and low so no one but the lawyers can hear him, “What were they smoking?”

I didn’t really think it through before I said it but responded, “Well, your honor, it was the 70’s.” Nobody laughed then either, except me later.

The Forever War?

I read today that the Obama Administration is attempting to do away with the phrase "the war on drugs." Let's hope it's not simply another broken promise and believe our eyes and not our ears. Still, it's refreshing to hear that, at least in spirit, the government may stop its war against its own people, many of whom are simply drug users, or addicts, who, like the client I represent who recently lost his case in the Eighth Circuit, finally get sober during long prison terms for conspiracy to distribute. Not the best way to spend taxpayer dollars, but a fitting way to fight a war where the truth is often the first casualty.

Maybe I'm just down on the term "war" as I've been listening to an excellent audiobook about it, Dexter Filkins' excellent The Forever War tells stories about what he saw as a war correspondent during the wars in Iraq and Afghanistan.

I highly recommend the book as brings the war "home," or as close as a book can bring it, without much commentary or editorializing, but simply with stories of what the author saw while on the ground, embedded with the men fighting it who seemed to be mostly poor kids in their teens or early 20's from a place Filkins had never heard of.

I've been riveted by the stories all week, just listening to the audiobook, sometimes wanting to drive around the block again to hear the end of a story. "Driveway moments" as NPR calls them, are frequent. He describes the 22-year old who sat beside him on the transport, who made a certain comment that stuck with the author and then was killed four days later, for example, or the kid who stuck his arm out and insisted on walking in front of Filkins up the stairs and whose head was then split open by a bullet.

Josh Karton says that "the enemy of all art is generality" and Filkins creates great art, or at least good and memorable stories, by avoiding it with simple, concrete stories that show rather than tell the action and avoid judgment or interpretation of it.

I can't recommend this book enough. I once wrote about a sign that appeared in Iraq stating "America isn't at war, it's at the mall." This book tells the stories of the kids, and others, who went to war instead and who are, in many cases, still there. The stories are good and a lot of good comes from simply hearing these stories that have gone untold amidst our trips to the mall.

It's a good read, or listen, especially on Memorial Day weekend.

"It's Our Courtroom"

I’m in court this morning to waive a preliminary hearing and the deputies are telling a woman in the front row, who’s sitting with her child, that she has to leave. The judge hasn’t entered yet; the deputies are simply preparing for this case, in which a 19-year old Elkhorn, NE kid is charged with killing his father after the father had an affair with the son’s girlfriend.

The details of the alleged crime, which have run in the paper for days, are going to be ugly and I hear the deputies talking about the woman not being able to stay in court with her kids. So I say, not to them but to another attorney, “They can’t make her leave, not just for bringing her kids into court.” The deputy standing closest to me turn to me and says, “Yes we can, it’s our courtroom.” I have to do a two-minute prelim waiver, have to then go to the jail to meet with both a new and a new client and then have to rush back to the office to write a brief, so I don’t have the time nor the interest in debating with this guy who thinks the courtroom belongs to him and his friends who carry guns.

But think about the implications of this scenario. The deputies decide, without asking the judge, that kids should have to leave “their courtroom” since the testimony might not be appropriate. They don’t bother to check the law, the court rules or even check with the judge; they just decide she can’t stay.

I didn’t intervene, like I probably should have, and the woman doesn’t seem particulary bothered. I decide that I have “no dog in that fight” and let it go. But the implications, and the raw display of power, bug me. So I check the Court Rule, § 6-201, which says,

as a general principle it is the view of the judiciary of the State of Nebraska that proceedings should be open to the public at all times and only closed, in whole or in part, where evidence presented to the court establishes that by permitting all or part of the proceeding to remain open to the public, a party's right to a fair trial will be substantially and adversely affected and there are no other reasonable alternatives available to protect against such substantial and adverse effect.

I’ll find the judge tomorrow and tell her the story, so she knows that the courtroom she presides over was partially “cleaned out” before she came in, and that the deputies didn’t feel the need to consult with her before they decided who could stay or go. I won’t mention names, or get anyone in trouble, but want to make sure the guys with guns know they don’t get to control the courtroom, or disregard its rules without a consequence.

The Smell Test

I read a police report the other day in which a search warrant was procured after an investigator allegedly “smelled” raw marijuana when his allergies flared up after he entered a house. Another time, in misdemeanor DUI case, the judge denied the motion to suppress I filed after a cop smelled marijuana while sitting at a stop light and my client cruised through the green light with the window rolled down. When he denied the motion, after I argued the impossibility of such “probable cause,” he commented that I must not have been around pot very much. (How was I supposed to answer that question? Maybe he was just mad at me for asking the cop if he drove, Ace Ventura-style, with his head out the window?)

But now the Eighth Circuit has opened the door (window?) to even better smelling techniques on the part of officers by approving a warrantless search of a home after officers (1) received an anonymous tip that meth was being manufactured in the home and (2) smelled an odor consistent with meth manufacturing:

In this case, the officers had probable cause to believe methamphetamine was being manufactured in Clarke’s home. The officers received an anonymous tip that methamphetamine manufacturing was occurring. Upon arrival, Officer Groat smelled an odor which, based on his training and extensive experience, he recognized as consistent with methamphetamine manufacturing . . . Exigent circumstances also existed. Because the officers had probable cause to believe methamphetamine was being produced in Clarke’s home, the officers reasonably concluded there was a potential threat to the safety of the officers, anybody inside the home, and anyone in the surrounding area.

Who needs a drug dog when the officer’s own allergies “alert” in the presence of pot? Who needs a warrant to search a home when you can simply claim to have smelled "chemicals" consistent with meth production?

Who needs the Fourth Amendment?

Quotes Worth Reading: Torture Edition

I just watched a You Tube video in which Pat Buchanon, who was debating with Jonathan Turley and Chris Matthews about whether prosecution of Bush administration officials was warranted, made this astounding statement in support of his position that torture, although against the law, was nonetheless proper:

"There's a higher moral law here, that's what Dr. King was all about."

After that, it's refreshing to read Frank Rich's perspective on this issue in the New York Times this morning:

Five years after the Abu Ghraib revelations, we must acknowledge that our government methodically authorized torture and lied about it. But we also must contemplate the possibility that it did so not just out of a sincere, if criminally misguided, desire to “protect” us but also to promote an unnecessary and catastrophic war. Instead of saving us from “another 9/11,” torture was a tool in the campaign to falsify and exploit 9/11 so that fearful Americans would be bamboozled into a mission that had nothing to do with Al Qaeda. The lying about Iraq remains the original sin from which flows much of the Bush White House’s illegality.
. . .
President Obama can talk all he wants about not looking back, but this grotesque past is bigger than even he is. It won’t vanish into a memory hole any more than Andersonville, World War II internment camps or My Lai. The White House, Congress and politicians of both parties should get out of the way. We don’t need another commission. We don’t need any Capitol Hill witch hunts. What we must have are fair trials that at long last uphold and reclaim our nation’s commitment to the rule of law.

Another seemingly similar quote came from Newsweek's Jonathan Alter, who, when appearing on Countdown last week to discuss whether officials should be prosecuted for sanctioning torture, called out Dick Cheney:

And what's so fascinating is that Dick Cheney stands almost alone. You don't see former president Bush out there pursuing this. You don't see Condi Rice or Domn Rumsfeld or others. It's the former vice president who is becoming a forlorn and I think soon to be further disgraced figure.

As Digby pointed out, however, Jonathan forgot what he was saying back in 2001 when he wrote:

In this autumn of anger, even a liberal can find his thoughts turning to... torture. OK, not cattle prods or rubber hoses, at least not here in the United States, but something to jump-start the stalled investigation of the greatest crime in American history. Right now, four key hijacking suspects aren't talking at all.

Couldn't we at least subject them to psychological torture, like tapes of dying rabbits or high-decibel rap? (The military has done that in Panama and elsewhere.) How about truth serum, administered with a mandatory IV? Or deportation to Saudi Arabia, land of beheadings? (As the frustrated FBI has been threatening.) Some people still argue that we needn't rethink any of our old assumptions about law enforcement, but they're hopelessly "Sept. 10"--living in a country that no longer exists.

So from media hypocrisy to media courage, we go to my second favorite quote of the week, from, of all places, Fox News. Shepard Smith said, during a debate with Judith Miller (yeah, that Judy Miller):

"We are America, we don't torture! And the moment that is not the case, I want off the train! This government is of, by, and for the people -- that means it's mine....
"They better not do it," he said. "If we are going to be Ronald Reagan's Shining City on the Hill, we don't get to torture. We don't do it."

Will he keep his job? If they were looking for a reason to fire him after that statement, he gave them one shortly thereafter when he spoke out during Fox News online show, The Strategy Room. After the debate was framed in terms of whether torture works, Shep had had enough and said:

"We are America!" he shouted, slamming his hand on the table. "I don't give a rat's ass if it helps. We are AMERICA! We do not fucking torture!!"

The worst quote of the week, and the one that criminal defense lawyers should consider quoting from at sentencing, comes from the WaPo's David Broder, who said, when writing of the call for prosecuting torture enablers:

But now Obama is being lobbied by politicians and voters who want something more -- the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps -- or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability -- and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

As the Monty Python character once remarked, "This is supposed to be a happy occasion! Let's not bicker and argue about who killed [tortured?] who."

First Improv Class

I haven't blogged much lately, but plan to get "back on the horse" soon. My wife, who works in banking, needed one more class to finish her Masters, which has meant a busy semester for both of us, especially her. She finishes in about ten days and walks across the stage at Drake University in early May. That was one reason but I also fell behind in the administrative side of the practice of law and have been using my non-work time to catch up on billing.

But I did something this year that I've wanted to do for a long time. I signed up for an Improv class. Don Fiedler brought many of these techniques to NCDC and his stories about using these techniques in trial, and even before the Eighth Circuit, piqued my interest. Then, getting the chance to work with the great Josh Karton at TLC taught me how much actors have to teach lawyers. Finally, this post by Mark Bennett prompted me to buy the book and finally take the plunge.

Last Tuesday, at our first class, I felt a little like Michael Scott at his Improv Class, hoping not to be the "old guy" who nobody wanted to hang out with afterward and whose improv revealed more issues than laughs.

But I loved it. What was amazing was that the best things happened when I didn't have time to think. When I tried to be funny, I wasn't, but when I didn't try, it was not only fun for me but (at least slightly) funny for the class.

I was impressed by the way the instructor listened and wonder if doing improv helps improve listening skills, which Gerry Spence describes as one of the most important skills a trial lawyer can learn.

I'm not quitting my day job and am glad it's only a small class. "Whose Line" will have to wait a few years, I guess. But I can't wait for the next class and hope that I can use it in court, if nothing else but to make work more playful, and hopefully more effective. I'll keep you posted.

`Win-at-all-cost' behavior

From today's Miami Herald:

Accusing federal prosecutors of knowingly and repeatedly violating ethical guidelines in a high-profile narcotics trial, a Miami federal judge Thursday reprimanded multiple assistant U.S. attorneys who took part in the case -- and fined the federal government more than $600,000.

While prosecuting Shaygan, the U.S. attorney's office began a secret, undisclosed side investigation of Shaygan's legal team, citing a suspicion of witness tampering on the part of the defense.

No evidence surfaced that the defense team was manipulating witnesses. On the contrary, defense attorneys rejected bribery invitations floated on tape from government informants...

Prosecutors later called the same informants to the stand as key witnesses in their case against Shaygan, while saying nothing of the recordings. The government falsely introduced those informants -- former patients of the doctor -- as impartial, neutral witnesses.

Jurors, and the judge presiding over the case, found out about the tape recordings by accident, when one of the informants blurted out their existence while testifying.

Wouldn't you have loved to have seen the look on the prosecutor when the snitch blurted out the existence of the tapes and implicated the prosecution? Talk about being "hoisted with your own petard."

On a related note, yesterday Attorney General Eric Holder "told assistant US attorneys for the District of Columbia that they must respond to negative perceptions of federal prosecutors by doing "the right thing."

"Your job as assistant US attorneys is not to convict people. Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision that you make, to do the right thing. Anybody who asks you to do something other than that is to be ignored. " Any policy that is at tension with that is to be questioned and brought to my attention. And I mean that."

A nice idea. However, as I frequently tell my clients, judges are going to believe their eyes and not their ears so the question is whether Holder's words will truly change actions, and stop tape recordings of defense lawyers conversations.

Greatest Generation

My wife lost her aunt yesterday and found about it today. I knew it would hit her hard as Marsha had been there for her during rough times growing up. Her uncle is a former County Sheriff in a small Nebraska county and lost his wife of nearly 50 years yesterday.

I'd known that his wife, Marsha, had married "Uncle Wilbur" after he lost his wife suddenly in the early 1960's. I also knew that the loss had left him with young kids while he was working as a sheriff. But tonight, googling their names for information, I ran across the story of how my wife's uncle lost his first wife: (Scroll down to "SHERIFF GEWECKE: Murders and Threats")

On January 7, 1960 a local intoxicated man shot into the home of a neighbor of Sheriff Gewecke, thinking it was the Sheriff's home. "The next evening I was out following some leads on the shooting and the man called my wife and informed her that he had killed me, and was coming to our house to kill her and the three kids, "Gewecke said." He returned home to find his wife lying dead of a heart attack in the hallway and the phone torn off the wall.

It was learned later that the man had been trying to shoot the Sheriff's house the night before but got the wrong one. So when his wife answered the phone the next night, alone with three kids, she had to know that these words weren't an empty threat. When she heard that he'd killed her husband, and believed it, it was more than her heart could take.

As we read a little more, we also stumbled across this article about this same uncle and his first wife:

After the war was over, Gewecke was at an airbase in Arizona watching over airplanes that had returned from war. He spotted an airplane with the name Enola Gay and posed for a picture next to it to send home to his first wife, Linola Faye, because of the name similarities. He didn’t find out until after he was discharged that the plane he stood next to was the one that dropped the first atomic bomb

.

The same article, from last November, describes my wife's Uncle Wilbur's excitement at being selected to fly to Washington DC to view the World War II memorial as part of the Heartland Honor Flight of Omaha:

Wilbur R. Gewecke, 86, and John E. Dier, 87, served in the same war, worked together while county attorney and county sheriff, consider themselves friends, and live just a few blocks away from each other. Now, the two will share one more experience as they fly to Washington, D.C., to view the National World War II Memorial. The World War II veterans will fly to Washington Wednesday as part of the Heartland Honor Flight of Omaha. “I just can’t imagine that I was selected,” Gewecke said. “I think it’s a wonderful thing.”

The story just gets better and reminds me how important it is to simply talk to people if nothing else to hear the amazing stories they might have never been asked about. In fact, each time I hear an NPR story from "Story Corps" I vow to ask "Uncle Wilbur" about the time he survived an airplane crash. I'd heard it "second hand" but never asked him. How amazing that his likely response would be, "Which one?" As the article continues:

"As an in-flight mechanic in charge of making sure that Norden bombsight equipment was working before it went overseas, Gewecke crisscrossed the country working on equipment, transporting aircraft, and training others. He was in five airplane crashes."

When asked about his experience in the Army, my wife's uncle Wilbur avoided the usual cliches and revealed a quick wit, especially for an 86-year old:

“I had a million dollars of experience while I was in the Army, and when they discharged me, I didn’t want a penny more,” Gewecke said.

"All Four of Them"

I've been reading the newly-released OLC memos and spending a lot of time at Emptywheel's site lately, commenting rather than blogging. I highly recommend Emptywheel's posts on the Al-Haramain case as well as the many comments, including some amazing descriptions in the comments by some of the lawyers involved in that case.

So, after a few hours spent reading John Yoo's twisted legal logic and realizing the truth of Scott Horton's description that "in the period from late 2001-January 19, 2009, this country was a dictatorship," it was nice to find this article in the news today:

"First daughters Malia and Sasha Obama got a big surprise after school Wednesday: a brand-new swing set. They squealed with delight upon seeing it, a spokeswoman for the first lady said. President Barack Obama and his wife, Michelle, went to work while the girls were at school, having the set installed on the south grounds of the White House within sight of the Oval Office, where their father spends plenty of time."

But here's my favorite quote: ""They ran right for it. They were really, really excited. All four of them," McCormick Lelyveld said.

"We're All Gonna Die"

That's the name of this exhibit by Simon Høgsberg. From a link at the Daily Dish, the work was "shot from a bridge overlooking a railroad platform in Berlin in the summer of 2007. 178 people have been captured in this impressive 100 meter wide image."

What's amazing is the way you can scroll across the images of 178 people and the way it captures their moods. I also loved the contrast between the (mostly) "happy" images that were captured and the title. It really has to be seen to be believed.

Invoked the "What Geneva Conventions?" Defense Lately?

Last night I finally got around to watching "Torturing Democracy," a documentary that appeared recently, albeit slowly and controversially on PBS stations after the election.

It was shocking and I highly recommend it, especially in light of yesterday's news that the Court of Appeals for the Ninth Circuit has rejected the Bush and now Obama Administration's position that the case could not go forward because of the threat of "State Secrets" being released. Glenn Greenwald and Marcy Wheeler both describe the background of that case and Monday should be an interesting day as Judge Vaughn Walker, assuming that an appeal is not filed by the Obama administration with the Supreme Court, will likely rule that the wiretap of communications between Al-Haramain (a now dissolved Islamic fund raising organization) and its Oregon lawyers was in clear violation of the law. As Marcy notes:

Barring some last minute stay from SCOTUS, Walker can come back Monday morning, look at a wiretap log of US persons not approved by FISA, and rule that that wiretap was illegal. I will, quite literally, be holding my breath on Monday, but Walker may well beat any games from Obama.

I encourage everyone to watch the documentary. I plan on watching it again since it was late when I watched it and, with Sam Adams and a bowl of popcorn beside me, I dozed off a few times as it was a long week.

But there was one line from the narrator that stood out. In a documentary that features interviews with many criminal defense lawyers who are standing up against the outrageous policies practiced at Gitmo and elsewhere, wouldn't you think a little respect for criminal defense attorneys would be in order?

While I'm never truly surprised when people criticize criminal defense attorneys, I didn't expect it in the middle of a PBS doc about how the Bush administration worked the "dark side" and ultimately ended up not only ignoring but blatantly violating the Geneva Conventions, international law and federal statutes that criminalize torture.

Here's the exchange that woke me up:

NARRATOR: In Washington, Secretary of State Colin Powell – the most experienced military man among the President’s top advisers – stepped up his defense of Geneva’s half century of war-fighting rules.

RICHARD ARMITAGE: We were trying to wrestle with how to fight both an enemy and
an idea, and I think came up with a wrongheaded solution - opting out of Geneva. We,
after all, want our soldiers, should they be unfortunate enough to be captured, to be
treated in a proper way. And yet, we weren't willing to afford that to others. That seems a little counter-intuitive to me. It did at the time, and it does now.

NARRATOR: Before the Secretary of State could make his case to the President
personally, he was undermined by the Vice President. In a blunt memo written by
Cheney’s counsel, David Addington – but delivered by White House Counsel Alberto
Gonzales – Bush was advised that the war on terror: “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners”.

NARRATOR: And in an argument that could have been written by a criminal defense
lawyer, the President was told that opting out of the Geneva Conventions:
“substantially reduces the threat of domestic criminal prosecution under the War
Crimes Act.”

RICHARD ARMITAGE: If you were twisting yourselves into knots because you're
fearful that you may be avoiding some war crimes, then you're probably tripping too
closely to the edge.

Let's break down that sequence:
1. Two former military men, Powell and Armitage, fought against violating Geneva.
2. Cheney and Addington, via Gonzo, undercut these former military men, telling W that Geneva is not only "quaint" but inapplicable.
3. Bush is further told that claiming Geneva does not apply "reduces the threat" that anyone could be prosecuted for war crimes for treatment of detainees.
4. This is the sort of argument that "criminal defense lawyers make."

Perhaps the point the writers are trying to make is that this laughable justification is the role criminal defense lawyers often find themselves in, trying to convince a fact finder that black is white, but it seemed an odd place to imply that "criminal defense lawyers" are similar to Addington, Cheney and former judge and Attorney General Alberto Gonzales.

The documentary goes on to describe how important John Yoo's memos were to these justifications as they allowed the other players to operate with a stamp of approval granted by a prosecutor, as Yoo was a Deputy Attorney General at the time.

It's possible that the authors were implying that the parties' criminal defense lawyers might later be in a terrible position in trying to justify these actions and might be forced to resort to arguing that the President's decision to "opt out" of Geneva meant that war crimes prosecutions were inappropriate against those who carried out the President's orders.

But, considering that they were describing Cheney, Addington, Yoo and Gonzales' laughable position that the President could simply ignore the Geneva Conventions and that doing so could also protect Americans from possible prosecutions at the Hague, it seemed a ridiculous time to imply that "criminal defense lawyers" are the typical proponents of these positions.

Had any luck in court lately advocating that your clients can't be prosecuted because the Unitary Executive retains that Constitutional Authority to render international treaties void?

What, that isn't what we do?

Equality Before the Doctor?

NPR reported yesterday that Justice Ginsburg's chances of surviving pancreatic cancer are much better than most of those who suffer from it because doctors ignored an initial test that showed a benign tumor and pushed on to discover cancer in her pancreas. I thought good for them. I also wondered if they would they have done such a test if under pressure from an HMO, if they were only receiving medicare payments, if they were performing the same test on you or me?

Hearing about pancreatic cancer again made me remember that last year, the criminal defense bar lost a true champion, Don Fiedler, to it. He dedicated his life to criminal defense, teaching each year at the National Criminal Defense College and sponsoring scholarships for young lawyers to attend the college in Macon, GA each summer. I wouldn't have gotten there if not for his help and I doubt that anyone from Nebraska would have done so either. (I don't know how many NCDC grads now live here, but I think it's close to 20!)

I know it's useless to ask such questions, but hearing the report about Justice Ginsburg, made me wonder if such rigorous tests would have made a difference for Don. I also wondered if any of Don's clients, or mine, would have had access to basic tests for cancer? Or how many have access to health insurance at all?

Atticus Finch said that "We know all men are not created equal in the sense some people would have us believe--some people are smarter than others.. But there is one way in this country in which all men are created equal--there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court."

But those who sit on the Court, under the banner of equality under the law, enjoy access to elite-level health care while millions lack access to the most basic kind. Sadly, an old phrase rings true, at least among industrialized countries: Only in America.

It's terribly sad that, for Justice Ginsburg, despite the "luck" of an early diagnosis, has only increased her chance of surviving it to around 50%. Still, it's even more sad to consider how many people's chances of surviving it are increased because they have no health insurance and no chance to speak to a doctor until their symptoms bring them into the emergency room, and "treatment" becomes nothing but a pain killer.

You say you want a revolution?

Here's one way to get there. Billmon at Daily Kos, as pointed out by Glenn Greenwald, asks a very interesting question about these two headlines from the Washington Post on Thursday:

1. Lawmakers' Goal to Cap Executive Pay Meets Resistance

"Congressional efforts to impose stringent restrictions on executive compensation [at government-subsidized banks] appeared to be evaporating yesterday as House and Senate negotiators worked to fine-tune the compromise stimulus bill."

2. Employers Fighting Unemployment Benefits

"It's hard enough to lose a job. But for a growing proportion of U.S. workers, the troubles really set in when they apply for unemployment benefits.

More than a quarter of people applying for such claims have their rights to the benefit challenged as employers increasingly act to block payouts to former workers."

After noticing the irony of these two headlines, Billmon understandably asks:

Someone please explain to me why we haven't had a revolution in this country yet, because I don't fully understand it -- given that our political and business elites both seem to have a death wish bigger than Marie Antoinette's.

Feds to Sheriff Joe: "Law Enforcement ... not a reality show"

I read a lot of good criminal law blawgs and rarely miss anything by Emptywheel, who writes at Firedoglake. Today, Marcy Wheeler's occasional co-blogger, Bmaz, writes about Maricopa County, Arizona (Phoenix) Sheriff Joe Arpaio:

You have probably heard of the shamelessly self professed "Toughest Sheriff in America", Maricopa County Arizona Sheriff Joe Arpaio. For years he has been making a PR spectacle of himself, all the while running an unconstitutionally deplorable jail system, letting inmates die under tortuous conditions, and violating the civil rights and liberties of everybody in sight, especially minorities. Today, the House Judiciary Committee made public a critical and public step to rein in the Most Abusive Sheriff In America.

Bmaz goes on to quote from a letter sent from the House Judiciary Committee to former Arizona Gov. Janet Napolitano and Attorney General Eric Holder:

Sheriff Arpaio has repeatedly demonstrated disregard for the rights of Hispanics in the Phoenix metropolitan area. Under the guise of immigration enforcement, his staff has conducted raids in residential neighborhoods in a manner condemned by the community as racial profiling. On February 4, 2009, Arpaio invited the media to view the transfer of immigrant detainees to a segregated area of his "tent city" jail, subjecting the detainees to public display and "ritual humiliation." Persistent actions such as these have resulted in numerous lawsuits; while Arpaio spends time and energy on publicity and his reality television show, "Smile… You're Under Arrest!", Maricopa County has paid millions of dollars in settlements involving dead or injured inmates.
...
It is time for the federal government to step in and uphold the rule of law in this country, even in Maricopa County."

"Law enforcement is not a game or a reality show, it is a public trust," said Scott. "There is no excuse for callous indifference to the rights of the residents of Arizona, whether in their neighborhoods or as pretrial detainees."

This isn't a knock against law enforcement in general, just against those who enter the field and exploit it to expand their own images, egos and build possible Senate runs while using the Constitution to blaze this trail. As Bmaz describes Arpaio:

Joe Arpaio is a two bit carnival barker and huckster, not a dedicated law enforcement official. The opportunistic man came into office running against a fellow Republican and incumbent Maricopa County Sheriff, Tom Agnos, by bad mouthing Agnos and arguing that the entire Maricopa County Sheriff's Department needed to be cleaned up. In fact, Arpaio's winning campaign was predicated upon his willingness to mock the very department he was running to lead and promise to expose the dirty laundry of Agnos and the Sheriff's Department for its involvement in the infamous Buddhist Temple Murder case (link is a fascinating three part story), a seminal case in textbooks on coerced confessions (from the fact that four separate coerced false confessions were obtained to a single crime). Arpaio promised to restore honor to the department, and also swore he would serve only one term in office. Five terms and seventeen years later, Arpaio has failed miserably on both promises.

As Bmaz later points out, Arpaio has reasons to keep pointing to his supposed positive effect in criminal court: to distract from the $42 million plus civil verdicts that have been levied against the Sheriff's Department since he took office.

How does that figure and the number of lawsuits generated against Arpaio's Department compare to other municipalities? Bmaz quotes from this article which concludes:

"New York City, Los Angeles, Chicago, and Houston, for example, collectively housed more than 61,000 inmates per day last year. From 2004 through November of this year, these same county jails had a combined 43 prison-conditions lawsuits filed against them in federal courts.

In the very same three-year time frame, despite housing a mere 9,200 prisoners per day, Sheriff Arpaio was the target of a staggering 2,150 lawsuits in U.S. District Court and hundreds more in Maricopa County courts.

With a fraction of the inmate population, Arpaio has had 50 times as many lawsuits as the New York, Los Angeles, Chicago, and Houston jail systems combined."

From Cufflinks to Handcuffs

I’ve written before about picking my wife up after work in the summer, but today, with snow falling hard, I picked her up early to avoid a messy commute as a big snowstorm was just beginning to push through town. While parked outside of the large bank building where she works, directly behind an empty police car, I saw a sight that I’m used to seeing every day but which seemed out of place before a bank.

An executive-looking man, probably mid 40’s to 50, with the trademark blue banker suit and red tie, was escorted out of the building, handcuffed, coatless, surrounded by three uniformed officers, as the snow flakes melted against their faces and gathered on their clothes. They paused for a second in front of me, debating about whether to put the guy in the squadcar on the street or the sidewalk side. The guy looked up at me pathetically, wearily, appearing on the verge of tears.

I have no idea who he was and why he has being led out of the bank this way. As much as I’ve occasionally griped that I wished the law applied more equally toward those who work in towers compared to those who wear bluer collars, it wasn’t an easy sight to behold as the guy looked more worn down than my clients typically did as they dragged him out of his job and into the police car.

I’ve been reading Laurence Gonzales’ Everyday Survival off and on and, though it’s not as good as Deep Survival, it’s worth reading. In fact, the last time I wrote about waiting outside the bank watching window washers “play” above me, it brought to mind Gonzales’ descriptions of risk-takers learning to laugh in the middle of risk as a way to concentrate and, thus, survive. (thanks to Mark Bennett for telling me about this great book)

Watching three police officers escort this man into their car, his hands cuffed behind his back, made me think of the way Gonzales described one of the secondary purposes of handcuffing as shaming the arrestee by taking away the appendage that represents our humanity, separates us from animals, the thing we extend to show friendship in offering a handshake.

The description seemed a bit of a stretch when I read it, and I know a lot of police officers would disagree with it, but seeing this banker’s hands locked behind his back as one officer pushed his head down, ducking him into the car revealed that shame and helplessness were obvious and that officer safety wasn’t an issue with an aging banker with three younger cops. In short, the picture was worth a thousand words and brought home the shame that comes when you’re pulled out of your tower with your hands behind your back and driven away with the lights flashing.

I wondered if he’d just been laid off and had “lost it” when he heard the news or if he was charged with embezzlement, or something more along the lines of the crimes I usually defended against.

I wondered if this sight will become more common before we reach the end of this financial crisis, a white-collared executive having to duck into a black and white “police interceptor.”

So bad it's good

From this morning's email, an example of a real "LMAO" Story:

"Every year, English teachers from across the USA can submit their collections of actual analogies and metaphors found in high school essays in order to have them published and sent out for the amusement of other teachers across the country. Recent winners :

1. Her face was a perfect oval, like a circle that had its two sides gently compressed by a Thigh Master.


2. His thoughts tumbled around inside his head, making and breaking alliances like underpants in a dryer without Cling Free.


3. He spoke with the kind of wisdom that can only come from experience, like a guy who goes blind because he looked at a solar eclipse without one of those boxes with a pinhole in it and now goes around the country speaking at high schools about the dangers of looking at a solar eclipse without one of those boxes with a pinhole in it.


4. She grew on him like she was a colony of E. Coli, and he was
room-temperature Canadian beef.


5. She had a deep, throaty, genuine laugh, like the sound a dog makes just before it throws up.


6. He was deeply in love. When she spoke, he thought he heard bells, as if she were a garbage truck backing up.


7. He was as tall as a six-foot, three-inch tree.


8. The revelation that his marriage of 30 years had disintegrated because of his wife's infidelity came as a rude shock, like a surcharge at a formerly surcharge-free ATM machine.


9. The little boat gently drifted across the pond exactly the way a bowling ball wouldn't.


10. From the attic came an unearthly howl. The whole scene had an eerie, surreal quality, like when you're on vacation in another city and Jeopardy comes on at 7:00 p.m. instead of 7:30.


11. Her hair glistened in the rain like a nose hair after a sneeze.


12. Long separated by cruel fate, the star-crossed lovers raced across the grassy field toward each other like two freight trains, one having left Cleveland at 6:36 p.m. traveling west at 55 mph, the other from Topeka at 4:19 p.m. traveling east at a speed of 35 mph.


13. They lived in a typical suburban neighborhood with picket fences that resembled Nancy Kerrigan's teeth.


14. John and Mary had never met. They were like two hummingbirds who had also never met.


15. He fell for her like his heart was a mob informant, and she was the East River .


16. Even in his last years, Granddad had a mind like a steel trap, only one that had been left out so long, it had rusted shut.


17. The plan was simple, like my brother-in-law Phil. But unlike Phil, this plan just might work.


18. The young fighter had a hungry look, the kind you get from not eating for a while.


19. He was as lame as a duck. Not the metaphorical lame duck, either, but a real duck that was actually lame, maybe from stepping on a land mine or something.


20. Her vocabulary was as bad as, like, whatever."

The Packing Staple

When I was in college I worked as a waiter, then later “moved up” to being a bartender which was a lot less demanding but meant staying up a lot later and missing out on a lot of mornings. Sometimes, as a criminal defense lawyer, I remember those days and feel like I use the skills I learned being a bartender more than those I learned in law school.

A couple weeks ago, as I argued before the Nebraska Court of Appeals, I remembered something that happened while I was waiting on a couple lawyers at lunch, probably twenty years ago. Why did being at the Court of Appeals make me remember the story? We’ll get to that later.

So it’s twenty years ago and I walk up to a table where a couple lawyer-looking guys sit. I tell them the soup of the day, the special and then recognize one. I ask if he’s Wes Mues, he says yes and I tell him I’m John’s son. He says, “Yeah, I remember you, how’s your dad?” We’re in a town of about 20,000 and my dad is a lawyer here too so, even though he might not recognize me, he knows my dad and likely remembers me as the kid, now mostly grown up, who used to cut through the alley by his house every day in the summer on my way to my best friends’ house.

I bring them their ice teas, take their lunch orders, and drop off Mr. Mues’ cup of minestrone, the soup de jour. I leave them alone for a minute and, when I walk back by, they wave, trying to get my attention. I walk up to the table, see that they’re laughing slightly and the other lawyer seems to be encouraging Wes to tell me something. He finally asks, jokingly, if the soup is supposed to come with staples. They’re not being arrogant or messing with their waiter, they’re just jokingly letting me know that the food isn’t like it was supposed to be. I’m confused, wondering what he means by staples and see Mr. Mues reach down to the plate that carries his soup bowl and hold up a brass-colored packing staple dripping with minestrone.

It hits me how serious this could have been and I’m suddenly impressed with the way they laughed instead of complaining, even yelling. I think of how they could have choked, or hurt their teeth or even filed a lawsuit. I apologize profusely, take the tainted soup away and find my boss, the manager. When I tell her the story, I remember the rumors about all the coke she does and start to suspect they’re true as she tells me, seeming not to even care, to “give them a free cup of soup.”

I decide, right then, that she’s incredibly stupid and to do what I know the owner would want me to do: give them a free lunch, knowing that free soup, maybe not even free lunch, won’t stop them from telling all their friends about the packing staples in the soup at the “Peppermill.” The owner has run this place well, so well that he can afford to move to California to open a new restaurant, coming back every month or so to make sure things are running smooth. It hits me that I could be fired for giving away food against the manager’s direction but I decide to take my chances with the owner if I get caught.

I bring them their steak sandwiches, first scanning for stray staples in the sides and they seem happy when I tell them lunch is on the house, telling them how sorry we are and how it’ll never happen again. I tear up the ticket, destroying the evidence that I defied the manager and hope that they don’t talk and that she isn’t paying attention, that they're not distracted by the staple and that she is, by the drugs.

A few months later I’ll realize that the staple was just the “tip of the iceberg” at this place and will take a job as a bartender for the summer, a few months shy of the legal drinking age. I’ll do that job for three years, learning to drink good booze and how to count out the bank after doing a series of Jagermeiser shots. I’ll also learn how much people change when they drink and how much money they’ll drop afterwards. Chuck Cabela will even end up asking me how much I’ll charge him for jumping out of the balcony of the poolside tropical bar I work at to land in the pool down below. I'll say “seventy-five bucks,” he’ll pay it and I’ll pocket the money, along the way subjecting the company to millions in liability to let a drunk rich kid risk his life to impress the dozens of friends he’s surrounded by each time he breaks out daddy’s credit card to go on a drinking spree.

But when you’re 21 and you can make seventy five bucks to watch an early version of “Jackass” live, you do it. At least when you're me. Later, when I decide to go to law school I read that the guy who found the staple, Wes Mues, has not only been appointed to the bench but has even made it to the Nebraska Court of Appeals. I wonder whether he’ll remember the packing staple and think of telling him how I wasn’t supposed to even give him that lunch. I think of asking him, when I end up in front of him someday, whether he remembers the Peppermill long since closed down from, you guessed it, mismanagement.

But I don’t ever get the chance to talk to him again as one day, on his way out of my hometown to a session of the Nebraska Court of Appeals, he will pull out in front of another vehicle, probably thinking about a case, and be struck in mid-turn at the height of his legal career, tragically killed almost instantly.

I read one of his opinions the other day and remember fondly how he treated me when I was his waiter, even when he found a large packing staple in his soup, never forgetting to have a sense of humor or being tempted to blame a person who was likely only the messenger and not the cause.

I remember the other lawyer, still alive, who used to snap his fingers at me when I waited on him, not even self-aware enough to see how patronizing this was or how it reflected on his profession. I vow to try to be more like Wes Mues was to me that day, quicker to laugh, slower to anger, thankful for every free lunch, no matter why it arrived. Thinking back on it makes me hopeful as the polite, driven, level-headed lawyer moved up while the finger-snapping assclown stayed put. I know, there are a lot of examples that refute this general point, but in this case the system seems to have worked.

So what’s the lesson here? I guess it’s be nice to your waiters (no matter what the experts say) and your customers too. You never know where, when or how you’ll end up facing one of them again.