blind insight

Musta been the briefcase!

Just got back from doing some lawyerly ass-kicking. Armed with my new briefcase, courtesy of the lovely Ms. Fowler, and some really favorable eleventh-hour twists and wrinkles, I managed to get almost everything I asked for and probably everything the judge could (or would) give me at this juncture. Plus some judicial outbursts about the government's incompetence and outrageous treatment of my client -- pure icing.

In this line of work, we learn quickly to take our victories where we find them. I'm counting this one as a win.

An innocent man.

A few weeks ago, Steve mentioned that he was watching American Justice or some similar true-crime-story TV show. He said the show was on innocent people who were convicted of murder and sentenced to die, and told me about one of the cases that had particularly captured his interest and upset him. It is worth mentioning that one of the many things I love about Steve is that he totally gets why I do what I do for a living, and his brilliant engineer's brain is capable of understanding at a high level of detail and complexity the various injustices perpetrated in the name of law enforcement. And he was deeply disturbed at the thought that an innocent man could be convicted, condemned, and executed.

As soon as Steve started describing to me the case depicted on television, I recognized it as Roger Coleman's. Both because it led to an important (and awful) Supreme Court decision and because a few years after the events in question, when I was a summer associate, I had the privilege of working on a pro bono case with the lawyer who fought tirelessly to prove Coleman's innocence. But I did not realize that Coleman's story was still making news. After talking with Steve, I did a little googling and found May God Have Mercy, an amazing book chronicling Coleman's case, written by a journalist and former criminal defense attorney. I read it over the weekend, and I've spent the last couple of days trying to crystalize my thoughts and reactions here.

The book does a masterful job both of demonstrating just how easy it was for the State of Virginia to convict and condemn Coleman for his sister-in-law's murder. It also presents the substantial -- to my reading, almost unassailable -- evidence of Coleman's innocence. I found myself shaking, nearly sobbing, in anger as I read about the local authorities' manipulation of witnesses and evidence, about the trial lawyers' inexperience and ineptitude, and about the courts' adamant refusal, upon being presented years later with evidence of Coleman's innocence, even to allow a hearing for that evidence to be developed and evaluated.

From a habeas lawyer's standpoint, Coleman's case is important because the Supreme Court used it to clarify the extent to which serious constitutional claims are subordinate to the states' right to apply their own procedural rules. Justice O'Connor began her opinion by proclaiming, "This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing the claims of state prisoners in federal habeas corpus." Because Coleman's state habeas appeal was filed one day late, the Virginia Supreme Court refused to consider its merits, and the U.S. Supreme Court held that this state decision rendered Coleman's claims "procedurally barred" from consideration in federal court. This decision, and subsequent decisions building on the rule it announced, play a primary role in the enormous bumps on my head and the matching dents in the wall of my office.

But from a human standpoint, Coleman's case is important because it demonstrates the fallibility of the criminal justice system and the finality of the death penalty. Even moments before Coleman was electrocuted, Virginia's governor appeared to be waffling on whether to grant clemency, or at least to allow a delay during which to consider the evidence of Coleman's innocence -- evidence that was growing and becoming stronger on a daily basis as the execution date approached. Yet the governor, like the judges and prosecutors who preceded him in holding Coleman's life in their hands, preferred to allow a possibly (I would say, almost-certainly) innocent man to die than to reopen a jury's conviction or admit that mistakes of such magnitude could, indeed, be made.

And from a personal standpoint, Coleman's story touched me deeply. Roger Coleman was an enormously sympathetic character, a boy from the Appalachian coal-mining region of southwestern Virginia, a humble, religious, and exceedingly kind man who spent his time in prison educating himself, reading, writing, and developing highly successful programs to help young people stay out of trouble. The members of his eventual legal team, too, are compelling characters, particularly the young lawyer who nearly killed herself trying to save him (and with whom I worked, briefly, a few years later). Most of all, I found myself drawn into the story, making up my own arguments as I read and feeling myself struggling with the combination of serious, substantiated constitutional claims and enormous, seemingly insurmountable procedural barriers that Coleman's lawyers confronted. Because I confront the same terrible combination every day.

There are moments in the book in which Coleman expresses his gratitude for his lawyers' and investigators' efforts to save him. Certainly, he went to his death knowing that someone, at least, believed in his innocence and was fighting to prove it every step of the way. I like to think that my clients feel similarly, that even if I can't succeed in overturning their convictions and obtaining relief for the constitutional violations inflicted upon them, they draw some comfort or satisfaction from knowing that I'm on their side, that I believe in their cases, and that I'm doing what I can to defy an incredibly crappy set of odds.

Reading May God Have Mercy, I also realized that the past 14 months represent the longest stretch of time I've gone since leaving law school without working on a death penalty case. There's not much I can do to pick up a new one right now, but reading about Coleman's case stirred the outrage, passion, motivation, sense of honor, and savior complex that death cases always generate in me -- regardless of whether innocence itself is at issue. In any event, my caseload is demanding and time-consuming enough, so I'm trying to channel all of that energy and zeal into my existing cases. This week's brief, for example, involves an indisputable and grave constitutional violation and a teenager sentenced to life without parole. And ridiculous procedural barriers to relief. Perhaps it is about federalism, but surely it is also about the Constitution, about justice and fairness, and most important, about an individual, his rights, and his life.

If this is how we sell democracy, it's no wonder they're not buying.

I am disgusted, saddened, mortified, and embarrassed by the treatment of Iraqi prisoners at Abu Ghraib. On Tuesday, Senator Clinton had to cut short the Q&A portion of her speech to the ADL conference in order to attend an emergency closed-door committee hearing on the matter. She was clearly shaken and appalled by the emerging news. In stark contrast, Donald Rumsfeld appeared on the Today show yesterday and seemed arrogant, dismissive, and almost cavalier about the matter. He seemed simultaneously to be distancing himself from the abuses (though he admits he knew about them as early as January 13) and attempting to minimize the gravity of the situation.

It is a rare day when I agree with anything President Bush does, but his statement today criticizing Rumsfeld for hiding the information from him was necessary and appropriate. But it is insufficient. Tom Friedman's piece in today's New York Times is pretty close to exactly what I want to say about this subject. I have no doubt that the American troops in Iraq are angry, frustrated, and horrified at what is happening to their friends and compatriots at the hands of Iraqi rebels. The Fallujah massacres are disgusting and inexcusable and brutal. But we are the United States, and we must be better than them.

We must hold the moral high ground at every possible opportunity. We must show the Arab world and our European detractors that we will not, under any circumstances, descend to the level of our enemies. We must show the Iraqi people what it means to be a land of freedom and democracy, and just how different such a land is from Iraq under Saddam Hussein's reign of terror. If the debacle in Iraq is ever to lead to a society that is moving towards democracy, a system that will serve as a model for democratization across the Middle East, then we must lead by example and prove by our own deeds that it is not simply idle, idealistic talk when we speak of civil rights, human rights, and the rule of law.

As Friedman says, the President must fire Rumsfeld. Now, right now. And whatever policy or order or military culture has led to the abuses at Abu Ghraib must end. Now.

Why?

I have been cursed (blessed?) with a vivid and active dream life. I have all sorts of bizarre and colorful dreams, most of which vanish from memory immediately upon my awakening. But the ones I have most often are of the parallel-universe variety, in which real people and real events (usually stressors) in my waking world manifest themselves in not-quite-real ways (I took -- or failed, or slept through, or turned up naked at -- the bar exam in my dreams dozens of times during the summer of 1996).

Last week, I was having recurrent dreams (nightmares, really) involving the facts underlying one of my cases. The crime in question was particularly brutal, and has disturbed me more than I typically allow. But now I am reading about what was done to my client during his brief and horrifying childhood, and the nightmares have changed. My dreams last night were vague and incoherent, but left me exhausted and shaken in the morning.

I accept as a necessary part of my work that my clients may have done or experienced terrible things. I try hard to separate those things from my work, and to focus my energies on the constitutional issues at hand. Some days, though, I find myself utterly paralyzed by the horror of it all. I can hardly breathe as my heart and lungs are compressed by the viselike grip of pain and abuse and poverty and hopelessness and addiction, cycling over and over and over again through generation after generation.

And again, I ask myself the unanswerable question, and wonder how it is that human beings can perpetrate such evils upon one another. And then wonder whether I am helping or hurting -- or simply sticking palliative band-aids on a hemorrhage of injustice.

Twelve skeptical men and women.

For the last few days, I've been reading the state-court record in one of my cases. This is one of my favorite parts of my practice, particularly when the case involves a jury trial. I discovered the pleasure of reading trials when I was clerking, and this became one of many reasons behind my realization that I am better suited to appellate practice than trial lawyering.

The trial transcript is sort of like the script to a play. Occasionally, one of the players improvises and things get really interesting, but for the most part, everyone says what they're supposed to say, and the story unfolds before me. I can almost see and hear the proceedings, particularly when the judge or one of the lawyers is prone to linguistic flourish or idle chitchat on the record. Often, the "actors" will comment on current events or the weather or local happenings, adding additional color and context to the proceedings.

But my favorite part -- thought it is often the most tedious and the least relevant to my case -- is jury selection. This portion of the trial is mostly ad-libbed, and the responses given by prospective jurors to voir dire questioning delight and shock and disturb me. I love learning about the lives and perspectives of these randomly selected members of the community. I become engrossed in reading about their jobs and children and ex-spouses and how their home was burglarized in 1989 and the time they got pulled over and harassed by the cops because their skin was the wrong color. In cases from rural Colorado and Oklahoma and Texas, I've been surprised (naively) to learn how very many people keep guns in their homes and go hunting for fun and relaxation. And I'm always a little saddened to realize that many, many Americans have little faith in the criminal justice system, think that everyone lies on the witness stand, and believe that people who are acquitted "get off" on "technicalities."

I've never served on a jury, nor have I tried a case to one. But each time I read voir dire and jury selection, I am amazed that the lawyers have seated certain jurors and surprised that they have challenged certain others. But then again, if the case is on my desk, then the jury must have returned an unfavorable verdict, and so whatever science or art or blind faith the defense attorney employed in making his selections has fallen short of the mark. My favorite jury-selection-method story comes from a case I covered as a law clerk. The trial took place in Guam, where it seems everyone is related by blood or marriage to everyone else, and virtually every juror was fewer than six degrees of separation from the defendant, a lawyer, the judge, or a witness. The judge, attempting to screen out those whose relationship to a trial participant was too close to permit unbiased consideration of the facts, developed a litmus test I've not seen before or since. After discussing the prospective juror's relationship to the person in question, and asking whether the juror could review the case objectively, the judge asked this dispositive question: "Do you barbecue together?"

In the trial I'm reading now, the defendant raised an insanity defense. During individual questioning, almost half the prospective panel expressed some version of the sentiment that pleading not guilty by reason of insanity is a "cop out." The prevailing view among these prospective jurors seemed to be that anyone who commits a terrible crime must be "crazy," but must also have known what he was doing. From where I sit, having seen many cases in which the defendant's mental health problems rendered him, as the law requires, incapable of distinguishing right from wrong, this view is dangerously short-sighted. And it caused me to wonder what The System (as so very many of the jurors seemed to think of it) can do to revise this opinion and ensure that individuals who will be gravely at risk and a danger to themselves and others in prison receive the medical care and supervision that might -- just maybe -- enable them to rejoin society.

More broadly, I wonder what lawyers and judges and police and politicians can or should do to help the average American understand the importance of jury service and recognize that the criminal justice system is not as it seems on Law & Order (to which I admittedly am addicted) or Perry Mason. As one of the lawyers commented in the transcript I'm reading, in response to a prospective juror's complaint about the length and ennui of the jury-selection process, in real life we don't get to investigate a crime, find the suspect, have a trial, and get a verdict all within the span of a one-hour show.

No, thank you!

Public defending is not the most client-driven of law practices. Appellate defending is even less client-driven, because the record is what it is and the client has little say in what gets raised on appeal. Habeas is an odd duck, however, because the clients have no constitutional right to counsel, and by the time they get to me they've been trying to raise their claims pro se for months, years, or even (as in one of my pending cases) over a decade. So while my typical habeas client is really, really happy to have had counsel appointed for him at last, he is also pretty attached to his own vision of his case.

Often, this leads to frustration for both of us, as I try to explain why we need to drop virtually all of the claims in the pro se petition, or why I'm not optimistic about a particular set of issues despite the obvious constitutional error from which they arise. And I suspect that sometimes a habeas client wishes he was still acting as his own counsel, since fighting his solo battles has provided an outlet for his time and energy and a buffer zone against despair.

I try to respect my clients' pro se efforts, and to acknowledge the competence they've displayed in presenting their claims sufficiently to convince a judge that the case warrants appointment of counsel. I let them know that I value their suggestions and appreciate receiving the fruits of their research labors. I try to keep them informed as I investigate their cases and research their claims, and I try to ensure that they feel a part of my strategy decisions. Because for most of my clients, it's been a long time since they've been treated with respect or compassion by pretty much anyone.

Just as my practice isn't driven so much by what my client wants, it also is not dependent on whether or not my client thinks I'm doing a good job. In contrast to my years in private practice, where I had to kiss clients' butts and let them review and edit (a/k/a totally screw up) drafts of my briefs and file motions I thought were a waste of my time and their money, in this job I am pretty much the master of my little domain. Sometimes my clients thank me, sometimes they don't. Sometimes they send me holiday cards or beautiful artwork they've made in prison, and sometimes they do nothing but bitch and moan about the injustices inflicted upon them (even when I win their cases). So if I needed positive reinforcement from my clients to stay motivated, this job would not suit me terribly well.

Still, there are those rare moments that let me know I'm doing okay, and maybe -- just maybe -- I'm getting the hang of this habeas thing. Yesterday, it was these words* from a client that brought a smile to my face and made it all worthwhile: "The way you compose and execute your arguments, temper the authority, and nudge them gently to general understandability -- you are sheer poetry at work."

And that, my friends, is all it takes to make my day.
_______
*slightly paraphrased to protect confidentiality.

Pancreatitisgate?

While I scramble to determine what use to make of the decision linked below, I had a disturbing thought regarding Persecutor in Chief Ashcroft's reported medical woes.

While I hope Mr. Ashcroft is recuperating nicely and will soon be back at his desk shredding the Bill of Rights, I have this nagging feeling that he is being Chernenkoed out of the Justice Department by the Bush campaign team. Given recent reports that many mainstream Republicans are feeling alienated by Ashcroft's utter disregard for bedrock conservative principles such as privacy and limited government intrusion into business affairs, it would seem strategically sound (if rather totalitarian) to "incapacitate" him.

Confrontationally.

Sometimes, the Supreme Court gets it right.

John Kerry opposes the death penalty!! (And the Ninth Circuit stays an imminent execution.)

This month's issue of The Champion, the magazine of the National Association of Criminal Defense Lawyers, includes a piece about the presidential candidates' positions on criminal justice issues. Each of the Democratic contenders claims to support the death penalty, at least for "the most heinous crimes." EXCEPT for my boy John Kerry, who instead says:

"I oppose the death penalty other than in cases of real international and domestic terrorism. I support a moratorium on the death penalty because I believe that there are serious systemic flaws in the death penalty system, which have resulted in the conviction of people who are innocent. In fact, one hundred and eleven innocent people have already been released from death row because of wrongful convictions."

Bravo, Senator Kerry. Bravo.

In unrelated death penalty news, the U.S. Court of Appeals for the Ninth Circuit yesterday spared California inmate Kevin Cooper from execution, which was scheduled for 12:01 a.m. this morning. The U.S. Supreme Court upheld the stay, and Cooper's case now will be reheard by an en banc panel of the Ninth Circuit. Cooper's lawyers claim to have new evidence of their client's innocence. For the briefs and related documents in the Cooper case, go here. For recent news coverage, try this article in the Los Angeles Times or, if you have Real Player, this Morning Edition segment from NPR.

Justice may be blind, but she ain't swift.

The wheels of justice are turning veeeeeeeery slowly these days, at least in the habeas corpus department. One of my cases has been languishing in the judge's chambers for nearly a year. After my repeated efforts to get the state court record, the judge finally entered an order last month instructing the state court to send over its file to the U.S. District Court. Usually, the state courts respond promptly to such orders. This time, though, weeks went by without any state documents arriving in the federal court clerk's office.

Finally, on Friday, I spoke to the state court. After initially claiming to have never received the federal magistrate judge's order, the clerk finally told me that she'd sent two envelopes of documents to the federal court the week before. I inquired as to how much material she'd sent to the court, and was told it was only a "couple inches" worth of paper. I expressed some surprise, as this case included a fairly lengthy trial, and asked whether this included the transcripts. "Transcripts?" the clerk replied. "The order doesn't say anything about transcripts."

The order does, however, refer instruct the state court to send all records in the case to the federal court. Yet somehow, the state clerk interpreted "all" to mean "some stuff we have but not everything." After a bit of cajoling, she agreed to look for the transcripts, and this morning called to tell me she had put them in the mail today.

This, however, did not end the story. I called over to the federal court clerk's office this morning, in search of the files that supposedly were mailed on January 26. As we'd been told on Friday, they don't have anything in this case. I then called up to the magistrate judge's chambers, and after being bounced around to various people, finally learned that the records had been sent directly to the judge (contrary to the order, which expressly directed the state court to send them to the Clerk of the United States District Court), and were sitting in his chambers. The judge's staff promised to send the files down to the clerk's office, though I still don't understand why they didn't do this two weeks ago when they originally received the record. But finally, some time this week, I will have access to the state court record in this case and can begin preparing a brief in support of my client's habeas petition.

This case illustrates one of the most frustrating aspects of habeas practice: though these cases raise serious questions about the constitutionality of the petitioner's conviction and continued incarceration, the courts perpetually push them to the bottom of their dockets and seem perfectly content to adjudicate them at a glacially-slow pace. In this case, my client is a 25-year-old kid serving a life sentence. Every year that his case drags on further erodes his youth. And even if his petition ultimately fails, the attenuation of his case seems to be hindering his efforts to achieve closure and accept responsibility for his actions.

In 1996, when Congress changed the habeas laws to restrict inmates' ability to bring federal petitions, the purported intention of the law was to speed up the process, particularly in death penalty cases. I haven't seen any empirical studies demonstrating that this "hurry up and kill 'em quicker" law actually has shortened the life span of habeas cases that manage to satisfy the stricter exhaustion and timeliness rules. What I do see, though, is that the combination of a stricter statute of limitations and tight restrictions on successive petitions prevents many state inmates with potentially meritorious claims from ever presenting those claims to a federal court. I'm still trying to understand how any of us benefit from a system that allows serious constitutional violations to go unremedied.