In the small hours of the night, I still root for Daniel Webb. So even though he has now injured several more people in an act of defiant rage, I wish there were a way I could encourage him. But I no longer speak to him. Our paths parted when it became apparent that my liberty might be in jeopardy as a result of things I learned while representing him.
I recall years ago pleading the Fifth Amendment in open court to avoid self-incrimination in Dan's case. It involved one of the most difficult decisions I was ever to make as a lawyer.
Dan is on death row. He's been there forever, it seems. He was convicted of the abduction, rape and murder of a bank vice president in Hartford, Connecticut in 1989. She was picked seemingly at random and then senselessly shot to death as she crawled, wounded across a municipal golf course pleading for help.
I wince as I write these words. And I make myself face them. The acts of this man, a former client, and once a friend, are savage. I do not mean to avoid that.
But I represented him for several years. I was asked to research and write appellate briefs for him by my former boss. I spent more than a year reading tens of thousands of pages of transcripts and researching all the issues I could imagine. I then argued his case for hours in the State's Supreme Court. In the end, we won but one issue: His case was remanded to the trial court for a hearing on whether lethal injection was cruel and unusual punishment under Connecticut's Constitution.
As those proceedings were pending, I came into possession of detailed escape plans involving Dan that would almost certainly have involved the death of prison guards. Ironically, those plans fell into my possession during a trial in which I had accused several guards of beating a prisoner. It was a case we won, making national news, and my only appearance on a television show I had never heard of at the time: The O'Reilly Factor.
By day, I was adverse to prison guards, attacking them and calling them criminals. But when the Sun set I sought opinions from ethics experts. What was I to do with the escape plans?
The opinions were diverse. One extreme counseled that I remove the plans out-of-state, so as to be beyond the easy reach of the state's subpoena power. This required that I say nothing; let events take their course. At the other extreme, I was told to go immediately to the police, to prevent harm to third parties.
I followed the advice of neither. But I did arrange to meet with the Commissioner of Corrections and his lawyer one Sunday afternoon. I turned over the plans, and refused to comment further. I then moved to withdraw from Dan's case without telling him why. The State opposed my motion to withdraw as a stunt to delay Dan's execution. I was called to the stand to explain. I plead the Fifth.
I remain these many years later ambivalent about my decision, and feel that I betrayed the man who had come to trust me.
So this week when I read that he had attacked several guards in the super maximum security prison in which he housed, some part of me wished him success. The state seeks to kill him. For year upon endless year he sits, while the courts dither over post-conviction claims. Justice delayed is justice denied; holding a man in a box so that you can someday kill him is torture. I am glad that Dan has not lost the pride to strike back.
Even Thomas Hobbes, the seventeenth century political philosopher who invested the state with great authority in the name of security in his work Leviathan, understood that a citizen lost the obligation to submit to the state when the state sought to kill him. When the state breaks its contract with an individual, all bets are off. Dan has returned to the state of nature, where, from the confines of his cell, life is nasty and brutish. He need not lay supine while the state twiddles its thumbs over how, when and why to put him to death.
I could not assist him years ago in a plan that would have cost the lives of innocent men merely doing their jobs. The corrections officers are mere agents of the thing we call the state. By attempting to make me complicit in a struggle that would have taken me to the other side of the law, my client made me choose either law or lawlessness. I chose the law, and it broke my heart.
Some part of my heart was restored upon reading that Dan is still defiant. For all his crimes, he is as any man -- so much more than the sum of his worst moments. He is still fighting for dignity. The state has not killed him yet. He is within his rights to resist the state's efforts to kill him.
Daniel Webb is no longer a client. I do not speak to him any longer. Nor will I speak to him again. But I have not forgotten him, and I will not let his act of resistance go unnoticed. He is hated. And he is alone. But I know the man is more than that. We laughed once together, and I saw the spark of something divine even the eyes of a killer.
News Story:
HARTFORD, Conn. - Connecticut's highest security prison was locked down Monday after a death row inmate allegedly attacked a guard.
The inmate punched a Correction Department captain in the head just before 10:30 a.m. Monday inside the Northern Correctional Institution, said Brian Garnett, a department spokesman.
Garnett refused to identify the inmate, but state Rep. Karen Jarmoc of Enfield, who served as chair of a task force on safety issues in the prisons, said she was notified that it was Daniel Webb.
The 47-year-old is awaiting execution for the 1989 murder of bank executive Diane Gellenbeck in Hartford.
"This is what the correctional staff calls a Pearl Harbor attack," Jarmoc said. "That means the inmate, unprompted, attacked the captain, just pounding him in the head."
Garnett said four other staff members were injured while subduing Webb.
All five staff members were taken to outside medical facilities for evaluation. None of the injuries appeared to be serious, officials said.
"The injuries included injuries to the shoulders, back, hands and those sorts of things," Garnett said. "State police have been notified, and we will seek outside charges."
Jarmoc said a legislative subcommittee has been working to come up with measures to keep guards safer and provide more consequences for inmates who attack prison staff.
"There is not a whole lot holding them back from doing this type of thing," she said. "In the case of Daniel Webb, the guy's on death row, you can't add on to a death sentence. But, do you make his life more miserable within that facility?"
Wednesday, March 31, 2010
Tuesday, March 30, 2010
Hutaree: Emerging Defense Theme
News of the foiled Hutaree terror plot is chilling. The group planed to kill a policeman. Then, when lawmen turned out by the hundreds, if not thousands, to pay their respects to a fallen comrade, improvised explosive devices would tear through mourners. This, according to press reports, was the master plan. The Hutaree militia hoped this would spawn widespread resistance to the government.
The plan backfired, and now there is widespread condemnation of the militia.
Defense of the plotters will be difficult now that the Government has denounced the members of the group to the world. We learned yesterday that the arrests of the plotters were timed to occur before anyone got hurt. The risk of harm was elevated because the group was planning reconnaisance missions that might have resulted in the death of innocent bystanders. The Government, it turns out, acted just in the nick of time.
And how, you might wonder, did the Government know all this? Undoubtedly, there was an informant in the Hutaree group, either an undercover law enforcement officer who had infiltrated the group, or a disgruntled group member who thought the group was going too far. Frankly, I opt for the infiltrator theory. Hutaree members seem pretty fervent; their apocaplyptic ideas accustom them to violence.
And so, the defense of the Hutaree Nine begins.
Unless one or more of the defendants becomes a cooperating witness, the Government will need to identify the informant and have him or her testify. And should the infiltrator testify, expect a defense of entrapment. Once that happens, the Hutaree Nine trial becomes almost as combustible as the explosion of roadside IED's at a funeral.
The Hutaree Nine are already being blamed for violence directed at the offices of those Congressmen who voted for the new health care plan. Mainstream journalists have already decried the militia members, and others like them, as right-wing crazies. The plotting will lend succor to those favoring gun control. Even the Southern Poverty Law Center, a group for which I have great respect and admiration, has broadly labeled all groups espousing the view that the Constitution is something worth fighting for, literally, as members of hate groups.
But the defense can exploit these themes as incendiary.
Are militias terrorists? Or are they survivalists? Is there a difference? And were they prepared to turn their weapons on law enforcement before an informant egged them on?
I can hear the scoffing from here. "Egged them on? These people were a fuse waiting to be lit!"
Entrapment involves government encouragement of criminal acts that the defendants were not otherwise disposed to commit. How to draw that line?
There are plenty of people who are enraged at the federal government. There always have been in this country. We enacted a Bill of Rights to address our fear of federal power. We fought a civil war to vindicate the claims of the federal government to maintain unity in the face of state attempts to leave the union. Populists railed against emerging federal power in the form of railroads and Eastern banks in the latter half of the nineteenth century. Only the depression and the New Deal silenced critics, for a time. During the past three decades virulent hatred of the federal government has reemerged as a potent theme in American political culture.
One needn't be a cult member to be suspicious of federal power. And one needn't be a crazy to believe in the people's right to bear arms. Finally, one need not look far to see that the apocalyptic tendencies breed fear and paranoia.
There are thousands of Americans who believe the end is near. Many of them stockpile food and sit home reading signs of the times. It's all right there in their Bibles. The end is near, they say. And some of them arm themselves to prepare for the worst. Visions of the end of times are a staple of science fiction literature and films. And Cormac McCarthy's The Road, now in film, portrays a father's tender love of his son in a world destroyed. Like it or not, many Americans, especially those who've been on the short end of the economy's recent performance, are on edge.
It would not be hard to infiltrate a group such as this and to goad them along the path to violence. Cross-examination of the infiltrator in this case could be explosive. I find myself tossing and turning at night and thinking of John Adam's defense of the colonists at the Boston Massacre.
I wonder where the Hutaree Nine will be tried. The defendants were presented, or at least most of them were, in a Detroit federal courthouse on Monday. Michigan has been the home to a lot of militia activity. Expect a pitched battle for the hearts and souls of jurors in this case. The Government will want a Detroit jury; the defendants will want a rural jury. The Government will assert that we must fear the militia for the violence it threatens for all we who depend on the Government; the militia will defend that the infiltrator took over and pushed the group over the line from lawful dissent to prohibited violence.
The truth, I suspect, is not anywhere as clear as the ringing denunciations of the Hutaree Nine suggest. I envy the lawyers defending these folks the challenge.
The plan backfired, and now there is widespread condemnation of the militia.
Defense of the plotters will be difficult now that the Government has denounced the members of the group to the world. We learned yesterday that the arrests of the plotters were timed to occur before anyone got hurt. The risk of harm was elevated because the group was planning reconnaisance missions that might have resulted in the death of innocent bystanders. The Government, it turns out, acted just in the nick of time.
And how, you might wonder, did the Government know all this? Undoubtedly, there was an informant in the Hutaree group, either an undercover law enforcement officer who had infiltrated the group, or a disgruntled group member who thought the group was going too far. Frankly, I opt for the infiltrator theory. Hutaree members seem pretty fervent; their apocaplyptic ideas accustom them to violence.
And so, the defense of the Hutaree Nine begins.
Unless one or more of the defendants becomes a cooperating witness, the Government will need to identify the informant and have him or her testify. And should the infiltrator testify, expect a defense of entrapment. Once that happens, the Hutaree Nine trial becomes almost as combustible as the explosion of roadside IED's at a funeral.
The Hutaree Nine are already being blamed for violence directed at the offices of those Congressmen who voted for the new health care plan. Mainstream journalists have already decried the militia members, and others like them, as right-wing crazies. The plotting will lend succor to those favoring gun control. Even the Southern Poverty Law Center, a group for which I have great respect and admiration, has broadly labeled all groups espousing the view that the Constitution is something worth fighting for, literally, as members of hate groups.
But the defense can exploit these themes as incendiary.
Are militias terrorists? Or are they survivalists? Is there a difference? And were they prepared to turn their weapons on law enforcement before an informant egged them on?
I can hear the scoffing from here. "Egged them on? These people were a fuse waiting to be lit!"
Entrapment involves government encouragement of criminal acts that the defendants were not otherwise disposed to commit. How to draw that line?
There are plenty of people who are enraged at the federal government. There always have been in this country. We enacted a Bill of Rights to address our fear of federal power. We fought a civil war to vindicate the claims of the federal government to maintain unity in the face of state attempts to leave the union. Populists railed against emerging federal power in the form of railroads and Eastern banks in the latter half of the nineteenth century. Only the depression and the New Deal silenced critics, for a time. During the past three decades virulent hatred of the federal government has reemerged as a potent theme in American political culture.
One needn't be a cult member to be suspicious of federal power. And one needn't be a crazy to believe in the people's right to bear arms. Finally, one need not look far to see that the apocalyptic tendencies breed fear and paranoia.
There are thousands of Americans who believe the end is near. Many of them stockpile food and sit home reading signs of the times. It's all right there in their Bibles. The end is near, they say. And some of them arm themselves to prepare for the worst. Visions of the end of times are a staple of science fiction literature and films. And Cormac McCarthy's The Road, now in film, portrays a father's tender love of his son in a world destroyed. Like it or not, many Americans, especially those who've been on the short end of the economy's recent performance, are on edge.
It would not be hard to infiltrate a group such as this and to goad them along the path to violence. Cross-examination of the infiltrator in this case could be explosive. I find myself tossing and turning at night and thinking of John Adam's defense of the colonists at the Boston Massacre.
I wonder where the Hutaree Nine will be tried. The defendants were presented, or at least most of them were, in a Detroit federal courthouse on Monday. Michigan has been the home to a lot of militia activity. Expect a pitched battle for the hearts and souls of jurors in this case. The Government will want a Detroit jury; the defendants will want a rural jury. The Government will assert that we must fear the militia for the violence it threatens for all we who depend on the Government; the militia will defend that the infiltrator took over and pushed the group over the line from lawful dissent to prohibited violence.
The truth, I suspect, is not anywhere as clear as the ringing denunciations of the Hutaree Nine suggest. I envy the lawyers defending these folks the challenge.
Monday, March 29, 2010
Is Pope Benedict XVI Right?
What if Pope Benedict XVI is right and doesn't have the courage to admit it publicly? The thought occurred to me the other day. By day, I counseled clients on the front line of the United States' war on sex. By night, I was tongue-clucking over a church too hard-headed and hard-hearted to do the right thing.
And then it occurred to me: The church may be right.
It is by now obvious that there are abusive priests in the church. And there are abusive fathers in our homes. There are abusive aunts, uncles, teachers, coaches. Why the world is filled with sexual abusers. It's enough to throw us into a panic, and so we do panic and fret.
Lawmakers belt out one harsh and over-broad law after another. Romeo's lovemaking nets him the scorn of a serial killer. We make those who are a risk of violent offense register and seek treatment with those who were merely curious in the wrong way and at the wrong time in their lives and in our nation's history. We want to lock people up and throw away the key. We call these offenders sick, deviant, beyong redemption, and so we punish them.
We are the sick and twisted ones. Our society is steeped in cheap and easy sensuality. Yet step out of line for a moment and you are labeled a deviant. Then comes scorn. What sane and humane society seeks to punish the ill? And why can't we as a society take broader responsibility for trapping a generation or more of young Americans in the vice of lust, one of the deadly sins?
The church is criticized for not doing enough with errant priests. Yet increasingly I read that the men, and they are almost all men, are isolated and sent for treatment and care away from press of daily life. That's not enough for the hypocritical Puritans in our midst: They want the priests in prison, and they want money damages for those abused. It is a sick and twisted cycle.
Perhaps, I say, the Pope is right.
Lust is a sin. Pedophilia is an illness. Prison is not confession; it expiates no sin, and rights nothing. Imprisoning the sick is what a sick society does. And justice does not require the ill to pay fines to those they harm.
Anger grows over a church perceived to be refusing to be held accountable. But I wonder whether that rage is misplaced, really. Did we really think we could make a profit stoking desire and that the demons of lust, once set free, would obey the rules. When do we take responsibility for what we have wrought?
I've seen good men destroyed by baseless allegations of sexual misconduct. I've seen purported victims, still children, coddled, and made into veritable rock stars by the court. Prosecutors strut and preen about accountability. Yet once the prison door slams, nothing has changed. The angry victim can now enjoy the cheap and easy drug of revenge, but this pill, once swallowed, poisons the soul.
I'm starting to admire the Pope. He doesn't owe the world an explanation for the sin in his church, any more than we owe him an explanation for the excess we court in the name of profit and free expression. When one of the pope's own errs, the church takes him in and offers to treat the wounded, even as it offers counsel to victims. How much better the pope and the church than we. When a citizen fails, we brand him for life and call him a monster. We seek to ruin him. And we call it justice.
There are, Augustine wrote long ago, two cities: the city of man and the city of God. I am a pagan, and do not know God. But I know that I respect the pope far more than those critics that think call for the church to shed compassion in the name of revenge.
And then it occurred to me: The church may be right.
It is by now obvious that there are abusive priests in the church. And there are abusive fathers in our homes. There are abusive aunts, uncles, teachers, coaches. Why the world is filled with sexual abusers. It's enough to throw us into a panic, and so we do panic and fret.
Lawmakers belt out one harsh and over-broad law after another. Romeo's lovemaking nets him the scorn of a serial killer. We make those who are a risk of violent offense register and seek treatment with those who were merely curious in the wrong way and at the wrong time in their lives and in our nation's history. We want to lock people up and throw away the key. We call these offenders sick, deviant, beyong redemption, and so we punish them.
We are the sick and twisted ones. Our society is steeped in cheap and easy sensuality. Yet step out of line for a moment and you are labeled a deviant. Then comes scorn. What sane and humane society seeks to punish the ill? And why can't we as a society take broader responsibility for trapping a generation or more of young Americans in the vice of lust, one of the deadly sins?
The church is criticized for not doing enough with errant priests. Yet increasingly I read that the men, and they are almost all men, are isolated and sent for treatment and care away from press of daily life. That's not enough for the hypocritical Puritans in our midst: They want the priests in prison, and they want money damages for those abused. It is a sick and twisted cycle.
Perhaps, I say, the Pope is right.
Lust is a sin. Pedophilia is an illness. Prison is not confession; it expiates no sin, and rights nothing. Imprisoning the sick is what a sick society does. And justice does not require the ill to pay fines to those they harm.
Anger grows over a church perceived to be refusing to be held accountable. But I wonder whether that rage is misplaced, really. Did we really think we could make a profit stoking desire and that the demons of lust, once set free, would obey the rules. When do we take responsibility for what we have wrought?
I've seen good men destroyed by baseless allegations of sexual misconduct. I've seen purported victims, still children, coddled, and made into veritable rock stars by the court. Prosecutors strut and preen about accountability. Yet once the prison door slams, nothing has changed. The angry victim can now enjoy the cheap and easy drug of revenge, but this pill, once swallowed, poisons the soul.
I'm starting to admire the Pope. He doesn't owe the world an explanation for the sin in his church, any more than we owe him an explanation for the excess we court in the name of profit and free expression. When one of the pope's own errs, the church takes him in and offers to treat the wounded, even as it offers counsel to victims. How much better the pope and the church than we. When a citizen fails, we brand him for life and call him a monster. We seek to ruin him. And we call it justice.
There are, Augustine wrote long ago, two cities: the city of man and the city of God. I am a pagan, and do not know God. But I know that I respect the pope far more than those critics that think call for the church to shed compassion in the name of revenge.
Watching Charles Blow
Did anyone else read Charles Blow's piece in The New York Times yesterday with a sense that the man was picking the wrong fight, at the wrong time, in the wrong way and for the wrong reasons? I had the sense that the piece was a species of racial triumphalism. It was politely written, and in code, mind you. But it was there, nonetheless.
The piece was called "Whose Country Is It?" The premise was that the nation has changed. Those critical of health care and hoping to "take our country back" are really just a bunch of disgruntled white hillbillies who don't write for the Times. America's changed; why this may be the first year in which the majority of children born in this nation are nonwhite. Yoo hoo. "Welcome," he writes, "to America; The Remix."
Just what is Blow blowing hard about?
First, a whiff of political philosophy: "[T]he country romanticized about by the far right hasn't existed for some time, and its ability to deny that fact grows more dim every day." Uh, yeah? So we don't drive horses and buggies. There are no slaves. Electronic communications have transformed the world in ways inconceivable to the founders. These are truisms.
But liberty gone obsolete? My sense is that freedom is harder to purchase than ever before. We are tread upon daily in ways might never have mentioned. Does that mean that we ought simply to say that 1787 was then, this is now, and to Hell with the Constitution?
America has changed. So be it. We are more racially diverse. There are greater opportunities for women. The role of government has changed. I can accept and welcome all this without enthusiastically embracing a Government that now seeks to impose upon me the legal duty to purchase health care or risk fines. I still believe in limited government. That doesn't make me a racist or a misogynist.
This past weekend I finally sat down and read The Turner Diaries by Andrew Macdonald. I first learned of this book defending people accused of weapons violations by the federal government. On several occasions, clients of mine have had the book in their home when the feds searched looking for prohibited guns and weapons. Possession of the work seems to drive the feds wild.
I suppose that is because the protagonist in the book, Earl Turner, is dedicated to the violent overthrow of the government of the United States. His opposition is rooted in hatred of integration and equality. He is a racist, pure and simple. The work is a classic among members of the Christian Identity movement.
I had started The Turner Diaries several times before, but the toxic racism and anti-Semitism were hard to take. This time I wanted to see it through to the end. The virulent racism and anti-Government rhetoric are an uneasy and unnecessary marriage. For the life of me, I don't see why one need be a racist to oppose the Government.
Charles Blow appears to, however. The remixed America has a black president. The House of Representatives is led by a woman, Nancy Pelosi. Several gay men, Barney Frank and Anthony Weiner, were principal House backers of health care reform. The bill was signed into a law by a black president. And don't forget that in the year it was signed the birth rate for nonwhites was higher than whites. All this yields Blow to swagger.
America's changed, he notes. The Founders are dead. Liberty is the province of fools and the uneducated. It's time to huddle all around the new hearth and sing Kumbaya.
What drivel. Demographics aren't destiny in political philosophy. Ideas are. Does Blow have any ideas, or is he just tickled, err, pink, to be running with the new herd?
The piece was called "Whose Country Is It?" The premise was that the nation has changed. Those critical of health care and hoping to "take our country back" are really just a bunch of disgruntled white hillbillies who don't write for the Times. America's changed; why this may be the first year in which the majority of children born in this nation are nonwhite. Yoo hoo. "Welcome," he writes, "to America; The Remix."
Just what is Blow blowing hard about?
First, a whiff of political philosophy: "[T]he country romanticized about by the far right hasn't existed for some time, and its ability to deny that fact grows more dim every day." Uh, yeah? So we don't drive horses and buggies. There are no slaves. Electronic communications have transformed the world in ways inconceivable to the founders. These are truisms.
But liberty gone obsolete? My sense is that freedom is harder to purchase than ever before. We are tread upon daily in ways might never have mentioned. Does that mean that we ought simply to say that 1787 was then, this is now, and to Hell with the Constitution?
America has changed. So be it. We are more racially diverse. There are greater opportunities for women. The role of government has changed. I can accept and welcome all this without enthusiastically embracing a Government that now seeks to impose upon me the legal duty to purchase health care or risk fines. I still believe in limited government. That doesn't make me a racist or a misogynist.
This past weekend I finally sat down and read The Turner Diaries by Andrew Macdonald. I first learned of this book defending people accused of weapons violations by the federal government. On several occasions, clients of mine have had the book in their home when the feds searched looking for prohibited guns and weapons. Possession of the work seems to drive the feds wild.
I suppose that is because the protagonist in the book, Earl Turner, is dedicated to the violent overthrow of the government of the United States. His opposition is rooted in hatred of integration and equality. He is a racist, pure and simple. The work is a classic among members of the Christian Identity movement.
I had started The Turner Diaries several times before, but the toxic racism and anti-Semitism were hard to take. This time I wanted to see it through to the end. The virulent racism and anti-Government rhetoric are an uneasy and unnecessary marriage. For the life of me, I don't see why one need be a racist to oppose the Government.
Charles Blow appears to, however. The remixed America has a black president. The House of Representatives is led by a woman, Nancy Pelosi. Several gay men, Barney Frank and Anthony Weiner, were principal House backers of health care reform. The bill was signed into a law by a black president. And don't forget that in the year it was signed the birth rate for nonwhites was higher than whites. All this yields Blow to swagger.
America's changed, he notes. The Founders are dead. Liberty is the province of fools and the uneducated. It's time to huddle all around the new hearth and sing Kumbaya.
What drivel. Demographics aren't destiny in political philosophy. Ideas are. Does Blow have any ideas, or is he just tickled, err, pink, to be running with the new herd?
Thursday, March 25, 2010
Brave New Health Care Plan?
News of health reform is welcome, but I want to kill the messenger. Quickly, before it grows into an ungainly behemoth.
The simple fact that 30 miilion or more folks in the United States lack health insurance is enough to make me wonder whether this the best of all possible worlds is all it is cracked up to be. We can bail out billionaires too big to fail, but leave children uninsured. There’s something wrong here.
So as the ink dried on the new national health insurance legislation, I felt satisfied.
I hadn’t followed the debate about the bill. Washington politics sickens me. One party bellows “tastes great.” The other screeches “less filling.” The games go on. There are separate networks, newspapers and talking heads for the various points of view. I imagine the Titanic, sinking, and all these folks bitching about who is going to sit where. It must be like this whenever a great empire begins to collapse. The common vision fails, and, desperately, those with power, or seeking it, use any means they can muster to try to create a vision that can hold off the night.
One fact about the health plan leaps out at me and terrifies me. Ordinary Americans are now required to purchase health-care or be fined?
I am hard pressed to think of any other law in our history that made consumer spending mandatory.
It would have been far simpler simply to expand Medicare or Medicaid so that those without insurance could claim an entitlement. These programs, struggling as they are to meet our growing and gaining population, could be, and should be, funded from general tax revenue. That seems fair and efficient and consonant with the goals of a society devoted to equality and justice for all.
But conscripting the Internal Revenue Service into enforcement of univversal health care force me off the political sidelines and into something like revolt. Isn’t the power to tax the power to destroy?
As luck would have it, I had finished rereading Aldous Huxley’s Brave New World the night after the reform bill was passed. What a happy, and vapid, lot of consumers populated the world. The government prescribed a role for all, and socialized each to perfection. All were required to consume in order to keep the wheels of commerce turning. And life’s rough edges were made smooth for any all by cheap and easy Soma.
It’s easy when reading a piece of great satire to signs of your own time. But I was struck by the vision of a managed society where government meets each and every need. Folks had no choice but to play along. Dissent was crushed. The state was all.
Universal health care does not strike me as a sign of socialism. It is not a precursor to the totalitarian’s boot. It is the right and honorable thing to do in a society as wealth as ours.
But this health care legislation and its requirements that people purchase insurance or suffer a tax penalty strikes me as hobnailed fumbling. We didn’t have the nerve to do the right thing: simply expand entitlements. Instead, we mandate a market for insurance companies and force people to buy products from firms that are, like their buddies on Wall Street, too big to fail. What’s more, when we like sheep fail to feed in industries trough, we’re penalized in the form of a tax.
Let’s see. The people forced to serve a monolithic industry. The state stepping in to make sure all knees bend. Good lord, the rhetoric about fascism seems less hysterical and more like a sober reflection of realism.
Federal actions have already been filed raising Constitutional claims about this compulsory consumption. These are worthy challenges. I hope they succeed. I fear next a national nutrition plan. Or, perhaps, a dress code. I don’t like this Brave New World.
Reprinted courtesy of Connecticut Law Tribune.
The simple fact that 30 miilion or more folks in the United States lack health insurance is enough to make me wonder whether this the best of all possible worlds is all it is cracked up to be. We can bail out billionaires too big to fail, but leave children uninsured. There’s something wrong here.
So as the ink dried on the new national health insurance legislation, I felt satisfied.
I hadn’t followed the debate about the bill. Washington politics sickens me. One party bellows “tastes great.” The other screeches “less filling.” The games go on. There are separate networks, newspapers and talking heads for the various points of view. I imagine the Titanic, sinking, and all these folks bitching about who is going to sit where. It must be like this whenever a great empire begins to collapse. The common vision fails, and, desperately, those with power, or seeking it, use any means they can muster to try to create a vision that can hold off the night.
One fact about the health plan leaps out at me and terrifies me. Ordinary Americans are now required to purchase health-care or be fined?
I am hard pressed to think of any other law in our history that made consumer spending mandatory.
It would have been far simpler simply to expand Medicare or Medicaid so that those without insurance could claim an entitlement. These programs, struggling as they are to meet our growing and gaining population, could be, and should be, funded from general tax revenue. That seems fair and efficient and consonant with the goals of a society devoted to equality and justice for all.
But conscripting the Internal Revenue Service into enforcement of univversal health care force me off the political sidelines and into something like revolt. Isn’t the power to tax the power to destroy?
As luck would have it, I had finished rereading Aldous Huxley’s Brave New World the night after the reform bill was passed. What a happy, and vapid, lot of consumers populated the world. The government prescribed a role for all, and socialized each to perfection. All were required to consume in order to keep the wheels of commerce turning. And life’s rough edges were made smooth for any all by cheap and easy Soma.
It’s easy when reading a piece of great satire to signs of your own time. But I was struck by the vision of a managed society where government meets each and every need. Folks had no choice but to play along. Dissent was crushed. The state was all.
Universal health care does not strike me as a sign of socialism. It is not a precursor to the totalitarian’s boot. It is the right and honorable thing to do in a society as wealth as ours.
But this health care legislation and its requirements that people purchase insurance or suffer a tax penalty strikes me as hobnailed fumbling. We didn’t have the nerve to do the right thing: simply expand entitlements. Instead, we mandate a market for insurance companies and force people to buy products from firms that are, like their buddies on Wall Street, too big to fail. What’s more, when we like sheep fail to feed in industries trough, we’re penalized in the form of a tax.
Let’s see. The people forced to serve a monolithic industry. The state stepping in to make sure all knees bend. Good lord, the rhetoric about fascism seems less hysterical and more like a sober reflection of realism.
Federal actions have already been filed raising Constitutional claims about this compulsory consumption. These are worthy challenges. I hope they succeed. I fear next a national nutrition plan. Or, perhaps, a dress code. I don’t like this Brave New World.
Reprinted courtesy of Connecticut Law Tribune.
Tuesday, March 23, 2010
Go Ask Alice, Or, Maybe, Barack
The nation's new national health insurance act will be signed today. Before the Sun sets, I suspect lawsuits to be filed challenging the act. Although I favor a national health insurance system, I hope the law suits succeed.
The attorneys general of ten states plan suit to challenge the act on Tenth Amendment grounds: The federal government's decision to require states to spend money they don't have tips the balance of federalism, the argument goes.
And it's not a bad argument. Federal jurisdiction is supposed to be limited. The power to regulate the health, education and welfare is typically a state power. But, let's face it, times have changed, in spite of the fantasies of originalists.
The more interesting argument is whether the Government can compel folks to spend. I hope the answer is no. Anything less seems a whole lot like Aldous Huxley's Brave New World, a society of folks compelled to spend in the name of the public good.
I'm no politician, but it strikes me that a more honest way to achieve health care for all is simply to expand eligibility for pre-existing entitlement programs, There are already broad bureaucratic infrastructures in place for Medicaid and Medicare. Let more folks have access to those programs.
But using the Internal Revenue Service to monitor compliance with the requirement to spend? What next? national nutrition standards? A federal dress code for the schools? I keep looking for some source of the federal power here.
I've not read the bill, so perhaps the answer is obvious, but someone please tell me that more than the Commerce Clause was used to anchor this Brave New World of ours. If illness effects interstate commerce, then so does poor nutrition, violence, the common cold, you name it. In a shrinking world, we're all one. Praise Kumbaya.
If I understand the bill, individuals must now purchase plans meeting certain minimum standards. The failure to do so will be met with penalties. I simply can't think of a broad-based law like it. The Federal government has now criminalized the the failure to consume what the Government thinks is good for us?
I am trying hard to rejoice over the fact that millions of Americans who lack health insurance will now have access to it. But I can't. The bill appears to be as bold a reach of federal power as any I have seen in recent years.
It's time to research claims against those seeking to enforce the act. Are there Constitutional remedies than can be litigated under 42 U.S.C. Section 1983? Or will the courts grant immunity to federal officials who seek to fine us for not purchasing what the Government wants us to have?
The power to tax, the Supreme Court once wrote, is the power to destroy. Now it is also the power to make us healthy. Is that newspeak? Didn't totalitarians warn chorttle about forcing people to be free?
I don't get it. Why this particular execration when there was a simpler route?
The attorneys general of ten states plan suit to challenge the act on Tenth Amendment grounds: The federal government's decision to require states to spend money they don't have tips the balance of federalism, the argument goes.
And it's not a bad argument. Federal jurisdiction is supposed to be limited. The power to regulate the health, education and welfare is typically a state power. But, let's face it, times have changed, in spite of the fantasies of originalists.
The more interesting argument is whether the Government can compel folks to spend. I hope the answer is no. Anything less seems a whole lot like Aldous Huxley's Brave New World, a society of folks compelled to spend in the name of the public good.
I'm no politician, but it strikes me that a more honest way to achieve health care for all is simply to expand eligibility for pre-existing entitlement programs, There are already broad bureaucratic infrastructures in place for Medicaid and Medicare. Let more folks have access to those programs.
But using the Internal Revenue Service to monitor compliance with the requirement to spend? What next? national nutrition standards? A federal dress code for the schools? I keep looking for some source of the federal power here.
I've not read the bill, so perhaps the answer is obvious, but someone please tell me that more than the Commerce Clause was used to anchor this Brave New World of ours. If illness effects interstate commerce, then so does poor nutrition, violence, the common cold, you name it. In a shrinking world, we're all one. Praise Kumbaya.
If I understand the bill, individuals must now purchase plans meeting certain minimum standards. The failure to do so will be met with penalties. I simply can't think of a broad-based law like it. The Federal government has now criminalized the the failure to consume what the Government thinks is good for us?
I am trying hard to rejoice over the fact that millions of Americans who lack health insurance will now have access to it. But I can't. The bill appears to be as bold a reach of federal power as any I have seen in recent years.
It's time to research claims against those seeking to enforce the act. Are there Constitutional remedies than can be litigated under 42 U.S.C. Section 1983? Or will the courts grant immunity to federal officials who seek to fine us for not purchasing what the Government wants us to have?
The power to tax, the Supreme Court once wrote, is the power to destroy. Now it is also the power to make us healthy. Is that newspeak? Didn't totalitarians warn chorttle about forcing people to be free?
I don't get it. Why this particular execration when there was a simpler route?
Monday, March 22, 2010
Transparency In The Federal Courts?
I've known for years that United States District Judge Robert N. Chatigny would not preside over cases of mine. And it hasn't bothered me one whit. I've not really been curious about the reasons, either. Gratitude was my only reaction: I'd rather sun bathe in a meat locker than try a case in his courtroom.
I remain grateful, but I do confess to becoming curious when Chatigny was nominated for a seat on the Second Circuit. What piqued my interest was reading his questionnaire prepared for the Senate. The questionnaire is posted on the Senate Judiciary Committee's web page.
I learned that the District of Connecticut has a recusal policy, and that judges can list those folks on whose cases they won't sit. In judge Chatigny's case, that list included "certain lawyers."
Who else is on the judge's list?m I wondered. A paralegal called the court to request a copy of the list. We were told the list is confidential. So we sent in a Freedom of Information Act request.
"The courts of the United States are specifically exempted from the requirements of the FOIA by 5 U.S.C. Section 551(1)(b). and I am unaware of any other applicable statute or regulation that would require disclosure of the requested information," the clerk rights.
I understand the application of various privileges, such as one covering deliberative processes. But this seems a little too broad a sweep. Has Congress really granted a blanket exemption from transparency? Isn't that taking the Oz metaphor a little too far?
I remain grateful, but I do confess to becoming curious when Chatigny was nominated for a seat on the Second Circuit. What piqued my interest was reading his questionnaire prepared for the Senate. The questionnaire is posted on the Senate Judiciary Committee's web page.
I learned that the District of Connecticut has a recusal policy, and that judges can list those folks on whose cases they won't sit. In judge Chatigny's case, that list included "certain lawyers."
Who else is on the judge's list?m I wondered. A paralegal called the court to request a copy of the list. We were told the list is confidential. So we sent in a Freedom of Information Act request.
"The courts of the United States are specifically exempted from the requirements of the FOIA by 5 U.S.C. Section 551(1)(b). and I am unaware of any other applicable statute or regulation that would require disclosure of the requested information," the clerk rights.
I understand the application of various privileges, such as one covering deliberative processes. But this seems a little too broad a sweep. Has Congress really granted a blanket exemption from transparency? Isn't that taking the Oz metaphor a little too far?
Friday, March 19, 2010
Wrestling With The Devil
I sat up most of last night wrestling with the ghost of Gerry Spence. As usual, I figure he got the better of me. It bugs me.
"You know why you lost that case, Norm?" He approaches me warily, waiting for the trap to spring. My mind is a weapon. It often fires before I can stop it.
I sit silently.
"You lost it because you are mean," he said.
The charge was murder. My client was alleged to have kidnapped, raped and murdered a a fifteen-year-old girl in 1996. She's never been seen since. Jailhouse snitches say my client boasted of disposing of her body such that she'd never be found. "No body, no murder," he is reported to have said. One informant said he cut her up and put her in a lobster pot.
The state had no body. No eyewitness. No confession to law enforcement.
But it had the testimony a prior rape victim, a 13-year-old, who said my client raped her and choked her to the point of unconsciousness months before victim in the murder case went missing. My client was 29 at the time of the rape.
It is a case I should have won. There was so much reason to doubt the state's claim. Why one witness said he'd seen the victim years after she disappeared. Sure, he might be mistaken. But he had no motive to lie. There were reasons to doubt the state's case. I argued well, I am told by folks who were there. I should have won.
"But the jury didn't trust you, Norm" Spence says. "It trusted the state, the gentler men." He's pointing at me now, but in a welcoming way. "You know, I would have won that case."
Maybe he would have. Maybe he wouldn't have taken the case. I don't know. I recall years ago his complaining that he could not get into court. His cases kept settling. I offered him a chance to come on board in a gang murder. He declined. "I can't win that case," he said. Criminal defense isn't about picking winners.
I'm a critic of what Spence has created at his Trial Lawyer's College. The place is spooky. Some good folks there. But an awful lot of folks looking for love in all the wrong places.
I was surprised the other day when a stranger called me from Kansas City. He wanted to know about the college. Should he go? He'd heard about the place. But after reading what I've written, he wondered. We chatted for half an hour or so. "If you're curious enough to ask, go. There's no such thing as a bad attempt to learn," I told him. I recommended he read a book I was reading, Spence's latest, Win Your Case: How to Present, Persuade, and Prevail--Every Place, Every Time. I picked it up after I lost the murder case. You could read the book and skip the college. It's all there.
I finished that book hour or so ago. It reminds me of what was best about the college, back in the day, before shrines were erected, brands sold, and lines drawn among disciples. Indeed, I recommend the book for anyone curious about what goes on in the wild's of Wyoming with all those lawyers singing, and painting and walking silently in the wilderness. Spence reflects a lifetime of learning in the courts, and explains how pieces of the college's program shed light on what he has learned.
Listen more. Argue less. Become the witness. Understand her pain, her fear. Don't attack without permission. Ask for what you are looking for. Be honest. Avoid your anger. Love. And don't let your fear force you to strike. Of course, he is right.
And I see at once the way in which I failed my client. Attack is more than a motto for me; it is a way of life. Suppose the attack offended the jurors? Suppose my client faces life without possibility of parole because I tried the case the wrong way?
I got a note in the mail yesterday from one of the state troopers who testified in the case. I was hard on him. He wrote to commend me on a job well done. He was happy with the verdict. His side won. But rarely had he seen such advocacy, he said. My client was lucky to have me. So many of the cops I attack come back to me as clients years later for one thing or another.
"That's the Devil speaking, Norm," I hear Spence saying. "He's appealing to your pride. It is your weakness, you know."
And I know he is right. The sorrow and shame of losing a case I should have won angers me. But can I get beyond that to something more? I gnaw at chains I cannot see. My teeth crack, and the gums bleed, but still I do not see the chain. Perhaps writing about the sound of its rattle will help me better understand its grip on me.
The murder case will go up on appeal. It should be reversed. The judge had no business admitting evidence of a prior rape. How do you corroborate the claims of a snitch with acts that bear only speculative resemblance to what might, or might not, have happened? And why wasn't the jury aloud to hear the testimony of our expert on the unreliability of jailhouse informants, men who exhange half-truths for hope in an unregulated market? I want to try that case again.
I hope I get that chance. My client deserves a better trial.
"You know why you lost that case, Norm?" He approaches me warily, waiting for the trap to spring. My mind is a weapon. It often fires before I can stop it.
I sit silently.
"You lost it because you are mean," he said.
The charge was murder. My client was alleged to have kidnapped, raped and murdered a a fifteen-year-old girl in 1996. She's never been seen since. Jailhouse snitches say my client boasted of disposing of her body such that she'd never be found. "No body, no murder," he is reported to have said. One informant said he cut her up and put her in a lobster pot.
The state had no body. No eyewitness. No confession to law enforcement.
But it had the testimony a prior rape victim, a 13-year-old, who said my client raped her and choked her to the point of unconsciousness months before victim in the murder case went missing. My client was 29 at the time of the rape.
It is a case I should have won. There was so much reason to doubt the state's claim. Why one witness said he'd seen the victim years after she disappeared. Sure, he might be mistaken. But he had no motive to lie. There were reasons to doubt the state's case. I argued well, I am told by folks who were there. I should have won.
"But the jury didn't trust you, Norm" Spence says. "It trusted the state, the gentler men." He's pointing at me now, but in a welcoming way. "You know, I would have won that case."
Maybe he would have. Maybe he wouldn't have taken the case. I don't know. I recall years ago his complaining that he could not get into court. His cases kept settling. I offered him a chance to come on board in a gang murder. He declined. "I can't win that case," he said. Criminal defense isn't about picking winners.
I'm a critic of what Spence has created at his Trial Lawyer's College. The place is spooky. Some good folks there. But an awful lot of folks looking for love in all the wrong places.
I was surprised the other day when a stranger called me from Kansas City. He wanted to know about the college. Should he go? He'd heard about the place. But after reading what I've written, he wondered. We chatted for half an hour or so. "If you're curious enough to ask, go. There's no such thing as a bad attempt to learn," I told him. I recommended he read a book I was reading, Spence's latest, Win Your Case: How to Present, Persuade, and Prevail--Every Place, Every Time. I picked it up after I lost the murder case. You could read the book and skip the college. It's all there.
I finished that book hour or so ago. It reminds me of what was best about the college, back in the day, before shrines were erected, brands sold, and lines drawn among disciples. Indeed, I recommend the book for anyone curious about what goes on in the wild's of Wyoming with all those lawyers singing, and painting and walking silently in the wilderness. Spence reflects a lifetime of learning in the courts, and explains how pieces of the college's program shed light on what he has learned.
Listen more. Argue less. Become the witness. Understand her pain, her fear. Don't attack without permission. Ask for what you are looking for. Be honest. Avoid your anger. Love. And don't let your fear force you to strike. Of course, he is right.
And I see at once the way in which I failed my client. Attack is more than a motto for me; it is a way of life. Suppose the attack offended the jurors? Suppose my client faces life without possibility of parole because I tried the case the wrong way?
I got a note in the mail yesterday from one of the state troopers who testified in the case. I was hard on him. He wrote to commend me on a job well done. He was happy with the verdict. His side won. But rarely had he seen such advocacy, he said. My client was lucky to have me. So many of the cops I attack come back to me as clients years later for one thing or another.
"That's the Devil speaking, Norm," I hear Spence saying. "He's appealing to your pride. It is your weakness, you know."
And I know he is right. The sorrow and shame of losing a case I should have won angers me. But can I get beyond that to something more? I gnaw at chains I cannot see. My teeth crack, and the gums bleed, but still I do not see the chain. Perhaps writing about the sound of its rattle will help me better understand its grip on me.
The murder case will go up on appeal. It should be reversed. The judge had no business admitting evidence of a prior rape. How do you corroborate the claims of a snitch with acts that bear only speculative resemblance to what might, or might not, have happened? And why wasn't the jury aloud to hear the testimony of our expert on the unreliability of jailhouse informants, men who exhange half-truths for hope in an unregulated market? I want to try that case again.
I hope I get that chance. My client deserves a better trial.
Thursday, March 18, 2010
Cheshire Home Invasion: A Competency Exam For The State?
The case of State v. Hayes has once again ground to a halt. A competency exam has been ordered. But Judge Jon Blue ordered an examination of the wrong party. The State of Connecticut should have been remanded to a forensic institution to see whether it is playing with a full deck. That's the party appearing to be grossly irrational. Instead, the court ordered that Mr. Hayes be examined.
Mr. Hayes, a co-defendant in the 2007 home invasion in Cheshire, has offered to plead guilty to the capital felonies and assorted charges arising from the gruesome rapes, murders and arson at the Petit household. He is willing to stand in open court and accept responsibility for his crimes.
But the state is unwilling to accept the plea if it entails waiving the right to kill him. In other words, the state wants Mr. Hayes dead. So the trial goes forward, by fits and starts. After weeks of jury selection, five jurors are seated. It will take months more of individual sequestered voir dire for the lawyers indoctrinate their way through a few hundred more jurors in search of just the right panel.
What is wrong with State of Connecticut?
I tried to find out, but, I can't find the state. I'd like to talk to it and try to reason with it. All this money on an unnecessary defense. The Waterbury Republican reports $800,000 on the defense and counting. How many millions will we spend? How much mad money is enough?
I can look for the State until my hairs turn white and my teeth fall out. I will never find it. One of the biggest cons of all in criminal cases is the manner in which we present them to juries. We announce the case as State v. the defendant. But the state is a mere legal fiction. In a criminal case, two parties drive the prosecution: the prosecutor and the victim. Both have interests that are worth pondering.
New Haven State's Attorney Michael Dearington is calling the shots in the Hayes prosecution. The laconic lawyer is the sole person who can decided whether to accept or reject a guilty plea from Mr. Hayes.
Why has the prosecutor turned a deaf ear? Ought he be subject to a competency exam? The decision is plainly irrational.
Three factors force the prosecutions hand: Politics, public opinion and Dr. Petit.
It is well known around the state that Mr. Dearington is no fan of the death penalty. New Haven rarely seeks it, and never does so successfully. That raises questions. John Connelly in Waterbury, by contrast, operates a death mill by contrast. If New Haven does not seek death in this egregious case, when will it ever? And if the penalty is freakishly and randomly applied in the state, isn't that arbitrary in violation of the Eighth Amendment? Call Hayes a political kill.
Public opinion is still red hot against Hayes. There's not much to like about the guy. Isn't killing him what the people want? But this case stirs passions because it crosses socio-economic lines. Identical facts against a project dweller in Bridgeport would not stir national passion. This is a case about the rape and murder of ambition, hope and the privileges of the upper middle-class.
And then there is Dr. Petit.
He is in some respects a sympathetic figure. He has lost all. His grief is obvious. I say he is undone by his grief. But rather than give him a quiet place to mend, he now tries to influence legislation, speaks out about the legal process, and holds forth as Connecticut's own John Walsh. What next, a co-host's role on America's Most Wanted with another man who has made a vocation of private rage? Does he suffer survivor's guilt for fleeing the home in which his family was extinguished?
In the meantime, Mr. Hayes is said to be despondent and awaits death. But the State keeps him alive. Why? So it can kill him. The storyline here? "You can't kill yourself; we want to kill you." Bizarre, twisted even. It's early yet, but this case is beginning to look like Michael Ross redux.
Competency exams are in order, all right. But Mr. Hayes is not the only person who needs one. I say dial another up for Mr. Dearington and Dr. Petit. The prosecution of this case looks more and more like an expensive farce.
Reprinted courtest of The Connecticut Law Tribune.
Mr. Hayes, a co-defendant in the 2007 home invasion in Cheshire, has offered to plead guilty to the capital felonies and assorted charges arising from the gruesome rapes, murders and arson at the Petit household. He is willing to stand in open court and accept responsibility for his crimes.
But the state is unwilling to accept the plea if it entails waiving the right to kill him. In other words, the state wants Mr. Hayes dead. So the trial goes forward, by fits and starts. After weeks of jury selection, five jurors are seated. It will take months more of individual sequestered voir dire for the lawyers indoctrinate their way through a few hundred more jurors in search of just the right panel.
What is wrong with State of Connecticut?
I tried to find out, but, I can't find the state. I'd like to talk to it and try to reason with it. All this money on an unnecessary defense. The Waterbury Republican reports $800,000 on the defense and counting. How many millions will we spend? How much mad money is enough?
I can look for the State until my hairs turn white and my teeth fall out. I will never find it. One of the biggest cons of all in criminal cases is the manner in which we present them to juries. We announce the case as State v. the defendant. But the state is a mere legal fiction. In a criminal case, two parties drive the prosecution: the prosecutor and the victim. Both have interests that are worth pondering.
New Haven State's Attorney Michael Dearington is calling the shots in the Hayes prosecution. The laconic lawyer is the sole person who can decided whether to accept or reject a guilty plea from Mr. Hayes.
Why has the prosecutor turned a deaf ear? Ought he be subject to a competency exam? The decision is plainly irrational.
Three factors force the prosecutions hand: Politics, public opinion and Dr. Petit.
It is well known around the state that Mr. Dearington is no fan of the death penalty. New Haven rarely seeks it, and never does so successfully. That raises questions. John Connelly in Waterbury, by contrast, operates a death mill by contrast. If New Haven does not seek death in this egregious case, when will it ever? And if the penalty is freakishly and randomly applied in the state, isn't that arbitrary in violation of the Eighth Amendment? Call Hayes a political kill.
Public opinion is still red hot against Hayes. There's not much to like about the guy. Isn't killing him what the people want? But this case stirs passions because it crosses socio-economic lines. Identical facts against a project dweller in Bridgeport would not stir national passion. This is a case about the rape and murder of ambition, hope and the privileges of the upper middle-class.
And then there is Dr. Petit.
He is in some respects a sympathetic figure. He has lost all. His grief is obvious. I say he is undone by his grief. But rather than give him a quiet place to mend, he now tries to influence legislation, speaks out about the legal process, and holds forth as Connecticut's own John Walsh. What next, a co-host's role on America's Most Wanted with another man who has made a vocation of private rage? Does he suffer survivor's guilt for fleeing the home in which his family was extinguished?
In the meantime, Mr. Hayes is said to be despondent and awaits death. But the State keeps him alive. Why? So it can kill him. The storyline here? "You can't kill yourself; we want to kill you." Bizarre, twisted even. It's early yet, but this case is beginning to look like Michael Ross redux.
Competency exams are in order, all right. But Mr. Hayes is not the only person who needs one. I say dial another up for Mr. Dearington and Dr. Petit. The prosecution of this case looks more and more like an expensive farce.
Reprinted courtest of The Connecticut Law Tribune.
Tuesday, March 16, 2010
TLC: Sison To Board, "I Am Not Joane"
Word has it that no one was asked to leave the Trial Lawyers College. All left voluntarilty. I have been provided a copy of the following letter sent to all TLC board members by Fredilyn Sison. It suggests otherwise.
"To the TLC Board of Directors:
"Your president, Jude Basile, called me last Tuesday to tell me that the Board has decided that Mary Peckham and I will no longer be on staff. Jude was specific that it was the Board that made this decision, so I am writing this letter to each individual member to let you know how I feel about your decision. I believe that dealing with people directly shows appropriate respect. While you may not like what I have to say to you in this letter, I write it as someone who loves, and continues to love, the Trial Lawyers College. I hope you are able to read it with that in mind.
"I don't speak for Mary Peckham and I mention her only because Jude spoke of her in our conversation regarding your decision.
"As you know, both Mary and I have been on the staff since 2001, and this past year after Joane Garcia-Colson resigned, Mary was the coordinator for Grad 1 and I was the coordinator for Grad 2 and the Advanced Regional. I volunteered to act as executive director for these two programs for the same reasons I accepted the invitation for staff all these years: I care about this College and its mission. No doubt that many of us feel the same.
"Jude called me because when he removed me from the Board of Directors in October, 2009,1 asked him if I were also being removed from staff, and he informed me he would tell me at a later date. I detail our conversation below because I do not want there to be any question as to what was said. I trust that he will tell each of you about this conversation but I exercise the privilege to tell you myself.
"I asked him why the board decided I should no longer teach at TLC. He gave me the following two reasons:
"First, he said that the CLE program I'm co-creating with Mary and Joane competes, with TLC. He was referring to the Women's Trial Boot Camp.
"Secondly, he said that I'm being removed because of my friendship with Joane and my support of her.
"In response, I said the following: .
"A. I told him that the Women's Trial Boot Camp, which is a small workshop, does not compete with TLC because (1) TLC does not sponsor any women-only program;
(2) the invitations went out to women who are friends or friends of friends, not just TLC women, so we are not "stealing" anyone; (3) more programs that help lawyers become better advocates elevate the practice and are good for the people we represent; and (4) many other TLC alums and staff have sponsored, participated and staffed non-TLC sponsored CLE's, so why is the Board discriminating against us? I named programs involving Bill Trine, Joey Low, Sonia Chaisson, Deb Taussig, Bill Barton, Bob Dawson and Ken Behrens as recent examples. Jude conceded this issue as he has done CLE's as well. He said the real problem was Joane.
"B. I told Jude that his-and I suppose the Board's, since he spoke on your behalf—beef is with Joane, not me or Mary. I said that I am not Joane and that if he or you, the Board, have a problem with her, then you should address her directly.
"Jude said that she's been blogging about him and TLC. Notwithstanding my own opinion about the right to free speech, I said, "Again, your problem is with Joane, not me." I don't blog, and I don't post things on the list serve. If people ask me what happened, I respond to them directly but I don't broadcast. Jude said I supported her when she left, and I said "So did the entire Board as it existed then. If you didn't like what happened when she left, then that's not an issue with me. You all should have taken it up with her. You all had individual votes to deal with her. I voted the way I believed was best for the College, but my vote was only one out of 16. If you feel badly about your vote, that is not my problem." As I recall, [NAME DELETED] went to speak to her and he did not come back to the Board to tell us we should not give her the severance package she requested. While I sensed unhappiness about the package from a number of the Board members, not one person voted against giving it to her. If I had been the only person who "supported" Joane and voted for the severance package, then she would not have received it.
"I told Jude and I'm telling all of you I am not Joane. We are two different people, and I take offense mat any of you would think otherwise. That I supported her is no different from the times I supported Kay and other paid staff when they left. Because being supportive is what I do. I'm just being consistent with who I am.
"I know that I'm not the only friend Joane has on the board. In fact, over the years I've been at TLC, all of you have professed to be her friend. I don't know what happened with some of you and Joane and frankly, I don't care, but I didn't support Joane because she was my friend. I voted for the package because I believed it was in the best interest of the College to do so. That it helped her was secondary to my thinking and vote. (Since I speak of other former board members, I provide, as a courtesy to them, a copy of this letter. If they have a different recollection of the events surrounding Joane's resignation and severance package, I'm sure they let you and me know.).
"If you could point to lapses in my teaching or if I were a disruptive, irresponsible or . non-collaborative staff member, then you have a valid reason for my removal. But I have never been anything but supportive of TLG (SIC). In fact, you can confirm with Jude and Laurie Goodman that despite getting axed from the Board two hours before the start of the Advanced Regional, a program I was coordinating and staffing, I did not let my hurt or anger affect the curriculum, the teaching, the staff or the students. I dare all of you to read the evaluations of that program to find one word that belies that. In fact, I told the staff in my role as coordinator that we were not to mention that three of us who were staffing the Advanced— Carl, Katlin and I—had just been removed from the Board unceremoniously.
"I am deeply offended that you would "de-staff someone because of association. Less than a month ago, I, as a federal public defender, stood with a police officer convicted of child sexual abuse and even the mother of that child did not maltreat me despite her palpable pain. Every day I proudly "associate" with accused people and convicted criminals, not only because it's my job, but because they are human beings. I'll be damned if I let anyone dictate to me who my friends are and judge me for my "support" of anyone without my saying something about it.
"And for the record, Joane and Mary are good people. I am proud to call them my friends.
"I am disappointed by your decision. But please don't be confused by what I mean by that. I am not disappointed to not be on staff. I'm disappointed in the reason why you took Mary and me off staff.
"I will continue to support TLC, the programs and the good people that are involved in it, be it staffer students. I do so because I think this organization has done a lot of good and changed people's lives for the better. Hopefully it will continue to do so. But given the recent actions of this board and/or its individual members, I have my doubts. This is not the TLC of the mission statement, this is not the TLC of Bob Rose and John Johnson, and this is not the TLC that once courageously was. "
"To the TLC Board of Directors:
"Your president, Jude Basile, called me last Tuesday to tell me that the Board has decided that Mary Peckham and I will no longer be on staff. Jude was specific that it was the Board that made this decision, so I am writing this letter to each individual member to let you know how I feel about your decision. I believe that dealing with people directly shows appropriate respect. While you may not like what I have to say to you in this letter, I write it as someone who loves, and continues to love, the Trial Lawyers College. I hope you are able to read it with that in mind.
"I don't speak for Mary Peckham and I mention her only because Jude spoke of her in our conversation regarding your decision.
"As you know, both Mary and I have been on the staff since 2001, and this past year after Joane Garcia-Colson resigned, Mary was the coordinator for Grad 1 and I was the coordinator for Grad 2 and the Advanced Regional. I volunteered to act as executive director for these two programs for the same reasons I accepted the invitation for staff all these years: I care about this College and its mission. No doubt that many of us feel the same.
"Jude called me because when he removed me from the Board of Directors in October, 2009,1 asked him if I were also being removed from staff, and he informed me he would tell me at a later date. I detail our conversation below because I do not want there to be any question as to what was said. I trust that he will tell each of you about this conversation but I exercise the privilege to tell you myself.
"I asked him why the board decided I should no longer teach at TLC. He gave me the following two reasons:
"First, he said that the CLE program I'm co-creating with Mary and Joane competes, with TLC. He was referring to the Women's Trial Boot Camp.
"Secondly, he said that I'm being removed because of my friendship with Joane and my support of her.
"In response, I said the following: .
"A. I told him that the Women's Trial Boot Camp, which is a small workshop, does not compete with TLC because (1) TLC does not sponsor any women-only program;
(2) the invitations went out to women who are friends or friends of friends, not just TLC women, so we are not "stealing" anyone; (3) more programs that help lawyers become better advocates elevate the practice and are good for the people we represent; and (4) many other TLC alums and staff have sponsored, participated and staffed non-TLC sponsored CLE's, so why is the Board discriminating against us? I named programs involving Bill Trine, Joey Low, Sonia Chaisson, Deb Taussig, Bill Barton, Bob Dawson and Ken Behrens as recent examples. Jude conceded this issue as he has done CLE's as well. He said the real problem was Joane.
"B. I told Jude that his-and I suppose the Board's, since he spoke on your behalf—beef is with Joane, not me or Mary. I said that I am not Joane and that if he or you, the Board, have a problem with her, then you should address her directly.
"Jude said that she's been blogging about him and TLC. Notwithstanding my own opinion about the right to free speech, I said, "Again, your problem is with Joane, not me." I don't blog, and I don't post things on the list serve. If people ask me what happened, I respond to them directly but I don't broadcast. Jude said I supported her when she left, and I said "So did the entire Board as it existed then. If you didn't like what happened when she left, then that's not an issue with me. You all should have taken it up with her. You all had individual votes to deal with her. I voted the way I believed was best for the College, but my vote was only one out of 16. If you feel badly about your vote, that is not my problem." As I recall, [NAME DELETED] went to speak to her and he did not come back to the Board to tell us we should not give her the severance package she requested. While I sensed unhappiness about the package from a number of the Board members, not one person voted against giving it to her. If I had been the only person who "supported" Joane and voted for the severance package, then she would not have received it.
"I told Jude and I'm telling all of you I am not Joane. We are two different people, and I take offense mat any of you would think otherwise. That I supported her is no different from the times I supported Kay and other paid staff when they left. Because being supportive is what I do. I'm just being consistent with who I am.
"I know that I'm not the only friend Joane has on the board. In fact, over the years I've been at TLC, all of you have professed to be her friend. I don't know what happened with some of you and Joane and frankly, I don't care, but I didn't support Joane because she was my friend. I voted for the package because I believed it was in the best interest of the College to do so. That it helped her was secondary to my thinking and vote. (Since I speak of other former board members, I provide, as a courtesy to them, a copy of this letter. If they have a different recollection of the events surrounding Joane's resignation and severance package, I'm sure they let you and me know.).
"If you could point to lapses in my teaching or if I were a disruptive, irresponsible or . non-collaborative staff member, then you have a valid reason for my removal. But I have never been anything but supportive of TLG (SIC). In fact, you can confirm with Jude and Laurie Goodman that despite getting axed from the Board two hours before the start of the Advanced Regional, a program I was coordinating and staffing, I did not let my hurt or anger affect the curriculum, the teaching, the staff or the students. I dare all of you to read the evaluations of that program to find one word that belies that. In fact, I told the staff in my role as coordinator that we were not to mention that three of us who were staffing the Advanced— Carl, Katlin and I—had just been removed from the Board unceremoniously.
"I am deeply offended that you would "de-staff someone because of association. Less than a month ago, I, as a federal public defender, stood with a police officer convicted of child sexual abuse and even the mother of that child did not maltreat me despite her palpable pain. Every day I proudly "associate" with accused people and convicted criminals, not only because it's my job, but because they are human beings. I'll be damned if I let anyone dictate to me who my friends are and judge me for my "support" of anyone without my saying something about it.
"And for the record, Joane and Mary are good people. I am proud to call them my friends.
"I am disappointed by your decision. But please don't be confused by what I mean by that. I am not disappointed to not be on staff. I'm disappointed in the reason why you took Mary and me off staff.
"I will continue to support TLC, the programs and the good people that are involved in it, be it staffer students. I do so because I think this organization has done a lot of good and changed people's lives for the better. Hopefully it will continue to do so. But given the recent actions of this board and/or its individual members, I have my doubts. This is not the TLC of the mission statement, this is not the TLC of Bob Rose and John Johnson, and this is not the TLC that once courageously was. "
TLC: Squashing The Competition
Mark Bennett has an interesting piece about the latest doings at the Trial Lawyer's College. It turns out that three female expatriates have started a program for women. The college is not happy about it. Question: If the college's program revolves around love, and that is the college's claim, who has a monopoly on love?
Women lawyers should check out the program offered by three gems called The Three Sisters. The members of the group are three YLC alum, Joane Garcia-Colson, Fredilyn Sison and Mary Pecham. I've met and worked with Joane and Mary, and have heard nothing but good things about Sison.
One undercurrent at TLC that rarely surfaces for public display is mysogny. Critics of Spence say he has three hot button issues: money, woman and race. Apparently, The Three Sistters intend to offer advanced training in trial advocacy to women only. That seems regrettable to me. I could use a tune up and might well have attended this program, but my plumbing makes me ineligible. The debut program is May 13 to 16 in Palm Springs, and the price is a fraction of the TLC price: $750.
http://www.the3sisters.org/about.html
Check out Bennett: http://bennettandbennett.com/blog/2010/03/why-is-the-trial-lawyers-college-afraid-of-these-three-women.html
Women lawyers should check out the program offered by three gems called The Three Sisters. The members of the group are three YLC alum, Joane Garcia-Colson, Fredilyn Sison and Mary Pecham. I've met and worked with Joane and Mary, and have heard nothing but good things about Sison.
One undercurrent at TLC that rarely surfaces for public display is mysogny. Critics of Spence say he has three hot button issues: money, woman and race. Apparently, The Three Sistters intend to offer advanced training in trial advocacy to women only. That seems regrettable to me. I could use a tune up and might well have attended this program, but my plumbing makes me ineligible. The debut program is May 13 to 16 in Palm Springs, and the price is a fraction of the TLC price: $750.
http://www.the3sisters.org/about.html
Check out Bennett: http://bennettandbennett.com/blog/2010/03/why-is-the-trial-lawyers-college-afraid-of-these-three-women.html
Monday, March 15, 2010
Run, Ross, Run
The field for Attorney General of the State of Connecticut is wide open, and one of the best candidates is rumored to be playing Hamlet in Hartford. Is his race to be, or not to be? There really is no question about it: Ross Garber should run for Attorney General.
I've known Ross for almost 20 years. We met when he was a clerk to United States Judge Robert Chatigny. I'd come to court and plead my heart out for one cause or another. Ross was one of the backroom guys, quietly taking it all in and then, I presume, meeting with the judge in chambers to discuss what all the fuss meant.
I confess to intimidation by federal law clerks. Although I graduated with honors from law school, there was nothing honorable about my participation in class or, frankly, my performance in general. I was indifferent, and I burned bridges, a lifelong pastime. Ross was busy building bridges.
We met up a few years after his clerkship in a federal trial; Ross was now in the trenches, trading punches. I was acting up in that case, too. I was more than a little out there. Ross was unflappable, however. A lawyer's sort of lawyer: He'd let me toss a Molotov cocktail. He stood by to let it burn out. When the flames were doused, he'd then come up with a twinkle in his eye and ask, politely, "Can we talk about that now?" His goodwill is infectious.
He emerged as lawyer for the Office of the Governor in the waning days of former Gov. John Rowland. We talked alot in those years about the challenges of representing the institution of the governor's office at the same time the governor was, well, er ... on the ropes. What impressed me most there was his understanding of the competing roles of all involved. His grasp of the importance of integrity in government was firm, true and intuitive. I came to trust him implicitly.
He's now parked at the Hartford law-firm of Shipman and Goodwin, another move I envy. I often wish I had the go-along, get-along gene. I'm a good lawyer in the courtroom, but I am not a good businessman. Oh, to have a stable of partners on whom to rely. Instead I howl at the moon and wonder why governor's don't call me for advice. Instead, they call Ross.
It turns out that there is a campaign to draft Ross in the race for Attorney General. But Ross is rumored to be hesitant. Why? He's young. At 43 his political life is still ahead of him. He has broad statewide support among Republicans. He has great name recognition. Why wouldn't he run?
His sister-in-law is in the race.
Garber is related by marriage to current Secretary of the State, Susan Bysiewicz. Bysiewicz is a Democrat; Garber is a Republican.
So what? I say. Both are well qualified for the job in my view. Surely, Bysiewicz can share the familial limelight. She has, after all, been playing the role of Hamlet herself for the past few months: "Shall I run for governor? Or shall I run for Attorney General?" It is unreasonable for her to expect all other family members to put their ambitions on hold while she sorts out her intentions.
I can well imagine Garber's reservations about running: "Will my wife every speak to me again?" Of course, she will. And so will Bysiewicz. Politics needn't be bloodsport. It might do the state good to have a civil Attorney General's race. That might help focus on the issues for a change.
Connecticut voters will have a difficult task filling the shoes of departing Attorney General Richard Blumenthal. Say what you will about the man, he is intelligent, driven and has assembled a brilliant legal team. Ross Garber has what it takes to lead that office; so does Susan Bysiewicz. Let the voters pick the best candidate.
Run, Ross, run. And have your wife give me a call if she needs to be calmed down.
I've known Ross for almost 20 years. We met when he was a clerk to United States Judge Robert Chatigny. I'd come to court and plead my heart out for one cause or another. Ross was one of the backroom guys, quietly taking it all in and then, I presume, meeting with the judge in chambers to discuss what all the fuss meant.
I confess to intimidation by federal law clerks. Although I graduated with honors from law school, there was nothing honorable about my participation in class or, frankly, my performance in general. I was indifferent, and I burned bridges, a lifelong pastime. Ross was busy building bridges.
We met up a few years after his clerkship in a federal trial; Ross was now in the trenches, trading punches. I was acting up in that case, too. I was more than a little out there. Ross was unflappable, however. A lawyer's sort of lawyer: He'd let me toss a Molotov cocktail. He stood by to let it burn out. When the flames were doused, he'd then come up with a twinkle in his eye and ask, politely, "Can we talk about that now?" His goodwill is infectious.
He emerged as lawyer for the Office of the Governor in the waning days of former Gov. John Rowland. We talked alot in those years about the challenges of representing the institution of the governor's office at the same time the governor was, well, er ... on the ropes. What impressed me most there was his understanding of the competing roles of all involved. His grasp of the importance of integrity in government was firm, true and intuitive. I came to trust him implicitly.
He's now parked at the Hartford law-firm of Shipman and Goodwin, another move I envy. I often wish I had the go-along, get-along gene. I'm a good lawyer in the courtroom, but I am not a good businessman. Oh, to have a stable of partners on whom to rely. Instead I howl at the moon and wonder why governor's don't call me for advice. Instead, they call Ross.
It turns out that there is a campaign to draft Ross in the race for Attorney General. But Ross is rumored to be hesitant. Why? He's young. At 43 his political life is still ahead of him. He has broad statewide support among Republicans. He has great name recognition. Why wouldn't he run?
His sister-in-law is in the race.
Garber is related by marriage to current Secretary of the State, Susan Bysiewicz. Bysiewicz is a Democrat; Garber is a Republican.
So what? I say. Both are well qualified for the job in my view. Surely, Bysiewicz can share the familial limelight. She has, after all, been playing the role of Hamlet herself for the past few months: "Shall I run for governor? Or shall I run for Attorney General?" It is unreasonable for her to expect all other family members to put their ambitions on hold while she sorts out her intentions.
I can well imagine Garber's reservations about running: "Will my wife every speak to me again?" Of course, she will. And so will Bysiewicz. Politics needn't be bloodsport. It might do the state good to have a civil Attorney General's race. That might help focus on the issues for a change.
Connecticut voters will have a difficult task filling the shoes of departing Attorney General Richard Blumenthal. Say what you will about the man, he is intelligent, driven and has assembled a brilliant legal team. Ross Garber has what it takes to lead that office; so does Susan Bysiewicz. Let the voters pick the best candidate.
Run, Ross, run. And have your wife give me a call if she needs to be calmed down.
Another Tempest In Bysiewicz's Tea Pot
The wonder of it is that anyone is willing to run for public office and serve. That’s my first reaction to the latest scandal to surface in Connecticut politics. I call it “Listgate” because the politician involved has a name that does not lend itself to a cognate jingle.
It turns out that Secretary of the State Susan Bysiewicz kept a list of who is naughty and nice in her office. There are some 36,000 names on it. Judging by the reaction of state politicians, you would think she’s transforming the sleepy state office into a Connecticut KGB.
First, a confession: I have a soft spot for Susan Bysiewicz. And that soft spot may well be the result of being on her list.
I don’t think I have ever met the Secretary of the State. But from time to time I get a card from her in the mail congratulating me for one thing or another.
The last time I got such a card I marveled. “This woman is a master politico,” I thought. “Imagine the energy and commitment it must take to generate such cards.” I wondered how many she sent in a year. It struck me then, and strikes me still, as an inexpensive way to build goodwill. Call me a 41 cent date.
According to The Hartford Courant, Ms. Bysiewicz has been keeping a list of folks in her office. The State Republican Party Chairman, Chris Healy, calls the list “political intelligence ... paid for by the taxpayers.”
I suppose that is what it is. But this intelligence is not being used to round up people and arrest them for espousing unpopular views, as was done with another list when a free-lance journalist was arrested for taking pictures of the governor at her inaugural parade. That raised troubling constitutional questions. Do similar questions arise here?
The list does contain personal information. The ethnicity of some folks is noted. Political connections are noted. There are notations about people’s medical conditions. I suspect this list consisted of her notes for working the electorate.
The problem is that these notes were subject to the Freedom of Information Act. And now her adversaries have more ammunition to use against her.
One competitor for the Democratic nomination for Attorney General contends that this a shocking violation of “people’s right to privacy.” “No one should be concerned when they seek assistance from the state that their personal information will be publicly displayed. This database ought to be deleted.”
Another candidate for the office of the Attorney General calls the list “a misuse of state resources and taxpayer money. She violated the personal privacy of the citizens who approached her office for help – she owes them an apology.”
The rhetoric is overheated. Not wrong, mind you, just overheated.
It is cynical in the extreme for one politician to out another for keeping demographic lists and notes on potential contributors. Politicians live and die by polls, and they pay small fortunes to others to mine data about potential voters. Bysiewicz is guilty of being a politician; so are the other contenders for the office of Attorney General.
The Secretary of the State did not mine confidential state files for information about contributors. She kept running notes about the people she spoke to. She no doubt planned to use those notes to build her campaign. I suspect I am on that database. It strikes me as quaint, but not offensive.
But she was foolish to keep those notes on a state computer system, thus making them subject to the Freedom of Information Act. It is simply unwise. Better that she had kept a separate computer for her own personal use.
Of course, had she used her own computer folks would accuse her of hiding things and using public time for private affairs: as the line between public and private cannot be so easily drawn for those who give their lives to public service. So, again, I wonder why anyone is willing to run for public office and serve.
This tempest spoils my taste for tea.
It turns out that Secretary of the State Susan Bysiewicz kept a list of who is naughty and nice in her office. There are some 36,000 names on it. Judging by the reaction of state politicians, you would think she’s transforming the sleepy state office into a Connecticut KGB.
First, a confession: I have a soft spot for Susan Bysiewicz. And that soft spot may well be the result of being on her list.
I don’t think I have ever met the Secretary of the State. But from time to time I get a card from her in the mail congratulating me for one thing or another.
The last time I got such a card I marveled. “This woman is a master politico,” I thought. “Imagine the energy and commitment it must take to generate such cards.” I wondered how many she sent in a year. It struck me then, and strikes me still, as an inexpensive way to build goodwill. Call me a 41 cent date.
According to The Hartford Courant, Ms. Bysiewicz has been keeping a list of folks in her office. The State Republican Party Chairman, Chris Healy, calls the list “political intelligence ... paid for by the taxpayers.”
I suppose that is what it is. But this intelligence is not being used to round up people and arrest them for espousing unpopular views, as was done with another list when a free-lance journalist was arrested for taking pictures of the governor at her inaugural parade. That raised troubling constitutional questions. Do similar questions arise here?
The list does contain personal information. The ethnicity of some folks is noted. Political connections are noted. There are notations about people’s medical conditions. I suspect this list consisted of her notes for working the electorate.
The problem is that these notes were subject to the Freedom of Information Act. And now her adversaries have more ammunition to use against her.
One competitor for the Democratic nomination for Attorney General contends that this a shocking violation of “people’s right to privacy.” “No one should be concerned when they seek assistance from the state that their personal information will be publicly displayed. This database ought to be deleted.”
Another candidate for the office of the Attorney General calls the list “a misuse of state resources and taxpayer money. She violated the personal privacy of the citizens who approached her office for help – she owes them an apology.”
The rhetoric is overheated. Not wrong, mind you, just overheated.
It is cynical in the extreme for one politician to out another for keeping demographic lists and notes on potential contributors. Politicians live and die by polls, and they pay small fortunes to others to mine data about potential voters. Bysiewicz is guilty of being a politician; so are the other contenders for the office of Attorney General.
The Secretary of the State did not mine confidential state files for information about contributors. She kept running notes about the people she spoke to. She no doubt planned to use those notes to build her campaign. I suspect I am on that database. It strikes me as quaint, but not offensive.
But she was foolish to keep those notes on a state computer system, thus making them subject to the Freedom of Information Act. It is simply unwise. Better that she had kept a separate computer for her own personal use.
Of course, had she used her own computer folks would accuse her of hiding things and using public time for private affairs: as the line between public and private cannot be so easily drawn for those who give their lives to public service. So, again, I wonder why anyone is willing to run for public office and serve.
This tempest spoils my taste for tea.
Sunday, March 14, 2010
Apocalypse Now? Oath Keepers And Tea Parties
The April edition of Mother Jones features a cover story entitled "Age of Treason". When I first started to read it, I was prepared to be alarmed. But by the time I finished reading it, I wondered whether I, too, am a candidate for treason.
A group called Oath Keepers is a new phenomenon in the military. Apparently, a small, but significant number of active servicemen is prepared to lay down arms and refuse to obey orders if circumstances require it. Purists contend this is nothing new, just application of the old rule that soliders must not obey unlawful orders. What might trigger a failure to obey orders?
According to Stewart Rhodes, founder of the Oath Keepers, soldiers should not engage in the following on American soil:
1. Conducting warrantless searches;
2. Holding American citizens as enemy combatants or subjecting them to military tribunals;
3. Imposing martial law against citizens;
4. Blockading U.S. cities;
5. Forcing citizens into detention camps;
6. Cooperating with foreign troops asked to intervene on U.S. soil.
Hard to argue with that. In the normal course, these measures seem extreme. (Except for the warrantless search part; thank the Supreme Court for eviscerating the Fourth Amendment and creating so many exceptions to the warrant requirement that warrants increasingly are not required to search at all.)
But times are changing, Mother Jones reports. In September 2008, the Army's 3rd Infantry 1st Brigade Combat Team began to train in techniques to quell civil unrest and crowd control. The ostensible purpose of this training is associated with provision of humanitarian relief following a domestic disaster or terror attack. But ask Japanese-Americans how it felt to spend World War II in concentration camps to learn how quickly the worm can turn. Mother Jones reports that the American Civil Liberties Union has expressed concern over the scope of this training.
Oath Keepers was apparently founded by Rhodes, who, at 44, is a recent Yale Law School graduate. While a student at Yale, he won an award is 2004 for his paper, "Solving the Puzzle of Enemy Combatant Status." He has also written for the magazine associated with Gerry Spence's Trial Lawyer's College, The Warrior. (Full disclosure: So have I. I wrote an essay or two in America On The Verge, a special post 9-11 edition in 2002 devoted to the threat to liberty posed by the Government's response to the 9-11 terror attacks. See: http://www.triallawyerscollege.com/publicat/w_102001.pdf)
Oath Keepers doesn't seem like a run of the mill militia group to me, although it has surfaced on the list of hate groups maintained by the Southern Povery Law Center and the Anti-Defamation League. But I wonder whether the group belongs there: Since when is suspicion of government and a commitment to liberty synonymous with hatred?
I am not alone in my ambivalence about this group and others like it. Jonathan Raban's piece in the March 25 The New York Review of Books, "Inside the Tea Party," is more than reporting. Raban attended the recent Nashville convention with mixed motives: Sure he wanted to report, but he also attended as "a recently joined member of Tea Party Nation." He reports: "I had my own quarrels with big government, especially on the matter of warrantless wiretapping, ... I counted on my libertarian streak to give me common ground with my fellow tea partiers." I get that, even if I cannot look at Sarah Palin with anything other than bemusement.
Raban reports divisions within the ranks of the Tea Party crowd in Nashville. There was a little too much prayer and gratuitous Bible-banging for many folks. Indeed, it is the prayer and religiosity that keep me from following this movement's doings with anything other than misgivings.
But I wonder, really, whehter these groups aren't on to something. What happens when a wholesale lack of confidence in American institutions takes root? I watch Obama with growing disappointment: We still have not disbanded Guantanamo. The commitment to criminal trials for terror suspects is in question. We're bailing out billionaires too big to fail and letting the middle class sink. Increasingly, I watch events around me and feel like a stranger in a strange land.
"America, love it or leave it," some say. But that's naive. Whose country is it anyhow? Wall Street's? The military-industrial complex's? The chattering political and economic elite that strangle our institutions with the sterile vision of privileged nabobs? Look at Obama's recent nominees to the federal courts: It is the same old crop of folks burnished to a dull and homogenous sheen by the nation's status factories.
I'll be keeping an eye on the Oath Keepers. Here's a link to their web site: http://oathkeepers.org/oath/. It doesn't appear that there is an affiliate for lawyers and those who have not served in the military. But that could change. Lawyers no less than soliders have sworn an oath to protect the Constitution.
Corrected: Hat Tip, Jim.
A group called Oath Keepers is a new phenomenon in the military. Apparently, a small, but significant number of active servicemen is prepared to lay down arms and refuse to obey orders if circumstances require it. Purists contend this is nothing new, just application of the old rule that soliders must not obey unlawful orders. What might trigger a failure to obey orders?
According to Stewart Rhodes, founder of the Oath Keepers, soldiers should not engage in the following on American soil:
1. Conducting warrantless searches;
2. Holding American citizens as enemy combatants or subjecting them to military tribunals;
3. Imposing martial law against citizens;
4. Blockading U.S. cities;
5. Forcing citizens into detention camps;
6. Cooperating with foreign troops asked to intervene on U.S. soil.
Hard to argue with that. In the normal course, these measures seem extreme. (Except for the warrantless search part; thank the Supreme Court for eviscerating the Fourth Amendment and creating so many exceptions to the warrant requirement that warrants increasingly are not required to search at all.)
But times are changing, Mother Jones reports. In September 2008, the Army's 3rd Infantry 1st Brigade Combat Team began to train in techniques to quell civil unrest and crowd control. The ostensible purpose of this training is associated with provision of humanitarian relief following a domestic disaster or terror attack. But ask Japanese-Americans how it felt to spend World War II in concentration camps to learn how quickly the worm can turn. Mother Jones reports that the American Civil Liberties Union has expressed concern over the scope of this training.
Oath Keepers was apparently founded by Rhodes, who, at 44, is a recent Yale Law School graduate. While a student at Yale, he won an award is 2004 for his paper, "Solving the Puzzle of Enemy Combatant Status." He has also written for the magazine associated with Gerry Spence's Trial Lawyer's College, The Warrior. (Full disclosure: So have I. I wrote an essay or two in America On The Verge, a special post 9-11 edition in 2002 devoted to the threat to liberty posed by the Government's response to the 9-11 terror attacks. See: http://www.triallawyerscollege.com/publicat/w_102001.pdf)
Oath Keepers doesn't seem like a run of the mill militia group to me, although it has surfaced on the list of hate groups maintained by the Southern Povery Law Center and the Anti-Defamation League. But I wonder whether the group belongs there: Since when is suspicion of government and a commitment to liberty synonymous with hatred?
I am not alone in my ambivalence about this group and others like it. Jonathan Raban's piece in the March 25 The New York Review of Books, "Inside the Tea Party," is more than reporting. Raban attended the recent Nashville convention with mixed motives: Sure he wanted to report, but he also attended as "a recently joined member of Tea Party Nation." He reports: "I had my own quarrels with big government, especially on the matter of warrantless wiretapping, ... I counted on my libertarian streak to give me common ground with my fellow tea partiers." I get that, even if I cannot look at Sarah Palin with anything other than bemusement.
Raban reports divisions within the ranks of the Tea Party crowd in Nashville. There was a little too much prayer and gratuitous Bible-banging for many folks. Indeed, it is the prayer and religiosity that keep me from following this movement's doings with anything other than misgivings.
But I wonder, really, whehter these groups aren't on to something. What happens when a wholesale lack of confidence in American institutions takes root? I watch Obama with growing disappointment: We still have not disbanded Guantanamo. The commitment to criminal trials for terror suspects is in question. We're bailing out billionaires too big to fail and letting the middle class sink. Increasingly, I watch events around me and feel like a stranger in a strange land.
"America, love it or leave it," some say. But that's naive. Whose country is it anyhow? Wall Street's? The military-industrial complex's? The chattering political and economic elite that strangle our institutions with the sterile vision of privileged nabobs? Look at Obama's recent nominees to the federal courts: It is the same old crop of folks burnished to a dull and homogenous sheen by the nation's status factories.
I'll be keeping an eye on the Oath Keepers. Here's a link to their web site: http://oathkeepers.org/oath/. It doesn't appear that there is an affiliate for lawyers and those who have not served in the military. But that could change. Lawyers no less than soliders have sworn an oath to protect the Constitution.
Corrected: Hat Tip, Jim.
Beware Of Ad Damnum Adverstising
I noticed that a colleague of mine here in Connecticut recently filed a couple of police misconduct claims arising under 42 U.S.C. Section 1983. As practitioners in this field know, winning such claims is notoriously difficult. And large verdicts are even more rare..
So I was surprised when I saw the newspaper accounts of these claims.
"What's up?" I asked a friend who seems to know things beyond my ken. "These claims are overstated."
"I think the phone has been slow over there," was the response I got. And it hit me all at once: This is ad damnum advertising.
The ad damnum clause in a complaint is where the lawyer asks for what he or she wants as a result of the lawsuit. Many state courts have jurisdictionally significant amounts that must be plead. In Connecticut, for example, if you want a jury trial in Superior Court, you must ask for at leas $15,000. In a federal diversity action between parties in different states, you must ask for at least $75,000.
But 1983 claims raise federal questions, and when they are filed in state court no amount in controversy need be pleaded.
I am not a big fan of ad damnum advertising. Sure, it makes a reporter's eyes pop. But for all the wrong reasons. It's like Babe Ruth pointing to center field before stepping up to the plate. Except, in the case of a police misconduct lawsuit, the plaintiff is more likely to strike out than hit a home run.
I've had very fluky verdicts in my legal career. In one case against prison guards for beating a prisoner in a failed escape attempt, a jury awarded my client $2.1 million. We would have settled the case for $20,000. Indeed, we were prepared to settle the case for that sum but Attorney General Richard Blumenthal personally vetoed the settlement. Obviously, I was happier with the jury award, although, to be honest, never in a million years would I have foreseen that verdict.
In another case alleging police misconduct, my clients wanted millions for the estate of their teenage son. In this case, police appeared at the boy's home in response to a call about a suicidal youth. After a brief inspection of the home, they left the child home alone. Half an hour later, the boy's father came home to find his son dead from a self-inflicted shotgun blast. The defendants offered hundreds of thousands of dollars after the jury found the cops erred. (This was not a 1983 claim, it arose under state-law negligence.) The estate, represented by the parents of the boy, asked for millions. The jury returned a verdict of $1 dollar. This, too, was a result I never would have foreseen.
Juries can be fickle. They decide cases based sometimes on what the lawyers suggest, but, I suspect, most often based on their collective sense of what justice requires. A lawyer who asks for too much or too little risks offending a jury, or, perhaps, selling his client short.
Years ago, I heard the following story. I don't know whether it is true, but it has stuck with me. A lawyer once asked a jury for $400,000 for injuries his client suffered. The jury deliberated and returned precisely the sum asked for. The lawyer was triumphant.
Years later, that same lawyer was an a social event.
"Remember me?", someone asked, tugging at his arm. "I was on that jury that gave you $400,000."
"Yes," I recall, the lawyer beamed. "I want to thank you for a job well done."
"One thing has always bothered me about that case," the juror said.
"What's that?"
"You asked for $400,000. We were prepared to award millions, but we figured you knew what were doing."
The lawyer's smile went from graciously given to defensive.
So why, knowing all this, do lawyers resort to ad damnum advertising? Please say it's not the economy. There's something wrong promising Porsches when Fords are so hard to purchase. Sure, eye-catching headlines might make the phone ring. But to what end?
So I was surprised when I saw the newspaper accounts of these claims.
"What's up?" I asked a friend who seems to know things beyond my ken. "These claims are overstated."
"I think the phone has been slow over there," was the response I got. And it hit me all at once: This is ad damnum advertising.
The ad damnum clause in a complaint is where the lawyer asks for what he or she wants as a result of the lawsuit. Many state courts have jurisdictionally significant amounts that must be plead. In Connecticut, for example, if you want a jury trial in Superior Court, you must ask for at leas $15,000. In a federal diversity action between parties in different states, you must ask for at least $75,000.
But 1983 claims raise federal questions, and when they are filed in state court no amount in controversy need be pleaded.
I am not a big fan of ad damnum advertising. Sure, it makes a reporter's eyes pop. But for all the wrong reasons. It's like Babe Ruth pointing to center field before stepping up to the plate. Except, in the case of a police misconduct lawsuit, the plaintiff is more likely to strike out than hit a home run.
I've had very fluky verdicts in my legal career. In one case against prison guards for beating a prisoner in a failed escape attempt, a jury awarded my client $2.1 million. We would have settled the case for $20,000. Indeed, we were prepared to settle the case for that sum but Attorney General Richard Blumenthal personally vetoed the settlement. Obviously, I was happier with the jury award, although, to be honest, never in a million years would I have foreseen that verdict.
In another case alleging police misconduct, my clients wanted millions for the estate of their teenage son. In this case, police appeared at the boy's home in response to a call about a suicidal youth. After a brief inspection of the home, they left the child home alone. Half an hour later, the boy's father came home to find his son dead from a self-inflicted shotgun blast. The defendants offered hundreds of thousands of dollars after the jury found the cops erred. (This was not a 1983 claim, it arose under state-law negligence.) The estate, represented by the parents of the boy, asked for millions. The jury returned a verdict of $1 dollar. This, too, was a result I never would have foreseen.
Juries can be fickle. They decide cases based sometimes on what the lawyers suggest, but, I suspect, most often based on their collective sense of what justice requires. A lawyer who asks for too much or too little risks offending a jury, or, perhaps, selling his client short.
Years ago, I heard the following story. I don't know whether it is true, but it has stuck with me. A lawyer once asked a jury for $400,000 for injuries his client suffered. The jury deliberated and returned precisely the sum asked for. The lawyer was triumphant.
Years later, that same lawyer was an a social event.
"Remember me?", someone asked, tugging at his arm. "I was on that jury that gave you $400,000."
"Yes," I recall, the lawyer beamed. "I want to thank you for a job well done."
"One thing has always bothered me about that case," the juror said.
"What's that?"
"You asked for $400,000. We were prepared to award millions, but we figured you knew what were doing."
The lawyer's smile went from graciously given to defensive.
So why, knowing all this, do lawyers resort to ad damnum advertising? Please say it's not the economy. There's something wrong promising Porsches when Fords are so hard to purchase. Sure, eye-catching headlines might make the phone ring. But to what end?
Prison Rape: Time For DOJ To Act
According to statistics from the federal Bureau of Justice, more than 100,000 prisoners are raped each year while in custody. The predators are, more often than not, prison guards. As many as 4.5 percent of all detainees complained of sexual harassment behind bars last year.
In 2003, Congress commissioned a study of prison rape and what to do about it. The Prison Rape Elimination Act of 2003 called for creation of a body called the National Prison Rape Elimination Coalition. It took six years, but last June, the commission finally issued its report. It now sits on the desk of Attorney General Eric Holder.
First, the good news: Prison rape is not inevitable. The commission reports that in well run, accountable and transparent institutions, rape has all but been eliminated. What is required is an institutional commitment to zero tolerance of rape. That includes a written policy notifying all of their rights and responsibilities. It also includes requiring all employees and volunteers to report any suspicious activity. The commission calls for national standards with audits of compliance of each institution every three years.
It also requires identifying and managing risk factors: Those prisoners particularly at risk include the age and physical size of the prisoner, as well as whether the prisoner is entering prison for the first time.
The recommendations and report generated by the Commission were reported to the Bureau of Justice, an arm of the Justice Department. Attorney General Holder is now responsible for promulgating standards.
Prison officials are pushing Holder not to adopt the regulations. They fear a loss of control of their institutions, and that new standards and the transparency required to enforce them will make their jobs more difficult. Such fear are misplaced.
"Sexual abuse in detention is a human rights crisis in this country. Reform is urgent, and the commission makes clear how to achieve it," write David Kaiser and Lovisa Stannow in the most recent edition of The New York Review of Books. (March 25, 2010, "How to Stop Prison Rape".)
Holder has until June 23, 2010 to review, amend and promulgate regulations that will become the new standard for the nation's federal prisons. Prison officials are trying to force delay. Holder should be urged to forge on.
Prisoners too often report being intimidated and terrorized by guards. "Remember if you tell anyone one anything, you'll have to look over your shoulder for the rest of your life," one prisoner was told recently.
Will this prisoner run the gauntlet of administrative exhaustion now required by the Prison Litigation Reform Act? This law requires prisoners to exhaust such internal prison administrative procedures as are available before turning to the federal courts for relief. But the acts real accomplishment is to silence prisoners by forcing them smack into the jaws of the fox at the cell door. Those prisoners who are courageous enough to bring a claim to the federal courts face hostile juries, niggardly fee awards for counsel, and the the various immunities judges have created to protect the powerful. Why does the right never bellow when "judicial activism" yields immunity from suit?
Prison rape can be eliminated. What is lacking, apparently, is the will to do what is necessary by at least some prison administrators. Let's hope Mr. Holder's commitment to justice for all does not end at the prison door.
It is not impossible to stop prison rape. That is the conclusion of a
The most recent edition of The New York Review of Books
In 2003, Congress commissioned a study of prison rape and what to do about it. The Prison Rape Elimination Act of 2003 called for creation of a body called the National Prison Rape Elimination Coalition. It took six years, but last June, the commission finally issued its report. It now sits on the desk of Attorney General Eric Holder.
First, the good news: Prison rape is not inevitable. The commission reports that in well run, accountable and transparent institutions, rape has all but been eliminated. What is required is an institutional commitment to zero tolerance of rape. That includes a written policy notifying all of their rights and responsibilities. It also includes requiring all employees and volunteers to report any suspicious activity. The commission calls for national standards with audits of compliance of each institution every three years.
It also requires identifying and managing risk factors: Those prisoners particularly at risk include the age and physical size of the prisoner, as well as whether the prisoner is entering prison for the first time.
The recommendations and report generated by the Commission were reported to the Bureau of Justice, an arm of the Justice Department. Attorney General Holder is now responsible for promulgating standards.
Prison officials are pushing Holder not to adopt the regulations. They fear a loss of control of their institutions, and that new standards and the transparency required to enforce them will make their jobs more difficult. Such fear are misplaced.
"Sexual abuse in detention is a human rights crisis in this country. Reform is urgent, and the commission makes clear how to achieve it," write David Kaiser and Lovisa Stannow in the most recent edition of The New York Review of Books. (March 25, 2010, "How to Stop Prison Rape".)
Holder has until June 23, 2010 to review, amend and promulgate regulations that will become the new standard for the nation's federal prisons. Prison officials are trying to force delay. Holder should be urged to forge on.
Prisoners too often report being intimidated and terrorized by guards. "Remember if you tell anyone one anything, you'll have to look over your shoulder for the rest of your life," one prisoner was told recently.
Will this prisoner run the gauntlet of administrative exhaustion now required by the Prison Litigation Reform Act? This law requires prisoners to exhaust such internal prison administrative procedures as are available before turning to the federal courts for relief. But the acts real accomplishment is to silence prisoners by forcing them smack into the jaws of the fox at the cell door. Those prisoners who are courageous enough to bring a claim to the federal courts face hostile juries, niggardly fee awards for counsel, and the the various immunities judges have created to protect the powerful. Why does the right never bellow when "judicial activism" yields immunity from suit?
Prison rape can be eliminated. What is lacking, apparently, is the will to do what is necessary by at least some prison administrators. Let's hope Mr. Holder's commitment to justice for all does not end at the prison door.
It is not impossible to stop prison rape. That is the conclusion of a
The most recent edition of The New York Review of Books
Friday, March 12, 2010
Serendipity?
A little more than a week ago, I wrote about the glacial pace of things in the District Court of Connecticut. I wrote about it in the context of President Obama's nomination of United States District Court Judge Robert N. Chatigny to the Second Circuit.
Here's what I wrote:
"But Chatigny did serve as chief judge of the District for a good many years. During this period, there was murmuring about the District's "plan". All cases were to be trial ready within 18 months. The plan failed. All we got was a requirement for planning reports, teleconferences and "judicial management," an oxymoron. More make work and still long delays. Trials are vanishing, motion practice has increased. Delay is still the norm."
Since that piece appeared, I have received four rulings on motions and or appeals -- four. Perhaps it is mere serendipity. Or perhaps folks are pitching in to help a friend. Whatever it is, I am grateful to have a logjam break.
Here's what I wrote:
"But Chatigny did serve as chief judge of the District for a good many years. During this period, there was murmuring about the District's "plan". All cases were to be trial ready within 18 months. The plan failed. All we got was a requirement for planning reports, teleconferences and "judicial management," an oxymoron. More make work and still long delays. Trials are vanishing, motion practice has increased. Delay is still the norm."
Since that piece appeared, I have received four rulings on motions and or appeals -- four. Perhaps it is mere serendipity. Or perhaps folks are pitching in to help a friend. Whatever it is, I am grateful to have a logjam break.
Thursday, March 11, 2010
About That Recusal List ...
The following paragraph leaped out at me as I was reading United States District Court Judge Robert N. Chatigny's questionnaire submitted on behalf of his nomination to a seat on the Second Circuit.
"Under our Court's automatic recusal system, the Clerk's Office maintains a list of persons and entities whose involvement in a case triggers my recusal without action on my part. The list, which I update regularly, consists of entities in which I have a financial interest requiring automatic disqualification, as well as clients I represented in private practice and certain lawyers, including members of my former law law firm," the judge wrote on page 22 of his 32-page response.
Many years ago, several of my cases were transferred from Judge Chatigny's docket "in the interests of justice." Since then, I've had no case assigned to him. I've never complained about that. And I am not complaining now.
But I was struck by reference to the "Court's automatic recusal system" and the notion that "certain lawyers" are on the list. I wanted to find out who else was on Judge Chatigny's banishment list. So I had a staff member call the court to request a copy. We were informed this morning that the list is not open to the public. Our Freedom of Information Act request will leave the office this afternoon.
I've often wondered why judges get the right to decide based which lawyers cases they will not preside over and why a similar right is not extended to lawyers: Shouldn't the door swing both ways? Don't lawyers also have the sense that there are some judges with whom they'd rather not deal? And doesn't that compromise a lawyer's effectiveness?
Of course, that would result in forum shopping, you say. Yes, I suppose it would. But when you leave to the forum a unilateral, secret and unreviewable right to decide whether to hear a case, something is wrong.
"Under our Court's automatic recusal system, the Clerk's Office maintains a list of persons and entities whose involvement in a case triggers my recusal without action on my part. The list, which I update regularly, consists of entities in which I have a financial interest requiring automatic disqualification, as well as clients I represented in private practice and certain lawyers, including members of my former law law firm," the judge wrote on page 22 of his 32-page response.
Many years ago, several of my cases were transferred from Judge Chatigny's docket "in the interests of justice." Since then, I've had no case assigned to him. I've never complained about that. And I am not complaining now.
But I was struck by reference to the "Court's automatic recusal system" and the notion that "certain lawyers" are on the list. I wanted to find out who else was on Judge Chatigny's banishment list. So I had a staff member call the court to request a copy. We were informed this morning that the list is not open to the public. Our Freedom of Information Act request will leave the office this afternoon.
I've often wondered why judges get the right to decide based which lawyers cases they will not preside over and why a similar right is not extended to lawyers: Shouldn't the door swing both ways? Don't lawyers also have the sense that there are some judges with whom they'd rather not deal? And doesn't that compromise a lawyer's effectiveness?
Of course, that would result in forum shopping, you say. Yes, I suppose it would. But when you leave to the forum a unilateral, secret and unreviewable right to decide whether to hear a case, something is wrong.
Senate Derails "Chatigny Express"
I should be delighted by President Obama’s nomination of Robert Chatigny to the United States Court of Appeals for the Second Circuit. The judge appears virulently opposed to the death penalty. He appears to think that sex offender registration laws are too harsh and punitive. He previously represented people accused of crimes. One would think I would be dancing in the streets with glee.
Instead, I am relieved that the United States Senate Judiciary Committee derailed the express train that was to rush the judge through the confirmation process before anyone had time to ask meaningful questions.
I am wary of Judge Chatigny, who has served for sixteen years as a United States District Judge. I am wary because there is a surreal Strangelovian feel to proceedings in his courtroom. His ethos is managerial, rather than judicial.
I am not alone in having misgivings. Folks across the state have thanked me since writing about him. But these folks don’t want to get involved. I am not sure what they are afraid of.
Consider the lightning quick pace of his confirmation hearing. He reports on his questionnaire submitted to the Judiciary Committee that in July 2009, Senator Dodd called to let him know he was considering nominating Chatigny. Just before Thanksgiving, the Office of Legal Policy of the Department of Justice called the judge to let him know he was in the hunt. On January 22, 2010, Chatigny traveled to D.C. for an interview at the D.O.J. The president nominated him on February 24, 2010, and then, presto chango, his confirmation was set for March 10. That’s a two-week turn around.
His handlers in the administration knew they had to act quick with this nomination. If they could spin this just the right way, the judge might be able to avoid troubling questions about his handling of the Michael Ross matter. The judge was unanimously rated well qualified by the American Bar Association, after all.
But questions did emerge. Mike O’Hare of the Chief State’s Attorney’s Office wrote a 12-page letter summarizing his reasons to believe that Chatigny is unfit to serve. O’Hare and appellate ace Harry Weller have apparently volunteered to testify before the committee about the judge. They believe the judge has shortcomings as a neutral and detached magistrate.
I have a suggestion for the Senate. I suggest that the Senate arrange to have a Connecticut inmate named Ramon Lopez brought before the committee to testify. Mr. Lopez is an inmate in the custody of the Department of Corrections. He has thus far filed four habeas corpus petitions of his own in state court. He has also filed a series of pro se lawsuits. Mr. Lopez apparently has a lot on his mind. I am sure he will share it.
According to Judge Chatigny, Mr. Lopez wrote him a letter about Michael Ross. Mr. Lopez contended that Ross had been brainwashed to abandon further collateral attacks. Experienced practitioners know to take inmate letters with a grain of salt. Desperate men say desperate things. And pro se litigants of the jailhouse lawyer variety sometimes get it wrong.
But the judge was green at the time. In his thirteen years of practice, a practice he notes was devoted one hundred percent to litigation, the judge had never tried a jury case to a verdict. Never. “I started trial as sole or lead counsel in a number of cases, but all were settled or dismissed,” he writes on his Senate questionnaire.
I don’t know what to make of that. Is the judge a cerebral version of Gerry Spence, the famed trial lawyer who claims never to have lost a criminal trial? A litigator who doesn’t go to trial sounds a lot like a surgeon who doesn’t operate. Or a judge who knows what outcome is just, if only the parties would get out of the way.
I’m glad Mike O’Hare raised questions about this nomination. I hope the Senate takes them seriously, and that it holds meaningful evidentiary hearings on the Ross matter. Opposed as I am to the death penalty, I dread more the specter of judges commandeering litigation to serve a managerial style that should remain foreign to the adversarial system of justice.
Reprinted courtesy of the Connecticut Law Tribune.
Instead, I am relieved that the United States Senate Judiciary Committee derailed the express train that was to rush the judge through the confirmation process before anyone had time to ask meaningful questions.
I am wary of Judge Chatigny, who has served for sixteen years as a United States District Judge. I am wary because there is a surreal Strangelovian feel to proceedings in his courtroom. His ethos is managerial, rather than judicial.
I am not alone in having misgivings. Folks across the state have thanked me since writing about him. But these folks don’t want to get involved. I am not sure what they are afraid of.
Consider the lightning quick pace of his confirmation hearing. He reports on his questionnaire submitted to the Judiciary Committee that in July 2009, Senator Dodd called to let him know he was considering nominating Chatigny. Just before Thanksgiving, the Office of Legal Policy of the Department of Justice called the judge to let him know he was in the hunt. On January 22, 2010, Chatigny traveled to D.C. for an interview at the D.O.J. The president nominated him on February 24, 2010, and then, presto chango, his confirmation was set for March 10. That’s a two-week turn around.
His handlers in the administration knew they had to act quick with this nomination. If they could spin this just the right way, the judge might be able to avoid troubling questions about his handling of the Michael Ross matter. The judge was unanimously rated well qualified by the American Bar Association, after all.
But questions did emerge. Mike O’Hare of the Chief State’s Attorney’s Office wrote a 12-page letter summarizing his reasons to believe that Chatigny is unfit to serve. O’Hare and appellate ace Harry Weller have apparently volunteered to testify before the committee about the judge. They believe the judge has shortcomings as a neutral and detached magistrate.
I have a suggestion for the Senate. I suggest that the Senate arrange to have a Connecticut inmate named Ramon Lopez brought before the committee to testify. Mr. Lopez is an inmate in the custody of the Department of Corrections. He has thus far filed four habeas corpus petitions of his own in state court. He has also filed a series of pro se lawsuits. Mr. Lopez apparently has a lot on his mind. I am sure he will share it.
According to Judge Chatigny, Mr. Lopez wrote him a letter about Michael Ross. Mr. Lopez contended that Ross had been brainwashed to abandon further collateral attacks. Experienced practitioners know to take inmate letters with a grain of salt. Desperate men say desperate things. And pro se litigants of the jailhouse lawyer variety sometimes get it wrong.
But the judge was green at the time. In his thirteen years of practice, a practice he notes was devoted one hundred percent to litigation, the judge had never tried a jury case to a verdict. Never. “I started trial as sole or lead counsel in a number of cases, but all were settled or dismissed,” he writes on his Senate questionnaire.
I don’t know what to make of that. Is the judge a cerebral version of Gerry Spence, the famed trial lawyer who claims never to have lost a criminal trial? A litigator who doesn’t go to trial sounds a lot like a surgeon who doesn’t operate. Or a judge who knows what outcome is just, if only the parties would get out of the way.
I’m glad Mike O’Hare raised questions about this nomination. I hope the Senate takes them seriously, and that it holds meaningful evidentiary hearings on the Ross matter. Opposed as I am to the death penalty, I dread more the specter of judges commandeering litigation to serve a managerial style that should remain foreign to the adversarial system of justice.
Reprinted courtesy of the Connecticut Law Tribune.
Tuesday, March 9, 2010
A Letter To Barack Obama: Virginia, RSOL
Dear President Obama:
When you took office you promised to give a voice to the voiceless. You spoke of the audacity of hope. You promised to include those often forgotten and despised. I am appealing to you honor those promises now.
This past weekend you appeared on a television show called America's Most Wanted. You met with the show's creator on national television and listened to him call for yet more laws designed to get tough on crime. As you know, John Walsh is a tireless advocate for crime victims. He lost his own son to murder decades ago.
Immediately after appearing on America's Most Wanted, you were contacted by a group called Virginia Reform Offender Laws. The group asked for a meeting to talk about a class of victims who have no media spokesperson and who garner little sympathy. Members of the group would like to sit down and discuss with you the other America, those stigmatized for life as a result of conduct that often wasn't even criminal a century ago. There are hundreds of thousands of Americans living in fear of the shadows cast by laws that fail to draw meaningful distinctions between those who are a risk of future harm and the overwhelming majority of folks who simply make mistakes.
John Walsh and America's Most Wanted are powerful tools in what is often an hysterical over-reaction to isolate acts of horror. When a young woman is abducted, raped and murdered by a stranger, the nation rightly grieves. But tapping that grief for purposes of stiffing moral panic poorly serves the nation. Many of us were surprised that you agreed to appear on a television show that panders in fear and unresolved rage.
Virginia's, Reform Sex Offender Laws cannot offer you a national forum. There is no television show dedicated to Americans forgotten and scorned by the criminal justice system. But these other Americans are organizing in each and every state in the union to educate lawmakers that the sex offender hysteria is destroying lives. Virginia's group is among the most sophisticated in the nation: In recent weeks, the group has provided lawmakers in Virgina with a recent publication about the weaknesses in our laws regarding sex offenses.
The other America still looks to you for leadership, Mr. President. When the Virginia group called the White House earlier in the week to request a meeting, a promise was made to convey the request and to get back to the group. I am urging you to take a little time to sit down with representatives and hear what they have to say. You can still make a difference for the voiceless folks looking to you for hope. Please do not scorn them. That is the easy and convenient response. But it is a response that fails to look beyond appearances.
When you took office you promised to give a voice to the voiceless. You spoke of the audacity of hope. You promised to include those often forgotten and despised. I am appealing to you honor those promises now.
This past weekend you appeared on a television show called America's Most Wanted. You met with the show's creator on national television and listened to him call for yet more laws designed to get tough on crime. As you know, John Walsh is a tireless advocate for crime victims. He lost his own son to murder decades ago.
Immediately after appearing on America's Most Wanted, you were contacted by a group called Virginia Reform Offender Laws. The group asked for a meeting to talk about a class of victims who have no media spokesperson and who garner little sympathy. Members of the group would like to sit down and discuss with you the other America, those stigmatized for life as a result of conduct that often wasn't even criminal a century ago. There are hundreds of thousands of Americans living in fear of the shadows cast by laws that fail to draw meaningful distinctions between those who are a risk of future harm and the overwhelming majority of folks who simply make mistakes.
John Walsh and America's Most Wanted are powerful tools in what is often an hysterical over-reaction to isolate acts of horror. When a young woman is abducted, raped and murdered by a stranger, the nation rightly grieves. But tapping that grief for purposes of stiffing moral panic poorly serves the nation. Many of us were surprised that you agreed to appear on a television show that panders in fear and unresolved rage.
Virginia's, Reform Sex Offender Laws cannot offer you a national forum. There is no television show dedicated to Americans forgotten and scorned by the criminal justice system. But these other Americans are organizing in each and every state in the union to educate lawmakers that the sex offender hysteria is destroying lives. Virginia's group is among the most sophisticated in the nation: In recent weeks, the group has provided lawmakers in Virgina with a recent publication about the weaknesses in our laws regarding sex offenses.
The other America still looks to you for leadership, Mr. President. When the Virginia group called the White House earlier in the week to request a meeting, a promise was made to convey the request and to get back to the group. I am urging you to take a little time to sit down with representatives and hear what they have to say. You can still make a difference for the voiceless folks looking to you for hope. Please do not scorn them. That is the easy and convenient response. But it is a response that fails to look beyond appearances.
Monday, March 8, 2010
USA v. Botti: A Government Without Balls
The Government spoke from the well of a Connecticut court the other day. A spindly prosecutor stood up and told a jury that the accused had paid a local mayor tens of thousands of dollars in bribes. He had the proof. He was going to show the jury.
"James Botti bought public officials as often as he bought automobiles. Like a nice car, Mark Lauretti didn't come cheaply," the prosecution said. Botti paid the bribes to gain approval to build restaurants and a bank, the Government said.
Here's the rub: The Government never charged the mayor with receipt of the bribes. After years of investigations and hundreds of thousands of dollars, if not millions, this is the best the Government can do: Stand in the well of a court and malign an uncharged official with complicity in a crime. It is sheer cowardice.
Lawyers enjoy immunity for the statements they make in open court. You can say anything you like without fear of defamation so long as it is on the record. But this kind of talk is cheap. You don't expoect cheap sensationalism to be the Government's currency at trial: At least it is not supposed to be. Prosecutors, we like to pretend, do justice. But not in this case.
Throughout the Botti prosecution the Government was careful not to disclose the name of the man Botti is alleged to have bribed. The public justification for this was a desire not to compromise an ongoing investigation. It was also to avoid harm to the reputation of an uncharged man.
But today, when the press was present, and when immunity was firmly in place, the Government cast stones. It was a gutless and ball-less maneuver. And it might just be what Mr. Botti needs to jump start his defense.
The Justice Department has been on a tear for the past decade in Connecticut, all but serving as an unelected and unaccountable oversight body for state and local government officials. Gov. John Rowland has done time. So has the mayor of Waterbury, and the mayor of Bridgeport. The good boys and girls in Justice were having a good time knocking off state and local politicians.
Then they set their sites on Mayor Lauretti of Shelton, and they came up empty. To justify the great time and expense of the investigation, they needed a sacrificial defendant: So they picked Botti, and charged him with bribing a public official the Government lacks the evidence to indict.
Botti's lawyer, Willie Dow, is a consummate insider, and is generally too polite to put things bluntly. I hope he rethinks that in this case. The Government is behaving like a ball-less bully in the Botti case. It strikes at a man who cannot strike back from the well of a court. It seeks to justify a wasted effort by charging half a crime.
The prosecution of Botti is a sick joke. Botti broke the law with another? Then charge the other! The opening statements today sound a lot like a bad joke: "Did you hear about the guy who was caught in bed cheating on his wife with some floozy? His wife really let the other woman have it."
"What'd she do to the guy?" you might ask.
"Nothing. She said she couldn't prove he was really doing her."
"James Botti bought public officials as often as he bought automobiles. Like a nice car, Mark Lauretti didn't come cheaply," the prosecution said. Botti paid the bribes to gain approval to build restaurants and a bank, the Government said.
Here's the rub: The Government never charged the mayor with receipt of the bribes. After years of investigations and hundreds of thousands of dollars, if not millions, this is the best the Government can do: Stand in the well of a court and malign an uncharged official with complicity in a crime. It is sheer cowardice.
Lawyers enjoy immunity for the statements they make in open court. You can say anything you like without fear of defamation so long as it is on the record. But this kind of talk is cheap. You don't expoect cheap sensationalism to be the Government's currency at trial: At least it is not supposed to be. Prosecutors, we like to pretend, do justice. But not in this case.
Throughout the Botti prosecution the Government was careful not to disclose the name of the man Botti is alleged to have bribed. The public justification for this was a desire not to compromise an ongoing investigation. It was also to avoid harm to the reputation of an uncharged man.
But today, when the press was present, and when immunity was firmly in place, the Government cast stones. It was a gutless and ball-less maneuver. And it might just be what Mr. Botti needs to jump start his defense.
The Justice Department has been on a tear for the past decade in Connecticut, all but serving as an unelected and unaccountable oversight body for state and local government officials. Gov. John Rowland has done time. So has the mayor of Waterbury, and the mayor of Bridgeport. The good boys and girls in Justice were having a good time knocking off state and local politicians.
Then they set their sites on Mayor Lauretti of Shelton, and they came up empty. To justify the great time and expense of the investigation, they needed a sacrificial defendant: So they picked Botti, and charged him with bribing a public official the Government lacks the evidence to indict.
Botti's lawyer, Willie Dow, is a consummate insider, and is generally too polite to put things bluntly. I hope he rethinks that in this case. The Government is behaving like a ball-less bully in the Botti case. It strikes at a man who cannot strike back from the well of a court. It seeks to justify a wasted effort by charging half a crime.
The prosecution of Botti is a sick joke. Botti broke the law with another? Then charge the other! The opening statements today sound a lot like a bad joke: "Did you hear about the guy who was caught in bed cheating on his wife with some floozy? His wife really let the other woman have it."
"What'd she do to the guy?" you might ask.
"Nothing. She said she couldn't prove he was really doing her."
Obama on "Most Wanted"? Ugh!
Please tell me it's not true. Tell me President Obama did not appear on the 1000th edition of America's Most Wanted. Tell me he did not succumb to the fear-mongering hysteria that seeks to transform worst-cases scenarios into norms of public policy.
But it is true. The president sat for an interview with one of the angriest and most self-righteous men in the United States, John Walsh. He's the father of Adam Walsh, a little boy abducted and murdered several decades ago. Since then, we've all felt the pain of the Walsh family.
Is it only in America that we transform those undone by grief into celebrities?
Walsh is a hero to many Americans. His son was abducted and killed by a stranger. Because this should never have happened, Walsh wants to make sure it never happens again. He's been instrumental in playing to the moral panic that has made our nation's over-inclusive and draconian sex offender laws the target of international criticism. Human Rights Watch has taken note; last summer the Economist carried a front page story of our war against the very forms of desire we stoke with advertising and a culture drenched in cheap, easy and vulgar sensuality.
President Obama's decision to appear on America's Most Wanted was not the reasoned and measured response of a commander in chief committed to rule of reason. Obama sat with Walsh and was lectured by the talk-show host about the need to take DNA samples of every person accused of a felony. The president listened to a man who has lent his son's name to controversial federal legislation that has been declared unconstitutional in some federal courts and is destined for a Supreme Court challenge. What was Obama trying to accomplish with this appearance?
Obama promised change. But it's looking more and more like the same old stuff. Pandering to fear to keep the plebeians at bay; bailing out those too big to fail to keep the elite fat and sassy; promising to close Guantanamo, but now folding in the face of those critics who want men tried in secret. It's looking more and more like the same old stuff in D.C.
But it is true. The president sat for an interview with one of the angriest and most self-righteous men in the United States, John Walsh. He's the father of Adam Walsh, a little boy abducted and murdered several decades ago. Since then, we've all felt the pain of the Walsh family.
Is it only in America that we transform those undone by grief into celebrities?
Walsh is a hero to many Americans. His son was abducted and killed by a stranger. Because this should never have happened, Walsh wants to make sure it never happens again. He's been instrumental in playing to the moral panic that has made our nation's over-inclusive and draconian sex offender laws the target of international criticism. Human Rights Watch has taken note; last summer the Economist carried a front page story of our war against the very forms of desire we stoke with advertising and a culture drenched in cheap, easy and vulgar sensuality.
President Obama's decision to appear on America's Most Wanted was not the reasoned and measured response of a commander in chief committed to rule of reason. Obama sat with Walsh and was lectured by the talk-show host about the need to take DNA samples of every person accused of a felony. The president listened to a man who has lent his son's name to controversial federal legislation that has been declared unconstitutional in some federal courts and is destined for a Supreme Court challenge. What was Obama trying to accomplish with this appearance?
Obama promised change. But it's looking more and more like the same old stuff. Pandering to fear to keep the plebeians at bay; bailing out those too big to fail to keep the elite fat and sassy; promising to close Guantanamo, but now folding in the face of those critics who want men tried in secret. It's looking more and more like the same old stuff in D.C.
Sunday, March 7, 2010
A Unit Cost Theory Of Criminal Defense
Robert Wilson was charged with conspiring to commit mail fraud and aiding and abetting another to make false statements on a tax return. When he was arrested, he claimed he was broke. A public defender was appointed, and, after a six-week trial, Wilson was acquitted. Only it turns out that Wilson wasn't so broke after all. As a result, the trial court ordered that he repay the government some $52,000 for the cost of his defense.
The unit cost of defending against allegations of criminal misconduct are typically hard to calculate. Private counsel don't submit bills for public review. Institutional public defenders don't submit affidavits for payments on their cases as the cost of their services are sunk costs: paid regardless of who they represent and whether they go to trial. I am unaware of any systematic review of vouchers for payment submitted by counsel appointed under the Criminal Justice Act.
In the Wilson case, the court determined that the defendant was one of the world's foremost experts on antique weapons, and that, as such, he has a great earning capacity. It ordered him to repay the Public Defenders the costs of his own defense.
Most members of the middle class would be wiped out by a $52,000 legal bill. Like Wilson, they will not have the funds ready at hand and will have to pay them over time. A client convicted of a felony typically loses the ability to make payments on time. Hence, the practice in criminal defense of getting payments up front. I can't pay my staff and expenses with promises.
I am no fan of the American Rule, especially in the context of a criminal defense. When the government charges a person with a crime, the work of police officers, prosecutors, experts and investigators are all born by taxpayers. The full weight of the government, with its almost magical ability to finance just about anything by means of taxation, is brought to bear on an individual. Who can match the government's spending and resources in defending a crime? Almost no one.
The Wilson decision does not recite the underlying facts of the case prosecuted. But if the government is going to spend limited resources prosecuting a non-violent crime, the government should also be required to bear the cost of defense. In an era of overcriminalization we are all criminals from time to time. The only way to reign in an aggressive government is to require it to bear the costs of the fights it picks. The government should be required to calculate the unit cost of each prosecution: What does it cost to bring an action? And I am speaking here of both the prosecution and defense. Perhaps if Congress were required to count the cost of all the new laws it passes year by year we'd have a little less prosecution of marginal conduct.
At the very least, when the government loses at a criminal trial, it ought to be required to reimburse the defendant for the cost of defense. Otherwise, we make a mockery of the presumption of innocence. We tell folks that they are innocent unless proven guilty and then send them to the poorhouse to vindicate these rights. Is this what is meant when folks talk about the process being the punishment?
Hat Tip: Crime and Federalism: http://www.ca6.uscourts.gov/opinions.pdf/10a0057p-06.pdf
The unit cost of defending against allegations of criminal misconduct are typically hard to calculate. Private counsel don't submit bills for public review. Institutional public defenders don't submit affidavits for payments on their cases as the cost of their services are sunk costs: paid regardless of who they represent and whether they go to trial. I am unaware of any systematic review of vouchers for payment submitted by counsel appointed under the Criminal Justice Act.
In the Wilson case, the court determined that the defendant was one of the world's foremost experts on antique weapons, and that, as such, he has a great earning capacity. It ordered him to repay the Public Defenders the costs of his own defense.
Most members of the middle class would be wiped out by a $52,000 legal bill. Like Wilson, they will not have the funds ready at hand and will have to pay them over time. A client convicted of a felony typically loses the ability to make payments on time. Hence, the practice in criminal defense of getting payments up front. I can't pay my staff and expenses with promises.
I am no fan of the American Rule, especially in the context of a criminal defense. When the government charges a person with a crime, the work of police officers, prosecutors, experts and investigators are all born by taxpayers. The full weight of the government, with its almost magical ability to finance just about anything by means of taxation, is brought to bear on an individual. Who can match the government's spending and resources in defending a crime? Almost no one.
The Wilson decision does not recite the underlying facts of the case prosecuted. But if the government is going to spend limited resources prosecuting a non-violent crime, the government should also be required to bear the cost of defense. In an era of overcriminalization we are all criminals from time to time. The only way to reign in an aggressive government is to require it to bear the costs of the fights it picks. The government should be required to calculate the unit cost of each prosecution: What does it cost to bring an action? And I am speaking here of both the prosecution and defense. Perhaps if Congress were required to count the cost of all the new laws it passes year by year we'd have a little less prosecution of marginal conduct.
At the very least, when the government loses at a criminal trial, it ought to be required to reimburse the defendant for the cost of defense. Otherwise, we make a mockery of the presumption of innocence. We tell folks that they are innocent unless proven guilty and then send them to the poorhouse to vindicate these rights. Is this what is meant when folks talk about the process being the punishment?
Hat Tip: Crime and Federalism: http://www.ca6.uscourts.gov/opinions.pdf/10a0057p-06.pdf
Trial Lawyers Need Not Apply
Lawyers come in all shapes and sizes. There are professors, transactional types, corporate counsel, litigators who can move a mountain of paper from the safety of their office and a plethora of other paperpushers. And there are trial lawyers: men and women who excel at the mind-to-mind combat that takes place only in a courtroom.
Call me naive, but when it comes to the selection of a judge, I'd prefer a trial lawyer every time. But that appears not to be President Obama's choice. The ranks of the candidates being whispered about in Connecticut is almost devoid of experienced trial lawyers.
Recently, the president nominated United States District Judge Robert Chatigny for a seat on the Second Circuit Court of Appeals. It is an uninspired choice. Chatigny has 16-plus years experience as a trial judge, but, as near as I can tell, he never tried cases as a practitioner. I've tried cases before him, and found him wooden and foreign to the forum.
It now turns out that another name has surfaced for the Second Circuit: Susan Carney, a graduate of Harvard Law and deputy corporation counsel at Yale. I don't know her, but what I read about her is impressive. She is smart, capable, and has a broad range of experience. But, sadly, it appears that little or none of that experience is in a courtroom. Why, I wonder, does a president think it makes sense to throw tourists into the maelstrom of a court?
I understand that appellate court judges are different. It may be that courtroom experience is unnecessary to excel in such a forum, although I have my doubts. Appellate court judges have adopted all sorts of legal doctrines to avoid meaningful confrontation of dysfunction at trial: Ask any defendant who lost an appeal after proving error only to have an appellate panel tell him the error was harmless. The only way one really gets a feel for the reality of going to trial is by going to trial.
Talk now turns in Connecticut to filling potential vacancies in the ranks of the District Courts, the trial level courts. According to the Connecticut Law Tribune, several names are on the lips of court watchers.
Among them are Joette Katz, a sitting member of the state's Supreme Court; Aaron Bayer, a former Connecticut deputy attorney general now practicing in a white-shoe private firm; and, Nora Dannehy, the acting U.S. Attorney. All three are extremely intelligent and accomplished lawyers. But only Dannehy has substantial trial experience. That should make her the top contender on this list.
The list of contenders for the District Court is hardly the sort of change we were led to expect from Obama. The president is trolling in the same old backwaters for judges: state-court trial judges, government lawyers -- whether prosecutors or civil attorneys general; and, kings of the biglaw billable. This is hardly the stuff of neopopulism.
I'd like to see the president do something creative and reach across the aisle. Instead of naming candidates from government and biglaw, why not try someone who can bring a wealth of criminal defense and plaintiff's experience to the bench? Why isn't the president giving William Bloss of Connecticut's Koskoff, Koskoff and Bieder, a look? Bloss is brilliant, fair-minded and not so far outside the mainstream as to make waves. Read more about him here: http://www.koskoff.com/lawyers/detail.cfm?pID=36.
Call me naive, but when it comes to the selection of a judge, I'd prefer a trial lawyer every time. But that appears not to be President Obama's choice. The ranks of the candidates being whispered about in Connecticut is almost devoid of experienced trial lawyers.
Recently, the president nominated United States District Judge Robert Chatigny for a seat on the Second Circuit Court of Appeals. It is an uninspired choice. Chatigny has 16-plus years experience as a trial judge, but, as near as I can tell, he never tried cases as a practitioner. I've tried cases before him, and found him wooden and foreign to the forum.
It now turns out that another name has surfaced for the Second Circuit: Susan Carney, a graduate of Harvard Law and deputy corporation counsel at Yale. I don't know her, but what I read about her is impressive. She is smart, capable, and has a broad range of experience. But, sadly, it appears that little or none of that experience is in a courtroom. Why, I wonder, does a president think it makes sense to throw tourists into the maelstrom of a court?
I understand that appellate court judges are different. It may be that courtroom experience is unnecessary to excel in such a forum, although I have my doubts. Appellate court judges have adopted all sorts of legal doctrines to avoid meaningful confrontation of dysfunction at trial: Ask any defendant who lost an appeal after proving error only to have an appellate panel tell him the error was harmless. The only way one really gets a feel for the reality of going to trial is by going to trial.
Talk now turns in Connecticut to filling potential vacancies in the ranks of the District Courts, the trial level courts. According to the Connecticut Law Tribune, several names are on the lips of court watchers.
Among them are Joette Katz, a sitting member of the state's Supreme Court; Aaron Bayer, a former Connecticut deputy attorney general now practicing in a white-shoe private firm; and, Nora Dannehy, the acting U.S. Attorney. All three are extremely intelligent and accomplished lawyers. But only Dannehy has substantial trial experience. That should make her the top contender on this list.
The list of contenders for the District Court is hardly the sort of change we were led to expect from Obama. The president is trolling in the same old backwaters for judges: state-court trial judges, government lawyers -- whether prosecutors or civil attorneys general; and, kings of the biglaw billable. This is hardly the stuff of neopopulism.
I'd like to see the president do something creative and reach across the aisle. Instead of naming candidates from government and biglaw, why not try someone who can bring a wealth of criminal defense and plaintiff's experience to the bench? Why isn't the president giving William Bloss of Connecticut's Koskoff, Koskoff and Bieder, a look? Bloss is brilliant, fair-minded and not so far outside the mainstream as to make waves. Read more about him here: http://www.koskoff.com/lawyers/detail.cfm?pID=36.
Questions About Hank Skinner
The State of Texas plans to kill Hank Skinner on March 24th. No question about it. And, to the great shame of the Lone Star State, no questions will be asked about whether Mr. Skinner is to be executed for a crime he did not commit.
Skinner was convicted and sentenced to death for the December 31st, 1993 murder of his live-in partner, Twila Busby and her two sons in Pampa, Texas. The case has attracted significant attention as there are substantial doubts about whether Skinner is guilty.
Prosecutors promised to silence critics by submitted 14 peices of evidence for post-conviction testing. Much to the suprise of the Texas lawmen, the DNA tests did not provide more nails for Skinner's coffin. Instead, the tests raised more doubts about whether Texas plans on killing an innocent man.
One test involved a hair found clutched in Ms. Busby's hand at the time of her death. The prosecutors argued it was a hair from the killer. If so, then Skinner is not the killer: the DNA tests exclude Skinner as the person from whom the hair came. Other tests are reported either to exonerate Skinner or are said to be inconclusive.
Texas has apparently put a lid on the test results for many of the items tested. Highly probative results from broken fingernail clippings and the forensic rape kit are being withheld from public view: the state will not even discuss the results. The conclusion to be drawn from this is obvious: these test results must exonerate Skinner. Clearly, if they were further proof of his guilt, the state would have held a press conference by now to trumpet the results.
This camel-like behaviour on the part of Texas lawmen is shameful. When Northwestern University's Medill Innocence Project took an interest in the case and offered to fund further DNA testing of evidence, the Texans turned tail and ran. This is sheer intellectual and moral cowardice. Among the items yet to be tested in this case are a bloody knife and a bloody axe handle, a bloody dish towel, and a suspicious windbreaker contaminated with hairs, blood, and sweat.
This rush to judgment is hideous. Questions remain about Skinner's guilt. Rather than rushing to kill the man before these questions can be answered, Texas should should shut down the machinery of death and submit the Skinner case to transparent review.
Hat Tip: J B Allen, for The Skeptical Juror Project, www skepticaljuror com
Skinner was convicted and sentenced to death for the December 31st, 1993 murder of his live-in partner, Twila Busby and her two sons in Pampa, Texas. The case has attracted significant attention as there are substantial doubts about whether Skinner is guilty.
Prosecutors promised to silence critics by submitted 14 peices of evidence for post-conviction testing. Much to the suprise of the Texas lawmen, the DNA tests did not provide more nails for Skinner's coffin. Instead, the tests raised more doubts about whether Texas plans on killing an innocent man.
One test involved a hair found clutched in Ms. Busby's hand at the time of her death. The prosecutors argued it was a hair from the killer. If so, then Skinner is not the killer: the DNA tests exclude Skinner as the person from whom the hair came. Other tests are reported either to exonerate Skinner or are said to be inconclusive.
Texas has apparently put a lid on the test results for many of the items tested. Highly probative results from broken fingernail clippings and the forensic rape kit are being withheld from public view: the state will not even discuss the results. The conclusion to be drawn from this is obvious: these test results must exonerate Skinner. Clearly, if they were further proof of his guilt, the state would have held a press conference by now to trumpet the results.
This camel-like behaviour on the part of Texas lawmen is shameful. When Northwestern University's Medill Innocence Project took an interest in the case and offered to fund further DNA testing of evidence, the Texans turned tail and ran. This is sheer intellectual and moral cowardice. Among the items yet to be tested in this case are a bloody knife and a bloody axe handle, a bloody dish towel, and a suspicious windbreaker contaminated with hairs, blood, and sweat.
This rush to judgment is hideous. Questions remain about Skinner's guilt. Rather than rushing to kill the man before these questions can be answered, Texas should should shut down the machinery of death and submit the Skinner case to transparent review.
Hat Tip: J B Allen, for The Skeptical Juror Project, www skepticaljuror com
Friday, March 5, 2010
Medication Nation?
Are you depressed? Take a pill. That might make you feel better. But what if you are depressed for good reason? What if the world's got you down because the world is depressing?
Thirty million Americans take antidepressants. They spend $10 billion a year on antidepressants, according to Gary Greenberg. He's written a book entitled Manufacturing Depression: The Secret History of a Modern Disease. Check out this interview and ask yourself the following question: Are antidepressants really just the methamphetamine of the middle class?
If plutocrats run the world, and remember, we're bailing out Wall Street with our tax dollars and the big boys keep continue to pay themselves fat bonuses because they are "too big, and too smart, to fail," then shouldn't we be depressed? Better to drug folks into a torpor. Crystal meth pressed the working class and made them effective wage slaves with short shelf lives; antidepressants take the edge off the middle class. Soma anyone?
Hat tip: KM
AMY GOODMAN: Is depression manufactured? Two decades after the introduction of antidepressants, it’s become commonplace to assume that our sadness can be explained in terms of a disease called depression. The National Institute of Mental Health estimates more than 14 million Americans suffer from major depression every year and more than three million suffer from minor depression. Some 30 million Americans take antidepressants at a cost of over $10 billion a year.
Well, my next guest argues while depression can be debilitating, it’s also been largely manufactured by doctors and drug companies as a medical condition with a biological cause that can be treated with prescription medication. Psychotherapist and writer Gary Greenberg participated in a clinical trial for antidepressant medication and found that more often than not the drugs failed to outperform placebos. His latest book is a scientific, medical, historical and cultural exploration of the antidepressant revolution here in the United States. It’s called Manufacturing Depression: The Secret History of a Modern Disease.
Welcome to Democracy Now!
GARY GREENBERG: It’s good to be here.
AMY GOODMAN: Tell us about the trial you went through.
GARY GREENBERG: I enrolled in a trial at Mass General Hospital, intending, actually, to enroll in a trial for minor depression. But the tests that I took showed that I had major depression. And the trial was a trial of fish oil versus placebo, which meant that I was taking omega-3 fatty acids or a placebo, I didn’t know which.
AMY GOODMAN: And what happened?
GARY GREENBERG: What happened was that I returned to Mass General every other week for two months, and I was given the same battery of tests over and over again. And as the time went on, I appeared to be getting better on the tests that were being used to measure my depression. At the end of the trial, I asked if I could be told if I was on the placebo or the drug, and they told me no, but since it was the next to the last day of the trial, I still had some pills left. I sent them off to a lab, and it turned out I was on the placebo.
AMY GOODMAN: What did you think?
GARY GREENBERG: I thought that was really interesting. And I thought that—I thought that it was more interesting that the doctors really assumed that I was on the drug. The way I know that is because after the trial was over, they offered me what’s called an open label trial, where I would get what I knew to be, in this case, fish oil, which is standard for clinical trials. If they think the subject was on the drug, the offer them the drug after the trial is over, even if they have no way of knowing.
AMY GOODMAN: So, talk about your overall thesis in this book, Manufacturing Depression, two decades after—two decades after exactly what?
GARY GREENBERG: Well, it’s two decades after Prozac was introduced, which saw an explosion of two things: one of them is sales of antidepressants in the Prozac generation, and the other is the rates of diagnosis of depression. And in the book, what I’m trying to do is to show how these two things go together and how, in many respects, the drugs came first, and how this was something that has grown historically. For at least 150 years we’ve been heading in this direction.
And basically what the book is about is why it even makes sense at this point for people who are unhappy to even think about the possibility that they have a mental illness. And in the book, I’m mostly interested to say that our concern probably shouldn’t be so much with the drugs themselves as the meaning that we have for why we’re taking the drugs, which I believe shapes our response to the drugs, and that what really we should be paying attention to is how easily people are diagnosed with mental illnesses, as opposed to given other explanations or opportunities for themselves to explain why they might be suffering.
AMY GOODMAN: Go on with that.
GARY GREENBERG: Where do you want me to go?
AMY GOODMAN: No, on that issue of how people get diagnosed and when drugs are prescribed for them.
GARY GREENBERG: Well, people get diagnosed largely by their family doctors, and sometimes only implicitly. In other words, you go to your doctor and you have some complaints about sleeplessness or nervousness or unhappiness or demoralization, and the doctor will give you a prescription often for Prozac, after asking some intelligent questions, or some other antidepressant besides Prozac. And he may not say, you know, “You are depressed.” He may just give you the drug. But you’ve seen enough on TV in ads and heard enough to know what the deal is. You don’t need the weatherman to know which way that wind blows. Or he does tell you that you’re depressed and explains to you that it’s a biochemical imbalance. And so, when you take the drug, if you feel better, then indeed you—that confirms that you were sick in the first place. And I’m not sure that it’s necessary to do that in order to take—get whatever benefits there are of these drugs.
AMY GOODMAN: Today we’re seeing a major recession—jobs, unemployment. People can get very depressed. What happens? What do you think should happen? How should this be dealt with?
GARY GREENBERG: Well, I don’t know that we’re that far off. I mean, there’s no reason people shouldn’t confide in their doctors or their therapists about how unhappy they are, but to be told that you have a biochemical illness is automatically to distract your attention from those kinds of conditions that you just mentioned. In fact, I think that the American Psychiatric Association is going to move even farther away from any kind of consideration of causes that come from the outside. In their next edition of the DSM, they’re eliminating—at least they’re planning—
AMY GOODMAN: Explain the DSM.
GARY GREENBERG: The DSM is the Diagnostic and Statistical Manual of diagnosis. It lists the diagnoses of official mental illnesses. Right now, if you’re simply suffering from bereavement—somebody dies—you can’t be diagnosed as depressed, unless your unhappiness lasts for more than two months. In the next edition, they may remove even that as an exception to the diagnosis of depression. And so—
AMY GOODMAN: And remove what?
GARY GREENBERG: The bereavement exception. So, in other words, if you’re bereaved now, you meet all the criteria for depression, but you can’t be diagnosed, because you were bereaved. Research shows that bereavement isn’t any different from other psychosocial stressors, like unemployment, like divorce. So, rather than grapple with that, the American Psychiatric Association seems to be moving in the direction of simply eliminating the exception. So what I’m getting at is that it’s very difficult in the context of a doctor’s visit, because doctors aren’t trained to do this, to talk with people about how their world might be at least part of why they’re demoralized.
AMY GOODMAN: And then, take that a step further.
GARY GREENBERG: Well, if people then are encouraged to think of external circumstances, then they may be more empowered to take action. They may be more ready to consider the possibility that what they need to do is engage somewhere in the politics of their world. They may be ready to tell their own story about what depression is about, rather than the biomedical story.
AMY GOODMAN: We’re talking to Gary Greenberg, who has written the book Manufacturing Depression: The Secret History of a Modern Disease. Talk about how the definition has changed over the decades and how we deal with it in this country.
GARY GREENBERG: The definition of depression has been changing since it was first introduced as a medical concept, which was about a little more than a hundred years ago. But the most radical changes have occurred after 1973, when the American Psychiatric Association had suffered a series of embarrassments, including, particularly, the discovery suddenly that homosexuality really wasn’t a disease. And they were forced to grapple with the fact that they—not only were there questions about whether their diseases really were diseases, but doctors couldn’t agree on the same patient what disease that patient had. And so they went to a system of diagnosis that’s purely a checklist. If you meet the criteria, then, regardless of your circumstances, you have the disease. And that’s how depression works.
And so, over time what’s happened is that the diagnosis has gotten increasingly detached from any sense of where it might come from, either within the psyche, as Freud would talk about, or from external circumstances, as more politically minded psychologists would talk about. And that, of course, goes hand-in-hand with the idea that it’s a biochemical illness, because if it’s not being caused by your external circumstances and it’s not being caused by some, you know, childhood trauma, then what’s left? In must be being caused by something inside your brain. And it’s become a brain disease.
AMY GOODMAN: What role do pharmaceutical companies play in this?
GARY GREENBERG: Well, pharmaceutical companies have been very eager to jump on that bandwagon. In fact, in many respects, they’ve originated that idea, or at least spread it through the culture like a virus. Since about 1960, the drug industry has been actively engaged in trying to help first doctors and now patients come—believe that demoralization is really a mental illness.
They’ve done it through very clever marketing. For instance, they distributed 50,000 copies of a book called Recognizing the Depressed Patient to prominent doctors back in the early 1960s, in which the biochemical argument was made for the first time, in the almost entire absence of any findings that supported it. It was like a myth that was being given to the doctors to pass along to their patients, like viral marketing. Now with TV direct to consumer ads, every time there’s an advertisement for Prozac, it’s also an advertisement for the idea that depression is a disease. And I think that’s obviously very beneficial to the drug companies.
AMY GOODMAN: At the end of your book, your final chapter is “The Magnificence of Normal.” What does that mean?
GARY GREENBERG: Well, in my book I try to grapple with the possibility that there might be something redemptive about large groups of people thinking of themselves as sick, as is what’s happening right now, if 20 percent of the population is depressed. And I visited with some people who take that line. Unfortunately, what they do with their collective action is they decide to treat themselves as chronically ill people and to demand better drugs and to demand nothing but the restoration of normalcy in what they consider to be their brain illness.
Now, I don’t mean to criticize people who are really struggling to just get by every day, but for most of us, the idea that the normal is what’s magnificent is a problem, because it gives very little room for challenging or questioning the status quo. So, in the end, we can see that this idea that depression is a biochemical illness, no matter how the intentions or what the intentions were, which were probably good intentions, it doesn’t matter, because that idea is going to favor the status quo no matter what we do, if there’s not built into it some understanding of the way our engagements with the world contribute to the way that we’re unhappy.
AMY GOODMAN: What about antidepressants in children?
GARY GREENBERG: I don’t know much about antidepressants in children, except I know that it’s a science experiment that everybody’s involved in right now that nobody has actually been asked to consent to. We don’t really understand how Prozac works in grownups. We know that if you put it into the system, you get a better mood out of the system after—in many cases. But with children, we have no idea what constantly tweaking their brain metabolism—we don’t know what the effects of that are going to be on a brain that’s still developing. So, while there may be situations in which it can be valuable, I think that we’re moving very, very fast, considering we know very little about how the drugs work in the brain and we know very little about the developing brain. So you put those two things together, that’s a lot of ignorance.
AMY GOODMAN: Gary Greenberg, you’re a psychotherapist. You have been through trials yourself. But when you were researching Manufacturing Depression: The Secret History of a Modern Disease, what most surprised you?
GARY GREENBERG: I think the thing that most surprised me was to discover just how easily ferreted out this history is. I mean, if you sit down and you look at the way medicine has developed for the last 150 years, while you probably couldn’t have predicted it from 1850, looking back, it’s a complex history, but it’s a very clear line from the first discovery of magic-bullet drugs in the late nineteenth century and the idea that our diseases—our suffering can be understood as medical diseases, to the idea that this kind of suffering can be understood as a biomedical disease. I thought—I mean, the book was really hard to write, don’t get me wrong. I earned my money. But it was really also a surprisingly straight line. It was how easily or quickly things fell into place to show that history.
And I think that that’s important for people who might read the book, because when you read it, you see how you’ve really arrived on a wave that’s been building for 150 years. When you get to your doctor’s office and he starts to talk to you about your depression, you’ve really—you’re really at the end of a long line of events, that if you know about them, they really change the way that whole experience goes and the way you understand what your demoralization is about and the way you understand being told that you’re depressed.
AMY GOODMAN: Gary Greenberg, I want to thank you for being with us. Manufacturing Depression: The Secret History of a Modern Disease is his book.
Thirty million Americans take antidepressants. They spend $10 billion a year on antidepressants, according to Gary Greenberg. He's written a book entitled Manufacturing Depression: The Secret History of a Modern Disease. Check out this interview and ask yourself the following question: Are antidepressants really just the methamphetamine of the middle class?
If plutocrats run the world, and remember, we're bailing out Wall Street with our tax dollars and the big boys keep continue to pay themselves fat bonuses because they are "too big, and too smart, to fail," then shouldn't we be depressed? Better to drug folks into a torpor. Crystal meth pressed the working class and made them effective wage slaves with short shelf lives; antidepressants take the edge off the middle class. Soma anyone?
Hat tip: KM
AMY GOODMAN: Is depression manufactured? Two decades after the introduction of antidepressants, it’s become commonplace to assume that our sadness can be explained in terms of a disease called depression. The National Institute of Mental Health estimates more than 14 million Americans suffer from major depression every year and more than three million suffer from minor depression. Some 30 million Americans take antidepressants at a cost of over $10 billion a year.
Well, my next guest argues while depression can be debilitating, it’s also been largely manufactured by doctors and drug companies as a medical condition with a biological cause that can be treated with prescription medication. Psychotherapist and writer Gary Greenberg participated in a clinical trial for antidepressant medication and found that more often than not the drugs failed to outperform placebos. His latest book is a scientific, medical, historical and cultural exploration of the antidepressant revolution here in the United States. It’s called Manufacturing Depression: The Secret History of a Modern Disease.
Welcome to Democracy Now!
GARY GREENBERG: It’s good to be here.
AMY GOODMAN: Tell us about the trial you went through.
GARY GREENBERG: I enrolled in a trial at Mass General Hospital, intending, actually, to enroll in a trial for minor depression. But the tests that I took showed that I had major depression. And the trial was a trial of fish oil versus placebo, which meant that I was taking omega-3 fatty acids or a placebo, I didn’t know which.
AMY GOODMAN: And what happened?
GARY GREENBERG: What happened was that I returned to Mass General every other week for two months, and I was given the same battery of tests over and over again. And as the time went on, I appeared to be getting better on the tests that were being used to measure my depression. At the end of the trial, I asked if I could be told if I was on the placebo or the drug, and they told me no, but since it was the next to the last day of the trial, I still had some pills left. I sent them off to a lab, and it turned out I was on the placebo.
AMY GOODMAN: What did you think?
GARY GREENBERG: I thought that was really interesting. And I thought that—I thought that it was more interesting that the doctors really assumed that I was on the drug. The way I know that is because after the trial was over, they offered me what’s called an open label trial, where I would get what I knew to be, in this case, fish oil, which is standard for clinical trials. If they think the subject was on the drug, the offer them the drug after the trial is over, even if they have no way of knowing.
AMY GOODMAN: So, talk about your overall thesis in this book, Manufacturing Depression, two decades after—two decades after exactly what?
GARY GREENBERG: Well, it’s two decades after Prozac was introduced, which saw an explosion of two things: one of them is sales of antidepressants in the Prozac generation, and the other is the rates of diagnosis of depression. And in the book, what I’m trying to do is to show how these two things go together and how, in many respects, the drugs came first, and how this was something that has grown historically. For at least 150 years we’ve been heading in this direction.
And basically what the book is about is why it even makes sense at this point for people who are unhappy to even think about the possibility that they have a mental illness. And in the book, I’m mostly interested to say that our concern probably shouldn’t be so much with the drugs themselves as the meaning that we have for why we’re taking the drugs, which I believe shapes our response to the drugs, and that what really we should be paying attention to is how easily people are diagnosed with mental illnesses, as opposed to given other explanations or opportunities for themselves to explain why they might be suffering.
AMY GOODMAN: Go on with that.
GARY GREENBERG: Where do you want me to go?
AMY GOODMAN: No, on that issue of how people get diagnosed and when drugs are prescribed for them.
GARY GREENBERG: Well, people get diagnosed largely by their family doctors, and sometimes only implicitly. In other words, you go to your doctor and you have some complaints about sleeplessness or nervousness or unhappiness or demoralization, and the doctor will give you a prescription often for Prozac, after asking some intelligent questions, or some other antidepressant besides Prozac. And he may not say, you know, “You are depressed.” He may just give you the drug. But you’ve seen enough on TV in ads and heard enough to know what the deal is. You don’t need the weatherman to know which way that wind blows. Or he does tell you that you’re depressed and explains to you that it’s a biochemical imbalance. And so, when you take the drug, if you feel better, then indeed you—that confirms that you were sick in the first place. And I’m not sure that it’s necessary to do that in order to take—get whatever benefits there are of these drugs.
AMY GOODMAN: Today we’re seeing a major recession—jobs, unemployment. People can get very depressed. What happens? What do you think should happen? How should this be dealt with?
GARY GREENBERG: Well, I don’t know that we’re that far off. I mean, there’s no reason people shouldn’t confide in their doctors or their therapists about how unhappy they are, but to be told that you have a biochemical illness is automatically to distract your attention from those kinds of conditions that you just mentioned. In fact, I think that the American Psychiatric Association is going to move even farther away from any kind of consideration of causes that come from the outside. In their next edition of the DSM, they’re eliminating—at least they’re planning—
AMY GOODMAN: Explain the DSM.
GARY GREENBERG: The DSM is the Diagnostic and Statistical Manual of diagnosis. It lists the diagnoses of official mental illnesses. Right now, if you’re simply suffering from bereavement—somebody dies—you can’t be diagnosed as depressed, unless your unhappiness lasts for more than two months. In the next edition, they may remove even that as an exception to the diagnosis of depression. And so—
AMY GOODMAN: And remove what?
GARY GREENBERG: The bereavement exception. So, in other words, if you’re bereaved now, you meet all the criteria for depression, but you can’t be diagnosed, because you were bereaved. Research shows that bereavement isn’t any different from other psychosocial stressors, like unemployment, like divorce. So, rather than grapple with that, the American Psychiatric Association seems to be moving in the direction of simply eliminating the exception. So what I’m getting at is that it’s very difficult in the context of a doctor’s visit, because doctors aren’t trained to do this, to talk with people about how their world might be at least part of why they’re demoralized.
AMY GOODMAN: And then, take that a step further.
GARY GREENBERG: Well, if people then are encouraged to think of external circumstances, then they may be more empowered to take action. They may be more ready to consider the possibility that what they need to do is engage somewhere in the politics of their world. They may be ready to tell their own story about what depression is about, rather than the biomedical story.
AMY GOODMAN: We’re talking to Gary Greenberg, who has written the book Manufacturing Depression: The Secret History of a Modern Disease. Talk about how the definition has changed over the decades and how we deal with it in this country.
GARY GREENBERG: The definition of depression has been changing since it was first introduced as a medical concept, which was about a little more than a hundred years ago. But the most radical changes have occurred after 1973, when the American Psychiatric Association had suffered a series of embarrassments, including, particularly, the discovery suddenly that homosexuality really wasn’t a disease. And they were forced to grapple with the fact that they—not only were there questions about whether their diseases really were diseases, but doctors couldn’t agree on the same patient what disease that patient had. And so they went to a system of diagnosis that’s purely a checklist. If you meet the criteria, then, regardless of your circumstances, you have the disease. And that’s how depression works.
And so, over time what’s happened is that the diagnosis has gotten increasingly detached from any sense of where it might come from, either within the psyche, as Freud would talk about, or from external circumstances, as more politically minded psychologists would talk about. And that, of course, goes hand-in-hand with the idea that it’s a biochemical illness, because if it’s not being caused by your external circumstances and it’s not being caused by some, you know, childhood trauma, then what’s left? In must be being caused by something inside your brain. And it’s become a brain disease.
AMY GOODMAN: What role do pharmaceutical companies play in this?
GARY GREENBERG: Well, pharmaceutical companies have been very eager to jump on that bandwagon. In fact, in many respects, they’ve originated that idea, or at least spread it through the culture like a virus. Since about 1960, the drug industry has been actively engaged in trying to help first doctors and now patients come—believe that demoralization is really a mental illness.
They’ve done it through very clever marketing. For instance, they distributed 50,000 copies of a book called Recognizing the Depressed Patient to prominent doctors back in the early 1960s, in which the biochemical argument was made for the first time, in the almost entire absence of any findings that supported it. It was like a myth that was being given to the doctors to pass along to their patients, like viral marketing. Now with TV direct to consumer ads, every time there’s an advertisement for Prozac, it’s also an advertisement for the idea that depression is a disease. And I think that’s obviously very beneficial to the drug companies.
AMY GOODMAN: At the end of your book, your final chapter is “The Magnificence of Normal.” What does that mean?
GARY GREENBERG: Well, in my book I try to grapple with the possibility that there might be something redemptive about large groups of people thinking of themselves as sick, as is what’s happening right now, if 20 percent of the population is depressed. And I visited with some people who take that line. Unfortunately, what they do with their collective action is they decide to treat themselves as chronically ill people and to demand better drugs and to demand nothing but the restoration of normalcy in what they consider to be their brain illness.
Now, I don’t mean to criticize people who are really struggling to just get by every day, but for most of us, the idea that the normal is what’s magnificent is a problem, because it gives very little room for challenging or questioning the status quo. So, in the end, we can see that this idea that depression is a biochemical illness, no matter how the intentions or what the intentions were, which were probably good intentions, it doesn’t matter, because that idea is going to favor the status quo no matter what we do, if there’s not built into it some understanding of the way our engagements with the world contribute to the way that we’re unhappy.
AMY GOODMAN: What about antidepressants in children?
GARY GREENBERG: I don’t know much about antidepressants in children, except I know that it’s a science experiment that everybody’s involved in right now that nobody has actually been asked to consent to. We don’t really understand how Prozac works in grownups. We know that if you put it into the system, you get a better mood out of the system after—in many cases. But with children, we have no idea what constantly tweaking their brain metabolism—we don’t know what the effects of that are going to be on a brain that’s still developing. So, while there may be situations in which it can be valuable, I think that we’re moving very, very fast, considering we know very little about how the drugs work in the brain and we know very little about the developing brain. So you put those two things together, that’s a lot of ignorance.
AMY GOODMAN: Gary Greenberg, you’re a psychotherapist. You have been through trials yourself. But when you were researching Manufacturing Depression: The Secret History of a Modern Disease, what most surprised you?
GARY GREENBERG: I think the thing that most surprised me was to discover just how easily ferreted out this history is. I mean, if you sit down and you look at the way medicine has developed for the last 150 years, while you probably couldn’t have predicted it from 1850, looking back, it’s a complex history, but it’s a very clear line from the first discovery of magic-bullet drugs in the late nineteenth century and the idea that our diseases—our suffering can be understood as medical diseases, to the idea that this kind of suffering can be understood as a biomedical disease. I thought—I mean, the book was really hard to write, don’t get me wrong. I earned my money. But it was really also a surprisingly straight line. It was how easily or quickly things fell into place to show that history.
And I think that that’s important for people who might read the book, because when you read it, you see how you’ve really arrived on a wave that’s been building for 150 years. When you get to your doctor’s office and he starts to talk to you about your depression, you’ve really—you’re really at the end of a long line of events, that if you know about them, they really change the way that whole experience goes and the way you understand what your demoralization is about and the way you understand being told that you’re depressed.
AMY GOODMAN: Gary Greenberg, I want to thank you for being with us. Manufacturing Depression: The Secret History of a Modern Disease is his book.
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