Godfather Joe Arpaio?

The public, not to mention criminals themselves, love nicknames and catchy phrases.The use of nicknames, on the one hand, contributes to the folklore of criminals,  while on the other hand, can strike terror into the hearts of  normal citizens.  Who can forget "He sleeps with the fishes" or "I made him an offer he couldn't refuse"  (Yes, I know those phrases came from a movie but cut me a little slack here, it's a blog.)  And what about nicknames such as Thomas Three Fingers Brown, Lefty Two Guns Ruggiero, and Tony Big Tuna Accardo?   And who can forget Crazy Joe Gallo and Legs Diamond?

So I began to think that Joe Arpaio, the current sheriff of Maricopa County in Arizona and notable for not caring about the law, should have a nickname just like a hoodlum.  After all, if someone wants to act  like a miscreant he should be given all the privileges and appurtenances thereto.  I noticed that Scott Greenfield over at Simple Justice, http://blog.simplejustice.us/ already has taken to calling the sheriff Crazy Joe, but I felt that to be an insult to crazy people.  I thought of Maricopa Joe but that seemed a little folksy, as though maybe he was a calypso dancer.  Try as I might I did not come up with anything I liked.  I suspect the lack of inspiration had to do with it being the end of the year with all that entails.

Then it came to me! Godfather! Yes!!! Think of it. Here is a guy that does not care a bit for the rule of law.    He already has a consiglieri, what's his name, the county attorney and some might consider the deputy sheriffs to be his family/crew.  It is perfect!  He might even call himself Big Joe after Big Paul Castellano who was gunned down just outside Sparks Steakhouse in midtown Manhattan in one of the most notorious mob hits in New York City organized crime history.  Parenthetically, for years after the Castellano shooting diners at Sparks would ask to be seated in the non-shooting section.  Hmmmmm--I wonder if the feds have thought about a RICO action.  The Racketeer Influenced Corrupt Organization Act worked wonders in dismantling the Gambino and Genovese crime families.  Although the sheriff's crowd may be better armed.  Certainly they have nicer offices.

Zowee!  I feel much better now!  Someone should notify the Deparrment of Justice about this.  And  while they are at it someone might want to notify the National Association of Criminal Defense Lawyers.  They always like a fight.

Some who will read this might suggest that Big Joe is a voter favorite.  What do the voters know, they elected George W. Bush twice (sort of).

If any of you come up with a name you like better please pass it along.  I promise to give it consideration before rejecting it.

I wish all of you the best new year possible!

The Grief of Sin and Idleness

[Editor's note: A short time ago the prison where Todd is incarcerated experienced an outbreak of violence in the form of serious assaults by gang members in one of the living areas. What follows is an inmate's view of what is often a standard response in such cases, a lengthy institutional lockdown.]

“Toil is man’s allotment; toil of brain, or toil of hands, or a grief that’s more than either, the grief and sin of idleness. But when man toils and slays himself for masters who withhold the life he gives to them--then, then, the soul screams out, and every sinew cracks. So with these poor serfs. And few of them could choose but be the brutes they seemed.”--Herman Melville, Mardi

To be in prison is to be continually, repeatedly, punished for the actions of other people. Set aside, for the moment, that you’ve been sent to prison for a crime you didn’t commit. Now, whenever the felons and gang members you’ve been sent to live with get caught fighting or assaulting each other, you’re locked down, deprived of recreation facilities, and visits--and work.

When gang violence, which is ever present, becomes visible, or reaches some threshold level, the solution is to shut everything down, to increase the anxiety level of everyone in the facility, to increase tensions, and to make it so that the only thing going on is gang violence.

Particularly frustrating is the use of lockdown in dealing with assaults that occur in the living units. Apparently the administration believes that the best way to reduce assaults in the living units is to take away any means of coping with confinement in a productive way and to keep this now even more frustrated population confined to the living units, where the most serious, most dangerous assaults are the most likely to happen. Keep in mind that you’re in a facility with dry cells. The bathroom is down the tier and is shared. Your cell locks from the inside, not the outside. So, anyone who wants to fight still can. And you’re mostly on modified lockdown; the day hall, the common area, is mostly open. You still eat in the chow hall. Kitchen workers, laundry workers, Correctional Industries workers, anyone who makes money for the Man, or who keeps the prison running conveniently, is deemed safe to go to work.

It’s just religious programs, and educational programs, and the hobby shop, and vocational education, and visiting, and Toys for Tots, that are shut down. “Safety” looks suspiciously like a group punishment tailored to the convenience of the administration——and so made even more arbitrary, even more unfair, than it already would be.

About midday four days into the lockdown, the following appeared on the A.V.C.F. crawl, the closed circuit that appears on our Channel 4:

“DUE TO SERIOUS OFFENDER ASSAULTS IN LIVING UNIT 2, THE FACILITY WILL REMAIN ON LOCKDOWN UNTIL FURTHER NOTICE. ALL PROGRAMS ARE CANCELED UNTIL FURTHER NOTICE. THIS INCLUDES: ALL RELIGIOUS AND EDUCATION PROGRAMS TO INCLUDE ICE CREAM DELIVERY ON NOV. 19. THEY WILL REMAIN CANCELED UNTIL THE FACILITY IS SAFE FOR THE OFFENDER POPULATION TO CONTINUE WITH THEM.”

I especially like the cancellation of ice cream delivery, an item that is delivered to the individual units and that has absolutely no bearing on security. Despite the use of the language of safety, the cancellation of ice cream reveals the lockdown for what it is, an imposition of group punishment. Further, the fact that the administration couches this cancellation in the language of safety illustrates both an understanding that group punishments violate long standing principles of international law, and a desire to dissemble on the actual intent behind the lockdown.

A later update announced:

“ALL VISITS HAVE BEEN CANCELED UNTIL FURTHER NOTICE WITH THE EXCEPTION OF THE SCHEDULED APPROVED SPECIAL VISITS.”

Colorado DOC has set itself up for failure in dealing with the gangs and in dealing with internal security threats generally, by treating such things as institutional violence the same as years to parole eligibility. Under Colorado’s classification system, the number of points that you’re assigned determines the security level of the facility to which you will be sent. What this system fails to acknowledge is the difference between flight risk, which naturally accrues to those with lengthy sentences or previous escape attempts, and internal security risk, which accrues to gang affiliates and those with a history of institutional violence. These are two different problems which require different solutions. In the same way that not every prison is equipped to deal with the same level of flight risk (hence the range of security ratings), not every prison is equipped to deal with the same internal security risk.

Prisoners with long sentences shouldn't be additionally punished simply because the state has chosen to force them to live in the midst of gang activity.

Case Not Handled "Righteously"

[Editor’s note: this posting was originally published in the Westchester Guardian on December 28, 2006 and is reprinted here by permission. What follows contains only minor editing changes from the original publication.]

Let me start out by thanking The Westchester Guardian for giving me this opportunity to speak directly to the public. Considering that I was released from prison with merely the clothes on my back to start my life over and to reintegrate back into society after 16 years, this opportunity is much needed.

I would like to address the issue of whether my case, at all stages, and by all parties involved, was handled in good faith and reasonably; whether it was, in the words of Peekskill Police Chief Tumolo, righteously investigated. Although this issue has been written about previously by other writers in other papers, I wanted the chance to address this issue myself, reasoning that since I had been fighting to establish my innocence for so many years, which necessitated that I know the facts backwards and forwards, so as to be able to lay them out to anyone and everyone who could potentially be of some help to me, I had acquired a familiarity with them which is perhaps unequaled by anyone. Additionally, unlike other writers, I lived it, and was personally affected by it; therefore this perspective could provide some additional insight to readers.

An understandable initial reaction by the average person to the prospect of an exoneree assessing the investigation and prosecution that resulted in his or her wrongful arrest and conviction would be to think that the writer would engage in an emotional tirade consisting of bashing, rather than a calm, well-reasoned, analysis which lays out verifiable facts, and easy-to-follow arguments. That reaction, however, much as one might reasonably expect it, is not what I am going to do. Rather, I would like to present an objective account utilizing facts which can be verified in the trial testimony given by the police, and in legal documents which can be accessed in the Westchester County Court House. Additionally, these facts can also be found in other newspaper stories about me.

In the aftermath of my exoneration, there was a mad dash by both The Peekskill Police and by former District Attorney Jeanine Pirro, and Judge Colabella to explain their actions in connection with my arrest and conviction, and the preservation of that conviction up until the point that I was exonerated. When asked by the media to comment, Peekskill Police Chief Tumolo, then a Lieutenant, who was the officer in charge at the scene in which the coerced, false confession was obtained, proffered the explanation that “while it was unfortunate that I had been wrongfully convicted and thus spent approximately 16 years in prison, the case had been ‘righteously investigated.’”

Pirro attempted to put the responsibility on her predecessor, Carl Vergari, under whom I was originally prosecuted, even though she had opposed me tooth-and-nail during the appeals process, often successfully arguing that my issues, including that of innocence, based upon the DNA, “should not even be considered,” upon several occasions in the appeals process in both State and Federal Appellate Courts.

In one such appeal, when timeliness regarding my filing became an issue, four crucial days separated our respective positions and became a point of contention in the courtroom (Habeas Corpus Petition, Second Circuit United States Court of Appeals), within the context of whether that court should agree to hear my case. Judge Colabella stated, “He got a fair trial.”

I will lay out the facts so that readers may decide for themselves what occurred. I would encourage everyone to think objectively and critically, and to push past the sound bites and the spin to see if the facts support the conclusion. I would ask that, above all, readers consider whatever their mind and heart of hearts tells them.

Police

The circumstances, as testified to by the police, regarding how the coerced false confession was obtained are as follows: The police told Deskovic to come to the police station the next day to take a lie detector test, and he did so. They did so without first informing his mother or asking her permission. In fact, they testified that they knew that his mother did not want them talking to her son. They did this on a school day, which meant that nobody would have realized that he was missing and therefore look for him. They drove him to Brewster, in Putnam County.

The significance of this, as pointed out by Deskovic’s lawyer in the Appellate Division brief, was that he was in an unfamiliar place and was not able to leave independent of them. He was put in a room and attached to a polygraph machine. The polygraphist himself was dressed in civilian clothes and pretended to be a civilian, even though in reality he worked as an investigator for the Putnam County Sheriff ’s office. He testified that he did not give Deskovic Miranda Warnings, which all police officers are required to do, but simply gave Participatory Warnings, the gist of which is that any incidental opinions that were rendered by the polygraphist would be turned over to the police. This is different from Miranda Warnings which inform suspects that anything that they say “can and will be used against you in a court of law” so that if they choose to, they can, in the words of the case law on the subject, waive those rights “knowingly, willingly, and intelligently,” thus ensuring all of society’s continual enjoyment of the Fifth Amendment every day, and not merely when the authorities wish to accord it.

A question one needs to ask oneself, in considering all of the above, is that even if those warnings were issued, what 16-year-old boy would have understood them? The polygraphist also noted that the 16-year-old took 17-20 minutes in order to read a four-page brochure which purported to explain how polygraph works, and that the manual included such big words as “immunity”, “coercion”, and “duress” (see brief at Appellate Division, p.9).

When asked about the propriety of this by Deskovic’s trial attorney, the polygraphist’s response was “It was not my job to determine the intelligence of Deskovic.”

According to police testimony, “Jeffrey was interrogated at times by one, two, and three officers.” There was no attorney present with him despite the fact that he was only 16 years old. Also, according to police testimony, all kinds of psychological tactics were used in order to try to obtain a confession, including “passive and stressful” interrogation, and the game which has come to be known, and decried in the study of interrogations as “Mutt and Jeff,” in which one officer plays a rough, no-nonsense menacing/threatening type role, and the other one pretends to be friendly and on the suspect’s side. The purpose of this tactic is to create fear in a suspect while simultaneously offering the illusion of someone on their side that they can turn to.

Polygraph tests, as alluded to in an article in Psychology Today, “Guilty Knowledge Test, The Right Way to Use a Lie Detector” by Lykken, often produce false results because they are failed by “frightened, innocent persons.” (March 1975, pp56-60). The polygraphist admitted to eliciting a “lying reaction” to a “non-lying question.” When unable to say Deskovic failed the first test, he administered 2 more, and told him “…you told me within yourself that you did it. I just want you to tell me from your mouth that you did it.” (Brief at the Appellate Division, p.12).

Before the interrogation was all over, Deskovic, according to Detective McIntyre, had “broken down and started to scream and crawl under the polygraph chair and remained in what I would call a fetal position… crying very heavily” (Brief at the Appellate Division, p13) The police testified that Deskovic was with them for 7 ½ hours and that he was not given anything to eat. Over that amount of time, and under those circumstances, anyone would get worn down. The interrogation, by the way, was neither tape recorded nor recorded on video. It was only at some point after the false confession was obtained that Deskovic was ever given anything that day, at about 6-7pm (Brief at the Appellate Division, p.45).

The police never attempted to have DNA Tests performed on 2 other individuals that they claimed had been suspects, however briefly.

Under District Attorney Carl Vergari:

Carl Vergari as The Westchester County District Attorney, George Bolen as the Assistant District Attorney who prosecuted me in court.

• I was prosecuted based on the false confession despite the circumstances under which it was obtained, which made it highly questionable.

• I had been arrested prior to the completion of the FBI’s DNA Test Results, which were negative. Once those results were in, as well as those of the Hair Comparison Test, which showed that hair found on the victim also did not match me, ADA Bolen would not acknowledge that a mistake had been made. Instead, he opposed the Defense when we attempted to have the indictment dismissed.

Under District Attorney Jeanine Pirro:

• District Attorney Jeanine Pirro continued to single-mindedly oppose all of my appeals, even though I was repeatedly raising the issue of my innocence, based on the DNA and the Hair Comparison Tests, and the manner in which the false confession was obtained. One would think that arguments such as these, based upon uncontradicted facts supplied by the Prosecution’s own experts, would have sent up red flags and given further thought, resulting in a acknowledgement that a mistake had been made and a innocent man was in prison.

• A letter Written To District Attorney Given Short Shrift

Mrs. Pirro, in the course of her failed campaign against Andrew Cuomo for Attorney General, when the issue of my letter to her asking for my DNA evidence to be reviewed came up, implied that no such letter had been sent and that therefore I was lying. Let me state that anyone convicted of a crime which they did not commit for which there was a DNA Test that showed they were innocent, but for which the courts were nonetheless upholding their conviction, and for which they remained incarcerated while more and more years of their life was slipping away, and they became aware that there was now a District Attorney in office other than the one who prosecuted them, who had made a variety of public statements in the newspaper indicating her belief in DNA in the aftermath of the exoneration of Westchester County resident Terry Chalmers, should they not, if only in desperation, write a letter to her? Can anyone doubt that such a letter and response were exchanged?

District Attorney Jeanine Pirro urged the Federal Court to time bar me without even having my issues looked at on the merits.

My attorney asked the court clerk if it was sufficient that my Petition be postmarked by a certain date, or if it had to be physically there by the deadline. The clerk incorrectly told my lawyer that it was sufficient that it be postmarked; this resulted in my petition being four days late. Mrs. Pirro’s office urged that my case be dismissed because of this, without even having my issues, including the grounds of innocence, looked at. The Court unfortunately adopted this position.

District Attorney Jeanine Pirro urged the next highest Court to uphold this ruling, even though my lawyer argued that this would result in a miscarriage of justice in light of the DNA evidence; and then she urged the U.S. Supreme Court not to agree to review my case, positions that each of those two Federal courts adopted.

Federal Court Request By Deskovic For DNA Testing Successfully Opposed.

Then, in legal documents filed in the 1999-2000 calendar of the United States Second Circuit Court of Appeals, my brief contained a request that new, recently developed and more sophisticated DNA protocols be employed on the materials from my case allowing for more sophisticated testing. This, too, was opposed by Pirro, and again the courts sided with her. What possibly could have been lost by permitting such testing? Steven Cunningham, the real murderer of Angela Correa, had been convicted three and a half years after that crime for which I was convicted, for killing still another woman, Pat Morrisson. Therefore, his DNA was in the DNA Database, and thus had the test been conducted when I requested it, I would have emerged from prison, exonerated, six years sooner than I was.

Trial Judge

• Judge Colabella allowed the “confession” to be admitted into evidence, even though, as testified to by the police, it was obtained under highly questionable circumstances.

• Judge Colabella allowed the polygraphist to testify as to charts and opinions, while forbidding the Defense from cross-examining him as to his methods for reaching conclusions, and his terms of employment with the Peekskill Police, which went to the matter of objectivity. Additionally, allowing the polygraphist to testify at all was as prejudicial, as it indirectly allowed the polygraphist to tell the jury that Deskovic failed the test, even though polygraph test results are not allowed into courtrooms because they are not considered reliable. It has been proven that juries cannot put it out of their minds when they are told words to the effect that a defendant failed a polygraph test, despite any verbal admonition by judges that the tests are unreliable and that they are not to speculate on the results themselves.

• The Judge denied Defense applications to have the charges dismissed based on the grounds that the evidence was legally insufficient and did not establish guilt beyond a reasonable doubt.

• At the Sentencing, the Judge told me, “maybe you are innocent,” then went on to say that was a matter for the jury to decide, and he agreed with the verdict. He proceeded to sentence me to 15 years to Life, of which I served 16 years before being cleared.

• The Judge allowed a “chewed bottlecap” to be admitted into evidence, supposedly located 70 days after a police grid search, without insisting that the Prosecution first lay a foundation for it by using Dental Impressions Testing. This was prejudicial because Detective Levine testified that he had seen me chewing one on a previous occasion.

• During the trial, the victim’s clothes, including her bra, got thrown out after they had been admitted into evidence, but before the trial was over. The jury asked to see the bra, but it was no longer available. According to my trial attorney, the significance of this is that one of the statements in the false confession was that “I ripped off her bra”, and there are some bras that one cannot rip off, and he had indicated to me that he was relying on this.

• To provide a further context for how important the bra was, the Prosecution categorized that piece of evidence as it’s “most significant.” To substitute for this, the Judge allowed a photograph in which the bra could “almost” be seen. By law I was entitled to a mistrial, because according to the case Brackley v. Donnell, 53 A.D.2d 849, once evidence has been submitted to the jury and is no longer available to it during deliberations, it becomes “physically impossible to proceed with the trial in conformity with law”.

• The Judge repeatedly made statements on the record which reflected his pro-prosecution bias rather than being objective. He expressed concern that the Prosecution be protected from an “inordinate burden” or “negative inference” in the Prosecution’s meeting of its obligation to prove its case beyond a reasonable doubt. (Brief at the Appellate Division, p.68)

Analysis of Additional Comments Made by the Three Peekskill Police Officers

Police

• Police Chief Tumolo, in an article appearing in the Daily News, stated, in commenting on Detective McIntyre who obtained the false, forced confession, “The evidence he developed was so compelling, it was a textbook case.” What evidence?

• An unnamed source at the Police Department, opined that, “It’s unfortunate that he did all that time in prison, but I gotta tell ya nothing improper was done.” First off, was this “unnamed source” even there to know? If not, what did he base his statement on? Is it simply more of the same institutional Us vs. Them mentality in which one part of the system simply covers and invents excuses for the other, lest anyone’s colleagues toes be stepped on?

• Given the circumstances reviewed above, can anyone objectively conclude that “nothing improper was done”? Can anyone conclude that the false confession was voluntary? Are those tactics described, as testified to by the police, consistent with a voluntarily given confession? As a society of law-abiding citizens, is that the way we want our police departments to behave?

• Former District Attorney Pirro, in an article in the Daily News, stated, “No new evidence was presented to my office when I was the District Attorney,” yet, firstly, the same info was presented to D.A. DiFiore, and she allowed DNA Testing to go forward producing the results which could have been obtained years before. And, secondly, why was there a need to have any new information presented, anyway, given that a DNA Test already showed that the semen found in the victim did not match me, and that hair found on the victim also did not match mine. Why was this not enough, especially with the lack of any reason to believe that the victim, only 15 years old, had engaged in a consensual sexual encounter so as to be able to explain the presence of the semen which we now know belonged to the real perpetrator, Steven Cunningham?

• Mrs. Pirro’s spokesperson, speaking to the New York Post, stated, “It’s insane to reopen a case, absent new evidence, merely because a convict says that he is innocent.” My response to that is that in each and every case in which the facts warrant it, a case should be looked at again, because to not do so would be to replicate the type of result that occurred in my case. In light of all the exonerations nationwide which indicate the fallibility of the court system, why would we not want to reexamine cases when we have an objective reason to do so? Why should we not take all steps that we can? Who really benefits from having an innocent person in prison? In my case in particular, A DNA TEST WAS ON THE RECORD AS HAVING NOT MATCHED THE DEFENDANT. IF THAT IS NOT SUFFICIENT TO WARRANT A SECOND LOOK AT A CASE, WHAT IS?

More importantly, I would like to point out that each time an innocent person is incarcerated, it leaves society in danger because it leaves a perpetrator free to commit another crime. In this particular case that perpetrator did go on to commit another crime, a murder.

Finally, Judge Colabella had said “There was no basis for me to set aside the verdict. It wasn’t unreasonable.” Given that neither the DNA, nor the Hair Comparison Test, matched me, as well as the circumstances surrounding the false confession, was his conclusion reasonable? The Judge also said “He got a fair trial.” Given all of the above, can anyone honestly say that comment squares with the facts?

In closing, I ask, was the Deskovic Case “righteously investigated” and handled at all stages?

Saying "NO"

I have spent the last few years stripping away the layers of a wrongful conviction and all that comes with it. The ridicule, the namecalling, the financial, emotional, mental and physical abuse that was determined to destroy my spirit.

It has been difficult at times to separate who I really am from who they told me I was. There were many days the door to the solitary confinement cell would open followed by kicking screaming and yelling. Every word that I spoke was under surveillance and twisted so much I became mute to survive.

I remember the day I let myself stoop to their level and screamed,"Go home and beat your wife instead, but leave me alone!" A few days later I had adapted. I looked him in the eyes the next time he abused his power and said, "I forgive you."

Today I am healing, but I am not whole. If this had been a lover, a restraining order would have been granted the first incident. Instead, I learned to survive in a way I never dreamed was necessary.

As I learn to distance myself from the ridicule, I also gain acceptance. Acceptance that American Justice has been turned over to thugs, that our movement is the modern day Underground Railroad, and that I would not want their conscience, nor their place in history.

I am not ashamed anymore. I never did everything right and I underestimated the evil they were capable of, but I truly do forgive and pity them. I feel sorry for the day when their glass house shatters as the things they believed were in secret are revealed to the world.

The judicial system that I have come to know is a large game of chicken. Those who are intimidated by it become lost in it. I advocate now for others just as I did for myself and I realize that whenever I stand up to this bully, it falls over.

I have to be willing to say the word, "No!" No, I am not who you say I am. No, I will not accept the plea that you offered me. No, I will not keep this secret for you. Teaching others to be so bold is not easy. As I advocate in my local community, many of the therapists, health care providers, probation officers and elected officials have become become too willing to accept the status quo.

When, who and how this culture of toxic shame changes is up to those of us willing to be brave, to heal, to forgive, and to say "No."

Huckabee Being Pounded by Critics For Granting Clemency. But Is It Justified?

Huckabee bashers are off to the races to see who can throw the most blame on the ex-Arkansas Governor for a decision made nine years ago to commute the 108 year sentence of Maurice Clemmons to a term of 47 years making him immediately eligible for parole.

At the time, Pulaski County Circuit Court Judge Marion Humphrey said that the cumulative sentence that Clemmons had been given as a result of multiple offenses was excessive and advised the awarding of clemency as did the parole board. Based on this advice and concurrence by the court, the experts, Huckabee granted the petition for clemency. The Arkansas Parole Board immediately and unanimously approved Clemmons' release on July 13, 2000, and Clemmons was set free on August 1, 2000.

In just seven months, March 2001, Clemmons wasted the second chance given to him and violated parole by committing aggravated robbery and theft. He was convicted on July 13, 2001 and sentenced to 10 years in prison. Subsequently, due to problems with the case (prosecutorial ineptness?), parole violation charges were dismissed. Clemmons was granted parole on the robbery charges in 2004 and managed to stay clear of the law until May of this year when, it seems, he began to self destruct. The culmination of this deterioration was the horrendous attack on the police officers November 29th, 2009.

Some are saying that Huckabee let this animal go or that he turned this monster loose on an unsuspecting society while the truth is that the parole board made the decision to release him. The rhetoric that Huckabee did this purely for political gain also seems a little lame to me. This was nine years ago. No one knew who Huckabee was except the people of Arkansas and he was already Governor. What was to be gained? I have not tried to go back and read the press releases from the time of the commutation but would almost be willing to lay odds that this incident was not even a blip on the radar screen for most of the people of Arkansas.

Huckabee gave this person a second chance and he blew it yet no one appears to be pounding all of the subsequent law enforcement, probation and judiciary personnel who had their hands on him as recently as a few weeks prior to the incident involving the shooting of the four police officers. There were many who, over the course of the nine years since the commutation, had far more reason to keep him behind bars and failed to do so.

The majority of the criticism, of course, is coming from the "tough on crime" right but there are those on the "left" who have also weighed in making this another political football that will have no clear resolution. While you and I may completely agree or disagree on the merits of having Huckabee as president or his stance on any number of issues, in the context of criminal justice reform I don't care what his position is on those other issues. He made a valid, carefully considered decision to commute a 108 year sentence down to 47 years based on the best advice available from the "experts" and a recommendation from the sentencing judge. What else was he supposed to base his decision on, the wonderful 20/20 hindsight that some seem to be blessed with?

The "left" and "right" battle is tearing this country apart to the point where it is almost impossible to hear any rational commentary on any issue. I have seen a few who are willing to put aside at least a little of their prejudice and say that what Huckabee did was the right thing to do. Right/Left, adherence to "party line" ideology is keeping any meaningful dialogue from taking place on too many issues to count and criminal justice reform is high on the list. I have said this before, and will continue to do so until we see change. Politicians have two top priorities. Their number one priority is getting elected, number two is getting re-elected and the needs of "We The People" are a far distant third.

Anyone who follows this blog will know that I am an advocate for H.R. 1529 the “Second Chance for Ex-Offenders Act of 2009”, says so right up there in my bio right? This legislation is a prime example of how partisan politics have, over a period of eight years and six versions, prevented the passage into law of a bill that will benefit untold thousands of ex-offenders not to mention the taxpayer who funds all of this nonsense. Follow along and I'll show you how and why.

In 2003, the third version of the bill, H.R 1434, introduced to the 108th Congress had 33 co-sponsors as follows:

Abercrombie, Neil HI, Acevedo-Vila, Anibal PR, Ballance, Frank NC, Bell, Chris TX,

Blumenauer, Earl OR, Brady, Robert PA, Brown, Corrine FL, Capuano, Michael MA, Carson, Julia IN, Christensen, Donna VI, Cummings, Elijah MD, Davis, Artur AL, Davis, Danny IL, Filner, Bob CA, Frank, Barney MA, Gonzalez, Charles TX, Grijalva, Raul AZ, Jefferson, William LA, Jones, Stephanie OH, Kilpatrick, Carolyn MI, Kucinich, Dennis OH, Lee, Barbara CA, Lewis, John GA, McNulty, Michael NY, Meeks, Gregory NY, Millender-McDonald, Juanita CA, Norton, Eleanor DC, Owens, Major NY, Payne, Donald NJ, Thompson, Bennie MS, Waters, Maxine CA, Watson, Diane CA, Wynn, Albert MD

The number of co-sponsors for subsequent versions then dropped to 27, then 17, then in the current version to Zero. Know why? Partisan politics. The merits of the legislation are not a factor. The first five versions failed under a "tough on crime" Republican administration even though the Democrats controlled congress for much of this time. The current version, H.R. 1529, is in trouble in a completely Democrat controlled administration because there are now no co-sponsors. Again, do you know why? Yep, partisan politics and because not one member of congress has the backbone to stand up and support a bill introduced by Congressman Charles Rangel who is under investigation on ethics charges. They are too fearful of getting a little of Rangel's mud splashed on them. One Republican Senator told a supporter that he would support no legislation introduced by a Democrat period. I am sure that there are Democrats who have made similar statements. I invite you to take a look at the 33 co-sponsors listed. Some of them are no longer in Congress. One, Jefferson of Louisiana, was convicted on Federal Felony charges for hiding ill-gotten booty in his freezer, but consider the majority who are still there; read their names. Do you agree with all that they stand for? How many of them are also, like Rangel, under investigation? Why do they not have their names on the current version of this legislation? Partisan politics.

Here is a thought. Maybe we should have blind, non partisan, introduction of legislation, then an up or down secret ballot based strictly on the merits. Naaa, never work. Too bad, people are hurting while Congress dithers and plays games with their lives.

Behind bars 12 years after officials stated she's innocent

Cheryl Williamson's life was not unlike the lives of other housewives. She was a hairstylist and a mother. She told one client and friend, "My life is like a fairy tale." But Cheryl's fairy tale life ended with the murder of her husband and her conviction in connection with his murder.

The State of Oklahoma pursued charges against Cheryl with controversial district attorney, Robert H. Macy handling the case. Robert H. Macy retired as district attorney for Oklahoma County in 2001 after sending an unprecedented 73 people to death row - 20 of which have been executed. A recent exoneration of one of those people has brought attention to the injustices that occurred under Macy's watch. Truthinjustice.org said of Macy - "...he believes executing an innocent person is a sacrifice worth making in order to keep the death penalty in the United States." Now an innocent woman sits in a prison cell 12 years after Macy's office stated she's innocent and they would prove her innocence. Is Cheryl Williamson just another sacrifice?

Three letters that prove Cheryl's case have recently come to my attention. In one letter, Cheryl's friend detailed Cheryl's case. She stated, "...one day Cheryl told me about a boy that had come into her girls' lives. She wasn't happy about them spending time with him or his brothers...I asked her about the boy situation and she said it had become worse, the girls didn't want to take advice from her or Mike [Cheryl's husband]." Cheryl's friend stated that the situation then progressed to the point that Cheryl asked for advice to tell the boy he was no longer welcome in their home. Cheryl grew afraid of the boy and she told her friend that he was "saying inappropriate and disrespectful" things to her. When the friend later asked Mike how things were going with the boy, Mike informed her that the boy, Gary Southworth Jr., had been arrested when Cheryl had to call 911 and that he would be in jail, according to Mike, "for a very long while." The friend worried and cautioned Mike about Gary wanting revenge. Mike told the friend, "You watch too many movies. I'm not afraid of him." After Gary's release from jail, he shot Mike. Mike died as a result of the attack.

A second letter soon arrived in the mail to Cheryl's daughters that stated, "I have today's paper and I read what happened last night about your stepdad Mike. I'm sorry about what happened. I have a feeling about who did it. 'G' told some people he was going to do it and I was one of them. He told me he was going to do it like it happened. He said in the middle of the night and he was going to take the truck for a spin. That's what happened isn't it?"

Gary was arrested and he told the authorities that he and Cheryl had been having an affair and that it was her idea for him to murder Mike. Cheryl is currently in prison in connection with Mike's murder because of Gary's statement and testimony.

Perhaps the most intriguing letter is one dated November 7, 1997 and said to have been written by Robert Macy himself to Gary Southworth. This letter was faxed to Cheryl's attorney two years later from Macy's office.

The letter from the district attorney's office is a shock on so many levels. To me, the biggest shock is the fact that it's currently December of 2009 and Cheryl Williamson is still behind bars.

Choosing the right criminal defense lawyer

Almost every jurisdiction in the United States allows lawyers, after passing the jurisdiction's bar exam to practice law.  Unfortunately, passing a bar exam does not make someone any good at practicing law.  Being a criminal defense lawyer, I will confine my remarks to that particular practice. 

After graduating and passing a bar exam most jurisdictions will encourage practitioners to engage in Continuing Legal Education (CLE) and some jurisdictions have mandatory CLE.  For example, NY has Mandatory CLE while MA does not.

Clearly, keeping up with the law where you practice is a good idea (I have a fine grasp of the obvious).  But when I say keeping up with the law I mean a lot more than just having a passing familiarity with criminal law, criminal procedure Law, the Rules of Evidence, etc.  Keeping up in the law school  areas is only a little more than scratching the surface these days.

In this day and age the practice of criminal law, once a specialty itself, now has many sub-specialties.  We see appeals lawyers, DWI lawyers, white collar crime lawyers and the list goes on.  Does your case involve a fatal shooting? If so, does your lawyer know enough about tool larks, ballistics and forensic pathology?  Does your lawyer know how to cross examine a medical examiner?

The trial of a criminal case is a very serious undertaking.  From a defendant's point of view, an unsuccessful result often means incarceration, sometimes for years, or worse, death.  The civil bar likes to talk of civil actions where millions of dollars are at stake.  Ask Bernie Madoff how much he would pay to spend the last years of his life a free man.

So why do we see criminal defense lawyers trying cases without the requisite knowledge needed to provide the very best defense possible?  I do not profess to know all the answers to this question but I know some of them.  Inadequate training, lack of knowledge, the lack of experience, too many cases, greed, the desire to get one's name in the newspaper.  The list could fill a page so let's just look at a few of them.

How much experience does your lawyer have?  Has she tried felony cases?  I often hear young lawyers proclaim they have tried and won 20 cases.  Twenty cases is not a lot.  And if the cases were misdemeanor trials rather than felony trials the number is almost meaningless.  Someone that has tried a bunch of petty larceny and minor drug cases really should not be trying murder cases.  When searching for a lawyer to try your case you need to know the types of trials she has done as well as the number.

As I noted above, NY has mandatory CLE.  Initially, a law school graduate must take 36 hours of CLE over a 2 year period in what is known as a "bridge the gap" program which, not surprisingly, is supposed to bridge the gap between law school and the practice of law.  Thereafter, lawyers are required to take 24 hours of CLE, including 4 hours of ethics, over a 2 year period.  In my view, mandatory CLE is very good for the profession.  As does any other program, it has flaws.  Since CLE has become mandatory, everybody and their mother has become a CLE "provider."  Some are very good at it and some are just in it to make money.  It has become a huge industry and is driven, at least in part, by profit margins.  Gone are the days when people put on CLE programs mostly for the benefit of the profession.

I put together a CLE program in New York City about a year ago for a statewide criminal defense association.  It was titled "Murder, Mayhem and Other Bad Stuff"  and included lectures on cross examining a medical examiner, DNA and the cross examination of a snitch (What the government likes to call a cooperating witness) among others.  The program was well received, had excellent attendance, was informative and made some money for the association.  A success in all respects BUT it just scratched the surface of the topics presented.  Lawyers must then continue on their own to increase their knowledge and expertise.  Listening to a one hour presentation on cross examining a snitch does not an expert make.

I have heard families of just convicted defendants say too many times that their lawyer just seemed in over her head, or words to that effect.  Sometimes defense lawyers don't investigate cases or interview experts the way they should.  How does this happen?

Some lawyers just love to be on TV or see their name in the newspapers. They have an obsessive desire for publicity.  Sometimes the best interests of the client get lost in the search for the camera.  It often matters not to these lawyers that they do not have a clue about how to try the case.  Then there are the big money cases where you see attorneys circling like vultures around a wealthy client just waiting to promise him the world.

As you can begin to see, there is much to be considered when choosing the correct lawyer for your case.  Take your time and choose wisely.  And remember, the lawyer works for you, not the other way around.