Gideon v. Wainwright, age 46

Awfully nice of Dennis at SCOIDBlog to remember Gideon on his big day:

Today is the anniversary of Gideon v. Wainwright. A sincere SCOIDBlog thank you to all the public defenders and appointed counsel...

My fellow Idahoans

Please check out my very smart friend Dennis Benjamin's SCOIDBlog:

"keeping an eye on the doings of the Supreme Court of Idaho and the lower state courts from a criminal defense point of view with news, commentary, gossip and rumor, satire, poetry and more."

("Poetry?")(The blog bills itself as a team effort - other Idaho friends appear, including Deborah Whipple - but so far, judging by number of posts, Dennis is the MVP)

"Restoring a bit of America’s lost luster"

Audio from Public Radio International's The World:

Defending a Guantanamo detainee

Anchor Marco Werman speaks with Air Force attorney Major David Frakt. Frakt is defending a Guantanamo detainee named Mohammed Jawad who's accused of the attempted murder of two US soldiers in Afghanistan in 2002...

See also Major Frakt's closing argument to dismiss the case against Jawad, from Discourse.net.

MI: "Michigan is muting Gideon's trumpet"

From the State Bar of Michigan:

Evaluation of Trial-Level Indigent Defense Systems in Michigan - A Race to the Bottom - Speed & Savings Over Due Process - A Constitutional Crisis

The National Legal Aid & Defender Association (NLADA) finds that the state of Michigan fails to provide competent representation to those who cannot afford counsel in its criminal courts... Though the level of services varies from county to county – giving credence to the proposition that the level of justice a poor person receives is dependent entirely on which side of a county line one’s crime is alleged to have been committed instead of the factual merits of the case – NLADA finds that none of the public defender services in the sample counties are constitutionally adequate...

The NLADA news release caption has a sting to it: Michigan Ranks 44th in the Nation for Public Defense Spending; So-called "McJustice" System Puts Communities at Risk

(Via The Grand Rapids Press: Public defender system denies justice to poor, report says)

Update: via Disgusted Beyond Belief, here's a link to the Michigan Campaign for Justice, "fighting for a fair and effective public defense system."

ID: Boisean off the Guantánamo express

There's a special place in heaven reserved for David Nevin. From the Idaho Statesman:

Boise lawyer critical of 'show trial' at Gitmo - David Nevin says Bush officials are rushing the proceedings for the 9/11 suspects and want a conviction at any cost

Boise lawyer David Nevin said Friday that a military court's decision to let the alleged mastermind of the Sept. 11 attacks represent himself threatens a fundamental constitutional principle, the right to competent counsel.

"This is not a fair proceeding," said Nevin, a volunteer lawyer for the defense. "This is a show trial, and it's a secret trial. The United States of America is not going to look good at the end of this."

WA: acting weird - now constitutionally protected in Washington State

See what a little motion to suppress can do. From the Olympian:

WA court: Police pat-downs can't be based on odd behavior

In another nod to the Washington Constitution's broad privacy protections, the state Supreme Court has thrown out the drug conviction of a man who was searched by police solely because of his weird behavior. Thursday's unanimous decision reinforces the rules for simple pat-downs under state law, which offers stronger safeguards against police searches than the U.S. Constitution...

The case is State v. Setterstrom (pdf file).

From Eye on Olympia:

Meth conviction tossed out; police frisk was unjustified...

An officer may frisk a person... if stopping the person was justifiable, if the officer has "a reasonable concern of danger" and the scope of the search is limited to finding weapons. But Setterstrom presented no reasonable danger, the court ruled. His "nervous, fidgety behavior" wasn't enough. There were no threatening gestures or words. And he remained sitting down. And it's not unreasonable to think that people filling out a state benefits form for unemployment might "exhibit erratic behavior..."

Big salute to Thurston County public defender Deborah Murphy, who preserved the issue at the trial level.

ID: "not a fence-mender, not a pacifier, not a negotiator. He’s a warrior!"

From the Idaho Statesman:

9/11 trial will test Boise attorneys - Defense team members David Nevin and Scott McKay will be ‘making sure the government plays by the rules’ in the case of Khalid Sheikh Mohammed

As Idaho’s most famous defense lawyer, David Nevin is no stranger to unpopular causes. But his decision to defend the man the government says planned the attacks of Sept. 11, 2001, puts him in a league of his own... Nevin and his partner, Scott McKay, have volunteered to help military lawyers represent Khalid Sheikh Mohammed, the most important detainee of 300 suspects held at the U.S. military prison at Guantanamo Bay in Cuba. His defense is the top priority of the ACLU’s John Adams Project, which is raising money and finding lawyers to help represent the detainees...

McKay and Nevin will be working with Navy Reserve Capt. Prescott Prince, the lead defense lawyer in the 9/11 case... Nevin, 58, graduated from the U of I Law School in 1978. His career is marked by a string of celebrated defenses, from neo-Nazis to Idaho’s worst environmental criminal... A 2004 terrorism trial prepared Nevin and McKay for the new case. They represented Sami al-Hussayen, a University of Idaho graduate student and Saudi national charged with three terrorism-related offenses. Despite a rush to judgment... a Boise jury acquitted al-Hussayen.

But the case that first made Nevin famous was Ruby Ridge, when his client, Kevin Harris..., was cleared of all charges by a federal jury in Boise after a 60-day trial... “I like to remind people that Gerry Spence’s client went back to jail,” said Tom McCabe, a Boise lawyer who has worked with Nevin. “Kevin Harris walked out the front door of the courthouse with David...”

Skelly Wright and Ruby Bridges

My son's been learning some good lessons this week. At the moment, he and I are watching a movie that he brought home from school about one of his new heroes, Ruby Bridges.

I was pleased to Google her story and find the connection to one of my old heroes:

On November 14, 1960, a 6-year-old Bridges, escorted by four gun-toting US federal marshals, walked past a screaming mob of angry white people to do the unthinkable in New Orleans at the time: Go to school with white children...

Backed by an order from Federal District Court Judge J. Skelly Wright, she walked quietly up the steps of William Frantz public school, past youths who were chanting, "Two, four, six, eight! We don't want to integrate..."

My third-grader is incensed by the way the people in the movie are treating this first-grader. Thank you, Ruby. G d bless you, Joe.

ID: drug court due process and not-so-incorrigible kids

I don't have much occasion to read up on Idaho caselaw since I, well, no longer practice in Idaho, but I liked these recent opinions:

State v Paul Lawrence Rogers, No. 33935 (October 22, 2007) (pdf file here):

In a unanimous decision, the Supreme Court ruled that where a defendant was required to plead guilty in order to enter into drug court, he had a liberty interest in remaining in that diversionary program, and held that drug court participants are entitled to due process rights such as those afforded to parolees in Morrissey v. Brewer prior to termination from the program. The opinion was authored by one of my old TF judges, Justice Burdick.

In the Matter of Doe, No. 33475 (November 1, 2007) (pdf file here):

The Court of Appeals found that raising one's voice a little is not sufficient to bring a youth within the purview of the Juvenile Corrections Act. I'm pleased as punch to send congratulations to the lawyer who argued and won the appeal, Robin Weeks of the Twin Falls County Public Defenders Office - I hired her, you know.

In re Gault at 40

From NPR:

Gault Case Changed Juvenile Law

In 1967 a landmark U.S. Supreme Court decision gave juveniles accused of crimes the same due process rights as adults. The case involved Jerry Gault, who at 14 was given a seven-year sentence for a prank phone call. Gault's story didn't end there...

Listen here (Link via CrimProf Blog).

Bonus links go to The Gault at 40 Campaign -

The goal of the Campaign is to raise awareness and draw attention to the problems children face in the juvenile indigent defense system and to ensure that all children will be treated with respect, dignity, and fairness...

- and for the youths, Know Your Rights (named after the Clash song I think), answering common questions such as:

* What do I do if I can’t afford a lawyer?
* Will that lawyer be as good as a lawyer who charges me money?
* But if I talk to my lawyer and tell her what happened, will the courts find out?
* But I’d rather just go home quickly. Won’t having a lawyer make it harder?
* Won’t police, judges, prosecutors and probation officers be nicer to me and think I’m a better person if I just cooperate with them without the hassle of a lawyer?

Sure, but it's JUDGE Wright to you!

Passing along today's e-mail:

Dear Mr. Wright,

Greetings. My name is Dwight Dyer, and I am an organizing fellow at Working Assets. I would like to invite you to join our campaign to protect our Constitutional principles and restore Habeas Corpus. As you may know, the Military Commissions Act of 2006 stripped habeas corpus rights for certain detainees under U.S. custody.

This legislation is injurious to our system of justice, and we believe the legal community should be at the forefront of the effort to protect freedom, fairness, and due process of law. For these reasons, we invite you to become signatories of our Lawyers for Habeas petition, which you can find at:

http://www.workingassets.com/lawyersforhabeas/

Also, we want to strongly encourage you to reach out to your colleagues in the broader legal community and urge them to become signatories. To this effect, we are asking progressive bloggers in the legal community to simultaneously post about this issue, on the morning of Wednesday, May 16th, when the House will consider a motion to restore habeas.

Join us in demanding Congress ensure that our laws reflect who we are as a society, a people committed to accountability and basic fairness. Also, we encourage you to join us in one of the upcoming district meetings with key Senators or their staff to deliver the message in person.

Sincerely,

Dwight D. Dyer, PhD | Organizing Fellow | Working Assets

I think that the honorable Skelly would approve.

IA: "This is our government, in our name, doing this, which to me is unacceptable"

From KCCI:

Gitmo Federal Attorney Speaks Out - Des Moines Woman Says Defending Prisoners Frustrating

"I was appointed to represent these gentlemen. They didn't even know they had a lawyer for a year because I wasn't allowed to write or visit them," said federal public defender Angela Campbell.

Kyle Sampson: the executioner's song

Slate calls him "the reluctant executioner." Crooks and Liars has links to video highlights from TPM Muckraker of D. Kyle Sampson's terrible, horrible, no good, very bad day. Such hubris going in, and then:

the culmination of the hearing, where a very, very tired Kyle Sampson admits that if he had it to do all over again, well...

Surely this has been hard on the fired USA's and their families, too, but I'm feeling a twinge of sympathy for the presumptuous little hack, variations of whom I've known from grade school through law school and beyond.

Not all Zoobies are Bushies

Even though Brigham Young University's commencement speaker this year is Dick Cheney (great timing! topical and cringe-inducing!), it's not like everybody from BYU is defending the disgraced Bush administration ward heeler D. Kyle Sampson, or sharing the sort of mind-set that produces headlines such as "BYU Grad Falls Victim to Attorney Purge."

From the BYU NewsNet readers forum:

Questionable Integrity

In "BYU alumni Sampson resigns in controversy" (March 18) on Kyle Sampson's abrupt exit from the Justice Department professor Earl Fry is quoted as saying Sampson is "a good man with a lot of integrity ... a good soldier who has fallen on his sword in order to protect his boss, the attorney general."

I may be missing something here, but it seems to me Sampson is covering for an attorney general who fires U.S. attorneys based on their investigations of his political allies (after he told Congress under oath he would do no such thing), who uses his clout with President Bush to get Bush to deny security clearance to those tasked with investigating his alleged crimes in the illegal wiretap cases, and above all who destroys the sacred Constitution of the United States in the name of fighting terrorism. Covering up for such a man may make Sampson a good soldier, but it most certainly does not make him a man with a lot of integrity.

I hope Fry isn't teaching any ethics classes.

Nate White
Lewisville, Texas

Define Integrity

In the article on the resignation of Kyle Sampson (March 18), political science professor Earl Fry is quoted as a sort of character witness. Professor Fry calls the man who apparently managed the politically motivated firing of several U.S. attorneys and spearheaded the preparation for the ensuing cover-up "a good man with a lot of integrity."

Fry's definition of integrity mystifies me. Sampson advocated deceiving members of Congress about Department of Justice actions and motivations. He recommended claiming potential deceptive stalling actions were all done in "good faith."

I don't know Sampson, but the e-mails he has authored make him look to me less like a man of integrity and more like a devious and deceptive political operative with no discernible principles whatsoever.

It is my hope that BYU, which I attended for one year, will take a look at this product of its education and start to emphasize virtues like honesty and guilelessness over ambition and loyalty-at-any-cost.

Kim McCall
Menlo Park, Calif.

Here's another old article from the Y about Kyle "loyal Bushie" Sampson, this one from 2002:

Y grad advises President Bush

A BYU graduate has made his way into the White House. Kyle Sampson graduated from BYU in 1993 with a degree in American studies. Now, less than 10 years later, he is advising President George W. Bush as associate counsel to the president. "I've been really lucky. I've just been really blessed to have the jobs I've had," Sampson said. "I was just in the right place at the right time..."

After completing his studies at BYU, Sampson attended the University of Chicago Law School... After clerking for a federal judge, working in the appeals department of a Salt Lake law firm and serving as counsel for Senator Hatch, Sampson was appointed to his current position. "It's pretty lucky to get this kind of job. I love it," he said...

Sampson has learned that the beliefs and intentions of politicians are different than people might think. "I think people are cynical about politicians and they think those office holders are just there to serve their own interests," Sampson said. "I don't think that's true. The two politicians that I've worked for, Senator Hatch and President Bush, are both really committed and focused on doing the right thing for the right reasons," he said.

Sampson said every decision Hatch and Bush make is for the betterment of the lives of the people they represent. "I think both of them are really altruistic public servants. It has really been a big honor for me to work for them," Sampson said. Although being on the White House Council has been rewarding for Sampson, it is not without stress. "It's crazy-stuff flying at you all the time," Sampson said. Sampson works on everything related to the president's constitutional power including appointments, picking federal judges, granting presidential pardons and proposing legislations...

Kyle Sampson: sympathy for the hit man

You probably only know D. Kyle Sampson as the ruthless, recently resigned chief of staff to Alberto Gonzales:

By avoiding Senate confirmation, Sampson added, "we can give far less deference to home state senators and thereby get 1.) our preferred person appointed and 2.) do it far faster and more efficiently at less political costs to the White House..." Sampson wrote: "Domenici is going to send over names tomorrow (not even waiting for Iglesias's body to cool)."

But the disgraced consigliere has a kindler, gentler side. Before Sampson and his favorable write-ups disappear down the memory hole, here are some links to happier times:

From LDS.org, July 12, 2002 - Advising the President

Church member Kyle Sampson knows he's landed a dream job. As associate counsel to United States President George W. Bush, he appreciates working for a dedicated Christian. Sampson said President Bush is a committed follower of Christ, which makes him a great boss...

From BYU Magazine Spring 2003 - Presidential Counsel

On his path to the White House, D. Kyle Sampson, ’93 has blazed a trail for BYU graduates to follow. During the past seven years, Sampson has served as a lawyer at the highest levels of all three branches of government: the Congress, the White House, and the Judiciary. As a legal advisor to President George W. Bush, Sampson is playing a key role in the lives of both American citizens and BYU alumni...

"We are blessed with the best system of government in the world," says Sampson. "The founding fathers were truly wise men raised up to establish our Constitution..."

Although he may consider his role to be of small importance, some BYU graduates may not agree. Taylor Oldroyd, a friend of Sampson and member of the Bush Administration, feels he has been instrumental in assisting the Church. "Kyle has played a key role in many of the Administration’s personnel decisions and is the reason so many BYU alumni, including myself, have positions in the Bush Administration."

Working long days for President Bush, he often returns home just in time to read to his children and put them to bed. Sampson appreciates his wife Noelle for supporting him while he serves his country. "There is a small moment in time when I can engage in this sort of public service," says Sampson. "I know it will come to an end, so that makes the long hours worthwhile."

And so it has. Good riddance, button man.

OR: "I too was abducted and stripped of my freedom"

This week Project Hamad has a guest post from Brandon Mayfield, who knows something first-hand about false accusations and unjust incarceration:

His story is a cautionary one for anyone who thinks the suspension of habeas corpus, or the passage of the Patriot Act and the Foreign Intelligence Surveillance Act (FISA), have no implications for the civil rights and liberties of law-abiding citizens. A Kansas-born U.S. citizen, a former Army lieutenant, an attorney in Portland, Oregon, Brandon Mayfield was wrongly accused and incarcerated for the terrorist bombings in Madrid, Spain...

ID: more than a feeling

From the Idaho Supremes, this ruling:

The “subjective feeling” of a police officer that his safety was threatened by an individual pulled over for a routine traffic violation is not enough to justify an extended search for a weapon... especially when the officer is unable to articulate why a person might cause such danger.

Via The Courthouse Steps, the case is out of Jerome County, State v. Henage, 01/26/07 (pdf file).

All is quiet on New Year's Day

Take a moment to read the beginning of the year thoughts of John Wesley Hall, Jr., "a rumination on where we fit in to the criminal justice system and with a little about quality of life.":

I can't remake the facts, but I might be able to control the damage or even win. None of us has the luxury of representing only the innocent or prosecutors prosecuting only the guilty. We lose at trial. It is part of the job...

If I can get a few lawyers to better understand the fabric of search and seizure law and they become better lawyers and better serve justice, then this blog has been successful...

Oh yeah, no cases today.

His blogs are Fourth Amendment.com and Law of Criminal Defense. They will benefit you professionally and personally.

Darkness at noon

Indefensible. Barbarous. Beyond sickening.

Skelly Wright: now more than ever

"Secret arrests (are) a concept odious to a democratic society."

J. Skelly Wright, writing in Morrow v. District of Columbia, 417 F.2d 728, 741-742 (D.C.Cir.1969), and cited from left to right in our own time of crisis.