What's a normal job like?

The other day I'm in court with a 17 year old with adult problems: Homeless, mental health problems that he self medicates with alcohol, lives in the woods. Last go-round he spent 30 days in the adult jail before someone figured out his real age. Two hours after his release he stepped out in front of a police car drunk and holding his inevitable can of Steel Reserve. Cop slammed on the brakes in time but arrested him.

Now, in court, he's not doing well. Tells me that he's going to kill someone if he's stuck in Juvenile with a bunch of kids. Tells the judge that he can't think straight because he's sober. Getting pretty agitated.

We eventually get him out of there without huge problems, but the prosecutor mentions that he noticed me edging away from the guy as I stood next to him at the lectern and other security staff moved up behind him. Of course I was; I don't need to be added to the long list of defense lawyers who've been punched out by their clients this year. If he does go off I'm the closest target, and while I'm bigger than average fighting inmates isn't in my contract.

So tell me again why I like dealing with this sort of thing? I never had to worry about bankers and insurance adjusters punching me out at my last job!

look around from work

Today I'm running from one courthouse to the other, usual busy day of too much to do and too many places to be. At one point, the highway crosses a creek at the point it empties into Puget Sound. I glance over and notice a lot of big, black birds with white heads standing around. This I gotta see: I pull off the road at the overlook. Sure enough, there's at least a dozen bald eagles out on the delta, feasting on the tail end of the chum salmon run.

I live in a place where whales and bald eagles are fairly common; one of the most beautiful places on Earth. I have to remember that as I scramble to keep up with my life.

The other day I'm working in Truancy Court in a fairly small courtroom and they add on some guy who was arrested the night before. Not important why, but if the cops shoot at you and miss it should be taken as a signal that it's time to reexamine how you live your life. He needs a bail hearing now, and I'm available to do it.

His girlfriend shows up too, and he's telling her "I love you... Call my family and tell them where I am.... Wait for me and I'll be out soon...I love you..." The jailers tell him to stop talking to people in the audience, and tell the g/f to knock it off or they'll kick her out. So he turns to me:

"You're my lawyer? I can talk to you, right?"

"Right. Let's talk about where you're going to live if you get released."

He looks right at me.

"I LOVE YOU. CALL MY FAMILY AND TELL THEM WHERE I AM. I LOVE YOU!"

Weirdo. Just when you think you've seen it all.

A feel-good story

I used to do a lot of dependency work, representing parents whose kids had been taken away by the Department of Social & Health Services. About a year ago the State centralized most of that work and I moved on to other things. I can't say I miss it much. The stories were usually tragic, the clients usually had personality disorders or some other mental disability, and the social workers were inconsistent. Some were terrific (Hi Mom!) some were just serving time, and some were on power trips.

Anyway, the other day I was in the courthouse doing some other work and some guy came up to me in the hallway and said

"You're Erskine, right?"

"Yeeesss..." ( I feel that "Who's askin?" is unprofessional)

"I'm a social worker with OPD [the agency that now represents parents in dependencies]. I've been working on Tom Joad's case."

Now, Tom was an unusual case for a dependency. He was a single parent who honestly loved his son and worked hard at being a good parent to him. He didn't abuse substances and kept an immaculate house. The difficulty was that his son had some challenging mental health/developmental issues and Tom wasn't all that bright himself. He also had a rigid approach to life that didn't mesh well with the school counseling or DSHS staff, and frankly probably not too well with his son's needs. I thought taking the kid out of home was overkill; the State didn't and we had a major battle in court over it. Lots of parents in that position can't be bothered to show up consistently for visits with their kids; Tom showed up early every time and was constantly demanding permission to take his son fishing or camping.

Back to the courthouse:

"I read all the transcripts and exhibits on that case. You really fought hard for that guy. He's about to get his son back, and you laid the foundation for that to happen. I always wanted to meet you and thank you for what you did."

You never get rich doing what I do. The big money lawyers are in the downtown skyscrapers. I tried that right out of law school and found that arguing about moving money from one pocket to another bored me to tears. I make enough money to keep my family comfortable, and that's all I need.

The real rewards are the memories:

The hugs from a defendant and/or his family as the guards take the shackles off after the jury says "Not Guilty" or the judge says "Motion to Suppress granted".
(Here's the difference between prosecutors and defense lawyers:
Prosecutor: "How can you let those people hug you?"
Defender: "How can I not?")

The teenager who says "Now that I finished inpatient and have been clean for a year, I understand why you never let up on me about not using meth. Want to come to my high school graduation?"

Got another one this week.

What's my winning percentage?

Prosecutors like to talk about winning over 90% of their trials. What that ignores is that they pick the cases they take to trial. I, like every defense lawyer, regularly get sweetheart offers on marginal cases. That leaves the cases where there's either a huge difference of opinion or, more often, no real defense and a client who won't face reality.

Last year I had a kid who broke into the local burger stand and swiped some change and a case of Frappucinos (maybe we should have made him drink them as punishment, but anyway....) He goes to the cop shop a block away, walks up to the first uniform he sees, and says:

"I'm turning myself in."

"For what?"

"I just robbed Joe's Burgers."

"Wait right there...[radio] Hey Barney! Drive by Joe's Burgers and see if somebody broke into it!"

"[radio] Yeah, the window's busted and some jerk pried the till! There's most of a case of Frappucinos across the alley here too!"

"You have the right to remain silent....."

"Never mind all that, I DID IT!"


When this works its way through the system, the prosecutor really doesn't want to spend time on the trial. Young Einstein, on the other hand, wants his day in court. No matter what the prosecutor offers to drop, he's going to trial!

I, of course, am scratching my head for something to say in his defense. "My mom's on crank and last I heard my dad was in prison again" may be true but is an argument for sentencing, not guilt.

Naturally, this got added to the prosecutor's winning percentage. Kid ended up convicted of a lot more than he would have if he'd made a deal.

Contrast this with the Great Crow Caper. My client in that one had a pet crow that lived in a cage on his porch. The door stayed open except at night (to protect him from raccoons) and the crow would come out, fly around, chase thrown bottle caps, sit on my client's shoulder, and eventually hop back into his cage to rest.

Problem is that what my client saw as a happy friendship was seen by the State as "keeping captive wildlife without a permit". The game wardens eventually got a warrant to seize the bird. Acting on the warrant, they search the client's whole house (for the record, it is a foul libel that game wardens are hired from the guys who flunked the State Patrol IQ exam), finding funny white powders in the back bedroom along with a variety of other illicit materials. This leads to the client being charged with a bunch of drug crimes good for about five years in the concrete hotel.

I file a suppression motion, basically arguing that there was no need to toss the entire house to confiscate a bird off the porch. Two days before the hearing, the prosecutor calls and offers to reduce everything to a misdemeanor possession of marijuana and two days in jail. After some arm twisting, my client accepts.

Technically, the prosecutor got to put that one in the "win" column. After all, my client was convicted of a crime. On the other hand, a weekend in jail is a big improvement over five years in prison. Personally, I felt good about the result.

Put your kid first dammit!

One of the toughest situations for a juvenile defender to deal with is one where the client is the subject of a custody fight between the parents. Each parent wants to blame the other for the fact that the kid is in trouble, each wants to bring all the allegations from the custody battle up in Juvenile Court, and each wants to be in control of what happens with the kid.

It's a given that the kid has to make his/her own decisions about the case. In Juvenile Court, though, they tend to rely on their parents to understand this scary part of the adult world. If the parents are fighting over the kid's future already, it gets really confusing for the kid.

I've seen studies that indicate that parents who engage in protracted custody disputes have most of the symptoms of personality disorders. It's one reason I quit taking family law cases several years ago- I'd rather take the afternoon off than spend it on something like that.

So here I go again forcing boundaries on parents who have none of their own. God, it gets tiring.

I've been doing a lot of child support contempt hearings recently- i.e. "pay your child support or you're going to jail!"

What I'm realizing is that the huge numbers you see these days for child support left unpaid these days by "deadbeat dads" are mostly illusionary. What they consist of is child support that wasn't calculated correctly in the first place.

This morning I was talking to a typical mope in this position. I'm going over the original order with him:

"This says you earned a gross of $5000 per month at the time, making your child support $1250 per month. That right?"

"Naw, I never earned $5000 a month in my life."

"Why the #@%$ did you sign this off saying you did, then?"

"I wanted the divorce over and I figured she would settle down once it was done with."

Four years later, she's asking for him to go to jail because he's not paying $1250 per month support out of a take-home of $1200.

Now, obviously he bears most of the blame for signing off on the $1250 per month support in the first place. My point, though, is that his ex was never actually entitled to that; his correct support amount should have been around $350- which he actually could pay. The $900 per month difference is an illusion that he never earned or should have owed.

That probably makes him stupid. It doesn't make him a deadbeat, and shouldn't be counted as part of the huge backlog of unpaid child support you hear so much about.

Not just a river in Egypt

Ten days ago, a mother calls me absolutely hysterical that her (16 YO) daughter is being held in custody for the first week of school. Her Highness was arrested over the long weekend when the cops found her drunk in a car with her equally drunk boyfriend. I point out to her that this is the third similar incident in less than a year. She doesn't want to hear it: the on-duty lawyer was a "public pretender"- scores a lot of points with me- the probation officer didn't care about her daughter, the prosecutor was a jerk, the judge was rude, and anyway it was only one beer, Her Highness had a hard day at the fast food emporium, and why should we believe the PBT, and, and, and... and I need to get down to the courthouse and get her released before school starts tomorrow. I explain that it Ain't Gonna Happen- no doubt making me (on the 19th anniversary of my swearing in to the Bar) something less than a Real Lawyer.

I call around to see what's up, and discover that HH has DUI charges in two local courts that she didn't mention to anyone at Juvenile Court. In one, she was racing the same boyfriend on one of the main arterials- both drunk again- and lost control of her car. Luckily, she missed any other cars when she spun out and hit the curb on the other side of the street. When the same cop that busted her for that found her drunk in a car AGAIN, she became a guest of the State, bringing us back to the start of this story.

Yesterday I'm talking to HH, who is actually a pretty nice kid. I got her into Drug Court, and she's got her head straight and is ready to step up and deal with the problem (we'll see if she remembers that once she gets out). She mentions that her family has a history of alcoholism, and that Mom smelled of alcohol when she came to visit the other day.

AH HA. Suddenly this all makes sense!

Goldilocks and crim pro

This morning one of the commissioners I regularly appear before decided to explain the criminal process to some 11 year old using the analogy of Goldilocks and the three bears. Naturally, at the break, I had to goof on her:

"These handcuffs are tooooo loose!"

"These handcuffs are tooooo tight!"

"These handcuffs are juuuust right!"

Turn around to find some parent staring at me in disbelief. Hey, do this for a while and see if you start to think this way...

I have a slight fascination with the stuff that people wear to court. Teenage girls seem to always be looking for creative ways to show too much skin- a few years ago it was jeans cut way too low, now the jeans are higher but the shirts are cut way too low- but that's arguably the fashion.

A couple weeks ago I had a kid show up, recently released from juvenile prison for a gang related offense. Claimed he had gone straight and quit bangin'.
"Why the !@#$ are you wearing red from head to toe, then?
"Uhh.. it was all the clean clothes I had?"
Well, let's hope for the best.

The t-shirts defendants, especially, wear are what makes you wonder if they have any chance of functioning in society. What impression does it give, for example, to show up in court with "MGD-IT'S TIME TO DRINK BEER!" in three inch letters on your chest?

Saw a couple new ones this week. One's shirt had a large "smiley face" with a bullet hole in the forehead. Another kid was waiting for a probation appointment in a shirt that said "THE MAN" with an arrow pointed up toward his face and "THE LEGEND" with an arrow pointing down toward his crotch. Bet the probation officer was impressed. Hope it wasn't a sex offense.

I was doing my best to hide it....

So today the Court of Appeals reversed a judge who tried to hold me in contempt.

Drug Court rejects the guy Friday afternoon, I don't hear about it by Monday morning and don't show for the hearing, thinking the guy's in Drug Court. Several other attorneys tell me they would have done the same thing.

At oral argument, I mention that the judge gave me two days in jail in his initial order. Jaws drop and eyebrows fly up.

"Is that in the record?"

"Sure is!"

Reading the opinion, I suspect that the judges were as appalled as everyone else.


A few years ago I won an appeal on a difficult search and seizure issue. Naturally, the Court of Appeals doesn't publish the opinion. Let me make a mistake (and the judge make a bigger one) and it's now a published opinion. Of all the things I didn't want to be famous for!

In the trial court, I told the judge (roughly):

"I spend my days demanding respect for the rights of people who did something they shouldn't have. It might be easier to just pay the fine, but why should I hold you to a lower standard for me than I demand for my clients?"

I can't understand conservatives. Those who talk about freedom the most seem to respect it the least, at least as applied to anyone who doesn't share their view of the world.

Lately the complaint has been that the Supreme Court (encouraged by those damn liberal lawyers) invented a new right to habeas corpus for the prisoners at Guantanamo Bay. Uhh....the writ of habeas corpus is about a thousand years old, and nothing the Cheney Administration has done hasn't been tried before.

And those damn liberal lawyers? They have forbears too. What did my ancestors say in 1320?

It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom -- for that alone, which no honest man gives up but with life itself.

-from the Declaration of Arbroath.

I suspect that the modern supporters of King George, had they been alive back then, would have cheerfully submitted to Edward 2 rather than take the lonely stand with the Scottish nobles who signed the Declaration- after soundly defeating Edward's far superior forces at Bannockburn- and declared that they would either be free under Robert the Bruce or fire him and find another King.

Why, then, do the modern conservatives reject the idea that Presidential power should be limited? My father claimed that the only true emotions are fear and love, and if you're not acting from one, you're acting from the other. Conservatives these days are acting from fear. In the long term, that's not sustainable.

Truth, Justice, and the American Way

I sometimes use the above phrase to jokingly describe my job ("How's work? " "Another day of upholding TJATAW") Where else, though, does one get paid to argue for the fundamental principles that make this country great?

Last month the Supreme Court, finally, held that the Constitution means what it says: "The privilege of the writ of habeas corpus may not be suspended..."

As Teddy Roosevelt said, "No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor."

When the history of this era is written, one of the turning points will be the prisoners at Guantanamo struggling to comprehend a country where lawyers, working for nothing more than patriotism, can and do drag the President before the Supreme Court on their behalf to demand that they be treated with justice.

So, in honor of Independence Day, I give you the words of one of my colleagues (and I hope I will one day be this eloquent):

Major David J. R. Frakt’s Closing Argument in Favor of Dismissal of the Case Against Mohammad Jawad (6/19/2008)

"On Feb 7, 2002, President Bush issued an order. The order stated, in pertinent part “I accept the legal conclusion of the Department of Justice and determine that Common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees.”

“I determine that the Taliban detainees do not qualify as prisoners of war…al Qaeda detainees also do not qualify as prisoners of war.”

“Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment… As a matter of policy the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

With these fateful and ill-advised words, President Bush, our Commander-in-Chief, perhaps unwittingly, perhaps not, started the U.S. down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of “the ends justify the means,” before plummeting further into the bleak underworld of barbarism and cruelty, of “anything goes,” of torture. It was a path that led inexorably to the events that brings us here today, the pointless and sadistic treatment of Mohammad Jawad, a suicidal teenager.

President Bush’s words were important, and deserve special attention. For those of us in the military who have faithfully attended our annual Law of Armed Conflict training, or in my case, have given the training many times, the Geneva Conventions and humane treatment were synonymous, they were one and the same. The Geneva Conventions represented the baseline, they embodied the determination of the world to make war a more humane enterprise, to prevent a descent into wholesale barbarity, as had occurred during the Second World War. But now we were being told that humane meant something else, something less, than the Geneva Conventions. And we were being told that we could act inconsistently with the Geneva Conventions, when military necessity demanded it. Those of us who were familiar with the Geneva Conventions, whose job it was to know them, were puzzled and deeply troubled by the President’s order and had serious forebodings about the implications of such a decision. We understood that there were no gaps in Geneva, there were was no one who fell outside their protection, that Common Article 3 applied to everyone.

But the civilian political appointees of this administration intentionally cut out the real experts on the law of armed conflict, the uniformed military lawyers, the JAGs, were out of the loop, for fear that their devotion to the Geneva Conventions might pose an obstacle to their intended course of action. The State Department, led by Colin Powell, tried to raise a red flag, but to no avail. Instead, the administration chose to rely on the infamous torture memos by John Yoo, Robert Delahunty and Jay Bybee. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrapheap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammad Jawad.

I’m sure that all of these people, the President included, thought they were doing what was best. But what sometimes appears to be in the interests of America at first glance, upon further reflection reveals itself not to be. Interning Japanese-Americans during World War II perhaps seemed like a good idea at the time, but in hindsight we can see that it was a terrible injustice, inconsistent with American ideals and utterly unconstitutional. It is a shameful episode in our history, a xenophobic overreaction. The conscious, deliberate decision to abandon the Geneva Conventions and the entire fiasco that is Guantanamo will undoubtedly be viewed by historians as an even more disgraceful chapter in our history.

The Feb 7, 2002, order of President Bush invited the rule of law to be circumvented. Even though the President paid lip service to humane treatment, by stating that detainees were not legally entitled to be treated humanely, and by his qualification of “to the extent appropriate and consistent with military necessity” the implication was clear — it was only policy to be humane, not a legal requirement, and there would be no legal consequences to those who didn’t treat detainees humanely, if there was some military justification for it. Of course, during a “global war,” it is possible to rationalize almost anything under the general rubric of military necessity. After all, if there is even a slight possibility that some military advantage might be gained by some course of action, don’t we owe it to our troops to do it? If there is even a minute chance that some sliver of intelligence might be gleaned about an impending terrorist attack, don’t we owe it to the American people to do everything in our power to extract it? The obvious answer to most of those working in detainee operations at Guantanamo and elsewhere was “Yes.”

Adding to the pervasive atmosphere of lawlessness in the early days of Guantanamo was the administration’s assertion that the detainees could be held indefinitely without charge, without access to counsel, without any recourse to challenge their detention. The administration asserted that the detainees were beyond the reach of any federal court and were not eligible for habeas corpus, a hallowed right guaranteed by the founding fathers of this great country. In effect, the administration created a legal black hole at Guantanamo, a policy universally decried by our even our staunchest allies in the war on terror, but steadfastly defended by the administration.

If there was any doubt that the President intended unlawful tactics to be used, all doubt was erased when Secretary of Defense Rumsfeld authorized, on Dec 2, 2002, numerous extra-legal special interrogation techniques. These techniques and how they were developed and utilized were the subject of hearings before the Senate Armed Service Committee yesterday and are described in detail in the book Torture Team, which I have attached to this motion. I’m sure Phillipe Sands would be honored to have his book included in the record of this commission.

Eventually, cooler and wiser heads started to inject some rationality into the treatment of the Guantanamo detainees. Unsung heroes like Alberto Mora, Navy General Counsel, and Admiral Jane Dalton, and the service TJAGs Gen Rives, Gen Romig, fought vigorously for the restoration of Geneva. But it ultimately took the intervention of the Supreme Court to restore the rule of law to Guantanamo. The Court intervened and made it clear that the Geneva Conventions did apply to detainees at Guantanamo, and that they did have the right to habeas corpus, a right that Congress has twice, unsuccessfully, attempted to take away. This fight to restore the rule of law took time, years in fact, in which the detainees of Guantanamo continued to suffer indignity and inhumanity. It was not until July 2006 when the Deputy Secretary of Defense Gordon England issued a memorandum stating that “common Article 3 of the Geneva Convention applies as a matter of law“ to the treatment of detainees held by the Department of Defense, and that the “humane treatment [is] the overarching requirement of Common Article 3.” Unfortunately, by then, the damage had already been done, both to the detainees and to the reputation of the United States as a law-abiding country.

America is a nation founded on a reverence for the rule of law. We should never forget that when we take an oath to enlist or be commissioned as an officer in the United States Armed Forces, we do not swear to defend the United States, we swear “to support and defend the Constitution of the United States against all enemies, foreign and domestic.” The Oath of Office for the President contains similar words: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Tragically, under the undeniably heavy pressure to defend Americans from terrorist attack, some of our military and civilian leaders lost sight of their obligation to defend the Constitution as well.

Under the Constitution all men are created equal, and all are entitled to be treated with dignity. No one is “undeserving” of humane treatment. It is an unmistakable lesson of history that when one group of people starts to see another group of people as “other” or as “different,” as “undeserving” as “inferior,” ill-treatment inevitably follows. In the Global War on Terror generally and in the detention camps of Guantanamo especially, the detainees were seen as “terrorists,” as “the worst of the worst” something less than human, and were treated accordingly. After six and a half years, we now know the truth about the detainees at Guantanamo: some of them are terrorists, some of them are foot soldiers, and some of them were just innocent people, caught in the wrong place at the wrong time. But the detainees at Guantanamo have one thing in common — with each other, and with us — they are all human beings, and they are all worthy of humane treatment. We should also never forget that no one in Guantanamo has been convicted of a single crime and that even in these deeply flawed military commissions, they are entitled to a presumption of innocence.

Throughout the Global War on Terror we have heard repeatedly from our military and civilian leaders that this was a new kind of war, a war that requires new methods, new ideas, “thinking outside the box.” So that is what the highly creative and motivated people at Guantanamo did, they abandoned the tried and true and lawful methods of Army Field Manual 34-52 and wrote a new playbook, a playbook that included intimidation with dogs, sexual humiliation, and sleep deprivation. These and other methods were employed at Guantanamo and, as the Schlesinger report put it, migrated to Abu Ghraib, where they resulted in the shocking conduct portrayed in the infamous photographs. The Secretary of Defense said “take the gloves off” and the soldiers and sailors of Guantanamo saluted smartly and said, “Yes, Sir!” In fact, many of the illegal and abusive “enhanced” interrogation techniques were personally approved for use by the Secretary of Defense; other techniques, like the frequent flyer program, were simply invented on the fly.

The public revelation of the events at Abu Ghraib on 60 Minutes II in late April 2004, caused the Department of Defense to go into full damage control mode. As part of the damage assessment, Secretary Rumsfeld dispatched the Navy Inspector General, Vice Admiral Church, to Guantanamo to evaluate the treatment of detainees there. He visited Guantanamo from May 5 to May 7, 2004, and reported back to the Secretary and to the press that there was virtually no detainee abuse at Guantanamo, and that everything was in order. Gen Hood was running a tight ship. Detainees received great treatment. Incredibly, the very day that Admiral Church was investigating conditions at Guantanamo and finding the treatment of detainees to be so wonderful, detention officials at Guantanamo ordered the initiation of the frequent flyer program on Mohammad Jawad. Before the wheels of Admiral Church’s plane were even off the Guantanamo runway, Mohammad Jawad’s arms and legs were being shackled in preparation for the first of 112 moves up and down the hall of L Block, every 3 hours for the next 14 days. While Jawad was being shackled for the first of these moves, back on Capitol Hill, Secretary of Defense Rumsfeld was testifying before the Senate and House Armed Services Committees, reassuring the nation that the abuse at Abu Ghraib was isolated to a few rogue guards. When Secretary Rumsfeld testified before the HASC on May 7, 2004, the day the torture of Mohammad Jawad commenced, he told Congress, in reference to those detainees who had been abused at Abu Ghraib, Quote “I am seeking a way to provide appropriate compensation to those detainees who suffered such grievous and brutal abuse and cruelty at the hands of a few members of the U.S. military. It’s the right thing to do.” Today, the government takes a decidedly different tack. They deny the suffering of Mr. Jawad, accusing him of being weak. And they are attempting to reward him by pressing forward with the first war crimes trial against a child soldier in the history of the civilized world.

Major General Hood the JTF-GTMO Commander who took command in March 2004, states that he ordered the frequent flyer program stopped in late March 2004. He says he did not authorize and would not have authorized the program to be administered to Mohammad Jawad. Gen James T. Hill, the Southcom Commander, the person to whom Maj Gen Hood reported directly, states that he did not authorize the frequent flyer program, did not know about it, and that is was contrary to his orders which required prior approval for sleep deprivation and limited it to four days. The Joint Detention Group Commander, Maj Gen Cannon disavows any knowledge of Mr. Jawad’s treatment, in fact, MG Cannon seems to have developed a very convenient case of amnesia. The Joint Intelligence Group Director, Esteban Rodriguez, doesn’t know about Jawad’s treatment specifically, but states that there was a second, unauthorized frequent flyer program carried out by the Joint Detention Group used as a form of disciplinary measure. He said, as did Maj Gen Hood, that there was no special effort to collect intelligence from Mr. Jawad, that he was not believed to possess any valuable intelligence. This is borne out by the fact, at least based on the information provided to me by the government, that no interrogations of Mr. Jawad took place at or near the time that he was being tortured. Thus, the most likely scenario is that they simply decided to torture Mr. Jawad for sport, to teach him a lesson, perhaps to make an example of him to others. Whatever the reason, it was a direct violation of MG Hood’s orders, and a grave breach of the Geneva Convention and the Convention against Torture.

According to MG Hood, the first he learned of this is when I informed him a couple of weeks ago. He was provided the DIMS report, the motion, and the spreadsheet that I prepared. What was his reaction? A resounding thud of indifference. In fact, it took an order from you, your honor, to even get him to talk me about it. Here was a Major General in the Army who has just learned that a detainee was subjected to grave abuse, on his watch, in direct violation of his orders. One would have expected him to go through the roof, to order heads to roll, to launch an immediate investigation and he couldn’t even be bothered. Quite a contrast from the way General Hartmann reacted when he thought his orders weren’t being followed.

As for MG Cannon, he was similarly apathetic, if not more so about the plight of Mohammad Jawad. It is an absolute disgrace that this officer has been promoted twice after allowing a suicidal teenager to be subjected to this kind of abuse in his detention facility. It is my recommendation that charges be preferred against MG Cannon under the UCMJ for cruelty, maltreatment and abuse, dereliction of duty, and violation of a lawful order at the earliest opportunity. He was the Commander of the Detention Group. He completely and utterly failed to prevent the flagrant abuse of a detainee under his protection. It is high time that someone in a position of authority be held accountable, and not just the guards who were carrying out orders this time.

Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives. Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

February 7, 2002. America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.

Today, Your Honor, you have an opportunity to restore a bit of America’s lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights.

Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.

I have provided you with legal authority for the proposition that you have the power to dismiss these charges. I can’t stand before you and say that you are legally required to do so. But I can say that that it is a moral imperative to do so, and I ask that you do so."

Like I said, where else does one argue for Truth, Justice, and the American Way for a living?

Free advice of the day

If you are a (originally male) transvestite who has been arrested for showing up at the local high school in a purple dress and pink rubber boots, screaming threats, waving a Taser and threatening to use it on students...

Do NOT tell the authorities that your plan if released is to go to the next town and castrate the judge in your last case.

http://www.theolympian.com/southsound/story/464615.html



I've argued for bail in some pretty marginal cases, but that takes the cake.

If the Legislature was run like a court..

So now there's a flare up of talk about gun control due to a shooting incident at Folklife, the big Memorial Day gathering at Seattle Center.

My question is, where is the discussion of what works in other states? All the statistical evidence shows that there is no identifiable connection between gun control and the homicide rate in any given state. If gun control worked, wouldn't there be a lower crime rate in states with stricter gun control?

Likewise, every time there's a proposal to change the liquor laws there's screaming that it will encourage alcohol abuse, DUI, etc. Here, you have to go to the state-owned liquor store if you want a bottle of Scotch. In other states, you can buy it off the shelf at Safeway. Has anyone looked at whether people drink more and/or commit DUI more often in those states?

The Legislature runs on sound bites, not evidence. So much of my time is spent cleaning up and/or working around the results of that that it isn't funny.

Sometimes I think too much...

The other day I was talking to a 14 year old who was telling me how things ARE going to happen: she is NOT going to serve detention for assaulting her mother, if she does her mother WILL get the same amount of jail time for her role in the fight, she is NOT going to live with her mother any more anyway, but she is NOT going to foster care either....

What popped into my mind was a passage from the Roman philospher Epictitus, a major player in the Stoic school:

"Some things are in our control and others not. Things in our control are opinion, pursuit, desire, aversion, and, in a word, whatever are our own actions. Things not in our control are body, property, reputation, command, and, in one word, whatever are not our own actions.

The things in our control are by nature free, unrestrained, unhindered; but those not in our control are weak, slavish, restrained, belonging to others. Remember, then, that if you suppose that things which are slavish by nature are also free, and that what belongs to others is your own, then you will be hindered. You will lament, you will be disturbed, and you will find fault both with gods and men. But if you suppose that only to be your own which is your own, and what belongs to others such as it really is, then no one will ever compel you or restrain you. Further, you will find fault with no one or accuse no one. You will do nothing against your will. No one will hurt you, you will have no enemies, and you not be harmed.... 

Work, therefore to be able to say to every harsh appearance, "You are but an appearance, and not absolutely the thing you appear to be." And then examine it by those rules which you have, and first, and chiefly, by this: whether it concerns the things which are in our own control, or those which are not; and, if it concerns anything not in our control, be prepared to say that it is nothing to you."

Sometimes I want to hand out reading assignments to these kids. Hitting them with Roman philosophers, though, no mater how apposite, probably will go right over their pointy little heads.

Oh well, back to telling them "This is the reality. Deal with it!"

a public defender's secret

My practice is 99% juvenile criminal defense; I contract out as a public defender. The other day some parent went out and hired a big name defense lawyer for a kid whose case I was working on. It happens, no big deal.

I hand the file to this guy and tell him  "the prosecutor figures the standard sentence is ****, but I think the 150% rule applies."

"Uh... what's the 150% rule?"

I won't get into the arcana of calculating a juvenile sentence under Washington State law; let's just say that you should know what the 150% rule is if you're going to hold yourself out as competent to do it. 

Here's the dirty little secret:
As a public defender, I often find myself coaching the private attorneys behind the scenes on how to do the actual work. Some are good- better than I am, honestly- and some are the idiots of the Bar Association village. None of them spend the kind of time doing juvenile law that I do.

The myth is that PDs are overworked and incompetent and you need a private attorney to get a good result. In some areas, that may be true. Hell, I often feel overworked. My colleagues and I, though, are the most competent juvenile lawyers in town. If you go out and hire a private attorney, what it gets you is more personal attention, a lawyer with a fancy office, and maybe less time waiting 
for your case to be called, not a better defense. 
If another lawyer has one case on the docket and I have ten, 
it's common courtesy to let him go first. 
Kind of like the express lane at Safeway. Whose house do you want to go to
 dinner at, though? The 
yuppie with  five Lean Cuisines, or the guy with the cart load of 
real vegetables, fresh beef, and raw fruit?

I'm left handed.

No big deal? It was when they tried to make me right handed in grade school- not possible for someone like me- and when I took guitar lessons. Ever tried to play guitar upside down and backwards? Jimi Hendrix (who played left handed) could do it, but he practiced for thousands of hours the normal way first. Not the way to start out. Every day, in ways I hardly notice most of the time, I adjust to a world that's not designed for people like me.

How do you tell the southpaws at a picnic? They instinctively grab the far left seat at the table so their left 
elbow won't constantly collide with the next guy's right.

Ever tried to open the blade(s) of a Swiss Army knife while holding it in your left hand? It can't be done.

Pick up the nearest pen and look at the brand name printed on the barrel. If it's in your right hand it's right side up. If it's in your left it's upside down. I don't really care, 
but it's not done that way by random chance.

Remember those chairs in college with the little desk attached to the arm?
Lots of days I had a sore back because the one left handed one was taken when I got there.

What brings this to mind is the California Supreme Court's decision last week legalizing gay marriage. I think being gay is a lot like being left handed- the causes haven't been identified, you don't get a choice about it, and if you are no amount of societal pressure is going to change 
your basic orientation. 
With a lot of struggle I might learn to write with my right hand, 
but I would never do it
voluntarily or enjoy it. 

What's the point, then, of telling people they shouldn't be gay? If they are they are.
Makes about as much sense-and does about as much good- as telling me to be right handed.