10 Dec

Sometimes I write stuff.


What winning means

24 Aug

Today we called a client to tell him that 15 years after he was convicted, the state appellate court overturned his conviction and ordered a new trial “in the interest of justice.” It was an exciting moment. A crowd of people packed into the room and hovered around the phone–our clinic had had the case for 11 years and over 22 students had worked on it.

Nonetheless, while the excitement of the moment prevailed, the reality of what the decision meant was bittersweet. “So, they’re going to try me again?” the client asked. Possibly. Despite the fact that someone else has confessed to our client’s crime, the State can still choose to pursue convicting him again. On top of that, they can still appeal to our state’s supreme court, and have the reversal thrown out. So while it feels like a win, it’s really only a step. A powerful, meaningful step–but the end result is still out of our hands.

In the meantime, even though the court has thrown out his conviction, the client will probably have to stay in prison pending the State’s appeal. We’ll ask for him to be let out, of course, but unless they allow him out on his signature (where they accept his promise not to flee), he has no money to post bond. As our client said, “15 cents an hour isn’t worth much. And items in the canteen are expensive.“

And so here we are. Gathered around a phone to tell Mr. Client that a court agrees with him–they believe that it is likely that he is innocent, and that his conviction was unfair. But other than that acknowledgment, our client’s not gaining much. He’s still going to be in prison for an indefinite period: he’s still going to have to do what he is told, no questions asked; he’ll still have to wake up at 4am for breakfast and eat his lunch at 9am; and he’s still going to be unable to do so much as walk outside to look at the stars at night, if that’s what he wanted to do. But none of this is because he is guilty. Instead, his current crime is that he’s too poor. And nothing we can do as attorneys can change that.

So we’ll wait–us in our offices, our client in his cell– and for the next who-knows-how-long, nothing will change. But we’ll still call it a win.

Cross-posted at Feministe.

When Science is Subjective

17 Aug

One of the first lessons you learn as a criminal defense attorney, particularly an attorney working on innocence cases, is that nothing is as it seems. Those stories you thought were too crazy to be true? Totally happened. And all that stuff you thought was fact? It’s not. This is particularly true for pretty much everything you think you know about forensic “science,” where the truth is, with the exception of DNA testing, there is very little actual “science” involved.

In fact,most forensic sciences– e.g., handwriting, bitemark, fire pattern, blood spatter, bullet and tool marking analysis–are open to subjective interpretations. Which means when we allow testimony about these “sciences” at trial, what we’re really doing is allowing juries to pit an expert’s credibility (and unreliable testimony) against that of the defendant’s. Considering the supposed “expert” is typically some combination of educated, middle- or upper- class, white and male, and that most defendants come from disadvantaged backgrounds, you can guess how the jury (which is also typically made up of white folks) will decide the case.

But it’s not just the expert’s testimony that is skewed against the defendant. Often, the very request for testing will skew the results themselves. Although state crime labs technically work for both the prosecution and the defense, requests for testing are typically submitted by the District Attorney. Included on the tests is information about the crime necessary to perform the testing. For example, if you have clothing that you want tested for trace DNA, it would be helpful to know that the victim had been strangled, and so they should look for DNA near the collar of the shirt. But along with this necessary information comes prejudicial information about the defendant, what the police suspect happened, and what they expect to find. Thus, by the time the lab technician even begins to analyze evidence, they are already looking for a particular outcome.

This isn’t to say that all lab technicians are shady, vindictive people. It just means they are human. When the same people come to you day after day, you start to treat them better. Just like a barista might be nicer to her regulars. In this same way, technicians at crime labs come to favor the prosecution–it’s most often the State that’s requesting the testing. Similarly, lab technicians and forensic experts may just be trying to help. They genuinely believe their work is necessary to catch the “bad guy.” It’s not that they are maliciously motivated.

But all of these motivations aside, what results is a system that favors fraudulent science and hinders the defense. And you don’t just have to take my word for it. The situation has become so dire that last year, the National Academy of Sciences issued a report asking for regulation and oversight in the forensic fields. And just this last month, the News & Observer ran a four-part series detailing the corrupt and fault practices of the SBI crime lab in North Carolina. According to the investigative report, SBI agents distorted the rules to yield the desired test results of the prosecution more than a dozen times when the truth threatened to undermine their cases.

When most people hear science has exonerated an incarcerated person, they tend to think of DNA evidence. But the truth is, a lot of exonerations occur after scientists testify that the forensic science presented at trial wasn’t actually science. Take for example, the two men exonerated in Mississippi after scientists explained that marks on the bodies that had previously been identified as bite marks had actually created by crawfish. Or the case of Audrey Edmunds, which highlights the problems with the very notion of Shaken Baby Syndrome. (N.B. No one has yet proven this phenomenon exists.)

Critics have called for reformation of the system to reflect these biases. And clearly something needs to be done. But until it is, it’s hard to imagine that justice can be reached when our “objective” facts are really just subjective interpretations.


Three convictions based upon faulty SBI work in the NC labs ultimately resulted in executions.



Cross-posted at Feministe.

No one is innocent

12 Aug

**Trigger warning for descriptions of violence and sexual abuse**

Today I sat in a room with a man who admitted to stabbing his step-father to death. This isn’t the first time I’ve met with someone who has murdered, but it was the first time I’ve had to tell that person I couldn’t help him because he’s not claiming innocence. And that fact – that fact that I was not allowed to help him – has been eating at me all day.

The truth of the matter is, there is a tension between defense attorneys who work on death penalty cases and those that work on innocence cases. In the former, attorneys work to get courts to recognize the humanity in folks who the law labels “the worst of the worst.” In the latter, we only represent those deemed “worthy” of receiving it – the innocent ones, the ones who did not do anything wrong. I do not like this tension.

As someone who has crossed over and worked on both sides of the issue, I believe innocence work is necessary to ending the death penalty. Yes, the death penalty is expensive; yes, it has no deterrent value; and yes, the process is completely unfair. However, until the public believes that we are, and still stand, at risk of executing innocent folks, they aren’t going to buy into abolishing the death penalty. And while I’d like to say that the fact that the public doesn’t find the other arguments compelling is the only thing that makes me sad about this debate, what really makes me sad is that the discussion surrounding the death penalty doesn’t even attempt to recognize the vulnerability and humanness of the folks on death row. Because by the time someone reaches death row, we no longer think of them as human. They are incapable of being vulnerable, of having acts committed on them. Instead, they are only actors – perpetrators – who can commit acts on other people.

This framing of individuals as either victim or perpetrator troubles me deeply. Truthfully, while there are exceptions to every rule, I generally believe that in the case of major crimes, the following rule applies: not all victims are perpetrators, but all perpetrators are victims.

I know, I know. No one wants to think of the person who did something awful to them as being a victim. And honestly, I’m not asking you to. There’s a reason the criminal justice system isn’t supposed to be about what the victim wants* – you can’t be objective. Heck, you shouldn’t be objective. But law and society should be. Which means that before we punish someone, we need to take into account that victimization is a cycle—it’s those who have been hurt that go on to hurt someone else.

Take for example the man I met today. His life has not been an easy one. Because of his limited mental capacities, he quit school in the 4th grade, and still cannot read or write. By the time he was 12, he had seen his biological father attempt to kill his mother twice – once by trying to drown her in the toilet, and another by beating her in the head with a phone. That second time, he stepped in, pulled a pistol on his own father, and chased him into the street. His father came back the next day, and remained with the family until he was 16. In the meantime, the boy was beaten daily: first with his father’s belt, and then when he got bigger, with the grown man’s fists. Besides the physical abuse he received, he was also sexually abused from the age of 7 until he was 12, after which he turned to drugs and alcohol for support; he began drinking at 12, and started smoking crack at age 15.

Throughout all this time, no one stepped in to help this child. No one stopped him from quitting school. No one kept him away from the man who beat him mercilessly and tried to kill his mother. No one protected him from sexual abuse. No one loved him and taught him how to find solace in anything other than drugs and alcohol. Removed from the fact that he later killed, it would be difficult to imagine that anyone would not agree that this man had been a victim.

Yet, once a victim crosses that line to perpetrator – once this man killed his step-father – no one wants to remember the victim he once was. And that, I believe, is one of the fundamental flaws in our criminal justice system. No one wants to acknowledge that a perpetrator has been a victim, because if that’s true, then that means we are also punishing victims.

Robert Lawrence Smith writes in the Quaker Book of Wisdom about how people never look at the homeless. Folks avert their eyes and look away–ashamed, guilty perhaps. According to Smith, we don’t want to look at them because we don’t want to recognize our humanity in them. It’s difficult to think that we would let someone live in such conditions. So instead of recognizing them as human, we simply ignore them. This is similar to the response of the general public when we convict someone and label them a perpetrator: rather than acknowledge their humanity, we simply shuffle them away where no one can see.

However, I think it’s more than just not wanting to recognize a criminal as human. I think we don’t want to realize that we too had a role in creating someone who could commit this crime. Because the truth of the matter is, if this man hadn’t been abused–if he hadn’t become crack-addicted–it is highly unlikely that his step-father would have died. And in that way, we failed. We let these things happen. But we don’t share in the responsibility.

Generally, I feel tremendous responsibility for the acts my clients have committed. I do not mean to suggest they, too, are not culpable and should not be punished. But I do believe that some of that culpability is society’s too, and as a member of society, I must carry my share. So today, when this man asked for my help, and I turned him down, I can’t help but feel that I’m just continuing the cycle of denying this man assistance when he needed it. But yet again, it will be he, and not I, that suffers for it.

*Society’s failure to provide support for victims is a whole different issue. I believe we should be doing things to help victims. But those things typically aren’t punishing someone else, and shouldn’t be limited to the criminal justice system.

Cross posted at Feministe.


9 May

Legal workload aside, being a public interest lawyer is taxing.  It requires an attorney to wear many hats — lawyer, social worker, therapist, sponsor, community organizer, follower, adviser, listener — and be able to switch between them with almost chameleon-like reflexes.   Serving the under-served means sometimes you’ll be the only person who has ever offered to help someone.  It means they may tell you things they’ve never told anyone before.  It means they may cry on your shoulder and ask you not to leave, even when there is nothing you can do for them.

When these things happen, you might think to yourself:  “lawschool did not prepare me for this.” And honestly, it doesn’t.  I was lucky to go to a school that asked us to think about the different roles a lawyer can play, and encouraged us to decide for ourselves which role we felt comfortable in.  Personally, I enjoy a multi-faceted, holistic approach.  I can’t solve all or even many of my clients’ problems, but in listening and empathizing, I can at least acknowledge that they are problems worthy of being solved.

Norm Pattis recently wrote a post exemplifying some of the difficulties that arise in criminal defense. In it, he tells the mother of a hypothetical client:

I am sorry I cannot offer you the hope you need to face this terror. When you call, I hardly know what to say. I am empty and barren of useful suggestions. It seems naive even to ask you to trust the process. Innocent men are convicted. I know that to be true.

I felt this helplessness very recently when I went to say goodbye to a client.  I am leaving for a new job and I wanted him to know another attorney from my organization would be assigned to his case.  The client is a  young man – in his 20s – and he’s dying of a very rare disease.  He has just months to live, and in the time I’ve spent with him, we’ve grappled with what this means for him, what the value of his life has been, and what he should tell his family.

It hasn’t been easy to get to a point where we could discuss all these issues.  And I suppose as his lawyer, I’m not required to work through any of that with him at all.  But I’m all he’s got.  I’m the only professional in his life that takes time to hear him, to hear his concerns, and while I have no answers for a young man facing death, I feel I cannot leave him alone to face it on his own.

Saying goodbye to him was especially hard because I know it’s going to be difficult for him to trust an attorney again.  It took time for us to get to this place.  He’s told me I’m the only attorney who has followed through with what I told him I would do. I know my coworkers will do the same for him, but it doesn’t matter how much I assure him.  It’s a process that lawyers and clients have to go through. Unfortunately, he doesn’t have much time to get through it this go-round.

Really, this story has just been a round about way of saying what this blog is about, and because I’m not entirely sure of the full subject matter yet, I’ll try to sum it up like this: this blog is about how we see ourselves as lawyers and how that plays out with how our clients’ see us , too.  There will also be substantive posts on law and doctrine, but I want to talk about our relationships with clients and what we think we’re supposed to be doing.

Currently I’m in a state of transition.  I’m moving from a job representing “the worst of the worst” to one where I’ll be only taking cases with innocence claims. This will be hard for me.  I believe everyone deserves representation– good representation – and I’m used to trying to find relief for a client no matter how bad the crime or how guilty he is.  It’s going to take some time for me to shift in thought about my more limited role.  And for now, that seems as good as a place to start this blog as any.