Jury Consultant Bob Hirschhorn said today that he was a part of the Robert Durst defense jury selection effort and that the defense utilized a shadow jury during the trial. The shadow jury came back with a "not guilty" after only one hour of deliberation--four days before the real jury did.

Shadow juries and mock juries are incredible assets to a defense team. They are also very expensive. In indigent defense cases, we can't think of any judge that has authorized the use of either.

We've sat through a few mock juries before our trials....we watched via a one way glass mirror as the jurors discuss the evidence in the case and our intended defense. They are a valuable tool in aiding the defense in determining whether a specific defense will gain traction or whether they need to change horses.

Bob Hirschhorn is one of the country's top trial consultants. He worked with Mike Tigar in selecting the federal jury in the Terry Nichols case. That jury came back with a life verdict instead of death.

We wish all our clients could afford trial consultants.

From the NACDP:

The Texas Defender Service and the Equal Justice Center released their second report last week on the state's implementation of the Fair Defense Act, passed by the Legislature in 2001. The act was designed to strengthen the state's tarnished criminal justice system by strengthening the requirements for fair and prompt assignment of qualified defense counsel to poor criminal defendants in capital cases.

But according to the report, two years after passing the act, the state still has more work to do to achieve those goals. Among the findings: None of the state's nine administrative judicial regions have "performance standards" to evaluate which attorneys are qualified for death penalty appointments; many counties have yet to ensure that defendants have prompt access to an attorney; and many counties have yet to allot enough money to pay for defense investigators and experts.

Read the whole story here.

John Kerry becomes the second Democrat to announce he will forego federal funds for his campaign. Kerry will spend his own money and take out a loan.

Kerry's decision to skip the $18.7 million in public money comes despite a slowdown in his fund raising after a promising start, and the acknowledgment by his campaign that he cannot tap wife Teresa Heinz Kerry's multimillion-dollar Heinz food fortune for the race.

Under campaign laws, Kerry can take out loans on the full value of property he owns, and on half the value of property he co-owns. His wife can co-sign loans if the bank requires, but she cannot pay them back. She is limited to the same $2,000 limit all individual donors face.

Howard Dean made the same announcement last week. Wesley Clark says he will accept federal funds. The other candidates also will accept federal funding, including Dick Gephardt, John Edwards and Joe Lieberman.

We see a big difference between Dean and Kerry in that Dean has been a very successful fundraiser to date, while Kerry has not been. As DHinMI over at Daily Kos says,

...unlike Dean, whose decision appears based on his ability to raise money, Kerry's decision appears based on his desperate need to spend money in Iowa and New Hampshire if his campaign is expected to survive past the New Hampshire primary.

[Ed. grammatical errors corrected.]

Judge Brinkema warned Zacarias Moussaoui last week to shape up and stop filing derogatory motions or he'd lose the right to represent himself. Today she made good on the threat and reappointed Moussaoui's standby lawyers to represent him. Moussaoui's latest motions were over the top for what a lawyer might file, the Judge said. Those motions have not been made public, but here's what he filed last week:

Moussaoui said he wants "anthrax for Jew sympathiser only," called Attorney General John Ashcroft "the Democratic Jerk" and referred to Brinkema as "Leonie you Despotically Judge." Moussaoui, an acknowledged Osama bin Laden loyalist, is charged with participating in a broad conspiracy with the Sept. 11 hijackers to commit terrorism against the United States.

Moussaoui has excellent standby counsel. This is much better for him.

From now on, Brinkema said Friday, she will accept only pleadings submitted by the lawyers, while any motion submitted by Moussaoui "will simply be received for archival purposes." She said Moussaoui had 10 days to file a written notice of appeal.

We're on the road today, off to Washington for a board meeting of the ABA's Criminal Justice Section Council. There are a lot of important issues on the six page agenda, but the ones we're most interested in are the recommendations of the Innocence Committee to ensure the integrity of the criminal justice system, and recommendations on the Victory Act and SAFE Act.

This is not a group where defense lawyers are preaching to the choir. It is roughly equally composed of prosecutors, defense counsel, judges and law professors.

We'll have our computer for light blogging over the weekend, but we won't be back at full speed until Sunday night. Please enjoy the great sites listed on the right, feel free to toss us a tip through the paypal or amazon links at the left and have a great weekend.

Arizona Republic columnist E.J. Montini reports on the generosity of inmates in that state.

... At about the same time that the good-hearted football fans at Sun Devil stadium were drunkenly depositing Iraqi dinar and Monopoly money into collection buckets, a group of inmates at the women's prison in Perryville decided to take up an actual collection for cancer research.

Just about 800 inmates participated, collecting what officials estimate to be about $13,000. These are convicted criminals who make about 50 cents an hour doing prison labor. Their average donation was $16 per person, or five times the average of those attending the football game.

And that's just a portion of inmate generosity. According to Virginia Strankman, who coordinates charitable giving for the Department of Corrections, the state's prison population has donated more than $38,000 so far this year. And that doesn't include the as yet undetermined totals from two prison complexes.

The fate of accused sniper suspect John Muhammad is now in the hands of the jury. His lawyers argued reasonable doubt today, but given the amount of circumstantial evidence against him, and the Judge's ruling that the terrorism charge supports the death penalty regardless of whether the state proved Muhammad pulled the trigger, the outcome of the guilt-innocence phase of the trial is fairly predictable. If a guilty verdict comes in, the case will move to the sentencing trial, in which the prosecutors will seek the death penalty for Muhammad.

This new report, Broken Justice: The Death Penalty in Virginia on the unfairness of the Virginia death penalty system, and the need for sweeping reforms, should give everyone great pause.

According to the study, prosecutorial misconduct and incompetent counsel, combined with arbitrary restrictions on presenting evidence and fixing trial mistakes, have created a flawed system that can convict innocent people and deprive others of a fair hearing.

"In Virginia, whether or not you are sentenced to death has little to do with the crime, and everything to do with your race, where you live, and who prosecutes your case," said John Whitehead, Executive Director of the Rutherford Institute. "This is in direct contradiction to America’s fundamental faith in ‘blind’ justice."

It troubles us that Attorney General John Ashcroft hand-picked Virginia over Maryland and other jurisdictions as the venue for the first trial for Muhammad and Malvo. He picked Virginia because a jury in that state was most likely to sentence the pair to death, in complete disregard of the unfairness of the death penalty system in the state. As we opined here almost exactly one year ago,

Justice occurs when we provide the accused with a fair trial, competent counsel and strict adherence to their consitutional rights. Injustice occurs when we allow passion and prejudice to override the guarantees of fairness our system provides to even the worst offender among us.

John Ashcroft is not running the Department of Justice but a Department of Injustice.

A new Inspector General's report is due shortly:

The Justice Department inspector general reported yesterday examples of inappropriate sexual behavior and racial comments by senior FBI managers, saying the cases reinforced earlier findings that the FBI has repeatedly let senior managers get away with egregious conduct while meting out harsher punishment to lower-level employees for similar behavior.

....the findings come on the heels of a broader report by Fine in November 2002 that found a strong perception among FBI employees that a double standard of discipline exists within the agency. As a result of these and other concerns, FBI Director Robert S. Mueller III earlier this year commissioned an independent review of the Office of Professional Responsibility, which conducts internal FBI investigations. A report from the panel is expected soon.

Calling Drug Czar John Walters....We did a doubletake when we saw this in Monday's Washington Post. We're still laughing:

Powell's Chemical Equation

Powell described his killer schedule in an interview Thursday with Abdul Rahman Al-Rashed, a reporter for a London-based Saudi newspaper.

"So do you use sleeping tablets to organize yourself?" Al-Rashed asked.

"Yes. Well, I wouldn't call them that," Powell said. "They're a wonderful medication -- not medication. How would you call it? They're called Ambien, which is very good. You don't use Ambien? Everybody here uses Ambien."

Ambien:

Zolpidem ( Ambien ) is a Sleeping pill from a newer group of drugs called imidzopyridines. Used primarily for short-term treatment of insomnia in adults.

...Never Take a Double Dose!....The habit-forming potential is high. Psychological and physical dependence is possible. Do not stop taking this drug abruptly, this could cause psychological and physical withdrawal symptoms.

The list of common and rare side effects gave us the creeps. Sounds like it was written by Czar Walters....and we don't buy a lot of it. Ambien is a popular and widely used prescription sleep medication that is a favorite among, including others, A-type personalities and business people who take overnight flights. But still, for the Secretary of State to broadcast it to the media? What was he thinking?

[thanks to Avedon Carol at Sideshow for the link]

Our hat is off to Turkey which has formally abolished the death penalty during peacetime. From the press release from the Council of Europe Parliamentary Assembly:

Council of Europe Parliamentary Assembly President Peter Schieder and the Secretary General of the Organisation, Walter Schwimmer, today welcomed Turkey’s formal deposition of the ratification instruments for Protocol No. 6 to the European Convention on Human Rights, abolishing the death penalty in peacetime, as a milestone on Europe’s path towards a death penalty-free continent.

A death penalty free-continent is what we need. We'll even settle for a moratorium now and abolition in the not-distant future. We are among the last vestiges of the civilized world that still condones state-sanctioned murder. It's time to put a stop to it.

Comedian Dennis Miller is jumping from Fox to CNBC where he will have his own hour long news show. It does not appear there was any contract-breaking. Dennis says he hadn't heard from Fox on renewal of his one year contract so he took the CNBC offer.

Nonetheless, Fox doesn't sound pleased with Dennis's decision:

Frankly, when we deal with talent we usually have better conversations before someone leaves," says Kevin Magee, FNC's vice president of programming. "I don't think he'll have as many viewers as he had on "Hannity & Colmes," but we'll figure out some way to fill those three minutes and move on."

Hmm....we can think of lots of liberals who would be glad to fill three minutes of Hannity and Colmes on Friday nights. Liberals? Here's our reasoning: Since the last year belonged to Dennis, who was a conservative, to put it mildly, we hope Fox goes fair and balanced and gives the spot to a liberal for the next year. [link via Atrios.]

Closing arguments are ongoing today in the trial of accused sniper suspect John Muhammad. Opening arguments are underway in the trial of younger suspect John Lee Malvo.

Yesterday, the Associated Press released details of an earlier FBI investigation into one of the state's forensic chemists who testified at Muhammad's trial. The prosecution claims it didn't know any of this stuff. Clearly, it is Brady material that should have been turned over. If the AP located the material, the Prosecution could have obtained it as well.

A government chemist who testified in the Washington sniper case kept a "sloppy" office that raised concerns of contaminated evidence and has made numerous racially insensitive remarks, according to evidence the government has had for more than a decade.

The Virginia prosecutor handling the trial of sniper defendant John Allen Muhammad said Thursday he wasn't aware of the information, obtained by The Associated Press, before he put government chemist Edward Bender on the witness stand last week. "And I'm not aware of it today," Paul Ebert said.

....FBI and Justice Department documents obtained by AP detail testimony from colleagues and supervisors that Bender made racist comments that were pervasive enough to raise concerns among at least one colleague about his impartiality in cases. A supervisor and "Bender continually and loudly expressed strong racial prejudice using such words as 'jungle bunnies' and 'niggers' repeatedly," a 1991 FBI memo stated, recounting allegations from one of Bender's lab colleagues.

There's more, go read. As to "Brady,"

The government and prosecutors are required under a Supreme Court ruling known as Brady v. Maryland to provide defendants with all "material" information affecting their case, including derogatory information that could impact the credibility of prosecution witnesses.

Another Supreme Court case, Kyles v. Whitley, 514 U.S. 419 (1995) held that the duty of disclosure is not limited to evidence in the actual possession of the prosecutor. Rather, it extends to evidence in the possession of the entire prosecution team, which includes investigative and other government agencies. See also Strickler v. Greene, 119 S.Ct. 1936, at n.12 (1999).

Update: The National Association of Criminal Defense Lawyers (NACDL) has had Bender on its list of the Ten Most Unwanted Government Forensic Witnesses for a few years. Here's the Bender information NACDL obtained from the Inspector General's report and the FBI files: