Thanks to Howard Bashman of How Appealing for e-mailing us about this decision from a divided en banc panel of the 9th Circuit Court of Appeals today. The Court ruled that the head of a public defender's office may be held liable in a civil rights suit brought by a criminal defendant for denial of effective representation of counsel. You can access both the majority and dissenting opinions here.

Howard explains here that "according to the plaintiff's complaint, the head of the public defender's office in Clark County, Nevada 'allocated investigative and defense resources based upon a defendant's performance on a polygraph examination and assigned inexperienced and untrained attorneys to capital and other felony cases.'" The decision pertains to whether the trial court erred in dismissing the plaintiff's case at the summary judgment stage. The Court of Appeals allows the plaintiff/client's lawsuit to proceed against the chief public defender and the county.

Howard says "Circuit Judge Andrew J. Kleinfeld's dissenting opinion does quite a persuasive job of explaining how this really isn't as bad as it sounds." Here's a condensed version of the sample of the dissent that Howard provides:

Maybe to those who haven't done any criminal defense, it isn't obvious why a polygraph examination would be used except to sort the innocent from the guilty. But to an experienced criminal defense lawyer, the distinction between lying and telling the truth is altogether different from (and much more important than) the distinction between guilt and innocence.... The biggest problem criminal defense lawyers face is that their clients often lie to them. Criminal defense clients lie a great deal to their lawyers....It is very difficult for a lawyer to prepare a good defense or negotiate effectively for a plea agreement when the client lies to the lawyer. The polygraph is a high-tech way to scare some of the clients into telling their lawyers the truth, and identifying other clients who won't....

We disagree. We would never polygraph a client for the purpose of determining whether he or she was telling us the truth. Even if we believed in the reliability of polygraphs, which we don't, we would not do that. To us, the public defender's policies are indeed as bad as they sound.

There is a great editorial in the Palm Beach Post criticizing Jeb Bush, titled If State Kills, State Must Pay Lawyers. It was sent to us by a Florida public defender.

Last week, Rudolph Holton walked out of Union Correctional Institution, becoming the 23rd person -- and the fourth in 2 1/2 years -- to be released from the state's Death Row since Florida resumed capital punishment in 1979. He is free because lawyers for the Office of the Capital Collateral Representative (OCCR) stayed with the case long enough to find evidence that could have cleared Holton years ago. In his proposed budget, Gov. Bush zeroes out the OCCR.

On March 18, 2003, America will commemorate the 40th anniversary of the landmark U.S. Supreme Court decision in Gideon v. Wainwright, in which a poor Florida prison inmate caused the single biggest change in the history of the U.S. criminal justice system. The Gideon decision guaranteed assistance of counsel to all persons facing imprisonment.

The rationing of legal services to the poor when life and liberty is at stake is neither equal nor just. We say, Shame on Jeb Bush.

Florida's Office of the Capital Collateral Representative was formed in 1995 after a request from the Florida Attorney General and funding was provided for by the state legislature. Today it employs 50 lawyers in three regional offices to represent Death Row inmates.

But legislators always have tried to undercut the agency. Because of conflicts, OCCR sometimes can't represent an inmate, so the state must hire private counsel. In 1998, the Legislature limited to about 800 the number of hours that private attorneys can spend on a case. Nationwide, the standard for death-penalty appeals is more like 3,000 hours. What happens when a lawyer asks for more money? Last year, the Legislature voted to take any such lawyer off the list.

Gov. Bush says cutting OCCR would save $4 million a year. Almost certainly, he's wrong. Courts can't drop the constitutional requirement for adequate counsel. The state will have to find lawyers somewhere, and pay them.

Gov. Bush, typically making the issue all about him, said after Holton's release, "If the question is, are innocent people being executed under my tenure as governor? I can honestly tell you that's not the case." In fact, he can't say that honestly, not with Florida's system having all the credibility of pro wrestling. After each release, the governor says it proves "that the system works." Let him spend 16 years on Death Row for a crime he didn't commit and say "the system works."

It doesn't matter that some of the men released from Death Row were guilty of other crimes, some of them serious. Retaining all respect for murder victims' families, the state cannot tolerate a system with inadequate safeguards against wrongful execution. If Gov. Bush and Mr. Crist want to save money and prevent wrongful executions, they can have it both ways: Abolish the death penalty. (emphasis supplied)

A court in Texas has turned down an 11th-hour appeal by a British man due to die by lethal injection in America tonight.

Jackie Elliott, 42, who was born in Suffolk to American parents, was sentenced to death 16 years ago for the rape and murder of a 19-year-old mother in Austin, Texas.

Last night a court refused to hear fresh evidence which Elliott's lawyers believe will prove his innocence. Judge Chuck Campbell said the DNA evidence did not specifically relate to Elliott but came from other suspects in the case.

Elliott has always protested his innocence and says he was convicted only because of the testimony of police informers covering their own guilt. In the past few days, his legal team has unearthed 40 police reports, allegedly suppressed by the prosecution, that identify other key suspects.

His lawyers believe DNA testing could settle the issue. They said it was "unprecedented" for a state execution to take place before the courts had heard all the evidence.

This is just the best! From the San Francisco Chronicle:

"Jurors who convicted marijuana guru Ed Rosenthal of cultivation and other drug charges said Monday they would have acquitted him had they been told he was growing medical marijuana for the city of Oakland. "

"I feel like I made the biggest mistake in my life," said juror Marney Craig, a 58-year-old Novato property manager. "We convicted a man who is not a criminal. We unfortunately had no idea of who he was or what he did."

Another juror: "Some of us jurors are upset about the way the trial was conducted in that we feel Mr. Rosenthal didn't have a chance and therefore neither did state's rights or patient's rights. I would have liked to have been given the opportunity to decide with all the evidence."

The other jurors agreed--and they are all going to write Ed an apology.

So much for Ashcroft thinking he got a victory and that the good citizens of California back his anti-medical pot campaign.

The Government announced after the verdict it would seek to have Ed detained pending sentencing, and a hearing was scheduled for that tomorrow. Let's hope the prosecutors (no, make that Aschcroft, since the prosecutors just do what Ashcroft tells them to these days) sees the light and drops that overkill request.

Update: The New York Times in an editorial, Misguided Marijuana War, addresses the inequity of the Rosenthal conviction and says, "The courts should not allow Mr. Rosenthal's conviction to stand. It would be a serious injustice if he were to serve years in prison, as he well may. Meanwhile, the administration should stop tyrannizing doctors and sick people and focus on more important aspects of the war on drugs."

80 nursing home residents in Mill Valley staged a protest for peace

Some residents of Mill Valley's Redwoods Retirement Center feel President Bush is leading the country into war and they demonstrated yesterday - using canes, walkers and wheelchairs - to let him know they want no part of it.

"He doesn't tell us what's going on," said Nora Boskoff, 84, organizer of a curbside demonstration yesterday outside the nursing home on Camino Alto. "It's becoming like (Soviet) Russia or (Nazi) Germany."

Dozens of protesters attended the demonstration, many using canes, walkers and wheelchairs as they stood by the roadside waving signs and singing protest songs.

Last week, Ms. Boskoff decided the time had come to start the nursing home's first peace group and anti-war demonstration. Little did she know that more than 80 other residents would be there to support her.

The nursing home residents are already planning their next protest, and this time, the nursing home is promising more support.

Bea Lott, program coordinator at the nursing home, said only about three or four of the residents attended the large San Francisco anti-war rally last month because it required so much standing. The nursing home doesn't necessarily support the anti-war position but she said the residents have a right to speak their minds and it is her job to help them accomplish that. "We'll have coffee, hot chocolate and American flags next time," she said, referring to another demonstration scheduled for 4 p.m. Friday. "Next time it will be more colorful."

Cars driving by honked their support for the protesting seniors. The oldest one was 95 year old Mutsu Muneno.

Burrowed inside a winter coat, gloves and a wool hat, she chanted "No War," while holding up one end of a banner that spelled out PEACE. She said Bush needs to do a better job of convincing the public before taking such drastic measures with America's troops. "I don't support any of this," she said. "It winds up killing the young."

Link via Common Dreams.

Ruminate This, the gutsy, outspoken and totally rational brainchild of Lisa English, just got a bloglift for its move to MT and it looks great. Go take a read.

CalPundit got a lift too--Kevin's changed his photo on the front--and is soliciting opinions about the new one. We like the second one better, but think he should take a third and smile a little bit for the camera.

We've made a couple of addtions to our blogroll, journalist David Neiwert's Orcinus, Digby , Roger Ailes (not that one), Progressive Gold and TBogg.

Alterman quotes retired Marine Gen. Anthony Zinni who opposes a war with Iraq now. Zinni used to head the U.S. Central Command, in charge of U.S. forces in much of the Middle East and Central Asia, from 1997 to 2000, after which he was George W. Bush’s personal emissary to the Middle East peace process. And don't forget, tomorrow is the debut of:

What Liberal Media?

by Eric Alterman


Buy the Book Today!

Read the 13 page Introduction now and visit the website.

Salon has a new interview with Hunter Thompson, our favorite gonzo Journalist who says 9/11 "let the Bush crowd loot the country and savage American democracy." Hunter has a new memoir out, "Kingdom of Fear: Loathsome Secrets of a Star-Crossed Child in the Final Days of the American Century," already destined for the New York Times Best Seller list this weekend.

Kingdom of Fear
by Hunter S. Thompson

Buy the Book Today!

Publisher's Weekly describes it as, "Hunter Thompson, author of such classics as Hell's Angels, Fear and Loathing in Las Vegas, Fear and Loathing on the Campaign Trail and other journalistic endeavors, has finally penned a memoir. Well, sort of. "

Last but not least, we've added two features to TalkLeft. One is a newsfeed on the lower right side of the site with positive articles about Gary Hart, who may or may not run for President, but who right now is our first choice if he does. (There's a few issues we don't know his stand on that could possibly alter this). The other is "The Hart Monitor" which are sporadic posts containing updates on his run or non-run, whichever it should be. We'll say once again that should Hart choose not to run for President, we hope the next President, who we are sure will be a Democrat, makes him Secretary of State.

Aspen, Colorado held a successful peace rally this Saturday. Numbers in attendance vary, but the organizers, Roaring Forke Peace Coaltition ran out of 1,000 ski bibs, that said "Make snow, not war." A group from Telluride also attended and brought 200 more which also were distributed among the crowd.

The keynote speaker was the good Doctor Hunter S. Thompson, described in the article as "mostly coherent" at the time of his 5 pm address. He spoke about "the pitfalls of war and the evils of an unchecked government."

The protesters then joined together for a peace march down Main Street.

The Coalition meets every Wednesday at 7 p.m. at the Roaring Fork High School(Carbondale) in the Library. More events are planned.

A bill was introduced in the Kansas Senate today that would impose a two-year moratorium on the death penalty and appoint a commission to study the state's capital murder law.

Cost is said to be a factor--it costs over $1 million for court appointed counsel to defend a capital case, and another $1 million to prosecute.

Among the issues to be studied by the proposed commission are:

"-- Whether the race of the victim or defendant plays a role in bringing capital murder charges;

-- Whether there are disparities across the state in the way capital murder cases are handled;

-- What are the total costs to the state and local governments for capital murder cases;

-- Whether changes are needed in the law to ensure that no innocent person is condemned."

The commission would consist of seven members appointed by the Kansas Supreme Court Chief Justice, the Governor and legislative leaders.

Atrios reminds us:

There are a lot of reasons to not support the Estrada nomination, but frankly there is a simple one which should be enough - his complete failure to be forthcoming about any controversial issue during his confirmation hearing. Take action. Contact your Senator. Stiffen their spines."

Don't miss Media Horse on the foolhardy Estrada nomination as well. It's like buying a pig in a poke (at least we think that's the expression.)

Law Professor Glenn Reynolds has some thoughts on what direction the space debate should take us in his new Tech News Column. One of the courses he teaches is Space Law, so we give him extra credibility on the issue. He says,

the public debate should be on how to move ahead with an ambitious space program without committing ourselves to another big, bureaucratic program like the Space Shuttle, which never really took us where we wanted to go. Instead, we need to find ways to unleash the energies of the private sector, and to allow industries like space tourism to play a bigger role. It's capitalism that lowers costs, not government programs.....

A twenty-first century NASA should focus on new space launch technologies (including such "breakthrough" technologies as laser launch and scramjets), on interplanetary exploration (which won't have a commercial market for a while) and on other things that the private sector can't do. Those things that the private sector can do, like launching things to low-earth orbit, should be left to the private sector.....

I say that the debate will be over how to move ahead, rather than whether to move ahead, because I think that's how most Americans feel. As of Sunday afternoon, the email for my MSNBC site was running hundreds-to-one in favor of going on with an ambitious space program (and I mean literally "one" - I got only one email saying that we should just give up on space and stay home, and it was from a Canadian).

Count us in as one of the hundreds-to-one who want to see an ambitious space program.

Josh over at OxBlog heard Gary Hart speak in Oxford a few days ago. He gave the National Security speech we wrote about here. We disagree with Josh's criticism, which mainly seems to stem from a question he asked Hart at the end of the speech that did not get answered to his satisfaction. Josh is also not a liberal, judging from the blogs on his blogroll, and is a Bush and War supporter, judging from a quick perusal of a few posts on his blog that we just read, so again, we're not surprised he didn't agree with Hart.

Josh takes issue with Hart's position that before we go to war, Bush should answer a few questions, for example, how many casualties can be expected and how long will we be there. Josh says the questions are "sophistry" because no one knows the answer to them. We think that's exactly Hart's point--there are no answers and the American people shouldn't back a war where the answers to those kinds of questions are unknown. Here's what Hart said:

There is every reason now to believe that, within days, American forces—possibly with token support from allies—will invade Iraq. Under these circumstances, and acknowledging the unity of America behind our forces once committed, any attempt to outline a national security policy for the future, such as I undertake here, requires several observations to be made.

The American people deserve to know the costs of this commitment. They deserve to know which members of the international community openly support us, including with military resources. They deserve to know, most of all, casualty estimates on both sides. We have been told none of these things. It cost us 50,000 American lives in Viet Nam to learn the lesson that the American people must not be misled, lied to, or treated as incompetent on military engagements.

The United States military does not belong to the president; it belongs to the American people. Our support for its commitment to combat is crucial for its success. That support cannot be granted in the dark and without a candid statement by the commander in chief regarding the probable costs in human lives and national treasure of its commitment.

Further, as Hart said in his response to Bush's SOTUS

The President is still either unable or unwilling to provide concrete evidence of current Iraqi involvement in terrorism sufficient to justify possible substantial loss of American lives in a war in Iraq. He also is unable or unwilling to provide assurance to the American people that our homeland is sufficiently secure from terrorist attacks before such a war is initiated. As our Council on Foreign Relations Task Force Report of October 25 documented, America is still unprepared and still at risk. We should not go to war until America is prepared to defend itself at home from terrorist attacks that the Central Intelligence Agency has said will most probably occur when we go to war in the Middle East.

Josh says Hart's warnings about civil liberties violations and his comments about the growing fears of American Muslims that the WWII Japanese interment camps will be repeated are "hogwash." Not to the Muslims and Japanese. And not to us. The Indianapolis Star recently interviewed a Diversity Ambassador from Indiana University on the issue.

David Suzuki, IUPUI’s diversity ambassador, was born in the Tule Lake internment camp in Newell, Calif., just after the end of World War II His parents, though U.S. citizens, were imprisoned for about three years while the United States and the Allied forces were at war with Japan.

The Star asked Suzuki to compare the treatment of Japanese-Americans during World War II to the treatment of Arab-Americans and Muslims since the start of the war on terrorism and in anticipation of military conflict with Iraq.

"What similarities do you see between the internment of Japanese-Americans and the treatment of Arab-Americans and American Muslims today?"

"The extended detention of Arab-Americans without formal accusations, the authorization of military tribunals and the use of racial profiling indicate that we could be heading down the same road that the nation mistakenly took 60 years ago. Then, as now, racially motivated fear and hatred seem to be driving some people's actions."

We'd also point out that Hart never said internment camps are "imminent", a position Josh calls "absurd." However, they are a concern, particularly if another large attack on American soil occurs, and Hart predicts it will. Here's Hart's speech: Read for yourselves and decide.

We also heard Hart speak a few nights ago--on Denver's public television station. We reported on it here. One of the reasons we like Hart so much is for his expressed disapproval of Bush and Ashcroft's treatment of the detainees. We agree with Hart that by detaining American citizens without due process, including access to lawyers and hearings, we are violating our own laws. This issue is of far more concern to us than how Hart would enforce a U.N. peace-keeping mission.

So Rhodes scholar or not (and we certainly aren't one, but then again, Josh likely is neither a constitutional nor criminal defense lawyer,) we think you should consider the biased position from which he comes, listen to Hart yourselves and make up your own minds.

First it was handwriting, hair and fiber comparison. Then it was polygraphs and fingerprints. Now it's the law enforcement technique of bullet lead analysis to come under legal and scientific attack.

For over 20 years, the FBI has been using chemical analysis of bullet lead to match bullets to the gun they were fired from and even to the ammunition box they came from. This technique, like the others mentioned, has now come under scientific attack. "The problem, experts say, is that such methods evolved from hunches, trial and error, and anecdotal evidence rather than from accepted scientific practice, which requires controlled experiments and rigorous peer review of the results."

It seems that contrary to what FBI agents have testified to in court the past few decades, bullets that appear chemically identical can come from different batches of lead.

FBI experts have testified repeatedly in court that each time lead is melted and cast, its composition changes just enough to create a unique chemical signature for each batch.....Recent scientific studies have concluded that this premise is wrong. Studying blocks of lead used in the manufacture of bullets, researchers have found the same chemical makeup in batches made at different times. They also have reported that the concentration of trace elements can vary significantly in the same casting of lead. If the skeptics are right, the matches found by FBI lab technicians are meaningless.

A separate study, commissioned by a former FBI agent and a metallurgist who once worked together on the Unabomber case, was conducted by four researchers.

...The four researchers found that there is no such signature. Trace elements are often distributed unevenly within each casting, they reported, so that entire batches rarely bear a uniform chemical profile. As molten lead is cooled, the trace elements tend to concentrate, clumping silver, arsenic or tin toward the center, the study found. As a result, the researchers said, bullets created from the same block of lead can appear unrelated and bullets produced years apart can appear virtually identical.

Defense counsel around the country have begun contesting the FBI's technique--and some are trying to set aside clients' convictions where the technique may have played a principal role at trial.

Richard Saferstein, former chief forensic scientist for the New Jersey State Police, said in a recent interview that the problem with bullet-lead analysis is not with the lab work but with the conclusions drawn from it. The FBI, he said, has tended to overstate the significance of such evidence. "It's the image that the FBI projects, of course, more than the technology. That image, when you are talking to jurors, is impressive," he said. "You can't abuse that privilege. It comes back to haunt the agency and the profession."