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This week, there have been two inmate deaths at two different correctional facilities in Massachusetts - one was the third suicide of the year, as compared to four in all of 2005 and one in 2004. There were seven in 2006. The suicide occurred at Bridgewater State Hospital, the facility that specifically houses those inmates with severe mental health issues (though it’s very clear in my experience that a hell of a lot more inmates have mental health issues than end up at Bridgewater AND that Bridgewater is such a miserable place to be that many resist going there at all costs).

Last month, the Disability Law Center sued the Massachusetts Department of Correction in federal court, alleging that inmates with severe mental health issues were being treated inhumanely (including being on lock-down 23 hours per day) and asking that the remedy be more specialized housing and treatment for them.

Putting such prisoners in segregation units, the advocates say, violates the constitutional prohibition against cruel and unusual punishment and should be banned. The Disability Law Center also said the segregation of mentally ill inmates violates federal statutes, including the Americans with Disabilities Act.

The Department of Correction said in a statement that it does not comment on pending litigation. However, the department said it was “well aware of the national trend of the increasing number of prisoners with mental illness” and that it had begun taking steps to reduce the risk of suicide for the state’s nearly 11,000 inmates.

In February, the Department of Correction issued its own independent report on inmate suicides, recognizing that facility procedures and policies were contributing to a suicide rate that was almost double the national average (27 per 100,000 v. 14 per 100,000):

Guards and other staff members do not have enough training in suicide prevention.

Guards fail to check frequently enough on some inmates at risk of suicide.

Some cells used to house suicidal inmates have not been stripped of features they could use to harm themselves.

Inmates under suicide watch become even more isolated because they are denied visits, showers, phone calls, and time outside their cells.

[…]

The report also includes unsettling details about recent suicides, the vast majority from inmates hanging themselves. In two recent cases, inmates were hanging for more than 30 minutes before they were discovered, though prisoners on suicide watch are supposed to be checked at least every 30 minutes. In the report, [author Lindsay Hayes of the National Center on Institutions and Alternatives] urges the department to do away with 30-minute checks for suicidal patients, which he concludes are too infrequent, and instead check at least every 15 minutes and have constant observation for the most troubled inmates.

It’s frustrating to be on the cusp of seeing this first hand - I hear complaints from my clients held in custody all the time, and it is not just those who are classified as having mental health issues. The local county facility that I spend the most time in regularly keeps inmates locked down for 23 hours and I hear stories all the time about social workers who deride inmates, correctional officers who spit on them, and nurses who treat every ailment with an ibuprofen. I hear about cells designed for two people housing four or five and makeshift beds shoved into the cafeteria. But these things all happen literally locked away from the public eye. And it’s not like the general public has much sympathy for those people locked away for criminal activity, nor do they place much stock in their credibility. It’s tragic that suicides have to be the catalyst for any sort of scrutiny, but I hope that, with the help of organizations like the Disability Law Center and Massachusetts Correctional Legal Services, something may be done soon.

This week, an interesting publication called Exhibit A appeared around Boston and on the interweb. It is based upon the premise that the greater non-lawyer population devours legal pop culture (Law and Order, John Grisham, etc), so perhaps they will like an easily-digestible mix of legal news and fun. And so far, I kinda like it, though I may be biased due to the prominent feature about Stephanie Page, Massachusetts’s finest public defender:

While you might not recognize her name, you’ll likely recall some of the more salacious cases in which she’s been involved. Remember the dominatrix accused of cutting up her client’s body and tossing him in a dumpster in Maine? Page won the woman her acquittal. But it wasn’t without first immersing herself in the mysterious world of S&M.

“As anyone knows who has gone into a toy shop, an erotic shop, it’s another world,” says the pint-sized, 58-year-old lawyer. “The chains, the ties, the leather — all that stuff.”

More important than defending her client’s S&M lifestyle in that case, Page says, was proving how difficult it would have been for the 56-year-old dominatrix to cut up the body of her 260-pound client without leaving a trace.

(By the way, this trial took a particularly bizarre turn when the prosecutor, during closing arguments, donned an S&M mask and collar and pretended to tie himself to a chalkboard).

There is also quite a funny (and painfully true) column written by a bar advocate (the Massachusetts term for private attorneys doing court-appointed defense work). He outlines every party conversation that he (we?) have ever had:

“So, what do you do for a living?”

“I’m an attorney.”

“Really. What type of law do you practice?”

“Criminal defense.”

(It’s always at that point that I wished I had employed that quintessential lawyering skill — lying. All I have to say is “bankruptcy law” and the topic changes.)

“Huh. So do you try to put people in jail or keep them out?”

“I try to keep them out.”

“Have you ever represented someone who you thought might be guilty?”

“I honestly can’t remember the last time I represented someone who I thought was innocent.”

“What?”

(Here we go.)

“You represent people even though you know they are guilty?”

“Every day.”

[…]

“…Your clients do horrible things. Don’t you think representing them is immoral?”

“No, I don’t find it immoral. In fact, I think representing indigent criminal defendants is paradoxically the most moral thing an attorney can do.”

“Wait a minute. You’re trying to say that representing these scumballs is moral?”

“Unquestionably. There are a number of sociological reasons and there’s the need to keep power in check. But the reason that I represent these ‘scumballs,’ as you call them, is simply because everyone’s a scumball — some people just have nicer clothes.”

“Huh?”

(Wait for it … )

“Hey! I have nice clothes.”

“Exactly.”

I am taking off for a much-needed vacation to Las Vegas in a few hours. To amuse yourself while I am away, check out these interesting stories and sites:

Article about the legal challenges involving transsexuals and employment discrimination

Needled - A blog about tattoos by the fabulous lawyer Marisa DiMattia.

TV Gal - This has nothing to do with the law or politics, but I enjoy TV a little too much and have been reading Amy the TV Gal’s column for over 10 years now.

Celeb Warship - Again, this reflects my pop culture interests and is the best snarky gossip site on the interweb (written by my dear friend Alyk).

And finally…Viva Las Vegas!

I am gearing up for my vacation to Las Vegas starting on Thursday, so I decided to see what was going on in the world of crime and defense in my favorite city of Elvis, roulette, and open containers. And I came across as issue that, shockingly, I have not yet figured out an opinion on - whether a verdict of “guilty but mentally ill” should be an option in criminal cases.

Apparently, the state of Nevada scrapped the “not guilty by reason of insanity” verdict back in 1995 and replaced it with “guilty but mentally ill.” The Nevada Supreme Court slapped the legislature down, however, ruling in 2001 that getting rid of the insanity defense was unconstitutional and eliminating the “guilty but mentally ill” option. But now State Assemblyman William Horne - a Democrat and a criminal defense attorney - has proposed re-introducing the “guilty but mentally ill” verdict in addition to the constitutionally-mandated insanity defense. The public defenders in the state, though, have expressed concerns that such a verdict would actually deprive the mentally ill of proper treatment.

“The defense bar does raise some legitimate concerns, but I don’t think it’s bad that a jury can say, ‘You didn’t meet the standard for insanity, but you did have some mental health issues,’” Horne said.

Horne added that offenders should still have an obligation to society to pay for crimes they commit.

[…]

Lisa Rasmussen testified for Nevada Attorneys for Criminal Justice, saying the proposed standard should not be used to erode the “not guilty by reason of insanity” standard. She said it should only be allowed if the defendants propose it themselves, and not by prosecutors as a bargaining tool against the insanity plea.

She also pushed for excluding death penalty and life-without-parole sentences for those found guilty but mentally ill.

As the actual text of proposed AB193 makes clear, a defendant would have to prove mental illness by the (relatively low) preponderance of the evidence standard and would also “generally” be subjected to the same penalties as any other defendant pleading guilty.

Regardless of whether a defendant is mentally ill at the time of sentencing, the court is required to impose any sentence available to the court for a defendant who pleads or is found guilty of the same offense. However, if the defendant is mentally ill at the time of sentencing, the court is also required, under certain circumstances, to direct the Department of Corrections to provide to the defendant such treatment as is available for his mental illness during his confinement or probation.

Specifically in regards to treatment:

[A court shall] include in that sentence an order that the defendant,
during the period of his confinement or probation, be given such treatment as is available for his mental illness if the court determines that the relative risks and benefits of the available treatment are such that a reasonable person would consent to such treatment.
The Department of Corrections shall provide any treatment ordered by a court [.]

So, while the verdict could be incredibly helpful in some circumstances, the public defender faction seems to be quite correct (not that I am biased or anything) in their concerns about what actual treatment these defendants may receive. Now, I do not know any details about the mental health resources available in the Nevada Correctional system, but “whatever treatment is available” seems awfully vague. It appears that individual judges would be responsible for mandating specific treatment (hopefully with the input of defense attorneys), but that the DoC would be responsible for carrying it out. It’s sort of like adding a condition of probation to a jail sentence and I’m not sure how practical or helpful that really is to a defendant with mental health issues.

Massachusetts is a weird state. We are known as one of (if not the) most liberal states in the country (see, i.e., gay marriage, lots of taxes), but we also have this specter of old racism that still haunts us (see, i.e., school busing, the near-riots following the Charles Stuart murder saga). The reality is that this state is deeply conflicted, filled with righteousness as well as liberal guilt about what may be hiding just below the surface. It is that uneasy reality that seems to inform an interesting article in a regional paper today about minority representation on juries.

Supreme Court case law has clearly established that jury pools must be chosen from a fair cross-section of the community, but that there is “no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.” But some judges here are now growing concerned that the jury pool isn’t representative, meaning that many actual juries certainly are not representative and, as a result, that minority defendants are at a disadvantage.

[A] potential death penalty case in federal court in Boston, in which U.S. District Judge Nancy Gertner feared black defendants would be judged by a white jury, spurred changes in the federal jury system this month. The federal courts’ eastern division has produced particularly egregious discrepancies between the races of jurors and the races of defendants.

Chief U.S. District Judge Mark L. Wolf recently announced changes to the jury selection system that took effect March 1 in all three federal court divisions in Massachusetts. To begin with, the summonses will be checked against the Postal Service’s national change-of-address list twice a year instead of once.

And if a summons comes back as undeliverable, a new summons will be sent to another address in the same ZIP code.

Jurors here are chosen from “resident” lists, rather than from voter registrations, but a 14-year-long push by State Senator Stanley Rosenberg to also consider Registry of Motor Vehicle and Department of Transitional Assistance lists have been ignored.

Even though the measure keeps getting publicly approved in the Legislature, it gets derailed in ways that Mr. Rosenberg, the Senate pro tem and former Ways and Means chairman, doesn’t understand. It has happened so consistently that Mr. Rosenberg said he will no longer push the idea, even though almost every other state now uses his proposed “merge and purge” method, and has equaled or surpassed Massachusetts, which used to be the national leader for inclusive voting lists.

These mysterious “derailments” seem to disturbingly highlight that hidden current of racism that I fear runs so strongly around here. I do not think there is an active movement to keep minorities from serving on juries, nor do I think that these are issues just facing Massachusetts. But it is disheartening (and slightly nauseating) to see minority defendant after minority defendant facing a box full of white faces…

In consecutive trials of minority clients of Worcester lawyer Peter L. Ettenberg in Worcester Superior Court, there was one minority member in the jury pools — a combined total of 160 potential jurors, according to Mr. Ettenberg.

Christian Hatfield is the Chief Public Defender in Aztec, New Mexico and on Friday, he was also briefly an inmate at the San Juan County Detention Center. Why, you ask? Not because he showed up drunk to a trial or anything (see below), but because one of the attorneys in his office realized that he had previously represented a witness in the case against his client. Yes, he was held in contempt of court for respecting the code of ethics that we as lawyers abide by. Granted, it meant postponing the trial (which seems to only be a problem when it is the defense asking for it), but it also meant standing up for those ethics that Judge Wilma Charley apparently found pesky.

The judge told Hatfield that [public defender Stephen] Taylor could not withdraw from the case and gave him two options: Stay the course or be found in contempt of court.

Hatfield, who had his criminal mug shot hanging on his office door Friday, said that as the chief public defender, he felt it was his duty to uphold his ethical values, and decided he would rather be found in contempt of court than allow Taylor to represent [defendant Ismael] Cordova.

“Since I’m the manager of this office, I didn’t want any of my lawyers to go to jail,” he said.

Contempt of court is punishable by a fine between $100 and $1,000, or a sentencing of 30 to 90 days in jail, or both, according to state statute.

This brings to light another issue - that of recognizing conflicts of interest. Hatfield acknowledged that his office should have caught this error ahead of time, but such things can sometimes be extremely difficult. Contrary to what some people (some prosecutors included) think, there are no hard-and-fast categories of Defendants and Victims. Those who sometimes appear as Victims in a particular case have also, at some point, been Defendants and vice versa. Of course, Defendants are usually precluded from bringing up a Victim’s past as a Defendant and a Victim’s veracity is never questioned once they are given that label (whereas the Defendant is always seen as the lying scum).

Anyway. I have to go prepare for a violation of probation hearing that I will likely lose because, of course, Police and Probation Officers are also never mistaken or lying.

Guess what? I’m back to the blog. I know it has been seven months and honestly, I’m ashamed of that. I started this blog as a labor of love, after having my semi-professional writing gig come to an end. But since taking the bar last summer, I have actually become a real public defender and cases and clients and commuting have consumed me. By the time I am home and able to write, my brain is fried and I end up watching television. But I have recently discovered the fantastic plethora of public defender blogs out in internet land and I have been inspired to truly kick mine into gear.

To keep you occupied while I start writing up a storm, I recommend Indefensible, written by David Feige, author of the book by the same name. And I have just discovered Ipse Dixit, which beautifully combines PD musings and American Idol snark. That combination must be loved. Finally, a special shout out to Arbitrary and Capricious, the only blog by someone I don’t know to link to one of my stories here!

Today, I was on arraignment duty in district court. It was a light day without many arrests, so the atmosphere in lock-up seemed a little more bearable than usual. Most often, it is crowded, smelly, and hot and I focus all of my attention just on the clients I need to talk to. I have learned to generally shut out the cat calls and insults that are sometimes hurled around by men whose confidence is somehow boosted by being locked up. But today, there were only a couple of people there and they were quite friendly and funny:

Defendant 1, upon seeing me waiting at the door of lock-up for a court officer to let me back into the courtroom: You don’t have a wedding ring! You’re not married?

Me: Ha. No, I am not married.

D1: Are you getting married?

Me: Eventually, hopefully.

D2: Aww, you should get married. You’re so pretty.

D1: I have a couple of engagement rings I haven’t used. Do you want one?

It was rather hilarious.