Vol. XII, No. 4 October 2002
Contents (click on selection)
The President’s Corner Digital Photo Editing: Worth A Thousand Lies
5 Essential Truths of Indigent Defense Our (Sad) History of Treating Mental Illness
10 Principles of a Public Defender System Jury of Your Peers? Only if You’re Clueless
Laser Pointer in Court Prompts Lawsuit The Court Report
Vehicle Stops and Race Spotlight on the 26 District
R. Carter Calls for Halt to Executions Personnel Transactions
Handling the Media Down At The Courthouse
In Defense of Public Defenders The Computer Gnome
Tennessee Judiciary Embraces Youth Courts About the Forum
The President=s Corner
Reshaping the Capital Division
We presently do not have a Capital Division of the
Public Defenders Conference. The recent resignation of
Dave Keefe and his staff has resulted in three vacant
positions. We wish them well in their endeavors.
Rather than immediately attempting to fill these
positions, the executive committee is in the process of
examining all aspects of the Capital Division. We expect
to report to the Conference in the upcoming October
As a relatively new department of state government,
Public Defenders continue to evolve. Contained within the
concept of evolution, is the idea that change occurs over
time. Often this evolution has been influenced by events,
funding or lack thereof, politics, individuals and
Since I was in one of the original pilot programs, I
have had the advantage of watching us evolve from the
beginning. I have seen some good and some bad. From
fights and hurt feelings to trust and friendship, tough
times and good times, crisis and non-crisis, all of which
we can put under the heading of growing pains.
We grow and problems abound. Many of these
problems would be solved with adequate funding. My
observations make me conclude that adequate funding will
continue to be an annual effort.
What is not so obvious, but none-the-less valid, is
the observation that we have an uncanny willingness to
self-examine. With passion and purpose, Public
Defenders have worked hard to better the delivery system
of legal services to the poor. We have made mistakes, but
no one can doubt our effort and dedication.
As we evolve our Capital Division, I am confident that
our self-examination will produce a product that will fit our
funding limitations. I am sure that there will be criticism
and not everyone will be happy with the result. Such is the
nature with moving forward.
We as a group are sincere and dedicated to the
cause of good representation for poor people. I know our
final product will be the result of good and honest hearts.
For that, I thank you.
Five Essential Truths Return to Contents
About Indigent Defense
By Tom Becker, Iowa State Public Defender
Printed first in The Iowa Lawyer, journal of The Iowa State Bar Association, July
2002, vol. 62, No. 7 at 20.
About two years ago when I first wrote in The Iowa
Lawyer, I played on the old motor oil commercial catch-
phrase of “pay me now, or pay me later” to warn about
the dangers of complacency in maintaining effective
indigent defense programs. It was just a few months
afterward that our nation, and Iowa along with it, plunged
into the current economic recession.
From early 2001 through the present, we’ve been fighting
one budget battle after another, each more desperate
than the one before. That’s going to continue for at least
the near future and it’s driving Iowa’s indigent defense
programs toward a crisis. We can get through this crisis,
but there needs to be a change in how some of Iowa’s
policymakers view indigent defense.
As unpleasant as the budget battles have been, they’ve
taught me a great deal. When I was a kid and decided I
wanted to be a lawyer, one of my reasons was that I
thought there would be no math. I was wrong. In this job
I’ve discovered that 1) learning the state’s budgeting
methods and jargon is essential, and 2) having a key staff
member with a B.S. in mathematics is pure gold.
Unfortunately, I’ve also learned that there are too many
folks who cannot look beyond the numbers and see the
truth about indigent defense. As Simone Weil, the French
philosopher, said, “In mathematics we have all the data,
yet we don’t understand.” This article is intended to
promote that understanding.
I believe there are five Essential Truths about indigent
defense. Anyone who appreciates these will understand
everything necessary for good decisions about indigent
defense programs in Iowa or anyplace else. No doubt
there will be argument about some of these or whether
there ought to be others. In any case, this is my story and
I’m sticking to it.
THE FIRST ESSENTIAL TRUTH about indigent defense is
that the State of Iowa has no legal option but to provide
funding to indigent defense programs adequate for
representation at a constitutionally effective level. Yes,
we need to be efficient about it. That’s why we have
salaried state employees in public defender offices
handling a majority of the cases. For the cases handled
by attorneys appointed from the private bar, efficiency is
why there is oversight by judges and my office
concerning fees and expenses. But at the end of the day,
indigent defense must be funded. That may be a
counterintuitive proposition for some of the folks who, in
tough budget times, are looking to make cuts, but that’s
the way it is.
THE SECOND ESSENTIAL TRUTH is the need for indigent
defense services is determined by people who have no
role in administering indigent defense programs. The
Legislature decides what’s against the law, the police
decide whom to arrest, and county attorneys decide
whom to prosecute. Neither I nor anyone who works for
me – or any other provider of indigent defense services –
has the slightest influence on these decisions.
The most influential of these players isn’t even part of
state government. Except for the State Patrol and
Department of Criminal Investigations, the police are
answerable to local government. Sheriffs are elected by
the people of their counties. Most influential of all are
Iowa’s 99 elected county attorneys. County attorneys are
autonomous and accountable only to their
constituencies. County attorneys have partisan
affiliations, political agendas, and enormous discretion.
So, if certain people say to me, “We’re going to cut
indigent defense appropriations by 4.83 percent,” I
respond with two questions: Are you willing to reduce
prosecutions against indigent persons by 4.83 percent?
Is so, how are you going to do that? If answers to those
questions prove elusive, return to the first Essential
Truth – indigent defense must be funded. And forget
about cutting my appropriations.
THE THIRD ESSENTIAL TRUTH: Public Defenders save
the state money. For the cases handled by the State
Public Defender’s Trial Division, the average cost per
case is less than half of the average cost per claim
against the Indigent Defense Fund. I know this premise
doesn’t sit well with some readers of The Iowa Lawyer,
but it’s the truth.
From the establishment of the very first public defender
office in Los Angeles early in the last century, through
today, there have been two fundamental, co-equal
reasons for setting up public defender offices: quality
service at the most economical price.
Public Defenders provide the quality by being the only
law firm in town that specializes exclusively in state
criminal defense. The economic efficiency comes from
using salaried employees, including an in-house
investigative staff. This combination of quality and
efficiency is why jurisdictions with well-functioning
indigent defense programs use public defenders as their
cornerstones. The absence of public defenders is why
some programs are in trouble, and why several of these
are turning to public defenders for solutions.
Accordingly, if anyone thinks that public defender
layoffs, furloughs, and hiring freezes save the state
money, please refer back to the First and Second
Essential Truths – any charge laid against an indigent by
a county attorney must be defended by someone. If there
isn’t a public defender available to handle the case, it’s
going to cost the state more. The long-range solution to
controlling indigent defense costs is expansion of the
State Public Defender Service, not cutbacks. Now, before
anyone gets too mad at me, read on.
THE FOURTH ESSENTIAL TRUTH: Private attorneys play
an essential role in providing indigent defense services,
and that means we must pay them. Public defenders
cannot efficiently cover every county in Iowa. Even in
locations served by public defender offices, there are
many cases public defenders can’t handle because of
conflicts of interest or work overload. A jurisdiction
without an effective partnership between public
defenders and private attorneys risks gridlock in the
criminal justice system. We can’t expect to have
sufficient numbers of quality lawyers willing to take
appointments unless we pay them appropriately.
Iowa’s current hourly rates for court appointed lawyers -
$60, $55, and $50 for, respectively, Class A felonies,
Class B felonies, and everything else – are in the upper
tier among states that fund indigent defense at the state
level. But those rates aren’t enough to compensate court-
appointed attorneys fairly. My office supports at least
another $5 per hour increase across the board. A fee
increase hasn’t been in the cards lately and won’t until
the economy turns around, but it’s still on our agenda.
This brings me to my fifth and last Essential Truth about
THE FIFTH ESSENTIAL TRUTH: The ability to maintain a
court-appointment fee rate at an appropriate level
depends upon a robust State Public Defender Service. A
vigorous, statewide public defender network means
higher fee rates for other court-appointed lawyers. Many
of you may ask, “How can that be?” Here’s how:
The State of Iowa must provide an adequate indigent
defense program, but must do so in an economically
efficient way or we break the bank. If there isn’t an
extensive public defender system to handle a significant
majority of cases, the only way to control costs is to
lowball the money paid to other appointed counsel. Just
look at the states whose indigent defense troubles have
been in the news lately – all have no statewide public
defender network, and all either have low fee rates,
impose hard and low fee caps that make high hourly
rates meaningless, or extensively use low-cost contract
The ideal vision for Iowa’s indigent defense program has
the State Public Defender Service as the principal service
provider with fairly compensated members of the private
bar handling the rest of the cases. Indeed, this is the only
vision for an effective program. One component cannot
exist without the other.
I hope this article helps readers better understand the
challenge of providing quality indigent defense services
in an efficient way. Whether you agree with everything
I’ve said, I hope one thing is clear – deliberately under-
funding indigent defense does not save the state
anything even in the short term, and ignoring
opportunities for long-term savings in order to avoid
near-term expenses only ends up costing the taxpayers.”
Any way you slice it, it’s still “pay me now … or pay me
THE TEN PRINCIPLES
OF A PUBLIC DEFENSE DELIVERY
Adopted by American Bar Association House of Delegates
February 5, 2002
AMERICAN BAR ASSOCIATION
STANDING COMMITTEE ON LEGAL AID AND INDIGENT
CRIMINAL JUSTICE SECTION
GOVERNMENT AND PUBLIC SECTOR LAWYERS DIVISION
STEERING COMMITTEE ON THE UNMET LEGAL NEEDS OF CHILDREN
COMMISSION ON RACIAL AND ETHNIC DIVERSITY IN THE
STANDING COMMITTEE ON PRO BONO AND PUBLIC SERVICE
REPORT TO THE HOUSE OF DELEGATES
RESOLVED, That the American Bar Association adopts or
reaffirms THE TEN PRINCIPLES OF A PUBLIC DEFENSE
DELIVERY SYSTEM, dated February 2002, which constitute the
fundamental criteria to be met for a public defense delivery system
to deliver effective and efficient, high quality, ethical, conflict-free
representation to accused persons who cannot afford to hire an
FURTHER RESOLVED, That the American Bar Association
recommends that each jurisdiction use THE TEN PRINCIPLES OF
A PUBLIC DEFENSE DELIVERY SYSTEM, dated February 2002, to
assess promptly the needs of its public defense delivery system
and clearly communicate those needs to policy makers.
1. The public defense function, including the selection, funding, and
payment of defense counsel,1 is independent. The public defense function
should be independent from political influence and subject to judicial
supervision only in the same manner and to the same extent as retained
counsel.2 To safeguard independence and to promote efficiency and
quality of services, a nonpartisan board should oversee defender, assigned
counsel, or contract systems.3 Removing oversight from the judiciary
ensures judicial independence from undue political pressures and is an
important means of furthering the independence of public defense.4 The
selection of the chief defender and staff should be made on the basis of
merit, and recruitment of attorneys should involve special efforts aimed at
achieving diversity in attorney staff.5
2. Where the caseload is sufficiently high,6 the public defense delivery
system consists of both a defender office7 and the active participation of
the private bar. The private bar participation may include part time
defenders, a controlled assigned counsel plan, or contracts for services.8
The appointment process should never be ad hoc,9 but should be according
“Counsel” as used herein includes a defender office, a criminal defense attorney in a defender office, a
contract attorney or an attorney in private practice accepting appointments. “Defense” as used herein relates to
both the juvenile and adult public defense systems.
National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, Chapter 13,
The Defense (1973) [hereinafter “NAC”], Standards 13.8, 13.9; National Study Commission on Defense
Services, Guidelines for Legal Defense Systems in the United States (1976) [hereinafter “NSC”], Guidelines 2.8,
2.18, 5.13; American Bar Association Standards for Criminal Justice, Providing Defense Services (3rd ed. 1992)
[hereinafter “ABA”], Standards 5-1.3, 5-1.6, 5-4.1; Standards for the Administration of Assigned Counsel
Systems (NLADA 1989) [hereinafter “Assigned Counsel”], Standard 2.2; NLADA Guidelines for Negotiating
and Awarding Contracts for Criminal Defense Services, (1984) [hereinafter “Contracting”], Guidelines II-1, 2;
National Conference of Commissioners on Uniform State Laws, Model Public Defender Act (1970) [hereinafter
“Model Act”], § 10(d); Institute for Judicial Administration/American Bar Association, Juvenile Justice
Standards Relating to Counsel for Private Parties (1979) [hereinafter “ABA Counsel for Private Parties”],
Standard 2.1 (D).
NSC, supra note 2, Guidelines 2.10-2.13; ABA, supra note 2, Standard 5-1.3(b); Assigned Counsel, supra
note 2, Standards 3.2.1, 2; Contracting, supra note 2, Guidelines II-1, II-3, IV-2; Institute for Judical
Administration/ American Bar Association, Juvenile Justice Standards Relating to Monitoring (1979)
[hereinafter “ABA Monitoring”], Standard 3.2.
Judicial independence is “the most essential character of a free society” (American Bar Association Standing
Committee on Judicial Independence, 1997).
ABA, supra note 2, Standard 5-4.1
“Sufficiently high” is described in detail in NAC Standard 13.5 and ABA Standard 5-1.2. The phrase can
generally be understood to mean that there are enough assigned cases to support a full-time public defender
(taking into account distances, caseload diversity, etc.), and the remaining number of cases are enough to
support meaningful involvement of the private bar.
NAC, supra note 2, Standard 13.5; ABA, supra note 2, Standard 5-1.2; ABA Counsel for Private Parties,
supra note 2, Standard 2.2. “Defender office” means a full-time public defender office and includes a private
nonprofit organization operating in the same manner as a full-time public defender office under a contract with
ABA, supra note 2, Standard 5-1.2(a) and (b); NSC, supra note 2, Guideline 2.3; ABA, supra note 2,
NSC, supra note 2, Guideline 2.3; ABA, supra note 2, Standard 5-2.1.
to a coordinated plan directed by a full-time administrator who is also an
attorney familiar with the varied requirements of practice in the
jurisdiction.10 Since the responsibility to provide defense services rests
with the state, there should be state funding and a statewide structure
responsible for ensuring uniform quality statewide.11
3. Clients are screened for eligibility,12 and defense counsel is assigned and
notified of appointment, as soon as feasible after clients’ arrest, detention,
or request for counsel. Counsel should be furnished upon arrest, detention
or request,13 and usually within 24 hours thereafter.14
4. Defense counsel is provided sufficient time and a confidential space with
which to meet with the client. Counsel should interview the client as soon
as practicable before the preliminary examination or the trial date.15
Counsel should have confidential access to the client for the full exchange
of legal, procedural and factual information between counsel and client.16
To ensure confidential communications, private meeting space should be
available in jails, prisons, courthouses and other places where defendants
must confer with counsel.17
5. Defense counsel’s workload is controlled to permit the rendering of
quality representation. Counsel’s workload, including appointed and
other work, should never be so large as to interfere with the rendering of
quality representation or lead to the breach of ethical obligations, and
counsel is obligated to decline appointments above such levels.18 National
caseload standards should in no event be exceeded,19 but the concept of
ABA, supra note 2, Standard 5-2.1 and commentary; Assigned Counsel, supra note 2, Standard 3.3.1 and
commentary n.5 (duties of Assigned Counsel Administrator such as supervision of attorney work cannot
ethically be performed by a non-attorney, citing ABA Model Code of Professional Responsibility and Model
Rules of Professional Conduct).
NSC, supra note 2, Guideline 2.4; Model Act, supra note 2, § 10; ABA, supra note 2, Standard 5-1.2(c);
Gideon v. Wainwright, 372 U.S. 335 (1963) (provision of indigent defense services is obligation of state).
For screening approaches, see NSC, supra note 2, Guideline 1.6 and ABA, supra note 2, Standard 5-7.3.
NAC, supra note 2, Standard 13.3; ABA, supra note 2, Standard 5-6.1; Model Act, supra note 2, § 3; NSC,
supra note 2, Guidelines 1.2-1.4; ABA Counsel for Private Parties, supra note 2, Standard 2.4 (A).
NSC, supra note 2, Guideline 1.3.
American Bar Association Standards for Criminal Justice, Defense Function (3rd ed. 1993) [hereinafter “ABA
Defense Function”], Standard 4-3.2; Performance Guidelines for Criminal Defense Representation (NLADA
1995) [hereinafter “Performance Guidelines”], Guidelines 2.1-4.1; ABA Counsel for Private Parties, supra note
2, Standard 4.2.
NSC, supra note 2, Guideline 5.10; ABA Defense Function, supra note 15, Standards 4-2.3, 4-3.1, 4-3.2;
Performance Guidelines, supra note 15, Guideline 2.2.
ABA Defense Function, supra note 15, Standard 4-3.1.
NSC, supra note 2, Guideline 5.1, 5.3; ABA, supra note 2, Standards 5-5.3; ABA Defense Function, supra
note 15, Standard 4-1.3(e); NAC, supra note 2, Standard 13.12; Contracting, supra note 2, Guidelines III-6, III-
12; Assigned Counsel, supra note 2, Standards 4.1,4.1.2; ABA Counsel for Private Parties, supra note 2,
Standard 2.2 (B) (iv).
Numerical caseload limits are specified in NAC Standard 13.12 (maximum cases per year:
150 felonies, 400 misdemeanors, 200 juvenile, 200 mental health, or 25 appeals), and other
workload (i.e., caseload adjusted by factors such as case complexity,
support services, and an attorney’s nonrepresentational duties) is a more
6. Defense counsel’s ability, training, and experience match the complexity
of the case. Counsel should never be assigned a case that counsel lacks the
experience or training to handle competently, and counsel is obligated to
refuse appointment if unable to provide ethical, high quality
7. The same attorney continuously represents the client until completion
of the case. Often referred to as “vertical representation,” the same
attorney should continuously represent the client from initial assignment
through the trial and sentencing.22 The attorney assigned for the direct
appeal should represent the client throughout the direct appeal.
8. There is parity between defense counsel and the prosecution with
respect to resources and defense counsel is included as an equal partner in
the justice system. There should be parity of workload, salaries and other
resources (such as benefits, technology, facilities, legal research, support
staff, paralegals, investigators, and access to forensic services and experts)
between prosecution and public defense.23 Assigned counsel should be
paid a reasonable fee in addition to actual overhead and expenses.24
Contracts with private attorneys for public defense services should never
be let primarily on the basis of cost; they should specify performance
requirements and the anticipated workload, provide an overflow or
national standards state that caseloads should “reflect” (NSC Guideline 5.1) or “under no
circumstances exceed” (Contracting Guideline III-6) these numerical limits. The workload
demands of capital cases are unique: the duty to investigate, prepare and try both the
guilt/innocence and mitigation phases today requires an average of almost 1,900 hours, and
over 1,200 hours even where a case is resolved by guilty plea. Federal Death Penalty Cases:
Recommendations Concerning the Cost and Quality of Defense Representation (Judicial
Conference of the United States, 1998). See also ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases (1989) [hereinafter “Death Penalty”].
ABA, supra note 2, Standard 5-5.3; NSC, supra note 2, Guideline 5.1; Standards and Evaluation Design for
Appellate Defender Offices (NLADA 1980) [hereinafter “Appellate”], Standard 1-F.
Performance Guidelines, supra note 11, Guidelines 1.2, 1.3(a); Death Penalty, supra note 15, Guideline 5.1.
NSC, supra note 2, Guidelines 5.11, 5.12; ABA, supra note 2, Standard 5-6.2; NAC, supra note 2, Standard
13.1; Assigned Counsel, supra note 2, Standard 2.6; Contracting, supra note 2, Guidelines III-12, III-23; ABA
Counsel for Private Parties, supra note 2, Standard 2.4 (B) (i).
NSC, supra note 2, Guideline 3.4; ABA, supra note 2, Standards 5-4.1, 5-4.3; Contracting, supra note 2,
Guideline III-10; Assigned Counsel, supra note 2, Standard 4.7.1; Appellate, supra note 20 (Performance);
ABA Counsel for Private Parties, supra note 2, Standard 2.1 (B) (iv). See NSC, supra note 2, Guideline 4.1
(includes numerical staffing ratios, e.g., there must be one supervisor for every 10 attorneys, or one part-time
supervisor for every 5 attorneys; there must be one investigator for every three attorneys, and at least one
investigator in every defender office). Cf. NAC, supra note 2, Standards 13.7, 13.11 (chief defender salary
should be at parity with chief judge; staff attorneys at parity with private bar).
ABA, supra note 2, Standard 5-2.4; Assigned Counsel, supra note 2, Standard 4.7.3.
funding mechanism for excess, unusual or complex cases,25 and separately
fund expert, investigative and other litigation support services.26 No part
of the justice system should be expanded or the workload increased
without consideration of the impact that expansion will have on the
balance and on the other components of the justice system. Public defense
should participate as an equal partner in improving the justice system.27
This principle assumes that the prosecutor is adequately funded and
supported in all respects, so that securing parity will mean that defense
counsel is able to provide quality legal representation.
9. Defense counsel is provided with and required to attend continuing
legal education. Counsel and staff providing defense services should have
systematic and comprehensive training appropriate to their areas of
practice and at least equal to that received by prosecutors.28
10. Defense counsel is supervised and systematically reviewed for quality
and efficiency according to nationally and locally adopted standards. The
defender office (both professional and support staff), assigned counsel, or
contract defenders should be supervised and periodically evaluated for
competence and efficiency.29
“The Ten Principles of a Public Defense Delivery System” is
a practical guide for governmental official, policymakers, and other
parties who are charged with creating and funding new, or
improving existing, systems by which public defense services are
delivered within their jurisdictions.1 More often than not, these
NSC, supra note 2, Guideline 2.6; ABA, supra note 2, Standards 5-3.1, 5-3.2, 5-3.3; Contracting, supra note
2, Guidelines III-6, III-12, and passim.
ABA, supra note 2, Standard 5-3.3(b)(x); Contracting, supra note 2, Guidelines III-8, III-9.
ABA Defense Function, supra note 15, Standard 4-1.2(d).
NAC, supra note 2, Standards 13.15, 13.16; NSC, supra note 2, Guidelines 2.4(4), 5.6-5.8; ABA, supra note
2, Standards 5-1.5; Model Act, supra note 2, § 10(e); Contracting, supra note 2, Guideline III-17; Assigned
Counsel, supra note 2, Standards 4.2, 4.3.1, 4.3.2, 4.4.1; NLADA Defender Training and Development
Standards (1997); ABA Counsel for Private Parties, supra note 2, Standard 2.1 (A).
NSC, supra note 2, Guidelines 5.4, 5.5; Contracting, supra note 2, Guidelines III-16; Assigned Counsel,
supra note 2, Standard 4.4; ABA Counsel for Private Parties, supra note 2, Standards 2.1 (A), 2.2; ABA
Monitoring, supra note 3, Standards 3.2, 3.3. Examples of performance standards applicable in conducting
these reviews include NLADA Performance Guidelines, ABA Defense Function, and NLADA/ABA Death
“The Ten Principles of a Public Defense Delivery System” are based on a paper entitled The Ten
Commandments of Public Defense Delivery Systems, which was written by James R. Neuhard,
Director of the Michigan State Appellate Defender Office and former member of the ABA Standing
individuals are non-lawyers who are completely unfamiliar with the
breadth and complexity of material written about criminal defense
law, including the multitude of scholarly national standards
concerning the issue of what constitutes quality legal
representation for criminal defendants. Further, they operate
under severe time constraints and do not have the time to wade
through the body of standards; they need quick and easy, yet still
reliable and accurate, guidance to enable them to make key
As explained more fully in the sections that follow, “The Ten
Principles of a Public Defense Delivery System” fulfills this need.
It represents an effort to sift through the various sets of national
standards and package, in a concise and easily understandable
form, only those fundamental criteria that are absolutely crucial for
the responsible parties to follow in order to design a system that
provides effective and efficient, high quality, ethical, conflict-free
legal representation for criminal defendants who are unable to
afford an attorney. By adopting “The Ten Principles of a Public
Defense Delivery System,” the ABA would create, for the first time
ever, much-needed policy that is directed toward guiding the
designers of public defense delivery systems.
The Need for ABA Policy Geared Toward Designers of Public
Defense Delivery Systems
The ABA Standing Committee on Legal Aid and Indigent
Defendants (SCLAID) has provided technical assistance in all 50
states to bar leaders, legislators, and others interested in
improving public defense services. Through our extensive work in
the states, we have learned that oftentimes, the people who have
the primary responsibility for establishing or improving public
defense delivery systems are not lawyers and have little or no
knowledge in the area of criminal defense services. In the state
legislatures, where many choices are made regarding the design
and funding of these systems, there appears to be a growing
trend—the number of legislators who are also lawyers (and who
would therefore better understand these issues) is declining, and
their terms are getting shorter.
Committee on Indigent Defendants (SCLAID), and by Scott Wallace, Director of Defender Legal
Services for the National Legal Aid and Defender Association.
Another trend is that in many states, the legislature,
supreme court, governor, or state bar association authorizes a
“study commission” or “task force” to recommend plans for
establishing or improving public defense delivery systems. This is
especially the case as the crisis in indigent defense—in terms of
quality of services and resource availability—continues to deepen
across the country. These task forces generally have broad
representation from all branches of government and many sectors
of the community. For example, task forces that were recently
established in North Carolina and Georgia include state legislators,
judges, heads of executive agencies, private attorneys, and
members of the community. In Michigan, a community
organization called the Michigan Council on Crime and
Delinquency has taken the lead and organized a task force
composed primarily of non-defense attorney groups to
recommend to the legislature a model plan for public defense
services in Michigan. The commonality among all the task forces
is the fact that the members volunteer their time and operate under
tight deadlines within which recommendations must be made or
else the window of opportunity closes, for political or other
There is no question that the people who are making these
important decisions under such severe time constraints
desperately need reliable guidance that is presented in an easily
understandable, concise, and succinct package. SCLAID has
received numerous requests for ABA policy written for and
directed at the government officials and others who are
responsible for designing public defense delivery systems;
unfortunately, current ABA policy (in the form of numerous sets of
criminal justice standards) does not address this particularized
need, as explained further below.
Overview of National Standards on Providing Criminal Defense
The ABA was the first organization to recognize the need for
standards currently relating to the provision of criminal defense
services, adopting the ABA Standards for Criminal Justice,
Providing Defense Services (now in its 3rd edition) in 1967. The
ABA Standards for Criminal Justice, Defense Function, soon
followed in 1971, and the ABA Guidelines for Appointment and
Performance of Counsel in Death Penalty Cases were adopted in
In addition, several other organizations have adopted
standards in this area over the past three decades: the National
Legal Aid and Defender Association adopted its Performance
Guidelines for Criminal Defense Representation in 1995, Standards
for the Administration of Assigned Counsel Systems in 1989, and
Guidelines for Negotiating and Awarding Contracts for Criminal
Defense Services in 1984; the Institute of Judicial Administration
collaborated with the ABA to create the IJA/ABA Juvenile Justice
Standards, totaling 23 volumes adopted from 1979 through 1980;
the National Study Commission on Defense Services adopted its
Guidelines for Legal Defense Systems in the United States in 1976;
and the President’s National Advisory Commission on Criminal
Justice Standards and Goals adopted Chapter 13, The Defense, in
Collectively, these standards contain the minimum
requirements for legal representation at the trial, appeals, juvenile,
and death penalty levels and are a scholarly, impressive, and
extremely useful body of work. However, they are written for the
most part for lawyers who provide defense services, not for
governmental officials or policymakers who design the systems by
which these services are delivered. As the Introduction to the ABA
Standards for Criminal Justice, Defense Function notes, “The
Defense Function Standards have been drafted and adopted by the
ABA in an attempt to ascertain a consensus view of all segments
of the criminal justice community about what good, professional
practice is and should be. Hence, these are extremely useful
standards for consultation by lawyers and judges who want to do
‘the right thing’ or, as important, to avoid doing ‘the wrong thing.’”
Further, the sheer volume of the standards make it impracticable
for policymakers or others charged with designing systems to
wade through them in order to find information of relevance to
their duties. Indeed, even one of the smallest of the volumes, the
ABA Standards for Criminal Justice, Defense Function, is 71 pages
in length and contains 43 black letter standards with
accompanying commentary. Thus, the standards do not address
the particular need for ABA policy expressly directed toward those
who are responsible for designing and funding systems at the
state and local levels.
“The Ten Principles of a Public Defense Delivery System” fulfills this need. If
adopted by the ABA, it would provide new policy targeted specifically to the
designers and funders of public defense delivery systems, giving them the
clear and concise guidance that they need to get their job done.
Through this resolution, the American Bar Association would fulfill a
critical need by providing, for the first time ever, a practical guide (“The Ten
Principles of a Public Defense Delivery System”) for governmental officials,
policymakers, and other parties who are charged with creating and funding
new, or improving existing, systems to deliver effective and efficient, high
quality, ethical, conflict-free legal representation to accused persons who
cannot afford to hire an attorney.
Return to Contents
Suit claims laser beam of pointer injured eye
August 9, 2002
A physician facing a wrongful death lawsuit last year was left with
permanent damage in his right eye when a lawyer in the courtroom
shot him with a laser pointer, a lawsuit filed here claims.
Dr. Antonio Granda's suit states Nashville lawyer Dan Warlick
pointed a hand-held laser at the doctor's eye, causing ''permanent
and disabling macular injury to his eyesight in his right eye.''
Granda now has trouble working and driving at night, the lawsuit
states. No motive for the action is given in the suit.
''Defendant knew and fully appreciated the fact that Dr. Granda was
positioned in the direct line of fire for the laser device,'' it states.
At the time of the August 2001 trial, Warlick was representing the
plaintiffs who had sued Granda for $3 million, claiming that
Granda's actions led to their daughter's death.
Granda was sitting in the courtroom, 10 feet from Warlick, who was
questioning a witness and using the pointer to indicate exhibits in
The case was declared a mistrial.
Granda's office yesterday directed all questions to Brentwood
lawyer Larry Crain, who did not return calls.
Warlick, whose clients have included former state and Metro
medical examiner Charles Harlan and the daughters of country
singer Tammy Wynette, did not return calls.
Granda's suit seeks $2 million for punitive and compensatory
Laser pointers are used in presentations and lectures to highlight
In 1997, the U.S. Food and Drug Administration issued a warning
to parents and school officials that the devices can cause eye
Light energy from the laser devices could be more damaging than
staring directly into the sun, the FDA said. Federal laws require
warning labels on hand-held lasers.
Nashville eye surgeon Ming Wang, director of the Wang Vision
Institute on West End Avenue, said yesterday that light from a
laser pointer can cause the type of damage alleged in the lawsuit.
Even so, it is extremely rare, Wang said.
''The laser pointer is a safe device, and injuries are rare,'' said
Wang, also a Vanderbilt University research associate professor of
biomedical engineering. ''However, certain circumstances, when
they happen to occur together, do increase the chance of injury.''
For damage to occur, someone must stare directly at the laser and
must see its source, and the laser must be guided directly into the
eye's center, he said.
Granda is a gastroenterologist at Saint Thomas Hospital,
according to the lawsuit.
Vehicle Stops and Race: Return to Contents
A Study and Report in Response to
Public Chapter 910 of 2000
John G. Morgan
Comptroller of the Treasury
Several state and local law enforcement agencies have chosen a
variety of approaches to respond to concerns about racial profiling.
The Tennessee General Assembly passed Public Chapter 910 in 2000
(T.C.A. 38-1-401 et seq.), creating a one-year pilot project in which law
enforcement agencies could participate voluntarily in vehicle stop
Public Chapter 910 required:
• Officers in the participating agencies to collect information on every
vehicle stop on a form (either written or electronic) developed by the
Comptroller including the race/ethnicity, gender, and age of person
stopped, the reason for stop, and result of stop, including if a search
occurred, the type and legal basis of search, and whether any
contraband was discovered or property seized;
• Participating agencies to submit monthly to the Comptroller, data
collected between January 1, 2001 and December 31, 2001;
• The Comptroller to report the results and review of traffic stops,
including any recommendations, to the Governor and General
Assembly by April 1, 2002. The Office of Research administered a
survey according to the statutory criteria. Appendix 3 contains a copy
of the traffic stop data form, which includes the information required
by law, as well as data identifying the department, officer, location of
stop, time, and date. This report summarizes and analyzes the vehicle
stop data collected from 44 participating law enforcement agencies,
which included six county sheriffs’ departments, one university police
department, and 37 municipal police departments. During the data
collection period, the participating agencies submitted 322,954 paper
forms and 127,623 electronic records to the Comptroller.
The report concludes:
Comparing the racial composition of drivers stopped by law
enforcement officers to the composition of an area’s residents
provides an incomplete and potentially misleading picture.
Understanding the role of race in vehicle stops must include an
examination of mitigating factors. Factors that may skew the results
of such comparisons include: (See pages 10-13.)
• licensed drivers – The overall population has a different racial
composition than the driving population, so licensed driver data
provide a better basis for comparison with the vehicle stop data.
However, the licensed driver data that are currently available do not
accurately reflect these population differences.
• commuting patterns – Particularly in cities that serve as regional
commercial and industrial centers, many people commute from
surrounding areas. The racial composition of those commuters
affects the composition of drivers and, therefore, of vehicle stops.
Commuters are not reflected in census or licensed driver data.
• tourism – In 1999, 31.1 million out-of-state individuals came to or
through Tennessee, representing a significant population of drivers
not reflected in census or licensed driver data.
• higher education institutions – The demographic composition of
students, many with permanent residences outside the institution’s
city or county, may differ significantly from the composition of the
area in which the institution is located. Many of these students are not
reflected in census or licensed driver data.
• transportation modes – Transportation decisions (e.g., number of
family cars, use of public transportation) depend on several variables,
such as income, availability of public transit and other travel options,
and personal preferences. Access to and choices of transportation
among racial and ethnic groups vary significantly.
• law enforcement deployment – Several factors influence the
deployment of law enforcement officers including calls for service,
vehicular accidents, reported crime rates, arrest rates, staffing and
monetary resources, and public concerns. Deployment affects the
race and ethnic breakdown of drivers stopped, since these factors as
well as demographic characteristics vary in different areas.
• small populations – If a jurisdiction has a very small population of
one particular racial group, relatively few vehicle stops involving that
group may create the appearance of biased law enforcement
practices. Law enforcement officers stop drivers in proportions
different than drivers’ racial representation in the overall population.
The mitigating factors discussed in the previous section are not
reflected in the tables comparing traffic stops with census population
data. Of the five possible racial groups (Asian, African-American,
Hispanic, Other, White) in the vehicle stop data form:* (See page 13.)
* Numbers do not add to 100 percent because of rounding. Also,
officers did not identify the driver’s race in approximately 0.6 percent
• Asians represent 1.6 percent of the population over 18 years of age
and 0.9 percent of all stops.
• African-Americans represent 31.0 percent of the population over 18
years of age and 39.1 percent of all stops.
• Hispanics represent 2.9 percent of the population over 18 years of
age and 2.6 percent of all stops.
• Drivers classified as Other represent 1.4 percent of the population
over 18 years of age and 1.6 percent of all stops.
• Whites represent 63.1 percent of the population over 18 years of age
and 55.3 percent of all vehicle stops.
Officers’ reasons for stopping vehicles vary by race. Of three possible
reasons (criminal, moving violation, and vehicle equipment violation):
(See pages 13-14.)
• Criminal – A higher percentage of officers reported criminal reasons
as the basis for stopping Hispanic drivers compared to other groups,
followed by African-Americans, Others, Whites, and Asians.
• Moving violations – A higher percentage of officers reported moving
violations as the basis for stopping Asian drivers compared to other
groups, followed by Whites, African-Americans, Others, and
• Vehicle equipment violations – A higher percentage of officers
reported vehicle equipment violations as the basis for stopping
Hispanic drivers compared to other groups, followed by Others,
African-Americans, Whites, and Asians.
Dispositions of stops vary by race. Of five possible dispositions
(verbal warning, written warning, citation, arrest, or citation and
arrest): (See pages 14-15.)
• Verbal warning – Officers issued the highest percentage of verbal
warnings to Hispanic drivers, followed by Asians and Whites, Others,
• Written warning – Officers issued the highest percentage of written
warnings to White drivers, followed by Hispanics, Asians, African-
Americans, and Others.
• Citation – Officers issued the highest percentage of citations
(without arrest) to Others, followed by Asians, African-Americans,
Whites, and Hispanics.
• Arrest – Officers made the highest percentage of arrests (without
citation) of Hispanic drivers, followed by African-Americans, Whites,
Others, and Asians.
• Citation and arrest – Officers made the highest percentage of
citation and arrest (combination) of Hispanic drivers, followed by
African-Americans, Others, Whites, and Asians.
Differences in the reasons officers reported for stopping vehicles do
not appear to explain all of the racial variation in dispositions of
stops. Regardless of the reason for the stop, officers arrested
Hispanic and African-American drivers, in that order, at the highest
percentage of all groups and gave the highest percentage of citations
to Other drivers. However, the rankings of the five groups changed
based on reason for the stop when the disposition was a written or
verbal warning. (See page 15.)
Rates of search subsequent to stops vary by race. Officers conducted
searches in approximately 7.0 percent of all stops. Statewide, officers
searched 16.8 percent of Hispanics stopped, followed by African-
Americans (8.1 percent), Whites (5.8 percent), Other (5.4 percent), and
Asians (3.1 percent). (See pages 15-16.)
Differences in the reasons officers reported for stopping vehicles do
not appear to explain all of the racial variation in the rates of search.
(See page 16.)
• Officers searched African-Americans and Hispanics, in that order, at
the highest rates when the stop was for criminal reasons.
• Officers searched Hispanics and African-Americans, in that order, at
the highest rates when the stop was for a moving violation or vehicle
Differences in the dispositions of stops do not appear to explain all of
the racial variation in the rates of search. (See pages 16-17.)
• Of those stops in which officers gave verbal warnings or citations
(without arrests), they searched Hispanics and African-Americans, in
that order, at the highest rates.
• Of those stops in which officers gave written warnings, they
searched Hispanics and Others, in that order, at the highest rates.
• Of those stops in which officers made arrests (with and without
citations), they searched Others and Whites, in that order, at the
The incidences of evidence seized and the types of evidence seized
as a result of searches vary by race. Officers seized evidence in
approximately 1.4 percent of all stops. (See pages 17-19.)
• Officers seized evidence from 1.8 percent of Hispanics stopped, 1.6
percent of African-Americans, 1.2 percent of Whites, 0.6 percent of
Others, and 0.2 percent of Asians.
• Of all types of evidence, officers seized drugs most often from
African-Americans, Whites, and Others. Officers seized “other”
evidence most often from Asians and Hispanics.
• Of all evidence seized statewide, officers seized drugs at the highest
rate. Drugs taken from African-Americans and Whites, in that order,
constituted the majority of evidence seized.
• Of all evidence seized statewide, officers seized evidence classified
as “other” at the second-highest rate. “Other” evidence taken from
Whites and African-Americans, in that order, constituted most of
Differences in the rate of search do not appear to explain all of the
racial variation in evidence seized. Officers searched: (See page 19.)
• Hispanics 140 percent more often than the statewide average, and
officers seized evidence from Hispanics 29 percent more often.
• African-Americans 16 percent more often than the statewide
average, and officers seized evidence from African-Americans 14
percent more often.
• Whites 17 percent less often than the statewide average, and officers
seized evidence from Whites 14 percent less often.
• Others 23 percent less often than the statewide average, and officers
seized evidence from Others 57 percent less often.
• Asians 56 percent less often than the statewide average, and officers
seized evidence from Asians 86 percent less often.
• Instances in which officers did not seize evidence after a search
were most common among Hispanics, followed by Others, Asians,
African-Americans, and Whites.
Neither statute nor case law clearly defines the appropriate place of
race in law enforcement decisions. The state and federal constitutions
provide similar protections against “unreasonable search and
seizure,” but neither state nor federal laws describe the
circumstances in which consideration of race may make a search or
seizure “unreasonable.” Case law on the subject provides some
guidance, but court decisions are not consistent in the degree of their
acceptance of race as a “reasonable” criterion. (See pages 19-20.)
The General Assembly may wish to define statutorily the appropriate
consideration of race in search and seizure. (See page 20.)
The General Assembly may wish to require policies and procedures
specifically related to profiling in all state and local law enforcement
agencies. (See page 20.)
If the General Assembly wishes to continue studying vehicle stops,
the Department of Safety should develop a licensed driver database
that contains uniformly collected and geographically referenced data.
(See page 20.)
Former first lady calls Return to Contents
for halt to executions
Former first lady Rosalynn Carter has called for a
national moratorium on executions, and condemned
the death penalty as a tragic violation of human rights.
A mental health advocate since her time in the White House in the
late 1970s, Carter told an audience at the American Bar
Association's annual conference she was disturbed by the number
of mentally ill, young, minority and poorly represented defendants
sent to death row.
''Executing mentally ill people does not make sense as a
deterrence, and it undermines the integrity and fairness of our
system of justice,'' she told an audience gathered to honor
recipients of a pro bono legal service award. Carter said she was
appalled at a recent study's finding that almost seven of every 10
cases ending in death sentences contained ''serious reversible
Carter commended Govs. Parris Glendening of Maryland and
George Ryan of Illinois, who have stopped executions in their
states. She also hailed pending legislation that would declare a
national suspension of capital punishment and increase access to
DNA testing in capital cases.
Blacks convicted of killing whites are sentenced to death 22 times
more often than blacks who kill blacks, and more than seven times
the rate of whites who kill blacks, said Carter, who co-founded the
Atlanta-based Carter Center, a global development and human
rights organization, with former President Jimmy Carter 20 years
She praised the U.S. Supreme Court's ruling in June declaring
execution of the mentally retarded as unconstitutional, but said the
decision also must apply to the mentally ill and children.
''It should be an embarrassment to every American that we execute
children,'' she said. ''The United States is the only country in the
industrialized world that still executes anyone, and executing
children puts us in the company of Somalia --- only Somalia.''
Carter said nearly 80 offenders who were under 18 at the time of
their convictions sit on death row --- the highest number since the
reinstatement of the death penalty in 1976.
''We don't take care of children in our country the way we should,
and then when they get in trouble, we punish them severely,'' she
Following is the full text of Mrs. Carter’s speech:
ABA PRO BONO PUBLICO AWARDS LUNCHEON
D.C., AUGUST 12, 2002
I AM PLEASED TO BE WITH YOU TODAY, AND I WANT TO ADD MY
CONGRATULATIONS TO THOSE WHO RECEIVED THE PRO BONO
PUBLICO AWARDS. I HAVE GREAT ADMIRATION FOR THEM AND
FOR ALL THOSE WHO VOLUNTEER LEGAL SERVICES FOR THE
POOR AND FOR SAFEGUARDING OUR RIGHTS AND LIBERTIES.
THE DEATH PENALTY IS AN ISSUE ABOUT WHICH I FEEL
STRONGLY, & ONE THAT HAS BOTHERED ME FOR A VERY LONG
TIME. AT THE CARTER CENTER WE SEE IT AS AN OBVIOUS
VIOLATION OF HUMAN RIGHTS. WE HAVE MANY MEETINGS
ABOUT THE ISSUE, I HAVE TALKED WITH OUR GOVERNOR;
CALLED ON THE CHIEF JUSTICE OF THE GEORGIA SUPREME
COURT; THE SPEAKER OF THE GEORGIA HOUSE OF
REPRESENTATIVES. I WRITE TO GOVERNORS ALL THE TIME
ABOUT PEOPLE IN THEIR STATES ON DEATH ROW AND BEFORE
MANY EXECUTIONS. I WORRY ABOUT THE ISSUE.
AND I HAVE JUST BECOME AN ADVISOR TO THE GEORGIA
INDIGENT DEFENSE COUNCIL.
I’M PLEASED THAT THE DEATH PENALTY IS GETTING SO
MUCH ATTENTION THESE DAYS, WITH STORIES ABOUT HIGH
PROFILE CASES, THE WAY THE DEATH PENALTY IS CARRIED
OUT, RACIAL DISCRIMINATION AND POOR LEGAL
REPRESENTATION, AND THE KILLING OF MENTALLY ILL
PEOPLE. (WE’RE THANKFUL ABOUT THE SUPREME COURT
RULING AGAINST KILLING MENTALLY RETARDED PEOPLE).
AND WE EVEN HEAR STORIES OF THE EXECUTION OF
JUVENILES. THERE WERE 2 SCHEDULED THIS SUMMER -- BOTH
THIS MONTH AND BOTH IN TEXAS: ONE LAST WEEK (8TH);
ANOTHER ON THE 28TH.
HOPEFULLY, THIS ATTENTION IS HAVING SOME IMPACT ON
PEOPLE SO THAT THEY CAN SEE HOW UNFAIR AND
DISCRIMINATORY OUR SYSTEM OF CAPITAL PUNISHMENT IS.
SINCE 1973, 101 PEOPLE HAVE BEEN RELEASED FROM DEATH
ROW AFTER THEIR WRONGFUL CONVICTIONS WERE
OVERTURNED. TWELVE WERE FOUND INNOCENT THROUGH
A RECENT STUDY DONE BY LAW PROFESSORS AT COLUMBIA
UNIVERSITY IN NEW YORK FOUND THAT 68 PERCENT OF ALL
CAPITAL CASES NATIONALLY RESULTING IN A DEATH
SENTENCE CONTAINED SERIOUS, REVERSIBLE ERRORS. THIS
IS APPALLING. THE STUDY FOUND THE SYSTEM IS “RIDDLED
WITH UNFAIRNESS AND INCOMPETENCE, WITH SERIOUS
ERRORS ERUPTING WITH ALARMING FREQUENCY AT EVERY
STAGE OF THE PROCESS.”
TODAY, I WANT TO TALK ABOUT SOME OF THIS UNFAIRNESS
AND INCOMPETENCE THAT CONCERNS ME: ABOUT CHILDREN,
MENTAL ILLNESS, RACE, AND THE LACK OF COMPETENT
COUNSEL. THEY ARE ALL INTERCONNECTED, BECAUSE THESE
AREAS INCLUDE SOME OF THE MOST VULNERABLE
POPULATIONS AMONG US, AND THEY ARE THE ONES WHO
MOST NEED COMPETENT LEGAL ASSISTANCE AND OFTEN
DON'T GET IT.
IT SHOULD BE AN EMBARRASSMENT TO EVERY AMERICAN
THAT WE EXECUTE CHILDREN. THE UNITED STATES IS THE
ONLY COUNTRY IN THE INDUSTRIALIZED WORLD THAT STILL
EXECUTES ANYONE. AND TO EXECUTE CHILDREN PUTS US IN
THE COMPANY OF SOMALIA –SOMALIA, ONLY! WE AND
SOMALIA ARE THE ONLY TWO COUNTRIES IN THE WORLD THAT
HAVE REFUSED TO RATIFY THE INTERNATIONAL CONVENTION
ON THE RIGHTS OF THE CHILD. WHY? ONE REASON IS
BECAUSE WE WANT TO CONTINUE TO EXECUTE JUVENILES.
MANY CHILDREN WHO COMMIT SERIOUS CRIMES COME FROM
SEVERELY ABUSIVE HOMES, AND THOSE OF US IN THE MENTAL
HEALTH FIELD KNOW THAT CHILDREN WHO ARE VICTIMS OF
CHILD ABUSE OR NEGLECT CONSISTENTLY SHOW A HIGH
INCIDENCE OF MENTAL DISORDERS, SERIOUS BRAIN INJURIES,
SUBSTANCE ABUSE AND LEARNING DISABILITIES, AND THIS
CAN PREDISPOSE THEM TO AGGRESSIVE OR VIOLENT
BEHAVIOR. THE SAD THING IS THAT THESE JUVENILES RARELY
RECEIVE THE HELP THEY NEED THAT COULD LEAD THEM TO
MENTAL HEALTH TREATMENT FACILITIES INSTEAD OF DEATH
ROW. WE DON’T TAKE CARE OF CHILDREN IN OUR COUNTRY
AS WE SHOULD AND THEN WHEN THEY GET IN TROUBLE, WE
PUNISH THEM SEVERELY.
TODAY, ABOUT 80 OFFENDERS WHO WERE UNDER 18 AT THE
TIME OF THEIR CRIMES ARE ON DEATH ROW – THE HIGHEST
FIGURE SINCE THE REINSTATEMENT OF CAPITAL PUNISHMENT.
YET, OUR POLICY MAKERS ARE ABANDONING ANY NOTION OF
REHABILITATION FOR JUVENILES AND PUSHING FOR HARSHER
PUNISHMENTS. SINCE 1992, ALMOST EVERY STATE HAS MADE
IT EASIER TO TRY JUVENILES AS ADULTS, WHICH MEANS MANY
ARE SERVING LONG-TERM SENTENCES IN ADULT FACILITIES,
OR ARE BEING SENTENCED TO DEATH. JUST IN THE LAST DAY
OR TWO, WE’VE BEEN READING ABOUT FLORIDA TRYING TO
DECIDE WHETHER OR NOT TO PROSECUTE AN 11 (OR 12) YEAR
OLD AS A CHILD OR ADULT.
CURRENTLY, ABOUT 20 PERCENT OF YOUTH IN THE JUVENILE
JUSTICE SYSTEM HAVE A DIAGNOSABLE MENTAL HEALTH
DISORDER. I HAVE SEEN THIS FIRST HAND OVER THE LAST
COUPLE OF YEARS, AS OUR MENTAL HEALTH PROGRAM AT
THE CARTER CENTER HAS BEEN WORKING WITH THE
JUVENILE JUSTICE SYSTEM IN GEORGIA.
THE EXECUTION OF PEOPLE SUFFERING FROM MENTAL
ILLNESS IS TRAGIC. THERE ARE EXAMPLES OF PRISONERS
WHO, BECAUSE OF THEIR MENTAL DISORDER, CANNOT
COMPREHEND THE MEANING OR FINALITY OF THE DEATH
SENTENCE BEING IMPOSED UPON THEM. OFTEN PSYCHIATRIC
HISTORY, FAMILY ISSUES, AND MENTAL CAPACITY ARE NOT
PRESENTED AT THE TIME OF THE TRIAL OR SENTENCING. AS A
RESULT, INDIVIDUALS WITH MENTAL ILLNESS ARE EXECUTED
WITHOUT THE CRIMINAL JUSTICE SYSTEM BEING AWARE OF
SOME STATES EVEN FORCE MENTALLY ILL PRISONERS TO
TAKE MEDICINE AND RECEIVE PSYCHOLOGICAL TREATMENT
SO THEY ARE MENTALLY HEALTHY ENOUGH TO BE ABLE TO
STAND TRIAL AND BE EXECUTED. EXECUTING MENTALLY ILL
PEOPLE DOES NOT MAKE SENSE AS A DETERRENT AND
UNDERMINES THE INTEGRITY AND FAIRNESS OF OUR SYSTEM
WE RECENTLY HAD A VICTORY IN GEORGIA WHEN A DEATH
SENTENCE WAS OVERTURNED. THE DEFENDANT WAS 17 WHEN
HE COMMITTED HIS CRIME, A JUVENILE; HE WAS SERIOUSLY
MENTALLY ILL; AFRICAN AMERICAN; HIS ORIGINAL LAWYER
WAS INCOMPETENT; AND HE STILL CAME CLOSE TO BEING
MENTAL ILLNESS SHOULD BE TAKEN INTO ACCOUNT DURING
ALL PHASES OF A POTENTIAL DEATH PENALTY CASE.
QUALIFIED PROFESSIONALS SHOULD PERFORM THE
ASSESSMENT OF COMPETENCY TO STAND TRIAL AS WELL AS
COMPETENCY TO BE EXECUTED.
THE 1986 SUPREME COURT CASE, FORD V. WAINWRIGHT,
PROHIBITS EXECUTION OF MENTALLY INCOMPETENT -- BUT
NOT MENTALLY ILL. BECAUSE OF OUTDATED LEGAL
DEFINITIONS, A PERSON MIGHT BE MEDICALLY INSANE (A
TERRIBLE WAY TO DESCRIBE THEM) BUT STILL “LEGALLY
COMPETENT” TO STAND TRIAL AND RECEIVE THE DEATH
PENALTY. AS A RESULT, SERIOUSLY MENTALLY ILL PEOPLE
HAVE BEEN EXECUTED AND MANY MORE REMAIN ON DEATH
THE SAME RATIONALE RECENTLY CITED BY THE SUPREME
COURT IN ATKINS WHEN IT FOUND THE EXECUTION OF PEOPLE
WHO ARE MENTALLY RETARDED UNCONSTITUTIONAL APPLIES
EQUALLY TO MENTALLY ILL AND TO JUVENILES. LIKE THOSE
WHO ARE MENTALLY RETARDED, CHILDREN AND MENTALLY
ILL INDIVIDUALS CANNOT FULLY PARTICIPATE IN THEIR
DEFENSE OR UNDERSTAND THE NATURE AND CONSEQUENCES
OF THE LEGAL PROCEEDINGS. THEY ALSO MAKE POOR
WITNESSES AT TRIALS, LEADING THE JURY TO SOMETIMES
MISUNDERSTAND AND PUNISH THE BEHAVIOR THEY OBSERVE
DURING THE TRIAL
THE QUESTION OF FAIRNESS IS ONE THAT IS PARTICULARLY
ACUTE WHEN IT COMES TO RACIAL DISPARITY IN THOSE WHO
ARE SENTENCED TO DEATH AND EXECUTED. BLACKS WHO
KILL WHITES ARE SENTENCED TO DEATH AT NEARLY 22 TIMES
THE RATE OF BLACKS WHO KILL BLACKS AND MORE THAN
SEVEN TIMES THE RATE OF WHITES WHO KILL BLACKS.
(GENERAL ACCOUNTING OFFICE IN 1990 REPORT)
WE KNOW AN AFRICAN AMERICAN WOMAN WHO IS OUR
FAMILY’S HELPER AND CLOSE COMPANION, MARY PRINCE.
WHEN SHE WAS A TEENAGER, SHE WAS FALSELY ACCUSED OF
MURDER. A COURT APPOINTED ATTORNEY, WHOM SHE SAW
ONCE, ADVISED HER TO PLEAD GUILTY, AND PROMISED THAT
HE WOULD GET HER OFF LIGHT. SHE PLED GUILTY AND GOT
LIFE IMPRISONMENT. SHE WORKED FOR US AT THE
GOVERNOR’S MANSION AS A TRUSTY FROM THE PRISON. SHE
SERVED HER TERM UNTIL ELIGIBLE FOR PAROLE THEN CAME
TO THE WHITE HOUSE AND HELPED US THERE. SHE HAS BEEN
WITH US EVER SINCE. LATER, AFTER WE WERE HOME, HER
TRIAL PROCEEDINGS WERE REEXAMINED, AND SHE RECEIVED
A FULL PARDON.
MARY WAS FORTUNATE. SHE JUST AS EASILY COULD HAVE
BEEN SENTENCED TO DEATH AND EXECUTED. IF THE PERSON
KILLED IN THE INCIDENT HAD BEEN WHITE, WE WOULD NEVER
HAVE KNOWN MARY.
AS YOU WELL KNOW, MINORITY DEFENDANTS, WHO ARE OFTEN
INDIGENT, DO NOT HAVE ACCESS TO THE SAME QUALITY OF
REPRESENTATION AS WEALTHIER DEFENDANTS.
IT SHOULD BE OBVIOUS FROM MY REMARKS THAT AT THE
HEART OF ALL OF THESE PROBLEMS ARE SERIOUS
DEFICIENCIES IN OUR PUBLIC DEFENDER SYSTEMS. THOSE
WHO MOST NEED HELP ARE OFTEN LEAST LIKELY TO AFFORD
IT AND ALL TOO OFTEN ARE PROVIDED WITH LESS THAN
ONE REMEDY IS THE PUBLIC DEFENDERS’ OFFICES, WHICH, IF
ADEQUATELY FUNDED, COULD PROVIDE COMPETENT
COUNSEL. MANY OR MOST PUBLIC DEFENDERS OFTEN HAVE
UNMANAGEABLE CASELOADS AND ARE DENIED THE
RESOURCES NECESSARY TO CONDUCT A THOROUGH
INVESTIGATION OR TO RETAIN NECESSARY EXPERT
WITNESSES. AND THEY ARE PAID FAR LESS THAN THEY COULD
EARN DOING ANY OTHER LEGAL WORK – SOMETIMES LESS
THAN MINIMUM WAGE. THIS LEAVES THE WORK TO THE LEAST
QUALIFIED. (UNLESS QUALIFIED, BENEVOLENT LAWYERS LIKE
I HAVE BEEN APPALLED TO LEARN HOW MANY CASES ARE
TRIED BY ATTORNEYS WHO ARE INCOMPETENT OR
UNINTERESTED, EVEN WHO WERE DRUNK IN THE
COURTROOM, OR SLEPT THROUGH THE WHOLE PROCEEDING,
WHERE, AS WITH MARY, THERE WAS NO TRIAL AT ALL.
AS STEVE BRIGHT OF THE SOUTHERN CENTER FOR HUMAN
RIGHTS SAYS, “IT IS NOT THE WORST WHO GET THE DEATH
PENALTY, IT IS THOSE WITH THE WORST LAWYERS.”
NO ONE KNOWS HOW MANY MENTALLY ILL AND MENTALLY
RETARDED PEOPLE, MINORITIES, AND PENNILESS CITIZENS
ARE EXECUTED IN OUR COUNTRY BECAUSE OF INADEQUATE
DEFENSE, IGNORANCE OF THE LAW, OR RACIAL
ALL THESE PROBLEMS AND DISPARITIES POINT TO THE NEED
FOR A MORATORIUM ON EXECUTIONS, SO WE CAN STEP BACK
AND LOOK AT THE ISSUES AND MAKE CHANGES NECESSARY
SO THAT INNOCENT PEOPLE ARE NO LONGER PUT TO DEATH.
I COMMEND ILLINOIS GOVERNOR RYAN AND MARYLAND
GOVERNOR GLENDENING FOR HAVING THE COURAGE TO
DECLARE A MORATORIUM IN THEIR STATES AND APPOINT A
COMMISSION TO REVIEW THE USE OF CAPITAL PUNISHMENT.
AND I COMMEND AND SUPPORT THE AMERICAN BAR
ASSOCIATION IN CALLING FOR A MORATORIUM.
MEANWHILE, ON CAPITAL HILL, THERE IS PROMISING
LEGISLATION PENDING IN BOTH CHAMBERS THAT COULD
REDUCE THE RISK OF EXECUTING INNOCENT PEOPLE:
SENATOR RUSSELL FEINGOLD HAS INTRODUCED A BILL (S.B.
233), WHICH WOULD PLACE A MORATORIUM ON ALL FEDERAL
EXECUTIONS WHILE A NATIONAL COMMISSION STUDIES
AND THE INNOCENCE PROTECTION ACT WOULD PROVIDE
FUNDING FOR DNA TESTING AND TO STATES TO PROVIDE
EFFECTIVE LEGAL SERVICES TO INDIGENT DEFENDANTS AND
THOSE ON DEATH ROW. WE HAVE OUR JOB CUT OUT FOR US
IN WORKING TO HELP GET THESE BILLS PASSED.
I’M VERY PLEASED TO BE WITH YOU TODAY. AND TO HAVE HAD
THIS CHANCE TO TALK ABOUT THESE THINGS THAT ARE SO
DISTURBING TO ME, AND AGAIN I WANT TO COMMEND THOSE
OF YOU WHO VOLUNTEER TO REPRESENT A CONDEMNED
PERSON. I UNDERSTAND THAT OVER 80 LAW FIRMS HAVE
VOLUNTEERED, WHICH IS GREAT.
WE NEED MORE. AND I WILL DO ALL I CAN TO SPREAD THE
MESSAGE ABOUT THIS IMPORTANT NEED. ONE THING JIMMY
AND I HAVE LEARNED WHEN WE DO THINGS THAT MIGHT BE
HELPFUL, BUT THAT SOMETIMES WE REALLY DON’T WANT TO
DO: IT NEVER TURNS OUT TO BE A BURDEN; IT ALWAYS TURNS
OUT TO BE A BLESSING.
THOSE WHO HAVE VOLUNTEERED TO HELP HAVE DISCOVERED
THE SAME THING. THEY OFTEN REMARK THAT REPRESENTING
SOMEONE ON DEATH ROW HAS BEEN THE MOST IMPORTANT
AND REWARDING EXPERIENCE THEY HAVE EVER HAD AS A
MAYBE ALL OF US WORKING TOGETHER CAN HAVE SOME
IMPACT ON PUBLIC DEFENDER PROGRAMS AROUND THE
COUNTRY--- MAYBE WE CAN MAKE A DIFFERENCE.
Return to Contents
Handling the Media:
Follow the "Rules"
by Suzie Johnson
"No comment." "My client will explain everything at the
appropriate time." "My client has told me there is
absolutely no truth to these charges." "We are looking
forward to this trial to prove Mr. Client's innocence."
"That depends on how you define ‘x’."
Sound familiar? Which would you choose when
confronted with lights, camera, and action on the
Dealing with the media in high-profile cases, criminal or
civil, involves more than ego and rainmaking. One is
especially vulnerable to the media after a bad verdict or
adverse ruling. When a camera or microphone is shoved
in your face, there is no time for contemplation.
A few of the nation’s prominent trial lawyers were willing
to share some of their opinions on this issue.
Jim Burnham: "Read the rules of Professional Conduct.”
Burnham was a prosecutor in Dallas for over 16 years
and has been a criminal defense lawyer for 14 years. He
is also the former Chairman of the State Bar Grievance
Committee and Past President of the Dallas Bar
"The most serious problem is the attorney-client
privilege. Attorneys may sometimes lose sight of their
clients' best interests when they get involved in the
media. Attorneys are not prepared to handle TV media.
Any statements made to the press can be taken out of
context. Cases should not be tried in the media but in the
courtroom. The attorney-client privilege is serious stuff.
Most publicity is not in your client's best interest
Bob Hinton's practice is primarily criminal defense and
representing attorneys in disciplinary actions. He is a
long time speaker and author for CLE projects, President
of the Texas Criminal Defense Lawyers Association, and
a former prosecutor.
"If the media is calling, the first thing to do is find out
why they are calling. What do they want? Sometimes
they call because they're curious. It has to be handled on
a case-by-case basis." Some suggestions are:
(1) Explore the situation before deciding how to handle
(2) The worst thing to say is "no comment."
(3) Tell the media they must submit questions in writing
and they will be responded to in writing. If you would like
the opportunity for input, do it on your rules.
(4) If they request an office interview, you may consider
telling them you will also tape record the interview. This
may not eliminate misrepresentations, but it may make
them more aware of potential consequences for such
(5) Carefully select the spokesperson on a case-by-case
He's reminded of a local "courthouse" reporter several
years ago who was always searching for the proverbial
blood-and-guts story. A woman's estranged husband
was tried for her attempted murder. The gunshot was not
fatal. During the trial, a medical expert testified "the bullet
was in her yet, because it was lodged against her
spine..." The next morning, the reporter's article sent
several people to Gray's Anatomy: "The bullet was in her
Frank Jackson has been handling high-profile cases for
several years. He has practiced federal and state criminal
defense since 1973 after a couple of years as a
prosecutor. Perhaps his pro-ball years with the Kansas
City Chiefs and Miami Dolphins helped mold his
offensive approach to the media:
"Talk to them. Cooperate. Make general statements
without specifics. If your client has told you he did not do
it and the other side has given a press conference or
accused your client of something, make a general
statement that your client will let the case be tried in a
court of law and a jury will decide. No facts, no
witnesses. Be very careful not to violate the attorney-
client privilege. I believe you should answer allegations
in the press especially when opposing counsel has given
statements or you know they will. If the press is calling
you, they are going to call the other side."
Texas District Attorney Bill Hill is no stranger to the
media. He handled media cases when he was in private
practice and believes ethical considerations are the most
important. "Statements should be short and concise. The
case should not be tried in the media. It has been my
experience all the press wants is a sound bite. They have
a job to do and are mindful of their obligation. I do think
"no comment" sends a negative message. Clients usually
don't want their attorneys talking about their cases in the
Judge Lana McDaniel, Criminal District Court and
Presiding Judge of the criminal district courts in Texas,
agrees that any comments made to the media should be
short without discussing facts, witnesses, or the details
of your case. The press may question you off camera, but
usually they just want one or two minutes of your time,
because they just need something for their report. Judge
McDaniel believes once the media knows what the rules
are, they will act accordingly. This opinion is based upon
her experience when the first 14-year-old juvenile was
certified and tried as an adult in her court on capital
murder charges. Her first thought was to allow the
cameras to shoot only through the courtroom door. Once
the media had proven they would abide by the rules, they
were allowed more access. Witnesses or jurors, however,
were not allowed to be filmed. The jury was also
instructed not to watch or listen to any media regarding
At no time does an attorney need to be more mindful of
his or her comments than when representing a client in
the media. A few words of anger or zeal can create
monumental problems for your client and yourself when
seen on the six o'clock news. Read your disciplinary
rules. They should be your cue cards when dealing with
the media. Remember: Fools rush in where angels fear to
of Public Defenders
by Myra Sun
One morning in court I overheard a prosecutor talking to
a man, a criminal defendant who had come in fifteen
minutes late for a probation revocation hearing. The
prosecutor explained that the state was going to be
requesting jail time and asked whether the man had a
lawyer. The man shook his head no. The prosecutor
asked whether the man had had a lawyer for his case
originally. He shook his head no again. I asked, "Did you
have a public defender?" The man nodded yes. The
prosecutor, who knew I was a public defender,
acknowledged my clarification with the barest hint of a
smirk and said, "Ok, well, a public defender is a
I am a public defender. A public defender. A public
defender. Before they are put together, "public" and
"defender" have unrelated meanings.
"Public" is easy. "Public" is the people, as in John Q.
Public, or his institutions, or his buildings. "Defender" is
a less-commonly used word, at least by itself; it may be a
little pretentious for current usage. One can be the
defender of the faith. Or a defender on an athletic team,
or a defender in a military siege. One can be a defender
of a put-upon person; for example, you might read a
sentence like, "X is unpopular, but his defenders point
This last meaning can, of course, define what a lawyer
does. It is a fact that nowadays, though, the two words
together -- "public defender" -- have acquired a different
meaning. A public defender is a person who represents
people in criminal cases when they are too poor to afford
lawyers. A public defender is generally a lawyer, or at
least a legal intern whom the bar permits to do a lawyer's
work in some cases.
In this context, "public" means our clients. Nationwide,
the latest figures show that about four-fifths of state
criminal defendants and about two-thirds of federal
criminal defendants are represented by public defenders.
In essence, public defenders represent most of that
segment of the public charged with crimes. After all, a
criminal defendant is just John Q. Public in trouble; it's
part of the art and science of the job to remind jurors Joe
and Jane Public that this is so.
This view can be summed up in a public defender's
supposed retort to the jury on hearing a prosecutor claim
to represent the people of the state: “I also represent the
people of the state," the public defender said. "One
person at a time."
As for being a "defender," most lawyers simply think that
"defending" means doing what all lawyers do -- litigating
a case. A client, on the other hand, may not know exactly
what "defending" involves in his case; he only knows
what it doesn't mean: it doesn't mean doing whatever the
prosecutor says, going quietly, no questions asked. The
public defender's ever-present challenge is to convince
his or her client that the lawyer isn't just "dumping" the
client this way, in the process treating his case with less
care than a retained attorney would.
There is pretty good evidence that whatever you call that
thing public defenders do, the results they get are a lot
like the results obtained by private counsel. In state
courts nationwide, conviction rates are actually a tick
lower for clients with public defenders than for clients
with private counsel (75% for the former, 77% for the
latter). The numbers are nearly the same in the federal
system (about 92% and 91% respectively).
Other measures, such as release on bail or length of
sentence, seem to favor privately represented clients.
However, release on bail has to do with money, which a
public defender's clients don't have; and longer
sentences often have to do with longer prior criminal
records, which a public defender's clients are more likely
to have. Moreover, the fact is that, one person at a time,
the very best public defenders can easily match the
results achieved by the very best private criminal
defense lawyers -- and the private lawyers know it.
As a federal defender in Los Angeles in 1999, my
husband represented one of about a dozen clients in a
massive bank fraud and money laundering case
centering on the former owner of the Los Angeles Kings
hockey team. Everyone else had lawyers in very fine
suits; their clients pleaded; some cooperated. Carl's suits
are hardly fine, which somehow is endearing, but he and
his client turned down a misdemeanor offer and went to
trial -- twice, six weeks each time. Both juries hung, and
the government dismissed. Carl's client was a lawyer; the
dismissal saved the guy's bar card. As they say in that
credit-card commercial: priceless.
If our clients don't generally think that our services are
priceless, though, there is a reason. Sometimes it's them.
They are usually poor, sometimes mentally ill, and are
often used to, but dislike, government intrusion in their
lives. They are not intuitively inclined to confide in us,
nor do they expect us to ask them about things that
matter to them. It's not terribly surprising that they feel
short-changed by the legal representation they get,
regardless of how good it is; they feel that way about a
lot of things in their lives.
Sometimes our clients think less of us because of us.
Public defenders are not saints. Some of us have lousy
personalities, made that way by overwork; some of us
are youthfully enthusiastic but undertrained, and it
shows. It takes really good people, not just very good
lawyers, to break through these barriers and have
positive relationships with clients who didn't choose
them, who often have more than legal difficulties in their
lives. Not all of us succeed, and no one does it all of the
time. However, there's more to it than that. I think that, if
asked, clients might say that our services are less
valuable simply because "public" means government
issue, funded by the government, like schools or
bathrooms. After all, don't most people think private
schools are better than public school? Then isn't a
private attorney going to be better than a public
A client accustomed to government bureaucracy
understandably might think that a public defender is
merely some kind of specialized caseworker or probation
officer. That's why, no matter how geeky it may seem, I
always wear a suit when I see clients during business
hours. I try to look like what most people's idea of a
lawyer is, in case it helps persuade them that I really am
there to help them. (I recognize that there are different
schools of thought on this -- maybe, after all, it's best to
seem more accessible, less like a pompous lawyer. But
when I started out, a young-looking Asian female lawyer,
I didn't look like a pompous (white male) lawyer, so I
didn't have to worry about that. Indeed, I needed every
edge I could get to enhance my credibility, so I wore
suits. Now, after many years, I have concluded that one's
dress and one's accessibility actually have absolutely
nothing to do with each other. Ultimately, if you work
hard for your client and your client knows it, it doesn't
Defendants in the federal system largely enjoy true
vertical representation. They presumptively will have the
same attorney at pre-indictment bond hearings,
arraignment, at plea or trial, and at sentencing. It is much
less likely -- as is made absolutely necessary by heavy
caseloads in state court -- that a "talking head" unfamiliar
with the case will handle arraignments and many pleas. It
is much less accepted that a colleague may cover
sentencings. I have had many clients say they're glad I'm
going to be at the plea, they'll feel more secure. It's my
job to make them feel more secure. But my caseload is
so heavy that I often can't do that.
Which brings me to my last stray thought. By the time
you read this, for the first time in over eleven years, I will
not be a public defender. I still love the work. I will do it
on my own if I can't find someone to hire me to do it; I
just want to do it more carefully and thoughtfully and
personably than I can as a public defender. If you were to
ask them, most public defenders would tell you that this
is the only thing that makes their jobs less than perfect.
Otherwise, it is golden. We are lawyers, and damn we're
embraces “Youth Courts”
First-time non-violent juvenile offenders in a growing
number of counties may be judged and sentenced by
their peers, rather than in juvenile court, as participants
in the Tennessee Youth Court program.
Gov. Don Sundquist endorsed the program - which is
funded by a federal grant and sponsored the Tennessee
Legal Community Foundation and the legislature's Select
Committee on Children and Youth - by proclaiming
September as Youth Court Month. The youth courts, also
known as teen or peer courts, are operating in Sullivan,
Davidson and Sumner counties. Programs also are being
developed in Jefferson and Montgomery counties and
are planned in other areas of the state. Nationwide, more
than 850 youth courts are operating in 46 states and the
District of Columbia.
“This is an excellent program,” Chief Justice Frank
Drowota said. “It encourages good citizenship by
promoting active participation in the community,
encouraging positive problem-solving skills and
educating young people about the legal system.”
The courts are an alternative program in which teens are
sentenced by a jury of their peers - other teens - for their
offenses. They are actual courts presided over by a judge
and the sentences must be completed. All positions in
the trial, except the judge, are filled by trained teen
volunteers. Sentences may include community service,
letters of apology, essays, financial restitution and
Under Tennessee law, youth courts may here such cases
as theft of property, forgery, disorderly conduct, truancy,
runaway, traffic offenses, unruly behavior and
harassment. Studies have shown that young offenders
whose cases were resolved in a youth court have a
recidivism rate of 6-9 percent. Those who have not gone
through a youth court re-offend at a rate of 15-28 percent.
“The program instills good character by emphasizing the
importance of personal accountability, fairness, honesty
and sincere remorse,” the chief justice said. “Finally, this
program is an effective, low-cost alternative to the
traditional justice system. The Tennessee judiciary
enthusiastically supports this program and urges every
county in Tennessee to develop a youth court.”
Return to Contents
Worth a Thousand Lies Return to Contents
Digital photo editing is making it easy to alter photographs. It's
also making it easy to change the news. And it might affect your
By Jack Karp
Photographs have been altered since the
camera was first invented. Photographers
have always been able to choose the angle,
the lighting, the exposure, the type and
speed of film, and the filter with which to
take a picture. And developing procedures
have always given photographers a certain amount of
control over how the finished photograph will look.
But today, photo editing programs like Photoshop make it
easier and faster than ever to make substantive changes to
images and harder to tell when those changes have been
made. If you want to see what a digitally altered photograph
looks like, just try searching on the Internet for naked
pictures of your favorite celebrity. Chances are most of
what you find will be fakes. Celebrities rarely pose for nude
photos, especially the sexually explicit kinds that show up
on many pornographic websites.
But the ease with which photographs can now be altered or
manipulated is not just a concern for celebrities whose
naked photographs are showing up on the Net. It should
also be a concern for all of us who view photographs in
newspapers, magazines, on television, and on the Internet.
Just like the "fakirs" who alter images of celebrities like
Gillian Anderson and Britney Spears, photojournalists and
photo editors at many of the world's leading news
organizations have begun altering photos as well.
In 1994, for
instance, after OJ
for the murder of
his ex-wife, Time
a cover showing
shot. But before
editors chose to
tone using digital
The effect was that Simpson looked more "black" in the
photo. Time defended the move, saying the image was not a
news photograph but a "photo illustration." What's more
frightening is that the change might not have been noticed
had Newsweek not run a cover using the same unaltered
mug shot simultaneously, so that Newsweek's cover sat
right beside Time's cover on newsstands.
Shortly after, in 1997, Newsweek and Time traded places
when the two magazines ran simultaneous covers featuring
Bobbi and Kenny McCaughey, the parents of the
McCaughey septuplets. Time ran an unaltered photograph
of the couple. Newsweek ran a photo in which Bobbi
McCaughey's teeth had been digitally "fixed." Evidently, the
magazine's editors felt they needed to make the new mother
look more attractive to sell issues. The magazine later
apologized for the manipulation.
Last year, both the University of Idaho and the University of
Wisconsin were caught digitally manipulating publicity
photographs. The University of Wisconsin added the face of
a black student to a photograph of a cheering crowd in its
2001-02 undergraduate application, while the University of
Idaho superimposed the face of an Asian student and a
black student over the faces of two white students in a
photograph on the school's website. Both manipulations
were executed in order to make the schools look more
And such manipulation isn't limited to still photographs.
During Dan Rather's 2000 New Year's Eve broadcast from
Times Square, CBS News used virtual imaging technology
to superimpose its own logo over the logo of NBC on a
Times Square video screen sponsored by the rival network.
And the images weren't altered after the fact; the changes
were made live as the broadcast was airing. The
manipulation brought about protests from journalists who
complained that CBS was actively altering the reality it
offered its viewers, a reality that is supposed to be wholly
The manipulation also drew attention to the fact that such
alterations are becoming increasingly common in the media
as photographers, journalists, editors, and news producers
compete to win readers and viewers. And while many of
these journalists defend themselves by claiming the
alterations they make are minor, who decides what defines
a "minor" change? Is it a minor change to alter a reporter's
hair color to make him look younger? Is it still a minor
change to alter a suspect's skin color to make him look
What worries some journalists and ethicists even more is
that, with the advent of digital photography, photographs
can now be taken, altered, and published without the
existence of a negative. So, in effect, there is no "original"
photograph left with which to compare a manipulated
photograph. As a result, it not only becomes difficult to tell
the difference between the altered and unaltered image; it
becomes almost impossible to know that an image has
been altered in the first place.
So, what does this trend mean for the future of an objective
media? It's difficult to say just yet. But it is a question with
which journalists and photographers will increasingly be
faced as photo manipulation techniques get more
sophisticated. And as those techniques get more
sophisticated, the viewing public will have a harder time
telling the difference between reality and fiction.
OUR (SAD) HISTORY
OF TREATING MENTAL ILLNESS
"IT WAS A BRILLIANT CURE -
BUT WE'VE LOST THE
DR. BENJAMIN RUSH'S "TRANQUILIZER
CHAIR" (1811) The most complete restraint
of a patient's every move ever devised. A
board attached to the back of the chair
which is made to rise and fall according to
the height of the patient. To the end of the
board is attached: A wooden box lined with
stuffed linen in which the patient's head is
held immobile so it cannot move backward
or forward, nor incline to either side. Chest
and belly bands, made of flat pieces of
strong leather, which confine and limit the
body's movement in the chair. Strong
leather bands which confine the arms and
hands of the patient to the arms of the
chair, thereby limiting their movement.
Pieces of wood which protrude slightly
from the chair to which the patient's feet are confined, so as to prevent their
moving in any direction. A stool-pan (half-filled with water) attached so as to be
drawn out from behind the chair and emptied and replaced, without removing or
disturbing the patient. The chair is fastened to the floor so as to remain stationary.
(“Mad in America” by Robert Whitaker)
"There Are Some Remedies Worse Than The Disease!"
(Publius Syrus, First Century B.C.)
Throughout the course of history, mankind's treatment of "the insane"
has been, well, insane! While the day-to-day care of patients could be
cruel, attempts at curing them could be even crueler. Everything from
medieval chiseling of the skull to "let the devil escape" to the 1940's
ice-pick lobotomies of Dr. Walter Freeman. In 1276, then Pope John
XXI, who wrote several medical treatises, suggested that eating a
roasted mouse "doth heal frantick persons." In the 16th Century it
was believed that stones in the head caused madness. This belief is
perpetuated in the oft-heard cliche "rocks in the head." Dr. Benjamin
Rush (1745-1813), a pioneer of early American psychiatry,
recommended relentlessly swinging the patient around to "shake out
the madness." Following an enlightened attempt to reform
madhouses, novelist Charles Dickens wrote: "Chains, straw, filthy
solitude, darkness and starvation; jalap, syrup of buckthorn,
tartarised antimony and ipecacuanha administered every spring and
fall in fabulous doses to every patient, whether well or ill; spinning in
whirligigs, corporal punishment, gagging, continued intoxication;
nothing was too wildly extravagant, nothing too monstrously cruel to
be prescribed by mad-doctors." Perhaps no single group has
undergone more widespread experimentation than the destitute
"mentally-ill" in state-run institutions. A major movie production
recently filmed at an abandoned state "mental hospital" in the city of
Danvers, Massachusetts, reveals the severity exacted by it's patients.
Surgical tables and eerie artifacts left over from more than a century
of often primitive methods of treating "the mentally-ill" have been left
as they were at the hospital, which was abandoned in 1992. Cast and
crew members were overwhelmed by the buildings disturbing aura.
Said one crew member: "the walls there are very sad, full of hurt, it's
not a place you take lightly."
Dr. Daniel Oxenbridge (1576-1642) a London physician, employed the
latest methods in 1628 when trying to cure the young wife of a
clothier. First he gave her an enema, then he bled her arms, her feet,
and her forehead. After that, "once every three or four days, I either
bled her or vomited her strongly." He then shaved off all the hair on
her head to which he "applied the warm lungs of lambs, sheep and
Dr. Jan Baptista van Helmont (1577-1644) a Flemish physician, argued
that water shock - to the brink of near death - could extinguish a mad
person's "too violent and exorbitant form of fiery life." Dr. Jan
Baptista discovered this "cure" by observing that "many fools who
accidentally fall into water and are dragged out for dead are not only
restored to life... but also to the full use of their understanding."
Dr. Benjamin Rush (1745-1813) is sometimes called the father of
American psychiatry, however, what's conveniently overlooked in
tributes to him is that he also drained buckets of blood from those he
treated and was sometimes accused of killing more patients than the
illness itself. He put his best hope for "the cure of mental illness" in
"swinging." Dr. Rush argued that mental patients should be strapped
into gyration devices, i.e., chairs suspended from the ceiling by
chains, and that attendants should swing and spin them for hours. He
believed that the spinning would reduce the force of the blood flowing
into the brain, thereby relaxing the muscles and lowering the pulse.
He also cited other positive effects from the spinning, pointing out
that the induced vomiting would generate a healthy circulation.
16th Century: Extracting the Stone of Madness 19th Century: "Shaking out the Madness"
French and British doctors experimented with the transfusion of
sheep's blood into their patients... hoping that the life force of a docile
creature "might tame their mad passions." In France, Dr. Jean Denis
tried it on a patient, with, at first, good results. In England, on
November 23rd, 1667, an "insane" man named Arthur Coga was paid
twenty shillings to undergo the transfusion, receiving up to twelve
ounces of blood from the four-footed beast. "Some think it may have a
good effect upon him as a frantic man by cooling his blood," wrote
famed diarist Samuel Pepys. Following the transfusion Pepys noted
that, "he is a little cracked in his head, though he speaks very
reasonably." In January of the following year, back in France, Dr.
Denis performed another transfusion on his patient because he'd had
a "mental relapse". The patient died and Dr. Jean Denis was accused
of murder. Sheep transfusion fell out of vogue shortly thereafter.
Between 1906 and 1917, psychiatrist Giuseppe Paravicini dissected
patients at the Mombello Provincial Mental Health Center in Italy and
sawed off their body parts, including heads, arms and ears. In 1980,
the extremely well-preserved bodies of people who had been
mummified, apparently some while still alive were discovered, along
with the head of a woman, an aborted fetus, brains, kidneys, lungs,
legs, arms and ears. ("Il Secolo", Milano, Italy, Feb. 12th, 1980)
Dr. Henry Cotten (1886-1933), acting on his theory that infections
caused mental illness, surgically removed "potentially infected" body
parts. "The insane are physically ill," he stated, arguing that if a
doctor could locate and remove the infection, he could abruptly stop
the lunacy. Dr. Cotton ordered 11,000 teeth removed from 1919 to
1921 from his patients at Trenton State Hospital in New Jersey. When
the patient wasn't cured by the dental work, the doctor surgically
removed parts of the stomach, bowels and/or genitalia. "It was awful
to work there", recalled one hospital employee. "There was a young
girl who worked in the office right by the door where they had to roll
the baskets past that carried the bodies and organs and stuff. One
day she ran out screaming that she couldn't take it any longer." The
mortality rate among those treated by Dr. Cotton hit 43%!
According to Galen the ancient Greeks sometimes applied an electric
eel to the body to numb pain, or to the head to alleviate headaches.
The Greek word for electric eel was "narka", hence the word
"narcotics", meaning drugs that numb the pain. In the 18th century
Benjamin Franklin, who sustained two electric shocks himself,
inflicting minor retrograde amnesia, suggested "trying the practice on
mad people." So in 1787, Dr. John Birch, a British doctor, did just that,
trying to cure a popular but suicidal singer suffering from depression.
The more modern pioneer in this field was the Italian doctor Ugo
Cerletti who in 1938 noticed that workers in a slaughterhouse used
electric shock to send pigs into convulsions in order to make killing
them easier. This is what electroshock "therapy” does to humans. It
generates a severe grand mal convulsion of long duration through the
application of 180 to 460 volts of electricity across the brain (hence
the acronym ECT/electro-convulsive therapy), frequently inducing
amnesia. During the first World War an electric shock box was
designed for use on German soldiers who were afraid to fight on the
battlefield. Since it's inception, it's very design was a means of
discipline used to enforce the honor demanded of German soldiers.
With this instrument it was not uncommon for German soldiers to be
killed, not by the war, but by electro-convulsive electrocutions. During
World War II, German doctors found other uses for electroshock.
Between 1939 and 1941, they produced a film called "The Mentally-Ill"
which presented the pros and cons of electroshock and gassing
procedures. Incredibly, this film details the false notion of curing "the
mentally ill" with electroshock and proposes gassing them to death as
the only other alternative. Following a series of shock treatments at
the Mayo Clinic in 1960 and 1961, Ernest Hemingway lamented: "It
was a brilliant cure - but we've lost the patient!!!" One month after his
final shock treatment and a few days after being released from the
clinic, Hemingway committed suicide. In the introduction to "The
History of Shock Treatment", psychiatrist Dr. Lee Coleman said of
ECT: "The changes one sees when electroshock is administered are
completely consistent with any acute brain injury such as a blow to
the head from a hammer. In essence, what happens is that the
individual is dazed, confused and disoriented, and therefore cannot
appreciate current problems." In 1970, as he recalled the first time he
had performed ECT on a human being, Cerletti remarked to a
colleague: "When I saw the patient's reaction, I thought to myself, this
ought to be abolished!" While some psychiatrists still deny that
electroshock causes irreversible brain damage and memory loss,
neurologists & anesthesiologists empathically disagree. Studies
between 1979 and 1991 revealed abnormal neurological signs
following electroshock, as well as brain atrophy and enlarged
ventricles (see: Archives of General Psychiatry). This procedure is
still practiced today as a form of involuntary treatment.
SHOCK THERAPY DISORDER:
HIDDEN DISORDER EXPOSED BY FORMER "MENTAL PATIENT"
STD is a disorder that is unique to certain members of the psychiatric
profession. It is defined as: "the innately sadistic need to shock those
who have forfeited their rights by default (conveniently labeled "the
mentally ill") into submission." This carefully concealed and rarely
acknowledged disorder has also been known to afflict interrogation
members of the espionage community who will often use this
coercive procedure on captured enemy agents who refuse to reveal
classified information. Obviously these experts clearly remember the
childhood admonition to "keep your fingers out of the socket!"
THE ICE-PICK MAN COMETH:
THE MEDIEVAL ART OF PSYCHOSURGERY RETURNS
The year 1935 marked a return to the medieval art of psychosurgery
with techniques similar to those used 800 years earlier to "drive out
the devil." After drilling two or more holes into the skull, surgeons
inserted into the patient's brain any of a number of various
instruments - some resembling an apple corer, a butter spreader, or
an ice pick - and often, without being able to see what they were
cutting, destroyed parts of the brain. An early pioneer of this practice,
Portuguese neurosurgeon Dr. Egas Moniz, stabbed long thin blades
into the brains of patients who had had holes drilled into their heads.
As fate would have it, Moniz was shot and paralyzed by one of his
lobotomy victims in 1939 and beaten to death by another in 1955. The
idea didn't gain much momentum until Dr. Walter Freeman and Dr.
James Watts pioneered lobotomies in America. Dr. Freeman preferred
entering through the eyesocket with an ice-pick. One gloomy October
morning in front of an audience of psychiatrists and photographers a
group of female patients were wheeled into his operating room. After
a brief discourse on the wonders of psychosurgery, Dr. Freeman went
to work. As the first patient was wheeled in before him, he put
electrodes on her temple and shocked her into a faint. He then lifted
her left eyelid and plunged the ice-pick into her head. As he pulled it
out, another woman was wheeled in before him. Again he shocked
and plunged, and so on, until even the director of the hospital near
collapse with nausea left the room! In 1948, Dr. Freeman performed
his most famous lobotomy when he hammered his ice-pick into the
head of actress Frances Farmer. Before her death at the age of 57, by
now desititute, Mrs. Farmer was quoted as saying: "Never console
yourself into believing that the terror has passed, for it looms as large
and evil as it did in the despicable era of Bedlam. But I must relate the
horrors as I recall them, in the hope that some force for mankind
might be moved to relieve forever the unfortunate creatures who are
still imprisoned in the back wards of decaying institutions." By 1955,
more than 40,000 lobotomies had been performed on men, women
and children in the U.S. alone, and tens of thousands more worldwide.
Today under the newly-sanitized guise of neurosurgery, lobotomy
advocates such as the Scottish Secretary of Health propose that
lobotomies be performed on patients without their consent. (Outrage
Over Banned Brain Ops in Scotland "The Big Issue" January 22-28,
1998) An article in "Discover" magazine quotes neurosurgeon Frank
Vertosick as noting that: "Finding a paper extolling the virtues of
psychosurgery in today's medical literature is rather like finding one
advocating blood-letting." He equated it to repairing a computer with a
chain saw. (Discover, Oct. 1997)
Three Hundred Years of Psychiatry (1535-1860): A History Presented
in Selected English Texts, by Richard Hunter and Ida McAlpine
From Shaman to Psychotherapist: A History of the Treatment of
Mental Illness, by Walter Bromberg, M.D. (1975)
Great and Desperate Cures: The Rise and Decline of Psychosurgery
and Other Radical Treatments for Mental Illness, by Elliot Valenstein
The Case Against Electroshock Treatment: USA Today
Newsmagazine, The Magazine of the American Scene, November 1998
Return to Contents
A Jury of Your Peers?
Only If You're Clueless
By Alan Berlow
In May 1999, Associate Supreme Court Justice Sandra Day
O'Connor delivered a remarkable address in which she
suggested that jurors routinely rendered verdicts without
enough information to do their jobs. "Too often," O'Connor
told the National Conference on Public Trust in the Justice
System, "jurors are allowed to do nothing but listen
passively to the testimony, without any idea what the legal
issues are in the case, not allowed to take notes or
participate in any way, and finally to be read a virtually
incomprehensible set of instructions and sent into the jury
room to reach a verdict in a case they may not understand
much better than they did before the trial began."
Surprisingly, O'Connor's damning critique went
unreported in the major media. Even more surprisingly,
only eight months later, O'Connor seemed to have
abandoned her message: She joined Chief Justice William
Rehnquist in a 5-4 opinion that stated in part that "a jury is
presumed both to follow [the judge's] instructions and to
understand a judge's answer to its question."
It would be nice to believe that, but the reality is far closer
to what O'Connor described in her speech. Indeed, that 5-4
decision, which led to the execution of Virginia death row
inmate Lonnie Weeks, is a good example of what she'd
been talking about. At least three jurors in the Weeks case
were so profoundly confused about the judge's
instructions that they wrongly believed the law might
require them to impose a death sentence. Two of them
made that clear by questions they sent to the judge during
deliberations, and the third later told me that they believed
"we weren't there to discuss the penalty. We were there
just to find out whether he was guilty or innocent, and we
all understood that it was the death penalty if he was
In fact, U.S. law for the past quarter-century has said
precisely the opposite. There are no mandatory death
sentences for any crime and jurors must in all cases
consider a sentence other than death. But when the jurors
in Weeks' case asked their question -- specifically, about
how much weight they were expected to give to the
aggravating circumstances cited by the prosecution -- the
judge merely did what many judges do: He told them to
reread the instructions they hadn't understood in the first
place. That's untenable -- both for the jury and the
defendant. In any trial -- whether it involves burglary,
product liability, personal injury, corporate crime or
murder -- the defendant has a right to jurors who
understand their legal obligations.
It's difficult enough, in today's complex society, for a juror
to comprehend the substance of the testimony. Post-trial
interviews with jurors in the Arthur Andersen/Enron
obstruction-of-justice case revealed they simply hadn't
understood much of the government's argument. Cases of
medical malpractice, product liability or the environment
often turn on arcane scientific issues. Clarifying these
matters is the job of lawyers, who have a strong interest in
helping jurors make sense of their arguments.
But it should be the job of the judge to make sense of the
law -- especially when jurors seek clarifications of legal
language. It has long been a central tenet of our justice
system that jurors go about their business in a "black
box," sealed off from outside scrutiny or pressure. That
should not mean they are left in the dark.
Nevertheless, judges too often refuse to answer jurors'
questions -- in some cases, judges confide, because they
fear that deviating from statutory instructions or
instructions agreed to by the two sides in a case could
lead to reversal on appeal. Judges, particularly in states
where they are elected, don't want their opponents citing
reversal rates. Fred Baca, the jury foreman in a recent
Texas murder case, told me that he
sent several questions to the judge seeking clarifications
instructions but was repeatedly brushed aside. "We were
drowning and we wanted some kind of help. And when it's
that serious, for God sakes when you're pleading for help,
you have to give us something. We were reasonable
people, intelligent people, making a very difficult decision,
asking for help."
Instances of juror confusion are found throughout the
judicial system. But the greatest impact -- and the most
dramatic evidence--is found in capital murder cases. Over
the past decade, the Capital Jury Project, a National
Science Foundation-backed consortium of legal scholars,
psychologists and sociologists, has examined this issue
in interviews with more than 1,200 jurors who ruled in 350
capital murder trials. I've examined many of these
interviews, and they make it clear that Lonnie Weeks'
jurors weren't the only ones who didn't understand the law
on mandatory death sentences. More than half the jurors
in one CJP survey thought death was the only legally
acceptable punishment for premeditated murder. An
astonishing 70 percent believed death was the only
acceptable punishment for someone previously convicted
One woman, recollecting her capital jury experience, said
she felt as if she and her fellow jurors had been told, "You
play doctor today. We will give you instructions on how to
amputate a limb. If we take it off, no chance of infection
and the patient will live, but if you do not take it off, the
patient might regain use of that arm . . . and now you make
the decision. . .You cannot ask questions. . . "
Most jurors are not this aware of the extent of their own
confusion. Consider, for example, Michael Callahan, a
member of an Illinois jury that convicted Rolando Cruz of
the 1983 murder of a 10-year-old girl. In an interview, he
told me he thought the state's evidence had been
incredibly weak. "I can remember vividly when the state's
attorney rested his case, the thought in my mind was,
'This is all we're going to hear? I mean, this is it? . . . I was
just aghast.' "
So what did Callahan do? Well, with the other 11 jurors he
voted to find Cruz and a second defendant guilty of
murder. Why? "My thoughts were, okay, I know there's
going to be an appeal. So I'm going to find them guilty,
okay? I'm not totally happy with that, but I wasn't happy
letting them go . . . However, there's enough evidence if it
were to be believed that maybe, maybe, maybe there's
something there. So on that basis I thought, yeah, I'll find
'em guilty. Not going to give them the death penalty. Never
do that. But sooner or later the truth is going to come out."
The judge, as it turned out, did sentence Cruz to death .
But the truth, as Callahan suspected, did come out -- about
a decade later. Cruz had nothing to do with the murder. He
lost nearly 12 years of his life, most of it on death row.
Capital Jury Project founder William Bowers says the
assumptions about the law jurors bring into the courtroom
are often based on "folk knowledge," misconceptions he
believes derive largely from television. That may explain
Callahan's expectation that somebody else would fix his
jury's mistake. It also may explain why jurors in the 35
death-penalty states that have "life without parole"
statutes -- where a jury can guarantee that a convict will
spend the rest of his life in prison -- often continue to
believe that all murder convicts can be paroled anyway. In
Pennsylvania, jurors in one study estimated that someone
sentenced to life without parole would be out in 12 to 14
Data from a decade of CJP interviews also suggests that
jurors frequently misunderstand such basic concepts as
"mitigation," which means that a jury can take into
consideration a defendant's history or state of mind to
reduce his culpability for a crime. In one study, two-thirds
of capital jurors in South Carolina wrongly believed that
they had to be unanimous in finding a factor "mitigating" --
when in fact it takes only one juror, who in effect can veto
a death sentence.
Even worse, jurors too often do not even understand the
state's basic requirement to prove its case beyond a
reasonable doubt, says B. Michael Dann, a retired Arizona
judge now with the National Center for State Courts in
Williamsburg, Va. "When a jury is confused on something
as fundamental as proof beyond a reasonable doubt, then
that calls into question the validity of the conviction,"
But read California's official instruction on reasonable
doubt, and try to imagine how clear it would be to you, as
a juror: "It is not a mere possible doubt; because
everything relating to human affairs is open to some
possible or imaginary doubt. It is that state of the case
which, after the entire comparison and consideration of all
the evidence, leaves the minds of the jurors in that
condition that they cannot say they feel an abiding
conviction of the truth of the charge." This instruction is
"abstract," and "largely phrased in the negative" says
Peter Tiersma, professor at Loyola Law School in Los
Angeles and author of "Legal Language." And he notes the
use of the word "conviction," which, when heard in a
courtroom, "almost always means that someone is going
to prison, not that someone firmly believes something."
It might not be possible to eliminate juror confusion, but it
can be reduced. Numerous studies have proven what
seems obvious: Writing instructions in plain English helps
jurors understand them. Dann says jury instructions are
typically written for someone with a graduate school
education, but should be written at a sixth-grade level.
A few states, such as Arizona, Michigan and Delaware,
have already simplified the language of their instructions.
Others are in the process -- including California, where
Tiersma is on a taskforce proposing a long list of changes.
For example, when a jury is being told how to consider
circumstantial evidence, California's current statutory
language includes this sentence: "Circumstantial evidence
is evidence that, if found to be true, proves a fact from
which an inference of the existence of another fact may be
Under the task force's proposal, that sentence would read:
"Here is an example of how circumstantial evidence
works: A party proves Fact A, then argues that because
Fact A is true, logically you should conclude that Fact B is
Individual judges also can choose to be more jury-friendly.
Some read certain instructions at the beginning of a trial
as well as at the end, which provides jurors a sort of road
map through the unfolding landscape of evidence. Judges
also can choose to be more responsive to questions from
jurors. Sadly, that isn't going to happen to the extent it
should until judges are more interested in justice than
The attitude of the judicial hierarchy isn't encouraging.
Bonnie Sudderth, the Texas judge who is president of the
2,600-member American Judges Association, the largest
judges' association in the country, says the grouphas
never addressed the issue of instructions and juror
When I asked whom else I might speak to about the issue
she referred me toanother Texas judge, Sharen Wilson,
who effectively dismissed my concerns. "I think the level
of confusion, honestly, is a minimum," Wilson said,
insisting that she had seen only two or three instances of
confused juries in the past decade.
Then, on reflection, she did recall one case earlier this
year in which a jury that intended to send a defendant to
prison learned on hearing the verdict read that it had
mistakenly voted for probation. But she seemed to think
that was okay: "We let juries make those decisions,"
Or, one might say, those mistakes. Alan Berlow is the
producer of "Deadly Decisions," a documentary about
juries in capital murder cases, which aired last month on
National Public Radio.
Return to Contents
The Court Report
Tennessee Supreme Court
State v. Richard Hale Austin-W1999-00281-SC-DDT-DD (Shelby
Trial court erred in sustaining State’s hearsay objection. Hearsay
is admissible in a capital sentencing hearing.
PCR/SUPPRESSED EXCULPATORY EVIDENCE
Michael Sample v. State - W1999-01202-SC-R11-PC (Shelby
Reverses denial of PCR where Petitioner, despite his efforts, did
not obtain exculpatory evidence until well after the three-year
statute of limitations; record preponderates against the trial
court’s determination that the petitioner’s liberty interests in
raising such an issue were outweighed by the State’s interest in
DEATH PENALTY/JURY SENTENCING
State v. William Torres - E1999-00866-SC-DDT-DD (Knox County)
Death sentence reversed, remanded for new sentencing hearing,
where trial court erred by giving the jury an instruction pursuant to
Kersey v. State, rather than accepting the jury's report of a
State v. Aaron James - M2000-00495-SC-R11-CD (Davidson
When the sole purpose of introducing the defendant's prior
convictions is to prove the "prior-conviction" element of the
charged offense, and when the defendant offers to stipulate to this
element, the probative value of this evidence is outweighed by the
risk of unfair prejudice.
State v. John Johnson, Jr. - W2000-01986-SC-R11-CD (Obion
The legislature intended that a person who has been convicted of a
felony involving the use or attempted use of force, violence, or a
deadly weapon cannot possess a handgun, even where his or her
citizenship rights have been restored.
State v. Flake – M2000-01131-SC-R11-CD (Shelby County)
Appellate court should reverse a jury verdict rejecting insanity
defense only if, after reviewing the evidence in light most favorable
to the State, the appellate court concludes that no reasonable trier
of fact could have failed to find that the defendant’s insanity at the
time of committing the offense was established by clear and
State v. Elkins – M2000-01680-SC-R11-CD (Giles County)
Defendant was convicted of aggravated sexual battery. Supreme
Court reversed holding that the jury should have been instructed
on the lesser-included offense of child abuse.
Tennessee Court of Criminal Appeals
State v. James Mellon - E1999-01505-CCA-R3-DD (Knox County)
As long as the fact of a prior violent felony conviction has been
adjudicated prior to the sentencing hearing in the capital case in
which it is offered, such conviction may be used to establish the
State v. Allen Blye - E2001-01227-CCA-R3-CD (Sullivan County)
Aggravated burglary and aggravated rape convictions affirmed
where State's action in obtaining the search warrant from a judge
in the county in which the Defendant was imprisoned, rather that
the trial judge before whom the prosecution was proceeding, did
not taint the search so as to render the blood tests inadmissible.
State v. Terry - W2001-03027-CCA-R3-CD
(Shelby County) Aggravated criminal trespass, attempted
aggravated criminal trespass, and criminal trespass are not
lesser-included offenses of attempted aggravated burglary.
State v. Henley - W2001-02962-CCA-R3-CD (Shelby County)
In the context of MVHO proceedings, a predicate conviction
premised upon out-of-court payment of a fine for a traffic offense
is indistinguishable from one premised upon an adjudication of
guilt by plea or trial.
PRIOR INCONSISTENT STATEMENT
State v. Coble - W2001-00039-CCA-R3-CD
(Obion County) Where there is no evidence that the prosecution
called a witness knowing that he would repudiate his pre-trial
statement to police, it was proper to permit the State to impeach its
State v. Majors - M2001-02143-CCA-R3-CD
(Montgomery County) Conviction for attempted aggravated
robbery on the theory of criminal responsibility is reversed where
the trial court should have instructed the jury as to facilitation.
State v. Leonard - M2001-00368-CCA-R3-CD
(Montgomery County) Conviction for especially aggravated
kidnapping accomplished by the use of a deadly weapon was
remanded for a new trial because the trial court failed to instruct
on the lesser-included offense of aggravated kidnapping.
State v. Amonette - M2001-02952-CCA-R3-CD (Williamson County)
Trial court erred in revoking 11-29 sentence where the time for
probation on that sentence had expired before the probation
revocation warrant was filed.
State v. Bailey - E2001-02443-CCA-R3-CD (Cocke County)
Trial court's finding that the defendant was "a dangerously
mentally abnormal person whose behavior indicated little regard
for human life" was not supported by findings from a competent
psychiatrist per T.C.A. 40-35-115(b)(3).
State v. Collins - E2001-01301-CCA-R3-CD (Knox County)
Trial court's order releasing defendant from probation is affirmed.
State argued that the trial court did not have jurisdiction to modify
the sentence more than 120 days after it became final. However,
CCA held that the trial court maintained authority to modify the
sentence under T.C.A. Sec. 40-35-212. The defendant did not serve
his time in the Department of Correction. The trial court maintained
jurisdiction over the defendant during the term of the sentence.
State v. Craig - E2001-01528-CCA-R3-CD (Bradley County)
Trial judge erred in ordering consecutive sentencing based upon a
finding that the defendant was a "dangerous offender", without
finding particular facts showing consecutive sentencing is
reasonably related to the severity of the offenses and that it serves
to protect society from aggravated criminal conduct.
Alder v. State - E2002-00287-CCA-R3-CD (Knox County)
Failure of a defendant to file for discharge from diversion does not
allow the court to continue jurisdiction ad infinitum. The trial court
does not continue jurisdiction until an order is entered terminating
the diversion, dismissal is mandatory.
State v. Timothy Sexton - E2000-01779-CCA-R3-CD
(Hamilton County) Second degree murder conviction reversed.
Juvenile court convictions utilized by the State to cross-examine
the Defendant's character witnesses were not relevant to the
character trait about which those witnesses testified.
State v. Shawn Brooks - M2001-02358-CCA-R3-CD (Wilson County)
Trial court's order revoking Appellant's two-year suspended
sentence for sale of counterfeit controlled substance is reversed,
vacated. The revocation proceeding violated the minimal due
process requirements of Gagnon v. Scarpelli. Appellant was not
placed on notice by the warrant nor does the record reflect that
notice was received in any form prior to the hearing that his
two-year probation was being revoked.
State v. Michael Brogan - E2001-00712-CCA-R3-CD
(Claiborne County) Trial court misapplied multiple victim
enhancement factor where defendant received separate
convictions for each victim; misapplied exceptional cruelty factor
where the intentional shooting of a pregnant woman would not,
alone, support the factor; misapplied particularly great injuries
factor because great bodily injury is inherent in the crime of
second degree murder.
State v. Claude W. Cheeks - E2001-00198-CCA-R3-CD (Hamilton
Convictions for especially aggravated robbery and aggravated
assault reversed. Record does not reveal sufficient lay testimony,
nor expert testimony, concerning the defendant's mental state at
or near the time of the offenses that would justify rejection of the
insanity defense; for more than two years after the offenses, the
experts consistently and unanimously concluded that an insanity
defense could be supported.
State v. Randy Long - W2001-01467-CCA-R3-CD (Madison County)
Conviction for introduction of contraband into a penal institution
affirmed. Defendant knowingly and with unlawful intent took
cocaine into the jail, even though he was being taken into the jail
State v. George Lucas - W2001-02600-CCA-R3-CD (Shelby County)
Seven year sentence for carjacking reversed. Trial judge erred in
holding that individuals convicted of carjacking were statutorily
ineligible for probation and erred in determining that the use of a
weapon in a carjacking was, standing alone, sufficient reason to
deny the defendant probation.
State v. Debra Thomas - W2001-02039-CCA-R3-CD
(Henry County) Trial court erred in failing to give defendant credit
for time served in confinement and in the community corrections
program under her original sentence in its resentencing upon
revocation of community corrections sentence.
State v. Jack Norton - E2001-01903-CCA-R3-CD
(Washington County) There was no requirement for police officers
to "knock and announce" prior to entering Defendant's tavern
where the tavern was open to the public at the time the search
warrant was executed, and officers could have walked lawfully
through the door into the open area of the tavern without a search
State v. Mark Walker - M2001-00341-CCA-R3-CD
(Davidson County) Conviction for criminal simulation reversed and
dismissed. False identifications possessed by the defendant did
not have the type of value contemplated by the statute.
State v. Wade Tucker - M2001-02298-CCA-R3-CD (Franklin County)
Evidence was insufficient to sustain an aggravated burglary
conviction. Victim-wife's property rights in the house had not yet
been adjudicated by the divorce court, and the defendant-husband
was not under any restraining or protective order commanding him
to stay away from the house.
State v. Walter Wilson - W2001-01463-CCA-R3-CD
(Shelby County) Convictions for second-degree murder and felony
murder reversed, remanded. Trial court failed to instruct on lesser-
included offenses. Evidence at trial justified instructions for the
lesser-included offenses of reckless homicide and criminally
State v. Russell Maze - M2000-02249-CCA-R3-CD
(Davidson County) Reverses conviction for felony aggravated child
abuse. Trial court erred by not instructing the jury on knowing and
reckless aggravated assault, knowing and reckless assault, and
child abuse. The defendant testified that his admitted shaking of
the victim was not in a manner that would cause the injuries
actually sustained by the victim. This is essentially saying that his
conduct was not abusive or “in such a manner as to inflict injury.”
A jury could have found the defendant’s conduct to be merely
State vs. Steven Brooks - E2001-00920-CCA-R3-CD
Trial court erred by not severing rape offenses involving separate
victims. Judgments reversed with an order to sever the offenses
by victim, and remanded for new trials.
Return to Contents
Spotlight on the
(Compiled by Mac Tidwell, Technology Specialist)
26th At Work and Play
Nestled alongside Interstate 40 in West Tennessee we find Jackson,
the home of the 26th District. The city claims several famous
landmarks and sights. There is no way anyone will miss ‘Casey
Jones Village’ conveniently located just off the Interstate. Here you
will find the old home place of Casey Jones and a replica of his
famous locomotive. A popular tourist stop, there is a good
restaurant and several gift shops. Other local stops must include
civil war sites as well as contemporary attractions including the
M.D. Anderson Planetarium and West Tennessee Children's
As you travel downtown and if you get sufficiently lost there you are
sure to find the office of the 26th District Public Defender, George
Morton Googe. George and his staff of five attorneys, two
investigators and three indispensable support people cover courts in
Madison, Chester and Henderson counties.
Googe, aka The
1990, is well known
for his love of
chicken but has
been known to eat a
good steak. He and
his wife Becky both
play in the Jackson
Symphony and they have two children—Wendy, age 16,
and Charles, age 14. One of George’s hobbies is model
railroading and he helped build the model railroad layout
at The Jackson Depot Museum. His sense of humor helps
him get through some of the unusual cases the district has
seen, such as the molestation of a chicken case in which
“fowl play” was suspected.
Nina Wong Seiler came to the 26th District after graduating
from University of Mississippi School of Law. As an
Assistant Public Defender the practical experience
representing her clients has been challenging, with never
a dull moment, while her co-workers have provided no end
of amusement. Her most commonly-used phrase is,
“Shut up, Steve (Spracher)!” Nina will forever be
remembered around the office for instituting a new multi-
compartmentalized condiment tray, which she says is a
result of years of organizing at her parent’s Chinese
Chris Dunn, legal assistant has been
with the 26th District for the past eleven
years. Married with two sons she is
quick to tell you that working in the
Public Defenders Office never has a dull
moment compared to the time she has
spent doing civil work. With Chris in the
office there is never a concern about the
intercom because as she says “I have a
built in one that works just fine”. When asked what she
likes the most she will respond, “That being here is like
working with one big close family, and I will be here until
the day I retire for good!”
Iva Arnold, worked
at The Jackson Sun
as secretary to the
secretarial school at
Jackson Sun she
joined a law firm as
legal secretary and has been in the legal community ever
since. Iva went to work for George before his election as
Public defender and came to 26th District with him. George
says Iva is the only reason the office was able to function
before the computer network was installed. “She’s got a
mind like a steel trap and helps us keep up with
everything,” says George.
Franklin Rice, retired from
the Jackson police
department as a Captain with
26 years service. As a police
officer he received training at
the Law Enforcement
Academy and courses as
basic investigator and
Middle Management. After retirement he joined the 26th
District as an investigator. If you ask any of the people in
the 26th District, they will tell you while his duties include
finding and identifying witnesses, and going to crime
scenes. His main responsibility is making sure all co-
workers have lunch.
Christina Bailey is the 26th
District’s newest legal
assistant and handles the
cases in Circuit Court
Division II, Chester County
and Jackson City Court.
Originally from Chicago,
she and her husband call
Jackson home. Together
they are raising “an
adorable two-year old daughter, Katelyn”. Christina says
that in her spare time she loves to take Katelyn shopping –
“knowing that it is best to start this habit at an early age”.
Steve Spracher joined the 26th
District as an Assistant Public
Defender nine years ago on April
Fools Day. The debate
continues as to who promised
what to whom and if they really
meant it. Steve is quick to admit
he likes Friday cases in Chester
County because it is closer to
the lake. He is looking for a
bumper sticker that says his other vehicle is a Gulf Star
Sailmaster 39. Be careful around Steve because he is still
looking for someone to take an Irwin 34 off of his hands.
David Crichton joined the
Public Defenders office
after seven years private
practice in Bolivar. He
handles all cases in
Division II of Circuit Court.
Born and raised in
Memphis, he and his wife of
fourteen years, Beth have
Johnny Woolfork joined the Public Defenders Office as an
Investigator in May of 1997 and has
been on the run since. He will be
the first to tell you while he enjoys
what he is doing very much,
sometimes it seems as if there
aren’t enough hours in the day.
Johnny comes from the old school
in that he is still continuing his
education, holding degrees in Social
Science, Electronics, and Criminal Justice. He is also
certified as a paralegal and professional investigator.
Return to Contents
Christina Adams, part-time Office Manager in the 6th District.
April Corum, Legal Secretary in the 6th District.
Dan Korth, Assistant Public Defender in the 8th District.
Laura Marples, Legal Secretary in the 8th District.
Courtney Wilson, Investigator in the 11th District.
Shelley Gardner, Assistant Public Defender in the 15th District.
Tracey Voight, Mitigation Specialist in the 19th District.
Linda Wilson, part-time Legal Secretary in the 29th District.
Best Wishes to:
Dana Largent, Legal Secretary in the 1st District.
Jessica Chandler, Legal Secretary in the 6th District.
John Beaty, Assistant Public Defender in the 8th District.
Dan Korth, Assistant Public Defender in the 8th District.
Danielle Mills, Legal Secretary in the 8th District.
Jeremy Moser, Investigator in the 11th District.
Denise Ray, Legal Secretary in the 11th District.
Thomas Smith, Assistant Public Defender in the 18th District.
Ann Kroeger, Assistant Public Defender in the 19th District.
Vanessa King, Assistant Public Defender in the 26th District.
Cara Bertholomey, Legal Secretary in the 29th District.
Tammy Bradley, Legal Secretary in the Capital Division.
Kelly Gleason, Deputy Counsel in the Capital Division.
Dave Keefe, Chief of the Capital Division.
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In Gainesville, Fla., in August, accused drug dealer
Marcus Isom, 26, was convicted of ordering the murder
of Lemuel Larkin, who he believed stole from him.
According to testimony, Isom had consulted both
Georgia spiritual adviser "The Root Man" and "Miss
Cleo's" psychic hotline to find out who scammed him,
and both gave descriptions that led Isom to finger
Larkin. Investigators believe a man named Truth Miller
was the hit man, killing Larkin as he emerged from
Boobie's Bar in Archer, Fla.
Inmate David Ivy escaped through a hole in the fence at
the Shelby County (Tenn.) jail in May; officials
discovered that Ivy had escaped through the same hole
in 1991 and that the hole had not since been repaired.
In Cleveland, Betty Horton, 44 (and with no criminal
record), was picked up in July, for the third time in
eight months when they were really looking for Bettie
Horton, 37; an official said he couldn't guarantee it
wouldn't happen again.
In Seymour, Conn., a federal judge ruled against
lawyer Milo J. Altschuler, who claimed that his across-
the-knee, bare-buttocks spanking of client Leslie
Cerrato in his office was a legitimate trial-preparation
tactic (and thus that when she recovered a $250,000
settlement against him for the assault, Altschuler's
insurance company should pay it, as "malpractice").
Altschuler claimed that he thought the spanking would
improve Cerrato's credibility as a witness.
Child-sex-assaulter Kevin R. Hill, 36, filed a lawsuit
from prison against St. Clair County, Ill., in July,
demanding $100,000 because county officials caused him
and his family "grave personal and professional financial
devastation" when they charged him with the crime
(even though he ultimately pleaded guilty).
In June, inmate Kenneth Bianchi (the "Hillside
Strangler" serial-killer in California and Washington in
the 1970s), filed a lawsuit against Whatcom County,
Wash., demanding up to $100 a day for the 23 years
he has been imprisoned (for lost wages and emotional
distress); Bianchi said prosecutors caused him to
misjudge the strength of the case against him at trial,
and that's why he pleaded guilty to the murders of
Matthew E. Hooker, 30, filed a $200 million defamation
lawsuit in May in Los Angeles against actor Nicole
Kidman because she (and many other persons and media
outlets named in the lawsuit) refer to Hooker as
Kidman's "stalker" (even though a judge has entered a
three-year stay-away order against Hooker because of
numerous past harassments of Kidman). Hooker told
reporters that the "stalker" label was likely to hurt his
2004 presidential campaign.
Ex-lawyer Mitchell Rothken, 44, is serving a three-to-
nine-year prison sentence in New York in connection with
an embezzlement scheme, which he told a judge in
February he concocted to win the favor of stripper
Kimberly Barbieri, with whom he was utterly obsessed.
In an August interview in New York magazine, Rothken
said that although his secret, four-year bond with the
dancer ultimately cost him his 21-year marriage, his
three sons, his real-estate law practice, and more than
$1 million in gifts, Barbieri and he never actually
consummated the relationship.
In Southfield , Michigan, Tarajee Maynor, age 25 was
arrested after her two kids died while she kept a
three-hour hair salon appointment.
In June, Harvey, Ill., Baptist minister Rev. Roland Gray
was sentenced to 4 1/2 years in prison for faking at
least 14 auto accidents to defraud insurance companies
of more than $450,000; "I consider myself a man of
God," Gray told the judge, "(but) I got a little
Greeting the arrival of singer R. Kelly ("I Believe I Can
Fly") at the courthouse in Chicago on Aug. 7 for a
hearing on the 21 counts of child pornography he has
been charged with were 40 children, yelling support and
wearing T-shirts reading "Not Guilty," "Case Dismissed,"
and "Kill his name/Kill the fame/That's the game,"
among other messages. Said organizer Janet Edmond,
"(People) need to stop looking at all the negative stuff
and start looking at the good things R. Kelly is doing.
(K)ids need something to reach for. They have no role
John Patrick Bradley, 56, and three women were
arrested in March in Los Angeles for an ambitious
scheme in which recent U.S. immigrants were charged
as much as $25,000 for the promise of becoming
citizens. The ruse involved an almost full-scale replica
of the official immigration service process, including
elaborate materials and tests and a swearing-in
ceremony, with Bradley dressed as a judge, leading
everyone in the Pledge of Allegiance.
In New York City, Angel Martinez, 36, was only
recently released after serving 17 years in prison for a
murder he did not commit, 13 of those years after
another man had confessed; Martinez's lawyer had
never told him about the confession.
Eight-year fugitive John Thomas Boston, 39, who mailed
a note in March to Louisville, Ky., police just as he
crossed into Canada, informing them that they would
never catch him, was arrested in April in Dallas and
charged not only as a fugitive but for the first time
with three 1994 rapes. Boston's main error (other than
returning to the U.S. from Canada) was to lick the
envelope containing the taunting note; his DNA allegedly
matched evidence from the rapes.
Serial killer Coral Eugene Watts, 52, thought to have
been put away for life by a Houston judge in 1982, is
now scheduled to be released in 2006 because of a
drafting error in his plea bargain. Because of a paucity
of evidence about the 13 murders to which Watts
confessed, he was allowed to plead to "aggravated"
attempted murder and be sentenced to 60 years without
parole, but the prosecutor neglected to specify any
"aggravated"-type weapon, and an appeals court ruled
that only "aggravated" crimes justify no parole;
consequently, Watts has been amassing "good time"
requiring early release.
A judge released accused murderer Corey Pernell McNeil
in Newport News, Va., in July because a clerk forgot to
sign the victim's death certificate; by the time the
error was corrected, McNeil could not be found.
In June, Russell Adam Pelletier, 24, was convicted of
murder in Louisa, Va., despite arguing that a supposed
confession captured by undercover wire was just
freestyle verse by Pelletier, who admits he writes
misogynistic and violent rap music.
In New York, among recent denials of child sex-abuse:
Choir official Frank Jones, 51, said he was merely
massaging a 13-year-old boy with slippery sports cream
and that "My hand slipped" onto a "private area".
Teacher Carl D. Reid, 38, said he had no idea that
several female elementary school students of his had
crawled under his desk, and that before he knew it,
they had put their hands underneath his gym shorts and
Claudia Huntey, 38, who has suffered from Tourette's
syndrome since age 9, filed a federal lawsuit in Denver
in April after she was evicted from Torrey Pines
apartment complex because her frequent screams during
the night disturbed her neighbors. Huntey, whose most
frequent symptom is to yell "Fire!" at the top of her
lungs, claimed that since those are "involuntary
vocalizations" protected under federal disability law, her
neighbors would just have to get used to them.
Police in Edwardsville, Pa., on the lookout for a stolen
white car, arrested two men who were busily painting
the stolen white car black in the middle of a shopping
center parking lot on the town's main street.
In Martinsburg, W.Va., following a bank robbery, law
enforcement saturated the area looking for the getaway
vehicle, a red Jeep Wrangler; the next day, the vehicle
was spotted, with a "For Sale" sign on it, in the front
yard of a 39-year-old local woman, who police say then
readily confessed to the crime.
In April in Fayetteville, N.C., Shirley Brigman Turriff,
63, was sentenced to six years in prison for embezzling
$1.1 million from the law firm for which she had been
office manager (Anderson Johnson), which had hired her
shortly after she had been convicted for embezzling
from her first employer. Anderson Johnson was fully
aware that she was an embezzler when it hired her
because one of its lawyers had defended her in that
In Carrollton, AL, a 26-year-old woman was charged
with attempted murder for a vicious knife attack on her
25-year-old boyfriend that resulted in the nearly total
mutilation of his buttocks and rectum.
Leslie Collard, 42, arrested in May in Providence, R.I.,
for offering an undercover officer a tandem prostitution
deal that included her 19-year-old daughter, was asked
before the arrest if that meant the mother and
daughter would serve him at the same time. "No," she
said (according to the officer), "I have morals, because
she is my daughter. My daughter will do you first."
Donna Beck filed a wrongful death claim in April against
the Los Angeles Sheriff's Department following the
death of her son James Allen Beck in a barricade-
shootout last year (in which one deputy was killed). Beck
was prepared for a long stand-off, having stockpiled
weapons in his home (which caught fire from a tear gas
canister, resulting in Beck's death and the destruction
of his body).
In Dover, N.H., police, citing federal forfeiture law,
demanded that McIntosh College give up ownership of
one of its dormitories to the city because so much drug
activity was taking place inside.
Responding to his latest call-up for jury duty, habitual
San Antonio jury-slacker David Williamson sent the
federal judge a serious bill for $16,800 because the
court had advised Williamson to be ready to serve at
any time during August (21 business days, 8 hours a
day, at Williamson's consultant's rate of $100 an hour).
Williamson also wrote that if the judge did not pay by
Aug. 31, interest would accrue at 2 percent a month,
and that if the judge would like to discuss the matter,
he should call Williamson for an appointment. (A few
days later, Judge John H. Wood, Jr. ordered
Williamson to his courtroom for a contempt hearing.)
In El Paso, TX., an ex-cop awaiting trial for molesting
one stepdaughter dropped dead of an aneurysm in an X-
rated peep-show booth while in a compromising position
with his other stepdaughter.
☺ Twenty years ago, Scott Fahlman taught the 'Net
how to smile.
The IBM researcher has devoted his professional life to
artificial intelligence, the practice of teaching computers
how to think like humans.
Fahlman is known for his work with neural networks -- a
computer technique designed to mimic the human brain --
and helping develop Common Lisp, a computer language
that uses symbols instead of numbers, but the bearded
scientist is perhaps best known for a flash of inspiration
that helped to define Internet culture, in all of its
On Sept. 19, 1982, Fahlman typed :) in an online message.
The "smiley face" has since become a staple of online
communication, allowing 12-year-old girls and corporate
lawyers alike to punctuate their messages with a quick
symbol that says, "hey, I'm only joking."
Fahlman's innovation has since inspired countless other
"emoticons" like ;-) to signify a wink or :0 to show surprise.
"I've certainly spent 10 times as much time talking with
people about it as I did coming up with it in the first place,"
Fahlman said from his Pittsburgh home. "Hopefully my
actual research career will add up to more in the long run."
In the early 1980s, computer networks were rarely found
outside university science departments and secretive
But even then, discussions on primitive online "bulletin
boards" could quickly turn nasty when touchy users
misinterpreted remarks meant to be taken lightly.
After a particularly tangled joke about mercury
contamination in an elevator, users of a Carnegie Mellon
University bulletin board proposed a variety of markers for
humorous comments, including +, %, &, (#) and --/.
Fahlman suggested :), along with the admonition to "read it
sideways." Before long, other bulletin board users were
placing the smiley face in their messages. The practice
spread as Internet users found the symbol useful as a
rough approximation of a twinkle in the eye.
A FEW FROWNS
Predictably, the smiley face encountered a few frowns as
the online population exploded.
"Humans have managed to communicate with the written
word for thousands of years without strewing crudely
fashioned ideograms across their parchments. It is as if the
written word were a cutting-edge technology without useful
precedents," groused Neal Stephenson in the New Republic
Fahlman stands by his creation. "If Shakespeare were
tossing off a quick note complaining about the lack of
employee parking spaces near the Globe Theater, he might
have produced the same kind of sloppy prose that the rest
of us do," Fahlman writes on his Web site.
Yahoo!, Microsoft and America Online all incorporate
emoticons into their instant-messaging systems, while
telecom firms, jewelry makers and online retailers have filed
trademark applications for products and slogans that
incorporate Fahlman's smiley face.
But Fahlman has never seen a dime from his creation.
"If it cost people a nickel to use it, nobody would have used
it. This is my little gift to the world, for better or worse," he
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