Wednesday, February 26, 2014

Has Thomas Friedman Learned His Lesson?

Or at least, a lesson? That was then (if you're impatient, skip ahead to 2:24):

This is now:
Today, Obama’s critics say he must do “something” about Syria. I get it. Chaos there can come around to bite us. If there is a policy that would fix Syria, or even just stop the killing there, in a way that was self-sustaining, at a cost we could tolerate and not detract from all the things we need to do at home to secure our own future, I’m for it.

But we should have learned some lessons from our recent experience in the Middle East: First, how little we understand about the social and political complexities of the countries there; second, that we can — at considerable cost — stop bad things from happening in these countries but cannot, by ourselves, make good things happen; and third, that when we try to make good things happen we run the risk of assuming the responsibility for solving their problems, a responsibility that truly belongs to them.
Friedman is often cited as an expert on the Middle East, but were that the case it should have been pretty obvious to him that his thesis for a war as a demonstration of "suck on this"-type resolve was deeply flawed. He may be a slow learner, but given his prominence it's very good that he's learning.

Things That Never Happened

Kathleen Parker prevaricates,
When Jindal ran for governor in 2007, opponents frequently noted that his first name is Piyush. Democrats mentioned “Piyush Bobby Jindal” as often as Republicans brought up “Barack Hussein Obama” the following year.
But hey, at least she's not calling President Obama a half-blooded girlie-man, this time around.

Inadequate Funding of Defense Experts

The New York Times has taken note of a 28-year-old case in which the defense, given only $1,000 to hire an expert witness, hired an inadequate expert.
Anyone who has hired a lawyer knows $1,000 doesn’t buy you much. But when Anthony Ray Hinton was on trial for his life in Alabama, that’s the total amount his court-appointed attorney thought he could spend on a key expert witness in firearms evidence. All he could find for that price was an elderly one-eyed man with a degree in civil engineering who was laughed out of court for his inability to answer basic questions.
If you look at the Supreme Court's decision, the reason that additional proceedings have been ordered in the defendant's case is much less the amount of money that was authorized, and much more the fact that the defense lawyer did not know he could seek more money and thus made no attempt to do so:
Operating under the mistaken belief that he could pay no more than $1,000, Hinton’s attorney went looking for an expert witness. According to his postconviction testimony, he made an extensive search for a well-regarded expert, but found only one person who was willing to take the case for the pay he could offer: Andrew Payne. Hinton’s attorney “testified that Payne did not have the expertise he thought he needed and that he did not consider Payne’s testimony to be effective.”...

Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.”
This was a capital trial, and the court was not trying to be stingy, authorizing the largest amount it believed was available under state law. But when I read people who have never been involved in indigent expense scoffing at the grant of $1,000 for an expert witness, I have some amazement at the gulf of understanding between what people believe should occur in criminal cases and what typically happens. Note, the attorney fee granted for that capital trial was a mere $1,600. The only way you can represent a client in a capital case -- or any serious felony case -- for that type of compensation is by cutting a lot of corners or by accepting that you'll be investing perhaps hundreds of hours in a case for which you'll ultimately be paid significantly less than minimum wage.

I recall a case I worked in the mid-1990's, where the court granted $1,500 for expert witness fees in an arson case. I commented to another lawyer that the amount was inadequate. He responded, "That's the most I've ever heard of a judge in this county authorizing for an expert." The situation can be at least as dire for defendants who retain counsel, where they will typically have to come up with additional money out-of-pocket to retain an expert. When it comes to expert testimony, between police investigators, crime lab technicians and their own funding for private experts, prosecutors have an enormous advantage.

Fortunately for my client, I found a fire investigation firm that was both highly qualified and willing to take the case, Safety Engineering Laboratories, with testimony provided by Donald J. Hoffman and Michael Kroll, but the $1,500 didn't even cover their out-of-pocket expenses -- they did the right thing, but no expert can devote that type of time and energy into what amounts to pro bono work on a regular basis. I recall also seeing a case in which a lawyer, having been denied adequate funding for certain pretrial work, had taken his claim to the Court of Appeals which had found his claim reasonable and had ordered reimbursement -- but for the time his case and the subsequent appeal were pending, that was money out of the lawyer's own pocket.

Perhaps the environment has changed in recent years, with the increased use of scientific evidence, but given the relatively low funding available for appointed criminal defense work in much of the country I would be surprised if judges are now routinely granting adequate amounts of money for defense experts. The type of funding you see in high profile cases, covered by the media, are anything but the norm.