Court Cloaked in Secrecy Shows a Hint of Openness

By ADAM LIPTAK

Published: September 10, 2007

The secret court that considers warrants for National Security Agency surveillance has for years met in a curious place — inside the Justice Department.

Consistent with that bit of symbolism, the court has approved almost all of the thousands of applications the department has presented to it over the years.

And the court, the Foreign Intelligence Surveillance Court, has deferred to the department in other settings, too. In January, when the Senate Judiciary Committee asked the court’s presiding judge for copies of orders it had issued concerning a surveillance program, she responded that she had no objection. Nonetheless, she wrote, “I would ask you to discuss the matter with the attorney general.”

In recent weeks, however, there have been signs of a new independence, perhaps prompted by the administration’s selective disclosures of aspects of the court’s orders.

Last month, for instance, the court issued a rare public order. It told the government to respond to a motion from the American Civil Liberties Union, which had asked the court to disclose parts of its decisions approving and limiting N.S.A. surveillance programs.

“This is an unprecedented request that warrants further briefing,” the presiding judge, Colleen Kollar-Kotelly wrote of the A.C.L.U.’s motion.

And Judge Kollar-Kotelly suspended the usual presumption of secrecy surrounding the court’s work, ordering the Justice Department to file its brief in public and to seek permission if it wanted to file anything under seal.

Lawyers for the A.C.L.U. said their request was a modest one. Large parts of the decisions may well be properly classified, they said. All they asked was that the court make an independent assessment of what may be disclosed.

The Justice Department, judging from the tone of the brief it filed Aug. 31, was taken aback by that suggestion. The A.C.L.U., the government said, “requests that this court second-guess the executive branch’s classification decision.” And the executive branch had decided, the brief continued, that “no part of any documents can be released without harming national security.”

A little sheepishly, the brief conceded that there had been exceptions. In January, for instance, Attorney General Alberto R. Gonzales described aspects of orders the court had issued that month.

But those disclosures, the brief said, were “in the interest of informing the public debate.” Perhaps coincidentally, they were also made just before a federal appeals court in Cincinnati was to hear arguments on the legality of the surveillance program.

The brief did not mention another set of even more detailed disclosures last month from Mike McConnell, the director of national intelligence. In an interview with The El Paso Times, Mr. McConnell seemed to do precisely what the Justice Department said the secret court may not. He disclosed in general terms the substance of the court’s decisions.

“So the second judge looked at the same data and said, ‘Well, wait a minute — I interpret the law, which is the FISA law, differently,’ ” Mr. McConnell said, according to a transcript of an interview on the newspaper’s Web site. He was referring to the Foreign Intelligence Surveillance Act, the 1978 law that established the secret court.

“And it came down to,” Mr. McConnell said of the second decision, “if it’s on a wire and in a foreign country, you have to have a warrant.”

It is one thing to argue that a judge’s mechanical application of a straightforward statute may be kept secret. It is another, lawyers for the A.C.L.U. say, for whole lines of sometimes conflicting precedent to be established in the dark.

“Having secret bodies of law is antithetical to our constitutional democracy,” said Melissa Goodman, a lawyer with the civil liberties group.

If the secret court is having doubts about the state of national security litigation, it is not alone.

Last week, judges on two ordinary federal courts expressed frustration and anxiety about the Bush administration’s approach.

On Wednesday, Judge Henry H. Kennedy Jr. of Federal District Court in Washington pressed the government for actual justifications in opposing a freedom of information suit seeking executive branch documents concerning the spying program. “Essentially saying ‘because we say so’ is an inadequate method,” Judge Kennedy wrote.

The next day, Judge Victor Marrero of Federal District Court in Manhattan struck down recent revisions to the USA Patriot Act, saying the deference the law required courts to give to the executive branch could amount to “the hijacking of constitutional values.”

In the case before the secret court, the A.C.L.U. will submit its response to the government’s brief on Friday, sending it to Room 6725 in the Justice Department. There is no word on whether the court will hear arguments or where that might happen.

But a spokesman for the Federal District Court in Washington said Friday that the secret court was in the midst of a relocation, out of the Justice Department. The secret court, with interesting timing that may signify a fresh approach, is moving to the courthouse.

Online: Documents and an archive of Adam Liptak’s articles and columns: nytimes.com
/adamliptak.

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With the Bench Cozied Up to the Bar, the Lawyers Can’t Lose

By ADAM LIPTAK

Published: August 27, 2007

Dennis G. Jacobs, the chief judge of the federal appeals court in New York, is a candid man, and in a speech last year he admitted that he and his colleagues had “a serious and secret bias.” Perhaps unthinkingly but quite consistently, he said, judges can be counted on to rule in favor of anything that protects and empowers lawyers.

Once you start thinking about it, the examples are everywhere. The lawyer-client privilege is more closely guarded than any other. It is easier to sue for medical malpractice than for legal malpractice. People who try to make a living helping people fill out straightforward forms are punished for the unauthorized practice of law.

But Judge Jacobs’s main point is a deeper one. Judges favor complexity and legalism over efficient solutions, and they have no appreciation for what economists call transaction costs. They are aided in this by lawyers who bill by the hour and like nothing more than tasks that take a lot of time and cost their clients a lot of money.

And there is, of course, the pleasure of power, particularly in cases involving the great issues of the day.

“Judges love these kinds of cases,” said Judge Jacobs, whose speech was published in The Fordham Law Review in May. “Public interest cases afford a judge more sway over public policy, enhance the judicial role, make judges more conspicuous and keep the law clerks happy.”

There are costs here, too, he said, including “the displacement of legislative and executive power” and “the subordination of other disciplines and professions.”

Yet, at the conclusion of a big public-policy case, the bar and bench rejoice. “We smugly congratulate ourselves,” Judge Jacobs said, “on expanding what we are pleased to call the rule of law.”

Benjamin H. Barton, a law professor at the University of Tennessee, examined some of the same issues in an article to be published next year in The Alabama Law Review titled “Do Judges Systematically Favor the Interests of the Legal Profession?”

That question mark notwithstanding, there is little doubt about where Professor Barton comes out.

He noted, for instance, that the legal profession is the only one that is completely self-regulated. “As a general rule,” Professor Barton wrote, “foxes make poor custodians of henhouses.”

Professor Barton explored a long list of examples, including the aftermath of the Supreme Court’s 1966 decision in Miranda v. Arizona. Miranda, as everyone with a television set knows, protected the right to remain silent and the right to a lawyer.

Over the years, though, courts have approved all sorts of police strategies that have eroded the right to remain silent. At the same time, Professor Barton wrote, the courts “chose to retain quite robust protections for accused who clearly expressed a desire for a lawyer.”

“The advantages to the legal profession are clear,” he added. “Whatever else an accused should know, she should know to request a lawyer first and foremost.”

And the cases keep coming.

This month, a New Jersey appeals court basically immunized lawyers from malicious prosecution suits in civil cases. Even lawyers who know their clients are pushing baseless claims solely to harass the other side are in the clear, the court said, unless the lawyers themselves have an improper motive.

Lester Brickman, who teaches legal ethics at Cardozo Law School, said the decision was just one instance of a broad phenomenon.

“The New Jersey courts have determined to protect the legal profession in a way that no other professions enjoy,” Professor Brickman said. “It’s regulation by lawyers for lawyers.”

Other professions look for elegant solutions. It is the rare engineer, software designer or plumber who chooses an elaborate fix when a simple one will do. The legal system, by contrast, insists on years of discovery, motion practice, hearings, trials and appeals that culminate in obscure rulings providing no guidance to the next litigant.

Last month, Judge Jacobs put his views into practice, dissenting from a decision in a tangled lawsuit about something a college newspaper published in 1997. The judges in the majority said important First Amendment principles were at stake, though they acknowledged that the case involved, at most, trivial sums of money.

Judge Jacobs’s dissent started with an unusual and not especially collegial disclaimer. He said he would not engage the arguments in the majority decision because “I have not read it.”

He was, he said, incredulous that “after years of litigation over $2, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.”

Writing with the kind of verve and sense of proportion entirely absent in most legal work, Judge Jacobs concluded that “this is not a case that should occupy the mind of a person who has anything consequential to do.”

Online: Documents and an archive of Adam Liptak’s articles and columns: nytimes.com /adamliptak.

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Greasing the Wheels on the Machinery of Death

By ADAM LIPTAK

Published: August 20, 2007

Death penalty cases can take a long time. Attorney General Alberto R. Gonzales wants to move things along.

Under an odd provision in last year’s reauthorization of the USA Patriot Act, the antiterrorism law, the attorney general is to take on a role that has for more than a decade belonged to the courts. After the Justice Department finishes writing the regulations, Mr. Gonzales will get the job of deciding whether states are providing condemned inmates with decent lawyers.

If the answer is yes, federal litigation in capital cases from those states — one of the main reasons for the lengthy appeals — will move to a fast track. Inmates will have to file habeas corpus challenges in six months rather than a year, and judges will be subject to strict deadlines. Appeals courts, for instance, will get 120 days to decide cases.

The trade-offs themselves are not new, and they are not necessarily a problem. If states can be encouraged to provide able defense lawyers to death row inmates in state proceedings, the federal courts may indeed have less to worry about.

But giving the power to decide when a fast track is warranted to an interested party like Mr. Gonzales is a curious way to run a justice system.

“A first-year law student could spot this conflict of interest a mile away,” said Elisabeth Semel, the director of the death penalty clinic at the University of California, Berkeley, and an opponent of the death penalty.

The move can only represent Congressional dissatisfaction with the decisions of the dozens of federal judges who have considered the adequacy of state systems to provide death row inmates with qualified defense teams over the last decade.

With one partial exception, they have found that the states are not yet where they should be. (The exception is Arizona, which a federal appeals court said had an adequate system on paper, at least as of 1998, though the court also ruled that the system had not been followed in the case before it.)

Opponents of the death penalty say Congress wants Mr. Gonzales to speak power to truth.

“After the courts had repeatedly found that the states were not providing competent defense representation in capital cases, Congress decided to solve the problem by the simple device of having the attorney general announce that it did not exist,” said Eric M. Freedman, a law professor at Hofstra who submitted testimony opposing a version of the new law for the American Bar Association in 2005.

“The attorney general can certify that the moon is made of green cheese, but that will neither make it so nor advance scientific knowledge,” Professor Freedman said. “The way to fix capital defense systems is not to deny that they need fixing, but rather to dedicate the needed resources to improving them.”

There is also some evidence that the law is a solution in search of a problem. In 1996, Congress imposed new time limits for filing capital cases and severely cut back on the kinds of issues the federal courts may consider. That law has had a significant impact, according to a study by Professor Freedman and David R. Dow, a law professor at the University of Houston, to be published next year by the Carolina Academic Press.

Before the 1996 law, death row inmates who filed habeas corpus petitions in federal court succeeded in overturning their convictions or death sentences about 40 percent of the time. According to the study, which looked at the years 2000 through 2006, that number has dropped to 12 percent. And it continues to fall.

“Federal courts now grant relief at a very small rate — far smaller than they would if they had the power to correct significant constitutional violations,” Professor Dow said, “but Congress has already deprived federal courts of their power to grant relief in most cases, even where the court believes that a significant error has occurred.”

These days, federal courts in the generally conservative Fourth Circuit, which covers Virginia and four other states, grant habeas petitions from death row inmates 2 percent of the time. In the more liberal Ninth Circuit, which covers California and eight other Western states, petitioners succeed 35 percent of the time.

The new law was pushed by legislators and prosecutors in Arizona and California, and it is an expression of their frustration with the Ninth Circuit. Elsewhere in the country, the machinery of death is humming along. In Virginia, for instance, people convicted of capital crimes are executed, on average, in seven years.

California, by contrast, seldom executes anyone. It has some 660 people on its death row and has executed 13 people since the United States Supreme Court reinstated capital punishment in 1976.

It is true that the capital justice system is not efficient. But efficiency cannot be the only goal. Accuracy must matter, too.

“The notion that the federal government wants to accelerate executions in the face of known mistakes, and wants to do so just as DNA is becoming available in more and more cases, is mind-boggling,” Professor Dow said. “It will increase the risk that some state executes a person we later find to be innocent.”

Online: Documents and an archive of Adam Liptak’s articles and columns: nytimes.com
/adamliptak.

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A Case So Shielded One Side Is in the Dark

By ADAM LIPTAK

Published: August 13, 2007

San Francisco

Jon B. Eisenberg knows something so secret that the government will let him write it down only in a secure facility.

Mr. Eisenberg is suing the government on behalf of clients who say they were illegally wiretapped by the National Security Agency. Yet he was required to write an appellate brief in a government office, supervised by a Justice Department security officer.

“We were forbidden from bringing pre-prepared notes into the room,” Mr. Eisenberg wrote in an e-mail message in late June, the day after he and his colleague Steven Goldberg spent three hours at the offices of the United States attorney here, preparing the secret brief.

“We were not allowed to keep a copy of what we wrote,” Mr. Eisenberg continued. “Our drafts were retained by the security officer for shredding. We were allowed to print out five copies of the final document: one for each judge, one for the government attorneys, and one to be retained” in a Justice Department safe. “Not even the judges’ staff attorneys will be permitted to see the document.”

The brief was filed in an appeal that will be heard here on Wednesday by a panel of three federal judges. At its center is a document that Mr. Eisenberg’s clients, an Islamic charity and two of its lawyers, say proves that their international communications were the subject of N.S.A. eavesdropping in the spring of 2004.

How the court here, the United States Court of Appeals for the Ninth Circuit, decides to deal with the document may determine whether the courts will ever rule on the legality of the wiretapping program.

Last month, the federal appeals court in Cincinnati dismissed a separate challenge to the wiretapping program, saying the plaintiffs there, including journalists and lawyers, could not prove they had actually been subject to surveillance and so could not show the kind of direct and concrete injury needed to establish what lawyers call standing. And a new law may have cut off the ability of other plaintiffs to sue over new surveillance.

But Mr. Eisenberg’s clients, al-Haramain Islamic Foundation and two of its lawyers, say they are in an exceptional position — thanks to government bungling.

In August 2004, the Treasury Department inadvertently gave them a copy of a classified document they say proves they were subject to wiretapping without court approval that spring. The F.B.I. soon retrieved it, but Mr. Eisenberg seems to have what the government refers to as a “mental photocopy.”

The argument this week involves two consolidated cases, one a class action against AT&T for what the plaintiffs say was its role in aiding the N.S.A., the other the Haramain case against the government.

The government’s fundamental argument in both cases is that national security concerns require dismissal, under the so-called state secrets privilege.

“Whether plaintiffs were subjected to surveillance is a state secret, and information tending to confirm or deny that fact is privileged,” government lawyers wrote in the public version of a brief filed last month in the Haramain case.

The government has made additional arguments as well — in classified briefs that Mr. Eisenberg and his colleagues have not been allowed to see.

A decision last month from another federal appeals court, in Washington, complicates the government’s position. That case involved claims of wiretapping in Myanmar in 1993, and the government sought to dismiss the suit on state secrets grounds.

The majority of the divided three-judge panel in Washington rejected what it called “a ‘heads I win, tails you lose’ approach to state secrets.”

The government’s theory, Judge Judith W. Rogers wrote for the majority, was that “whenever the plaintiff lacks information about his claim, the complaint must be dismissed” — as in the Cincinnati appeal. “But as soon as any information is acquired, it becomes too risky to introduce the evidence at trial” — as in the Haramain case.

“Neither the Supreme Court nor this court has adopted such an all-or-nothing approach,” Judge Rogers wrote, allowing part of that suit to proceed to trial.

As for Mr. Eisenberg, he is still scratching his head over what national security litigation has become.

“So, it’s like this,” he said in the e-mail message. “Yesterday, under the auspices and control of my litigation adversaries, at their offices and on their computer, I wrote a brief, of which I was not allowed to keep a copy, responding to arguments which I was not permitted to see, which will be met by a reply which I will not be permitted to see.”

“Yes,” he said, “I’d say that’s the most bizarre brief-writing experience of my career.”

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Putting the Government’s Words in the Doctor’s Mouth

By ADAM LIPTAK

Published: August 6, 2007

Carol Kling had an abortion in 1982, when she was 22. Testifying before a state legislative committee in South Dakota a couple of years ago, she said she would not have made that choice had she understood what she was doing.

“I did not realize that this fetus was a human being,” Ms. Kling said. “I felt it was just tissue. It was reinforced by our culture and by the clinic, but if I had known the truth I never would have had that abortion, and I’d have a daughter today.”

Ms. Kling said her abortion led her to drinking, depression, divorce and thoughts of suicide.

South Dakota, an innovator in abortion legislation, responded to testimony from Ms. Kling and others with a law that requires doctors there to tell women seeking abortions that they “will terminate the life of a whole, separate, unique, living human being.”

Ms. Kling seemed sincere about her confusion, though it is a little hard to accept the idea that she did not realize she was extinguishing a life or that the statement required by the law would have changed her mind.

Her testimony did fit neatly with a shift in the strategy of groups opposing abortion, which now justify efforts to limit or ban it by focusing not only on fetal life but also on the consequences for the women involved. The South Dakota law is called, tellingly, the Women’s Health and Human Life Protection Act of 2005.

That new rhetoric also figured in the Supreme Court’s April decision upholding the federal Partial-Birth Abortion Ban Act.

“The state has an interest in ensuring so grave a choice is well informed,” Justice Anthony M. Kennedy wrote for the five-justice majority.

“While we find no reliable data to measure the phenomenon,” he added, “it seems unexceptional to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.”

South Dakota’s solution — to mandate a set of disclosures — stops short of Justice Kennedy’s, which was to uphold a ban on an abortion procedure on the apparent theory that women cannot sort things out for themselves even with full information.

But there is, according to the federal courts that have so far blocked the South Dakota law, a constitutional flaw in how the state seeks to go about informing women of its views. The problem with the law, the courts said, is that it would hijack the doctor-patient relationship.

“The South Dakota statute,” Judge Karen E. Schreier of Federal District Court in Rapid City, S.D., wrote in issuing a preliminary injunction in 2005, “requires abortion doctors to enunciate the state’s viewpoint on an unsettled medical, philosophical, theological and scientific issue — that is, whether a fetus is a human being.”

A divided panel of the federal appeals court in St. Louis affirmed that decision last year, and the full appeals court will soon issue its decision. Judging from the oral argument in April, which is available on the court’s Web site, www.ca8.uscourts.gov, the court may well uphold the law.

South Dakota can, of course, say what it likes about abortion. “If the state wants to have a billboard, good for the state,” Timothy E. Branson, a Minneapolis lawyer who represents Planned Parenthood in its challenge to the law, said in an interview. Indeed, as lawyers for South Dakota said in a brief last year, the state publishes pamphlets and maintains a Web site setting out its position (www.state.sd.us/applications<240>/ph17abortioninfo).

Lawyers for the state say it is also entitled to make doctors into its publicity agents, though that is not how they put it.

“The point,” Lawrence E. Long, the state attorney general, wrote in a brief to the appeals court this spring, “is to require abortion providers to do a better job at what they should already be doing. That is, they should provide their patients with an accurate description of what they are aborting.”

The Supreme Court has said that doctors performing abortions may be forced to convey truthful information, and not only about medical issues. In 1992, the court upheld a Pennsylvania abortion law that required doctors to tell their patients that they might be eligible for child support if they decided to carry their pregnancies to term.

But other cases say the government cannot force anyone to disseminate ideological messages.

At the argument in April, John P. Guhin, a lawyer for the state, said doctors could paraphrase the required disclosures, which must be made in writing and signed by the patient on every page. He suggested that doctors could also express their disagreement, though the law requires them to certify that their patients have understood the disclosures. Should there be questions, doctors must answer them in writing. Failure to follow the procedures is a crime.

It is all awfully convoluted, which is probably the point. Had Ms. Kling been confronted with this disclosure process, she might well have decided to forgo her abortion. The question, though, is whether she would have done that because she had more information or because South Dakota succeeded in erecting a roadblock to a constitutional right.

Online: Related documents and an archive of Adam Liptak’s articles and columns: nytimes.com /adamliptak.

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After Flawed Executions, States Resort to Secrecy

By ADAM LIPTAK

Published: July 30, 2007

A Missouri doctor who had supervised more than 50 executions by lethal injection testified last year that he sometimes gave condemned inmates smaller doses of a sedative than the state’s protocol called for, explaining that he is dyslexic. “So it’s not unusual for me to make mistakes,” said the doctor, who was referred to in court papers as John Doe I.

The St. Louis Post-Dispatch identified him last July as Dr. Alan R. Doerhoff, revealing that he had been a magnet for malpractice suits arising from his day job as a surgeon and that two hospitals had revoked his privileges. In September, a federal judge barred Dr. Doerhoff from participating “in any manner, at any level, in the State of Missouri’s lethal injection process.”

Naturally, state lawmakers took action to address the issue.

A new law, signed this month by Gov. Matt Blunt, makes it unlawful to reveal “the identity of a current or former member of an execution team,” and it allows executioners to sue anyone who names them.

The governor explained that the law “will protect those Missourians who assist in fulfilling the state’s execution process.”

In the wake of several botched executions around the nation, often performed by poorly trained workers, you might think that we would want to know more, not less, about the government employees charged with delivering death on behalf of the state.

But corrections officials say that executioners will face harassment or worse if their identities are revealed, and that it is getting hard to attract medically trained people to administer lethal injections, in part because codes of medical ethics prohibit participation in executions.

The Missouri law addresses that point, too. It bars licensing boards from taking disciplinary actions against doctors or nurses who participate in executions.

The job of executioner has never been a high-status profession, of course, which accounts for the hoods that hangmen wore. But in the old days, as John D. Bessler wrote in a history of executions, killing condemned prisoners “called for no expertise apart from the ability to tie a knot.”

Lethal injections are different. They require executioners to insert catheters and to prepare three chemicals and inject them, in the right dosage and sequence, into intravenous lines. If the first chemical is ineffective as a sedative, the other two are torturous.

Yet a federal judge in California found last year that prison execution teams there had been poorly screened and included people who had been disciplined for smuggling drugs and who had post-traumatic stress disorder.

In a decision a week ago Sunday, a state court judge in Florida, Carven D. Angel, halted the execution of a death row inmate, saying, “We need to have people with competence and experience” to perform executions.

But, according to lethal injection procedures issued by Florida’s corrections department in May, there is only one job requirement to be an executioner there: you must be “a person 18 years or older who is selected by the warden to initiate the flow of lethal chemicals into the inmate.”

Those credentials struck Judge Angel as a little thin.

“I don’t think that any 18-year-old executioner,” the judge said from the bench, “with the pressure of a governor’s warrant behind him to carry out an execution, and with the pressure of the whole world — the press and the whole world — in front of him and looking at him is going to have enough experience and competence to stop an execution when it needs to be stopped.”

The concern is not hypothetical. In December, Florida executioners had to inject Angel N. Diaz, a convicted murderer, with a second dose of lethal chemicals after the first set did not do the trick. It took Mr. Diaz 34 minutes to die, and witnesses said he continued to move, squint and mouth words after the first dose hit.

It would be good to know more about who is performing executions in Florida. But that state’s law, like Missouri’s, forbids the disclosure of “information which identifies an executioner.” Quite a few states have similar laws, and a new Virginia law shielding executioners came into effect this month.

A forceful and persuasive article published in the Fordham Law Review in April argued for “a right to know who is hiding behind the hood.”

Its author, Ellyde Roko, who will start her third year of law school at Fordham in the fall, said in an interview that society’s interest in knowing how the death penalty is administered should outweigh the relatively flimsy interests supporting secrecy. “Not knowing who the executioners are takes away a huge check on the system,” she said.

A 2002 decision of the federal appeals court in San Francisco allowing the press and public to view executions in California supports Ms. Roko’s position.

“Even assuming an execution team member were identified by a witness, the notion of retaliation is pure speculation,” Judge Raymond C. Fisher wrote for a unanimous three-judge panel. “No execution team member has ever been threatened or harmed by an inmate or by anyone outside the prison because of his participation in an execution.”

Indeed, Judge Fisher continued, there are far more likely targets for retaliation, including the warden, the governor and the judges who rejected the condemned prisoner’s appeals. And all of their names are public.

Online: Documents and an archive of Adam Liptak’s articles and columns: nytimes.com/adamliptak.

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Study of Wrongful Convictions Raises Questions Beyond DNA

By ADAM LIPTAK

Published: July 23, 2007

In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.

When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.

But a new study does. Brandon L. Garrett, a law professor at the University of Virginia, has, for the first time, systematically examined the 200 cases, in which innocent people served an average of 12 years in prison. In each case, of course, the evidence used to convict them was at least flawed and often false — yet juries, trial judges and appellate courts failed to notice.

“A few types of unreliable trial evidence predictably supported wrongful convictions,” Professor Garrett concluded in his study, “Judging Innocence,” to be published in The Columbia Law Review in January.

The leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time. In a quarter of the cases, such testimony was the only direct evidence against the defendant.

Faulty forensic evidence was next, present in 55 percent of the cases. In some of those cases, courts put undue weight on evidence with limited value, as when a defendant’s blood type matched evidence from the crime scene. In others, prosecution experts exaggerated, made honest mistakes or committed outright fraud.

Most of the forensic evidence involved problems with the analysis of blood or semen. Forty-two cases featured expert testimony about hair, an area that is, Professor Garrett wrote, “notoriously unreliable.”

Informants testified against the defendants in 18 percent of the cases. (In three cases, it turned out they had an unusually powerful motive for their false testimony, as DNA evidence proved they were in fact guilty of the crime they had pinned on the defendant.)

There were false confessions in 16 percent of the cases, with two-thirds of those involving defendants who were juveniles, mentally retarded or both.

The 200 cases examined in the study are a distinctive subset of criminal cases. More than 90 percent of those exonerated by DNA were convicted of rape, or of both rape and murder, rape being the classic crime in which DNA can categorically prove innocence. For other crimes, there is often no biological evidence or, if there is, it can give only circumstantial hints about guilt or innocence.

Only 14 of those exonerated had been sentenced to death, 13 in rape-murders. There is a widespread misconception that DNA evidence has freed many inmates from death row, but it is actually a rare murder not involving rape in which biological evidence can provide categorical proof of innocence.

“DNA testing is available in fewer than 10 percent of violent crimes,” said Peter Neufeld, a founder of the Innocence Project at Cardozo Law School, which was instrumental in securing many exonerations. “But the same causes of wrongful convictions exist in cases with DNA evidence as in those cases that don’t.”

Professor Garrett’s study strongly suggests, then, that there are thousands of people serving long sentences for crimes they did not commit but who have no hope that DNA can clear them.

In a second forthcoming study of false convictions, this one focused on capital cases, two law professors — Samuel R. Gross of the University of Michigan and Barbara O’Brien of Michigan State — cautioned that “exonerations are highly unrepresentative of wrongful convictions in general.”

“The main thing we can safely conclude from exonerations is that there are many other false convictions that we have not discovered,” the Michigan study said. “In addition, a couple of strong demographic patterns appear to be reliable: black men accused of raping white women face a greater risk of false conviction than other rape defendants; and young suspects, those under 18, are at greater risk of false confession than other suspects.” Professor Garrett also found that exonerated convicts were more apt to be members of minority groups than was the prison population generally. For instance, 73 percent of the convicts cleared of rape charges were black or Hispanic, compared with 37 percent of all rape convicts.

The courts performed miserably in ferreting out the innocent. Thirty-one of the 200 exonerated prisoners, for instance, had appealed to the United States Supreme Court, but the justices refused to hear 30 of the cases. In the one case they did hear, they ruled against the inmate. Of course, appeals courts do not typically reconsider a jury’s factual findings, focusing instead on asserted procedural errors. Only 20 of the 200 even appealed on the ground that they were innocent; none of those claims were granted.

Perhaps the most troubling finding in Professor Garrett’s study was how reluctant the criminal justice system was to allow DNA testing in the first place. Prosecutors often opposed it, and 16 courts initially denied requests for testing.

Yet DNA evidence can do more than free the innocent. In many cases, it also identified the person who actually committed the crime.

In 40 percent of the cases handled by the Innocence Project, Mr. Neufeld said, DNA not only exonerated the innocent prisoner but also provided evidence that helped identify the person who committed the crime. “In every single one of those cases that perpetrator had committed violent crimes in the intervening years,” he said.

The era of DNA exonerations should be a finite one. These days, DNA testing is common on the front end of prosecutions, meaning that in a few years, the window that the 200 exonerations has opened on the justice system will close. We should look carefully through that window while we can.

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A Deal for the Public: If You Win, You Lose

By ADAM LIPTAK

Published: July 9, 2007
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When Oklahoma’s attorney general decided to sue about a dozen poultry companies, saying they had polluted the state’s waterways with chicken manure, he did not turn to lawyers on his staff or hire an outside law firm that would bill in the usual way, by the hour.

Instead, Attorney General W. A. Drew Edmondson went into business with three plaintiffs’ firms, agreeing to pay them as much as half of any money they recovered from the poultry companies.

In courts around the nation, in cases involving tobacco, lead paint and guns, state attorneys general have been outsourcing government power to private lawyers. Business groups hate the development, in part because they would rather not litigate against sophisticated plaintiffs’ lawyers on a level legal playing field.

But the business groups make broader points as well.

“When someone who is exercising the state’s power stands to gain from that, it violates due process,” said Jay T. Jorgensen, a lawyer for one of the chicken companies. “If you got pulled over by a cop and the cop made more money if he gave you a ticket and less if he didn’t, no one would think that was fair.”

There is also the question of whether hiring lawyers by promising them a percentage of what they win — on contingency, in the legal jargon — violates the separation of powers.

It is, after all, the legislature’s job to decide how to spend the state’s money. But an attorney general who promises a percentage of a recovery to a law firm is giving away state money without legislative approval.

“These arrangements rob the legislature of its right to control what is in the public interest,” said Paul M. Pohl, who represents defendants in lead paint suits in which governments are represented by lawyers who will be paid a percentage of what they win. “And the last people you want to have to decide what good public policy in your state is are contingency-fee lawyers from out of state. They’re like groups of locusts looking for the next wheat field.”

That perspective seems to be gaining traction. In May, President Bush issued an executive order forbidding contingency-fee arrangements at the federal level.

On the phone the other day, Mr. Edmondson said that how he paid his lawyers was a distraction from the serious issues in the suit. He controls every aspect of the litigation, he said, and personally argued important motions last month.

Mr. Edmondson added that the state could not afford to address the problem any other way. “We are over $10 million in litigation costs to date,” he said. “We simply lack the resources in the attorney general’s office to handle this.”

Asked if he had given any thought to hiring lawyers by the hour, he said, “With what?”

But Oklahoma is a government, with the power to tax and to borrow, and it does not have to turn to a private business to finance a lawsuit it says is in the public interest.

“We’re not going to ask the taxpayers of the state of Oklahoma to pay the lawyers,” Mr. Edmondson responded. “Our adversaries would like us to ask the legislature to choose between this litigation and increased funding for education, for mental health or for corrections.”

But that is not quite right. The taxpayers may pay either way.

Any recovery in the case belongs to the state’s taxpayers, but Mr. Edmondson has signed a contract to give a big chunk of it away.

It will not be clear whether he made a good deal or a bad one until the case is over. Paying lawyers by the hour can be awfully expensive, too, and that money is lost if the case goes south. But lawyers doing contingent-fee work for state governments have generally made out very well, particularly in tobacco cases.

Only a few courts have addressed the legality of government contingency-fee arrangements, and they have given mixed answers. In 1997, the Louisiana Supreme Court struck down a contingency-fee contract between the state’s attorney general and its lawyers in an environmental case. The next year, Maryland’s highest court upheld a similar contract in a tobacco suit.

The Rhode Island Supreme Court ducked the issue in a lead paint case last year, saying that it was not yet ripe to be decided but noting that it “implicates sensitive questions regarding the separation of powers in this state and the proper role of the constitutional office of the attorney general in relation to the exclusively legislative powers of the general assembly.”

In the chicken manure case, Judge Gregory K. Frizzell turned back a challenge to the contingent-fee contract last month, though he suggested that he might seek the views of the Oklahoma Supreme Court on the matter.

Not all state attorneys general have embraced contingent fees. In a speech to the American Bar Association, William H. Pryor Jr., who was then attorney general of Alabama, said they had an important role — in some cases. Contingent fees, he said, address “the need for poor persons with valid claims to have access to the legal system.”

“Governments do not have this problem,” Mr. Pryor, now a federal appeals court judge, continued. “The use of contingent-fee contracts allows governments to avoid the appropriation process and create the illusion that these lawsuits are being pursued at no cost to the taxpayers. These contracts also create the potential for outrageous windfalls or even outright corruption for political supporters of the officials who negotiated the contracts.”

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Editor’s Charge: His Lawyer Fell Short

By ADAM LIPTAK

Published: June 18, 2007

People like to gripe about their lawyers after their cases go south. Listen, for instance, to Norman Pearlstine, who presided over the debacle that ended with Time Inc.’s disclosure of the identity of a source to a special prosecutor two summers ago.

“One of America’s most ferocious defenders of the First Amendment, Floyd Abrams, gave us less good advice than we deserved,” Mr. Pearlstine, the former editor in chief of Time Inc., writes in a book to be published next week. “The more I reviewed Abrams’s work,” he adds, “the more I was disappointed with his performance.”

The book, “Off the Record,” is a vivid and engaging account of Time’s legal adventures in trying to protect a reporter, two of his sources, press freedom, the rule of law and a media conglomerate during the investigation by a special prosecutor, Patrick J. Fitzgerald, into the disclosure of the identity of Valerie Wilson, an undercover C.I.A. operative.

But it is the book’s sharp and sustained attacks on Mr. Abrams, a lion of the legal establishment, that have media lawyers buzzing.

Mr. Pearlstine, who has a law degree but never practiced, has worked hard to make sense of the sometimes conflicting legal, professional and ethical obligations of reporters who rely on confidential sources. His book is a valuable if often idiosyncratic contribution to the debate, one that will strike many journalists as pliant and impractical.

But veins of anger run through Mr. Pearlstine’s reflections. He is critical of some of Time Inc.’s journalists and staff lawyers, and he has special disdain for Mr. Abrams.

“In his early years as a First Amendment lawyer,” Mr. Pearlstine writes, “Abrams had a reputation for putting his clients’ interests — winning cases — ahead of making law. But now I thought he had become too much the constitutional lawyer, more focused on overturning Branzburg” v. Hayes, the 1972 Supreme Court decision that rejected First Amendment protection for confidential sources, “than on pragmatic ways in which we might fashion a compromise.”

(Here I should pause for some disclosures. I worked at Mr. Abrams’s firm for four years as a young lawyer, helping represent both Time and The New York Times in libel cases. Mr. Pearlstine mentions me four times in his book, always nicely. Mr. Abrams also represented The Times and Judith Miller, then a Times reporter, in the Fitzgerald investigation. Mr. Pearlstine is harshly critical of The Times’s public relations and litigation strategy.)

In an interview, Mr. Abrams expressed measured sympathy for Mr. Pearlstine, who found himself boxed in by terrible legal and financial pressures after the Supreme Court turned down the magazine’s last appeal. Mr. Pearlstine decided to comply with a court order calling for Time to turn over documents showing that its reporter, Matthew Cooper, had discussed Ms. Wilson with the White House aide Karl Rove.

“There’s no doubt that he got torn apart by some critics in the press who didn’t understand that the decision he had to make was not an easy one,” Mr. Abrams said of Mr. Pearlstine. “But easy or hard, his decision was at odds with 200 years of American journalistic history.”

The book, Mr. Abrams said, “combines a bevy of misleading statements mixed with gratuitous attacks that are obviously designed to take the journalistic searchlight off of him.”

Mr. Pearlstine retired from Time Inc. not long after his decision, which has come to overshadow a glittering journalistic career that included a decade as the top editor at The Wall Street Journal and another as Time Inc.’s editor in chief, where he oversaw more than 150 magazines. He is now with the Carlyle Group, a private equity firm.

Mr. Pearlstine’s broader point is correct. Time, like The Times, seems to have misplayed its hand. While it is impossible to know if the two news organizations and their reporters could have found a way to respond to Mr. Fitzgerald’s subpoenas short of a constitutional battle royale, it seems pretty clear that they could have tried harder to look for a compromise.

The Washington Post, faced with similar quandaries, managed to find ways to protect its reporters and cooperate with Mr. Fitzgerald.

Time’s fundamental misstep was its astonishing failure to approach Mr. Rove for permission to cooperate in the investigation even though Mr. Cooper, as he recently disclosed in Portfolio magazine, “desperately wanted to make a deal that could get us out of this mess.”

In an interview, Mr. Pearlstine said Mr. Abrams was “militant about the idea that there could be no contact with Rove or his lawyer.”

Mr. Abrams denies that. “It was everyone’s view, including Norman’s, that we shouldn’t call Rove,” Mr. Abrams said. “His book admits this.”

Mr. Cooper, in his article, mostly blamed Jim Kelly, then Time’s managing editor, for the magazine’s stance, though he added that Mr. Kelly acted “in concert with Pearlstine.”

Failure is often said to be an orphan, but it’s more complicated than that. Failure has a father — but it’s always the other guy. Mr. Pearlstine’s book reads like a paternity suit.

But the charge will not stick. Mr. Abrams was a lawyer with hardheaded and sophisticated clients, and he did what he was instructed to do.

There is excellent evidence, for instance, that Mr. Abrams could make pragmatic compromises. It was Mr. Abrams, after all, who negotiated a deal with a lawyer for Mr. Cooper’s other source, I. Lewis Libby Jr., that allowed Mr. Cooper to testify.

Mr. Pearlstine switched horses, moreover, as the case approached the Supreme Court, hiring Theodore B. Olson to take Mr. Abrams’s place. Nothing of consequence changed as a result.

“I knew that firing the nation’s most famous First Amendment lawyer just as we were beginning to prepare our Supreme Court petition,” Mr. Pearlstine writes, “might not go unnoticed among journalists and attorneys, many of whom worshipped Abrams.”

But it did mostly go unnoticed. Until now.

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Feeding Lawyers’ Souls, but Not Their Wallets

By ADAM LIPTAK

Published: May 28, 2007

Last month, the federal appeals court in New York gave the civil rights bar a collective heart attack.

It ruled that there are cases in which lawyers may be paid not in dollars but in what it called “non-monetary returns.” Those include, the court said, “experience, reputation or achievement of the attorneys’ own interests and agendas.”

That standard is new, and it has teeth. The lawyers involved had won a significant voting rights case, and they sought $445,000. They got $133,000.

In a flurry of legal filings last week, the lawyers, supported by two bar associations and 29 public interest organizations — including the Urban Justice Center, Public Citizen, the Natural Resources Defense Council and several affiliates of the American Civil Liberties Union — begged the court to reconsider.

“It really is a dangerous decision,” said David Udell, a lawyer with the Brennan Center for Justice at New York University, which represents the public interest groups. “What the court does is say that legal work is less valuable when the lawyers’ hearts are in it.”

The case itself was a challenge to the way Albany County in New York reapportioned its voting districts after the 2000 census. It was filed by two organizations representing minorities, including the local branch of the N.A.A.C.P., and three individuals.

In cases brought under the federal Voting Rights Act, the winning side is allowed to recover its legal fees from the losers. That is an exception to the conventional American practice of making each side bear its own legal fees, but it is not particularly unusual. Quite a few laws have similar fee-shifting provisions.

It is hard to be particularly sympathetic to the lawyers in the case, including several from Gibson, Dunn & Crutcher, a fancy corporate firm. They claimed, for instance, that an appeal involving a single, simple issue required almost 300 hours of work by eight lawyers and a $107,000 bill, to be paid by the taxpayers of Albany County.

That kind of money is in line with what big law firms charge their corporate clients. On the other hand, the request was preposterous.

A different panel of the appeals court, the United States Court of Appeals for the Second Circuit, was incredulous when it first saw the fee application in 2004.

“It is difficult to believe that a large amount of time was needed to prepare the brief’s description of the facts and procedural history; and the entire argument section of the brief on this single-issue appeal occupied barely six pages,” the appeals court said in an unsigned opinion. It sent the case back to the lower court with the strong suggestion that it slash the fee application.

It did — but for the usual reasons. Too many lawyers had billed too many hours at jaw-dropping hourly rates, two lower court judges found. The appeal, they said, was worth not $107,000 but $20,000.

So far so good. And in affirming those reductions last month, a three-judge panel of the court properly sought to bring some clarity and order to the question of how to treat fee applications, an area of the law that is without question a mess.

One of the judges on the panel was Sandra Day O’Connor, who has been sitting on quite a few appeals since her retirement from the Supreme Court last year. The solution she and the two other judges arrived at was at once eminently sensible and entirely impractical.

The court asked what a hypothetical, thrifty client would have paid a lawyer to litigate the case — that is, it asked what the market price in an arm’s-length transaction would have been. “Not incidentally,” Judge John M. Walker Jr. wrote for the panel, “a reasonable, paying client might consider whether a lawyer is willing to offer his services in whole or in part pro bono” — free — “or to promote the lawyer’s own reputational or societal goals.”

But there is a reason that client was hypothetical. The fee-shifting laws distort the marketplace in a way that makes it impossible to know what lawyers and clients would otherwise have done.

In an e-mail message, Mitchell A. Karlan, the Gibson, Dunn partner who argued the appeal, said he had taken the case without expecting to be paid — if he lost.

“My agreement with the plaintiffs,” Mr. Karlan continued, “was that I would apply for a fee on their behalf if I won, and that any fee the court awarded I and the other lawyers would keep.”

That is, for better or worse, how real-life pro bono works, and it is the system Congress had in mind in enacting fee-shifting statutes to encourage the private enforcement of civil rights laws.

Gibson, Dunn, which occasionally represents The New York Times Company, does not need the money. The average Gibson, Dunn partner makes $1.75 million a year, according to The American Lawyer.

But the new standard announced last month also applies to small firms and to advocacy groups, and it asks judges to inquire into lawyers’ motives in taking cases to decide how much their work was worth.

Lawyers who can prove they were in it only for the money will get paid in dollars. Others may have to make do with psychic income.

Online: Court documents and an archive of Adam Liptak’s articles and columns: nytimes.com/adamliptak.

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