The Rule of Law


Tonight as the Director of the Equal Justice Initiative, Bryan Stevenson, was honored in the ceremonial courtroom of the Southern District of New York with the 2016 Rule of Law Award; a man was executed in Alabama, where EJI is based, despite efforts to obtain a stay of execution.

Christopher Brooks was only 20 at the time of the offense, a rape/murder of a woman, and his court appointed lawyer was only afforded a $1000.00 fee from the state in order to represent Mr. Brooks in this death penalty case. The jury never heard crucial mitigating information which could have informed their decision to grant life without parole rather than the death penalty.

Bryan Stevenson spoke of Mr. Brooks’ case tonight and the pain he felt at leaving Alabama in order to be with us in New York as we honored him at the same time that Mr. Brooks would face execution. It was a somber moment in an evening filled with hope and optimism for so many of us who look to people like Bryan Stevenson as leaders in the movement to restore humanity and racial justice to the criminal justice system and to society as a whole.

Every time the State kills a person in the name of ‘the law’, the rule of law is diminished; for law is nothing without humanity.

A Lost Limb And Found Humanity


Maggie Baumer was a recent graduate of my own alma mater, Cardozo Law, in 2012 when she made a mistake that altered her life irrevocably. At the time, the young lawyer was fiercely ridiculed for her tragic error and resulting devastating injury by the press. The story of how she returned home to her Manhattan apartment after a night out and attempted to gain entry to her locked apartment through a trash chute resulting in her arm being caught in a trash compactor was widely reported as the result of drunkenness and mocked by news media, including such blogs as ‘Above the Law’ which routinely hits below the belt with their stories. I was always surprised at the vitriol directed towards her and the lack of empathy by commentators towards her and her story.

I was so pleased then to come across this intelligent and thoughtful account from Ms. Baumer herself, written a year after her accident and demonstrating a spirit and character worthy not of condemnation but rather respect and admiration. To me, she personifies that wise adage that guides many defense attorneys: that we are not the worst thing we have done in our lives; or perhaps in her case, the most foolish thing we have done. She demonstrates what humanism in law means to me.

I am not religious but another wise, old adage that I also apply to my life and law practice has always struck me as imbued with humanist meaning regardless of personal beliefs…so, with that disclaimer, I will repeat it here, “There but for the grace of God, go I.” To be guided by that principle as a lawyer and a layperson means looking for the humanity in others always; even when it seems easy to judge them. Maggie Baumer was harshly criticized by people who chose to devalue her entire life and career as a young attorney based on what was ultimately a terrible accident; she had to deal with not only a lengthy physical and emotional recovery but the indignities of being judged by others in a very public and harsh forum. She emerged with grace and humanity and now works to serve others, not despite her mistake; but because of it.

We are not better for having not fallen; we are better for falling and getting back up.


Vengeance in Georgia


The state of Georgia executed a 66 year old Vietnam veteran by lethal injection tonight for the murder of a sheriff’s deputy in 1998. Andrew Brannan was a decorated veteran who suffered from PTSD and was not on his medication at the time of the tragic killing of the young deputy. There is a YouTube video, which I won’t share here, which shows the erratic and unexplained behavior by Brannan when he was pulled over by Kyle Dinkheller. Brannan had no prior criminal record prior to the incident where he is seen charging at Dinkheller for no reason, yelling that he is a Vietnam Vet and ultimately and tragically going to his truck where he retrieved a rifle and started shooting at Dinkheller.

At trial testimony was heard that Brannan was likely suffering from a flashback from his combat time during the incident. The video seems to support this theory even as it shares the harrowing events with audio of Dinkheller after he is shot the first time and Brannan coming back over to the police vehicle and shooting at Dinkheller again while the slain man screams. It is tragic and awful and the desire of Dinkheller’s family to see Brannan suffer or die for his actions is understandable. What I cannot understand is how our country can still carry out legal executions simply to fulfill the emotional drive for vengeance. The death penalty does not prevent crime; specifically not the types of crimes to which it is applied, it is irreversible in the case of wrongful conviction, and as in this case it is too often applied to those who despite their horrific crimes are victims themselves. Andrew Brannan was a veteran of one of our most horrific wars; he suffered from mental illness so acutely that he was deemed 100% disabled by it and now he is dead by the hand of the State of Georgia.

I can only seek solace in the words of a man I respect and admire tremendously, Professor Bryan Stevenson, a death penalty lawyer, a human of profound empathy and a teacher of the next generation of lawyers, “We are all broken by something. We have all hurt someone and been hurt. We all share the condition of brokenness even if our brokenness is not equivalent….The power of just mercy is that it belongs to the undeserving. It’s when mercy is least expected that it’s most potent-strong enough to break the cycle of victimization and victimhood, retribution and suffering.” Executing the most broken among us will never make us whole. As Professor Stevenson says, “There is no wholeness outside of our reciprocal humanity.” Despite what vengeance may fool some into believing, the world is not a better place tonight now that the government has killed Andrew Brannan. It is simply a more broken place.

Now more than ever…


Now more than ever, with the news that the Grand Jury has declined to vote an indictment against the cop who applied the deadly choke hold to Eric Garner during an attempted arrest for selling loose cigarettes; I urge everyone to purchase Professor Bryan Stevenson’s book “Just Mercy”. Read it. Read the section where Professor Stevenson, a Harvard Law graduate, talks about being stopped and having his car illegally searched in Atlanta when he was a young attorney fighting death penalty sentences and harmful prison conditions in the deep south.

To the officer who ordered him out of his car with gun drawn he was just another black man; someone to be suspected, violated and threatened. It didn’t matter that he was parked down the street from the apartment where he lived, that he was merely listening to the final strains of a favorite Sly and the Family Stone song in his car, or that he didn’t make any aggressive actions towards the police. If he didn’t have the wherewithal to assure the officer who was threatening to, “…blow his head off,” that it was okay over and over with his hands visibly raised above his head, we might not have the opportunity to read this moving and important story.

We all owe it to ourselves and our communities to hear Professor Stevenson’s words; to learn from his years of work as a death penalty lawyer and by doing so to cultivate empathy and understanding so that we may more powerfully address the issues of injustice within the criminal justice system which threatens all of our humanity.

Buy one copy for yourself (from a local/independent bookseller please! See link below.) and purchase another as a holiday gift for a friend, family member or loved one. Give it to those who are already ‘on our side’ and give it to those who scoff skeptically at cases like Garner’s and Michael Brown’s in Ferguson. If you are a lawyer doing defense work; give it to your favorite family member who asks of your chosen profession at holiday gatherings, “…so, how can you defend those people?” Give it to those who think if only black Americans would follow the law they wouldn’t be at such risk of death by the police. Let’s open some eyes and some hearts this holiday season. Let’s “beat the drum for justice”.

A Bittersweet Victory…


Gratified to have received a Not Guilty verdict in New York Supreme Court yesterday on a Burglary in the Second Degree indictment for a very young client. My heartfelt thanks go out to our jurors in a difficult case where both fingerprint evidence and an alleged statement were at issue. The celebration was bittersweet given the lack of resources for immediate assistance for those individuals released from custody after trial. Not everyone has a home and a family to go back to; we have to try to do better for the young people in our communities who are on their own and struggling to make it. Jail is not the answer; Prison is not the answer…we simply need more options!

“Nothing can make injustice just but mercy.” — Robert Frost

In Memoriam: Herman Wallace, October 13, 1941 – October 4, 2013


Herman Wallace photographed in September in the prison hospital. (c) Amnesty International

Herman Wallace, a 71 year old man who spent more than the last four decades in solitary confinement in a Louisiana prison, passed away yesterday as a free man. Wallace was one of the ‘Angola 3′, three prisoners who were convicted of the murder of a prison guard at the notorious Louisiana State Penitentiary known as ‘The Farm’ or Angola. Angola has over the years been forced to address some of the inhumane conditions and violence against prisoners who at one time were housed in former slave quarters. Angola itself sits on the site of a former slave era plantation; the very land itself is steeped in the misery and exploitation of humanity.

At the time of Wallace’s conviction he was a member of the Black Panther party which was in part seeking to end the culture of rape and violence within the prison. In those racially charged times it was his association with the Black Panthers which supporters say led to Wallace and two other men being framed for the murder of a guard. Wallace maintained his innocence until the end, an end which came in his sleep at the home of a long time friend, surrounded by family and friends.

He was released from prison October 1, 2013 after a federal judge overturned his indictment based on the exclusion of women from the grand jury panel which indicted him. The momentous news came after countless failed attempts to appeal his conviction and repeated denials of compassionate release even after being diagnosed with liver cancer in June of this year. Only after the cancer ravaged his body and his health continued to deteriorate was he finally moved from solitary to a prison hospital. Inside the hospital, simply having a door he could walk through was but a small restoration of humanity for a man who had existed inside a locked 6 foot by 9 foot cell for more than half his life.

Wallace’s humanity and character were shared with the world through a documentary, “Herman’s House” released last year which chronicled his friendship with artist Jackie Sumell who began writing to him in 2001 and eventually asked him what kind of home a man in a 6×9 cell dreams of. The resulting collaboration between Wallace and Sumell is heartrending in its portrayal of a human spirit that never loses its capacity to dream of something better despite the most bleak circumstances. Wallace is a kind, giving soul who even includes in his dream house requests a garden for guests to wander through and enjoy.

Upon hearing of Wallace’s long delayed release the words of Langston Hughes’ powerful poem, “A Dream Deferred” kept echoing through my mind. What had the delayed dream of freedom done to Wallace, did his soul wither and dry up, did it fester and rot his goodness? Or would it cause an eruption, an explosion of a soul finally breaking free of its shackles? We will never truly know what those years in solitary confinement did to Wallace but we know how he left this world. He kept his positive spirit until the very end, an indomitable figure of strength of character, of humanity in the face of the inhumane. I like to think that when Wallace let out his last breath his deferred dream ignited an explosion inside the hearts and minds of all those who followed his story. An explosion fueled by injustice, sorrow and pain. An explosion which clears a way for something better and drives forward a fight for humanity.

I believe Wallace would have wanted it that way.


An alleged bomber makes the cover of Rolling Stone; and that may not be a bad thing.


Is the Rolling Stone cover depicting the younger alleged Boston bombing offensive or though provoking? While hurt and shocked reactions from those who were there and who lost loved ones or were injured in the horrific blasts are easily understandable; the cover may still have a legitimate meaning and purpose.

The young man’s face looking out from the cover doesn’t look like a killer. He could be a young singer emulating his idol, Bob Dylan, he could be the shy but popular guy at your high school, he could be someone you know, your kids know and he could be you. He doesn’t fit the national image of what a terrorist looks like. He is not Arab, that stereotypical sign of terrorist proclivities which too many non-Arabs believe to be true. He is a teenager and not one who was living everyday on the frontlines of terror and violence as too many young people do in places like Palestine, Egypt, and Israel and around the world.

This young man lived here, in America. Going to an American high school, twittering teenage thoughts and jokes with the occasional reference to Islam, with friends who seemingly loved and accepted him. But he was also living here without his parents and he had been close to the front lines of violence and terror in his native home as a younger child. He may have been increasingly influenced by an older brother who seems to have become more extreme and militant in recent years. He may have been trying to find himself and his identity as so many young people struggle to do, trying to reconcile certain ideals with his actions and possibly the demands of religious obedience and loyalty to his homeland with his new casual American life.

If we don’t try to find out how this young man came to be in this situation, if we don’t try to look at what the face of terror really is and who is behind it; then we truly are doing a disservice to all those who were injured and who lost their lives in the Boston bombings. We cannot ignore the suspects and turn a blind eye to who they are for fear of giving them ‘fame’. What they are accused of doing has already, in an irreversible instant, made them infamous forever. Let us now try to learn something and look for where and how the humanity within these men seems to have become so twisted and desperate. We should do this so that we can do what all humanity strives to do in one way or another; to understand our fellow man and ultimately, to help him.

If alleged Boston bomber Dzhokhar Tsarnaev doesn’t hear his Miranda rights, does it matter?


America is America because of the freedoms we afford our citizens. We have democratically elected officials, we are allowed to disagree with our government and we speak freely and openly on social, political, and religious topics. When we are accused of crimes we have the right to an attorney, we have the right to remain silent even under interrogation and we are presumed innocent until proven guilty in a court of law before a Judge and a jury of our peers. We are not all direct descendants of the Mayflower pilgrims (who were the original immigrants to the indigenous peoples’ land) and many of us, our parents, our grandparents, came to America as immigrants from other countries seeking those very freedoms and adding to the diversity and unique nature of our country. For our government to take those rights away, to tear away the constitutional protections which should be afforded even to a nineteen year old citizen accused of a grisly act of domestic terrorism, shakes the bedrock of constitutional principles which makes our country truly great. We must care about the rights of accused bomber Dzhokhar Tsarnaev. If not for his sake; for ours.

For more on this topic see

Alleged child killer confesses over 30 years later, but is the investigation over?


With all the news surrounding an alleged confession in the tragic Etan Patz case; below is one of the best articles written about the realities of the recent break in the investigation and the difficulty and necessity of determining whether, in fact, this confession is a valid one. The case involved the most innocent of victims; a young boy who disappeared after being allowed to walk to school alone for the first time from his parent’s home in Soho, never to be seen again. Over 30 years later it has continued to rivet New Yorkers’ attention with the search for the young boy’s remains and the hunt for justice. Jim Dwyer, the journalist behind the piece, has always been one of my favorites for unbiased and honest coverage of the most scandalous and headline grabbing criminal cases. He is the co-author of the book ‘Actual Innocence’ along with Barry Scheck and Peter Neufeld which highlights some of the most compelling examples of wrongful convictions and their causes.

Supreme Court ‘Strip Search’ decision strikes a blow against personal privacy and constitutional rights of citizens arrested for minor offenses.


George Clooney was recently arrested along with his father for their part in a protest outside the Sudanese Government Embassy.  Clooney, when asked about the arrest was quoted as saying, “It’s actually a humiliating thing to be arrested no matter what you do, but I’m proud to be standing here with my father…”  The reality of an arrest is always humiliating.  The police have the power to physically prevent your movement; to handcuff you; to transport you away from a scene in a marked police vehicle with lights flashing and sirens screaming on the basis of their determination that you have broken the law. People oftentimes spend at least a night or two in jail prior to their release after such an arrest and regardless of the minimal nature of the offense charged; the experience takes a certain toll.

Now imagine that Mr. Clooney, after peacefully demonstrating was not only arrested; but was also subjected to a strip search by corrections officers and in front of other inmates prior to an entry into a pretrial detention center.  With today’s Supreme Court decision in Florence v. Board of Chosen Freeholders of the County of Burlington et al., any person, arrested for any reason, minor non-drug/ non-violent offense, civil offense, etc. could be subjected to a visual strip search prior to their entry into the general population of any jail/pre-trial detention center. So, what, exactly, is a visual strip search? According to a prison manual referenced in a 2003 New York Federal case and cited by the dissenting opinion in this case; a strip search is:

“‘a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina.’” Dodge v. County of Orange, 282 F. Supp. 2d 41 (SDNY 2003).

That description would make most of us cringe, but to the majority in today’s opinion, such searches are now warranted for every single person entering the general jail population even if they have been arrested for the most minor, non-drug/non-violent offense and without any showing of reasonable suspicion that such an intrusive search is necessary.

The petitioner, Albert Florence, (pictured above) was arrested on a warrant from a prior traffic stop which had resulted in a fine. The warrant was issued when he failed to appear for a hearing to enforce the unpaid portion of the fine. He did in fact pay the remaining balance of the fine after the warrant was issued; however, an error within the court system failed to erase the warrant.  So, years later, during a routine traffic stop, he was taken into custody based on the incorrectly outstanding warrant.  Although the matter was eventually cleared; Mr. Florence was subjected to two different visual strip searches at Burlington County Detention Center in New Jersey and Essex County Correctional Facility.

The majority opinion claims that the safety concerns of jails justify the intrusion on our civil rights; but as the dissent so rightly points out, they simply lack the actual empirical data to prove that these types of strip searches in all cases are necessary to maintain security and order in our nation’s jails. Justice Breyer writing for the dissent makes the point that metal detectors; pat-frisks; mandated showers with delousing agents (to protect inmate populations and officers from lice infestations); and searches of clothing are already being used to detect the potential contraband, illness, and tattoos signifying gang affiliation of a new inmate in the name of facility safety and security. The heightened level of intrusion of a visual strip search is not necessary to maintain those standards of facility security. The dissent cites a California case which showed that of 75,000 new inmates who were strip searched over a five year period, only 16 searches led to the discovery of contraband and in 13 of those searches the contraband found would also have been detected during a patdown or search of shoes/outer clothing. So contrary to Justice Kennedy’s apparent belief; the majority of citizens who are arrested and detained unexpectedly on minor matters are not secreting weapons and/or drugs inside their nether regions.

It is interesting that two of the examples that the majority uses to make the claim that even those arrested for non-violent offenses may be harboring some more deviant and dangerous tendencies are both emotional and fear-laden cases of terrorism on U.S. soil. The majority states that Timothy McVeigh; the Oklahoma City bomber, was stopped hours after the bombing for driving without a license plate and that one of the 9/11 terrorists received a speeding ticket just two days before the tragic and deadly events. Although what good a strip search would have done in either situation is unclear; the majority uses these two events to help create a justification for civil liberty intrusions based on fear rather than rationale. We have seen this time and time again when it comes to the woefully ineffective and overzealous Transportation Security Administration and today’s decision strikes yet another blow against constitutional rights in the name of fear and governmental overreaching.  Read the entire Supreme Court opinion here

For more information on Clooney’s arrest and why he was protesting the Sudanese Government watch his interview on PBS Newshour here.

This post was originally published on April 2, 2012 by the author, Jessica Horani, on and has been edited for content.

The Wrong Man


Eyewitness (mis)identification played a key role in my most recent trial where an innocent man was prosecuted and taken to trial on the assumption that an eyewitness correctly recognized him from a momentary interaction with the suspect. Hitchcock fans may recognize the chilling storyline of an innocent man wrongfully accused of a crime because he resembles the actual suspect from “The Wrong Man” starring Henry Fonda.

The film was actually based on the true story of Christopher Emmanuel  Balestrero, a Bass player at the Stork Club in 1950′s New York who was arrested for a series of robberies which he did not commit. Hitchcock’s retelling of the musician’s harrowing ordeal before the real perpetrator is ultimately caught is no less powerful today than when it  was first released. These stories keep unfortunately repeating themselves in our legal narratives with the most press going to those who are freed on DNA evidence after decades in custody. How many others languish in jails without the benefit of DNA to free them?  How many others have taken pleas out of fear and have to live with the consequences and shame of criminal convictions for crimes they did not commit? How many more will there be before our system institutes meaningful and effective reforms to address the most glaring causes of wrongful convictions?  Hollywood may continue to retell this tale, but by working together with legislators, prosecutors and police and ensuring that changes take place, we can make more of the stories fictional rather than factual.

This post was originally published June 3, 2011 by the author, Jessica Horani, on and has been edited for content.