Criminal Defense Law Blog – Kaplan Marino

I am the current and past chair of the Criminal Justice Section of WLALA.  I first served on the WLALA Board in 1997.  Back then, WLALA had a Government Lawyers Section, and a Criminal Defense Law Section.  I served as Chair of the Criminal Defense Law Section.

In the course of my first year on the Board, I repeatedly encountered an inherent philosophical conflict between being a criminal defense lawyer, which is what I am and always have been, and being the Chair of the WLALA Criminal Defense Law Section.  The conflict existed because as a women’s group, WLALA is committed to women’s rights.  Conversely, as the Criminal Defense Law Section, we as defense attorneys are committed to the protection of everyone’s rights, both men and women.  This philosophical conflict impacted the Criminal Defense Law Section’s co-sponsorship and support on criminal law-related amicus briefs, legislation, and other matters that were promulgated for the protection and benefit of women only.

From conflict often springs resolution, and in October 1998, the Criminal Justice Section was founded as a merger of both the Government Lawyers Section and the Criminal Defense Law Section. The newly formed Criminal Justice Section promised to bring  together prosecutors and defense attorneys to achieve joint goals in the criminal justice system. Although I was unaware of this at the time, this is model of the ABA Criminal Justice Section.  Assistant United States Attorney Patricia Donahue, and myself, were the first co-chairs.  Since then, many amazing prosecutors and defense attorneys have taken the helm.

That was 13 years ago, yet many of the women who were active in WLALA 13 years ago are still active today.  Kathleen McDowell, Ellen Pansky, Eileen Decker, Meg Lodise, Becky Walker James, Lucy-Ellen Chun, Angela Haskins, Susan Steinhauer, Holly Fujie, Linda Hatcher, Hon. Nicole Bershon, Helen Kim, Hon. Beverly Reid O’Connell, Jennifer Landau, and Hon. Judith Chirlin, and others, are just a few of the women I was privileged to serve with then, and now.

Since 1998, the Criminal Justice Section has had substantive programs and happy hour social gatherings geared toward education, raising awareness, and bringing together everyone who takes part in making our criminal justice system here in Los Angeles work.

In that tradition, later this year, the WLALA Criminal Justice section will present “Women in the Federal Criminal Justice System Who Get it Done!”  The program will showcase women in all aspects of federal criminal justice, women who “get it done” every day in today’s over scheduled and economically challenging times.

As I sit around the Board meetings of today, I reflect back to the Board meetings of 13 years ago.  Many of us were pregnant, me included.  We met in an unappealing room because we had no office or space of our own.  But we laughed and we bonded and today many of us are still friends.  Today’s meetings are as expected more polished, and certainly our location has improved greatly, but the camaraderie is just as warm and inviting as it was 13 years ago.  The biggest single change I see is just how much better, we as women, all really look!

On March 1, 2012, Nina Marino will be speaking at the 26th Annual National Institute on White Collar Crime in Miami, Fl on representing the individual.  Click here for the program.

In Brady v. Maryland (1963) 373 U.S. 83, the Supreme Court held that exculpatory evidence, or evidence favorable to an accused in a criminal case and, material to guilt or punishment, must be disclosed by the prosecution to the defense. Failure to disclose constitutes a violation of due process. In 1963, this decision theoretically sought to place an affirmative duty on the government to promote fairness in prosecution. However, the reality differs from the vision. Brady does not achieve the promise of fairness in prosecution. Conversely, Brady only serves to underscore the need for a better “open file” type of government discovery policy.

The limitations created by Brady on a prosecutor’s duty to disclose do little to advance justice. Consider this simple scenario. The prosecution has her investigator (a member of a law enforcement agency) interview potential witnesses in a criminal case. Half of those people approached refuse to speak with the investigator. The investigator writes a report summarizing the witness statements he obtained. The investigator does not disclose the identities of the witnesses who refused to speak with him. Under Brady, this would not be a violation. Neither “exculpatory” evidence nor evidence relating to guilt or punishment was obtained and therefore, under Brady, there exists no obligation to disclose the identities of potential witnesses who refused to provide information to the government. This is irrespective of the fact that perhaps, these same potential witnesses would be forthcoming with a defense investigator, perhaps they would be willing to speak with someone other than the government.

This scenario highlights how the government’s reliance on Brady actually serves to limit what is required to be produced to the defense. Where Brady sought to achieve fairness in discovery, the decision has instead achieved a practice of classifying information as “non Brady material,” followed by lawfully not disclosing it to the defense. But what of the ethical considerations?

In Formal Opinion 09-454 (July 8, 2009), the ABA Standing Committee on Ethics and Professional Responsibility issued an opinion on Rule 3.8(d) of the Model Rules of Professional Conduct. The opinion states that aside from Constitutional (due process), statutory (18 USC 3500, The Jencks Act), procedural (Federal Rules of Criminal Procedure Rules 16 and 26.3), or court imposed obligations (i.e. Brady), the prosecutor has an ethical obligation to disclose evidence and information favorable to the defense. The opinion explains the reasons that Rule 3.8 expands the prosecutorial Brady obligation, in which limitations dictated by the categorizing of material were removed. In other words, Rule 3.8 cautions the prosecutor to disclose all information, not just what is exculpatory. Rule 3.8(d) and the ABA Formal Opinion recognize the inherent dysfunction of the prosecutor determining what is “exculpatory” to the defense. It is a burden and responsibility a prosecutor should not bear. The Rule and the Opinion also recognize that a requirement limiting disclosure to only that information deemed “exculpatory” does not promote fairness nor justice.

The question of what constitutes Brady material and what is required for proper disclosure is a question that has been repeated countless times since the Supreme Court’s decision in 1963. It is a question prosecutor’s grappled with, and courts upon review.

The District Court in Alaska was faced with this question in the recent case of United States v. Kott, WL 148447, and (D. Alaska Jan. 13, 2010). In 2007 Peter Kott, former Alaska House Speaker, was indicted on charges of political corruption. At the trial, the government’s principal witnesses were Bill Allen and Rick Smith. Kott was convicted on Sept. 25, 2007 of conspiracy, Hobbs Act extortion, and federal programs bribery. He was sentenced to a six-year term of imprisonment. He appealed his sentence and conviction to the 9th Circuit.

Meanwhile, the same prosecution team for Kott moved on to the prosecution of Senator Ted Stevens. Stevens was convicted of political corruption, however, subsequent to his conviction it was discovered that the prosecution team had failed to disclose to the defense Brady materials relevant to a witness, Bill Allen. The government dismissed the charges against Stevens.

Just as Kott’s oral argument was to be heard before the 9th Circuit, the story broke of the prosecution’s failure to disclose Brady material relating to Bill Allen in the Steven’s case. Kott then fi led a Brady motion in the 9th Circuit seeking to require the government to disclose all evidence favorable to the accused. The motion made note of the Bill Allen connection with the Stevens case.

The government took the unusual step of asking the 9th Circuit to remand the case to the district court on the Brady issue. The government also withdrew its opposition to Kott’s request for bail pending appeal. The 9th Circuit granted Kott’s motion for bail, and after serving a year and a half in custody, Kott was released on bail pending appeal.

The 9th Circuit also remanded for the district court to determine if a Brady violation occurred, and if so, whether the violation prejudiced Kott and what the remedy should be. The government then produced thousands of pages of discovery to the defense, much of it relative to attacking the credibility of Allen and Smith. The government conceded its failure to provide these materials in a timely manner, but disputed that the documents contained Brady material. The government took this position irrespective of the fact that the materials contained prior inconsistent statements of government witnesses, evidence of government witness mental problems and substance abuse, and evidence of the witnesses’ criminal behavior relating to sexual relations with minors.
The district court held that the documents produced by the government were not material “because there is no reasonable probability that its timely production and use by the defense would have resulted in different verdicts”. The court concluded that the government did breach its obligation, but that the breach wasn’t material and therefore, Kott wasn’t prejudiced.

Finding no Brady violation, the district court denied Kott’s motion to dismiss for failure to comply with Brady. The case was returned to the 9th Circuit for continuing appellate review. It remains pending now.

Kott is illustrative of the burden the government bears in determining “what is Brady” and later, how that same burden is passed on to the trial court and often an appellate court.

All of this monumental decision making by the government, followed by speculation in hindsight by a court, achieves only a deprivation of due process to the defense. No one, not a prosecutor, nor a court, possesses the divine ability to conclude what would or would not make a difference to a particular, defense attorney, defendant, or juror.

Brady creates a wall of supposition and individual judgment so high and dense that truth is obscured by the shadow. Recognizing the flaws in Brady, many states have adopted “open file” discovery policies. Florida surprisingly is in the lead, reported to have the most “open file” policy both for prosecutor and investigator files. North Carolina adopted an open file policy after the Duke Lacrosse debacle. This approach to discovery is gaining momentum.
As recently as Jan. 4, 2010, and likely in response to the Stevens case, Deputy Attorney General David Ogden issued a Memorandum for Department of Justice prosecutors on the subject of “Guidance for Prosecutors Regarding Criminal Discovery.” (This memorandum was relied on by Kott in his briefs.) While the memorandum does not address nor consider Model Rule 3.8 or the ABA opinion, it does state “Prosecutors are also encouraged to provide discovery broader and more comprehensive than the discovery obligations”.

Those prosecutors who elect to provide broader and more comprehensive discovery to the defense do so to assure that justice is served and the defense is treated fairly and provided all material that could possibly assist the defense. The government should embrace an open file policy because the government is charged with doing justice. As the late great Federal Judge Florence Marie Cooper always said “I do hold the government to a higher standard. ” The only way for the government to achieve a higher standard of integrity, is for its prosecutors to abandon the failed promise of Brady and embrace a broader definition of disclosure.

Your new client, Alex, is leaving his office one ordinary afternoon when he is approached in the parking lot by several Federal Marshals. The Marshals say they just want to ask him a few questions, but grill him about a foreign business venture he’d invested in some years before. It soon becomes clear to Alex that the Marshals are not there to ask a few questions. Only after his arrest does he discover that a foreign government has submitted a diplomatic note requesting his provisional arrest on money laundering and bribery charges which were filed in this foreign state. These documents were submitted to a Federal Magistrate who had issued an arrest warrant a few days before. To make matters considerably worse, it appears that Alex has already been tried and convicted in absentia in this foreign state and faces a lengthy prison sentence in a country with a less-than-stellar human rights record.

While your client was born in the country now seeking to extradite him, he left his native country after significant political upheaval forced most of his family to flee under political duress. He has lived in the United States for fifteen years. He has become a U.S. citizen, he has attended American universities and he has three children who are American citizens. Most of his extended family, including aunts, cousins, and brothers, all live in the United States. His last contact with the foreign state involved a business investment he made two years before. Suspiciously, a political upheaval has recently returned power to the political party from which Alex’s family had fled fifteen years previously. This regime also happens to be extremely hostile to foreign investment.

After being retained, you embark on a crash course in this somewhat obscure corner of the law. Alex’s family has a million questions. How long until he is brought before a judge? What evidence is there against him? Will there be a trial? As a long time criminal defense practitioner you can ordinarily answer these questions easily, but you soon find that the rules in extradition cases are altered significantly.

Criminal defense attorneys are hard wired with constitutional law, thus we instinctually believe that that the formal extradition of a United States citizen to a foreign nation would be imbedded with due process safeguards, intense scrutiny of evidence, heavy burdens of proof and lengthy hearings. Surely the United States would not ship off its own citizen to serve a jail sentence in another country without a full trial on the merits. However, you quickly ascertain that this is not the case. The ancient set of rules that applies to extraditions is weighted heavily in favor of returning your client forthwith to the requesting state. It is an almost medieval process governed by a web of decades-old bilateral and multilateral treaties obliging the United States to extradite various categories of persons charged with, or convicted of, specific crimes by the requesting country. This contractual creature is then inlaid with the United States’ own statutory extradition scheme. (18 U.S.C. 3181-3196). The same burden of proof required for a local police agency to put a suspect in the back of a patrol car is the only thing standing between your client and jail time abroad. The archaic case law teeters on decades-old factual inaccuracies and century old political opportunism. “The extradition laws of the United States essentially ceased developing at the turn of the [twentieth] century.” (Steven Lubet, “Extradition Reform: Executive Discretion and Judicial Participation in the Extradition of Political Terrorists”, 15 Cornell Int’l L. Rev. 247, 253-54 (1982). With doctrine seemingly frozen in time, a practitioner must put aside what they think they know about criminal defense and grapple with the inherent contradictions and idiosyncrasies of extradition law.

While an arrest warrant was issued by a United States Magistrate, Alex is not charged in a criminal case in United States Federal Court. The proceedings are deemed sui generis, a term synonymous with the word “peculiar”, meaning “of its own kind or class.” The “matter” is assigned a civil case number and usually a United States Magistrate is assigned for all purposes. This is not a criminal case and the terminology is reflective of the peculiar nature of the proceedings. Alex is not a true “defendant” as yet, and is referred to as “requested person” or more dramatically “the fugitive.” The caption can read “United States v. Alex” or simply “In the Matter of Extradition of Alex,” depending on the district rules. As this is not a criminal case, there is no need for a prosecutor in the traditional sense. The AUSA acts as an advisor to the requesting state, representing both its interest in extraditing your client, as well as the United States’ interests in upholding its treaty obligations. Also, the foreign state is not the prosecutor. It is referred to as the “requesting state” and the United States as the “requested state.”

The more you learn more about extradition law, the more it appears that the United States courts act only as a rubber stamp in Alex’s passport back to the requesting state. However, these cases are defensible. The following is a defense practitioner’s practical guide to defending against a request for extradition and keeping your client in this country.

Bail: The Special Circumstance Test

As in a majority of criminal cases, the most important step in mounting a proper defense is securing your client’s release on bond. The deck is already stacked against a requested person and attempting to defend him/her from inside a Metropolitan Detention Center is infinitely more daunting. That being said, you are facing an uphill battle. The Bail Reform Act does not apply to extradition proceedings, meaning that the court is not required to conduct a bail hearing within three days. 18 U.S.C. 3142(f)(2). There is a presumption against bail in an extradition case and only after demonstration of “special circumstances” can the court grant bail. Wright v. Henkel, 190 U.S. 40, (1903). Unfortunately, detention is the norm rather than the exception.

This “special circumstances” requirement creates a different standard for extradition cases than for federal criminal cases in which bail is granted unless the judicial officer determines that release will not reasonably assure the appearance of the defendant as required. 18 U.S.C. § 3146(a). To determine whether to grant bail, courts utilize a two-prong test. But ultimately there is no definitive test. Each case must be decided on an individual basis. In re Extradition of Mainero, 950 F. Supp. 290, 294 (S.D. CA 1996).

The first prong of this test requires the court to make the standard determination as to whether the person requesting bail would pose a danger to the community or become a flight risk if released. United States v. Leitner, 784 F. 2d. 159, 161 (2nd Cir. 1986). In making this assessment the Extradition Magistrate will consider whether the requested person fled the requesting country knowing that he had been charged with or convicted of the instant offense. The magistrate will consider whether or not the requested person has been living openly in the United States. The “fugitive” can present evidence that he/she was, at all relevant times, listed in the phone book, possessed a valid driver’s license, as well as family ties in the United States. Gouvei v. Vokes, 800 F. Supp. 241, 243 (E.D. Pa. 1992).

The second prong of the test is to demonstrate sufficient special circumstances which are necessary to overcome this presumption against bail. The Wright case, which establishes this presumption, was authored over 100 years ago when a transatlantic journey took three weeks and mail was still delivered in horse drawn carts; a pre-technology time when it was possible for a person released on bail to just disappear. Despite the advent of Google searches, Interpol, and electronic monitoring, the courts are still concerned with the possibility of diplomatic embarrassment. They use extreme caution in releasing foreign fugitives facing extradition for fear they might abscond. The courts reason that a person wanted by a foreign government is more likely to have international contacts, increasing their risk of flight. The United States still has an overriding national interest in complying with its treaty obligations in order to preserve their own ability to extradite US fugitives. United States v. Taitz, 130 F.R.D. 442, 444 (S.D. Cal 1990).

Despite this aged res judicata, federal courts have liberalized the definition of “special circumstances” in keeping with “modern concepts of fundamental fairness.” See e.g. United States v. Messina, 566 F. Supp. 740, 744 (E.D.N.Y 1983), West v. Janing, 449 F. Supp. 548, 552 (D. Neb. 1978). As cited in both Messina and Taitz, the State Department has noted that in international extradition cases “[i]n general it is the practice of the United States courts to allow persons provisionally arrested to remain at large on bond if there is no evidence that the person is about to flee.” 1977 Digest of United States Practice in International Law 156.

Courts have identified a litany of circumstances considered special enough to warrant departure from the Wright presumption. These include: the raising of substantial claims upon which the defendant has a high probability of success on the merits of the case, a serious deterioration of health during incarceration, unusual delay in the extradition process, reason to believe the underlying charges cannot be supported under the treaty provisions, impropriety of the charge or procedure, the combined factors of a lengthy extradition hearing, lack of prior record, the defendant not charged with a crime of violence, an inability to carry out religious rituals, the combined factors of financial assistance the defendant gave to his family, the provisional nature of the arrest, no prior criminal record, possible delay in the extradition proceedings, the fact that charges were dropped and then reinstated, the dedication of friends willing to post a home as security for defendant’s release, and the defendant’s need to consult with his attorney in a civil action upon which his whole fortune depends. (The Matter of Requested Extradition of Kirby, 106 F.3d 855 (9th Cir. 1996); United States v. Salerno, 878 F.2d 317 (9th Cir. 1989); Matter of Extradition of Nacif-Borge, 829 F. Supp. 1210 (D. Nev. 1993); In re Extradition of Coe, 261 F. Supp.2d 1203(C.D. Cal., 2003); In re Extradition of Hamilton-Byre, 831 F. Supp 287, 290 (S.D.N.Y 1993); In Re Extradition of Molinar, 182 F. Supp. 2d 684, 689 (N.D. Ill. 2002); United States v. Williams, 611 F2d. 914, 915 (1st Cir. 1979). This list is by no means exhaustive. The term “special circumstances” means just about anything. In a recent unpublished decision where the district court judge reversed the magistrate’s denial of the bail, the court, on it’s own, determined one of the “special circumstances” to be “cultural assimilation”. There are no limitations on what constitutes “special circumstances”.

The court does not have to consider each circumstance in isolation, but can consider the totality of the circumstances in determining whether “special circumstances” exist in a certain case. Matter of Extradition of Nacif-Borge, 829 F. Supp. 1210, 1214.

The best way to secure release pending the extradition proceedings, is to throw in the proverbial kitchen sink. Every possible circumstance facing the client that could be construed as “special” must be explored and put into the motion for bail. This means that the attorney must prepare and investigate the case in its entirety at the outset of the case.

The first thing counsel must do is look very carefully at the treaty. Some treaties include time barring statutes of limitations. Some limit the types of crimes for which a person can be extradited. There are exceptions for so called “political offenses” and requirements that the offense charged be a crime in both the requested and requesting states. Some of the older treaties even include provisions that allow a requested state discretion in denying the extradition of its citizens. As a likelihood of success on the merits of the case can be considered at a bail hearing, each of the allowable defenses must be thoroughly explored and included in the bail motion.

Alas, this is no simple task. No box of discovery will be delivered from the requesting state, there will be no police reports, and no mountains of supporting documents. In all likelihood, counsel will receive only a copy of the treaty between the two countries, assorted foreign criminal codes and a complaint outlining the factual basis for the crime in broad strokes. There will be a jurisdictional recitation based on the treaty requirements between the U.S. and the requesting state, and an assertion that the accused resides in this district. With very little to go on, an attorney must do extensive independent investigation and research into the viability of defenses before the bail hearing.

The treaty may bar extradition if the statute of limitations has run out in either the requesting or requested states. Others limit the statute of limitation to that of the requested states. Often, due to the slow process of submitting applications to the Secretary of State, significant time may have elapsed since the acts charged in the complaint. It is essential to research the tolling laws of the requesting state.

An exception for political offenses is built into most treaties. There are two types of political offenses, so called “pure political” offenses such as sedition, treason and espionage and “relative” political offenses which encompass general crimes and offenses aimed either at accomplishing political change by violent means or at repressing violent political opposition. These exceptions were designed to protect those engaged in internal or domestic struggles over the form or composition of their own government, including, of course, struggles to displace an occupying power. Quinn v. Robinson, 783 F.2d 776, 810 (9th Cir.,1986); See In re Ezeta, 62 F. 972, 998 (N.D.Cal.1894). An extraditee must make a prima facie showing that he is entitled to the protection of the political offense exception. Ramos v. Diaz, 179 F. Supp at 463.

The exception for political offenses is “applicable only when a certain level of violence exists and when those engaged in that violence are seeking to accomplish a particular objective.” Koskotas v. Roche, 931 F.2d 169, 172 (1st Cir. 1991) citing Quinn, at 810. It is not enough to show that the reasons behind your client’s conduct were politically motivated or that the reason the foreign state is seeking extradition is politically driven. Ahmad v. Wigen, 910 F. 2d 1063, 1066 (1990); Eain v. Wilkes, 641 F 2d 504, 516 (1981).

While a given case may have political overtones or the request may have been politically motivated, in order to qualify for the political offense exception, a requested person must pass a two prong “incidence test” requiring a showing of:

(a) The existence of an uprising or other violent political disturbance in progress at the time the acts comprising the offense were committed; and (b) That those acts were incidental to, in the course of, or in furtherance of, that uprising or other violent political disturbance. Id.

The exception applies only to uprisings that attract sufficient adherents to create the requisite amount of turmoil, meaning that sporadic acts of violence committed by a small group of persons, even though targeted at the political structure of the requesting country, are insufficient.

Every judge and magistrate who has considered the question has found that the unrest in Northern Ireland during the 70′s and 80′s met the uprising or violent political uprising component. It is clear that courts have not required proof of the occurrence of an armed insurrection to satisfy this requirement. Therefore it would appear that proof of a significant level of organized guerilla activity is sufficient to satisfy the existence of the violent political disturbance requirement of the incident test. No court has considered the likelihood of the success of the uprising or other violent political disturbance as relevant to the issue of whether a person is entitled to protection under the exception.

The act must be casually or ideologically related to the uprising. Quinn, 783 F.2d at 807, 809. A rational nexus between the alleged crimes and the prevailing turmoil must be demonstrated. In searching for such a connection, the focus of inquiry is on the circumstances, and on the status of those harmed, and not on whether the acts merely were committed during the disorder. See Ornelas v. Ruiz, 161 U.S. 502, 511, 16 S.Ct. 689, 692, 40 L.Ed.2d 787 (1896), Matter of Extradition of Artukovic, 628 F.Supp. 1370, 1376 (C.D.Cal.,1986).

Which side of the conflict a defendant is on is not a decisive factor, only that the act was committed as part of the political disturbance or conflict between contesting political powers. In Alex’s case, however, it appears that while his prosecution and “trial” in the requesting state were politically motivated, his conduct would not fall under the protections of the political offense exception. While there was some political turmoil present in the requesting state, it would be a semantic stretch to classify this turmoil as “violent political uprising.” It would be an even greater stretch to categorize his investment as an act “in furtherance” of that uprising. However, as you will be afforded so few opportunities to explain to the magistrate the somewhat suspicious circumstances by which this prosecution arose, it is a good idea, irrespective, to thoroughly flesh out the political offense exception in the bail motion.

Some older treaties allow for extradition only for certain crimes. Under these treaties extradition is limited to the offenses specifically listed. Some also provide for the abettor of these crimes, others do not. Most modern treaties require only that the offense charged be a crime in both the requested and requesting nations. To satisfy the “dual criminality” requirement, neither the name of the offense nor the elements of the offense purportedly committed in a foreign country need to be identical to the elements of a similar offense in the United States. It is enough that the conduct involved is criminal in both countries. See Kelly v. Griffin, 241 U.S. 6, 14 (1916). The dual criminality provision in the applicable treaty is met if the particular acts charged are criminal in both jurisdictions. Messina v. United States, 728 F.2d 77, 79 (2d Cir.1984).

Alex has been charged with a crime that roughly translates to “secreting of funds” and “betrayal of government”, neither of which can be precisely located in any United States or State Penal Code. However, the conduct cited resembles the U.S. crimes of money laundering and bribery. It is the conduct that will be determinative, not the title of the offense.

Your strongest defense would of course be to attack the paltry probable cause offered by the requested state in the complaint. However, this can be a risky angle as the court’s ultimate duty at the hearing is to determine whether or not probable cause exists. It would be unfortunate if they were given the opportunity to do so at the bail hearing and it was not resolved in your client’s favor.

Securing Alex’s release on bail is the primary function of the bail proceedings. A true trial on the merits is not afforded at any point in the process. As discussed later, the minimal burden of proof required to certify a requested person for extradition usually does not require the AUSA to even present witnesses at the extradition hearing. Thus, the bail hearing provides an essential opportunity to put information about the case before the Extradition Magistrate. Because special circumstances justifying bail include a substantial likelihood of success on the merits, the bail hearing can be treated almost like a “pre-trial” hearing.

Discovery

The requesting state has 60 days after the accused is provisionally arrested to file a formal request for extradition. Counsel will receive an ornate document with stamps and seals from various foreign and U.S. State Department agents that have reviewed and certified the document. The document will flesh out some of the particulars of the offense by way of translated witness declarations, foreign criminal complaints, arrest warrants and sentencing documents. Each treaty recites the documents that must be submitted in support of a request for extradition. Counsel must carefully examine the applicable treaty to ensure that each of those items has been provided. Regardless, these documents will provide very little information necessary to mount any one of the particular defenses outlined in the bail motion.

A formal discovery request or a motion to compel discovery can be made on the AUSA. Although there is no explicit statutory basis for ordering discovery in extradition hearings, the Extradition Magistrate has the right, under the court’s “inherent power,” to order such discovery procedures “as law and justice require.” Merino v. United States Marshal, 326 F.2d 5, 12-13 (9th Cir.1963),see First National City Bank of New York v. Aristeguieta, 287 F.2d 219, 226 (2d Cir.1960), vacated as moot, 375 U.S. 49, 84 S.Ct. 144, 11 L.Ed.2d 106 (1963), Jhirad v. Ferrandina, 536 F.2d 478, 484 (2nd Cir. 1976). However this request will be limited to the documents in the possession and control of the United States. Fed. R. Crim. P. 16(a)(1)(E). Whether Brady applies to extradition cases has not been decided. Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir.1993); see also In re Extradition of Drayer, 190 F.3d 410, 415 (6th Cir.1999)

This method could be useful in obtaining documents from U.S. government agencies such as the State Department. Often a requesting state must make several applications via diplomatic note before the State Department will pass the information on to the District Court. It can be helpful to discovery if there have been similar, previous applications. If so, it is important to note any reasons for denial of those applications.

Unfortunately, the documents and testimony most necessary to mount a defense will most likely be located in the requesting state. United States courts have no subpoena power in foreign countries. Mancusi v. Stubbs, 408 U.S. 204, 212-214 (1972). The only statutory method for obtaining evidence from abroad is through the transmittal of letters rogatory. As the somewhat antiquated name suggests, this process was developed to accommodate international discovery before the days of commercial air travel and email. Title 28 USC § 1781 and 1782 describe the transmittal of letters through the Department of State and through the district court. It is a slow, laborious process that must pass through several diplomatic channels. The State Department’s own advisory letter states, “Letters rogatory are a time consuming, cumbersome process and should not be utilized unless there are no other options.” The Secretary of State’s website also provides an explanation of the process and sample letters. It is, however, the only method for a court in the United States to communicate with the court of another country. This is based only on a comity between nations, meaning there is no legal obligation for the foreign court to respond. This method may be a defendant’s only chance to request additional documentation aside from the sparse package received with the formal request for discovery.
Some may be tempted to utilize Mutual Legal Assistance Treaties (MLATs) between the two nations for relief. Currently the United States has thirty-one of these treaties in force. These treaties legally obligate the signatories to offer the opportunity to summon witnesses and take depositions, issue warrants and serve process in a foreign state. The Office of International Affairs in the Criminal Division of the United States Department of Justice specializes in processing requests to and from the United States for extradition and mutual legal assistance. However, it is likely that the language of these treaties will not extend this assistance to an individual defendant. Courts have thus far also refused to extend relief under MLATs to defendants, finding that while the AUSA has the power to request such documentation from a signatory country, “having the authority to seek tapes or transcripts through a treaty is not the same thing as having the power to secure them.” U.S. v. Mejia, 448 F.3d 436, 444 (C.A.D.C., 2006)

A practitioner’s only option is usually to conduct his/her own investigation. It may be necessary to travel to the requesting country to interview potential witnesses and to locate critical documents. It will be useful, if not necessary, to retain local counsel in the requesting state to assist in whatever procedural mechanism is utilized to obtain discovery. Should you locate a witness, and should that witness be willing to travel but find costs to be prohibitive, some relief can be sought under 18 U.S.C. 3191.

Even if you are successful in procuring documentation or testimonial evidence via letters rogatory or through your own investigation, more difficulties arise as to how to properly submit this evidence to the court. 18 U.S.C. 3190 permits the demanding country to introduce properly authenticated and certified ex parte depositions, et cetera, gathered at home. The ex parte advantages of Section 3190 are not available to the defendant. The provisions for authenticating foreign documents must still be complied with. 18 U.S.C 3491; 18 U.S.C. 3503 (admission of foreign business records); 18 U.S.C. 3494 (authentication by consular officials). All of this being said, the Federal Rules of Evidence do not apply to Extradition Proceedings. Fed. R. Evid. 1101(d)(3); Fed. R. Crim. P. 1(a)(5).

The Extradition Hearing

The hearing is not a trial. It is presided over by the Extradition Magistrate. Like an actual trial, the burden of proof is on the government, but the similarities between the two proceedings end there. The government need only establish four things in order for your client to be “certified for extradition”.
First, it must be established that there is a valid extradition treaty in place between the requesting and requested states. The court will most often defer to the State Department to make this determination. Second, the government must show that the person in custody is, in fact, the same person charged in the requesting state. Most formal requests include photographs, fingerprints and other identifying documents. Third, it must be shown that the charged offense is both an extraditable offense under the applicable treaty and that the offense is a crime in both countries. Fourth, the requesting state must offer sufficient probable cause that the requested person has committed the offense.

The probable cause determination will usually be made based on the standards of law in the requested country, i.e. “whether the evidence is sufficient to cause a person of ordinary prudence and cause to conscientiously entertain a reasonable belief of the accused’s guilt.” Based on some variant treaty language, some courts have applied the probable cause standard of the state “where the person sought shall be found.” Regardless, in most cases it isn’t necessary for the AUSA to even call witnesses to meet this burden of proof. Often the mere admittance of the sworn affidavits delivered in the formal request for discovery into evidence will be sufficient.

On top of this minimal burden, the defense is also presented with significant roadblocks to presenting evidence to rebut the requesting states assertions.

Rule of Non-Contradiction

The aptly named “Rule of Non-Contradiction” prohibits a requested person from introducing evidence which contradicts the demanding country’s proof. This includes evidence to establish alibi, evidence of insanity, evidence that impeaches a witness’s testimony and even recantation evidence. (See generally, M. Cherif Bassiouni, magisterial treatise, “International Extradition: United States Law and Practice”, 654-789 (3d ed. 1996). The precise limitation varies from district to district. See e.g. In Re Atta, 706 F. Supp 1032, 1051 (E.D.N.Y)

The purpose behind such a maddeningly limiting rule is to accommodate the precise function of an extradition hearing. The opportunity to present contradictory evidence challenging probable cause would give a requested person the option of insisting upon a full hearing and trial of his case in the United States. “The result would be that the foreign government, though entitled by the terms of the treaty to the extradition of the accused for the purpose of a trial where the crime was committed, would be compelled to go into a full trial on the merits in a foreign country, under all the disadvantages of such a situation, and could not obtain extradition until after it had procured a conviction of the accused upon a full and substantial trial here. This would be in plain contravention of the intent and meaning of the extradition treaties.” In re Wadge, 15 F. 864, 866 (S.D.N.Y.1883).

Some courts have carved out a hairline distinction between “contradictory” and “explanatory” evidence, allowing a requested person some leeway in presenting evidence to negate probable cause. In re. Sindona, 450 F Supp. 672, 685 (S.D.N.Y 1978). The extent to which explanatory evidence is to be received is largely at the discretion of the judge ruling on the extradition request. Collins v. Loisel, 259 U.S. 309, 315-17, 42 S.Ct. 469, 66 L.Ed. 956 (1922); Charlton v. Kelly, 229 U.S. 447, 461 (1913);

Rule of Non-Inquiry

On the other hand, judges will not inquire into the fairness of the proceedings that await the accused in the requesting country. Following what is known as the “Rule of Non-Inquiry” a court is not permitted to consider the requesting states, regardless of the lack of substantial due process or human rights conditions a person will face in the requesting state.

While the United States holds fast to the general rule of “non-inquiry” into the treatment a requested person might receive in the requesting state, the court in Gallina v. Fraizer “confess[ed] some disquiet” over this rule and suggested reconsideration where defendants faced procedures “sufficiently antipathetic to a federal court’s sense of decency.” Gallina v. Fraizer 278 F.2d. 77, 78 (2nd Cir. 1960). The 2nd Circuit has inquired into the due process protections of requested persons, observing that “minimal safeguards to ensure a fair trial in the foreign tribunals were provided” concluding that “although the Constitution cannot limit the power of a foreign sovereign to prescribe procedures for the trial and punishment of crimes committed within its territory, it does govern the manner in which the United States may join the effort.” Rosado v. Civiletti, 621 F. 2d 1179, 1195 (2nd Cir).

With all of these limiting “non-rules”, the extradition hearing begins to feel like a non-hearing. Even if a requested person was able to introduce “explanatory” evidence, American courts have no subpoena power over foreign national witnesses and evidence located outside the United States. Criminal subpoenas issued pursuant to Rule 17 of the Federal Rules of Criminal Procedure are served abroad pursuant to 28 U.S.C. 1783 come with strings. A subpoena cannot be issued to a non-United States citizen outside the country. Thus, even if granted the ability to introduce witness testimony or other documentary evidence, the logistics of securing the witness at the hearing mount more impressive and costly hurdles.

Post-Certification

If your client is fortunate enough to avoid certification, they are still not out of the woods. There is no restriction prohibiting the requesting government from refiling the same request for extradition with the State Department using the same or new evidence. Collins v. Loisel, 262 U.S. 426 (1923).
Should your client be certified for extradition, there is no direct appeal. The only remedy is to file a habeas petition under 18 U.S.C. 2241.94. The appellate court will only review whether there is “any evidence” to support the finding of probable cause, whether the court has jurisdiction and whether the crime falls under the treaty. Fernandez v. Phillips, 268 U.S. 311, 312 (1925).

If the circuit court also certifies the extradition, an extraditee’s last resort may be the Executive Branch. Most treaties include provisions giving the Secretary of State the final word in extradition certification. The Executive Branch has the discretion to deny extradition under the treaty, based on the finding that the offense was “politically motivated,” a much more broad inquiry than the political offense exception. The Department of State does not grant any hearings on the issues but will consider any written submissions the requested person wishes to make. This is often the only opportunity you have to present evidence that the extradition is a politically motivated act.

Conclusion

Extradition law can be a very frustrating process. With lower burdens of proof and stymied discovery these cases require more effort and energy than most. Should you be so fortunate as to uncover exculpatory facts from the foreign state, you have limited methods of presenting them to the court. You may have witnesses, but presenting their testimony might violate the rule of non-contradiction. Each time there is hope of a viable defense a brick wall seems to appear in the form of some 100 year old case. Your sense of injustice rages. Extradition law is in need of reform.

But don’t give up. Because the majority of the law is so outdated and limited there are no bounds on how creative you can be. In effect, the rigidity of the rules that apply in standard criminal defense matters have little or no bearing in an extradition case. In other words, “just go for it.” Remember that by vigorously litigating each issue new case law can be forged to drag extradition law lumbering into the new millennium.

Every full time working mom is inevitably asked the question: “How do you do it?”  

The answer is time and space management with a good dose of planning and organization.  I am a partner in a criminal defense law firm.  I am a wife.  I am the mother of two amazing girls.  I am a friend.  On this particular day I experienced all four, separate and distinct, one after the other.   The challenge of playing these distinctly different roles, one after another, all in the same day, was what to wear.

I had committed to be a chaperone on my daughter’s fourth grade field trip.  It was early on in the school year and I was ambitious.  “Sure”, I said, “I can do it” with little or no thought of exactly how my cavalier response might affect that particular day.

As the day of the notorious field trip approached it became clear that I needed to pay a visit to my client being held at the Los Angeles County Jail.  I have a particular soft spot in my heart for this client, only 19 years old with no criminal history.  A top high school student in New York, he steadily spiraled down upon entering U.S.C. on a full scholarship.  The culmination of the spiral happened when he was arrested at a U.S.C. frat party with a gun one week after the Virginia Tech massacre.  A sweet boy, looking to please everyone with bright eyes and confused thoughts I was determined to save him.  And so, in my quest to save him I needed to visit him regularly.  It made geographic sense to do the jail visit after the science museum – and that became my plan.

Things got slightly more complicated when I realized that I had opera tickets for that night, also in the same geographic vicinity – downtown LA.

So, the night before , I packed, literally.

I arrived at the science museum solo, in my car.  Taking the bus with 60 fourth graders was more than even I could bear.  I dressed appropriately in sneakers, nice black jeans, a twin sweater set.  As I drove into the parking lot it seemed kind of empty but as I walked closer to the museum itself I could see many school groups. Now, to just find mine.  After a fruitless search I determined that they weren’t there yet and located instead other impatiently waiting parents from the class.  After what seemed like a rather long time the bus with the kids arrived.  Unfortunately, the teacher who had organized the trip was absent.  This was scary.  No one had a plan.  It got even scarier when the “plan” became that each of us volunteer parents would take 8-10 kids, go where we wanted in the museum, act as a docent (a docent???), and meet back for lunch.  As I had thought I was just along for the ride I was slightly terrified to realize I was now in charge.  I adopted my military voice and posture and quickly told my group of kids that if they behaved I would reward them with candy – nothing wrong with a bribe.

We went to the “feelings” exhibit.  As soon as we got to the entrance they all, all 10 of them, shot off in different directions into a dark cavernous room.  As my greatest fear in being in charge of kids is losing one, I panicked.  I then painstakingly sought out each and every one, swore them to remain in the cavernous room, and confirmed with each of them that we would meet at the designated area at the designated time, ignoring the fact that these kids didn’t wear watches.

Getting them all to gather so we could leave was challenging.  As soon as I got 4 or 5 together, they would run off to find the others who would come back and then run off to find the others, and on and on…..

Finally, with my troops assembled we marched out to the lunch meeting place.  I’m a sucker so I bought candy and gave them all some, not because they deserved it, but because I didn’t want them to think they didn’t, and I was truly grateful I hadn’t lost any of them.  We all ate our lunch on a round platform with stained glass overhead.  As the sun moved the rays shown through the glass causing streaks of color to appear on the children. It was the most peaceful and beautiful moment of the day. 

When lunch was over, I walked my amazing daughter to the bus, gave her a kiss, and headed toward my car knowing that this was just the beginning of my day.

          As I was driving toward the jail I decided to make a pit stop to look at fabric for a couch I needed to re-cover.  This is when I moved from my role as “mom” into my role as “wife”. 

The fabric store is located in an area of LA called the garment district.  Hoards of people are always on the street and the spoken language is primarily Spanish.  Clothes and fabrics, shoes and luggage, all kinds of stuff is sold here for cheap.  The colors are bright and everything is displayed right on the sidewalk.  

There is a guy on the street every half block with a sign that says “Park Here”.  I randomly picked one, parked my car, and headed into the fabric store.

Inside the fabric store there are rolls upon rows of bolts of fabric on the perimeter walls.  The center is filled with tables laden with bolts stacked upon each other 4-5 high.

I chose some samples and headed back to the car.  Now it was time to play “lawyer”.  As I drove across downtown to the jail I couldn’t help but think what a long, long day I still had ahead of me.

Arriving at the jail, I paid my obligatory $7 to park and easily found a parking space.  The parking lot is dark and disgusting.  There are puddles of (I hope) water in various areas for no apparent reason.  While still in the car I switched out my sneakers for a pair of high boots and my button up sweater for a blazer.  Now I looked appropriately “lawyer-ly”.  I walked out of the shadows of the parking lot into the sunshine and across the street to the jail.

I’ve been to many jails.  Some are nicer than others.  All of them have mothers with their children mulling about waiting to see fathers, husband, brothers.  My heart always breaks for the children, but when I look in their eyes it  seems that to them visiting the jail is just another part of their lives, like Sunday dinner at grandma’s.  No matter how else I feel when I leave, I always feel a sense of relief. 

This particular jail is newer, very sterile.  The deputy at the front booth never smiles, never says “how are you” even though he sees me every week.  This only makes me more determined to break him so I always say “hi” in my most chirpy cheerleading voice, “how are you today?” and whatever other mundane thing I can think of to say.

After carefully examining my identification, which is another thing I don’t get as he sees me every week, I am allowed to pass through the metal detectors and walk down the bland looking hallway to the elevator.  The hallway is linoleum floor and cinder block walls which are both a dull shade of curdled cream.  The elevator is steel and very big with a steel floor and a lot of buttons.  I push number 4.  The back door of the elevator opens.  I go to the uncomfortable metal chair, sit down, and wait.  Eventually a guard brings my client.  He is smiling and happy to see me, as always.  Sometimes I feel like I’m his mother, as opposed to his lawyer.  We talk for awhile, he likes to talk about the books he’s reading and the latest Oprah show he saw.  I try to direct the conversation to the case.  It works for a awhile and then we’re back to Oprah. This goes on for some time.  Eventually I can’t take it anymore and it’s time to leave.  I feel bad leaving, guilty, like I get to walk out but you don’t.  But that’s the way jail is.  I tell him I’ll see him next week.  I can feel his eyes on me as I turn my back and walk away.  I don’t turn around, I push the button for the elevator and hope it comes fast.  I get in.  I go down.  I enter the curdled cream again, walk past “Mr. No Personality” behind the desk and with a bright “See you next time” I’m out the door. 

At this point I’m not sure where the day has gone.  It’s time to meet my friend for dinner.  I drive the short distance to the Music Center.  Before I dash into the restaurant I switch out my work blazer for an elegant cashmere pashmina and wrap it gracefully around my body.  I sweep my hair up, fix my makeup, and I’m off.

The restaurant is a buzz as it always is before the performance.  What a contrast all of this is to the jail.  The dark wood of the bar, the white tablecloths, the waiters with their little aprons, the snooty young hostesses, the well dressed diners, all speak to a place so different then the three other places I have been in during the course of the day.  My friend is elegant as well, she always is.  Such a gift to know her.  She is 20 years my senior but we talk like sisters.

After a well timed dinner (can’t be late for curtain call) we walk outside and up the stairs to the pavilion. In the center of the courtyard, the resplendent fountain is spouting water 20 feet into the air.   People are milling about, so refined, so well dressed, so cultured.  As we enter, the chandeliers sparkle with the kind of beauty that money buys. 

We take our seats and as the curtain goes up my mind flashes to 10 kids running in different directions, what the light looked light as it was filtered through the stained glass over lunch, the bright colors and big accents of the garment district, and the somber jail, the moms and children there, always there.  And now here I am at the opera. 

I’m glad to be here and I’m glad I was everywhere else.

Orange Is the New Black: My Year in a Women’s Prison (Spiegel & Grau, New York, 2010), is the memoir of Piper Ker­man, an upper middle-class Smith College gradu­ate sent to prison for a drug conspiracy. In the course of her tale, we learn her case dragged on for four years, she cooperated, had a good lawyer, and nearly 10 years after her criminal conduct, she was sentenced to serve a greatly reduced term of 15 months at Danbury, FCI, in Connecticut.

For some of us in private practice, Piper Ker­man is our typical client: upper middle class, and new to the system. Orange Is the New Black is also a naked commentary on how women are treated in the federal system and how they behave, as wom­en. The author describes by example our mean­ingless system of incarceration and utter failure at rehabilitation. It documents a system that locks women up for long periods of time only to release them back into a world they are less capable of navigating than when they entered. Finally, this book captures what it means to be a woman, with other women, in prison. Kerman’s unique obser­vation point makes this book worth reading as a lawyer, and worth recommending to our clients, whether male or female.

Kerman balances facts and story line with aplomb. The fact that “there are over 90,000 pris­oners locked up for drug offenses, compared with 40,000 for nonviolent crime” costing “at least $30,000 a year to incarcerate” and more for fe­males, is expertly woven into Kerman’s story, so the readers never feel they are reading statistics. Her transition to prison life is carefully crafted to educate the reader in her evolution from privi­leged white girl to “cellie”: “after almost four months in prison I was still cautious, supercautious, and kept most people at arm’s length.” Kerman describes the friendships she develops with other inmates with great humanity.

Her resignation that she would have to sac­rifice modesty and self-respect in order to have visitation privileges is refreshingly practical. The author’s description of strip searches before and after visits, the joy in getting mail, and the sanity she maintained by running the track every day, makes the reader feel Kerman’s isolation from the outside, and simultaneous assimilation on the in­side. Survival grounded entirely in ritual provided Kerman with some level of comfort.

She describes what you give up emotionally in order to survive psychologically in prison. In one passage, Kerman describes how her fiancé (they got engaged before she was indicted), brought paint and tile samples for her to look at for their new home. Her inability to focus on anything so abstract while in custody is reflective of her need to commit to being a prisoner, which required her letting go of so much that existed outside. Ker­man never ceases to acknowledge that she is one of the lucky ones to have something outside.

Kerman pointedly describes prison as a “snake pit.” “It was a weird place, the all-female society with a handful of strange men, the military-style living, the predominant ghetto vibe.” Her bleak and often disturbing descriptions of the facilities and the bureaucracy paint a picture that conjures up every television image.

She describes with poignancy the constant fear of guard reprisal and resulting loss of pre­cious privileges, or worse SHU (Security Housing Unit): “It is hard to conceive of any relationship between two adults in America being less equal than that of prisoner and prison guard.” The presence of male guards in a women’s prison is curious at best. “It wasn’t so much the idea of them seeing my body, although the thought made me recoil. It was more the idea that my intimate moments—changing clothes, lying in bed, read­ing, crying—were all in fact public, available for observation by these strange men.” Kerman makes note of the fact that “every year guards at Danbury and other women’s prisons around the country are caught sexually abusing prisoners.”

The mother-daughter prison relationship is also unique to women. The births, “some in shackles during their deliveries,” and the immedi­ate separation of mother and child are profound and heart wrenching realities of women in prison.

Kerman describes how the majority of prisoners, like her, are serving time for nonviolent drug offenses, like her. However, unlike her, these women had few if any choice in their lives, and a drug conviction was the natural consequence of most. “Most of the women in the camp were poor, poorly educated, and came from neighbor­hoods where the mainstream economy was barely present and the narcotics trade provided the most opportunities for employment.”

The author’s recounting of the prison system’s pathetic efforts at preparing inmates for life on the outside are filled with the irony you would expect from an ineffective prison system. Kerman found no evidence that the prison system offered pris­oners any alternative upon release to the circum­stances that landed them in prison in the first place.

She writes: “The guy from food services was very nice. . . . He told us that it was important to eat right, exercise, and treat your body as a temple. But he didn’t tell us how to get health care ser­vices that people with no money could afford . . . he didn’t recommend any solutions for behavioral or psychiatric care. . . . He didn’t say what options there might be for people who struggled with sub­stance abuse, sometimes for decades, when they were confronted by old demons on the outside.”

In a presentation on housing, a prisoner raised her hand and asked “can you talk a little bit about how to get an apartment, and if there are any pro­grams we could qualify for, you know, affordable housing and stuff?” . . . He looked not irritated but unsure. “Yeah, well, I don’t really know too much about that.” During a job fair, inmates asked how to find  job training, available jobs, and how a woman with a record gets a job. A smart business­woman on a panel responded, “I recommend you spend quite a bit of time on the computer research­ing. . . . I hope you have some access to the Inter­net.” After a “mild rumble” the prisoners responded in chorus, “we don’t even have computers!”

Kerman also describes events that define a wom­an’s prison experience. “The day before Christmas the camp decorating crew’s handiwork was revealed. It was, frankly, incredible: They had transformed a dingy beige television room with gray linoleum floors into a dazzling Christmas village on a winter night. The particle board ceiling was concealed by an inky blue starry-night sky, a village was spread out as if in a mountain valley. Everything twinkled.”

Food supplies, such as “contraband onions were at a particular premium” in prison. “Ex­tracurricular prison cooking happened primarily in two prison microwaves. .  . . Remarkable con­coctions came out of those microwaves. . . This impressed me deeply, given the limited resources these cooks were working with—junk food and poly-bagged chicken, packets of mackerel and tuna, and whatever fresh vegetables one could steal from the kitchen. Corn chips could be recon­stituted into mash with water and transformed into delectable chilaquiles. . . .”

Near the end of her sentence, Kerman is trans­ported via Conair, to Chicago MCC, via Okla­homa, to testify as a witness for the government. Kerman recounts being required to testify against a ringleader whom she never met. Her story of being transported, and even sharing a cell with a codefendant, may strike some criminal practitio­ners as rather dubious. However, these facts do not diminish the significance of the book.
With sickening detail, Kerman describes what it means to be transported as a prisoner and housed in a metropolitan detention center as compared to a prison camp. Her somewhat hu­morous description of “the shackle dance,” is sharply contrasted by her description of “jack­booted marshals with submachine guns and high-powered rifles swarming the tarmac.”

Kerman describes with clarity the difference be­tween Danbury “camp,” the Oklahoma holding facil­ity, and Chicago MCC. Of Oklahoma she writes: “it was not easy to keep track of what day it was—there were no newspapers, no magazines, no mail. . . no sig­nificant way to tell one day from the next.”

Kerman tells us that in the Chicago MCC wom­en are only granted privileges once a week, com­pared to the men who appeared to have far greater freedom. She describes the women’s unit as follows: “Psyche ward. That was my overwhelming impres­sion. Dueling televisions blared at opposite sides of the small room. A cacophony of voices vibrated in the close crowded space. Women, disheveled and stooped, blinked at us like moles. Although there was nothing playful about the place, it had an in­fantilized, nursery school vibe.”

Orange Is the New Black is Piper Kerman’s personal story of redemption. It is also a first­hand account of our women’s federal prison sys­tem. Most importantly, Kerman gives a voice to all those underprivileged women in our society, both in and out of custody. On a practical level, for all us private lawyers, it is a reality check on what happens to our clients after the court im­poses a term of incarceration.