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Frustrations of a Defense Attorney

Attorney Edward Fogarty


In a moment I saw an old friend, a man in his mid-70’s and it could be early 80’s, one of those seemingly ageless types that will go in a matter of weeks once struck with a relatively minor injury.  He was so happy to see me, as I was him, and we clasped in handshake.   “Happy New Year” we rejoined, marveling in a confirmation of life for another year.  We had seen each other struggle with fitness and age at the gym for years, causing some angst at our fitness at such an age and giving others affirmation that they too could achieve fitness when aged as we two. 

And I recalled an article in the New York Times from several weeks or days ago about a prisoner’s cemetery somewhere in Texas.  There, inmates were put to final rest, some dying from age or disease, many at the hands of an executioner’s needle.  As the article pointed out these were men who had lived lives of disrespect for others, some had died hardened, but most tempered by time and age into different humans than when first incarcerated.  The article said the graves were dug by fellow inmates, who at each burial took a moment of silence and respect for each dead soul lowered into the arid earth.  That moment, I would suppose, is their affirmation of continuity.  How different from mine.  


The Telephone

The telephone is ubiquitous.  It seems nearly a basic right, to be able to make a call and communicate.  Even more, the cost of this privilege is seemingly less and less.  Voice over internet calling, more and more common, reduces the cost of long distance calls to pennies.  Cell phones make a call part and parcel of any plan.

But these “right” are available if you are free.  Once incarcerated, a phone call is subject to grossly inequitable fees.  The reason for the fees is not clear, but in every state there is a middleman, a firm that controls most of not all phone calls from prison.  The firm charges a fee for administering the phone systems, that fee is in turn charged to those making the call.  

The purpose is supposedly to make prison calls secure and safe, though what this firm does to make all this true other than collect money is not certain.  

It is very unfair.  A man in prison who calls his wife, mother, child or friend has no money.  If the family member or friend wants to maintain communication with the inmate, they must agree to what anyone would term outrageous fees.  And, most often, these fees are to be paid in advance or with credit card.  

What makes it unfair is the taking of money from those who can least afford it.  It is easy to say there should be no sympathy for those who have committed a crime, but denial of communication hurts all, the criminal and his family.  Should the young child whose dad has sold drugs and been involved in a fight, be denied communication with his father?  And when the Dad is imprisoned, income for the family is less, making it a Sophie's Choice of sorts: food for the child or communication with his father.  

Who are these firms?  There have been plenty of articles on the subject: just do Google searches.  In Massachusetts a prisoners’ right group began a petition or lawsuit recently.  Their website states:

Petition Seeking Relief from Unjust and Unreasonable Cost of Collect Telephone Calls from Prisoners -  This is a petition filed with Massachusetts Department of Telecommunications and Cable on behalf of prisoners, family members, lawyers, and others who seek relied from the excessive costs and poor quality of telephone calls from prisoners in state and county facilities. 

However, any lawsuit against this illogical system has to be seen more an inquest: who and what is this all about.  However it is an underground problem, one that does not effect anyone important, only the poor and prisoners.  Someone is making money, that's for certain.  Someday, perhaps, there will be an answer.  



Old Year New Year

Received a call today from a client, been imprisoned a long time - over 15 years - and we're waiting results of an appellate issue.  He's anxious, as one might suspect, at the prospect of what will be indefinite time in prison or a likely quick resolution and freedom.  For inmates incarcerated that long, freedom can be a double-edged sword.  Freedom is for those with means, and without means or money life can be hard.  Doubly so for those with a felony record  Some, once released, find life so difficult they can't go on.  One man, released, bought tools somehow and got a job and was on top of his world, until his employer found out about his criminal past, and fired him.  He couldn't make the payments on his tools, lost both his job and a means to work.  In the end he committed another crime, a stupid crime that left a very clear trail.  He was convicted and returned to jail.  There he contracted a serious disease, and I believe passed away.  What is the adage: you can't escape your past?



CD's to Jail

Technology is written about all the time in the legal journals as lawyers in the civil world utilize digitization for storage, communication and general litigation discovery practice.  Criminal law is its own world, and for any number of reasons it has lagged in use of technology.  Some of that lag is due to the general hesitance of police to embrace a new device or technology and even moreso the snail's pace with which the courts make any change.

That has changed in recent years however, and exchange of police reports, and general discovery in criminal trial practice has become commonplace.  The final bastion to overcome are prisons, which in general have no need nor desire to provide inmates with technology nor spend money on such devices as computers or cd/dvd players.  That is changing, as lawyers and the courts provide more and more materials in digital format for the client to review.  The right of a defendant to have prepare and assist in preparation of his case and defense is breaking down any final barriers to technology in prison, and it is now possible to send a client files and video of evidence in cd or dvd format for viewing.  It is a great help, for the client and to the lawyer and ultimately to the courts and justice.  




He had been a tradesman his working life, now retired after years of fulfilling but physically demanding labor.  He was reasonably fit for a man of 65, dressed in neat grey slacks, ironed work shirt and herring-bone jacket, one of two or three accumulated over 40 years.  He appeared a bit awkward, sitting straight-backed in the hallway's row of plastic chairs, each chair colored the same pale orange.  Most of the others seated nearby were women, some with children, engaged in small talk.  The chairs were actually seats, immovably attached beneath to a metal beam that ran the length of the wall.  

He was in prison, in fact he had been in prison many times over the past decade as his son repeatedly ran afoul of the law and was repeatedly imprisoned for a series of minor but criminal acts.  He had become familiar with prison's many regulations and requirements, from donning all personal belongings into a locker that cost a quarter to lock, to the eversameness pale-orange plastic seats.  It seems as if prison had become second nature, perhaps now after ten years a second home.  

His son was a drug addict, since a teen, and that addiction had led to fights, thefts and other altercations.  The first infractions were dealt with gently, some dismissed, as police and prosecutors, some the man's friends, had hoped his son would learn, reject his life and seek a life like his Dad’s. Each time this approach failed, until it became apparent punishment was necessary.  The man couldn't remember at this point when the turning point was reached, by now imprisonment had become routine, an expected outcome each time his son achieved a brief period of freedom from his most recent prison bid.  The tradesman had raised his son otherwise, to follow perhaps in his footsteps or take another path to a profession.  It was not to be, those paths were long-since closed, not taken.  

A guard appeared nearby, placing her paperwork near a metal detector.  It was time to pass, to make a visit to a son.