Saturday, August 11, 2007


You may remember that a group of Kentucky lawyers are in trouble for allegedly diverting millions of dollars from a fen-phen class action lawsuit into their own pockets. Yesterday that case took a fascinating twist when judge gave the lawyers in question a choice: stop asking for delays or spend the intervening time in jail. This event is viscerally very satisfying, and if these lawyers did screw their clients out of millions of dollars, I hope they spend the full 20 years in prison. But by putting these very rich white men in the position more often faced by very poor black men, a deep problem with our legal system is highlighted: when your options are to either waive your rights to a fair trial or to sit in jail before that trial, where is the justice?

In this specific case, the judge has basically abdicated his responsibility to make a determination. Bertelsman needs to decide either that the defendants are gaming the system and need to stop, or that in order for them to get a fair trial they require the time they have requested. To leverage them in to giving up their rights is not ethical, not appropriate, and unjust.

But much greater injustices are faced in less notable cases every day. When a poor defendant who cannot make bail is given the choice between a plea agreement and spending time in jail before trial, that choice is meaningless. Lose your livelihood, or lose your right to a fair trial.

So it is important that Bertelsman's decision, which is almost certainly based on his indignation over these lawyers' behavior, not be allowed to stand. But I would also urge that we addressed the bigger issue of pre-trial jail time. And if the fen-phen lawyers spend the time between now and when that larger issue is addressed in jail, my baser emotions will be telling my moral outrage to sit down and shut up.

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