Crimson Revenge From Dust to Diamond

1: Paragraph 1 Delaware is the opposite of the old cliche: not much to visit, but a great place to live. To Amtrak passengers in the northeast corridor, it's a station between Baltimore and Philadelphia; to drivers on Interstate 95, it's not even a wide place in the road between Washington and New York; to its residents, it's one of the best-kept secrets around - a pearl not to be cast before swinish outsiders.

1: Paragraph 2 As nearly as anyone knows, the state's population is somewhere around 700,000. Although it's the second smallest state in area and has only three counties, there is a marked polarity between the relatively urbanized northern tip of the state, where most of the population is concentrated in Wilmington, and what they often call "slower Delaware," usually defined as "below the [Chesapeake & Delaware] canal."

1: Paragraph 3 Someone seeking a symbol of Wilmington to put on souvenirs - in case anyone would ever want a souvenir of Wilmington - would probably pick the equestrian statue of Declaration of Independence signer Caesar Rodney that usually stands in Rodney Square, a grassy one-block plaza in the middle of town. He was the hero who had gone home to die but returned to Independence Hall to cast the tie-breaking vote in the Delaware delegation in favor of the Declaration; we're still arguing about whether he died of cancer or syphilis.

1: Paragraph 4 They took his statue down a year or so ago to fix it, and its massive plinth looks like a ruin standing across the street from the Hotel du Pont that takes up most of the block on the west of the Square. The block east of the Square is occupied by the Public Building housing the state trial courts for the county. Facing the Square on its south is the public library, and on its north is the headquarters of Wilmington Trust Company, the favorite bank of the duPont family and E. I. du Pont de Nemours & Company, Inc. Standing in Rodney Square, you're physically less than five miles from New Jersey, ten from Pennsylvania, and fifteen from Maryland, but in most ways you're in a different world.

1: Paragraph 5 Until about two decades ago the duPonts ran Delaware as a company town, and they ran a tight ship. For example, once upon a time du Pont wanted to hire a high-level executive; a candidate and his family passed muster, and he was offered the position. He said the only problem with moving to Delaware was that his daughter was taking ice skating lessons and hoped someday to qualify for the Olympics, and there was no teacher of that caliber in Delaware. Today there are, at the two Olympic-sized rinks down the road from Wilmington in Newark; one is where Calla Urbanski and Rocky Marvel trained for the 1992 Winter Olympics.

1: Paragraph 6 I heard that story in 1974 from the people who interviewed me for a job on the professional staff of the University of Delaware, whose main campus is in Newark. Their theme was that Delaware was, and would remain, the kind of place where I would want to be, because du Pont would always exert its influence to insure that Delaware was the kind of place the kind of people it wanted to attract would want to live.

1: Paragraph 7 They also explained to me that U. of D. was a private, not a public, school because if it were public it would be subject to the federal anti-segregation laws, and nobody wanted that. So in an arrangement that may be unique, and which is often called "semi-private," instead of making the school the state university and having the legislature appropriate money from the general treasury for it, each year the General Assembly votes for a voluntary donation to the private school, on behalf of the taxpayers of Delaware, out of the treasury.

1: Paragraph 8 Partly because of its small size, and partly because of du Pont's historic paternalism, Delaware in general, and Wilmington in particular, don't suffer today from the problems that plague so many parts of our country, especially the major cities. And the problems Delaware does have are largely the result of du Pont's abdication of that r le, leaving the kind of power vacuum that inevitably attracts scoundrels to public office.

1: Paragraph 9 Delaware's economy is, of course, the product of that political situation. Du Pont is by far the greatest economic power in the state, but Hercules Incorporated and ICI Americas Inc. are players, too, especially in Wilmington. Downstate is agricultural, except for the summer shore resorts, just north of the border with Maryland, at the other end of the ferry from Cape May, New Jersey. Peaches and other fruit were a big cash crop early in this century, but a blight killed most of the orchards, some of which are still standing, eerily beautiful, like rows of surreal black skeletons. Today much of the country's scrapple is made in Delaware, but the main agribusiness is the "chicken factories" where poultry is processed and packaged for supermarkets - some people will tell you lower Delaware is God's country, but many will tell you it's Frank Purdue's.

1: Paragraph 10 Although there is a big Air Force base in Dover, the federal government is a relatively minor economic force, so federal pork barrels don't influence Delaware politics much. State and local governments don't employ a lot of people, and many government employees, even some of the highest elected officials, are allowed to have private employment at the same time, so political pigs have access to slop from other sources, not just the public trough. The office of Attorney General, for example, is established in the state constitution; the AG heads the Department of Justice, is elected in a statewide election every four years, and stands third in line to become governor if something happens to the governor, the lieutenant governor, and the secretary of state. The AG can invalidate state statutes simply by issuing a written opinion, and no criminal complaint can even be filed, much less prosecuted, without the AG's approval; in short, as Delaware's lawyer, the AG has complete control over all legal processes that involve the state government.

1: Paragraph 11 Incumbent AG Charles M. Oberly III, first elected in 1982, shortly started publishing a newsletter as a private business. Questions were raised as to whether that was ethical or even lawful, but Oberly exercised his power to rule it was okay. That's what they mean by, "There's no excuse for losing if you're keeping score." Today that newsletter, which reports the rulings in some cases in Delaware courts, is written by Deputy AGs and typed by secretaries in the Dept. of Justice, both in the course of their public employment. But the subscription money goes to Oberly personally, and although the quality of the newsletter is poor, compared to competing publications, the subscription price is lower, too, because Oberly doesn't have the same production costs as his competitors, and some of his subscribers have told me they see it as legal insurance - they've noticed the Dept. of Justice is more attentive to the needs of subscribers, and they more often enjoy favorable results in legal proceedings, than nonsubscribers.

1: Paragraph 12 Oberly has rejected offers to purchase his newsletter business for more than it's worth, because he wants to keep that ostensibly legitimate mechanism for collecting money from the citizens he's pledged to serve. You get what you pay for. That story was told to me by several persons, including some of the competing publishers, who had offered to buy Oberly out, while I was working for them, but many other elected officers have lucrative private sidelines. The county Recorder of Deeds and Register of Wills, for example, both have private law practices besides those elective, salaried positions that provide them offices and staffs in the public buildings in Wilmington.

1: Paragraph 13 So does the Public Defender, who is appointed, not elected. Lawrence M. Sullivan has been Delaware's PD for more than twenty years, and most indigent criminal defendants in state court are represented by one of his deputy PDs, who also have private law practices on the side. The poor quality of these representations have been an open scandal for years: In 1981, in an opinion in 'Waters v. State', published at 440 'Atlantic Reporter' 2d 321, the Delaware Supreme Court took Sullivan to task for trying to shirk responsibility for the inadequacy of the legal services he provided. It has been traditional for the PDs to divert defendants who can come up with any money, usually from their families, to their private practices; a very few indigent defendants, usually repeat offenders who learned the first time around how much help the PD is, demand and get independent lawyers appointed and paid by the court.

1: Paragraph 14 The defendants stuck with the PD are often worse off than if they had no lawyer at all, because they rely on the bum advice they get from a lawyer who gets paid the same salary no matter how much or little time he spends on their case and resents taking the time away from his private practice, where he can bill by the hour. Take the case of Susan J. Scott, for example: On 20 September 1986 she fatally shot her live-in boyfriend who had been violently assaulting her for the five years they had been together. She was arrested, charged in Delaware Superior Court with first-degree murder and possession of a deadly weapon during the commission of a felony.

1: Paragraph 15 She was represented by one PD for about a year, and then he left the PD's office, so her case was assigned to another deputy PD named Duane D. Werb. Although he knew there was evidence supporting Scott's self-defense claim, Werb advised her that the "battered woman defense" wouldn't fly in Delaware, that there wasn't enough evidence to prove self defense at trial, that proving self defense couldn't clear her of the lesser included offense of manslaughter, and that if she pled guilty to manslaughter she would receive a sentence of three and a half to seven years in prison. So on 26 May 1988, a week before her trial was supposed to start, Scott took Werb's advice and pled guilty to manslaughter; she was sentenced to twenty-five years in prison.

1: Paragraph 16 Then Scott's family managed to scrape up the money to hire New Orleans lawyer Richard Ducote, with a national reputation for representing battered women, to try to get her sentence reduced. On 19 July 1989 Judge John E. Babiarz Jr., who had accepted Scott's guilty plea and sentenced her, reversed her conviction in a written opinion ruling that Werb had committed legal malpractice by giving her advice that was blatantly wrong on three separate points of law. The two charges against her were reinstated, and Scott's trial was scheduled for 16 October. That morning the deputy AG offered another plea agreement: If she would plead guilty to manslaughter, she would be sentenced to three years, which was how long she'd been in maximum security by then. So she pled guilty and was immediately released from prison.

1: Paragraph 17 Scott wanted to sue the PD for legal malpractice, and Ducote was willing to represent her in that suit, but he had trouble finding a member of the Delaware bar willing to go up against the PD, and he had to have a Delaware lawyer to act as local counsel because he wasn't licensed to practice law here. He finally asked the Delaware ACLU for help, but all they did was give him my name; I agreed to be local counsel in the case, and that's why I came to know about it.

1: Paragraph 18 On 15 August 1991 we filed Scott's civil complaint in Superior Court, against Sullivan and Werb. Remember that the prosecutor in the criminal case had been the AG and that a Superior Court judge had already ruled the PD committed legal malpractice. Now the AG appeared on behalf of the PD, because the AG is the lawyer who represents all state employees, and Superior Court Judge Vincent J. Poppiti summarily dismissed the complaint: He ruled that because Scott had pled guilty to manslaughter, the same as she did on Werb's advice, she could not have been harmed by any wrong advice he gave her! That dismissal was recently affirmed by the Delaware Supreme Court.