Nancy Grace drives mother of kidnapped infant to kill herself

I've often thought that Nancy Grace is just an evil witch, the worst of the worst that prosecutors have to offer, coupled with that intensive desire of the media to sentionalize any issue that will make them more money and get them more viewers - people and constitutional rights be damned.

Well, evidently she has finally driven an innocent woman to kill herself. Grace pounced on Melinda Duckett, who's son was evidently kidnapped out of her house while she was watching TV, when she appeared on her show. Shortly after being pounded by Grace, she shot herself.

Of course, this comes on the heals of Nancy Grace continually pushing Elizabeth Smart, the Utah girl who was kidnapped for about a year, causing Elizabeth Smart to literally demand that Grace stop asking her deliberately provocative questions (follow this link here for a transcript and video of that incident). Obviously, Grace cares more about her agenda and ratings than she does about human beings - one of the worse traits possible in a prosecutor (or ex-prosecutor).

Now, I don't know if the woman really had anything to do with her child's disappearance, she and the father were originally suspects. But this woman got no due process on Grace's show. She was verbally set upon, without any real ability to defend herself against the acerbic host, and was completely defenseless. Who knows, maybe the woman actually killed her child, and I don't have a lot of sympathy for the mother who killed herself. But, maybe she didn't. In that case, this is an even greater tragedy, one we should lay the feet of Nancy Grace, a truly terrible person.

I only wish they had some great defense lawyer on the air who would put her in her place.

LA Times Runs Series on Norwalk Public Defender

The Los Angeles Times is running a 5 part series that is apparently focused entirely on a PD in the Norwalk Branch of the LA County Public Defender's Office. You can read the article here, and from there you can find the other articles in the series. Today's is part 2.

So far, the article has been very well written and fair to PDs, putting us in a better light than we are normally put. The articles have so far emphasized things that I've said for a long time: we frequently believe deeply in the cause of justice, equal access to that justice for people even if they're not rich, and fighting for individuals as well as you can, without judging them.

This does not, of course, mean that we are in favor of crime, or that we approve of many of the things that our clients do, but that we understand this basic principle: If you ever do something wrong, something that may very well deserve of punishment, and you call a lawyer, you want someone who will handle your case as well as he can without telling you that you are bad person, or deserve whatever you get. For all of us (relatively) rich folk out there, we take this for granted, we expect that when we shell out large bucks to a private lawyer that the lawyer will do everything possible within the bounds of the law for you. As public defenders, we do that for our clients, even though they haven't personally written us a large check to get us to do it.

Great series so far, let's hope it stays this good.

UPDATE

The rest of the series was just as good as the first couple of stories. Well done, well written. Finally, public defenders aren't shown as being total morons and sellouts. It's about time!

A few thoughts on John Karr

Alright, so we know that this guy was a nut, and that he had nothing to do with killing Jon Benet Ramsey, and clearly that the media circus surrounding his arrest and extradition was among the lower moments in an low profession (at least the tabloid media, which is what most of the media turns into when confronted with something like this - lord knows they don't want to be left behind by the tabloids as happened in the past).

But, I'm somewhat interested in a couple of legal issues that happened here, the rush to judgment, and the false confessions.

On the rush to judgment front, that is clearly what happened here, if not by the DA (who kept expressing reservations as she flew him business class from Thailand), certainly from the rest of society, which had pronounced him freak, and therefore guilty once they got their hands on him. This is not quite like Richard Jewel (the alleged, presumed, and then proven otherwise Atlanta Olympic Bomber in 1996), where the case languished, suspicions increasing, and everyone who knew him pronouncing that he was just the type of person you'd expect to bomb the park ("he's a nice guy, keeps quiet, to himself, not too social...."). Before he was completely exonerated, he'd been the subject of so many smear articles and descriptions that he'll forever be associated with that bombing, even though, by all accounts, he was a hero (how fickle heroism is). More importantly, had that been a less visible case, with less scrutiny by law enforcement, he'd probably be rotting away in jail right now, the police being comfortable that he looks guilty enough, and there's no need to do more work that his lawyers would only use to manufacture reasonable doubt and get a guilty man off.

Karr's case doesn't rise to that level, mostly because, unlike Jewel, he said he was involved, and because the case was resolved so quickly and emphatically by DNA evidence showing he wasn't involved.

But, this leads to the other issue, false confessions. I can assure you that had there been no DNA evidence at all in this case, Karr would've gone to trial and been convicted largely on the basis of his statements admitting his involvement. What would the DA have said? "Why, of course he did it, he admitted it. Who would admit to doing something they didn't do?" Well, obviously a lot of people do that, for various reasons. In a large amount of the death row cases where the defendants were exonerated due to DNA proof that they were innocent, the defendants had "confessed," and their confessions had been admitted against them in trial, with devastating results. Some are browbeaten into confessing to things they didn't do, others like to brag (usually they're not as nuts as Karr appears to be, in that he was so self-aggrandize that he wanted to be associated with this case and was willing to go to jail just to have that association.

That being said, bragging about things that you have only marginal involvement in and trying to give yourself more credit than you deserve is about as common as any other form of bragging (honest or dishonest). This is why many gang members, who consider it a badge of honor to waste a few rivals with a single burst, may brag about some involvement in that shooting to their friends, even when they had nothing to do with it. And as a result, many of those statements, true or untrue, are used against them at trial with the same devastating effect. Of course the DA argues at trial that "he must be telling the truth" (and frequently he is), but they will often say at the same time that any exonerating statements should be ignored (he must be telling a lie if he denies involvement - notice the nice Catch 22?). The real problem is when those statements are used in lieu of actual evidence, and the DA relies on these often unreliable statements, coerced, bragging, self-aggrandizing, or whatever, when they don't have any actual evidence.

It didn't fly in the Karr case. It should be viewed with greater suspicion in all other cases as well. Show me the actual evidence, not just some overhyped statements that may or may not be true.

The President is NOT above the law!!! - NSA program struck down

I want a terrorist to his this country as much as the next guy, which is to say, not at all. I also want our country to have something important to preserve - freedom, lawful institutions, law and order, democracy, silly little things like that. For the past 6 years those concepts have given way to doing away with the evildoers. I'm glad to say that freedom and democracy took a large step forward today with Federal Judges opinion striking down the NSA's warrantless wiretapping program as an unconstitutional search, and in general, an unconstitutional seizure of power by the Presidency over the other co-equal branches of government. The article's here. Talking Points Memo's Muckraker has some choice quotes here.

Really good stuff. Freedom, democracy, due process and the American way has reasserted itself.

New Ruling in Secrecy case takes us closer to tyranny

I hate being like Chicken Little, constantly claming that the sky is falling. In previous posts I have likened some of our country's attributes to things going on in China, suggesting that we are heading in their directly while we urge them to head into ours (and while they actually do head in our direction).

The latest thing to come out is really chilling. A couple of lobbyists with AIPAC (the pro-Israel lobby in DC) are charged with espionage when they disseminated classified information that they came across. The manner in which these specific people came across the information isn't as important as the judge's ruling in allowing them to stand trial is. He said that one need not have a security clearance, nor have any particular duty to the government if one receives classified information. If you pass it along, or disseminate it in any manner that intends to harm the US OR help another country (even a friend, I guess, and even if it doesn't intend to harm the US), then you can be found guilty under the Espionage Act.

This means that every journalist who writes about about evil acts that the US is doing may be held under the Espionage Act. This, of course, is what some conservatives like Bill Bennett and Rep. Peter King (R NY) have been pushing for a little while, since our embarrassing actions have come to light. They don't have a problem with the actions, just them coming to light, and they've pushed to have the press put in jail as a result.

China and Russia today put people in jail for embarrassing the government under the theory of Espionage. In fact, every totalitarian government in history has tried to imprison those who critisize and embarrass them, all under the guise of espionage or damaging the country. in Russia, they put scientists away for disseminating scientific and environmental reports in a way that shows some of the terrible things that the Russian government does. In China, they put journalists away who talk about government's abuse of authority and corruption. And now, in the US, under the fig leaf of "legal authority" by using a compliant and unquestioning judiciary, we will put away journalists who do the same.

Remember the Taguba report, that exposed the atrocious behaviour of our soldiers at Abu Ghraib? The reporter who broke that story could be in jail, under the theory that it harmed the US (how about the fact that it helped the US, by helping us improve our behaviour?). It could go further, scientists who expose the administration's lies and machinations on things like Global Warming, evolution, drug approval processes or any other number of whistleblowers who regularly keep us informed of this (and other) administration's evil ways.

Think I'm paranoid? Even Contributing Editor Jonathon Adler wrote similiarly in the National Review Online, using more examples directed to his audience (he talks about people who wrote critisizing the Clinton administration who would've possibly been susceptible to prosecution under the Act under the theory now advanced).

And this is the point, people in government often become more obsessed with their remaining in office than in the better good of the country (can there really be any debate about this at this point in our nation's history?). The notion that power corrupts, and that absolute power corrupts absolutely is not new either. You put those two things together, along with the power of the Espionage Act being applied corruptly, for political purposes, in order to stifle lawful and appropriate debate, and you have the markings of an unfree society.

This is something Americans of all political stripes should agree on.

Once Again, China Leads the Way on Freedom - This time, the Press

Previously, I posted here about China's methods of prosecuting people accused of crimes, and how their methods must be the envy of prosecutors everywhere for their efficiency and brutal effectiveness.

Now, I see that China has come up with a plan that would put that pesky NY Times, and other pro-Al Qaeda rags out of business once and for all - a new subversion law aimed at all news outlets, even foreign ones.

In light of recent incidents in which the Times and others have had the audacity to report on unconstitutional behavior of our political leadership, many conservative commentators have recommended that these newspaper editors be tried for treason for reporting this information. Obviously, this stuff is far more important than a top political advisor to the president leaking the name of a covert CIA agent who was working to stem the international trade in Weapons of Mass Destruction (not like we fought a war on that issue or anything), at the behest of the president and vice president. And, raising a defense that the government has already talked about doing this exact stuff (which they trumpeted up the highest walls in the aftermath of 9/11 that they were going to do this), would not defend the press.

The fact is, this press is just too damn inconvenient for a war, and damned if we weren't so happy back in WWII when we our freedoms were severely restricted and those pesky Japanese were stuck in internment camps, where they all belonged anyways. So, harkening back to the good old days, conservatives have seized upon the latest reports of the press to try to get them imprisoned, or, maybe even executed (Treason is punishable by death in a time of war, and even though we aren't actually in a time of war, Conservatives commentators say it often enough, and conservative voters vote that way often enough, that perhaps a jury of the Time's peers, picked at random in some prosecution-friendly county like Selma, Alabama, or maybe Sugarland, Texas - home to Tom Delay, would look past those silly technical rules and find we're at war and vote for death). I'm quite sure that Samuel Alito, Clarence Thomas, John Roberts and Antonin Scalia will give them a fair shake when the case hits the Supreme Court. Who knows, maybe that traitor John Paul Stevens will be gone by then, and we can have Robert Bork on the bench then as the 5th vote to repeal the law of gravity as being in conflict with the Bible?

But, I digress, for, China has worked it all out. Just make a vague law that says you can't hurt the country in any way, and then start putting people in jail and letting them enjoy the intricacies of the Criminal Justice System, China-style.

This must have William Bennett literaly frothing at the mouth in anticipation. I can see William Kristol and Karl Rove canvassing right now with Hu Jintao asking him for advice on how exactly they should word the law in order to get it past a compliant Congress.

Yes, it's nice to have allies in our war on terror who have similar respect for our values like we have. GO CHINA!!!!

Sometimes I wonder if the Chinese government has a huge sense of irony and does this stuff only to so that they can show common cause between the authoritarian left there and the authoritarian right in our country. Boy, are they funny or what?

The Courts conspiracy of silence on police misconduct

The US Supreme Court appears to have 4 votes suggesting that the exclusionary rule, which says that illegally obtained evidence by the police is inadmissible. The justices (I use that term extremely loosely) say that police misconduct can be remedied by other means, such as lawsuits, internal discipline, and publicity, and other things of the like. I guess that it won't be any huge surprise to anyone that I find these arguments dingenuous bordering on dishonest. Conservative Judicial activists like Thomas, Roberts and Alito (and to a lesser extent, Scalia)clearly know that plenty of police misconduct takes place, they just don't care, as long as it doesn't happen to them. The fact that there is no real remedy for this misconduct (how many people convicted of a crime can turn around and sue for the misconduct).

Here is the perfect example about the lack of internal disciplince. In Pasadena, the defense brought a Pithchess Motion (named after the case) trying to find out any prior complaints against the officer in a dope case (where the officer's credibility appeared to be the crucial issue). The Court ordered disclosure, and the Court of Appeal reversed, holding that evidence of the officers prior domestic violence against his wife and subsequent failure to report it was not discoverable. In other words, the defendant takes the stand, he gets all of his prior convictions against him read out in open court, the officer takes the stand and can beat his wife, and it doesn't come in. I'm quite sure that he was never prosecuted for this. A prior study by the LA Times showed that prosecutors almost never file domestic violence charges against police officers, no matter how strong the evidence. Of course, such a conviction is the end of their career, as they're never allowed to own firearms again.

This is what the Court said:

"Custodian of Records [in this case, the City of Pasadena] contends that Officer Llanes's failure to report a domestic violence assault against his wife has no bearing on weather he would lie about the rock cocaine sale on the witness stand and disclosure of the failure to report based on a domestic violence allegation constitutes a breach of privacy."

and later.....

"The matter here is of such a personal and private nature that Officer Llanes's failure to report it has no bearing whatsoever on his credibility."

Huh????

Read the whole opinion here.

Now the only thing I can think of is that either he was aware of domestic violence against his spouse, but that he didn't do it and didn't report it (who the hell could've done it in that case?), or he beat her more than 5 years ago and failed to report it less than 5 years ago. The more than 5 years being outside the period of Pitchess. Consider this, though. He can be impeached on stuff decades old (at least our clients can be), but we can't find out even if he has been convicted of murder more than 5 years ago under the only vehicle we have to find out his wrongdoing.

This is just another example of the idiotic lengths the courts and legislatures will do to ensure that people accused of crimes do not fight on a level playing field. It is also another example of the manner in which the Supreme Court is a now vehicle for the interests of the powerful against the weak. Such a change over the last half century. Maybe you think this is a proper manner in which the Supreme Court should act, but to you, I say that most of our greatness around the world, and the manner in which we are (or were) viewed as a light unto the world vis a vis civil rights, individual rights and restricting government wrongdoing has come at the hands of the Supreme Court over the last half century. I really hate ending that.

Additional Note - Don't worry, the Courts will ensure that this idiocy doesn't haunt them for too long, they made the opinion unpublished. This means that the case can never be cited, and will eventually waste away unknown into the future, so they write all the idiocy they want without any oversight.

Should Bush Go to Jail for Flag Desecration?

This one is just too good to pass up. I've long hated this whole notion of laws banning the desecration of the flag, especially passing a constitutional amendment to protect the flag. In general, if the flag needs to be protected by curbing free speech, then that is desecrating the symbol more than any burning of an individual flag can do. Furthermore, what ever happened to private property? Aren't people allowed to do whatever they want with their private property (as long as it doesn't directly harm others)? But, lastly and most importantly, a law banning the desecration of the flag is thought crime, the most insidious type of law possible.

Hear me out. If I have a flag that is old and frayed, and I want to get rid of it, the preferred method (according to whatever US code they have on this subject) is to burn the flag in a proper ceremony (but to burn it nonetheless). So, if I burn a flag and say "I love this flag and all it symbolizes and the government in power right now," then I'm an exalted citizen of this country (a true American in the words of Sean Hannity). If I burn the flag and say "I hate Bush, I think this country is on the wrong track and is becoming a dictatorship," then I have committed a crime (probably so, according to Hannity). See the problem? The determination of whether you have committed a crime is not your actions, but your POLITICAL view while you do it (to be contrasted with typical mental state requirements that may gauge whether you are trying to harm someone - say the difference between a car accident and intentionally running someone down with your car). So, to stick with my parenthetical hypo, a law that says running someone down in your car because they are a Democrat is allowed, while running someone down in your car if they are a Republican is not allowed, would be a thought crime. That is a morally wrong law.

The US Code for the District of Columbia actually prescribes the manner in which you may treat a flag, saying that writing on it is a misdemeanor. So, how many Republicans think that President Bush should go to jail for this?




















Of course, very few will say that he should, they will point out that the statute is only designed to prevent actual desecration, meaning the intentions of the perpetrator are key. But, what if this was John Kerry doing this? Wouldn't they scream and howl? Couldn't some right wing prosecutor fashion an argument that John Kerry should go to jail for this? Wouldn't a right wing jury be chomping at the bit to put him away for this? What if they charged and tried John Kerry for this in the most conservative southern state, in it's most conservative county, with a right wing jury, in front of a right wing judge? He'd be in jail now.

On the flip side, what if they tried George Bush for this in Berkeley, in front of a left wing judge with all left wing activists as jurors? Or, should he be impeached? This could be considered (under the very liberal standards set by the Congress in 1998) a high crime OR misdemeanor (is desecrating the flag worse than perjury?).

So you see, here in color, the idiocy of these laws. Maybe this will put paid to that stupid notion of passing a constitutional amendment that would restrict the 1st Amendment and carve out an area where you go to jail for having the "wrong" political beliefs.

"This is some nasty" - Another execution in Texas

It is so ho-hum, another execution in Texas, that it barely merits mention in the news anymore. Lamont Reese was the latest person to walk through the Texas death chamber (although he actually refused to walk - he had to be carried in saying that he wasn't going to walk into his own murder).

He proclaimed he was innocent. Who knows if he was, I don't really know anything about his case and whether he was wrongfully convicted. I can assure you that his mother (who went wild at the execution, screaming and kicking holes in the wall while crying for her son) will insist to her dying day that he was innocent (as he did). I can also assure you that the family of the victim, as well as the police and prosecution will also insist to their dying day that he was guilty as sin, and is an inveterate liar.

But, death has become so routine in this country (especially in Texas, but clearly not as routine as many would like it to be), that this will go away without another thought. There will be no Innocence Project looking into this case. There will be no DNA testing of evidence (there was probably none in the first place). Years from now, no one is going to even think about this case, except those most intimately involved in it.

What is most interesting is that this case is probably like most other cases in which someone goes to death proclaiming in their innocence. Very little press attention is given, both sides insist they are right, the jury convicted the person, so he must be guilty, right? The case was probably predicated on the usual basis for conviction - eyewitness identificaction testimony (we know how unreliable that can be, don't we?), probably some statement he may or may not have given to the police, probably some corroborating evidence. In other words, just the kind of case that convict people everyday, both the guilty and the innocent (those were almost always present in the cases that have been reversed due to actual innocence proven from DNA over the last decade).

The reality is, that while the Innocence Project has freed well over a hundred murder convicts from death row, there are hundreds of thousands more sitting in our prisons, or thousands more sitting on our death rows, many of whom are guilty, but some of whom are innocent. They sit doing their time or awaiting their appointment with the death chamber, and frankly, no one even cares anymore. That is how mundane death has become. Innocent, guilty? Whatever, kill them and let God sort them out.

A Model for Prosecutors Everywhere

In what can only be described as a prosecutor's dream scenario, a Court in China conducted the trial of a New York Times reporter from there who accurately predicted the changes in leadership of China. The trial took one day. The defendant was not allowed to have anyone at the trial to view it ("state secrets"), and the defense was denied the right to call a witness on his behalf.

I have previously considered the manner in which prosecutor and police groups in this country want to "speed up" justice in this country, and take away more and more rights of defendants here (unless, of course, those defendants happen to be right wingers, in which case they truly are innocent, and shouldn't even be charged in the first place, but if a jury does something crazy like convict, you can always depend on trial judges or appeals court justices to reverse that - consider in general Stacy Koon & Larry Powell, the Rodney King beaters, or Admiral Poindexter and Ollie North, the Iran-Contra folk, or the Rampart Officers in Los Angeles). There have been proposals for stripping people of their rights to a jury trial in misdemeanors, to allow non-unanimous jury verdicts, to curtail the rights of defendants to call witnesses at preliminary hearngs, to eliminate the exclusionary rule for illegally seized evidence, to allow juvenile convictions to be used in adult court (this has happened, BTW, even though juvis have no right to a jury trial), to allow wholesale hearsay at trials against people, and plenty of other things of the like. Why not just do things like they do in China and make things so much easier?

Well, maybe it's not so far off these days. Consider all of the things that have happened in the last few years. Immigrants can be plucked off the street for terrorism investigations, even without the slightest suspicion, held in custody for months or years on minor technical visa violations ("your form wasn't dated on page 3"), and then deported without any charges ever being filed, all because you're the wrong minority. Or, you can be plucked off the street in Montenegro, flown to Afghanistan and tortured there for 5 months, and then dropped off in your home country of Germany because, ooops, we got the wrong person ("well, he was ARAB, so he's not totally innocent!"). When you sue in the US for your kidnapping and torture, your case is thrown out because the US Government asserts that these are "state secrets" (remember those, China???). Or, we now have 4 justices on the Supreme Court who want to get rid of the exclusionary rule altogether, so that there is no sanction against police officers who bust down your door and treat you like crap anymore.

So, as you can see, maybe we should just adopt the China system and make it a lot easier. There will be no more illusions, we can call a spade a spade, and we can finally start to win that war on crime that we've been pussyfooting around for all this time. Then again, isn't there the parable about boiling the frog slowly rather than just putting it into boiling water.....?

Hilarious Website - How not to steal a Sidekick

Seems as if this guy's girlfriend left her sidekick in a cab, and someone stole it. Unlike normal phones or PDAs, when you use a sidekick, the photos and information is uploaded to the server, which the subscriber can look at and even download to his computer. So, the guy downloaded them to his computer and now is publicly humiliating these people with their emails and instant messages to him, their photos they took on the sidekick, and their myspace pages that they reference. Now his site, in just a couple of days, is being looked at by hundreds of thousands of people, and the people who stole the thing are being mightly humliated.

I have to say, there is a strong place for shame over jail in our society as a means of dealing with petty crime. Vastly underused, far as I'm concerned. Of course, part of that may be that there is little shame left in society. But, having your whole story aired for the world to see can be more embarrassing than a simple rendition in court.

Listening in on Attorney Client conversations isn't just for Terrorists Anymore

Something very sinister is happening in LA County. It hasn't gotten any press yet (that I know of), but either the Distict Attorney, Sheriffs or police are getting orders from some really dumb judges to allow surveillance of ALL conversations that inmates engage in, including, at times, conversations with their lawyers.

Evidently this became known when, in Pasadena, it was found out that the police were bugging the lockup area where attorneys would often talk with their clients. Evidently they did this in one instance where they put two co-defendants next to eachother (a husband and wife, from what I hear), and one defendant kept pleading with the other to take the rap. In the tapes turned over to the lawyers on the case, another lawyer was heard talking with his client in another room right next door.

Just about all of our conversations with our clients are "monitorable," meaning, the Police have the ability to record nearly everything we say to our clients. However, having the ability to do it and actually doing are totally different. It now appears as if they are abusing that quite frequently. It is unclear if they are monitoring phone calls to lawyers, video conferences to lawyers, meetings with lawyers in the jails (we have to use those stupid phones to talk to our clients). The sheriff's department just redid the men's central jail so that there are no more face to face visits, but everything goes through that thick glass and a phone - and thus can be easily monitored (the only people doing interviews in that area are lawyers).

I've long held the slippery slope belief about many of the erosions of our civil liberties, that you start doing it with the "really" bad folk, and then move on to the less bad folk, until you're doing it to everyone. This has been the case with the terrorism prosecutions, where they would only name people like Osama an enemy combatant, until they started doing it to people like Padilla, for whom there was little evidence of terrorist activity. In Israel, I've seen quite a few hard-right wingers pissed off at the manner in which the police disperse settlers from illegal settlements, they're too rough, the right wingers complain. These, of course, are the same people who complained that the soldiers should be rougher with Palestinian demonstrators (guess what, teach them to be rough with protesters, and they'll go after you soon enough).

Now, after all of this talk about listening in on lawyer/client communications in the case of terrorism, the local police have taken the baton and run with it - why not do it on our cases. After all, isn't vandalism a form of "domestic terrorism?"

What do we make of Moussoaui?

I've learned that it's often wise to think for an extra moment before spouting off your opinion of something. Certainly in my line of work I have found that to be the case, as well as in life in general. The Moussoaui case is no exception.

Originally I was going to write what a huge verdict the jury came up with in that case, rejecting the death penalty when it was so clear that this evil blowhard had absolutely nothing to do with 9/11 (and probably knew nothing about it until he heard about it on the news after it happened). His idiotic testimony (the factual allegations, not his beliefs, which are pure evil) where he tried to place himself at the center of al Qaeda was simply ludicrous. That being said, I couldn't imagine that people would see past the emotion of 9/11 to vote for anything but death.

I was very surprised. And I was going to post about how incredible it was that a Virginia jury actually showed that kind of discipline to sentence someone as evil as him to Life without parole despite his lack of involvement 9/11. Then, I found out that only 1 juror actually voted for life vs. 11 who voted for death. Now, that's a very different story.

What I find most interesting at this point is the difference in Federal Law vs. California Law. In California, a hung jury in the penalty phase means that the prosecution, may, at their discretion (I've never heard of the Court preventing it) retry the penalty phase. Evidently, in the federal system, a hung jury in the penalty phase means an automatic sentence of Life without Parole.

That is a much more sane system. I think that they should do it here in California. Think about it, the only debate here, after a hung jury, is how much time the person spends in prison before dying. I've already written about the huge costs to the state to try and put someone to death. But, to go through the whole thing again (much evidence of guilt has to be put on in the subsequent penalty trial to give the jury the idea of what the person did, so the trial lasts a lot longer than the first penalty phase, but probably not as long as the original trial) just to ensure that the person dies in prison a few years earlier than they would if they died natural death - all the while spending hundreds of thousands more (on trial - it costs even more for the appeals), is absurd.

Why not just give the person an LWOP (life without parole) sentence? Is it really that important that they go to the gas chamber?

Even more interestingly in the case of Moussoaui was the reaction of so many families of the 9/11 victims. For many of them there was a sense of relief that Moussoaui was going to just disappear from the scene, likely never to be heard from again. He is going to have a bad life for the rest of his life, he'll probably be in solitary confinement without any meaningful contact with the outside world for 40 or more years, while he simply withers away. I have to think that this will be equally satisfying for most people.

I've often mentioned the hollowness that I sense from the families of victims after an execution, "the person didn't suffer enough," "it took too long," "this was too good for him," etc.... There wil be none of this, as Moussoaui simply disappears into the woodwork of history.

All the better, if you ask me. Do you really think that making him a martyr would've done anything positive for the world? Would it have made our society better? Would it have left our country looking more advanced than any of those countries we're trying to teach freedom to? Would it have engendered any more respect for us? Would people have really wanted to hear Moussoaui's final statement as he's being executed extolling his martyrdom? I don't think so.

Back from Hiatus, will post soon

Don't ask me why, I just haven't posted in ages (3 months, I think). I'd love to tell you I've been exceptionally busy (I've been busy, but not too much so), or that I have had no inspirations (I've had some, but obviously nothing so burning it forced me to write). In general, I've just not been in the mood for writing of late. I think it's starting to change, and I have some thoughts I want to write about the Moussaoui trial, which I will post later.

I think that I've had to write some really big motions at work lately and have just burned out on writing for fun for a little while. It's starting to come back, though, don't worry.

The White House has Lost Emails?????

I know regular readers of this blog will be surprised to know that I'm SHOCKED over the fact that the White House has apparently lost a whole batch of emails, directly related to L'affair Plame. Evidently, Libby's lawyers asked for a bunch of discovery, and then complained that Fitzgerald wasn't turning things over to them. Then Fitz replied - "the White House has [inexplicably] lost them." Alright, the whole quote is mine, and he may actually believe that.

But does anyone else really believe that these were just lost inadvertantly? The law states that any communications of this nature are not the property of the president in power, but of the national archives, who concede that this may have been lost due to inadvertance, but it doesn't seem so.

Is there a person alive who, honestly speaking, really thinks that these were lost just through "inadvertance," or that the Bush administration has the slightest degree of respect for a law which declares that their correspondence is not their own?

It's a good thing he hasn't received a blow job in the Oval Office yet, otherwise the Republicans in Congress may have to impeach him. Until then, he's safe.

Query, though, why this only made it onto the back pages of the LA Times?

Huge blogosphere blowout over 2 criminal law article series

In case everyone has missed it, there have been 2 criminal justice related series in 2 different newspapers that have been just outrageous in the manner in which they explore the criminal justice system.

The San Jose Mercury News has written one thoroghly exhaustive series about the criminal justice system in San Jose which excoriates just about everyone in the system for failings that have led to serious injustices.

The St. Petersburg (FL) Times has written a 3 part series that I'm far less fond of where they follow around a baby Public Defender as he starts his career in the office. I'm less fond of this one because the PD in question is hardly a stellar example of PDs that we hire, in my office, at least. This one looked to the PDs office as a last resort, and said in his interview that he wanted the job because the prosecutors weren't hiring. Some of his co-workers are serious prosecution tools, who make it their business to please prosecutors wherever possible (just like our clients accuse us). The word I've heard from a PD from a nearby Florida county, and who used to work in that office in Tampa, is that the head PD is a pretty pathetic PD, pays his lawyers very little, is always looking for new people because they burn people out so quickly, and generally don't have very high standards of representation. Evidently the top person has surrounded himself with many former prosecutors as his fellow supervisors (not exactly an office full of people dedicated to the "mission").

This is diametrically opposed to the bulk of the PDs that I know. In my area, PD turnover is very low, people stay on the job for decades because it is highly fulfilling, and the jobs are highly coveted, with hundreds of applicants per position. Also, we are paid the same as prosecutors.

These articles have received extensive attention on several of the other public defender blogs, only a few of which I have actually perused up to now, but you can clearly find more starting with these (2 of which - Blonde Justice & Skelly Wright's Arbitrary & Capricious - are my favorites). Read Skelly's take here, and Blonde's take here. Also check out Tom McKenna's blog, Seeking Justice, and his post here. Political blog Transparent Grid (who also appears to work in the criminal justice field, but I haven't read enough of his stuff to find out exactly how) also has a post about the series. Finally, group that I haven't yet given a huge shoutout to (note the yet), the PD investigator (they can make or break your case) is represented on PD Investigator blog with a great post here.

All of these sites, and others of course, are really burning up over these 2 news series. Go read the series, read the commentaries, comment back here and elsewhere. I'm curious about all different views that come back, from fellow PDs, but equally from law enforcement, prosecutors (like Patterico, where are you commenting on this stuff, or have you already and I just didn't notice it) and all other members of society. What do you all think about the actual construction of law enforcement now that you have some details. Are you satisfied? Do you want it done differently? Whaddya think?

Public Defenders Acquit themselves well in Santa Clara Study

I posted earlier about the fact that the San Jose Mercury News has written a long series about the criminal justice system in Santa Clara County. I really am excited about what an incredibe and comprehensive study they did. They really spared no one in their criticism of errors that take place there.

For this post, I want to focus on the errors that they find by criminal defense lawyers. One of the series was called The High Cost of Bad Defense that recounts the litany of errors of different lawyers who failed their clients, resulting in convictions that shouldn't have been, sentences longer than they should have been, and money stolen from clients who knew no better when they hired lawyers to help their family members. The story also talks about heroic lawyers who fought hard for their clients despite long odds and helped to exonerate the wrongly convicted, and did other things for their clients.

What I found most telling was how well Public Defenders came off in the study. The study didn't specifically look to see who did a better job, but in general, the only glaring error that they discussed by a public defender was when a PD didn't investigate some witnesses juvenile criminal backgrounds because she hadn't researched the area of law in question because she was too busy. I'm not going to excuse that, obviously lawyers shouldn't do that. That being said, I don't know a lawyer that hasn't made mistakes about what they could and should do in preparation of a case.

What was more telling was the manner in which so many other errors took place when private lawyers did minimal work, forced people into plea deals that they shouldn't have taken because they didn't want to spend too much time or couldn't collect enough money, or otherwise dumped the case because they were either bad lawyers or lazy ones.

Now, this isn't a private lawyer slam-fest. Make no mistake, if I get into trouble, I get a private lawyer, in large part because I'm not eligible for a public defender. But also, I would want that personal attention and handholding that money can buy and that PDs don't necessarily give a client (mostly because they don't have to - they're working on the case, that's enough). There are a lot of very good private lawyers out there. However, there are even more really bad ones, people who cannot measure up in the slightest to your typical public defender. They try, I give some of them credit, however, they can never match the training, experience and supervision that a public defender has. There are enough bad lawyers out there that people should be scared when they get private lawyers for their case if they don't know anything about the lawyer.

I have often marveled at the notion that people will hire just about any private lawyer out there so as to avoid a PD, due mostly to the stigma of PDs. That is stupid. I have seen very good PDs subbed out of cases for crappy private lawyers because people thought that if they spent something, then they must be getting something in return.

The reality is, there is no check on bad lawyers like there is on bad PDs. If a PD is really bad, there is a good chance that something will be done about it by his supervisors. If there is a really bad private lawyer, no one will do anything about it except the appeals courts, and as this study shows, they will do anything, no matter how dishonest, to uphold a conviction. If it means not slamming an obviously terrible defense lawyer, that's no problem on their part. Judges often prefer terrible lawyers because they are easier to deal with than real brawlers, lawyers who really fight for their clients. DAs certainly prefer that.

The real dilemna is, since most private lawyers are not as good as most PDs, how do you find a private lawyer who is really good? This is the cruel irony, the more you know about the inside of the system, the less likely you are to be able to afford a really good lawyer. Think about it, the people who know the inside of the system best (outside of those who work in the system) are defendants and their families. The more they get busted, the greater their body of knowledge. It also means the less they are able to afford higher priced representation. Word of mouth plays such a large part. A crappy lawyer can have a minor success in court, but if others in court see it, then they will go and ask for his card and try to hire him. Word spreads, sometimes based on real exploits, sometimes because you succeed without really having to do anything (such as a case getting dismissed because the prosecution is unable to proceed due to an unavailable witness - the defense lawyer did nothing to deserve that).

I did a trial for a very serious late last year with a really bad co-counsel. It really mattered, too. The co-Defendant should really have been pointing the finger at my client - I was certainly pointing it at him. One of my best weapons was the fact that co-counsel was so bad, I knew that he wasn't going to be able to effectively advocate on his client's behalf and blame my client. I knew that I would have a free ride in that case. I did, and I won the trial. The co-Defendant was convicted of all counts, and will now spend the rest of his life in prison (he really was guilty, mind you, and it was right that my client was acquitted, but a better lawyer may have done a better job of sowing reasonable doubt, or getting a conviction on a lesser crime, or something of the sort). The cruel irony is that the co-defendant fired his public defender, someone who had once trained me and was a pretty good lawyer, in order to get this lawyer, who was the worst lawyer I have ever seen in trial. That cost him thousands of dollars, and his life.

How does someone find out who a good lawyer is? That's really tough, and the fact that it is so tough is the reason why so many bad lawyers are hired all of the time.

This is why PDs acquitted themselves so well in the Santa Clara study. In follow up comments and Q&A with the writer of the story, he talks about how good he generally found PDs to be. I have certainly seen that. I would say that the average person in my office is better than about 90% of the private lawyers out there. They may not give the client the same personal attention that a private lawyer will, but they will do a very good job.

And you can't beat the price.

INCREDIBLE INVESTIGATION INTO SANTA CLARA COUNTY CRIMINAL JUSTICE SYSTEM - MUST READ!!!!

One of the most impressive pieces of journalism that I've ever seen is currently showing on the San Jose Mercury News web site (and in their papers as well, of course). The paper did a huge investigation of 5 years of cases that took place in Santa Clara county in California, which has a reputation as a very tough law and order jurisdiction. The paper found widespread abuse of the court system, sparing no one - defense lawyers, prosecutors and judges. The look is harsh, unsparing, and incredibly well detailed. It comes out with some of the most extensive facts related to the criminal justice system - at every level from arraignment to final appeal - that I've ever seen. And it is disturbing.

Judges who have an extreme bias towards prosecutors, coupled with overly aggressive prosecutors who push the envelope of legal bounds and ethics whenever they can, and a relatively compliant defense bar, all overseen by a non-existant court of appeals, have teamed up to give substandard legal protections to those in the criminal justice system. This is a must read, I will post more on individual aspects of the series later. It is too extensive to address in one post.

More on those who torture for US

I have written in the past about how the US is now a torturing nation, rather than a nation that tries to stop other nations from torturing. Used to be that we would threaten sanctions against nations that tortured people, now we give them people we need information from and ask them, wink wink, to get whatever info they can from this person, but please, do not torture them to get it. God forbid.

Ronald Reagan would not sign a nuclear detente treaty with Mikhail Gorbachev in the 1980s because the Soviets wouldn't agree to abide by the Helsinki accords (on human rights). Now, the US considers them and other protections against torture to be "quaint."

It is really sick, and the sickest thing is that most Americans don't seem to care. In fact, I would venture a guess that most Americans (and certainly most political conservatives) are perfectly happy with this. It is remarkable what happens inside this country once we get hit by our enemies. We act in such self-righteous anger that we would condemn around the world. Note that there is no dictator that I can think of in history that didn't articulate some real threat as a basis of usurping absolute power, or to engage in atrocities in their, or other countries.

Now we see a couple of trials that bring up the whole torture thing again. In Colorado, a US interrogator is on trial for killing the person he was interrogating. You won't be surprised to find out that he claims that he had at least implicit, and possibly explicit support for this conduct.

Reader Nelson wrote me about General Geoffry Miller, who was brought from Guantanamo to Abu Ghraib prison to kick more ass and take more names (evidently, they were doing it too softly in Abu Ghraib until he came along from Guantanamo so he could "Gitmoize" things over there - with great success, we may add, based on the great pictures that the guards took while doing his bidding). Evidently, General Miller, who had always claimed that these soldiers like Charles Granier and Lyndie England, were acting in a rogue manner inconsistent with what they were supposed to be doing. Never mind that none of them went as far as the Office of Legal Counsel under Alberto Gonzalez, or the Justice Department under John Yoo and Jay Bybee (don't worry, he can't hurt anyone else, he's now a federal appeals court judge, just below Supreme Court level) said they could go in their infamous memos.

Well, evidently General Geoffry Miller is asserting his right to remain silent from further questioning in the trial of a former dog handler who claims that he was authorized to use dogs to scare the detainees (in direct violation, evidently, of all international "norms," norms that we used to lead, not refuse to follow).

As I have noted before, I don't think that these soldiers should necessarily get a pass or their despicable behavior. But, let's call a spade a spade, the real criminals are not the people who did their bosses bidding (and for this you have to assume that the bosses indeed bid it - to think anything to the contrary is to have completely drunk the kool-aid, though. There is no doubt that the directives came from the very highest levels of government, if not the president, then at least those directly below him in his cabinet), but the bosses themselves. I find it outrageous, and truthfully, so should ever honest person in the country, that only the foot soldiers are taking the heat for this. How can it be that no generals, no high level military leaders or Pentagon advisors are being prosecuted, or at least questioned. The level of whitewash here, all to protect our "messiah president" (as so many of his followers view him), is despicable.

The damage to America's long-term interests - political, international, but mostly, moral - is just incredible. The world watches us and follows us. What do they see now? A clear message that if you state that you are involved in a war on (fill in the blanks), the rules do not apply to you. This will filter down throughout the rest of the world, and it will be less safe and less pleasant. It will filter down throughout the country, and we will be less safe here, and people here will have less respect for the rules. Individuals will claim special circumstances to bypass every rule. After all, our leaders do it, why can't they. This mess is going to take a generation to clean up. The crisis of morality in our own society will deepen.

All from an administration that said it was going to restore honor to the White House. Sick.

A shoutout to interpreters

Over at Blond Justice, Blond has written an interesting post about using interpreters in court. It is such a ubiquitous aspect of my job, I'm a little ashamed that I've never written about them in the past myself. To begin with, I'll point you to Blond's blog, because she does a great job describing how they are so helpful (or not, in certain circumstances). I will add a few things. First of all, the work they do is really amazing. I mean, I know a lot of people who can speak different languages, but when you deal with interpreters (especially Spanish interpreters, because they get so much daily practice), they are able to spit whole conversations out, back and forth, almost without delaying the conversation at all.

First off, you have to get used to speaking with interpreters. So, your thoughts must be more fragmented than usual. You need to give an interpreter about 20 seconds worth of thoughts that they can then turn and interpret to the client. You want the conversation to make sense, so you can't have long, expansive thoughts (this is actually good practice for cross examination and closing arguments).

You can't speak too quickly, obviously.

You also want to try and avoid idioms that may not translate well. It is pretty funny watching an interpreter try to translate are things like "your ass is grass" (just doesn't have the same meaning in Spanish, yet the concept is so appropriate to what I do). KISS (keep it simple, stupid).

I have seen some really bad interpreters before. Blond spoke about some interpreters that would appear to have conversations with defendants, rather than actually interpreting what they say. There was an interpreter of an Asian language (I won't get too specific so as not embarrass anyone) where I work who drove me nuts sometimes. He would do one or more of these different things in every conversation. Sometimes, I'd say something simple and short, he'd then speak with the person for about 30 seconds, the person would reply for about 30 more, they'd go back and forth, then finally he'd turn to me and say "no." As if that's all that happened in the 3 minutes since I finished talking. Other times I would say something, he'd turn and start speaking to the person, and then I'd notice something bizarre, I had a vague understanding of what he was saying. Just as vague as when he spoke to me, only this time he was speaking to the client. He was speaking his pidgin English with the client. Hello! I can do that just as well. A collegue who spoke the language he was an interpreter of noted that he didn't really speak that language well. We all noted that he didn't speak English that well either. Instead of bilingual, she called him "pre-lingual."

The regularly most funny thing that happens with interpreters is when I try to speak Spanish to a client in front of them. They are so used to reguritating what is said to them in English into Spanish, and vice-versa, that they often forget who is speaking to whom. So, the conversation goes back and forth for a little while, and then I'll say something to the client in Spanish (just to show off? Get my point across? Make it so they hear it directly from me? Whatever.), the interpreter will then turn and repeat the statement to the (Spanish speaking) client in English, only to realize that they didn't need to interpret that statement.

I will say this. After working in the courts for so many years, I have met many different people of varying backgrounds. No two people are the same, obviously. But, overwhelmingly, the most interesting people, with the most fascinating backgrounds, varied educations and overall most rounded and coolest people have tended to be the interpreters. Maybe because they often blend into the background of the courtroom (the proceedings are not about them in any way, after all), they don't get noticed as much. But so many of them have great life stories, and have lived in the most exotic places. More than any other group of people in the courthouse, when I socialize with interpreters outside of court, I have best conversations about subjects completely unrelated to work, which is a rarity.

Virginia man actually was guilty

A couple of weeks ago I blogged here on the issue of an innocent man being executed despite that innocence. This reflects a case currently going before the Supreme Court where Tennessee seeks to execute a man named Paul House for a murder many now doubt he committed, all in the name of finality - he was convicted, and we can't keep re-opening cases in the name of "new evidence" if we ever want to get these pesky executions behind us.

Well, one of the cases that I referenced where an innocent person may have been executed was that of Roger Keith Coleman, executed in 1992 despite a general dearth of evidence against him, and scientific evidence that could prove his innocence.

It didn't.

DNA tests just conducted show that he was, indeed, the man who, at the very least, raped his sister in law, and in every likelihood, killed her as well (to the extent that his supporters contended that a lack of a DNA match would exonerate him here, it convicts him here as well - what's good for the goose is good for the gandor).

I hope I haven't suggested in my posts that cases in which there is no physical evidence cannot be sufficient in getting the right person, because that is certainly not my belief. My position is simply consistent with the evidence we have seen over the last decade of increased reliance on DNA tests - newly discovered DNA evidence has cast doubt on many of these convictions that were based on things like eyewitness identifications or false confessions, or jailhouse snitches. This does not bring every conviction into doubt.

Of course, we still have the Cantu case out of Texas, which seems utterly suspicious, but will never be cleared up by physical evidence because none exists, and so he'll be just as unable to prove himself innocent of that murder as I am of proving myself innocent of killing Nicole Simpson (hey, I lived in LA at the time, my wife was out of town when it happened, so I was home alone with no alibi, and I can't PROVE I didn't do it, so I guess I'm not actually innocent of it, just not guilty - yet????).

They call this a setback for the death penalty opposition. I disagree. This is a victory for those who wanted some degree of justice (I'm not suggesting that execution is better justice than LWOP). Now we know for certain that, regardless of what you think of the Death Penalty, at least the right person was executed, and a killer doesn't walk free while an innocent man was murdered in the name of "justice."

That would be truly disturbing, and I don't relish it happening, no matter how much "good" it does the movement.

Disclaimer for my future confirmation hearings

I just want everyone to know, all of the things that I've said here about prosecutors, police, judges, the criminal justice system, and things of the like - these were said only in this limited capacity as a public defender, and do not reflect my true views, and certainly do not reflect the manner in which I would rule if I were a judge.

So, just like Samuel Alito's discussion of his positions when he was writing memos for the Reagan administration, my views here should not have any impact on my future as a judge or supreme court justice.

Oye, Oye, Oye, Judge PD Dude presiding......

Jumping on the Cory Maye bandwagon

A little too late, if you ask me. Thanks to reader Thane Eichenauer (you can see his blog here), who posted a comment to my Tookie post, I became aware of the case of Cory Maye. I'm somewhat ashamed that it has taken me a few weeks to finally post on the subject, as this is really one of the more egregious miscarriages of justice that I've read about (outside of having a case where the wrong person is charged and people generally realize it but don't try to stop it). Google has a nice compendium of Cory Maye news that synopsises the case very well. I won't try to get into excruciating details right now, as it has been done many times, and it would be boring if I merely repeated what other wrote.

Briefly, Cory Maye lived in a duplex that was side by side with another person who was suspected of having large amounts of marijuana. Based on an informant's statement, the police got a warrant to search that person's place, and Maye's place as well. Allegedly Maye's house was suspected as well. They served the warrant on the neighbor's house without incident and found a large stash of pot. They busted down Maye's door at 11:00 PM, and when Maye heard them (he was alone with his 18 month old daughter), he grabbed his gun to defend his house. The first person through the door was the officer who wrote the warrant (and apparently the only person aware of the identity of the confidential informant who supplied the info for the warrant), Officer Jones. Maye contends that they didn't knock or identify themselves as police officers (the police say otherwise). Maye shot Officer Jones, and then police identified themselves. He immediately dropped his gun thereafter. Evidently Jones was not at all trained in doing these kinds of raids, and he appeared to have gone deep into the house when he encountered Maye. Maye claimed

There is some dispute as to what was found in his place. The police contend that hours after searching, they found a tiny baggie of pot in it. Evidently, some dispute even that assertion, but assuming it was true, it hardly justified the warrant, nor is it any evidence of being a drug dealer. Maye was convicted and sentenced to die by a jury in 5 hours of deliberation. He had no criminal record.

This case has, over the last month, become a cause celebre among the blogosphere. Randy Balko of the Agitator took up interest in the case, and was immediately followed by others (including, interestingly enough, Glenn Spencer of the right wing Instapundit blog). I was informed about the case (and duly outraged), but it took me until now to write about it.

My take on this is little different than my take has been on so many other cases in the criminal law is - the bias towards the police is so palpable that it subverts the system in so many insidious ways. Do you think there is a chance in the world that had drug dealers busted down some police officer's door and the police shot him that the shooter would be facing the death penalty. The fact that he is in custody at all, let alone on death row, is disgusting.

I have to digress for a moment to make it clear that I, like just about any other member of society, want to live in an ordered society where people are safe from criminals, and I respect police officers for trying to make our society work like that. However, when police officers are allowed to not obey the law (see my previous post), these acts are frequently covered up and innocents are arrested instead to protect those in blue. It happens too much, and it is sick. A corollary to that is when an officer dies, the police will do anything they can to get their revenge, regardless of what the rules are. Mr. Maye seems to have run afoul of both of these tendencies.

What is the basis of Officer Jones getting a warrant based on the unsubstantiated word of an "informant?" How does he get a late night warrant for a house based on nothing more than the word of someone? By all accounts, the informant was wrong about Maye's house, and there was absolutely no corroboration for his assertions about Maye's dealing of drugs. Furthermore, having Officer Jones, who has no training in SWAT techniques, lead the raid into the house is crazy. That is begging something bad to happen.

Part of the proliferation of SWAT units, and the desire to do these high profile raids, comes from the love of the military and the militirasation of the police force. Police chiefs (started by former LAPD Chief Darryl Gates) just love their military hardward to ride around in. Society just loves military allusions as well. All towns, from the largest to the smallest, are getting SWAT teams these days so they can do their high profile raids on the citizenry. This is a part of the long swing in favor of "safety" over "liberty" that our society has been following for the last 30 years.

When Officer Jones was shot, the police identified themselves and Maye dropped his gun. First of all a quesiton. If Maye knew that Jones was police, why did he drop his gun after shooting Jones? Why not shoot the rest. It looks as if he didn't know he was police. Obviously, the police need to do something after this happens, though. To not prosecute Maye would be to concede errors on their part, and possibly open themselves up to liability to Jones's family or to Maye for the raid and search. The only choice, you have to go after Maye for murder to cover up for the gross errors of the police. Once you go after him for murder, you gotta get rid of him, so you seek the death penalty (evidently they seek it more willy-nilly out there in Mississippi, I can't imagine this one being a death penalty case in Los Angeles, but you never know, killing cops usually results in a different form of justice).

I see the main thrust of the cyberspace response to the Maye sentence being against an injustice, in that he should not be executed for this, and possibly shouldn't even be in jail. What is far more interesting to me, though, is the relationship between the citizenry and the police in this case. A man had his house searched for little or no cause, late at night, in an extremely provocative and scary raid, and shot in self-defense. Now he faces execution for that? All because the person he shot at was a police officer who was probably acting improperly? The fact is that there is little special about this case, except that it got lots of press. What is more remarkable is that high profile conservatives (at least, Glenn Reynolds) have taken up his cause. He questions in his post on the subject why the usual anti-death penalty folk haven't taken up Maye's cause. I couldn't agree with him more. I hope this is a sign of the beginning of the depolitisation of the death penatly, which I think would be highly beneficial to society as a whole.

Why is it that only my clients have to obey the law

It consistently infuriates me that the politically powerful disobey the law with impunity, and yet over and over, it is generally my clients (I say that meaning not only my clients, obviously, but my general population that I represent - the poorer, larger percentage minority and the sociologically downtrodden) that are forced to obey the law. It's not enough that police officers don't have to obey the law, and that the courts can frequently just disregard the law to get to their desired result (usually one screwing my clients, or favoring the politically beautiful over the political toads), but the president of the United States has made it abundantly clear that he doesn't think that the law applies to him.

(Note - Martin Lederman over at Balkinization Blog has a great post about this here. It is well worth the read, and much better written and analyzed than I can ever do, or at least have the patience to do).

After all of the things he has done to flout the law over the last 5 years, brazenly, openly, unrepentantly, he now intends to bypass the McCain torture ban with a a simple filing of a declaration that the law does not impede him from carrying out his constitutionally required powers of defending the American people.

Hello, that is exactly what the law is intended to do, restrict what he is able to do. The law makes it clear - no torture, no exceptions. What does Bush say? I'll obey the law, when I want to. This is no different than bypassing the FISA Court to get wiretap authority (can you guess the obvious reason that he is bypassing that court, when he can get a warrant 72 hours after the wiretap begins? It is because he is spying on non-terrorists, such as political enemies).

There is only one thing you can do when a president has made it clear that he will not obey the laws imposed by Congress (or, for those of you who failed elementary school government - the People), that is impeachment. At the very least, Bush should have to explain in an impeachment proceeding why he shouldn't be removed from power, why his violations of the law were so absolutely necessary that he couldn't get a warrant 3 days after breaking the law.

Is there any reason in the world by this guy is less of a criminal than any of my clients? Because he has the right intentions? Doesn't matter, intent only matters to show that you intended to do the act charged with, it's clear he had the intent to spy without a warrant. The road to hell is paved with the best of intentions.

For over 200 years our country has lived with the notion that no man is above the law, and that applies equally to the president. It's not like he's apologizing, or saying that it had to be done in this manner, he's unrepentant, and says he'll keep doing it, even though he could go to the FISA court any day. Now he's going to violate our bans on torture. I can assure that there is not a dictator in the world's history who did all of his evil acts in the name of "security." When will our population grow up enough to realize that a simple repitition of the word "security" does not justify tyranny.

What's next, a simple declaration that it is not in the country's safety to have an election at the volatile time of war we are in in 2008? What if in 2004 he had decided that regardless of the outcome, it was in our country's national security interest that there be no change of power in the White House. He certainly argued as much to the electorate - if he believed it, what's to say he didn't act on it in secret. Maybe he decreed that it was in our vital security interest that voting machines in Ohio be tabulated in his favor, regardless of the vote.

Alright, I know I'm getting a tad bit conspiratorial there, but we know he will break the law to pursue aims of what he thinks is in the country's best interest. How far of a leap is that? Nixon was willing to subvert democracy by covering up his cohorts breaking into the opposition headquarters - that's not too far a leap to the anti-democratic tactics of fake democracies around the world like in Egypt, Iran, or Zimbabwe. How far is Bush from those kind of decisions. Either he really didn't think that the Democrats are dangerous to the country and was lying, or he has to be willing to bend the law to ensure that he wins elections.

This is a truly dangerous person for our democracy.

US Supremes to re-confirm - Execution of the Innocent OK?

As I noted in a post a few weeks ago related to Tookie Williams, I am ambivalent about the death penalty, in large part due to its application. More than a decade ago, the US Supreme Court held that actual innocence does not make the death penalty a violation of the constitution (in a Texas case, fathom that). Ruben Cantu was executed in that case despite serious doubts that he had committed the offense. Don't worry, his co-defendant, who got life, has spoken out plenty about how he and another person really did the murder (read about it here), so we can be assured that while justice has not been done, at least the constitution has not been violated.

So now we have a newer case, with somewhat similar issues. Here, Paul G. House was convicted back in the 80s, and using the (now laughable) technology they had back then, the prosecution was able to determine that the he was in a small part of the population who could've left the semen on the victim's clothes, which was evidence that he raped her, which gave him an intent to do the murder.

Problem, using newer technology of late, it has been shown that the semen doesn't match the suspect's DNA, but it does match her husbands, who was an original suspect and who had been seen beating her in the past.

A bunch of other pieces of the prosecution puzzle have slowly melted away through either new technology or new information, and in the latest appeal, the court of appeals split 8-6-1. 8 said something to the effect of "sure, he may be innocent, but we have to respect the verdict of the jury, so let's kill him." 6 said not only is this conviction invalid, but the dude's actually innocent, and he should be released immediately." 1 person said "well, he may be innocent, but at least the prosecution should have to retry him and see if they can convict him with this new information." In other words, a hung jury. Usually, that means the defendant does not die. Not in this case.

I'm sure my readers from the right and left won't be surprised to note that the 8 votes came from Republican appointed judges, and the 7 came from Democratic appointed judges. Someone like me would probably argue that this shows that Republicans don't really care about who they kill as long as they get to kill someone, somehow - killing is good, let God sort them out. Of course, someone on the other side would probably argue that this just shows that Democrats don't think that anyone should ever be convicted, much less killed, when they do evil, and they will stretch facts and law to do anything they can to let bloodthirsty murderers back on the street.

Seriously, though, this case will be an interesting one to watch in the Supreme Court, especially with the new Chief Justice and the spector of a Alito's replacement of O'Conner. It would seem that the Supreme Court would, if they had serious doubts about the case, try to find any technical reason to grant the defendant a new trial, but they are restrained by prior precedent and laws such as the 1996 law that severely restricts the scope of federal review of death penalty verdicts. In 1993 in Cantu, the Supreme Court already wrote that actual innocence is not a constitutional bar to execution, the 1996 law says that the case cannot be relitigated in federal courts. The defendant in this case has already had his opportunity to present new evidence in support of his innocence (he had something like 180 days after his conviction, meaning, several years before the new technology appeared that crumbled the main pillars of the prosecution case).

Here's my thoughts on why there is such a desire in cases like this to ensure that there is no reopening of the cases and to execute the person, quickly and quietly, in spite of serious evidence pointing to his innocence (and why, after someone has been executed, the state, such as Virginia in the case of Roger Keith Coleman, who it executed in 1992, has done everything possible to prevent a showing of a miscarriage of justice even after the execution takes place). (UPDATE - I just found an article from today about this case in Virginia here on CNN, and apparently the state and prosecution are no longer opposed to the retesting. I have a clear recollection of prosecutorial opposition to it in the past, so either I'm wrong, or their position has changed.)

I think that prosecutors nationwide realize the shakiness of many of the cases that they bring. Think about it, over 100 death penalty cases have been reversed due to DNA technology alone. In most of those cases, when they were brought, the cases were not scientific evidence cases, they were eyewitness cases, or circumstantial evidence cases, or confession cases. In other words, they were cases in which potentially faulty evidence was the only evidence possible to sustain the conviction. In those cases, the prosecution probably pooh-poohed defense contentions that the evidence was faulty, and urged the jury to find the defendant guilty despite whatever misgivings they may have about certain aspects of the evidence. The jury probably convicted despite weak evidence due to appeals to racism, or hatred of the defendant's past, or because police urged them to do so by claiming (in many cases - falsely) that the defendant confessed, or through emotional appeals of a victim or other eyewitness who was sure (again, incorrectly) that the defendant was the one who did the crime. In other words, in those cases that were reversed over the last few years in which the defendant was absolutely innocent (as opposed to merely not guilty), the case was like just about any other case, only in this one, years later they found the proverbial smoking gun that proved the defendant was innocent.

Prosecutors worry about what those cases say about every other run of the mill case they get, and, more importantly, if these cases get too much attention, what they say about their ability to convince juries that these other run of the mill cases are not actually like the cases in which defendants were later found to be innocent. I have seen prosecutors struggle with the so-called "CSI effect," which means that they are worried that juries will watch that show and think that this is the standard they need to have a case proven to them by - absolute scientific proof, rather than relying on the words of eyewitnesses or police officers, which are the bread and butter of any prosecutor's office. They now pick juries asking them if they watch CSI, and whether potential jurors understand that they don't have to prove their case "beyond all doubt, only beyond a reasonable doubt" (emphasis mine, and sometimes their's).

This became apparent when the juries in the Michael Jackson and, even more so, the Robert Blake trials came back with verdicts of not guilty, and rejected prosecution witnesses outright without corroboration, or rejected circumstantial scenarios that they presented without some scientific corroboration. In other words, jurors thought about these people walking out of the death chamber innocent of the charges and said "you had better give me more proof than that." Prosecutors do not want this can of worms to extend to the appeals courts. They realize that quite a few convictions they get depend on possibly shaky testimony, and could've gone either way (and certainly, plenty of guilty people are acquitted due to the prosecution having only shaky testimony against the defendant where the defense succesfully argues that the witnesses shouldn't be believed). The last thing they need is any more light shed on those convictions that they do get under those scenarios, or any possibility that the number of those convictions declines to any extent.