Friday, January 27, 2006

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?

Thursday, January 26, 2006

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.

Wednesday, January 25, 2006


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.

Friday, January 20, 2006

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.

Monday, January 16, 2006

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.

Friday, January 13, 2006

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.

Tuesday, January 10, 2006

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......

Friday, January 06, 2006

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.

Wednesday, January 04, 2006

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.

Tuesday, January 03, 2006

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.