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.
Friday, January 20, 2006
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.
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.
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......
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.
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.
(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.
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.
Thursday, December 22, 2005
A book worth reading - Death Row Defender
I recently read a book that is well worth reading if you are a mystery fan, a crime fiction fan, or someone interested in the criminal justice system, all things that I am interested in. The boook is Death Row Defender, and the writer is Ray Dix. First, a disclaimer, many months ago Ray wrote me about his book, and later sent me a copy. To the extent that Ray sent me the book for free, saving me $12 and the trouble of going to the store or buying online, my review could conceivably be colored by his generosity. That being said, I've had other books sent to me by other writers that have not merited reviews in the past, so that should allay you concern that I'm writing this out of some misguided sense of $12 obligation.
Ray's book is about an death penalty appellate lawyer named Woody Thomas in Florida who picks up his newest case. A young man named John Clayton is on death row accused of raping and killing a woman several years earlier. He is set to be executed shortly, and Thomas is tasked with looking to see if there were any issues missed in the case worthy of further appellate review that may save his life. Only, Clayton doesn't want Thomas to "save his life" (ie - get him life in prison), Clayton wants to get out, because he's innocent. Fat chance.
The book takes you through the legal process of death row inmates, as well as the underlying trial, and the drama behind the initial killing, coverup, and attempts to dissuade Thomas from conducting his investigation into the underlying crime. The story is very interesting, the drama is very real, and aside from the thriller aspect to the book, it gives a terrific insight into the life, mindset, and complexity of a defense lawyer. Rather than being a bleeding heart do-gooder, which is how most people probably think of defense lawyers, Thomas is that, but he is also hardened by his time serving in Vietnam, rough around the edges at times, sensitive and caring at others. He maintains a high degree of incredulity about both things his client and law enforcement say to him. He has close friends in both camps (as many defense lawyers do). In short, he is a complex person with a complex past who you begin to really like as the story goes on.
The book is a quick read, once you start it is engrossing and hard to put down. Good thing it isn't too long, as I tend to put aside things like, well, work, when I find a good book, which I did for this book. There were many times in court when I was all too accomadating to other lawyers in court letting them go ahead of me while reading the book.
In closing, I would highly recommend this book. The name doesn't say much about the book, but don't hold it against Ray and his book. I could easily see this becoming the type of book where the character recurs in many future volumes dealing with new cases. Unfortunately, in contrast with books like those of Patricia Cornwall, Jonathon Kellerman or other mystery writers, one would not expect to have lawyers continually run into the type of excitement that Woody Thomas seems to find himself in this case. If he does, then that would be a jurisdiction that I would never like to practice in. So, if you can make him a reucurring character, go for it Ray, if not, I enjoyed his one appearance in print.
Now, can I get a piece of the movie deal......:)
Ray's book is about an death penalty appellate lawyer named Woody Thomas in Florida who picks up his newest case. A young man named John Clayton is on death row accused of raping and killing a woman several years earlier. He is set to be executed shortly, and Thomas is tasked with looking to see if there were any issues missed in the case worthy of further appellate review that may save his life. Only, Clayton doesn't want Thomas to "save his life" (ie - get him life in prison), Clayton wants to get out, because he's innocent. Fat chance.
The book takes you through the legal process of death row inmates, as well as the underlying trial, and the drama behind the initial killing, coverup, and attempts to dissuade Thomas from conducting his investigation into the underlying crime. The story is very interesting, the drama is very real, and aside from the thriller aspect to the book, it gives a terrific insight into the life, mindset, and complexity of a defense lawyer. Rather than being a bleeding heart do-gooder, which is how most people probably think of defense lawyers, Thomas is that, but he is also hardened by his time serving in Vietnam, rough around the edges at times, sensitive and caring at others. He maintains a high degree of incredulity about both things his client and law enforcement say to him. He has close friends in both camps (as many defense lawyers do). In short, he is a complex person with a complex past who you begin to really like as the story goes on.
The book is a quick read, once you start it is engrossing and hard to put down. Good thing it isn't too long, as I tend to put aside things like, well, work, when I find a good book, which I did for this book. There were many times in court when I was all too accomadating to other lawyers in court letting them go ahead of me while reading the book.
In closing, I would highly recommend this book. The name doesn't say much about the book, but don't hold it against Ray and his book. I could easily see this becoming the type of book where the character recurs in many future volumes dealing with new cases. Unfortunately, in contrast with books like those of Patricia Cornwall, Jonathon Kellerman or other mystery writers, one would not expect to have lawyers continually run into the type of excitement that Woody Thomas seems to find himself in this case. If he does, then that would be a jurisdiction that I would never like to practice in. So, if you can make him a reucurring character, go for it Ray, if not, I enjoyed his one appearance in print.
Now, can I get a piece of the movie deal......:)
Tuesday, December 13, 2005
Tookie is Dead
Well, all the bluster and positioning are over, and Tookie has been executed. I haven't written a huge amount about the death penalty of late, but it is something that certainly affects my life, as someone who currently represents someone whom the prosecution seeks to kill, and someone else that they very well may seek to kill in the near future when they make their decision about it.
I have long been ambivalent about the death penalty. In many respects, I have no problem with the notion that as a society, we are so angry at someone that we will kill them. I mean, I have certainly hated people enough that I wanted to kill them, and we're not even talking about violent crime. There are times I want to be able to run bad or rude drivers off the of the road in complete anger and disgust. Of course, in the sober light of day, with a little reflection, that looks ridiculous. But certainly, if someone raped my wife or molested my kids, even if they didn't kill them or inflict any "lasting" bodily injury, I would not be happy with a long prison sentence, or even a life sentence, I would want to kill the person.
The fact that society harbors those feelings towards those who do evil is no surprise, or frankly, concern to me.
Certainly, practical concerns about the application of the death penalty bother me. The fact that it is used overwhelmingly (nationwide, although not in California over the last 30 years) against minorities and poor people. The fact that people on death row, especially in places with a lesser sense of "justice," have been given very unfair trials, which have even led to innocent people being left on death row. It is unclear if or how many innocent people have been executed since the death penalty's resumption in the 1970s, in large part due to the fact that far less resources are expended in clearing the already dead, vs the not quite yet dead. Add in that the fact evidence is usually destroyed after an execution and the fact that whatever is left over is almost never allowed to be tested for possible claims of wrongful execution, and it is clear that some innocent have probably been killed (there are cases out of Texas and Virginia in which it appears potentially innocent people were executed).
The final "logistical" problem (as opposed to any moral concerns) one may be concerned with is the randomness of it's application. How someone convicted of a particularly heinous crime one place gets life, while someone convicted of a more "benign" murder somewhere else is executed, frequently due to differences of race, gender, sexual orientation, race of the victim, or more importantly, political considerations of the local or state prosecution or judiciary.
But, these are not the concerns that leave me ambivalent (remember that ambivalent doesn't mean neutral, but rather having feelings in both directions, which is how I feel). I feel ambivalent due to the sterile nature of the process. We take something as emotional as revenge, life for a life, anguish over the death of a loved one, and we transport it to this sterile environment of a courtroom, or a jail cell, and finally to an execution chamber where they use all means possible to keep someone alive so that they can kill him cleanly, at a date and time of their own choosing, not someone else's. This is why people are rushed to the hospital so that they can be held alive a few more days (such as if they try to commit suicide) so that they can be killed by the state.
The sterility of the process belies the vengefulness that begat the policy. And it somehow seems unseemly for the state to go about the sterile application of cold-blooded vengeance. Obviously, the state kills people all the time in a justifiable manner (war, for instance?), but that is not sterile, clean and premeditated (at least, we hope). Recognizing that people will invariably die due to state policies (such as building the Golden Gate Bridge or the Panama Canal, where thousands died), it is very different to act with great pomp and circumstance and formality while the state goes about extinguishing a human life.
As I see the state ramp up it's death apparatus, the cold blooded and steely manner in which the state kills stands in such marked contrast to me from the manner in which the actual victims live in permanent red-hot anger - something that does not abate, regardless of an eventual execution.
And this brings up the point that seems most obvious to me as I sit and reflect on any wrong done toward me over time - there will hardly ever be true personal satisfaction from the ultimate revenge. Listen to the statements of the families of the victims, over and over they say the same thing, at every execution - "he died too nicely," "he got more years than my family member did," "he didn't have the same pain my family member did," and on and on. In attempting to mete out the ultimate revenge, the state perpetuates a system of vengeance that is not, ultimately, any more satisfying than life in prison would end up being.
Sure, maybe we could have trials within a week of the offense, and execute within a month, and emotions will be equally raw, so that the crime and punishment will have a far greater symbiosis, but we have to recognize what every efficiency we put into the system causes - more failures.
Ultimately, I don't know if our desires - red hot vengeance and true justice, can ever result in a system that will give us the society we want. So, while I don't mourn for the killer over their victims, I still feel this disquiet as the state's machinery of death continues on.
But, it is clear that probably the vast majority of people in the state overwhelmingly approve of his execution, and that the state machinery of death will continue unabated for years to come.
I have long been ambivalent about the death penalty. In many respects, I have no problem with the notion that as a society, we are so angry at someone that we will kill them. I mean, I have certainly hated people enough that I wanted to kill them, and we're not even talking about violent crime. There are times I want to be able to run bad or rude drivers off the of the road in complete anger and disgust. Of course, in the sober light of day, with a little reflection, that looks ridiculous. But certainly, if someone raped my wife or molested my kids, even if they didn't kill them or inflict any "lasting" bodily injury, I would not be happy with a long prison sentence, or even a life sentence, I would want to kill the person.
The fact that society harbors those feelings towards those who do evil is no surprise, or frankly, concern to me.
Certainly, practical concerns about the application of the death penalty bother me. The fact that it is used overwhelmingly (nationwide, although not in California over the last 30 years) against minorities and poor people. The fact that people on death row, especially in places with a lesser sense of "justice," have been given very unfair trials, which have even led to innocent people being left on death row. It is unclear if or how many innocent people have been executed since the death penalty's resumption in the 1970s, in large part due to the fact that far less resources are expended in clearing the already dead, vs the not quite yet dead. Add in that the fact evidence is usually destroyed after an execution and the fact that whatever is left over is almost never allowed to be tested for possible claims of wrongful execution, and it is clear that some innocent have probably been killed (there are cases out of Texas and Virginia in which it appears potentially innocent people were executed).
The final "logistical" problem (as opposed to any moral concerns) one may be concerned with is the randomness of it's application. How someone convicted of a particularly heinous crime one place gets life, while someone convicted of a more "benign" murder somewhere else is executed, frequently due to differences of race, gender, sexual orientation, race of the victim, or more importantly, political considerations of the local or state prosecution or judiciary.
But, these are not the concerns that leave me ambivalent (remember that ambivalent doesn't mean neutral, but rather having feelings in both directions, which is how I feel). I feel ambivalent due to the sterile nature of the process. We take something as emotional as revenge, life for a life, anguish over the death of a loved one, and we transport it to this sterile environment of a courtroom, or a jail cell, and finally to an execution chamber where they use all means possible to keep someone alive so that they can kill him cleanly, at a date and time of their own choosing, not someone else's. This is why people are rushed to the hospital so that they can be held alive a few more days (such as if they try to commit suicide) so that they can be killed by the state.
The sterility of the process belies the vengefulness that begat the policy. And it somehow seems unseemly for the state to go about the sterile application of cold-blooded vengeance. Obviously, the state kills people all the time in a justifiable manner (war, for instance?), but that is not sterile, clean and premeditated (at least, we hope). Recognizing that people will invariably die due to state policies (such as building the Golden Gate Bridge or the Panama Canal, where thousands died), it is very different to act with great pomp and circumstance and formality while the state goes about extinguishing a human life.
As I see the state ramp up it's death apparatus, the cold blooded and steely manner in which the state kills stands in such marked contrast to me from the manner in which the actual victims live in permanent red-hot anger - something that does not abate, regardless of an eventual execution.
And this brings up the point that seems most obvious to me as I sit and reflect on any wrong done toward me over time - there will hardly ever be true personal satisfaction from the ultimate revenge. Listen to the statements of the families of the victims, over and over they say the same thing, at every execution - "he died too nicely," "he got more years than my family member did," "he didn't have the same pain my family member did," and on and on. In attempting to mete out the ultimate revenge, the state perpetuates a system of vengeance that is not, ultimately, any more satisfying than life in prison would end up being.
Sure, maybe we could have trials within a week of the offense, and execute within a month, and emotions will be equally raw, so that the crime and punishment will have a far greater symbiosis, but we have to recognize what every efficiency we put into the system causes - more failures.
Ultimately, I don't know if our desires - red hot vengeance and true justice, can ever result in a system that will give us the society we want. So, while I don't mourn for the killer over their victims, I still feel this disquiet as the state's machinery of death continues on.
But, it is clear that probably the vast majority of people in the state overwhelmingly approve of his execution, and that the state machinery of death will continue unabated for years to come.
Wednesday, December 07, 2005
Delay does a "Public Defender" in definition of Victory
For those of us who work with cases that can be complete losers all the time, we are used to coming up with creative definitions of victory. Doing a death penalty trial and your client gets life without parole? That's called a huge victory. Client is offered 10 before trial and gets 5 after trial? Another huge victory. He gets convicted of only 3 of the 5 counts in the complaint? That's a victory. On trial for murder and is convicted of manslaughter? That's a huge victory also.
So, seeing the Republican reaction to Tom Delay's getting one of 3 counts dismissed yesterday reminds me of being a public defender. Which suggests to me that his case sucks about as bad as our typical client's case sucks. They probably have boatloads of evidence against him, and on come small technical grounds he was able to get a dismissal of one charge. I noted that none of his arguments to dismiss the other counts were substantive arguments going to the heart of guilt or innocence as to the main allegation. For instance, he argued that money laundering is only for illegal activities (not true), and that money laundering has to be with cash only, not checks (also not true, but very creative, I can only assume that we'd see a lot of drug dealers doing transactions by check if that actually was the case).
So, the fact that he's trumpeting the dismissal of one count sounds so, well, shall we say it, "Public Defender" to me. It smacks of the little victories we often have to be satisfied with as we are getting are asses handed to us in the courtroom.
Of course, they feel all the more satisfying often because we are frequently going up against DAs who consider anything less than a complete conviction a devestating loss. The fact that they acted like they lost makes it feel all the more satisfying for us.
Anyways, fight on Delay, it's nice to see you in the role of the underdog, the poor persecuted individual against the big evil government. I'm sure the memories will stick with you once you get back to the majority leader position when you're finally acquitted, and that you will be reformed - a champion of the underdog.
Yeah, right.
So, seeing the Republican reaction to Tom Delay's getting one of 3 counts dismissed yesterday reminds me of being a public defender. Which suggests to me that his case sucks about as bad as our typical client's case sucks. They probably have boatloads of evidence against him, and on come small technical grounds he was able to get a dismissal of one charge. I noted that none of his arguments to dismiss the other counts were substantive arguments going to the heart of guilt or innocence as to the main allegation. For instance, he argued that money laundering is only for illegal activities (not true), and that money laundering has to be with cash only, not checks (also not true, but very creative, I can only assume that we'd see a lot of drug dealers doing transactions by check if that actually was the case).
So, the fact that he's trumpeting the dismissal of one count sounds so, well, shall we say it, "Public Defender" to me. It smacks of the little victories we often have to be satisfied with as we are getting are asses handed to us in the courtroom.
Of course, they feel all the more satisfying often because we are frequently going up against DAs who consider anything less than a complete conviction a devestating loss. The fact that they acted like they lost makes it feel all the more satisfying for us.
Anyways, fight on Delay, it's nice to see you in the role of the underdog, the poor persecuted individual against the big evil government. I'm sure the memories will stick with you once you get back to the majority leader position when you're finally acquitted, and that you will be reformed - a champion of the underdog.
Yeah, right.
Subscribe to:
Posts (Atom)