Thank Goodness

Very Short: I am gratified that George Zimmerman has been charged with second degree murder in the killing of unarmed Trayvon Martin. That is appropriate. It took far too long, but at least this initial step has now been taken.

Let's not forget, however, that this charge is only the very first step toward justice for Trayvon Martin. Now comes the harder part. This charge will probably not stop all of the extrajudicial spinning by "legal advisers" and "family friend[s]", but now that's not as important. It's up to the Special Prosecutor and her team to put together a case that proves Z's guilt beyond a reasonable doubt to a unanimous jury.

I hope they will do just that.

Please Wear Your Hoodie Today

In solidarity with Trayvon Martin and in pursuit of Justice in his case, please wear your hoodie today.

Here's Trayvon:

Here are the Miami Heat:

Here's your Bloguero:

Please join us.

I could ruminate here about what a moron Geraldo is, but the point is that there's nothing about this clothing that justifies an armed security guard's chasing someone, initiating a confrontation, and then killing an unarmed child.

I won't rest until there's an arrest and prosecution in this case. And I do NOT want to hear again ever how the "Stand Your Ground Law" immunizes killing unarmed children when the killer is the one who initiates the pursuit and confrontation. Even the killer's given up that argument.

Justice For Trayvon

Yes, yesterday's march is over, but the struggle about this case isn't over. Not yet. And now there is significance every time you put on that hoodie. When yo do that, you're Trayvon. And if you're walking in a neighborhood where somebody doesn't think you belong, you have the same risk.

I am waiting for the arrest, indictment and trial of Z. How long, one wonders, can he be permitted to remain at large, uncharged, given what we now know about his unprovoked shooting of unarmed T? How long do we have to wait for the arrest of Z, who apparently was the initial aggressor in this incident and was told by dispatchers to leave T alone?

I'm waiting. And I don't care how hot it is today, I'm going to wear my hoodie. Join me.

The latest from CBS is instructive:

As that tension rises, the co-author of the Stand Your Ground law, in effect since 2005, is now saying it may need to be clarified.

"Nothing's ever finished in the legislature, I learned that. Everything can always be re-addressed," State Rep. Dennis Baxley observed.

He told us the law wasn't intended to cover citizens who pursue suspected threats.

So is he willing to revisit the language in the law and potentially change it?

"We need to look at the circumstances that occurred and see if some kind of legislation is in order," Baxley responded.

Polluters Seek To Cut Off Legal Clinic Funding

Polluters and other defendants in numerous lawsuits brought by Law School Clinics in behalf of the victims of corporate and state government abuse have discovered their adversaries' Achilles heals. Reprising events in the early history of the Legal Services Corporation, the defendants are now actively moving in state legislatures to cut off funding to the law school clinic lawyers who represent their adversaries. The result, they hope, will be continued immunity from legal inquiry and a continuation of business and pollution as usual.

Many years ago, during The Great Society, the federal government funded the Office of Economic Opportunity, (OEO) which provided many services, including civil legal services to poor people. These legal services were obviously capable of transforming society in fundamental ways. Poor people, for so long disenfranchised, found they had access to federal and state courts and free lawyers to pursue fundamental violations of their civil rights. Instantly, poor people had allies in enforcing their legal rights. In response, those who favored the status quo immediately sought not to remedy poor people's complaints, but instead to cut them off from their lawyers, to forbid the lawyers from pursuing these important cases.

By 1975, in response to conservative complaints, Richard Nixon managed to dismantle the OEO and to replace it with the Legal Services Corporation, which took on the OEO's legal services mission In the early and mid-70's LSC lawyers continued nevertheless to provide poor people with needed legal services to address their personal legal issues (e.g. divorce, foreclosure, debt collections, etc) in cases that could not generate fees (e.g. personal injury accidents which generated contingency fees), but they also engaged in "law reform" cases, most frequently federal, class action, civil rights cases against state and federal agencies in behalf of welfare recipients, consumers, prisoners, and numerous others who could not retain counsel for important, worthy cases. These cases were capable of changing entire systems in state government: how welfare benefits, food stamps and other benefits were provided, how the states ran their penal and mental health facilities, whether the states could permit various kinds of consumer transactions, and so on.

Congress and state governments, of course, reacted extremely negatively to these cases. Who, they inquired, did these welfare recipients think they were to file lawsuits so that they would receive prompt benefits? Who did these prisoners think they were to file lawsuits to require uncensored mail and medical treatment and freedom of religious exercise? Who do these unemployed workers think they are to require fairness in decisions about their unemployment benefits? The list of complaints was as numerous as the policies of governmental and corporate agencies who were being challenged. What made the howling of these defendants most vocal was that for years their practices had been illegal, but those they were taking advantage of, those who were their victims didn't have the resources to fight back in any effective way.

At first, President Nixon's henchperson sought to kill the LSC program off. Failing to kill it completely, the federal government unleashed a trend which continues today in restrictions of the many, many kinds of cases LSC lawyers are not permitted to pursue. In general the civil legal assistance that remains includes the following:

* Family law: LSC grantees continue to help victims of domestic violence by obtaining protective and restraining orders, helping parents obtain and keep custody of their children, helping family members obtain guardianship for children without parents, and other family law matters. More than a third of all cases closed by the local programs are family law cases.


* Housing & Foreclosure Cases: More than 25 percent of cases involve helping to resolve landlord-tenant disputes, helping homeowners prevent foreclosures or renegotiate their loans, assisting renters with eviction notices whose landlords are being foreclosed on, and helping people maintain federal housing subsidies when appropriate.


* Consumer Issues: Twelve percent of cases involve protecting the elderly and other vulnerable groups from being victimized by unscrupulous lenders, helping people file for bankruptcy when appropriate and helping people manage their debts.


* Income Maintenance: Approximately 11 percent of cases involve helping working Americans obtain promised compensation from private employers, helping people obtain and retain government benefits such as disability benefits to which they are entitled.

These are extremely important services, they are very important to a huge number of people and they are worthy of our full support. But if there was at one time a movement in the LSC to initiate reform, to represent poor people in large, class action, civil rights cases against government institutions and corporations, to shift power from the status quo to the then disenfranchised, it long ago moved from LSC. It was no longer funded by the Government. The Government, if it ever was, was no longer intent on rooting out inequality by providing access to the courts at taxpayer expense. There could be civil representation of poor people, and they would benefit from it, but the lawyers would be forbidden from seeking to alter the balance of power in society.

Where is this important legal work now? Two main places (apart from private law firms that for one reason or another decided to handle important cases pro bono): not for profit legal services organizations including but not limited to the NAACP Inc Fund, Center For Constitutional Rights, ACLU and Mississippi Center For Justice, all of which, of course, have limited resources and must choose cases on the basis of the impact they will have, and as important, the Law School Legal Clinics.

And now, to no one's surpirse, the the law school clinics face the same tide of reaction from state and federal government and the large corporations they are suing, as LSC faced thirty-five years ago. The New York Times reports:

ANNAPOLIS, Md. — Law school students nationwide are facing growing attacks in the courts and legislatures as legal clinics at the schools increasingly take on powerful interests that few other nonprofit groups have the resources to challenge.

On Friday, lawmakers here debated a measure to cut money for the University of Maryland’s law clinic if it does not provide details to the legislature about its clients, finances and cases.

The measure, which is likely to be sent to the governor this week, comes in response to a suit filed in March by students accusing one of the state’s largest employers, Perdue, of environmental violations — the first effort in the state to hold a poultry company accountable for the environmental impact of its chicken suppliers.

Law clinics at other universities — from New Jersey to Michigan to Louisiana — are facing similar challenges. And legal experts say the attacks jeopardize the work of the clinics, which not only train students with hands-on courtroom experience at more than 200 law schools but also have taken on more cases against companies and government agencies in recent years.

State government itself and its powerful, corporate contributors know full well how to respond to meritorious lawsuits that will result in injunctions and expense and changes in their profits. Don't fix the problem, they say, just cut off the plaintiffs' lawyers' funding. Make the plaintiffs incapable of pursuing their claims however meritorious. Forget about whether the claim is or is not going to prevail in court, just make it go away. Cut off funding for the law school clinics, and voila! it's as if the lawsuit had been won by the defendants. The practices that led to the lawsuit remain immune from review and remedy because nobody who is affected can afford to pursue the issue.

The Maryland clinic's litigation is instructive:

The fight is proving especially heated here in Maryland because it so directly focuses on Perdue, one of the state’s most powerful political players and the sixth-largest poultry company in the country.

The suit accuses Perdue and Alan and Kristin Hudson, two Maryland chicken farmers who contract with Perdue, of polluting the Pocomoke River and allowing chicken waste from the farm to flow to the Chesapeake Bay.

The suit argues that Perdue dictates so much of how farmers handle their flocks — including the food and medicine the chickens get, as well as the size and location of the bird houses — that the company effectively shares operational control of the farm and thus should be held accountable for what happens there.

Luis A. Luna, a spokesman for Perdue, said that though the company had done no lobbying in support of the pending legislative measure, the company’s chairman, Jim Perdue, went to Annapolis in early March to tell lawmakers that cases like this one represented “one of the largest threats to the family farm in the last 50 years.”

“Perdue can take care of itself,” Mr. Luna said. “But the small farmers who make up an important part of this industry cannot survive against lawsuits like this.”

And why, you might ask, isn't Maryland's Attorney General's Office pursuing this very litigation to prevent the pollution of streams and rivers with chicken manure? Why is it that the clinic finds itself acting as if it were an agency that was supposed to enforce Maryland and US environmental laws and regulations? Where is Maryland's enforcement power and the EPA?

“There is no reason that tax money should pay for these law students to act like regulators,” said State Senator Robert Adley, a Republican who submitted the bill in response to a request from his state’s oil and gas industry.

Obviously, when the regulators put issues on hold and slumber, someone needs to step in. The concept is called becoming a private attorney general. The law school clinics have stepped up because they needed to, and now for all their good work, they face being drastically limited or shut down. They too will always be able to provide divorces to people who cannot afford counsel, but, just as happened with LSC 35 years ago, those who control the purse strings will be able to stop all of their threatening, law reform efforts.

The answer, if there is one, involves increased funding from private individuals and the Bar to private, not-for-profit firms and organizations which can effectively pursue these important issues. Or more unlikely, the commitment of state governments and law schools to providing counsel in important cases to those who would otherwise remain voiceless, regardless of the controversy that might provoke. In the absence of both of these alternatives, corporate and governmental mis- and malfeasance prevail solely because no one can challenged them in the courts.

The Gitmo 9: First Let's Bash All The Lawyers

The first thing we do, let's kill all the lawyers.

Henry VI, Part 2; Act 4, Scene2

The New York Times editorial gets it right. The Right is attacking DoJ lawyers who once represented Gitmo detainees. The Times correctly points out that this is a smear for political gain that undercuts justice in this country.

In the McCarthy era, demagogues on the right smeared loyal Americans as disloyal and charged that the government was being undermined from within.

In this era, demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within.

These voices — often heard on Fox News — are going after Justice Department lawyers who represented Guantánamo detainees when they were in private practice. It is not nearly enough to say that these lawyers did nothing wrong. In fact, they upheld the highest standards of their profession and advanced the cause of democratic justice. The Justice Department is right to stand up to this ugly bullying.

Senator Charles Grassley, Republican of Iowa, has been pressing Attorney General Eric Holder Jr. since November to reveal the names of lawyers on his staff who have done legal work for Guantánamo detainees. The Justice Department said last month that there were nine political appointees who had represented the detainees in challenges to their confinement. The department said that they were following all of the relevant conflict-of-interest rules. It later confirmed their names when Fox News figured out who they were.

It did not take long for the lawyers to become a conservative target, branded the “Gitmo 9” by a group called Keep America Safe, run by Liz Cheney, daughter of former Vice President Dick Cheney, and William Kristol, a conservative activist (who wrote a Times Op-Ed column in 2008). The group released a video that asks, in sinister tones, “Whose values do they share?”

"Whose values do they share?" They share my values. I've been a criminal defense lawyer for more than thirty years. When I represent someone who is charged with murder, I'm not endorsing murder. When I represent someone who is charged with other heinous acts, I'm not advocating for those acts. No. Not at all. Not ever. I'm trying to do something that's hard: to make sure that the accused gets a fair trial regardless of what s/he is charged with. I'm trying to make sure that the accused has the benefit of each and every legal right s/he has under the US Constitution and laws. And I do this proudly. It's a sacred obligation. It's called justice. And it doesn't depend on the popularity of the accused.

But that's not the approach of the Righwing talkers and blabbers.

On Fox News, Ms. Cheney lashed out at lawyers who “voluntarily represented terrorists.” She said it was important to look at who these terrorists are, including Salim Ahmed Hamdan, who had served as Osama bin Laden’s driver. Let’s do that.

Mr. Hamdan was the subject of a legal battle that went all the way to the Supreme Court. Ms. Cheney conveniently omitted that the court ruled in favor of his claim that the military commissions system being used to try detainees like him was illegal. Republican senators then sponsored legislation to fix the tribunals. They did not do the job well, but the issue might never have arisen without the lawyers who argued on behalf of Mr. Hamdan, some of whom wore military uniforms.

In order to attack the government lawyers, Ms. Cheney and other critics have to twist the role of lawyers in the justice system. In representing Guantánamo detainees, they were in no way advocating for terrorism. They were ensuring that deeply disliked individuals were able to make their case in court, even ones charged with heinous acts — and that the Constitution was defended.

It is not the first time that the right has tried to distract Americans from the real issues surrounding detention policy by attacking lawyers. Charles Stimson, the deputy assistant secretary of defense for detainee affairs under George W. Bush, urged corporations not to do business with leading law firms that were defending Guantánamo detainees. He resigned soon after that.

If lawyers who take on controversial causes are demonized with impunity, it will be difficult for unpopular people to get legal representation — and constitutional rights that protect all Americans will be weakened. That is a high price to pay for scoring cheap political points.

Put another way, the Rightwing argument from Beckistan is that Atticus Finch should never have taken on that case in Maycomb County, Alabama. And William Kunstler and Leonard Weinglass should never have taken on that case in Chicago. And Thurgood Marshall should never have taken on that case about the Topeka, Kansas Board of Education. The list of lawyers who shouldn't have taken various cases is a proud and an exhausting one. I can think of a few cases I have handled that I hope fit comfortably in the same category. After all, it's relatively easy for lawyers to know which cases these are: they're the ones where complete strangers, not to mention immediate family members say to you in words or substance, "How could you represent that awful person who did such terrible things?"

The Times is right that the tactic from Fox and elsewhere is about "scoring cheap political points." The bigger question, the one the Times doesn't reach, the one that is really most disturbing, is how the general state of understanding of the justice system became so beclouded that the Fox argument was not immediately scoffed at as arrant stupidity.

State Killing: Travesties Of Justice Just Keep On Coming

Today's New York Times tells the story of yet another travesty of justice from Alabama in a death penalty case. This is the kind of thing that unfortunately is no longer a revelation. It's what you might expect. And it's happened over and over again. The Times reports:

Kenneth B. Trotter had been practicing law for less than a year when an Alabama judge appointed him to assist two more seasoned lawyers in defending a man facing the death penalty.

After the man, Holly Wood, was convicted in 1994 of murdering his former girlfriend, Mr. Trotter led the effort to persuade the jury to spare his life. The young lawyer came up just short: the jury recommended death by a vote of 10-to-2, the minimum allowed under Alabama law.

Mr. Trotter failed to pursue or present evidence that his client was mentally retarded, though he had a competency report in hand that said as much. In September, a divided three-judge panel of the federal appeals court in Atlanta ruled that he had made a strategic decision, not a grave error.

Judge Rosemary Barkett, the dissenting judge, saw it differently.

“An inexperienced and overwhelmed attorney,” Judge Barkett wrote of Mr. Trotter, “realized too late what any reasonably prepared attorney would have known: that evidence of Wood’s mental impairments could have served as mitigating evidence and deserved investigation so that it could properly be presented before sentencing.”

What is this saying? Maybe Mr. Wood wouldn't have been sentenced to death if the lawyer at his penalty phase had a couple years more seasoning. Or had introduced in evidence the document he apparently had in his hand showing that Wood was retarded. Or maybe Wood wouldn't have faced lethal injection if the Alabama courts literally followed Supreme Court decisions like Ring (forbidding the execution of people with an IQ less than 70) and didn't invent more "death friendly" interpretations of them. Or maybe Wood wouldn't have been sentenced to death if Alabama required a unanimous rather than a 10-2 verdict for death. And maybe Mr. Wood's death penalty wouldn't have been upheld if 2/3's of the Eleventh Circuit panel understood that leaving out mitigation evidence isn't ever a strategy for saving the accused, it's a lapse that can almost certainly kill him. Put another way, look how very close Wood came to a sentence of life without parole and not a state killing.

Is it tolerable to rational humans that all of these small, somewhat technical points are the differences between living and dying, between whom the state kills and whom it spares? I think not. These points only underscore the capriciousness of state killing.

Look at the admission of ineffectiveness Trotter made back in 1994 when he wrote to a colleague:

Mr. Trotter said he was anxious and lost. “I have been stressed out over this case and don’t have anyone with whom to discuss the case, including the two other attorneys,” Mr. Trotter wrote.

Clearly, the appointed defense lawyer was in over his head in the task of saving Wood from execution. He had one year of practice. He had no experience. He had two lawyers with him whom he couldn't talk. He had Wood's life in his hands. And he was being paid up to a maximum of $1,000 for the sentencing. It's a recipe for disaster. It's a recipe for the state's killing people who shouldn't be killed. But it's not unusual. And it's not just an Alabama problem. Not by a long shot.

Fortunately, the story doesn't end in the Eleventh Circuit. The Times informs us that the Supreme Court has now granted certiorari:

Last month, the United States Supreme Court agreed to hear Mr. Wood’s case. It will give the court a glimpse of Alabama’s capital justice system, which is among the most troubled in the nation. The state lacks a public defender’s office, elects judges for whom death sentences are a campaign promise, pays appointed lawyers a pittance and sometimes leaves death row inmates to navigate the intricacies of post-conviction challenges with no lawyers at all.

The root problem is money, said Bryan Stevenson, the executive director of the Equal Justice Initiative of Alabama, a nonprofit law firm that represents poor people and prisoners. The lawyers appointed to represent Mr. Wood in 1994 were entitled to a maximum of $1,000 to prepare for the penalty phase of the trial.

“It ought not be a shock to anyone that you get this kind of defense with that kind of funding,” Mr. Stevenson said. “The poor quality of indigent defense is still the ugliest scar on capital punishment in America.”

Bryan Stevenson is a brave and talented and resourceful lawyer. He's right that a root of the problem is money, but it's not "the" root. There's another, deeper root, one that is far more entrenched, and that is the insatiable desire of Alabama and the other states in the death belt for retribution in certain cases. An eye for an eye might leave the whole world blind, but that's not the culture in Alabama, and it's not something that deters revenge. Especially when the accused is not white, especially when the victim is white, especially when the accused is poor, or developmentally disabled. Providing inadequate, ineffective counsel is just a part of the revenge.

There's no question why revenge against Wood for his crime led to seeking the death penalty. Wood committed a horrendous brutal crime:

In September 1993, three weeks before Mr. Trotter was admitted to the bar, Mr. Wood broke into the home of a former girlfriend, Ruby Gosha, and killed her while she was sleeping with a shotgun blast to her head. Soon afterward, according to testimony from a cousin, Mr. Wood admitted to shooting Ms. Gosha, saying he had “blowed her brains out and all she did was wiggle.” Mr. Wood was the father of one of Ms. Gosha’s children.

You can easily understand why revenge called out for an execution. Given the culture, it made sense to prosecutors to seek the death penalty. So they did. And given the culture it made sense to appoint lawyers who were clearly not up to the task of saving Wood's life. That's not something that the state intends to "fix" by appointing better lawyers, by creating a statewide, capital public defender program. The inadequacy of the defense is just another part of the state killing machinery.

Sadly, we're going keep seeing these state killing stories from the death belt as long as there is a death penalty. Yes, it's barbarianism. Yes, it's disgraceful. And it won't be ended until voters across America are ready to say it's enough, we cannot have any more state killing, we cannot afford the extremely high expense of state killing, life without parole is more than enough punishment, and it adequately protects us.

Governor Rell Vows To Preserve State Killing

What a disgrace. On Friday, the Connecticut legislature passed a bill abolishing the death penalty. I asked readers of my essay to call or email Governor Rell to ask her please to sign the bill. There was, I pointed out, a strong chance that the Republican Governor, a long time death penalty supporter, would veto the bill.

Today's Hartford Courant says that Governor Rell vows to veto the measure when it gets to her desk. It might take a few weeks to get there:

Just hours after the state Senate gave final legislative approval Friday to a historic measure abolishing the death penalty in Connecticut, Gov. M. Jodi Rell came out with an expected announcement:

She said she was going to veto the measure as soon as it hits her desk.

"I appreciate the passionate beliefs of people on both sides of the death penalty debate. I fully understand the concerns and deeply held convictions of those who would like to see the death penalty abolished in Connecticut," she said in a statement.

"However, I also fully understand the anguish and outrage of the families of victims who believe, as I do, that there are certain crimes so heinous — so fundamentally revolting to our humanity — that the death penalty is warranted."

What nonsense. The families of victims are far from unanimous that the death penalty is warranted. In fact, as the Courant pointed out in its photo caption, Friday "[f]amilies of victims of murder [spoke] at a press conference in support of a bill passed by the legislature Thursday that would abolish the death penalty. Pictured are Gail Canzano, at podium, Elizabeth Brancato of Torrington, State Representative Gary Holder-Winfield of New Haven, Rev. Walter Everett , Cindy Siclari of Monroe and Anne Stone of Farmington." So the Governor's invocation of wishes of the families of victims rings hollow.

We can all easily understand how appealing revenge on killers might be, but the overwhelming majority of civilized societies in the world have now abandoned that barbarian argument. Rell chooses, however, to dress up the old canard in victims' rights clothing. The fact is that she's not doing anything for victims' families by permitting the state to kill killers. And she's certainly not doing anything for the rest of us, in whose names these state killings will be carried out. State killing doesn't deter killing, and it doesn't bring "closure" to the families of victims.

Governor Rell's vowing the veto because she allegedly "believes" in the death penalty. And when Republicans enact policies just because they believe in them-- surely the memory of George W. Bush has not been forgotten-- you know that irrationality has prevailed.

You might want to tell Governor Rell that the death penalty is a bad idea, that we can live without it, and that she's making a mistake if she vetoes this bill.

Please telephone Governor Rell (860.566.4840) or email her (Governor.Rell@ct.gov) and let he know that it's time for Connecticut to step into the 21st Century. It's time for her to sign the death penalty abolition bill.

Prolonged Detention: Whipped Cream On Manure Doesn't Make A Dessert

Put in the simplest terms, the proponents of "prolonged detention" think that dressing up preventive detention with post detention procedures will make it constitutional. Procedures= whip cream. Detention= manure. This will not make the prolonged detention policy palatable. It will not preserve the sentiments behind the US Constitution. And a debate about how many dollops of whipped cream are required will completely miss the point. The point imo is that prolonged detention is in a single word unacceptable. It should not be countenanced. The idea should be shelved and abandoned.

The NY Times tell us that the "prolonged detention" plan is still mostly theoretical, that there aren't real details, but there's a frightening, general plan:

Mr. Obama has so far provided few details of his proposed system beyond saying it would be subject to oversight by Congress and the courts. Whether it would be constitutional, several of the legal experts said in interviews, would most likely depend on the fairness of any such review procedures.

Ultimately, they suggested, the question of constitutionality would involve a national look in the mirror: Is this what America does?

“We have these limited exceptions to the principle that we only hold people after conviction,” said Michael C. Dorf, a constitutional law professor at Cornell. “But they are narrow exceptions, and we don’t want to expand them because they make us uncomfortable.”

In his speech on antiterrorism policy Thursday, Mr. Obama, emphasizing that he wanted fair procedures, sought to distance himself from what critics of the Bush administration saw as its system of arbitrary detention.

“In our constitutional system,” Mr. Obama said, “prolonged detention should not be the decision of any one man.”

I want to repeat myself. The proponents of "prolonged detention" think that dressing up detention with post detention procedures will make it constitutional. Procedures= whip cream. Detention= manure. Please recall that what the current Supreme Court says is Constitutional is the final word on a topic. So the practical question the administration faces is just how much seeming fairness in procedure do they have to provide to satisfy a rightwing dominated Supreme Court that defers regularly to assertions of national security and expertise by the executive. The answer? Not so much. Not so much at all. A little bit more than Bush. Maybe half a dollop.

But even aside from that, and the historical willingness of the Supreme Court to endorse totalitarian measures, like detention of Japanese citizens in the face of claims of national security threats, procedural protections are only as good as the person making the decision. Let me explain this: Substantive measures like detention of scary people will always trump procedural protections.

Years ago I was involved in representing prisoners (in prisons and mental institutions) who were punished by their holders for violating institutional rules. At the time, the big, national push was to require that prisoners receive a hearing before they were thrown in solitary confinement or lost good time or had to endure other serious punishments. We got federal courts to order that the accused prisoners would have a prior hearing unless it was an emergency. If it was an emergency, they could be locked up first and then be given a "due process" hearing with significant but not unlimited procedural safeguards. The prisons were enjoined to follow these rules. Great. An apparent victory for the prisoners, right? Wrong. Did any fewer prisoners end up in solitary? No. Did any fewer prisoners argue that they had been unfairly punished? No. Whoever held the hearing made whatever decision s/he thought should be made. The result was that the hearings slowly became recognized kangaroo courts. The procedural protections were there in theory only.

How could this happen with all of court ordered "due process" protections the inmates had? Hah. As a colleague of mine said about this very issue, "You can put whip cream on dung, but it doesn't make it a dessert." The prisons wanted to put prisoners in special housing units for long periods of time. Guess what? They did that. The procedures were there so they could argue later on, "But you had a fair, due process hearing in full compliance with what the federal court ordered." In some ways, and this is frightening, it made confinement easier.

The next question is who. What lucky people, who will be initially chosen to experience "prolonged detention" in all its wonderful procedural glory? The Times says:

Mr. Obama’s proposal was a sign of the sobering difficulties posed by the president’s plan to close the Guantánamo prison by January. The prolonged detention option is necessary, he said, because there may be some detainees who cannot be tried but who pose a security threat.

These, he said, are prisoners who in effect remain at war with the United States, even after some seven years at Guantánamo. He listed as examples detainees who received extensive explosives training from Al Qaeda, have sworn allegiance to Osama bin Laden or have otherwise made it clear that they want to kill Americans.

Did you get that? There are prisoners we have now who we cannot try because we have no admissible evidence (maybe they were tortured, maybe there was no evidence in the first place that they committed a crime, who knows why they've been locked up for 7 years or more?) but, and this is the big but, even though there's no proof they did anything, and there's nothing they could be tried for, they still are claimed to "pose a security threat," one that requires them to be locked up forever.

Take a look at the nearby precedents for detention without proof of crime: sexual predators who have finished their prison terms, psychiatric inmates who are an imminent danger to themselves and others, people who represent a risk to the community who have been charged but not yet convicted of serious crimes. In other words, the scary people. So, of course, the scary people from Gitmo might become a fourth category. Put another way, people come up to those who defend such people at cocktail parties and ask, wide eyed, "How can you defend such a person?"

The legal question might be parsed as how many dollops of whip cream procedure are required to turn detention into a seeming dessert. The current proposals, as general as they are, give cold comfort: the decision shouldn't be made by one person, there should be oversight from congress and the courts. Congress, of course, has provided such masterful oversight in the past 8 years that it's rational to rely on that. Not. And the Courts? You've got to be kidding. Show me a single court when faced with a claim of national security that has denied the claim outright.

My point on this? The people, yes, Virginia, they are people, presently held in Gitmo need to be tried or released. There should be no third category, there should be no "prolonged detention." The correct approach to this issue is to stop trying to make "new regimes," new categories, new inventions. The correct approach is to stop making believe that what the US is doing in the GWOT is a "war." And that the alleged participants in terror are some kind of special "enemy combatants." They're not. They're more criminals than they are soldiers. And we should imo be trying them as criminals if we possibly can. And if we cannot try them, the required step in the US for the past two hundred years is this: release them.

I am alarmed, but not surprised that so many people are ready to make excuses for the Government on this issue. To me, this is one proposal that needs for the sake of our country to be shelved and abandoned.

So Now I Have To Defend The American Bar Association?

I'm not a member of the ABA. When I read in the New York Times that there was a challenge to the ABA's neutrality in evaluating judicial nominees, I was surprised. I thought, oh, the right wing is now complaining because Obama is going to appoint liberal judges and they're going to be approved by the ABA. In other words, I thought, the so-called challenge was another rightwing political move. Turns out, I was probably right. But I confess, I've always thought these evaluations were quite fair, competently done, and without significant ideological spin.

My comments:

“Holding all other factors constant,” the study found, “those nominations submitted by a Democratic president were significantly more likely to receive higher A.B.A. ratings than nominations submitted by a Republican president.”

Right. Does that mean there's a bias or that the Republican presidents have been submitting hacks for judgeships? I think it might be the latter, and that that's a tradition ever since Haynesworth and Carswell. Seriously. Can anybody say that a democratic president has ever submitted anyone as lame as those two? And we can also discuss Sandra Day O'Connor and Justice Burger. This isn't about statistics: there are few enough nominations that you can actually examine the merits of each.

The bar association says it does not consider ideology in its ratings, basing them only on professional competence, integrity and judicial temperament. It is the third factor, one the association defines to include compassion, open-mindedness and commitment to equal justice under the law, that critics say leaves room for subjective judgments that may tend to favor liberals.

So when you appoint somebody to the bench who is unalterably opposed to equal rights for a particular group (say, e.g., gay people or women) and who argues that there's no basis in law for that, who argues that certain Supreme Court decisions are utterly wrongly decided and must be reversed, and generally has an unalterable, political agenda about various topics, is it "subjective" to say that they lack "judicial temperament?" I just don't think so. If the judge is out of the mainstream and an ideologue about his/her positions, that's not exactly a demonstration of the proper temperament. Why? Because the cases are going to be decided before any trial is held.

Recent Supreme Court nominees, including Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Stephen G. Breyer and Ruth Bader Ginsburg all received the group’s highest rating. Harriet Miers withdrew her nomination before the bar association issued a rating.

But Justice Clarence Thomas was given a split rating of “qualified” and “not qualified.”

I'm sorry to say, based on the decisions I've read and the transcripts of oral arguments in the Supreme Court, the ratings were right. Thomas was not qualified. And he still isn't.

This article reports a phony complaint about the ABA. It's not something to be given any credibility.

Saving 49 Lives (Part 3)

There are 49 people presently facing the federal death penalty. If we wanted to, we might be able to spare them. We might be able to get the new Attorney General, Eric Holder, to review the decisions by the three Bush Administration Attorney Generals to pursue the death penalty in these cases, and if the new Attorney General thought, if there were convictions, that the defendants shouldn't be killed, he could require prosecutors not to seek the death penalty, to be satisfied with a maximum sentence of life without parole. This would be a remarkable development. It would save lives. The United States would join the civilized world that has stopped state killing. The essential hypocrisy of an eye for an eye would be abandoned. It would be a new era. We would not have these people's blood on our hands.

In general, the 49 people facing the federal death penalty aren't very nice people. They've been charged with horrible crimes. Many have previously been convicted of horrible crimes. Many of them really should be confined so that they will not kill and maim again. But the issue before the new Attorney General isn't whether to invite these people to a Georgetown dinner party. It's whether, once a jury has convicted them of terrible crimes, to ask that the jury vote to kill them. That is a step in the criminal process that can easily be foregone. Life without parole is a horrible sentence. And it is enough. It is enough in every single case.

So, I have been writing about the 49 lives and what it will take to save them. On Sunday, I wrote an essay which began with a discussion of how the three Bush Administration Attorney Generals had broken previous tradition and had decided that they, and not the local US Attorney in a district, should decide whether the death penalty should be sought in federal cases. I wrote that the new Attorney General should review each of these cases and should apply new criteria, his own criteria, to determine whether it was appropriate to continue to seek the death penalty in each of the cases. This made sense to me. I posted the essay here, at dailyKos, at Wild Wild Left, at Never In Our Names, and at my beloved The Dream Antilles. That it received little response didn't matter to me: it was Superbowl Sunday, and, after all, it was an essay about the death penalty. Most death penalty essays quickly degenerate into brawls in which some people, even on supposedly progressive blogs, argue that they're ok with the death penalty and that we should make it work better, to keep it from making the kinds of mistakes that have now caused the exoneration of more than 130 people who were sentenced to death.

The essays all scrolled off. The response was minimal. When I awoke on Monday, I thought I needed to keep this idea alive. So, instead of doing other, pressing things, I wrote an essay about the same topic, saving the lives of the 49 people facing federal death penalty prosecutions. I explained that I wanted readers to email the new Attorney General, Eric Holder, who was expected to be confirmed on Monday evening, and to request that he review all of the 49 pending federal death penalty cases and that he withdraw permission to seek the death penalty when the cases did not meet his criteria. I provided a link so that readers could send their own message to the White House, or the 500 character message I proposed to ask for this. I again posted the essay here, at dailyKos, at Wild Wild Left, at Never In Our Names, and at The Dream Antilles. I also sent the essay along to blogs dealing with criminal justice and to blogs dealing with criminal defense. I also sent the essay along to mailing lists dealing with death penalty abolition and death penalty defense. That this second essay received little response didn't matter to me: it takes a lot, an awful lot to get folks motivated to do anything about those who might be facing the death penalty. OPOL and NPK and others offered encouragement. I agreed to be persistent. I agreed to continue to raise the issue. But the second essay, also, scrolled off. And then there was again cavernous silence. And the 49 people were still facing the death penalty, and nobody in Washington was calling me to say that these cases would be reviewed.

Very well. I decided I needed to write a third essay, this one. I decided that I needed go through the whole drill yet again, but first, I decided that I would start an online petition asking Attorney General Holder to review all of the pending federal death penalty cases and to direct federal prosecutors not to pursue the death penalty if the cases didn't meet his criteria. I would tell you, dear friends, about this first. Tomorrow, when I can post again at the other blogs, I will edit this and post this there.

Why did I create and post an online petition? Generally, I dislike online petitions. I don't think they do very much. But I created this petition because I want to find ways of helping people to tell the Attorney General that it is important to us, that we want him to review the 49 pending death penalty cases, that we want him to save these lives. And also, it's important for us to have something that we can circulate across the wide and boundless Internet so that others can learn about this issue and can say, "Yes," I want the Attorney General to review these cases and cancel the prosecutors' authority to ask for death in each of them. The petition is an easy to use tool to spread the word.

I also created the online petition because I see that quickly, very quickly I am going to run out of material for essays on this topic. I think I have enough material for an essay every day this week. After that, I am afraid that I might start repeating myself even more egregiously than I am now. So be it. If I cannot write about anything else for the next month except getting Attorney General Holder to review these cases, so be it. Which brings me to you.

Please help me out with this.

Please post this essay or a link to it in your blogs. Please send this essay or a link to it to your friends, to your email lists and to other blogs that might post it. Please sign the petition. And when you sign, please send the petition to others who will in turn pass it along. Please send an email to the White House.

I realize how very odd all this is. I find it exceedingly strange to think that by having a lot of people send emails to the White House or sign a petition I have written or forward essays about this topic, that critical mass will be achieved and then the Attorney General will listen to the request and review the cases. I'm not used to having power listen to common voices like ours. So in many ways, this is a living experiment about democracy. In a democracy, our voices will be acknowledged.

This is a most idealistic, most hopeful thought. I don't know whether it will happen, but my intention is to keep banging away on this until it has a chance. I ask only that you join me in this effort in whatever ways you think are appropriate. It's not often that so many lives can be saved with what amounts to so little effort. And it's not often that we get to test our love of justice and our belief in democracy in such a practical way.

Doing Time

As the holidays approach, I turn as I do every year to focus on those who are incarcerated. This isn't the result of the religious injunction in Matthew 25:44 about visiting those in prison. It's because my business is to defend people charged with serious crimes, and I'm painfully aware that when the defense doesn't work, and it often doesn't, the client pays with with what the Thirteenth Amendment blandly calls "involuntary servitude." That means being a slave of the state. For a long time. A time measured in years. And it's as bad as it sounds.

The 12/31/2007 figures from the Department of Justice reveal the size of the US prison complex and the huge number of people confined in it:

– 2,293,157 prisoners were held in federal or state prisons or in local jails – an increase of 1.5% from yearend 2006, less than the average annual growth of 2.6% from 2000-2006.
– 1,532,817 sentenced prisoners were under state or federal jurisdiction.
– there were an estimated 506 sentenced prisoners per 100,000 U.S. residents – up from 501 at yearend 2006.
– the number of women under the jurisdiction of state or federal prison authorities increased 1.7% from yearend 2006, reaching 114,420, and the number of men rose 1.8%, totaling 1,483,896.

That means that there are more than 3.7 million people who are in prison or jail or under supervision at this minute. So that you can visualize just what these people look like, there's this:

At yearend 2007 there were 3,138 black male sentenced prisoners per 100,000 black males in the United States, compared to 1,259 Hispanic male sentenced prisoners per 100,000 Hispanic males and 481 white male sentenced prisoners per 100,000 white males.

Put another way, the prison population is disproportionately male, black and hispanic. We don't need a long discourse to explain this and the obvious racial injustice in the disparity.

But my concerns here are more human than statistical. The walls keep us out. They keep us from thinking about the prisoners. From noticing them. But to be truly human, and to be truly responsible as citizens, we need to be aware of the human side of the imprisonment factory.

How can we conceive of the vast ocean of human misery behind these figures? Is it even possible to describe what long term incarceration is like?

There's a wonderful book by Jarvis Jay Masters, who remains on Death Row at San Quentin, Finding Freedom: Writings From Death Row, that conveys the heartbreaking reality of long term prison in short stories. These stories break my heart.

In one story, a prisoner is finally released after serving decades. His sentence has finally expired. He gives other prisoners all of his belongings, which is a kind of tradition, a statement of solidarity with those who remain behind. A way of saying, "Stay strong." He leaves behind a wrist watch. The person whom he gives the watch thinks it is broken because it does not tick. He cannot hear it ticking. He takes it out on the yard to find somebody who knows how to fix watches, hoping that the watch might be repaired. Only thing is, it doesn't need fixing. He's been locked up for so long that he's missed the change from analog, ticking watches to those with electric clockworks.

Can we feel the isolation and distance and pain of this? Can we understand as well that the job of constantly guarding those the state incarcerates is also frustrating, boring, mind sapping, dangerous work? The prisoners are not alone in suffering in this penal world; everyone in it suffers and aches.

Unfortunately, upon release things aren't always that much better for prisoners. Can we imagine what it's like when someone who endures and survives long term imprisonment is finally released? Can we imagine how strange the world looks? And how frightening? And how dangerous?

Recently, I met a man who was seriously mentally ill. He had served every single day of a 27-year sentence. When he was mandatorily released, his sentence had expired. There was no supervision of any kind. No counselors, no parole officers. Nothing. They gave him a suit, $40, 2 weeks' supply of his psych medications, and they put him on a Greyhound bus to an upstate, New York city. When he arrived, his sister ultimately relented and agreed to take him in. If he behaved. If he took his meds. If he went to look for work. If he behaved himself. Long story short: he didn't refill his prescription. Maybe he didn't want to. Maybe he didn't have money for it. Maybe his Medicaid application was delayed. Nobody's really clear what happened.

One night he finally broke down and in a fit of anger destroyed his sister's kitchen table. She called the cops not to have him arrested but to get him out of the apartment, to get him some help, to get him to a hospital, to calm him down. When the police arrived, he refused to move. They ordered him to put his hands behind his back. He refused. He wouldn't move. At all. They didn't call for a mental health assist, or an ambulance, or a shrink. No. They decided to subdue him because he was not following their verbal commands. A month after his release, a release that came after 27 years, he found himself in jail again, charged with the assaulting officers his sister called to help him. Can we imagine how painful this is?

The stories could go on and on. You cannot see what prison is like in those old grainy movies where the prisoners bang their tin cups on the bars, make license plates, break rocks with a sledge hammer, and steal shards of metal from the mattress factory to make shivs. Or where they cut the grass at the side of the highway. Or where they chop cotton. Modern incarceration isn't like that. It isolates the confined far more thoroughly. It deprives them of all human touch. It deprives of company. It puts cold steel and glass where bars once were.

The walls keep the prisoners in. But they also keep the world out. Inside there's no real education, training, treatment. Outside we don't know what's happening in our names. And we don't really care. The prisons in upstate New York are the only employment for miles in an economy with nothing else. The cities provide the people to be jailed and watched and fed and clothed. We pay the taxes for all of this, but probably have never been inside a real jail or prison, and probably never will be. We just don't know what it's like. And it's oh so easy to forget about all of this.

Oscar Wilde was right to say, when he saw the convicts at Reading, "Well, if that's how the queen treats her convicts, she doesn't deserve to have any."

Bushco Bullies Immigrants In Iowa

The New York Times reports that 270 undocumented workers who were arrested at a meat plant in Iowa in March, instead of being swiftly deported back to Guatemala, have instead been convicted of federal misdemeanors, sentenced to 5 months incarceration, and then will be immediately deported. This marks a lamentable, new, harsher policy toward punishing defenseless undocumented workers who are selected for this special treatment. And, let me say it, it's a show designed to frighten and threaten and disrupt the other almost 15 million undocumented workers now in the US.

In temporary courtrooms at a fairgrounds here, 270 illegal immigrants were sentenced this week to five months in prison for working at a meatpacking plant with false documents.

The prosecutions, which ended Friday, signal a sharp escalation in the Bush administration’s crackdown on illegal workers, with prosecutors bringing tough federal criminal charges against most of the immigrants arrested in a May 12 raid. Until now, unauthorized workers have generally been detained by immigration officials for civil violations and rapidly deported.

The convicted immigrants were among 389 workers detained at the Agriprocessors Inc. plant in nearby Postville in a raid that federal officials called the largest criminal enforcement operation ever carried out by immigration authorities at a workplace.

Isn't that efficient and fast. The poultry workers were arrested on March 12, they pleaded guilty in record time, and they were sentenced in short order. How, you might inquire, did this happen so swiftly? Where was their relentless, publicly funded defense? Where were their trials, their juries, their appeals, the recognition by the defense that these kinds of proceedings need to be fought and fought hard? Answer: none of that happened because the government used threats to cow the accused into pleading guilty.

The unusually swift proceedings, in which 297 immigrants pleaded guilty and were sentenced in four days, were criticized by criminal defense lawyers, who warned of violations of due process. /snip

The illegal immigrants, most from Guatemala, filed into the courtrooms in groups of 10, their hands and feet shackled. One by one, they entered guilty pleas through a Spanish interpreter, admitting they had taken jobs using fraudulent Social Security cards or immigration documents. Moments later, they moved to another courtroom for sentencing.

The pleas were part of a deal worked out with prosecutors to avoid even more serious charges. Most immigrants agreed to immediate deportation after they serve five months in prison.

The hearings took place on the grounds of the National Cattle Congress in Waterloo, in mobile trailers and in a dance hall modified with black curtains, beginning at 8 a.m. and continuing several nights until 10. On Wednesday alone, 94 immigrants pleaded guilty and were sentenced, the most sentences in a single day in this northern Iowa district, according to Robert L. Phelps, the clerk of court.

Mr. Arnold, the immigration agent, said the criticism of the proceedings was “the usual spate of false allegations and baseless rumors.”

The US Supreme Court decided many years ago that threatening the accused with much worse punishment and prosecution of much more severe crimes was a permitted tactic of US federal prosecutors. So there was nothing illegal about telling the workers that if they didn't plead to the misdemeanor and go to jail for 5 months they'd be prosecuted for felonies and go to prison for two years. Either way, the prosecutors said, they'd be deported afterwards.

What's surprising, though, is that apparently not one of the workers elected to tell prosecutors to shove it, to have a jury trial for the threatened felony in an effort to slow down the greased railroad the feds set up for all of those seized in this case. Put simply, no one resisted, no one called the prosecutor's bluff. All of those arrested apparently folded quickly.

Now the feds now have a "success", and you can be sure that they'll try it again, over and over again, across the country. If a chicken plant in Iowa was the first target, who knows what will be next:

Matt M. Dummermuth, the United States attorney for northern Iowa, who oversaw the prosecutions, called the operation an “astonishing success.”

Claude Arnold, a special agent in charge of investigations for Immigration and Customs Enforcement, said it showed that federal officials were “committed to enforcing the nation’s immigration laws in the workplace to maintain the integrity of the immigration system.”

How cynical, how frightening this tactic is. The government's beating up on Guatemalan poultry workers in Iowa doesn't show that federal officials are "committed to enforcing the nation's immigration laws...to maintain the integrity of the immigration system." It shows that the government has launched a campaign of fear and intimidation against the weakest undocumented workers. So much for long forgotten, "compassionate conservatism," so much for immigration reform. Tell me this draconian policy doesn't have anything to do with the November election.

Department Of Irony: Lawlessness On Law Day

Today, May 1, 2008, in addition to everything else is Law Day in the United States:

Fifty years ago President Eisenhower proclaimed the first Law Day a "day of national dedication to the principle of government under law." The ABA [the American Bar Association] invites you to celebrate this enduring principle during the 50th anniversary of Law Day.

Law Day 2008 will explore the meaning of the rule of law, fostering public understanding of the rule of law through discussion of its role in a free society.

The Rule of Law. How interesting that the Bush Administration would today inform us that one of the functions of law is to keep certain laws secret from the public. Don't bang your head on the desk. You read that properly. On Law Day the Bush Administration announced that it could enact laws and keep them a secret from you. That's in your very own best interest, of course.

Join me in the Irony Corner.

Today's New York Times reports that El Presidente doesn't have to tell Congress about its legal arguments about torture, and El Presidente doesn't have to tell the citizenry what Executive Orders, what laws he's enacted:

In a partial concession to Congressional pressure, the Bush administration agreed on Wednesday to show the Senate and House Intelligence Committees secret Justice Department legal opinions justifying harsh interrogation techniques that critics call torture.

The decision, announced at a Senate hearing where Democrats sharply criticized the administration’s secrecy on legal questions, did not satisfy other members of Congress who have pushed for the documents for several years, notably Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee.

A spokesman for the Justice Department said officials were discussing whether to share part or all the opinions with Mr. Leahy’s panel.

In other words, members of Congress, according to the Administration, might not be shown all of the legal opinions El Presidente relies upon to justify torture, some of them might just have to be kept secret from Congress.

But that's not the ironic part, that the Government thinks the Senate and House cannot be told the legal arguments for its policies even though the Senators and House Members have security clearances. No. Later in the story is the part channeled directly from Bizarro world. Here it is:

At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.

Mr. Elwood, citing a 1980s precedent, said there was nothing new or unusual about such a view.

This is May 1, not April Fool's Day. Elwood is not kidding. In other words, those Executive Orders you can read in the Federal Register that tell you what the law is, well, they might not be the law after all, because El Presidente can ignore or modify existing executive orders and then -- this is the most bizarre part-- not tell you or anybody else outside the Government about it.

That's called "secret laws," laws that are, well, secrets from us.

According to the Times, Senator Russ Feingold accused the administration of a “sinister trend” of promoting “secret law.” Feingold said:

“It is a basic tenet of democracy that the people have a right to know the law,” Mr. Feingold said.

I bet you thought that was how things were supposed to go, that the people have the right to know the law. That people are supposed to know exactly what the law is. What a radical concept. According to Bushco, that would be simply w.r.o.n.g.:

Mr. Elwood, deputy assistant attorney general for the Office of Legal Counsel, disputed that declining to make legal opinions public created improper “secret law.” He said some legal opinions had to be kept from public release, at least for a time, because they deal with classified programs or to ensure that government lawyers can give confidential legal advice.

Ditto Executive orders.

According to the Times, Senator Sheldon Whitehouse disagreed, pointing out that the administration’s legal stance would let it secretly operate programs that are at odds with public executive orders that appeared to be in force:

Mr. Whitehouse, who sits on the Judiciary and Intelligence Committees, has said the administration’s contention that it can selectively modify executive orders “turns The Federal Register into a screen of falsehoods behind whose phony regulations lawless programs can operate in secret.”

Mr. Elwood said publicly available legal opinions dating from 1987 make clear the Justice Department’s view that the president has the power to change executive orders.

Mr. Whitehouse said, “There’s an important piece missing from that, which is not telling anybody and running a program that’s completely different from the executive order.”

Of course, the "legal opinions" from the 1980's and from 1987 aren't printed in today's Times, nor have they been identified elsewhere, so we cannot read them and marvel at their brilliance. I can hardly imagine what these opinions, written during the tenure of that great Constitutionalist, Sainted Ronald Reagan actually say.

El Presidente's response to these criticisms?

Asked about those remarks, a spokesman for the Justice Department, Brian Roehrkasse, said the president would “generally” publicly modify or revoke an executive order before directing actions that conflicted with it.

“With respect to classified programs, however,” Mr. Roehrkasse added, publicly changing an executive order might “not be in the interest of the country’s national security.” In such cases, he said, the Congressional Intelligence Committees or their leaders would be informed.

Isn't this a wonderful way for El Presidente to mark Law Day, the day that is supposed to "explore the meaning of the rule of law, fostering public understanding of the rule of law through discussion of its role in a free society." Que ironia.

Sean Bell, RIP

A Memorial To Sean Bell

I'm shaking my head at the verdict Judge Cooperman (without a jury) rendered yesterday in the Sean Bell murder case. I'm saddened and troubled. I think I understand the roots of his acquittal verdict, and I think there has been an enormous miscarriage of justice in this case. Unfortunately, this kind of injustice probably should have been expected because of the way the law acknowledges and fosters police exceptionalism. The defense lawyers for the detectives knew it and sought to benefit from it, and the prosecutors knew it as well but didn't block it.

Please join me in Kew Gardens.

The miscarriage in this case is only partially about race and the relationship between young, African American men and the New York City Police. That relationship is volatile, dangerous, oppressive, frightening, and frequently out of control. But race wasn't the only thing awry in this case. The other part, the part that is not receiving attention at the moment, is that the police, despite all of our pious insistence to the contrary, are different from the rest of us in the eyes of the law. They are exceptions to the rule of law. They are special and receive special treatment. How else can so many shots be fired with such devastating affect, killing one person and wounding others, at unarmed people with no judicial consequence? How else can the detectives have been found to have committed no criminal wrong whatsoever?

There's nothing new in seeing that the police are different from the rest of us, giving them a leg up in court just for their being cops despite repeated judicial instructions to jurors not to. And, believe it or not, there is a large segment of the population that wants it to be that way, that wants the police to be above the law, that wants the police to be unfettered by any law, that romanticizes the rogue cop. And the rules are repeatedly interpreted to support this invidious discrimination in which police are special and those they encounter on the streets aren't just other citizens who by the way are presumed to be innocent. No. They're perps. Defendants. Criminals. Skulls. Mutts.

Want to see that clearly? Let's return, briefly to the 1970 decision of Judge Irving Younger in People v. McMurty, one of the few judicial decisions that unintentionally illustrates police exceptionalism. Some excerpts from the famous decision:

For several years now, lawyers concerned with the administration of criminal justice have been troubled by the problem of ‘dropsy’ testimony. This case shows why.

The facts are simple. On July 23, 1970, Patrolman Charles Frisina arrested defendant James McMurty on a charge of possession of marijuana. McMurty moved to suppress the marijuana for use as evidence, and, in due course, a hearing was held. Frisina took the stand. In condensed but substantially verbatim form, he testified as follows:

‘At 8:30 p.m. on July 23, 1970, I was on duty driving a patrol car. While stopped for a light at West 3rd Street and Broadway, I observed two men in a doorway of the building at 677 Broadway. One of these men-James McMurty, as I later learned-saw the patrol car and stepped out of the doorway. From his right hand he let drop a small plastic container. I got out of the patrol car and retrieved it. In my opinion, based upon a fair amount of experience, its contents were marijuana. I approached McMurty, who had begun to walk away, and asked him if the container was his. He said no. I said that I had seen him drop it and placed him under arrest.’

McMurty testified that nothing of the sort happened. He'd never drop marijuana. The cops reached into his pocket, illegally seizing it. Judge Younger then wrote:

Were this the first time a policeman had testified that a defendant dropped a packet of drugs to the ground, the matter would be unremarkable. The extraordinary thing is that each year in our criminal courts policemen give such testimony in hundreds, perhaps thousands, of cases-and that, in a nutshell, is the problem of ‘dropsy’ testimony. It disturbs me now, and it disturbed me when I was at the Bar. Younger, ‘The Perjury Routine,’ The Nation, May 8, 1967, p. 596:

‘* * * Policemen see themselves as fighting a two-front war-against criminals in the street and against ‘liberal’ rules of law in court. All's fair in this war, including the use of perjury to subvert ‘liberal’ rules of law that might free those who ‘ought’ to be jailed * * * It is a peculiarity of our legal system that the police have unique opportunities (and unique temptations) to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule does not enforce itself. Some further proceeding * * * is almost always necessary to determine what actually happened. In Mapp v. Ohio, 367 U.S. 643, for example, the Supreme Court laid down the rule that evidence obtained by the police through an unreasonable search and seizure may not be used in a state criminal prosecution. But before applying the rule to any particular case, a hearing must be held to establish the facts. Then the judge decides whether those facts constitute an unreasonable search and seizure. * * * The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them. Narcotics prosecutions in New York City can be so viewed. Before Mapp, the policeman typically testified that he stopped the defendant for little or no reason, searched him, and found narcotics on his person. This had the ring of truth. It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided. Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed. Then the police made the great discovery that if the defendant drops the narcotics on the ground, after which the policeman arrests him, the search is reasonable and the evidence is admissible. Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him. Usually the very language of the testimony is identical from the case to another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony. The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in Every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.'

Judge Younger then noted statistical proof of the huge increase in dropsy cases since the decision in Mapp. And he then said that he thought, in light of this, that dropsy cases should be scrutinized with special caution. And that if the cop's testimony seemed "inherently unreal" it should be rejected. And the "slightest independent contradiction" of the cop's testimony would warrant rejection of police testimony and the suppression of the evidence. And that he would determine if the burden of proof had been met by the prosecution for use of the evidence. This all makes sense.

And then, in a gigantic example of how police testimony is different and receives special acceptance and makes the police different from you and me and citizens in general, in a decision that enshrines police exceptionalism, Judge Younger wrote:

Had the issue been open, I would hold that the People must prove beyond a reasonable doubt that the seizure was lawful. But the issue is closed. The Court of Appeals declares the burden of proof to be the defendant's. People v. Baldwin, 25 N.Y.2d 66, 70 (1969). Where the testimony on one side balances the testimony on the other, as here, it is the People who prevail. Defendant's motion to suppress is therefore denied.

I come to this decision reluctantly. Our refusal to face up to the ‘dropsy’ problem soils the rectitude of the administration of justice. One is tempted to deal with it now by suppressing ‘dropsy’ evidence out of hand; yet I cannot. Reason and settled rules of law lead the other way, and judges serve the integrity of the means, not the attractiveness of the end.

Somehow, policemen must be made to understand that their duty is no different.

And so, McMurty was convicted. And policemen received a written, judicial acknowledgment that they were different from me and you and anyone else who testifies in court. They could lie and win anyway. Why? Because the judge, who by the way was an excellent judge and a committed liberal, would not, could not find that officer Frisna's testimony was simply not credible. He had previousy written in the Nation that nearly all of the cops testifying to dropsy evidence were committing perjury, but he wouldn't find this particular cop, Officer Frisna, incredible. Ask yourself why this was so. Ask yourself what it would take to say, "No. I believe the accused, I don't believe the officer." How often has that happened? Answer: virtually never.

The McMurty decision is a clear, 38 year-old example of police exceptionalism. Since then, police exceptionalism has continued unabated. It has killed Amadou Diallo and it has killed Sean Bell. And it will kill again. Judges will continue uncritically to accept police testimony, and the miscarriages of justice will continue to mount unabated. Judge Younger wrote that "judges serve the integrity of the means, not the attractiveness of the end." How many more miscarriages will it take before the "integrity of the means" actually leads to justice? How many more dead people does it take?

BREAKING: Don Siegelman Released On Bail Pending Appeal

Great news from the Eleventh Circuit Court of Appeals:

ATLANTA, Ga. -- The 11th Circuit Court of Appeals has granted former Gov. Don Siegelman's request to be released from prison pending the outcome of his appeal.

Siegelman is currently serving a 7-year sentence in the Oakdale Federal Correctional Complex in Louisiana following his 2006 public corruption conviction.

Acting U.S. Attorney Louis Franklin confirms the 11th Circuit granted Siegelman's release in a fou- page order which states Siegelman had raised a "significant question" about his conviction. source

Let the celebrations begin.

And make sure they keep his cell in Louisiana open, so that Karl Rove can take it over as soon as possible.

For the previous Don Siegelman essay, click here

Was Spitzer Like Siegelman The Target Of A Political Prosecution?

Don Siegelman, a former, Democratic governor of Alabama and a good guy, was railroaded to a federal prison where he's now serving a 7-year sentence, in a case that has Karl Rove's fingerprints all over it. The case is a travesty and proof positive not only that there are political prisoners in the US but that Siegelman is one of them.

Yesterday, I wrote a diary about this disgraceful travesty because I wanted to keep the story alive. I don't want us to forget that this conviction is an example of why there was a US Attorney scandal and why investigation of that scandal must continue.

The best sources of information on Siegelman, if you're not yet familiar with this mockery of justice, is OPOL's Friday diary on the case, a diary with lots of video and background, and Siegelman's web site.

What's any of this got to do with Eliot Spitzer, who has been forced to resign as Governor of New York because of his hiring prostitutes? Plenty.

In an video interview with 60 Minutes about Don Siegelman's case, former Arizona Attorney General Grant Woods, a republican, one of 52 other former state attorney general's decrying Siegelman's conviction, explained that in Siegelman's case the travesty began when at the behest of Karl Rove and others law enforcement officials began to investigate Siegelman for entirely political reasons. They were not investigating a crime that had occurred; they were instead investigating a person, their political adversary.

At the start of the investigation of Siegelman, there was no reason whatsoever to believe that any crime had been committed. Quite to the contrary, from its inception the investigation was a political prosecution by appointed officials (the US Attorneys, the FBI, DoJ employees) to damage or remove an elected official, in effect, to nullify an election. This meant, in the simplest terms, committing large amounts of resources to their quarry until, presto chango!, something that could be turned into at the least a scandal or at best, an indictment mysteriously arose. You'll recall Judge Sol Wachtler's truism that a prosecutor could convince a grand jury to indict a ham sandwich.

The dangers of having unelected officials remove elected ones should be obvious.

Now, what about Eliot Spitzer? You'll recall Troopergate, the enormous dustup between Spitzer and Senate Republican Leader Joseph Bruno arising from Spitzer's causing a state police investigation of Bruno for alleged use of state aircraft for personal reasons. That was just last summer and fall. In this kind of political lucha libre, there is always tit for tat.

Notice the similarities between the Siegelman and Spitzer cases. Scott Horton writes in TNR:

The story emerging around the fall of Eliot Spitzer suggests that the case did not start with the report of a crime. Rather it started with a decision to look into Spitzer and his financial dealings. snip

Specifically, the official narrative suggests that a Long Island bank noticed an odd pattern of payments made by Spitzer between different accounts. The payments were not enormous sums... snip
The Los Angeles Times reports that Spitzer asked that his name be taken off the money wires, which reportedly aroused suspicion. The bank submitted a Suspicious Activity Report (SAR) to the IRS. The payments which totaled up to $80,000, looked suspicious, we are told, and were examined on the basis that they might be an effort to money-launder bribes. This was reported to the IRS in Hauppauge, Long Island, which in turn involved the Public Integrity Section in the Department of Justice.

The Public Integrity Section sought an obtained approval to continue the investigation from the US Attorney General. The Section, which is highly politicized, prosecutes 5.6 democrats for every republican. Of course, approval to investigate further was granted.

According to Horton:

Considering that the official account shows this was a "routine" examination of bank records, the level of resources allocated to it, including investigators and prosecutors, was lavish. This again suggests a political prosecution. Political direction is rarely overt. It usually takes the form of generous allocation of resources for political targets, and constriction of resources for persons who are politically protected. Clearly, moving the case against Spitzer had become a priority.

Two more questions should be asked about the prosecution. The first is whether a selective attitude is taken in prosecution--that is, whether the Justice Department is treating Spitzer in a manner consistent with other (notably Republican) figures caught in a similarly compromised position. The second is how the matter was broken to the press.

On each of these points, the information now available raises unsettling issues about the conduct of the Justice Department. One close parallel involving a prostitution investigation is the case of the "D.C. Madam." In that case, federal prosecutors have proceeded against the prostitution ring and have shown little interest in the customer list, which is said to include a former high-ranking Bush Administration official (Randall Tobias, director of the U.S. Agency for International Development) and a U.S. Senator (David Vitter, Republican of Louisiana). The prosecutors' conduct in the "D.C. Madam" case has been remarkably deferential to the public figures involved. That case cannot be squared with the investigation into Governor Spitzer--it points to a double standard.

Politically abusive prosecutions are almost always marked by media-friendly prosecutors. The essence of political prosecution is less to bag the political prey than to make partisan propaganda by marking the target as "corrupt." And the accounts published in The New York Times, ABC News, and other media outlets reveal investigators and prosecutors eager to get the details out and on to the public record. (On Friday, a Times reporter received a tip that "Client 9" was "a New York official.") Indeed, there is an extremely revealing penchant for salacious detail in the complaint--insinuations about the sexual proclivities of "Client 9," for instance. This may have been included gratuitously to humiliate Spitzer and destroy any prospects for his future political career. If there is a legitimate prosecutorial purpose served, I can't fathom it.

Horton concludes that it's too early to decide with certainty whether the investigation of Spitzer was a political one. That may be so, but I don't believe it. The stench emanating from Siegelman's conviction and from the investigation of Spitzer is the same.

Is there going to be in inquiry into the investigation of Spitzer? One can only hope so.

It is vitally important to the preservation of our democracy that political uses of law enforcement, like the one in Siegelmans' case, like the one in Spitzer's case, be controlled. If they are not, elected officials will constantly risk subversion by appointed officials of the opposing party.

Free Don Siegelman!

photo and above text by OPOL

Today I spent several hours reading about a travesty of justice. Sometimes travesties of justice aren't based in significant part on race or national origin or poverty or bad lawyering. No. Sometimes, powerful and good people, people who are well defended but have even more powerful and devious enemies, get railroaded to prison. And so it is that Don Siegelman, a former governor of Alabama finds himself in a federal prison camp in Louisiana in a case redolent of chicanery and political hanky panky and judicial irregularity. A case, in my opinion, that has Karl Rove's despicable fingerprints all over it and is a farce and mockery of justice that cannot be permitted to stand.

Put in the vernacular, the case really reeks. But nevertheless, Don Siegelman, a good and progressive man, because of a confluence of being a democrat in the Republican state of Alabama, a hostile, politically motivated US Attorney, an even more hostile district court judge in Montgomery, the death of the court reporter who transcribed his trial, a corrupt, politically motivated prosecution, jury misconduct, and dilly dallying by the ever cautious 11th Circuit Court of Appeals, remains in jail almost 9 months since he was initially and surprisingly remanded without bail upon his conviction of 2 of 34 counts in an politically induced indictment. A previous prosecution of him was summarily dismissed as meritless; the current case is the second attempt by his political enemies to convict him to remove him from office.

Have you heard about this case? I did, during initial reportage about the US Attorney scandal, which seems to have faded into oblivion and forgetfulness, but I didn't penetrate how thoroughly this case stinks until today, thanks to a must read essay by my friend, OPOL. If you can, please read this essay in its entirety. If you can't, please instead watch this video. It will bring you up to speed in fifteen minutes. It will stun, shock and astonish you, as it did 52 state attorneys general, all of whom believe the conviction is garbage.

The spectacle of Siegelman, whom I briefly met about 40 years ago in Huntsville, Alabama, being in federal prison on this bogus case is nothing short of overwhelming. And the obtuseness, if not hostility with which the district judge and the Eleventh Circuit have met his requests for bail pending appeal sets some kind of high water mark for politically motivated vindictiveness. This is the kind of judicial hostility I encountered all too often during the civil rights era. It is utterly shocking to see that kind of callousness resurrected for Siegelman. All too ironical and upsetting is that the conviction was in the Middle District of Alabama, a court formerly presided over by Hon. Frank M. Johnson, one of America's great jurists of the mid-twentieth century. The political and intentional degradation of this particular, historically important district court, a district court that made courageous rulings in favor of civil rights throughout the sixties and seventies, is exemplified by Siegelman's conviction, his immediate, summary remand to prison, and his present inability to be bailed pending appeal. The rulings in Siegelman's case, especially those since his conviction, are simply disgraceful.

I have no doubt that there are reversible errors in Siegelman's case. These include everything from the failure to prove that a crime was ever committed (there was no quid pro quo in connection with the alleged bribery count) to juror misconduct (jurors, despite the court's instructions, emailed each other during the trial and deliberations to plot for a conviction) to the failure of the prosecution to provide the notes written by their star witness (a violation of 18 USC 3500). Doubtless there are other, equally important problems. And keeping Siegelman locked up-- he is no risk of flight-- because of the alleged lack of merit of his appeal is the kind of preposterous, willful vindictiveness that should never be tolerated. Simply put, his appeal has merit sufficient for him to be released. I have seen others who committed far worse crimes and had far weaker merits on appeal released for the duration of their appeals. Siegelman is getting "special treatment" because of who he is and his party affiliation.

What can you do about all of this?

First, watch the video and read OPOL's essay.

Second, visit Don's web site for updates, analysis, documents, links to press coverage, and more, very persuasive video produced by independent news agencies. Take a long, hard look at this ridiculous conviction.

Third, make a small Pay Pal donation to Don's defense. If enough people give just small amounts ($10, $20, $50), Don's defense will not find itself working for free.

Fourth, please send this essay or OPOL's essay to others. It's important that this travesty not be swept under the rug.

And fifth, go to Don's web site, which has links, so that you can contact the appropriate Congresspersons and urge them not only to deal with Don's plight but also to stop delaying and to pursue the contempt citations in the US Attorney scandals to which this case is so directly connected.

Travesties like this conviction and the horrendous treatment Don has received since his conviction need to be exposed. They simply cannot be tolerated, not if we value the rule of law and the necessity for it to be administrated fairly and impartially. Not if we believe in a fair and independent judiciary. Not if we believe we live in a democracy.