My Impatience: Where Is Justice For Trayvon?

These are facts: on February 26, 2012, George Zimmerman shot and killed Trayvon Martin. You already know all about these facts and have been debating their significance for a couple of weeks: Trayvon Martin was 17 years old, unarmed, and had with him a cell phone, iced tea, and Skittles; George Zimmerman had a gun. The Sanford, Florida police refused to arrest George Zimmerman, claiming I think incorrectly that Florida law prevented his arrest. He’s been at liberty since. He’s been uncharged since. Almost a month later, on March 22, 2012, when no arrest had been made and public opinion about the case was boiling over in demonstrations and media attention and criticism, Special Prosecutor Angela Corey took over from the local Prosecutor. She will be the one who decides what charges, if any, are warranted. The whole world is watching. And the Feds are doing their own parallel investigation to decide whether to bring a civil rights prosecution in federal court regardless of what Angela Corey decides. We are now 37 days after the death of Trayvon Martin. We are now 9 days after the appointment of Angela Corey. And there is still no arrest.


I’m impatient. And fearful. I wonder aloud whether the delay in making this arrest is stupidity, incompetence, racism, politics, or a combination of some or all of these. I wonder why justice is delayed in this case. I wonder why George Zimmerman has not been arrested. And I am sorry to admit that I fear that the delay means that Florida will not charge George Zimmerman with a crime.

How long does it take to decide whether to charge George Zimmerman with a crime?

Even if one were to discard virtually everything from the initial Sanford Police investigation, even if one were to start all over again from the top with new, more detailed interviews of the very few witnesses who saw or heard anything, even if one were to review and re-examine whatever forensic evidence there is, how long can it possibly take to develop enough information to make a decision, to decide whether to charge George Zimmerman with a crime?

And how long can it possibly take to decide whether to charge police officials with obstruction of justice or official misconduct or tampering with witnesses? How long can all of this take? Apparently it can take a very long time. How long should this actually take? Not long.

This isn’t a complex bank or securities fraud or terrorism conspiracy case. No. This is, sad to say, an all too common homicide case. We know who the victim is. We know who the shooter is. We have some witnesses who saw or heard something. We have whatever physical evidence was accumulated. We have whatever medical and other forensic evidence there is. This, when all is said and done, is not a complicated case. It’s a sensitive case, yes. It’s an important case, yes. But above all else, it’s not a complicated one.

Let’s remember, if we possibly can, that the ultimate decision about whether George Zimmerman is guilty is definitely not the decision prosecutors now face. That ultimate decision, the decision of whether Zimmerman committed a crime, has to be made by a court or a jury, and his guilt has to be proved beyond a reasonable doubt by competent evidence at a trial. And that’s not the decision the prosecutor now faces. It’s not. The present decision is simply this: charge Geroge Zimmerman with a crime, or don’t.

You can formulate this question in other ways. You can ask whether there is enough evidence to charge George Zimmerman with a crime. Or you can ask whether there’s enough evidence to believe that Zimmerman probably committed a crime. You can parse the standard. You can evaluate the words. You can formulate the words in many different ways. But ultimately it’s not complicated: the prosecutor has the discretion to charge George Zimmerman if she believes there is probable cause that he committed a crime. She’s not required to charge him with anything.

How long can it possibly take to make that relatively simple determination? Not long. In routine homicide cases, the decision is usually made within hours. And then there’s an arrest. In more complicated homicide cases, there’s an arrest and a prompt grand jury presentation, usually within days. How many cases can anybody cite in which it’s taken more than a month to decide whether to charge a shooter (who is not a policeman) with a homicide? How many cases can anybody think of that are in this category? I’ll tell you: I can’t think of one. Tell me I’m wrong if you can find a single one.

So I am impatient. It’s a truism that justice delayed is justice denied. And now, here we are, nine days into the second prosecutor investigating the case, and more than a month from the death of Trayvon Martin, and still no arrest. And no communication from the prosecution. This is a disgrace. And it’s a dishonor to Trayvon Martin and his family. So I am impatient.

And I regret to say that I have begun to fear that the quest for justice for Trayvon Martin will include the refusal of Florida prosecutors to charge George Zimmerman with a crime. What else, I ask you, could take this long?

When Will The Killer Of Brad Will Be Brought To Justice?

The New York Times today reports that the person held by Oaxaca authorities-- a person who clearly was not involved in the crime-- for the murder of Brad Wills in 2006 has finally been released from custody. That means that the investigation of the murder will now go back to the AG's office. But is it too late, has too much time been wasted for the real murderer to be brought to justice? Has this distraction been the end of the "investigation"?

The Times reports:

The man accused of killing a New York City journalist as he videotaped street clashes in Oaxaca in 2006 was released from jail on Thursday after an appeals tribunal declared that there was no evidence against him.

The ruling was congruent with what the victim’s family and human rights groups have long asserted, that the journalist, Bradley Roland Will, was not shot at close range by an antigovernment protester as the government has maintained.

But the decision now leaves the case open, more than three years after Mr. Will was shot...

Under Mexican law, the investigation goes back to the attorney general’s office, said Miguel Ángel de los Santos, a Mexican lawyer for the Will family. “Until now there hasn’t been any proof,” he said. “What we hope is that they open other lines of investigation.”

The attorney general’s office said Thursday night that it had no comment on the release of the suspect or whether it would pursue further action in the case.

So who was it that the authorities held? And what, if anything, was his connection with the case? Or was he just somebody to hold so the real killers might remain hidden and any trail might grow cold?

The suspect, Juan Manuel Martínez Moreno, a baker and an activist with the coalition opposed to Gov. Ulises Ruiz, was arrested 18 months ago and accused of shooting Mr. Will at close range.

But photos and video of the scene show armed men, believed to government-backed agents, firing into the crowd of demonstrators from a distance. That account has been confirmed by other journalists who were with Mr. Will when he was killed on Oct. 27, 2006. A review of the forensic evidence by Physicians for Human Rights also found that the bullet had probably not been fired at close range.

Although Mr. Martínez took part in the protests, there was no evidence placing him at the scene of the shooting, human rights groups said. Nor, they said, did the government explain why Mr. Martínez would want to kill Mr. Will, who was sympathetic to the protesters’ cause.

The way this murder investigation has been handled is just disgraceful.

Death Penalty: The Times Speaks Up

It's a reason for optimism in the long battle to end State Killing. The New York Times editorial today called for the abolition of the death penalty. I applaud. The abolition of state killing should be a mainstream, American idea.

The Times is angry and points out the obvious about the change in Ohio from 3-drug state killing to 1-drug state killing:

This is what passes for progress in the application of the death penalty: Kenneth Biros, a convicted murderer, was put to death in Ohio last week with one drug, instead of the more common three-drug cocktail. It took executioners 30 minutes to find a vein for the needle, compared with the two hours spent hunting for a vein on the last prisoner Ohio tried to kill, Romell Broom. Technicians tried about 18 times to get the needle into Mr. Broom’s arms and legs before they gave up trying to kill him. Mr. Biros was jabbed only a few times in each arm.

The Times gets quickly from the barbarism of the Biro and Broom executions to the main point:

The larger problem, however, is that changing a lethal-injection method is simply an attempt, as Justice Harry Blackmun put it, to “tinker with the machinery of death.” No matter how it is done, for the state to put someone to death is inherently barbaric.

It has also become clear — particularly since DNA evidence has become more common — how unreliable the system is. Since 1973, 139 people have been released from death row because of evidence that they were innocent, according to the Death Penalty Information Center.

An untold number of innocent people have also, quite likely, been put to death. Earlier this year, a fire expert hired by the state of Texas issued a report that cast tremendous doubt on whether a fatal fire — for which Cameron Todd Willingham was executed in 2004 — was arson at all. Until his execution, Mr. Willingham protested his innocence.

Most states still have capital punishment, and the Obama administration has so far shown a troubling commitment to it, pursuing federal capital cases even in states that do not themselves have the death penalty.

The Times conclusion:

Earlier this year, New Mexico repealed its death penalty, joining 14 other states — and the District of Columbia — that do not allow it. That is the way to eliminate the inevitable problems with executions.

Put another way, abolition is the answer to the lingering horror of state killing. Abolition just cannot happen soon enough.

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.

Covering Up Torture By Coercing Guilty Pleas

According to the New York Times, the Obama Administration may modify the military commission rules to permit require have Gitmo prisoners plead guilty and be executed:

The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques. It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom.

The proposal, in a draft of legislation that would be submitted to Congress, has not been publicly disclosed. It was circulated to officials under restrictions requiring secrecy. People who have read or been briefed on it said it had been presented to Defense Secretary Robert M. Gates by an administration task force on detention.

The proposal would ease what has come to be recognized as the government’s difficult task of prosecuting men who have confessed to terrorism but whose cases present challenges. Much of the evidence against the men accused in the Sept. 11 case, as well as against other detainees, is believed to have come from confessions they gave during intense interrogations at secret C.I.A. prisons. In any proceeding, the reliability of those statements would be challenged, making trials difficult and drawing new political pressure over detainee treatment.

How, you might want to know, does dispensing with a full, albeit difficult trial for prosecutors and avoiding inquiries about extensive torture benefit the detainees? How does it assure that their guilty pleas are knowing, intelligent, and voluntary? Doesn't dispensing with the requirement of any proof after years and years of confinement make the eventual killing of these prisoners even more egregious?

Think about it. The prisoners in Gitmo have been held for about seven years. They have not received a speedy trial. In fact, many haven't received any process at all. And while they've been confined there's been a worldwide uproar over their detention without trial and the conditions of confinement and their being tortured and the potential show trials conducted by military commissions and the utter lack of due process in these show trials and their having no real access to US Courts. These are all obvious problems. And now, added to these problems and not resolving them in any regard, we have the distinct possibility that prisoners will "volunteer" for death by pleading guilty, and we will have no way at all of knowing that they committed the acts for which they will be killed or that their confessions were truthful or even that their guilty pleas are minimally voluntary. Hence, the headline: guilty pleas coerced by torture, long term isolation, and desperation, will cover up the torture and the conditions of confinement. The prisoners, we are told, want to be martyrs, and they will be. The US, we are told, doesn't want to discuss their torture or how they got to Gitmo or what it's been like for them in confinement, and the US won't have to. It's a win-win.

Can someone who is held for seven years without procedural due process, who is tortured, who is in harsh conditions of confinement enter a knowing, voluntary, intelligent guilty plea? Theoretically, I suppose it is possible. But it's going to take a lot more than the accused's answering "yes" to a standard Rule 11 allocution (what you have to say "yes" to to enter a guilty plea in a federal criminal case) to convince me or anyone else who is watching that the plea is voluntary in any conventional sense. That's why in the Military Justice System, you cannot plead guilty to a capital crime. As the Times tells us, "to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty."

Lawyers who were asked about the administration’s proposed change in recent days said it appeared to be intended for the Sept. 11 case.

“They are trying to give the 9/11 guys what they want: let them plead guilty and get the death penalty and not have to have a trial,” said Maj. David J. R. Frakt of the Air Force, a Guantánamo defense lawyer... snip

Cmdr. Suzanne M. Lachelier, a Navy lawyer for one of the detainees in the Sept. 11 case, Ramzi Bin al-Shibh, said of the Obama administration, “They’re encouraging martyrdom.”

The administration has not announced whether it will continue with the Sept. 11 case in the military commissions or charge some of the men in federal court. Officials involved in the process said that lawyers reviewing the case have said that federal-court charges against four of the men might be possible, but that the evidence might be too weak for a federal court case against one of the five, Walid Bin Attash, a veteran jihad fighter who was known as Khallad.

Usually, when "the evidence might be too weak for a federal court case" the prosecution recognizes that it cannot meet its burden of proof and it dismisses the charges. If the prosecution doesn't dismiss the charges, it's up to a jury or a judge to find the accused not guilty. And then? And then the accused goes free. Not so in Gitmo. Evidently in Gitmo, somebody who might be released because the case is "too weak for a federal court case" instead gets to plead guilty and be executed.

And to think that I was worried that those with weak cases would be "preventively detained" forever and ever. Even that would be better than coerced guilty pleas followed by execution.

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.

Myanmar: Release Aung San Suu Kyi

Aung San Suu Kyi

Evidently, the military junta running Myanmar (Burma) has decided to make life for Aung San Suu Kyi even worse. Today was the second day of her trial. The New York Times reports:

As protests grew around the world, the trial of Myanmar’s pro-democracy leader, Daw Aung San Suu Kyi, entered its second day Tuesday as the government pursued its charges that could transform her years of house arrest into the harsher conditions of a prison term.

Hundreds of police, some in full riot gear, blocked roads leading to Insein Prison, where the trial is being held, and a small number of protesters gathered in the street outside a ring of barbed wire, according to reports from the scene by news agencies and exile groups.

Analysts say the case against Mrs. Aung San Suu Kyi, 63, is intended as a legal pretext for extending her house arrest, which was to expire later this month. Myanmar plans to hold a general election early next year to cement the control of the military under a nominally civilian administration.

Mrs. Aung San Suu Kyi is charged with receiving an unauthorized visitor following an intrusion by an American, John Yettaw, who swam across a lake earlier this month and entered the compound where she has been held under house arrest for 13 of the past 19 years. Her lawyers say she had no role in his intrusion and asked him to leave, but let him stay the night when he complained of exhaustion and leg cramps. Her two housekeepers are on trial with her on similar charges, which could bring prison terms of up to five years.

Apparently, Yettaw "had made a similar intrusion last November, swimming across the lake and giving her a copy of The Book of Mormon, a testament of the Church of Jesus Christ of Latter-Day Saints. Mrs. Aung San Suu Kyi is a devout Buddhist." Evidently, Yettaw's attempts to "save" Aung San Suu Kyi don't include keeping her safe.

If Yettaw had arrived at most of the back doors in America seeking to proselytize the residents, he would have been firmly told to get lost. Perhaps not in polite terms. I am thinking of how many Sunday afternoon callers have seen my screen door firmly slammed in their faces. Aung San Suu Kyi, however, isn't like me. She allowed him to stay over until he was able to leave. And so, her compassion toward this unexpected, probably unwanted visitor (is "religious fanatic" too strong?) is a crime that might imprison her.

What a disgraceful, sham trial. It's no wonder that so many have protested this trial:

In Washington, a State Department spokesman, Ian Kelly, said the charges against her were unjustified and demanded her release, along with an estimated 2,100 other political prisoners. Last week, in response to her arrest, the United States extended a regime of harsh economic sanctions against the ruling military junta although it had earlier said it was reviewing the effectiveness of this policy.

Other condemnation came from around the world, including the United Nations and the European Union. Breaching a low-key policy of “constructive engagement,” Myanmar’s Southeast Asian neighbors issued a statement late Monday expressing “grave concern” over her arrest and saying “the honor and credibility” of the Myanmar government were at stake.

The statement, issued by the Association of Southeast Asian Nations, or Asean, read: "The Government of the Union of Myanmar, as a responsible member of Asean, has the responsibility to protect and promote human rights. It is therefore called upon to provide timely and adequate medical care to Daw Aung San Suu Kyi as well as to accord her humane treatment with dignity."

The members of Asean are Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam. Nine Nobel Peace Prize laureates on Monday condemned the arrest of Mrs. Aung San Suu Kyi, who won the prize in 1991. “We are outraged by the deplorable actions of the military junta against Suu Kyi and strongly encourage challenging this obvious harassment of our fellow Nobel laureate,” the prize winners said in a statement.

You can follow this at Aung San Suu Kyi's page as it develops.

How To Increase Suffering

The Times Record Herald reports that the New York Prison Guards Union has managed to kill a performance of an inmate musical production. The prisoners, it seems, wrote a play, a musical to be exact, produced it, directed it, and act, sing and dance in it. They were going to show it to prisoners at another, nearby prison.

Why has the production been canceled? Because the guards' union is mad at the Governor because of closings of work release centers in which union member guards are employed, supposedly for budgetary reasons. Not content to fight the Governor directly, not content to picket the Governor, the Union has stepped in to stop the prisoners' showing their play to other prisoners by threatening to picket the performance:

State prison officials have lowered the curtain on an inmate theatrical performance.

A troupe of 18 convicted murderers, robbers and other felons at Woodbourne Correctional Facility had been scheduled to perform an original play Wednesday at Eastern Correctional Facility in Ellenville.

But the state Department of Correctional Services has canceled the show because union workers threatened to picket.

"The commissioner does not want to jeopardize the program or the people in it by putting them in the middle of a statewide labor issue," said DOCS spokesman Erik Kriss.

Great. The guards are angry, so, of course, the prisoners, who have nothing to do with the dispute whatsoever, have to suffer. Is this the guards' reflex, to increase the prisoners' suffering? And is it the state administration's reflex to cave to this kind of pressure? Why is this all so very unsurprising? And how, you might ask, do the Guards explain this, so that it doesn't appear that they're just being bullies and dashing prisoners' hopes for no obvious reason?

In January 2008, inmates began writing and rehearsing their own Broadway-style show about the difficulty of living behind bars and keeping a family. The play, "Starting Over," was funded and supervised by Rehabilitation Through the Arts, a nonprofit group that seeks to reduce recidivism through arts enrichment programs. The group declined comment on the cancellation, but it forged ahead with a production of Shakespeare's "Macbeth" last week at Sing Sing.

Kevin Walker, regional vice president for the New York State Correctional Officers & Police Benevolent Association, said prison farms, annexes and print shops have been useful because they teach skills that can be applied toward a job on the outside. The union saw no value in theater work.

"How many of these medium-security convicts do you think will go to Broadway and get a job?" Walker said. "We believe it's a blatant waste of manpower and funding."

Kriss rebutted that, noting that inmates experienced a range of new emotions and kept busy by learning how to act.

What a joke. And what a disgraceful reason to cancel the prisoners' play. Walker may be an ace union guy (not), but he's a terrible economist, a bad psychologist, and an even worse humanitarian. Is it impossible for prisoners' to do anything just to have a small token of happiness in their day? Apparently not. Not if the guards' union has anything to say about it.

The prisoners, of course, are up a creek on this without a paddle. They don't have an alumni association to stand up for them. And they have virtually no community support-- look what they did before being incarcerated. So they are the ideal targets for the bullies in the Guards Union and the weaklings in the administration.

If there were any justice, the show would go on. Citizens like me and you would insist on it. I'm not holding my breath.

Epistle To the Bloguer@s From A Traveler

Querido Amig@s en la Blogosfera,
In 1999 I was traveling in India when Columbine happened. Everywhere I went, and I went to some pretty remote places, people I met, well at least those who had televisions, wanted to know one thing. That one thing, loosely translated, is WTF is wrong with the US anyway? What kind of crazy batshit country produces these kinds of homicidal maniacs? And why? I didn't have a good answer. If we had a few beers or got to know each other a little, I would might have a chance to begin to try to explain it, but I couldn't. And that's not because I'm inarticulate. It's because there is no satisfactory answer.

And now this. Tuesday I'm traveling to Ireland. And you know what? Everywhere I go, and I will go to some pretty rural places, people I meet will want to know one thing. That one thing, loosely translated, is WTF is wrong with the US anyway? What kind of crazyland country has black sites, extralegal extraditions, Gitmo, Bagram, waterboarding, torture, Abu Ghraib AND, and this is the important AND, AND announces that nothing should be done about those who tortured or ordered torture or wrote bogus "legal" memos to justify torture? And what kind of country that does all of that has the chutzpah (that is a revered Irish word) to lecture other countries about human rights? Isn't that against the law in the US, to torture prisoners? Isn't that against International Law, to torture prisoners, and then also to fail or refuse to prosecute the torturers? Isn't that what the US prosecuted various Japanese soldiers for about 60 years ago? Didn't the US say that the excuse of "just following orders" just wasn't good enough to keep you from hanging? Trust me on this. On Tuesday evening, when I am sitting comfortably in a pub in Dublin, bemused by my good fortune and friendships, slowly working my way out of jet lag and into a reverie about James Joyce and looking greedily at the bottom of a pint, somebody will smile and ask me the question. And, of course, I don't have a good answer. How could I? I'm not inarticulate. I will buy a round from time to time. But for heaven's sake, WTF am I supposed to say about this? There really isn't a satisfactory answer.

Well, Mr. My Friend, I could begin, that's quite a question you're asking me. I'm as enraged and unhappy about this as anyone, well, almost anyone. I'm not nearly as enraged and unhappy as the people who were tortured or their families, but aside from them. I haven't got a f*cking clue why immunity or lack of action this was so prominently announced, and while we're at it, I have no idea WTF you or I or anybody else can do about it at this point other than raise a ruckus. Not at all. And, Mr. My Friend, a first step toward making a ruckus is that you really need to visit the torture petitions and sign them, one and all. And then, and only after yo do that, let's have another pint and see what kind of ruckus we can create.

Your pal,
davidseth

Harsh Sentence For Iraq Shoe Thrower

Reuters reports:

An Iraqi reporter who hurled his shoes at former President George W. Bush was convicted of attempting to assault a foreign leader on Thursday and jailed for three years, dismaying many Iraqis who regard him as a hero.

Muntazer al-Zaidi, 30, who pleaded not guilty to the charge, told the Baghdad court: "What I did was a natural reaction for the crimes committed against the Iraqi people."

Outside the courtroom, wails erupted from Zaidi's family and other supporters when they heard the verdict. One of his brothers fainted and his sister Ruqaiya burst into tears, shouting: "Down with Maliki, the agent of the Americans."

Zaidi earned instant global fame in December when he threw his shoes at the visiting U.S. leader, who spearheaded the 2003 invasion of Iraq, and called him a dog at a news conference.

Dhiaa al-Saadi, the head of Zaidi's defense team, condemned the sentence as harsh and said it would be appealed.

The sentence is harsh. But it's not as harsh as the initial press reports about Zaidi, in which the Iraqi government suggested that they might want to give him fifteen years for his insolence. A fifteen year sentence in this case would have been an obvious travesty and a mockery of justice.

The actual, 3-year sentence, if I may parse it, is an attempt to show that the Iraqi government would like to appear as a moderate, just state, one that, after pressure and on reflection, does not impose extreme punishments. Rather, it gives punishments only slightly harsher than the US itself might give in a similar circumstance. That's what Iraq is trying to say to us.

In 1980 I represented one of two young men, members of the Revolutionary Communist Party, who went to the UN Security Council with red paint, and threw the red paint on both the US and USSR ambassadors while they were in the Security Council Chamber. They then shouted slogans and were arrested. Both were charged with conspiracy and a violation of 18 U.S.C. Section 112. That United States statute, a part of which arguably would apply to throwing two shoes at a visiting head of state and missing him twice, permits a 3-year term of imprisonment if someone "assault, strikes, wounds.. or offers violence" to an official guest of the US or a 6-month sentence if someone harasses or attempts to harass a foreign official.

Is throwing a shoe at an official guest, but missing him an attempted assault under the US statute, one that could be given a 3-year sentence? Probably. See, e.g., United States v. Gan, 636 F.2d 28 (2d Cir. 1980).

That's the comparison Iraq appears to be trying to make. But it's not really a fair comparison.

Unfortunately, the beating Zaidi received upon his arrest, his alleged torture after arrest, his being kept from family and friends and his lawyers while he was awaiting trial all don't figure in the belated Iraqi public relations offensive. All of that has been swept under the rug.

Zaidi should be immediately released. He's served enough time.

Obama Dishes Up A Cup Of Same Old Same Old

What a colossal disappointment. Remember when Barack Obama was going to severely curtail the use of the "state secrets" doctrine, throw the windows open, and let the sun shine in, dispersing Bushco's unnecessary secrecy? Forget about it. That was just eyewash.

Yesterday in the United States Court of Appeals for the Ninth Circuit the Obama Justice Department astonished the three judge panel by sticking with Bushco's "state secrets" argument in the case of Binyam Mohamed. The New York Times reports:

In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations. ... snip

...a government lawyer, Douglas N. Letter, made the same state-secrets argument [as Bushco made] on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

There you go. This is "thoroughly vetted." These are "authorized positions." It's the same old. It's not exactly change you can believe in, at least not in this case.

Said a spokesperson for the Obama Justice Department:

A Justice Department spokesman, Matt Miller, ... seemed to suggest that Mr. Obama would invoke the privilege more sparingly than its predecessor.

“It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases,” he said, adding that Attorney General Eric H. Holder Jr. had asked for a review of pending cases in which the government had previously asserted a state secret privilege.

“The attorney general has directed that senior Justice Department officials review all assertions of the state secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations,” he said. “It is vital that we protect information that, if released, could jeopardize national security.”

That review, folks, isn't worth a cup of warm spit. Evidently, it doesn't matter that the court papers

describe horrific treatment in secret prisons. Mr. Mohamed claimed that during his detention in Morocco, “he was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution and death.”

Evidently it doesn't matter that everybody in the world already has access to virtually everything about Binyam Mohamed's illegal extradition, torture, and continuous confinement. Pointing out how widely reported Binyam Mohamed's case has been, Ben Wizner, a lawyer for the A.C.L.U., told the judges that what the government was trying to keep secret by asserting the "state secrets" doctrine isn't secret at all. The details of the administration’s "extraordinary rendition program" (read: illegal extraditions) have already been told, as have how those facts applied directly to the plaintiffs. “The only place in the world where these claims can’t be discussed,” Mr. Wizner said, “is in this courtroom.”

Maybe the moderate/liberal panel of the Ninth Circuit that heard this case will overturn it. I hope so. But my disappointment at the position taken by the Obama Justice Department leaves me shaking my head in sorrow. This isn't change we can believe it. It's not old wine in new bottles. It's just the same old same old. And it still stinks.

Another Sham Trial In Iraq

Oh please. The New York Times says that a trial date has been set for "the Iraqi Shoe-Thrower" for February 19. But this trial is unlikely to resemble anything you'd call fair. Let us parse the news together:

Lawyers for the journalist, Muntader al-Zaidi, 29, had tried to reduce the charges stemming from the incident, which made him a folk hero in much of the Arab world and beyond, but in setting a trial date a higher court let the most serious charges stand. If convicted, he could face as many as 15 years in prison....snip

Security guards quickly subdued him, as he continued to shout about the fate of widows and orphans, and he has remained in detention ever since. His relatives and lawyers say he has been tortured in custody, and complain that they have been allowed minimal opportunities to see him or to discuss his case.

The incident occurred on December 14, so Mr. al-Zaidi has been incarcerated now for almost 2 months without reasonable access to counsel. And he's been tortured. That sounds like a fair trial in the making to me. Not.

The Times ends its brief article with this remarkable zinger:

His trial could become an important — and highly visible — test of Iraq’s still-evolving judicial system. It was not clear how much of his trial, if any, will be open to the public.

"Still-evolving" has to be one of the most remarkable euphemisms of all time. "Still-evolving" in this case means that the accused can be tortured, kept away from family and counsel for almost two months, tried in secret, and then sentenced up to 15 years. I wouldn't exactly call that "still-evolving." Or justice. Truth be told, we should call it what it is, a sham.

The Trailer For The Gitmo Joke Show

Today the US Government tried unsuccessfully to move the Gitmo death penalty show trial of five "enemy combatants" toward a "trial" by arraigning the accused. Unfortunately for the US, today's proceedings were a complete and utter joke show. And a complete embarrassment. And they were the previews of the upcoming Gitmo Joke Show "trial"

Reuters reports:

The accused al Qaeda mastermind of the September 11 attacks stood in a U.S. military court on Thursday, sang a chant of praise to Allah and said he would welcome the death penalty.

"This is what I wish, to be martyred," Pakistani captive Khalid Sheikh Mohammed, the highest-ranking al Qaeda operative in U.S. custody, told the Guantanamo war crimes court.

/snip
As the judge questioned him about whether he was satisfied with the U.S. military lawyer appointed to defend him, Mohammed stood and began to sing in Arabic, cheerfully pausing to translate his own words into English.

"My shield is Allah most high," he said, adding that his religion forbade him from accepting a lawyer from the United States and that he wanted to act as his own attorney.

Isn't that just a super beginning to the arraignment before a death penalty "trial"? A "trial" that is supposed to lead to convictions and not acquittals? A "trial" that is supposed to result in five executions? But that's not all. Not by a long shot.

[Mohammed] criticized the United States for fighting in Afghanistan and Iraq, waging what he called "a crusader war," and enacting "evil laws" including those authorizing same-sex marriages. /snip

The judge, Marine Col. Ralph Kohlmann, tried to persuade the men to accept their military lawyers, but all refused.

Aziz Ali said he had barely been allowed to meet with his lawyer anyway and described him as "a signboard" hung up so the government could say, 'Hey, we give these people lawyers."'

"All this is just a stage play," he said.

But that wasn't the only part of the stage play arraignment that raised issues of fairness and propriety. Oh no. It's never that simple.

Binalshibh, whom the lawyers said was receiving psychotropic medication, wore leg chains bolted to the floor but the rest of the accused were unshackled in the courtroom.

A security officer cut the audio feed to the spectators' section when he described the reason for the medicine, and again when another defendant discussed his capture.

Binalshibh said he had sought martyrdom since trying and failing to get a U.S. visa "for 9/11" but that his life was in God's hands and that "America and the whole world cannot extend my life by one day or make it one day earlier."

Last year Mohammend allegedly told a review panel that the idea of hijacking planes and crashing them into buildings was his idea and that he oversaw the implementation of the plan.

Today he said

"They mistranslated my words and put many words in my mouth," he said in broken English learned as an engineering student in North Carolina.

He called the trial "an inquisition" and added, "All of this has been taken under torturing. You know that very well."

The New York Times provided further details of the arraignment. Mohammed made it entirely clear at today's arraignment that he wanted to be killed:

He told the court he wanted the Americans to put him to death.

“This is what I want,” he told a military judge here in his first appearance to answer charges for the terrorism attacks. “I’m looking to be martyr for long time.” /snip

He said his American lawyers were agents of the Bush administration’s “crusade war against Islamic world,” he chanted in Arabic (and then translated for himself), and he made it plain that he wanted to rally the other four accused men to his approach.

He was, he cheerfully told the court, unable to accept lawyers untrained in Islamic law, and he asked for the chance for all five men facing terrorism, conspiracy and other charges here in the Sept. 11 case to meet to plan a joint defense. /snip

The request for the meeting, like most from the defense, was rejected by the stern military judge, Col. Ralph H. Kohlmann.

Let's review today's arraignment. The five accused, each of whom faces the death penalty, have refused US appointed lawyers, claiming in part that providing lawyers is just part of the show and that accepting them is against their religion. Apparently, they want to represent themselves. Some of them apparently wish to be martyred. They would like to plan a joint defense, but they will not be allowed to. At least one of the accused is apparently psychotic and/or receiving psychotropic medication and was shackled to the floor in court. One of the accused has argued that statements attributed to him were false and the result of torture. Spectators were prevented from hearing parts of the proceeding by a security officer who twice cut off the audio of the proceeding.

If this is how the arraignment ran, you can only imagine what the "trial" will be like.

Meanwhile, prosecutors want to start the trial on September 15, a date the defense says was chosen to influence the U.S. presidential election in November. It's not clear how conducting this farce and mockery of justice will influence the presidential election.

One thing is clear. If today is any indicator, the "trial" is sure to emit a terrible stink. And it is sure to be a colossal, worldwide embarrassment to the US. It's hard to imagine any proceeding that could less fair or bring more criticism from those concerned about fairness and human rights and justice. In sum, the joke show is just beginning and the entire world is watching while the US thoroughly and perhaps irredeemably embarrasses itself.

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.