One Can Only Wish

I find myself without a wig in the midst of a trial in County Court. Does anything in a real court ever go as well as in the movies? Probably not. But hope springs eternal.

My Luck: The Jury Isn't Called

Earlier this year I received a notice that I would going to be called for jury duty. Columbia County wanted me to serve on a jury. Again. I wanted to serve, too. How else, I thought, will I ever find out what goes on behind the locked, guarded doors when a jury deliberates? Maybe, I thought, if I could be selected for a jury, I'd gain some insight that might help me when I talk to juries in behalf of my clients. I could be fair and impartial, I thought. As fair and impartial as anybody else. And yes, I'd leave my legal expertise at the courtroom door. I wanted to be on a jury.

Last time I was summoned, about 6 years ago, I wasn't selected to serve. I waited around for two days before being questioned. It was unbelievably boring. Incredibly mind numbing. I ran out of reading material after about 4 hours of sitting in the big courtroom. What a disaster. My ultimately being struck for cause by the prosecution resulted in the reversal of a murder conviction by the Appellate Division (pdf). It turns out I was improperly struck. This time I again wanted to serve. But let's face it: after the last time it was clear that almost anything could happen to mess up my chances for serving.

I got my dated juror summons about a month ago. I was to be juror 196 on December 7, 2009. It struck me that there was something odd about the date. I wasn't sure what it was at first. Then I figured it out.

Because of my part time Public Defender position, there was a felony DWI case I was supposed to try beginning on, wait for it, December 7, 2009. I realized last week that I had been summoned to serve on my own jury. How, I wanted to know, was I going to be able to voir dire myself, argue to myself. What rotten luck. I was going to be discharged. I had to be. It was obvious. I was disappointed. But there was still hope. Maybe somebody else would have a case to try on Monday, December 7, 2009, and if the stars aligned correctly I could be on that jury.

On Friday the stars did their part. My client received a favorable plea bargain. He pleaded guilty. There would be no trial in his case on Monday. So, amazingly, I was free to serve on somebody else's jury on December 7. I knew there weren't any other criminal cases set to be tried on that day, but maybe there was something else. A fender bender, or a breach of contract, or a medical malpractice case. Some kind of case, any kind of case, so I could be a juror and listen to testimony and deliberate. That's what I wanted.

The jury summons instructed me to call during the weekend and find out whether I was supposed to appear tomorrow. I crossed my fingers. I called. Bad news. I'm not supposed to show up. There are no trials. None at all. Nothing. And this is the worst part of it: I won't get another summons for another 6 years.

This is great news because I'll be free of sitting at the courthouse for a few days this week. But it's also terrible news because I cannot be re-called for jury duty for another six years and I'm not going to get a chance to be on a jury until that time expires. And, of course, there's no assurance that I'll be called again in 6 years.

I don't think I'm ever going to be on a jury.

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.

Show Trials: 6 Gitmo Detainees Face Death

A Gitmo Detainee

Let the Gitmo show "trials" begin. Let the Bushites promote fear of "terrorism" in behalf of McCain. Let those who have been waterboarded be convicted on statements they made under torture. Let the US show the entire world that it's mired in its barbarianism and that it will kill to advance a partisan political agenda. Let yet another national disgrace unfold.

Killing to advance a partisan political agenda isn't exactly new. Two of the most glaring examples: Ricky Ray Rector and Karla Faye Tucker. And now the eventual killing of 6 Gitmo detainees-- even if they are convicted executions will not be possible for years-- is planned. Notice when this announcement was made. It's been 6+ years since the incident, and the detainees have been in custody for more than 5 years. But the election season is upon us, and the Republican front runner believes that terrorism is his most powerful issue. Is this the earliest moment when the announcement could have been made that the death penalty would be sought? Of course not. But what better political time to announce this.

Today's New York Times tells part of the story:

Six Guantánamo detainees who are accused of central roles in the terror attacks of Sept. 11, 2001, will be shown all the evidence against them and will be afforded the same rights as American soldiers accused of crimes, the Pentagon said Monday as it announced the charges against them.

Military prosecutors will seek the death penalty for the six Guantánamo detainees on charges including conspiracy and murder “in violation of the law of war,” attacking civilians and civilian targets, terrorism and support of terrorism, Brig. Gen. Thomas Hartmann of the Air Force, legal adviser to the Defense Department’s Office of Military Commissions, said at a Pentagon news briefing.

General Hartmann said it would be up to the trial judge how to handle evidence obtained through controversial interrogation techniques like “waterboarding,” or simulated drowning. Critics have said the harsh techniques, which are believed to have been used on several of the defendants, amount to torture.

As expected, the six include Khalid Shaikh Mohammed, the former Qaeda operations chief who has described himself as the mastermind of the Sept. 11 attacks, which killed nearly 3,000 people.

The Military Commission system has not yet had a single "trial." The one case in which there was a disposition, David Hicks, involved a guilty plea. So nobody knows whether the commission system works or how it works in practice and none of the procedures has been tested in an actual "trial." And, of course, the decision to seek the death penalty was announced before any of the charges were translated and served on the accused. So the additional complications of having a death penalty trial, let alone the 6 announced at this moment, haven't been worked out. Today's dramatic announcement means that a previously untested, unused procedure will now be invoked for the first time to decide if the six live or die.

This should spark a worldwide firestorm of criticism:

The decision to seek the death penalty will no doubt increase the international focus on the case and present new challenges to the troubled military commission system that has yet to begin a single trial. The death penalty is an issue that has caused friction for decades between the United States and many of its allies who consider capital punishment barbaric.

“The system hasn’t been able to handle the less-complicated cases it has been presented with to date,” said David Glazier, a former Navy officer who is a professor at Loyola Law School in Los Angeles.

Forget that the commission hasn't been used yet. Not once. In today's announcement, to no one's surprise, General Hartmann emphasized the procedural safeguards the accused would supposedly have:

General Hartmann said he could not predict when actual trials would begin, but that pretrial procedures would take several months at least. He said the accused will enjoy the same rights that members of the American military enjoy, and that the proceedings will be “as completely open as possible,” notwithstanding the occasional need to protect classified information.

In no sense will the proceedings be secret, the general said. “Every piece of evidence, every stitch of evidence, every whiff of evidence” will be available to the defendants, General Hartmann said.

Some officials briefed on the case have said the prosecutors view their task in seeking convictions for the Sept. 11 attacks as a historic challenge. A special group of military and Justice Department lawyers has been working on the case for several years.

Evidently a speedy trial isn't one of the rights the detainees have. Nor is the freedom from torture. Nor is the suppression of statements extracted under torture or evidence derived from the fruits of torture. And it remains to be seen exactly what kind of cross examination and confrontation rights the detainees have. And what kind of rights the detainees have to call witnesses in their own behalf. And what kind of non-secret, public "trial" they will receive behind the wire in Guantanamo. General Hartmann's statements aside, there's more to due process than receiving the evidence against the accused. A whole lot more.

Put simply, today's announcement should be widely condemned for its barbarity. And for its obvious political motivations. This a complete disgrace.