Saturday, July 13, 2002

When the Going Gets Tough, the Tough Hang Up

Wish we thought that one up. That's how James M. Capozzola, Editor of The Rittenhouse Review , one of our favorite blogs (with an incredible news links bar) describes Scoobie Davis' telephone interview with Ann Coulter. In the interview, set up by Scoobie with Ms. Coulter's publicity person, he pretends to be a radio talk show host and fan until the end when he reveals himself. It's a very, very funny conversation that we hope you take the time to read.

Descent into Indefinite Federal Detention

Hussein al-Attas, the man who once gave Zacarias Moussaoui a ride, has been held in solitary confinement since his arrest 10 months ago which occurred while he was worshipping at a mosque. No charges have been filed against the 24 year old, who according to Deborah Hastings in her AP article today, remains in good spirits.

According to Hastings, Al-Attas is being "held by the Justice Department in downtown Manhattan as a material witness in connection with the terrorist attacks of Sept. 11. His attorneys, silenced by a federal gag order, defend their client during closed hearings and in legal motions filed under seal. "

Al-Attas can receive no visitors, save his attorneys. His only other contact is with a spanish speaking prisoner on the other side of his cell wall. They speak through an air-conditioning duct. Al-Attas has requested a Spanish-Arabic dictionary so he can better communicate with him.

The Government won't say how many people it is holding as material witnesses. What happens after Al-Attas testifies at Moussaoui's trial? Most likely, he gets deported back to Saudi Arabia.

The article has much more on Al-Attas and his connection to Moussaoui.

Cop Crimes Round 3

This morning's LA Times reports that Donovan Jackson, the teen in the beating video, was hit twice by Officer Jeremy Morse's partner before he was even arrested.

Dozens of protesters in gathered in LA yesterday to demand Officer Morse be criminally charged for his misconduct. ``No justice, no peace, no racist police,'' the protesters chanted.

Jackson's attorney denies the version of the incident police put in their report. He claims that all four Inglewood officers "took turns" beating Jackson before the tape rolled.

In another twist to the case, as the cops were driving away from CNN with newly arrested Mitchell Crooks (the bystander/videotaper) in the car, Crooks was heard screaming, "Help, Me, Help Me."

Crooks was taken to the grand jury and then supposed to go to jail for his outstanding warrants. They had to take a detour to the jail. To the hospital. Seems there was a new altercation at or after Crook's grand jury appearance.

Crooks was taken to the jail ward at the LA County -USC hospital for "a sprained shoulder, a cut finger, numbness in his hands and bruises." Crooks' lawyer says Crooks believes the DA's investigators beat him up in retaliation for making the tape.

So what started this entire incident? According to the same LA Times article,

"The encounter occurred last Saturday evening when Jackson and his father, Coby Chavis, were at an Inglewood gas station and two sheriff's deputies stopped to investigate Chavis' expired vehicle registration tags. Jackson was leaving the station's market, holding a bag of potato chips, when he saw the deputies talking to his father.

Jackson tried to get into his father's car, ignoring deputies' commands to wait while they questioned Chavis, according to the officers and deputies."

All this over a teen eating a bag of potato chips who doesn't want to sit in a cop car cause he hasn't done anything wrong.

How often does this happen? Where can you learn more about police brutality, with a state-by-state reference guide. Check out CopCrimes which says its database is "the largest online resource for collecting information on law enforcement corruption and dishonorable deeds."

Friday, July 12, 2002

Update on Military Music Quote

Yesterday we had a question about the true author of the famous line, "Military justice is to justice what military music is to music." We thought it was George Clemenceau while Ernie the Attorney thought it was Groucho Marx.

Update: Tonight we heard from MadKane, currently a humor columnist, who wrote:

"I've worked as a musician (oboist) and as a lawyer, so your question got me curious. While not definitive, these two sources attribute the quote to Groucho Marx:"

"Of course the comparison isn't quite fair, since I can think of some good examples of military music -- Chopin's Military Polonaise, for instance. And even Beethoven wrote some military music. But as for good examples of military justice, I'm at a loss. Still, it's an amusing line and sure sounds like Groucho."

Ok, but we still aren't convinced because a google search had at least 70 attributions of the line to Clemenceau. Including, The New York Review of Books, 2/14/2002, Military Tribunals on Trial by Aryeh Neier, who wrote (about President Bush's tribunals order) "As written, the order violates, in different ways, the rights of all four categories; it recalls Clemenceau's famous comment about the Dreyfus case that "military justice is to justice as military music is to music."

Some others: The Introduction to a book called Military Law in Canada and a 1997 International Herald Tribune article by Mary Blume ("Military music bears the same relation to music as military justice does to justice, Georges Clemenceau famously remarked, weary perhaps of the sound of cunningly plangent regimental brass."

On the other hand, we also found a site that attributed the quote to Groucho while attributing this to Clemenceau: "War is much too serious a matter to be entrusted to the military."

Someone must know the answer to this. Please, clue us in.

Just Say No to National ID Cards

Mike Krause of the Independence Institute wrote a column today "Just Say No to National ID Cards.

The bill before Congress is HR 4633, the “Driver’s License Modernization Act of 2002," now sitting in the House Subcommittee on Environment, Technology and Standards. You can look it up on Thomas, the Federal Legislation Server. Under the bill, "The DMV would be changed from an agency which licenses qualified drivers, to one which validates our existence and holds centralized control over anything requiring identity verification."

We like it when we can agree with a right-leaning organization --and on privacy issues we often do. Like Michael says,"We still don’t need no stinkin’ National ID card."

Groups Argue Detention of "Dirty-Bomber" Padilla is Illegal

Press Release June 12, 2002, from the National Association of Criminal Defense Lawyers:

Washington, D.C.--Saying that the Bush Administration is incorrect in its interpretation of legal issues ranging from venue to the power of the president as commander in chief, state and federal criminal defense bar groups today filed an amicus curiae brief calling on the government to follow the law by giving accused "dirty bomber" Jose Padilla a lawyer and a chance to face his accusers in court.

The National Association of Criminal Defense Lawyers and its New York State affiliate, the New York State Association of Criminal Defense Lawyers, filed the brief on behalf of Padilla in a civil action brought by Padilla's counsel in the federal court for the Southern District of New York.

Donald G. Rehkopf, Jr., co-chair of NACDL's Military Law Committee, says that the government's contention that President Bush's actions as commander in chief are above the law are unfounded. "Washington and Jefferson both rejected this argument during their terms. The Supreme Court has repeatedly affirmed that absent a declaration of martial law, citizens may not be imprisoned by our military."

If the government claims that Padilla is acting on behalf of an enemy, he should still be afforded, under the Geneva Conventions, a hearing as to whether or not he is entitled to prisoner of war status, says Rehkopf.

He also argues that the government cannot circumvent jurisdiction of the court by moving Padilla to another location, and that there is no legal justification for not allowing him to have contact with legal counsel.

The case is Padilla v. Bush, et al, SDNY No. 02-Civ-4445 (MBM).

Here is a summary of the brief .

Military Music

We have a difference of opinion as to who coined the phrase, "Military justice is to justice what military music is to music."

We think it was George Clemenceau. Ernie the Attorney says it's Groucho Marx.

If anybody knows, let us know. We've had it attributed to Clemenceau on our Terrorism Trial Page ("Military Tribunals, Courts and Detainees" section) for months.

Law Professor L.H. LaRue says in footnote #2 to an article "What Is the Text in Constitutional Law: Does it Include Thoreau?", 20 Ga. L.Rev. 1137 (1986),

"'Military Justice is to Justice, as Military Music is to Music.' This saying is commonly attributed to Georges Clemenceau, but there is no proof that he actually said it. "

John Walker Lindh

John Walker Lindh is in the news today.

A hearing on his motion to suppress statements is set for next week.

Think First, Execute Later

We highly recommend Thomas Sullivan's Think First, Execute Later in today's National Law Journal.

Sullivan served on Illinois Governor George H. Ryan's Commission on Capital Punishment. The Commission issued a report recommending 85 reforms. Sullivan calls the report "a wake-up call for every state with the death penalty."

Mr. Sullivan outlines some of the reforms, concluding with:

"Regardless of one's views about capital punishment, we can all agree that its imposition should be fair, just and accurate. But this requires a nationwide commitment. The findings of the Illinois commission provide a well-researched guide for reforms."

In other death penalty news, the states are beginning to revamp their laws as a result of the recent Supreme Court ruling that only juries can determine facts necessary to impose the death penalty. Some will pass constitutional muster (for now) and others will likely fail.

Colorado is in the forefront of taking the safe route and returning to a unanimous jury system. We don't often agree with Governor Bill Owens, but we praise him for taking this position. Of course, he did it because he wanted a new law that allows Colorado to resume legally killing people as soon as possible. We want the death penalty abolished, but since it appears we are going to have one for a while, let's make it as fair as possible and that means putting the fact-finding and decision in the hands of a jury for a unanimous decision.

Judges Split On Detention of Material Witnesses

Yesterday a federal judge in the Southern District of NY ruled that the Government's detention of potential grand jury suspects under the material witness statute is constitutional. Another judge in the same district had ruled it unconstitutional in April.

Judge Judge Shira Scheindlin has taken a lot of heat for finding the material witness statute (read it here) facially ambiguous and in violation of the Fourth Amendment prohibition against unreasonable seizures.

Next step will be an appeal to the Second Circuit Court of Appeals, stay tuned.

Thursday, July 11, 2002

Don't Shoot the Messenger

In keeping with the LA cops' usual sense of contrition, John Barnett of Orange, CA, the lawyer for officer Jeremy Morse who was shown beating a teen on video, said today Morse's actions were justified. The lawyer actually said that Morse was "restrained" in his use of force.

He didn't volunteer that Morse has been accused of misconduct in at least six other incidents.

Worse than that, or maybe just about equal, the cops then arrested Mitchell Crooks, the cameraman/tourist who filmed the video--on minor charges.

Seems the police and prosecutors were anxious to get their hands on the video (remember it had only been aired on tv) so they had a subpoena issued for Crooks and his video. Crooks was reluctant to go. He was afraid the police would hurt him for filming the video.

Crooks and Chief Deputy Dist. Atty. Curt Livesay ended up on the same radio show in the afternoon, the DA in the studio and Crooks calling in by phone--here's part of their exhcange:

"Mitchell, let me assure you that there is a grand jury subpoena for you, and I suggest you honor it," Livesay told Crooks. "You show up at the Criminal Courts Building—that's downtown, 210 W. Temple [Street] and be there promptly ... at the grand jury."

"Yeah, well I hope the city rallies behind me," Crooks replied. "They're coming after me because I shot the video. I fear for my life."

"Mitchell, this is Livesay," the prosecutor shot back. "We want you before the grand jury, not in a cell somewhere. We want you before the grand jury and we want that original tape."

Crooks hung up. Later, he was outside the offices of CNN (good guess this is where the actual video was being kept) when the police swung by to arrest him on outstanding warrants from another county for petty theft and driving under the influence with a hit and run.

In our view, he tried to be a good samaritan and help out a kid being beaten by police by creating a record of what happened and look what hot water he landed in. And you wonder why more people don't intervene to help people in trouble ?

Here's the text of the civil rights lawsuit the teen filed against the cop.

Detained U.S. Journalist Held As Unlawful Combatant in Liberia

Why is this story so under-reported here?

From Dan Dodson, Media Affairs Director of the National Association of Criminal Defense Lawyers:

"Of perfect irony, a reporter in Liberia has been "detained" as an "unlawful combatant," accused of aiding a "terrorist organization" and is being held incommunicado! The U.S. State Department has issued a statement, but apparently not much more.

In a related news story, the Liberian Government's "defense" is that they are treating Bility [the reporter] the same as the US is treating "unlawful combatants" and so, cannot understand the fuss.

Who's covering the story here? As far as we can tell, only the Christian Science Monitor. Reuters has covered it a little, and Agence France-Presse is on top of it."

Only 36 Detainees To Be Held out of 1100

As further evidence of the failure of racial profiling as a law enforcement tool or to make us safer, consider this:

The Government has announced that out of 1100 people detained after Sept. 11, all but 74 have been deported or released from custody, and 38 of those remaining are about to be deported. That leaves 36 detainees in custody. So 95% have been released, and not one was charged with a terrorism offense related to September 11.

Of those who were deported, Deborah Jacobs, executive director of the Newark branch of the ACLU, said "Obviously they're not terrorists because you don't deport terrorists."
Rockefeller Drug Law Revisions Mired in Politics

Joyce Purnick has a good update in today's New York Times on the dissension between Gov. Pataki and the Democratic Assembly on changing the draconian Rockefeller drug laws in New York.

Seems Pataki, as a campaign promise 7 years ago, and in a bid to capture the hispanic vote in NY, promised reforms. But his reforms are not substantial enough. The democratic assembly's proposed changes go much further, and the two sides are scheduled to meet again. Pataki's compromise solution may cause him trouble: relief for the longest sentences now, changes in the future. Not good enough say the dems (and we agree.) If no substantial, across the board reduction is reached, Pataki will have failed to live up to a big campaign promise, and it could cost him in the election.

Among the groups opposed to Pataki's plan: the Mothers of the Disappeared - a group of former offenders and relatives of those still imprisoned.

Sentencing Departure for Son of Gravano

Gerard Gravano, son of Sammy Gravano (mob turncoat turned ecstasy dealer,) got a downward departure from the sentencing judge of almost two years. The reason: he was going to have to spend the time in solitary confinement which meant harder time. We like the departure and hope other judges can be so convinced.

How is the younger Gravano spending his time in prison? Writing a cookbook with his grandmother.
Texas Execution Halted

The Texas Court of Criminal Appeals stayed a man's execution yesterday (with four hours to spare) so that a determination could be made whether the man was mentally retarded. Jose Garcia Briseno would have been the 19th person executed in Texas this year. Texas has the highest number of executions in the country--274 since its death penalty was restored in 1982.

For more on Texas death penalty statistics, check out the Death Row Information website of the Texas Department of Criminal Justice, which lists everything from who's on death row to final meal requests.
NY Cops To Use Bracelets and Tracking Devices

The new pilot program announced by the New York City Police sounds like an ominous "big brother" tactic to us. The cynical would say that since it is being applied to prisoners, who cares? Others, like us, would point out that many bad policies are applied to the lowest among us for starters, and once having gained acceptance, then are applied to the rest of us.

Upon being arrested, prisoners will be given a bracelet about an inch wide, containing a picture of the suspect, a case number, a basic description of the charges and a bar code. In the future, the police say, the bracelet may include a global positioning chip to track fugitives like a stolen car. (From the AP, Available on Lexis)

Surpisingly, the ACLU doesn't have a problem with the bracelet, so long as the information contained within it is destroyed after the case is dismissed or sealed. Its way too Orwellian for our taste.

First LA, Now Oklahoma

Yesterday a video surfaced of two white Oklahoma City police officers beating a black suspect with batons. From what we saw, the suspect was lying face down on the ground and the cops kept beating him long after he was subdued. The cops are facing disciplinary action. His offense: trying to have sex with a prostitute in a van.

How's this for the department's justification: ``While he was not actively aggressive with the officers he was actively noncomplying.''
Fairness Be Dammed!

Received from Wilson Myers, Attorney and candidate for Florida Attorney General: "This will happen more and more. Fairness be damned, full speed ahead!"

He's talking about the lame INS attempt to oust Thar Abdeljabera, a 30 year old Palestinian father of five, for failing to report an address change.

The INS rarely deports anyone for this violation. In fact, their own regulations say failure to report an address change should not normally not be the basis for deportation. So what's behind this?

In March, Abdeljaber was tracked going 4 miles over the speed limit in Raleigh. He was stopped and found to have several thousand dollars in cash and maps with some cities in North Carolina circled in red. Abdeljaber told police he drew circles around places with flea markets and swap meets and Mexican stores--relatives say he travels to these places to sell electronic equipment he buys through the mail.

He has never been charged with any other crime. He's a legal permanent resident who came here to join his wife, also a legal resident, in 1998. Two of their five kids are U.S. citizens. In 1999, they moved to Richmond to be near his sister. He was charged with failing to report this address change within ten days. He pleaded guilty, served 25 days, and now INS is trying to deport him. He's been in jail for four months for this.

Jeanne Butterfield, executive director of the American Immigration Lawyers Association, says "They're using the immigration laws to go after people that they don't have any basis to go after under the criminal laws. I think it's appalling."

So do we, and so does Attorney General candidate Myers. We wish him the best and will track the race.

Wednesday, July 10, 2002

Bush Names Top Corporate Crime Fighter

President Bush has named Deputy Attorney General (and former white collar criminal defense attorney) Larry Thompson to head his new Corporate Fraud Task Force, also known (by presidential description no less) as a financial fraud swat team.

We're not crazy about prosecution task forces, and swat teams even less so, but if we have to have one, we laud Larry Thompson's appointment. Larry is seasoned, fair, level-headed, smart and a very nice guy.

We liked his position on the McDade Law (the McDade law states that all lawyers, including Department of Justice lawyers, are subject to existing state ethics laws and rules governing attorney conduct). He said it's good for the profession and that the Justice Department "stubbornly and unwisely continues to urge its repeal." (Federal Lawyer, Jan. 2001.)

We like his support for grand jury reform.

Of course, we don't like his support of the Administration's anti-terrorism proposals, particularly the monitoring of attorney client conversations.

But as Meatloaf says, two out of three ain't bad.

Investigation Underway in Lindh case

Following the Lindh Court's inquiry and request for a report, the Justice Department has opened an investigation into whether possible leaks resulted in Newsweek's publication of several internal emails by Justice Department officials related to the Lindh case. The e-mails were significant because they suggested that Lindh might have a valid argument in his attempt to suppress statements he allegedly made right after his capture.

Legislation Day

We posted several legislative notices today on crime-related issues to keep readers informed of recent developments and to encourage you to get involved in the legislative process. It's more serious reading than our regular posts, but we feel it's important stuff.

If you have comments on any of them, or anything else, please e-mail us. If you don't want your comments posted here, just say so in your e-mail.

Oh, and we added an internal search engine today to make it easier for you to find what you are looking for on TalkLeft. It's on the right, just below our recommended links and archives.

Action Alert: New Federal Ecstasy Act

Just in from Marijuana Policy Project:

Stop the Senate From Banning Marijuana Rallies and Other Events

Take Action

The Senate is poised to pass legislation that would give federal prosecutors new powers to shut down hemp festivals, marijuana rallies and other events and punish business owners and activists for hosting or promoting them. The proposed law would also potentially subject people to enormous federal sentences if some of their guests smoked marijuana at their party or barbecue.

It would also effectively make it a federal crime to rent property to medical marijuana patients and their caregivers.

The bill, known as the Reducing American's Vulnerability to Ecstasy Act (RAVE Act), was just introduced in the Senate on June 18th and has already passed the Senate Judiciary Committee. It is moving VERY rapidly and could be passed by the Senate as early as this week. While it purports to be aimed at ecstasy and other club drugs, it gives the federal government enormous power to fine and imprison supporters of marijuana legalization, even if they've never smoked marijuana.


** Fax your Senators today.

** Forward this alert to your friends, family, and co-workers.

** After you fax your Senators, please follow it up with phone calls. Tell them you just faxed them a letter in opposition to S. 2633, the Reducing American's Vulnerability to Ecstasy Act. Tell them that innocent business owners shouldn't be punished for the crimes of their customers. Tell them this bill has dangerous anti-civil liberties provisions that they need to be aware of, and this bill deserves serious debate.

You can contact your Senators through the Capitol Switchboard at 202-224-3121. Here's where you can find out who your Senators are "

New Juvenile Justice Report on Latino and Latina Youth

¿Dónde Está la Justicia?
A Call to Action on Behalf of Latino and Latina Youth in the U.S Justice System

Received from Building Blocks for Youth:

On behalf of the Youth Law Center and the Building Blocks for Youth initiative, we are writing to make you aware of a new report,"¿Dónde Está la Justicia? A Call to Action on Behalf of Latino and Latina Youth in the U.S Justice System" that we will be releasing next week on July 18th.

This report reveals that Latino and Latina youth are over-represented in the U.S. justice system, and receive harsher treatment than White youth for the same types of
offenses, while there is a lack of adequate data nationwide which masks the severity of the problem. The report was commissioned by the Building Blocks for Youth initiative and prepared by Francisco Villarruel and Nancy Walker of Michigan State University's Institute for Children, Youth, and Families.

The key findings show that:

* Latino and Latina youth are significantly over-represented in the U.S. justice system and receive harsher treatment than White youth, even when charged with the same types of offenses;

* Current means for collecting and accessing data are inadequate, resulting in under-counting and inaccuracies in reporting disproportionate representation and disparate treatment of Latino and Latina youth in the U.S. justice system;

* The system does not provide uniform definitions for the terms Latino and Hispanic;

* The system fails to separate ethnicity from race;

* The system fails to provide adequate bilingual services to Latino and Latina youth;

* The system fails to ensure cultural competency of staff working with Latino and Latina youth;

* Consideration of the immigration status of Latino and Latina youth results in incarceration, deportation, and permanent separation from families;

* Anti-gang laws result in harsh and unfair consequences for Latino and Latina youth.

The executive summary, full report, recommendations for action, press release, and fact sheets will be available on the Building Blocks for Youth initiative website on July 18th .
Hearing Tomorrow on Innocence Protection Act

Received from Kyle O'Dowd, Legislative Director of the National Association of Criminal Defense Lawyers (NACDL):

The Innocence Protection Act (IPA) now has a total of 26 Senate cosponsors and 238 House cosponsors. The bill, S.486, provides safeguards against wrongful convictions by expanding access to DNA testing and improving the quality of indigent defense in capital cases.

In recent weeks, Senator Leahy has worked closely with other members of the Judiciary Committee to forge a consensus approach to these issues. Those discussions have produced a substitute amendment that the Judiciary Committee will consider at its next executive session tomorrow, July 11th, at 10:00 am (E).

The substitute amendment to the Innocence Protection Act includes four major changes:

1. A new provision that would affirm a Fourteenth Amendment right to DNA testing under certain circumstances.

2. The proposed National Commission on Capital Representation has been eliminated in favor of an approach that would establish a grant program for states to improve the systems by which they appoint and compensate lawyers in death cases. States that accept grant money must meet basic grant compliance standards, which may be enforced through civil suits in federal district court.

3. A new provision that would ensure death row inmates are not executed while their cases are being heard by the U.S. Supreme Court.

4. A new provision that would provide student loan forgiveness for prosecutors and public defenders. (Note that this is an authorization only; getting federal funding for the program may be tough.

We'll post a link to the Substitute Amendment as soon as we get it. Right now we only have it as a downloaded pdf. document. If you find it first, please email it to us, thanks.
Marijuana Update

Lots of marijuana news today.

First, Nevada voters will be voting on legalizing marijuana use for everyone (not just medicinal use) in November. Until last year, Nevada had the strictest use law in the country--even smoking a joint was a felony (now it's a misdemeanor if less than an ounce.)

75,000 signatures got the measure on the ballot. If the measure passes, "marijuana would be sold in state-licensed shops and taxed like cigarettes and other tobacco products. A distribution system would also be set up to provide low-cost pot for medical uses."

Elsewhere, Britain is set to decriminalize marijuana use. It is downgrading the drug to the same category as steroids and growth hormones and changing smoking it in private and possession of small amounts to a non-arrestable, non-jailable offense.

Finally, D.C. dwellers take note: We received news today from the Marijuana Policy Project that the required 39,000 signatures were delivered to the D.C. Government office, "virtually ensuring the placement of our medical marijuana initiative on the November 5 ballot in our nation's capital." For more on this and how you can help the measure succeed, or contribute.
Why we need the Innocence Protection Act

Update: The Innocence Protection Act is scheduled for markup before the Senate Judiciary committee tomorrow (session starts at 10:00 am).

Why do we need the IPA?

So we never read another opinion like this one -- Burton v. Nixon, July 8, 2002, 8th Circuit Court of Appeals: (link to full text)

"Darryl Burton’s habeas petition depicts a troubling scenario. One cannot read the record in this case without developing a nagging suspicion that the wrong man may have been convicted of capital murder and armed criminal action in a Missouri courtroom.

Burton was convicted on the strength of two eyewitness accounts. Since his trial and imprisonment, new evidence has come to light that shakes the limbs of the prosecution’s case. One eyewitness has recanted and admitted perjury. The other eyewitness’s veracity has been questioned by a compatriot who avers it was physically impossible for him to have seen the crime.

A layperson would have little trouble concluding Burton should be permitted to present his evidence of innocence in some forum. Unfortunately, Burton’s claims and evidence run headlong into the thicket of impediments erected by courts and by Congress. Burton’s legal claims permit him no relief, even as the facts suggest he may well be innocent. Mindful of our obligation to apply the law, but with no small degree of reluctance, we deny Burton a writ....

....we have squarely rejected the notion that a prisoner may receive a writ simply because he claims he is innocent. “[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Meadows v. Delo, 99 F.3d 280, 283 (8th Cir.
1996) (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)).

For more on the bi-partisan Innocence Protection Act currently before Congress.

Tuesday, July 09, 2002

NY Death Sentence Overturned

The first man sentenced to death under New York State's death penalty law has won a reversal. The 1995 law under which he was convicted was declared unconstitutional.

"The Court of Appeals ruled 6-1 that the law at the time of Darrel Harris' trial violated his constitutional right to a trial by jury by offering him an incentive avoiding death if he pleaded guilty and accepted the sentence of life without parole."

Judge May Reconsider Moussaoui Competency

A month after deciding Moussaoui was competent to represent himself, the Judge may be having second thoughts. Judge Brinkema correctly noted "The competence of a defendant must be considered by a court whenever the issue is properly raised." Prosecutors weren't too happy with that one.

Stand-by counsel told the Judge that Moussaoui is unstable. In today's unsealed pro se filing, he compared his situation to that of Lee Harvey Oswald, fearing a similar assasination. "Or they migh (sic) claim that I committed suicide. After all they already have done the ground work by claim (sic) that I was mentally unstable, paranoid."

Colorado Tries to Fix its Death Penalty

The special session of the Colorado legislature called by Governor Owens to fix the state's death penalty law began yesterday. For the past several years, Colorado has been using a three judge system, the kind ruled unconstitutional by the Supreme Court two weeks ago.

Owens is wisely requesting the legislators go back to a unanimous jury system as that apparently passes Supreme Court muster. Others are suggesting an abolition (our choice) or a non-unanimous jury system (doubtful that would be constitutional.)

Yesterday, a former death row inmate, one of the 101 freed from death row after being found factually innocent, told his story to the legislators.

Two good columns on his testimony: Time is Short for Officals and Inmates by Diane Carman in the Denver Post and Mike Littwin's There is No Such Thing as a Free Ride on Death Row in the Rocky Mountain News.

We don't want a death penalty. But if we have to have one, and apparently we do for now, let's make it as fair as possible by returning to a system where the jury that decided the accused's guilt must thereafter unanimously make the life or death decision.

Insurrection or Precedent

Bruce Fein's take on the Pledge of Allegiance uproar in the Washington Times.

Jesse Jackson on Bush and Ashcroft

Jesse Jackson calls Bush and Ashcroft "the most threatening combination in our lifetime."

"Swingers" Coming Out of the Closet

We think the Van Dam murder trial, coming to an end in San Diego, may have prompted this San Francisco Chronicle article on the increasing number of swingers, clubs, conventions and resorts devoted to them.

Danielle Van Dam was the 7 year old San Diego girl kidnapped from her bedroom and found dead days later. Westerfield, a neighbor with a motor home, was charged and is on trial. If convicted, he could face the death penalty. Court TV has been covering the trial live.

A hot debate topic in the case is whether the defense is engaging in "victim-bashing" in highlighting the parents' swinging lifestyle which included bringing strangers to their home for pot and sex parties. The case is circumstantial in that no one saw Westerfield with the girl that day and nothing links Westerfield to the Van Dam home. Witnesses yesterday testified that the mother was "dirty dancing" with Westerfield at a bar called Dad's the night of the murder, giving him a possible explanation for any hair and fibers that may have been found in his motor home. They transfer easily. Plus the mother denied on the stand that she danced with Westerfield that night. She did admit to all the swinger stuff though.

We believe it would be grossly negligent not to bring up the parents' lifestyle. The fact that they brought strangers into their home to have sex makes it possible that one of them committed the crime. While DNA of Danielle's was found in Westerfield's home, as were pornographic images on his computer, evidence was also brought out that Danielle had been in Westerfield's motor home the week before she disappeared selling girl scout cookies and his son shared his computer and the downloaded images may have been his.

We feel sympathy for the Van Dams, who lost their daughter. But a man is on trial for his life, and the evidence of who was in their home and when is relevant to make that trial fair.

Don't Forget the Detainees

Thanks to the Washington Post Editorial, "Still No Lawyers" for reminding us that Hamdi and Padilla are still sitting in military brigs, not charged with any crime and unable to meet with lawyers. All because the executive branch says they have the sole right to declare someone an "enemy combatant."

This is an arrogant usurption of power as we have mentioned here before. We'll bump this comment:

"We think the military has the right to accuse someone of being an enemy combatant but it should be a judge who makes the decision. In open court. At a hearing where Hamdi is afforded a right to a lawyer, the right to review the evidence against him, and to call and cross-examine witnesses. Until and unless a court determines he is an enemy combatant, he should retain his rights as an American. To say otherwise means the Government can brand someone with a label and then imprison them indefinitely, even forever. We think that's way too much power to give the Government."

By the way, anyone see the ABA's ad promoting the Constititution that started in newpapers yesterday? If you do, send us the link so we can post it, ok? Thanks.

Cochran, Neufeld & Scheck Win $4M Settlement of Minority Troopers' Bias Suit

Thirteen New Jersey state troopers who filed racial discrimination claims against the state police, alleging they were harassed, hazed and denied promotion, have agreed to settle their claims for a total of $4 million. The lawyers will get an additional $1 million. The settlement was a decade in the making--the case started in 1993 when a complaint was filed with the EEOC.

New Jersey has plenty more to worry about from two pending class action lawsuits by all minority motorists stopped by state troopers who claim that their civil rights were violated because of racial profiling. Settlements or trials could result in millions more in damages paid out by New Jersey.

Calling All White Collar Defenders

Crime is paying off big time for white collar criminal defense lawyers, particularly in California where securities fraud busters have been busy beavers. Seems that the the SEC investigators and federal prosecutors are using a "tag team approach," making defender advice essential even at the negotiating phase.

The large retainers are now being welcomed by the big firms that have seen a drop-off in corporate work.

Monday, July 08, 2002

Update on Video of White Cop Punching Black Teen

The cop has been suspended.

Moussaoui Takes Aim At President

Today was the filing deadline for any remaining motions pro se defendant Moussaoui wants heard by the Court. Among them are a motion complaining that the FBI used an electric fan planted on his car to track his movements prior to September 11, and another in which he compares President Bush to the Roman emperor in the movie "Gladiator."

"The one who say that he was going to return honors to the office was definitely talking about Ceasar Type Honors like in Gladiator: Stabbing the enemy in the back before the fight. Not surprising for Daddy son. Leading (or I must say cheating) from the back," he wrote.

Cop Punching Teen on Video

You have to watch this video, it is truly incredible--and will be the subject of many a talk show tonight, beginning with MSNBC's Dan Abrams at 6 pm e.s.t. (Mickey Sherman guest hosting for vacationing Dan who returns Wednesday.)

It is also now the subject of a police probe.

The video is of four to five cops surrounding a teenager on the ground who does not appear to be resisting. One officer picks him up and slams --really slams-- his head into the hood of the car. Another cop punches him in the head. The video was taken by tourists. The cops? From Inglewood, CA. (LA) The reason for the arrest? A routine traffic stop. The driver was found to be driving with a suspended license. The passenger, who allegedly got into it with the cops, was the attacked teen. Immediate sanctions? None, not even suspension or administrative leave.

Let's follow this one.

Supremes Draw Line At Underpants Search

CNN has a good analysis up today on the various search issues decided this term by the Supreme Court. It's okay to search a bus passenger's baggy jeans but not the underwear of a man in his home. "The bus search case overshadowed the underpants search challenge because of its impact on the government's anti-terrorism efforts."

Easily Worth The Price of A Drink

Thanks to Vodka Pundit for overcoming its reluctance to give us a link. TalkLeft is settling in quite nicely on VP as a "Cosmopolitan" - we couldn't have picked a better category! As the VP points out, we bought our link with our offer (see below under "Reluctant Link?") of a martini or a brew at his choice of pub on his next trip to Denver.

Welcome, VP--your link is up now on TalkLeft as well.

PS Our link on VP is in the name of the author of this weblog, rather than TalkLeft, so don't get confused.
"Reluctant Link?"

We got a mention today from Vodka Pundit, but so far, no link. Seems that the VP, while agreeing with our position on matters concerning the Bill of Rights, objects to our mention this past weekend of an LA Weekly interview with Gore Vidal.

VP complains we are taking Mr. Vidal seriously. Actually, what we called the interview with Vidal was "an interesting read." We stand by that. Mr. Vidal certainly has a different take on September 11 and Oklahoma City than the rest of the world.

We hope VP keeps reading TalkLeft and decides we do deserve a link--like Altercation and Maxspeak have given us. As soon as he does, we'll buy him a martini or a brew at his pub of choice on his next trip to Denver from his home town of Colorado Springs. And, of course we will set up a nice link to him here.

Vested Interests

Closing arguments are today in the Louima re-trial of former NYC cop Charles Schwarz, accused of perjury and conspiracy to violate Abner Louima's civil rights. The main issue: Was he the cop in the bathroom with Justin Volpe when Volpe savagely sodomized Louima. We've been following the case all along, see Justin Volpe's Bad Hair Day and Abner Louima/Charles Schwarz, Round 2.

So has William Glaberson of the New York Times. Check out his article today, Defense Lawyer's Obsession About to Be Tested on Ron Fischetti, the highly esteemed (justly so in our opinion) defense lawyer representing Schwarz. Fischetti is obsessed with the case and with Schwarz' innocence. It's a good read, and it's not a "puff piece."

Fishcetti acknowledges what happens when the lawyer gets too close to the client--as he admittedly has done with Schwarz--in his case, he wakes up at 2 am dictating portions of his closing, can't talk to friends or colleages about anything else, and in essence, lives and breathes the case 24/7. When the second trial ended in a guilty verdict against Schwarz in 2000, Fischetti blamed himself for misreading the jury during the trial.

If only it were Fischetti on trial instead of Schwarz. We'd acquit in a minute. It's just too much to ask us to be symathetic towards his client. Two juries have convicted him, one after hearing his side of the story. Both convictions were overturned on what the public calls "technical grounds" unrelated to factual innocence. It is impossible to get away from the finger pointing, excuses, lies and half-truths told by almost every cop in this case. The most we can say is probably no one will ever know what really went on in that bathroom.

Fischetti has done a great job of portraying Schwarz as the victim in the media. Sorry, but we still think Abner Louima is the victim here. He's suffered through the attack, the humiliating publicity, endless trial preparation first for the criminal cases and then his own civil action against the City and Police (which finally settled) and now this trial. See Jim Dwyer's excellent NYTimes article "No Way Out" describing Louima's life these past five years.

We can't say who is telling the truth about which cop it was who led Louima to the bathroom to be subjected to Volpe's torture or whether that cop physically restrained Louima during Volpe's attack. Or why, if that cop wasn't helping Volpe, he didn't try and stop the attack.

We can say that everyone has a vested interest here. Schwarz so he doesn't go back to jail; Volpe who is hoping for a sentence reduction for testifying for Schwarz if Schwarz is exonerated; Cop #3 (Wiese) who refused to testify at this trial because he's afraid of being charged with perjury whichever way the verdict goes; and Fishcetti, who has gotten so close to his client that if he loses, he'd probably give up his right arm if it would spare his client going back to jail.

Everyone, that is, except Abner Louma. He has no vested interest because for him, the legal ramifications are over. He is simply seeking justice.

Sunday, July 07, 2002

Facts on the Pledge of Allegiance

Arthur Schlessinger, Jr. has an excellent op-ed piece in today's New York Times called "When Patriotism Wasn't Religious."

In tracing the history of the Pledge since its creation by Francis Bellamy in 1892, turns out the words "under God" weren't added until 1954 when Congress decided "to emphasize the antagonism between God-fearing Americans and godless Communists," which he points out was hardly necessary in the Joe McCarthy era.

Bellamy's granddaughter says he would have objected to the change because it changes the fundamental meaning of the Pledge. "One nation indivisible" was a reference to the Civil War, after which Bellamy thought our nation could not be divided. She also says the change ruins the "rhythmic cadence."

Another great fact: Nowhere does the word "God" appear in the Constitution.

Will Death Penalty Reform Hurt the Abolition Cause?

That's the concern of Wendy Kaminer in The Switch in today's New York Times Magazine. She is one of a growing number of journalists tracking the public's decreasing support for the death penalty. By the way, we are up to 107 people released from death row after being found factually innocent of their crimes.

We also like Wendy's July 15, 2002 commentary in American Prospect --called Ashcroft's Lies that points out the foolhardiness of throwing more money and power at the FBI, given its abysmal record. Not sure if it's on-line yet, so keep checking back.