Sunday, July 21, 2002

Bring Back Justice

The Denver Post earns high praise today. Three opinion pieces exploring our ever-increasing lust for vengence over rational and just crime policy.

In One Size Fits All Justice Doesn't Work Peter Chronis of the Post's Editorial Board and former long time crime reporter examines the evolution of murder statutes through interviews with judges, prosecutors and defense attorneys.

Mandatory Madness Grips Our System by Denver Post Deputy Editorial Board Editor Bob Ewegen takes on mandatory minimum sentences. "As Pete Chronis' thoughtful article on this page makes clear, Colorado lawmakers have painted themselves into a corner where a single sentence - life without possibility of parole - is applied to a bafflingly wide variety of criminal offenses."

Ewegen quotes Eric Sterling, president of the Criminal Justice Policy Foundation, a private non-profit educational organization promoting solutions to criminal justice problems, in a Frontline show on the topic, "There have been literally thousands of instances of injustice where minor co-conspirators in cases, the lowest-level participants, have been given the sentences that Congress intended for the highest kingpins. Families are wrecked, children are orphaned, the taxpayers are paying a fortune for excessive punishment."

Ewegen discusses the Lisl Auman case, one that our sister site CrimeLynx has been featuring for some time, and concludes, "The U.S. Congress and the Colorado legislature both need to replace the runaway system of mandatory minimum sentences with laws that once again give trial judges the discretion they need to make the punishment fit the crime."

Last but not least, in an editorial Bring Back Justice the Post opines: "Those who champion iron-fisted laws might consider that more than seven decades of autocratic rule failed utterly to eliminate crime in the former Soviet Union. Somewhere along the way, Americans seem to have forgotten that laws exist to foster justice - not to satisfy the blood lust of victims' kin."

Friday, July 19, 2002

Postal Service Does About-Face on "Operation Snoops"

We cheered the Postal Service earlier this week when they announced their workers would not participate in Operation Tips.

Now, the about-face. Seems the Postal Service didn't really understand the program (or so they say) and they and union officials are going to meet with the Justice Department about the program before making up their mind.

By the way, TIPS stands for Terrorist Information and Prevention System.

Also from the CNN article linked above, "Members of civil liberties and privacy groups have joined conservative groups in their condemnation of the proposed program, dubbing it "Operation Snoops."

That's our name for it from now on.

Chandra Levy Forensic Dream Team Formed

Talk about forensic power--the country's three most famous forensic experts in homicides have joined forces to determine who killed Chandra Levy.

That's right, Henry Lee, Michael Baden and Cyril Wecht.

Billy Martin, Levy Family lawyer made the announcement today. The trio examined Levy's remains at the District of Columbia medical examiner's office, and went to Rock Creek Park where the remains were found May 22.

Transcript of Yesterday's Moussaoui Hearing

Courtesy of the Washington Post.

Ex-NY Police Commissioner Vies for LA Chief's Position

Former NY Police Commissioner Bill Bratton has joined the race for chief of LA's Police Force. We like Bratton a lot. Unlike Guluiani, he knows how to reduce crime without violating civil and constitutional rights. He did an unbelievable job when he had the job in Boston.

We would rather have seen him as Mayor of New York City, but that was not to be this past election.

If you want to know more about him and his theories on policing, look for his book on Amazon. We'll get it here over the weekend...

Members of Congress To Hold Press Conference In Support Of Medical Marijuana

Mark your calendars for this one....Congressional representatives, health professionals and patients will be holding a Capitol Hill press conference on Wednesday, July 24, urging Congress to debate and approve H.R. 2592, the "States' Rights to Medical Marijuana Act."

House Bill 2592, introduced by Reps. Barney Frank (D-MA) and Ron Paul (R-TX), would amend federal law so that states wishing to legalize and distribute medical marijuana could do so without running afoul of federal law. The bill has 36 bi-partisan co-sponsors, but has never received a hearing in Congress. For more info, visit this page on NORML's website.

Blog Thanks and News

Thanks to Jason Rylander for his exceptionally nice compliment on our coverage of the Moussaoui attempted plea news yesterday, "Talk Left owns this story and is correcting lots of media mistakes on court process and pleas -- head over there for detailed news."

Over the weekend we will be making the transition from Blogger to Movable Type. We're not expecting down-time, especially since the incredibly web savvy Daily Kos volunteered to help us with it --but if we do, just know we'll be back up asap.

Thursday, July 18, 2002

As It Unfolded: Moussaoui Tries to Plead Guilty

5:00 If there was a news conference, we didn't see it. We did just see a taped report of NBC's Pete Williams on MSNBC, and he got it right as to the procedure. So did Dan Abrams on his show at 6pm ET. According to a law professor interviewed by Pete Williams in his piece, the death penalty is legally doubtful for Moussaoui if all he did was join the conspiracy but didn't actually kill or hurt anyone. Dan disagreed, pointing out that the jury was allowed to consider the death penalty for Terry Nichols even though he was not in Oklahoma City the day the federal building there was bombed. (The Nichols jury voted for life over death, which explains the State of Oklahoma's insistence on trying him in state court where he will once again be subject to the death penalty. )

Our view: Send in the lawyer from Texas that Moussaoui asked to have advise him weeks ago. It shouldn't matter that the lawyer isn't licensed in Virginia, he's not seeking to enter his appearance as Moussaoui's counsel, only to advise Moussaoui while he is representing himself. It's clear Moussaoui doesn't understand the consequences of pleading guilty if he thinks it is a guarantee of saving his life. And sending Moussaoui to face a death penalty jury without advice of counsel of choice is not a resolution Americans should be proud of--or stand for.

1:15 News conference hasn't started yet, but some misinformation is emerging on two cable networks that we've seen about what happens sentencing-wise if Moussaoui pleads guilty.

Here is the applicable federal death penalty statute.

First, contrary to what one analyst has said, Moussaoui does not need the Government's permission to plead guilty. There is no plea bargain here. Anyone can plead guilty at any time to all of the charges against them. They just can't plead guilty to lesser charges without an agreement. The sole issue as to whether Moussaoui can plead guilty to the offenses with which he is charged is whether he is legally competent to do so.

Second, the death penalty can be applied where a defendant pleads guilty. Moussaoui said today he wants to fight the death penalty. The procedure followed when someone pleads guilty in a case in which the Government has filed a notice to seek the death penalty is for the judge is to convene a 12 member jury to hear the evidence and make the life/death decision.(Section (b)(2)(a) of statute linked to above, 18 USC 3593).

However, the judge can make the decision without a jury if the defendant requests, and the government agrees. (Section (b)(3))

By pleading guilty to the crime, Moussaoui does not waive his right to seek life over death, and he certainly could get the death penalty if the jury or judge so determined after a hearing.

12:25 Moussaoui confesses to crimes in open court...According to Pete Williams now on MSNBC, Moussaoui was more combative in court today, mocking the Judge, talking when she talked, saying the Judge isn't being fair, her politeness is a sham, she is trying to get him executed.

At the end of hearing, which was supposed to be his re-arraignment on the new Indictment, the fireworks started when he refused to plead and the Judge said she would enter a not guilty plea for him. He then said he wanted to plead guilty because the Judge wouldn't allow him to run his defense the way he wanted to. He announced he was guilty, he was a member of Al Qaeda, and he knew who was responsible for the September 11 attacks.

The Judge gave him a week to think it over.

Moussaoui wants to plead guilty but fight for his life in the sentencing phase.

12:25 MT: news conference about to start, longer AP article

Coming across the AP wires now, " Zacarias Moussaoui, indicted in connection with Sept. 11 attacks, tries to plea guilty to federal charges; judge tells him to think it over "

Stay tuned....

Favorable Senate Action on Innocence Protection Act

Word reaches us within the past hour the Senate Judiciary Committee voted 12-7 to approve the Innocence Protection Act substitute amendment. Sens. Specter and Brownback were the 2 Republicans joining all 10 Democrats on the committee. Thanks to Kyle O'Dowd, Legislative Director of the National Association of Criminal Defense Lawyers for the update.

Focus now shifts to the House Judiciary Committee. For more info, check out our action alert from last week, which includes this link to Senator Leahy's statement on the compromise bill.

Detaining Witnesses Who Are Not Criminals

Witnesses and Criminals is an editorial in today's Washington Post about holding detainees under the material witness statute.

We agree with the second half of this editorial, but not the first. It seems to change course in midstream. In fact, had we followed our instincts to tune out after the first two paragraphs, we would not have read the last two paragraphs, which we think are all too true.

The subject is the differing rulings of two federal judges in New York on the material witness statute as pertains to post-September 11 detainees.

We disagree with the Post and think Judge Scheindlein's view is correct that the material witness statute applies to trial witnesses, not grand jury witnesses. The Post maintains that the statute allows the government to "hold witnesses who might otherwise flee in order to secure their testimony," and that this is the way it should be, citing Terry Nichols' arrest on a material witness warrant when they didn't have enough to charge him with the Oklahoma bombing but wanted to secure his testimony.

The Post then criticizes the practical application of the law, "because it can be abused and should not be used indirectly as a punitive measure." We're beginning to agree.

The Post really engages our attention when it continues with, "What's troubling about the government's behavior in these cases is not that material witnesses have been detained but the circumstances and duration of the detentions." The Post is justly critical of the Government for holding Osama Awadallah in isolated detention for months, during which he sustained bruises and had limited access to counsel.

The Post opines, "If this is true, then it is unacceptable. More generally, the material witness statute authorizes holding people only for "a reasonable period of time" so that their testimony can be obtained. It's hard to see how this law could justify holding someone for months or after that person's grand jury testimony has been taken."

What happens when the witness does not want to talk? Under federal law, a witness who refuses to testify before a grand jury can be held in contempt and kept in jail for the remaining life of the grand jury. Grand jury terms are eighteen months. Sometimes a grand jury has not finished investigating a case when its term is up and a new grand jury is empanelled and the case transferred. The recalcitrant witness can be held for the life of that grand jury as well. So the "reasonable period of time" that the Post assumes will cause someone to intervene to prevent overly lengthy detentions doesn't really exist. There is no definition of "reasonable period of time," and with the detainees, reasonable time seems to be equated with "as long as it takes to make him talk."

We know that the Judge can release the person doing contempt time for refusal to testify before a grand jury if the Judge becomes convinced that the person won't talk no matter how long he or she remains in jail. Again, this is an arbitrary decision--hardly a uniform measuring stick of "reasonable time."

In the case of the detainees, where are the contempt hearings? Where are the contempt charges? Due to secrecy rules, we can't learn the truth. But even the Government says these witnesses have not been charged. They are not criminals, yet they have lost their jobs, their family life and their ability to partake of the ordinary pleasures in life.

The Post concludes with, "Still, the material witness law has clearly been used as a means of locking up people who have information relevant to the investigation and who themselves may be dangerous, yet against whom no case can immediately be made. This is pushing a line: The material witness law is not a means of preventive detention and should not be used as one."

So doesn't Judge Scheindlein's ruling make more sense?

P.S. We think Mr. Awadallah's wife has been a gutsy, intelligent and passionate advocate on his behalf.

Ashcroft's About Face

Richard Cohen in today's Washington Post Spotlight John maintains that John Walker Lindh should have made the resignation of Ashcroft a condition of his plea bargain.

"Just about the only time Ashcroft chose to keep his mouth shut was when the plea bargain was announced. For once, the AG was not in makeup.For Ashcroft, this is beginning to look like a pattern. First comes the hype and then comes the disappearing act.

The Rockefeller Drug Laws Need Change

Bob Herbert again takes on New York's Rockefeller drug laws in today's New York Timees. The Ruinous Drug Laws

"How about a dose of sanity? After 29 futile and tragic years, it is time to bring the curtain down on the institutionalized cruelty of the Rockefeller drug laws. There is no way to justify sentencing nonviolent low-level drug offenders to prison terms that are longer than those served by some killers and rapists."

He's right of course. Can't anyone make the New York Legislature listen?

Wednesday, July 17, 2002

Jeb Bush's Daughter Jailed for Failing Drug Treatment

Florida Governor and Presidential brother Jeb Bush's 24 year old daughter got 3 days in jail for noncompliance with a drug treatment plan. With no way to spin it, he sent an email to the media to tell them. Among his comments, "Unfortunately, this happens to many individuals even as they continue their journey to full recovery."

Why is it that politicians only recognize truths such as relapse is common during drug treatment when it happens to someone in their families or small circle of friends? Otherwise, they seem quite content to brand drug offenders as criminals and jail them when they fail to live up to the terms of their probation or parole or drug treatment plan.

Hopefully, this will open some eyes and lead to more rational and humane treatment of drug users.

More on Bush's "Operation Tips"

The Washington Post reports on "Operation Tips" today. Our first post on this may have gotten buried in all our Walker Lindh coverage, so here's a bump for Bush's "Operation Tips" and the threat it poses to the Constitution. It will turn a million Americans into volunteer snitches--and more.

"And check out the great Boston Globe editiorial today:

"Ashcroft's informant corps is a vile idea not merely because it violates civil liberties in a narrow legal sense or because it will sabotage genuine efforts to prevent terrorism by overloading law enforcement officials with irrelevant reports about Americans who have nothing to do with terrorists. Operation TIPS should be stopped because it is utterly anti-American. It would give Stalin and the KGB a delayed triumph in the Cold War - in the name of the Bush administration's war against terrorism."

Drug Companies and the Death Penalty

The National Coalition to Abolish the Death Penalty yesterday released a report entitled "Drug Companies and Their Role in Aiding Executions" and called upon the nation's manufacturers and distributors of lethal injection drugs to take steps to prevent their drugs from being used in executions conducted via lethal injection.

The report has two immediate goals: to convince pharmaceutical companies to speak out against the use of their drugs in executions and to take steps to prevent their products from falling into the hands of prison officials who oversee executions.

The report traces the history and present use of lethal injection drugs in executions, reports on what can go wrong during the lethal injection process and lists the companies that produce lethal injection drugs, their corporate officers and their contact information.

Already, one leading manufacturer, Abbott Laboratories, Inc., which manufactures sodium thiopental, has issued a statement requesting "that this product not be used in capital punishment procedures."

The seven publicly-held companies targeted by NCADP include Abbott Laboratories, Inc., based in Abbott Park, Ill.; American Pharmaceutical Partners, Inc., based in Los Angeles; AmerisourceBergen, based in Chesterbrook, Pa.; Baxter International Inc, based in Deerfield, Ill.; Cardinal Health, based in Dublin, Ohio; Wyeth Pharmaceuticals, based in St. Davids, Penn; and Gensia Sicor Pharmaceuticals, Inc., based in Irvine, Ca.

Update on LA Teen Beating Case and the Videographer

Chill Wind Over Witnesses is a good editorial in the Los Angeles Times on the inappropriate treatment of Mitchell Crooks, the tourist-videographer of the teen beaten by the LA Cops last week.

Quote: " From the way Steve Cooley's G-men treated him, you might think that Mitchell Crooks was a drug kingpin or Mafia don rather than an unemployed party disc jockey with some lapses in his past. The district attorney's decision last week to deploy a squad of agents--which cuffed him with TV news cameras rolling and carted him away on years-old warrants--looks too much like intimidation of future witnesses in police brutality cases."

Tuesday, July 16, 2002

New Moussaoui Indictment

The Government wants to be extra-sure it gets the death penalty for Moussaoui. They went and got a Third Superseding Indictment, Here it is.

The new Indictment alleges that Moussaoui acted in "an especially heinous, cruel and depraved manner," with premeditation, to cause death and commit terrorism. Now they can say that the grand jury passed on the facts to support the charge, a matter seized upon by Moussaoui's court-appointed lawyers, the ones he doesn't want, in a motion to dismiss the death penalty charge. The Government wants to avoid any problems that may have been engendered by the Supreme Court's ruling in Ring v. Arizona, although that only directly applied to trial juries. For More.

Link to Required Filing Report on Patriot Act Abuses

One of the requirements of the Patriot Act is that the Department of Justice file reports on abuses of the act.

Here is the report --in pdf (adobe acrobat)

Family Reunification Act - Action Alert

Received from the American Immigration Lawyers' Association

As many of you know, the chairman of the House Judiciary committee, Rep. James Sensenbrenner and Rep. Barney Frank have reached an agreement on the language of HR 1452, the Family Unification Act of 2002. This bipartisan bill is scheduled to be marked up by the full Judiciary Committee tomorrow (Wed., July 17) at 10:00.


In order to pass this out of committee, we are asking that each of you contact some of the Republican members of the Judiciary and urge them to support this compromise bill. The proposal is supported by Representatives James Sensenbrenner, former chair Henry Hyde (R-IL), and Chris Cannon (R-UT). Four other Republicans are co-sponsors of the bill - Lincoln Diaz-Balart (FL); Ileana Ros-Lehtinen (FL); Doug Ose (CA); and Chris Shays (CT)

Although this bill is far less than what we have been asking for, it's passage would be an IMPORTANT victory in our effort to restore some measure of fairness for long-term legal permanent residents. The modest reforms in this bill would simply allow legal permanent residents who have lived legally in the United States for at least five years, and who are facing deportation for an offense that resulted in a sentence of less than four years (or less than 2 years if the offense is classified as a "crime of violence"), to present the facts of their case to an immigration judge to determine whether or not they should be deported from their adopted country. The bill would send an important signal that our laws can be tough AND fair.

Please feel free to contact me if you have any questions. A list of Republicans on the Judiciary are as follows:

- Steve Chabot (R-OH): 202-225-2216
- Bob Barr (R-GA): 202-225-2931
- Mark Green (R-WI): 202-225-5665
- Melissa Hart (R-PA): 202-225-2565
- Darrel Issa (R-CA): 202-225-3906
- Jeff Flake (R-AZ): 202-225-2635
- Randy Forbes (R-VA): 202-225-6365

Thank you,

Ben Johnson
Associate Director of Advocacy
American Immigration Lawyers Assoc.
(202) 216-2437

Lindh's Sentence: 20 Years or Up to 20 Years?

As we said yesterday, the key to understanding how much time Lindh will serve under his plea agreement is in the U.S. Sentencing Guidelines, which are set by the U.S. Sentencing Commission. The applicable U.S.Sentencing Guidelines are here.

For those unfamiliar with guidelines, which is probably 99 percent of the world, here is an excellent free primer by the Federal Public and Community Defenders.

The major points as we see them:

First, which version of the guidelines apply since guideline amendments take effect every November 1? The version in effect at the time of the sentencing unless the guidelines in effect at the time of the crime were more favorable (USSG 1B1.11)

Sentencing in Lindh is set for October 2002. Lindh's crimes occurred from May 2001 through the end of November 2001. The November 2001 edition will be used. The 2002 amendments, including those related to Patriot Act offenses, do not take effect until November 2002.

Second: Where there is no guideline designated for a specific offense, the guideline for the most analogous offense is used. On the supplying services to the Taliban count, the parties agreed that USSG 2M5.2 (Exportation of Arms, Munitions or Military Equipment or Services Without Required Validated Export License) is the most analogous offense. Should the Judge disagree, the Judge is free to use another guideline. As a practical matter, the Probation Department does a guideline analysis and the Judge heavily relies on that. In a case this big, you can bet that Probation was already consulted and calculated the guidelines the same as the defense and prosecution.

Third: What happens if the Judge disagrees and finds another offense guideline is more analogous? Does Lindh get to withdraw from the deal? No, because the plea agreement is under Rule 11(e)(1)(B) instead of Rule (11)(e)(1)(C) which would so allow.

Fourth: The added felony count to which Lindh pleaded, carrying explosives in commission of a felony, is a sentencing enhancement crime. It is the equivalent of carrying a weapon in furtherance of a drug offense, although in that case the term would only be five years. Guidelines are not "calculated" for this offense but instead simply provide that the sentence imposed will be the term specified in the statute. Here that means a flat ten year sentence is added onto the sentence for the underlying crime of providing services to the Taliban.

Fifth: Because John Walker Lindh has no prior record, he would normally have a criminal history category of Level I. But another terrorism guideline, 3A1.4, says that if the offense involved or was intended to promote a federal crime of terrorism, the criminal history category is bumped to level VI, the highest level. In addition, the offense level gets bumped by twelve. So here, where Lindh would have been a level 26 and category I under the analogous guideline for providing his services, he is now a level 38 and category VI.

Sixth: Lindh does receive three points off for accepting responsibility, bringing him to a level 35 and a Category VI. Guideline range: 292-365 months. But, the maximum allowed by statute for the offense to which he plead is ten years. Thus, the ten year sentence on the count of providing services to the Taliban is a virtual certainty and is also the most he can receive on that count.

Seventh: The mandated consecutive ten year sentence for the enhancement crime of carrying an explosive is tacked onto the ten year sentence for the supplying services offense, bringing Lindh to a 20 year sentence.

Eighth: He has waived his right to appeal the sentence so long as it does not exceed 20 years which would be a legally impermissible sentence.

Other notes: He did not plead to supplying material aid to a terrorist organization. He pleaded guilty only to providing services to the Taliban. He did not plead to the count charging carrying a firearm or explosive during the commission of a violent crime. His guilty plea was to a lesser crime of carrying an explosive during the commission of any felony. He gets credit for time served from the day of his seizure by the military in Afganistan (Dec. 1, 2001). Neither side will argue for more or less than 20 years.

Our conclusion: Lindh gets 240 months or 20 years. (Federal sentences are imposed in months, not years). He does 85% or 204 months. His sentence will be reduced further by the time he has spent in confinement from December 1, 2001 until the sentencing date of Oct, 2002, approximately ten months.

Blogging Thanks

Instapundit is a Prince. His recent mentions of us have resulted in over 1,000 hits since yesterday--and he's on vacation! Thanks to Jason Rylander for his very complimentary mention of our site. We are adding his blog to our favorites on TalkLeft today. Also thanks to Dan Dodson, Media Affairs Director of the National Association of Criminal Defense Lawyers for alerting members to us on the Criminal Justice reporters list-serv he subscribes to. For last week, thanks to Vodka Pundit for a very big number of referral hits.

Notable Commentary on the Lindh Plea

Here are some of today's op-ed pieces we like discussing the plea deal of John Walker Lindh (we'll add to this as the day progresses):

"Prosecuting the War and its Terrorists" by Juliette Kayyem , a former member of the National Commission on Terrorism, now a counterterrorism expert at the John F. Kennedy School of Government at Harvard, in the New York Times. Her theme: This is hardly a victory for the Justice Department. The Government's claim that the 20 year sentence is proof of the strength of its evidence against Lindh defies logic.

"Plea Suggests U.S. Prefers to Avoid Court" by Adam Liptak in the New York Times: He and legal analysts he has interviewed express concerns that the Government may try to avoid federal court prosecutions in favor of detentions and miltiary tribunals in the future.

"A Legal War Without Victory" by David Lindorff in Salon Magazine (paid subscription only). Quote: "The plea agreement appeared to be a tacit acknowledgement by the federal government that its case was at best uncertain against the 21-year-old Islamic convert. Dropped were all charges of terrorism, consorting with al-Qaida and attempting to kill Americans. Nor did the agreement mention the government's earlier claim that Walker had been guilty of participation in a plot to murder CIA agent Johnny Spann."

A Collapesed Terror Case, Boston Globe Editorial: "Even less convincing was the triumphalist crowing of Attorney General John Ashcroft, who said the plea agreement with Lindh's defense counsel was an ''important victory in America's war on terrorism. However, the two charges to which Lindh pleaded guilty were providing services to the Taliban and carrying explosives - in this case two grenades - during the course of that felony. If Lindh's conviction on those charges represents an important victory in the war on terrorism, as Ashcroft claims, then that war must not be going very well."

Lindh's Defense Lawyer Discusses Plea Deal

James Brosnahan, John Walker Lindh's chief lawyer, discussed Lindh's decision to plead guilty and its ramifications Monday night on CNN's Wolf Blizter Reports. Kate Snow conducted the interview. Some highlights:

Plea discussions began about six weeks ago. At the "point where it became clear that the government would be willing to dismiss all terrorist charges and the charge that John conspired to kill Americans, it became something that we had to pay serious attention to, and we did. "

In discussing why the defense team and John Walker Lindh and his family seem updeat about the deal which includes a twenty year sentence, Brosnahan says it is partially because of how much worse it could have been. "As we saw it, we might get very fortunate in the case and maybe only get convicted of one or two crimes, that could be 40 years quite easily. So that was the problem."

On his client: "He's a scholarly person. He very much wants to study. When we discussed the terms of this plea bargain, he wanted to be sure he could study not only Arabic, not only Islam, but also other subjects, American history, political history."

Brosnahan thinks his client will be safe in jail because "This verdict is true. The thing about this verdict is it's true. It does reflect what he did. He was a soldier in the Taliban army in the northern part of Afghanistan, fighting the Northern Alliance. It has nothing to do with the Americans. "

On Attorney General John Ashcroft's prior statements about how much evidence the Government had against Lindh: "Today nine of those counts fell like stones and are gone. So no, he is not a terrorist. I've not heard what the attorney general said, but if he said there's anything in this case that establishes John as a terrorist, I think he'd better read the pleadings."

Lead prosecutor Paul McNulty was interviewed next. The only highlight to us was his answer when asked about the Spann family's negative reaction to the deal. "I don't think [the Spanns] represent the vast majority of those men and women in military. We had a number of them here with us today who were going to be witnesses in our hearings this week, and they were quite satisfied, in fact, quite pleased. They recognized that this was a significant sentence. I personally told them of the sentence, and the reaction was very positive. "

(Quotes from transcript available at Lexis Nexis .)

Bush's "Operation Tips" Program - Another Assault on the Constitution

Operation TIPS (Terrorist Information and Prevention System) is a new Bush Administration proposal that will be bundled into its volunteer Citizen Corps. The White House has announced plans to begin a pilot project in some cities in August.

Specifically, the initiative will recruit one million volunteers in 10 cities across the country and encourage them to report suspicious activity that might be terrorism-related. According to the White House, it will try to make volunteers of letter carriers, cable tv installers and gas, electric and utility workers who because their work allows them inside people's homes, are well suited to recognize the unusual.

In a press release issued yesterday, the ACLU minced no words about the intrusive nature of the program, calling it a plan to turn the workers into "a contingent of organized government informants" and "government-sanctioned peeping toms,” and attacking it as an "end run around the Constitution."

We agree with the ACLU--this is a proposal that essentially will encourage searches of our residences without a warrant or even probable cause. It will cost the Government (and us, the taxpayers) a lot of money to follow what likely will be mostly useless tips. And it may fuel vigilantism and racial profiling.

The Washington Post expressed great concern about the plan in an editorial on Sunday. It's view:

"Americans should not be subjecting themselves to law enforcement scrutiny merely by having cable lines installed, mail delivered or meters read. Police cannot routinely enter people's houses without either permission or a warrant. They should not be using utility workers to conduct surveillance they could not lawfully conduct themselves.”

Monday, July 15, 2002

John Walker Lindh Press Release


For Immediate Release Media Contact:
Kerry Efigenio 415-268-7210

Government Dismisses All Terrorism Charges Against John Lindh, Including Conspiracy to Kill Americans Charge, In Exchange For Plea Agreement to Two Counts

Alexandria, Virginia * July 15, 2002 *

Lawyers for John Lindh announced today that the government has agreed to drop all terrorism charges against Mr. Lindh, including the most serious -- conspiracy to kill Americans -- in exchange for a guilty plea to two counts: supplying services to the Taliban, a regulatory violation set forth at 31 C.F.R. §§ 545.204 & 545.206(a); and carrying a rifle and two grenades while supplying services to the Taliban, in violation of 18 U.S.C. § 844(h)(2).

The government is dismissing the al Qaeda and Harakat al-Mujahideen terrorist counts. James J. Brosnahan, lead defense counsel, said, " The plea agreement makes clear Mr. Lindh never bore nor currently bears allegiance to al Qaeda, Harakat al-Mujahideen, or any other terrorist organization. In addition, Mr. Lindh bears no allegiance to the Taliban. " The government also agrees not to pursue Mr. Lindh as an unlawful enemy combatant.

The plea agreement provides that the government will move to dismiss Counts 1 through 8, and Count 10 of the Indictment, including the alleged involvement or overt act relating to the death of Johnny Micheal Spann.

Each of the two counts carries a maximum penalty of ten years ' imprisonment, to run consecutively. The parties stipulated to the applicable guidelines and calculations as set forth in the plea agreement and mandated by the U.S. Sentencing Guidelines. Conviction after trial on the offenses charged in the Indictment could have resulted in life imprisonment for Mr. Lindh, who turned 21 years old earlier this year.

All claims of mistreatment of Mr. Lindh have been withdrawn, and his continued cooperation is an indication of his lack of hostility towards our armed services.

Mr. Lindh wishes to thank those who have supported him, especially his family. John has stated his intention to devote himself to study.

Here Are the Lindh Plea Documents

Here are the Lindh plea documents. They can be viewed and downloaded in .pdf format (Thanks to Neal Sonnett, Esq., Miami, for the info.)

The Lindh Plea Agreement

The Statement of Facts

The Information

For an interesting and not-yet heard twist on the Lindh plea, check out Daily Kos.

John Walker Lindh Pleads Guilty

John Walker Lindh pleaded guilty today. Two charges, ten years maximum each. Consecutive sentences.

According to Pete Williams on MSNBC and CNN, Lindh has agreed to a 20 year sentence.

Eight counts were dismissed. He pleaded to supplying services to the Taliban, and carrying an explosive (a grenade) in commission of a felony. The Prosecutor said in a press conference after court that this means that he has pleaded guilty to being a foot soldier in the Taliban army and to carrying an explosive.

For those who want to compute the likely starting point for the sentence, check out the 2001 Sentencing U.S. Sentencing Guideline Manual which establish sentencing guidelines for these offenses. If he is agreeing to a twenty year sentence, then the guideline computations must equal or exceed ten years per count. A person can't be sentenced to more than the statutory maxium (here, ten years per count, consecutive, for a total maximum sentence of 20 years.)

The prosecutor said in his press conference after the plea that the parties stipulated to a 20 year sentence. He also said that the Government will forego trying to treat Lindh as an enemy combatant unless he again engages in terrorist activity after his release from prison.

Lindh will serve 85% of whatever sentence he gets. There is no parole in the federal system, but good time credits amount to 54 days a year off after the first year.

We think the first place to look for the plea agreement online is Findlaw. We can't really tell you what it means until we read it, so for now, you have the media and proseuction's take. The news networks shifted to covering the President in Alabama so the defense as of this writing has not yet spoken, and we turned off the tv. We have enjoyed covering this event live on this weblog, and will be providing more updates later, here and on CNN's TalkBack Live at 3 pm Eastern.

Update: Defense press conference--chief defense lawyer said the plea cleared him on any involvement in the murder of CIA Agent Spann, and that he pleaded guilty to being foot soldier in the Taliban. Lindh's dad said Lindh loves the United States and never once said anything against it. His mother, sister and brother were also on hand providing support.

Felons United

There haven't been too many feel-good stories in the news lately, but this morning we found one.

Phillip Morris LaPier is an ex-felon who is running for the governorship of Maine. His platform: to make Maine a mecca for ex-prisoners. The organization behind him is Felons United.

The principal purpose of Felons United "is to abolish branding/labeling our people and violating their constitutional rights as citizens of Maine and the United States of America."

They stress that " Every person is born free and equal under our government and our laws, and they remain equal members of the society throughout their lives. Prison inmates are equal to all other prison inmates. Citizens not in prison are equal to all other citizens not in prison."

Well said. They have a noble plan to achieve this, some of the highlights of which include their intent to:

• Assist disabled and needy persons who have been branded/labeled "Felon"; assist their dependents, widows, widowers and the orphans of deceased persons who were branded "Felon".

• Initiate programs and provide literature to educate those who have been branded/labeled "Felon" and the general public, on the plight, rights and needs of fellow citizens who are branded "Felon".

• Insure that the graves of those deceased people who were branded "Felon" are properly cared for and that those people branded "Felon" who die in the future receive a proper burial, in a place of their choosing.

• Bring lawsuits against government entities and private enterprises that discriminate against members who have been branded "Felon", including individual employees of those agencies and private businesses.

• Oppose the present "drug war" against our citizens.

Their slogans? "Equal Rights Means Good Neighbors" and "Move to Maine - today - bring a friend."

They even have a web store selling Felons United products.

We wish them well.

On a related topic, CLASP (Center for Law and Social Policy) has a report out, Every Door Closed: Barriers Facing Parents With Criminal Records.

"Last year, approximately 400,000 mothers and fathers finished serving prison or jail sentences. As these parents struggle to make a fresh start, they will encounter many legal barriers that will make it very difficult for them to successfully care for their children, find work, get safe housing, go to school, access public benefits, or even, for immigrants, stay in the same country as their children. This groundbreaking new report, a joint publication of CLASP and Community Legal Services, Inc., of Philadelphia, documents the legal challenges these families face, illustrated by compelling stories of ex-offenders who are frustrated in their attempts to rebuild their lives and families."

Hearing on Lindh Statements Begins

Held Over from Sunday's posts...

A motions hearing in the John Walker Lindh case begins Monday before federal Judge Thomas Ellis, II. At issue is the admission of Lindh's statements to the military and to a CNN reporter. Lindh says the statements were coerced and in violation of his constitutional rights. He was neither mirandized nor provided counsel. He was not told his family had retained a lawyer for him. He says he was tortured, abused and in pain, such that he could not voluntarily give consent to being questioned.

As to the CNN reporter, Lindh claims he was working with the Government's blessing inside the prison camp and government agents were present during the interview, thus Miranda rights apply.

Lindh is charged with conspiring to kill Americans abroad and providing material support to the Taliban and Al Qaeda. His statements form the core of the government's case against him.

According to the Chronicle article, Peter Keane, dean of Golden Gate University School of Law, believes Lindh shouldn't be prosecuted at all. He thinks the Judge ultimately will admit the statements which is tantamount to giving in to the lynch mob mentality at the expense of upholding the Constitution.

We think the law is clear. If you are interrogated by police agents you are entitled to be Mirandized. If you aren't, the remedy is that nothing you say, and nothing derived from what you say may be introduced by the Government at trial.

That means you have the right to have a lawyer present, and if you can't afford one, one will be provided. The Government's lame excuse is there was no lawyer available where Lindh was being held. We say they had a duty to move him to where one was available before questioning him. Or wait until the lawyer his family hired for him arrived.

Clearly the Govenrment chose to keep Lindh on foreign shores to obtain information from him that a defense lawyer would not have allowed him to give. Not to mention his treatment was cruel and abusive. He was kept nude and blindfolded in a metal shipping container with a bullet injury in his leg. For more on the facts of the case from Lindh's point of view, check out Free John Walker.

The Government made a choice to interrogate Lindh in violation of his constitutional rights. It did so at its peril, and the legal remedy is suppression of his statements.

Another thing that really is unfair about this case is the "manufactured venue." We say unfair, because unfortunately it is not illegal. The law allows the Government to try someone arrested abroad in the place where the the person first re-enters the country. The Government flew Lindh back to the U.S. and they purposely flew him to Washington, so they could try him in ultra-conservative Virginia, increasing their chances of a speedy conviction.

What is so startling to us is the Government's refusal to acknowledge that they have zero evidence that Lindh intended to kill Americans. Even the Indictment against him, Paragraph 14 of Count 1 in particular, points out that when Lindh was given the choice to fight against Americans or fight against the Northern Alliance in Afganistan, he chose the latter. Read it for yourselves.

Lindh was on a religious quest, albeit a misguided one, and ended up in the wrong place at the wrong time. He did nothing that we know of to cause or further the attacks of September 11. He went to the prison camp to surrender. He was kept, like the other prisoners, in sub-human conditions. There is no evidence that we know of to say he participated in the prison uprising. Even the Government had enough sense not to charge him with the murder of CIA agent Spann.

He was helping the Taliban fight the Northern Alliance. He trained in the camps for that purpose, not to fight Americans.

He shouldn't even have to prove this. Or anything. He remains cloaked with the presumption of innocence. The only burden belongs to the Government, to prove him guilty of the specific charged offenses, not some other conduct, beyond a reasonable doubt--with legally competent evidence.

His statements, in our view, are not legally competent evidence. But, the way Judge Ellis has responded so far, we doubt he will see it that way.

Trying to look on the bright side, at least he has a great lawyer who is devoted to his case and a true fighter. We wish that were enough.

Sheik Omar Sentenced to Death in Pearl Case

A Pakistani court today sentenced Sheik Omar to death for the murder of Daniel Pearl. His three accomplices were likewise found guilty but sentenced to life.

This doesn't make us glad. State-sanctioned killing just breeds more violence. And it doesn't bring Daniel Pearl back.

The Proverbial Ham Sandwich

We really like William Raspberry's column in today's Washington Post named "Choking on a Ham Sandwich."

Seems Mr. Raspberry just finished a stint of grand jury service. He had good intentions of not helping the prosecution get away with indicting poor minority kids on one-sided evidence. He had a hard time sticking to it. But then he thought about Donovan Jackson, and what would have happened to him before a grand jury had there been no video...We won't spoil it, go read it.

Pass This Bill

That's the title of a Washington Post editorial today on the Innocence Protection Act.

A compromise bill has been introduced, settling differences between Senator Patrick Leahy, the bill's original sponsor, and Senators Diane Feinstein and Arlen Specter. Senator Leahy's statement on the compromise bill.

The Post points out that the compromise version provides lesser protections than the original bill, which in its view was superior, but that Congress should pass it all the same. Passage in the Senate is by no means certain, even with the compromise version. And a roadblock may lie ahead in the House, notwithstanding that the bill has 240 co-sponsors--why? According to the Post, James Sensenbrenner (R-WI), Judiciary Committee Chairman, has doubts.

As the Post says, "The bill should pass. Events of the past few years have proven that the American death penalty poses grave and unacceptable risks to innocent people. We oppose the death penalty, but if it is to exist, those risks should be made as small as possible."

So get on the horn, write a letter or fax to your congresspeople today. More information is available at The Justice Project and The Innocence Project.

Sunday, July 14, 2002

Send Lawyers, Tapes and Money

Talk about a story with legs. The L.A. police beating of teen Donovan Jackson and the arrest of videotaper Mitchell Crooks is it this week.

Saturday, as the mayor of Inglewood pleaded for calm, Congresswoman Maxine Waters took to the streets and television cameras in LA to raise money for Crooks' legal defense in Placer, California, the town he was flown to after his arrest, grand jury appearance, alleged roughing up by investigators for the D.A.'s office, L.A. jailing and extradition. What a week he had!

Waters is making sure Crooks gets his due as a hero. Her comments, as reported in the LA Times:

"We will go to Placer .... We will stand with him. We will help to pay his lawyers. We will support his bail. We will do whatever is necessary to say to citizens, when you come forward, when you are willing to stand up, when you see abuse by the police department or anybody else, we are gonna honor you."

"We don't care what he's been accused of ....Those are minor offenses, we have learned, and we are going to help him out."

The community is already planning a celebration for Crooks when he gets out of jail. According to Ms. Waters,

"We are going to ask the mayor to block off a whole block. And we are going to invite the entire community. We are going to have the biggest welcome party you have ever seen."

We are glad that Crooks will not be forgotten by the Inglewood community. But what we really want to see is the mayor come through on his call for the installation of videocameras in patrol cars.

Videotaping is clearly the most recommended remedy to police misconduct.

Videotaping leads to real improvements in police interrogation practices that protect the rights of suspects. Officers now know that everything they do in the interrogation room could be viewed one day in a courtroom.

Videotaping interrogations and arrests is good for the police too. It protects them against baseless claims of coercing a confession or violating a suspect's constitutional rights. Frivolous claims by suspects will diminish once they know that judges and jurors can see the interview and decide for themselves whether detectives intimidated the suspect.

Police and prosecutors have little to fear from a requirement to videotape all interrogations and traffic stops. It's a win-win situation. Videotaping can protect the innocent, help convict the guilty and uphold the public's faith in our criminal justice system.

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.