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.