Thursday, August 20, 2015

A Corrections Officer Ain't No Ham Sandwich

The idea is that the grand jury is a check on prosecutorial abuse.  You get a bunch of citizens who scrutinize the prosecutor's evidence, challenge it even, and decide whether there's probable cause to believe the accused is guilty.  Not whether the accused is guilty.  Whether there's probable cause.

In theory, they grand jurors get to call witnesses and question them.  The grand jury can investigate. Theory, of course, bears almost no relationship to reality.  In reality, grand juries do what prosecutors want them to do. (But see the runaway grand jury in Harris County, Texas a few years ago.)

If the prosecutor wants an indictment, the prosecutor gets an indictment.  (Hence that line credited to Sol Wachtler that a prosecutor can get a grand jury to indict a ham sandwich.) And if the prosecutor doesn't want an indictment?  Darren Wilson in Ferguson for the killing of Michael Brown.  Daniel Pantaleo in Staten Island for the killing of Eric Garner.  And the cop in your town.

But, wait, you say.  Isn't that just the GJ doing its job?  Deciding that the evidence wasn't there?  How disingenuously cynical you are, Gamso, to suggest that the prosecutors manipulated the evidence, intentionally presented weak cases.  You don't know.  The prosecutors sandbagged.  Maybe the evidence just sucked.

Well, sure.  I suppose.  I mean anything's possible.  But you know, I don't make this shit up out of whole cloth.  (Well, yeah, actually I do.  But someone wove that cloth into a coat.  OK, I've dragged this idiot metaphor out to the point of incoherence.  I'll go on.)

Come with me, then, you doubters, to Charlotte County, Florida.  Population per the 2010 census 159,978. County seat Punta Gorda.  Where the state's attorney for the 20th Circuit, Stephen Russell, is in charge of presenting evidence and giving legal advice to the grand jury.  Which State's Attorney Russell had three of his henchmen assistants do in regard to the April 2014 killing of Matthew Walker.

Matthew Walker
In the Charlotte Correctional Institution.  By corrections officers.  During a late night cell check that in fact (per Adam Kreger of Sun Newspapers) violated CCI policy.  "Walker’s larynx was crushed, and he took several blows to the head, neck and torso."

There was an investigation.  
[F]ive of the dozen corrections workers involved could have potentially faced criminal charges.
Five?  Twelve were involved?

Hey, shit happens.

The case went to the grand jury.  Whose proceedings are secret.  As in the grand jurors can get in serious trouble, as in felony charges, for revealing what happened behind those closed doors.  But for an 85-year-old woman who sat un the grand jury enough is enough.

In June, the grand jury returned a no bill.  Refused to indict anyone.  
“It has really bothered me all this time,” said Louise Salcedo. “We all knew they were guilty and should have been prosecuted, but we were talked out of indicting them. This man was beaten to death.”
Not that there wasn't probable cause.  But because why prosecute prison guards just cause they beat a guy to death.  Hell, he was a prisoner.  Shit happens.
“They told us the chances of convictions were very slim,” Salcedo said. “I find it baffling ... very confusing.”
The paper tracked down the grand jury foreman.  Oath of secrecy.  He wouldn't talk.  Salcedo, on the other hand, tracked down the paper.
“After reading everything in the paper, I feel guilty that I maybe could have done something better,” Salcedo said.
The grand juror said she believes all the guards present during the fatal beating “were guilty of watching this and not stopping this.”
She said they all knew it.  But they didn't indict anyway. 
A community-driven candlelight vigil was held outside the Charlotte Correctional Institution on Wednesday. The ceremony remembered Walker’s death and aimed to let state officials know people want justice for the homicide and others who have died at the prison.

Read more here: http://www.miamiherald.com/news/special-reports/florida-prisons/article31227869.html#storylink=cpy

Read more here: http://www.miamiherald.com/news/special-reports/florida-prisons/article31227869.html#storylink=cpy


Read more here: http://www.miamiherald.com/news/special-reports/florida-prisons/article31227869.html#storylink=cpy

Read more here: http://www.miamiherald.com/news/special-reports/florida-prisons/article31227869.html#storylink=cpy
Read more here: http://www.miamiherald.com/news/special-reports/florida-prisons/article31227869.html#storylink=cpy
A desire which, along with 10 bucks, might buy a ham sandwich.

Of course, in Charlotte, that ham sandwich won't get indicted.  At least not if it's a prison guard's.




Tuesday, August 18, 2015

Fear of Flooding - UPDATE

Are you a due process or a finality kind of guy?
The question came from a judge.  We'd just met.  He knew nothing about me except that I was licensed to practice law.  He was cutting, as they say (and, by the way, just who are "they" that do all the saying?), to the chase.

In a Times Op-Ed, Alec Karakatsanis, tells the story of Ezell Gilbert.
In March 1997, he was sentenced to 24 years and four months in federal prison for possession with the intent to distribute more than 50 grams of crack cocaine. Because of mandatory sentencing laws, Mr. Gilbert was automatically sentenced to a quarter-century in prison, though even the judge who sentenced him admitted that this was too harsh.
But the law's the law, and mandatory minimums are just Congress's way of saying "Fuck you" to poor people who don't make big campaign contributions. (And, to save you the trouble of actually thinking about it, yes, that's all poor people.  #poor people's lives matter.*)  So a quarter century it was. 

Or maybe not.
At his sentencing, Mr. Gilbert noted a legal error that improperly increased his sentence by approximately a decade based on a misclassification of one of his prior offenses. In 1999, without a lawyer, he filed a petition seeking his release. 
It was an argument about how to apply (and when) a provision of the Armed Career Criminal Act, a matter of passing interest to almost nobody who isn't a lawyer in federal court or someone who gets serious time added to a sentence because of it.  Anyhow, Gilbert filed his petition.  Which, this being the land of the free and all, was promptly denied by the court of appeals because he was obviously wrong and mandatory minimums and Fuck you.

Which is where things stood for a decade or so until 2008 when SCOTUS, by an atypically split 6-3 vote, decided Begay v. United States.  Which said (although in Begay's case and not his) that, by god, Gilbert was right.  So back to court he went, this time with a lawyer.
Mr. Obama’s Justice Department, however, convinced a Florida federal judge that even if Mr. Gilbert’s sentence was illegal, he had to remain in prison because prisoners should not be able to petition more than once for release.
Which is obviously right.  Because if you let one poor guy out just because he was illegally sentenced to an extra decade in prison, then you probably have to do it for the next poor guy who's doing an extra decade in prison because the courts got the law wrong.  And then before you know it you'll have people just flooding the streets instead of filling prison cells that they aren't supposed to be in.

Which would lead to factually innocent people saying they shouldn't be in prison, either.  And if the feds start to let out innocent people, then the states might feel obligated to do the same.  Just think of the horror. 

Thousands of people who shouldn't have been in prison in the first place out on the streets. 

Lock up the women and children!

Anyhow, Gilbert appealed.  And a three-judge panel agreed.
The judges rejected the administration’s argument as a departure from basic fairness and explained that it simply could not be the law in America that a person had to serve a prison sentence that everyone admitted was illegal. Mr. Gilbert returned home and stayed out of trouble.
Which is lovely.  And of course proved to be wrong.  That is, indeed, the law in America.
In May 2011, the same court, led by a different group of judges, sided with the original judge, saying that the “finality” of sentences was too important a principle to allow prisoners to be released on a second rather than first petition, even if the prison sentence was illegal. A contrary rule would force the courts to hear the complaints of too many other prisoners. Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.
It's worth repeating that last sentence.
Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.
The vote was 8-3.  

In 2013, Obama granted clemency to Gilbert, let him out of prison again.  Which was, of course, what should have happened years ago.  And of the others?  Those the administration argues and the courts agree should stay in prison even though they're there illegally?  Because they were improperly sentenced or because they're legally or factually innocent or just because Fuck you?

Hell, Obama just commuted 48 sentences.  Noblesse oblige.  What more do you want? Expect him to just start letting the wrongly incarcerated and convicted out willy-nilly? Grow up.  This is America.

Among the three dissenting from the decision to send Ezell Gilbert back to prison was Judge James Hill. He wrote
Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States. 
Indeed.  Law of Rule.

I told that judge I was a due process kind of guy.  


* * * 
 Here's Judge Hill's dissent in its entirety at the bottom of this (omitting the footnotes).
HILL, Circuit Judge, dissenting, in which BARKETT, Circuit Judge, joins:
Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court – reluctantly and at the explicit urging of the government – to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.
Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.
Gilbert raised his claim of sentencing error to every court he could, every chance he got. No court correctly resolved his claim until the Supreme Court made clear that Gilbert’s claim was meritorious – he was never a career offender. Now, he has come back to us for relief from his illegal confinement. Our response to him is that he cannot apply for relief under § 2255 because he has done so before, and, although we erroneously rejected his claim, the statute does not permit such reapplication. Of course, had he not applied for § 2255 relief, we would be holding now that he had procedurally defaulted his claim by failing to raise it before.
This “Catch-22" approach to sentencing claims is nothing more than a judicial “gotcha.” Through our self-imposed limitations, we have found a way to deny virtually all sentencing claims. We do this, avowedly, in the pursuit of “finality.” But, in so doing, we cast a pall of unconstitutionality over the otherwise beneficial provisions of § 2255.
Furthermore, to “seal the deal” on finality, we hold today that even the savings clause of § 2255 – which appears to permit resort to the Great Writ itself in circumstances such as these – provides no avenue to relief for Gilbert because confinement pursuant to sentencing errors such as his does not offend the Constitution. Rather than acknowledging that Gilbert’s sentence is fundamentally defective and a miscarriage of justice, we hold that the error resulting in an additional eight and one-half years of prison time for Gilbert is a mere technicality, a misapplication of the Guidelines that has no remedy because it is not all that important. Gilbert’s erroneous enhancement as a career offender – demanded by the government at the time – is argued to be mere harmless error now that he has been proven right.
The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.
I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.
A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.
Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.
One last thought. The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also.
I respectfully dissent from the majority’s holding. With the addition of these thoughts of my own, I join in both Judge Barkett’s and Judge Martin’s dissents.

UPDATE:  Be sure to read Scott Greenfield's take on this.
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*Yes, the victims are not all poor.  I know that.

Sunday, August 16, 2015

95% Error Rate

They call themselves criminalists or forensic scientists or something with a fancy name.  They come into court explaining that they've done these tests hundreds of times.  There are, they say, a whole bunch of points of comparison.  And when they find a match, they can point to those points.  

You probably can't see those things certainly not without the forensic scientist pointing them out.  That's because you haven't been properly trained.  Had you been, just like those forensic scientists, you could see them.  And like those forensic scientists, you'd know.  Because, as they like to say on the witness stand, they're never wrong.

Except, of course, they are.  

Nearly 20 years ago, Fred Whitehurst blew the whistle on FBI's flawed, and sometimes dishonest, forensic work.  The Inspector General issued a scathing report.  The Department of Justice promised to review everything, opening case after case.  And then to right the wrongs.

In 2004, no wrongs having been righted, they stopped.  No flies on them.  Until they investigated again.  And concluded that just maybe.

I've written before about the FBI's "stunning" admission that hair comparison, the very hair comparison its forensic guys testified to thousands of times, is bullshit.  And while they claim they're getting the word out to the boatloads of folks who were convicted based on that testimony, well, we'll see how that goes.

While we wait, turn to Al Jazeera America Monday night for Fault Lines.*  Monday's show is "Under the Microscope: The FBI Hair Cases," and it tells that story.  

More, it tells of Joseph Sledge who spent 37 years in prison for a pair of rape murders he didn't commit.  It was an horrific crime scene.  Blood everywhere.  Everywhere except on Joe Sledge.  There were palmprints in the blood.  They weren't Joe's.  But there were also a handful of hairs.  Those, the FBI's crack hair analysts said, those were just like Joe's.  There are 16 points of comparison.  They matched up at all 16.

It tells the story of Kirk Odom, arrested at 18 for a rape he didn't commit.  But the hair, the hair.  And Santae Tribble.  He was 17 when the cops got him for murder.  There were 13 hairs.  It was a murder case.  The FBI had two of their forensic scientists look at them.  Match his hair, they both said.  

You know what happened next.  DNA testing on the hairs.  On the hairs that convicted Joe and Kirk and Stantae.  On the hairs that weren't theirs.  In Santae's case, one of the hairs that sent him down for murder, one of the 13 hairs hairs that the crack guys from the FBI told the jury was just like his, so, you know, . . . . That hair came from a dog.

A fucking dog.  Who he says probably committed the crime.

The bureau's released some preliminary reports on its latest round of reviews.  26 out of 28 of the forensic scientists made false claims at trials.  David Colapinto, General Counsel of the National Whistleblowers Association explains, 
We can now say, based on a statistically sizable sample of cases they have reviewed, [the FBI] were wrong 95% of the time.
They concede that their experts said things that weren't so in helping convict Odom and Tribble. They didn't find a problem in what their folks testified to in sending Joe Sledge to prison for murder.  It just happens that when DNA from the hairs in his case was analyzed, well, they were wrong.  Wasn't him. Just like he'd been saying since he was arrested.  

Because hair comparison, even when done right and testified to accurately, is bullshit.  The comparison microscope is a lovely thing.  But the FBI forensic folks who use it, they aren't scientists. And what they're doing isn't science.  

If you read this blog, you know all that.  You should watch the show anyhow.  It brings home the human dimension and slams home the real science.  And how else will you learn Joe Sledge's answer to the question:
What can they do make this right for you?


--------------------
*Lest there be any confusion, Al Jazeera America's Fault Lines is not affiliated (so far as I can tell) with Lee Pacchia and Scott Greenfield's group blog Fault Lines at which I've been writing lately. 


NB: Thanks to Al Jazeera America for making the show available to me for review.



Friday, August 14, 2015

From Out of the Macabre Muck - UPDATE

And so, it seems, Dr. Petit won't get his revenge.  Steven Hayes and Joshua Komisarjevsky won't be killed by the decent people of the State of Connecticut for the horrific invasion of the good doctor's home, the mother raped and strangled, the girls, 11 and 17, killed in a scorching blaze after gasoline was poured on them.  (And those are just the highlights.)

Hayes and Komisarjevsky were among the 11 men left on Connecticut's death row after the legislature repealed the death penalty in 2012.  Prospectively only.  They'd have done it sooner, but put it off so Dr. Petit could have his way and Komisarjevsky could be sentenced to die.  But they did it.

But what to do with those 11?  Republicans made a point of it during legislative debate.  Peter Applebome in the Times from back then.
Republican critics of the bill said the exemption for those currently awaiting execution cast a cloud over the vote, both because it undercut the moral argument of death penalty opponents and because future appeals or government action had the potential to spare the 11 men.
“Let’s not mislead the public; let’s not mislead ourselves” said the House minority leader, Lawrence Cafero Jr., of Norwalk. “If it is the will of this chamber that this state is no longer in the business of executing people, then let’s say it and do it. You cannot have it both ways.”
Well, maybe you could.  But not, as it turns out, in Connecticut.

Yesterday, by a vote of 4-3, the Connecticut Supreme Court said enough.  In State v. Santiago, litigation over whether the prospective elimination of the death penalty in Connecticut made its retroactive application unconstitutional, the court said that it did.  Near the start of the 92-page lead opinion, Justice Palmer quoted Santiago's counsel setting forth the base claim.. 
[T]he death penalty is no longer consistent with standards of decency in Connecticut and does not serve any valid penological objective.
And then, Palmer gave the answer
Public Act 12-5 not only reflects this state’s longstanding aversion to carrying out executions, but also represents the seminal change in the four century long history of capital punishment in Connecticut. Accompanying this dramatic departure are a host of other important developments that have transpired over the past several years. Historians have given us new chronicles of the history and devolution of the death penalty in Connecticut. Legal scholars have provided new understandings of the original meaning of the constitutional prohibition against cruel and unusual punishments. Social scientists repeatedly have confirmed that the risk of capital punishment falls disproportionately on people of color and other disadvantaged groups. Meanwhile, nationally, the number of executions and the number of states that allow the death penalty continue to decline, and convicted capital felons in this state remain on death row for decades with every likelihood that they will not be executed for many years to come, if ever. Finally, it has become apparent that the dual federal constitutional requirements applicable to all capital sentencing schemes—namely, that the jury be provided with objective standards to guide its sentence, on the one hand, and that it be accorded unfettered discretion to impose a sentence of less than death, on the other—are fundamentally in conflict and inevitably open the door to impermissible racial and ethnic biases. For all these reasons, and in light of the apparent intent of the legislature in prospectively repealing the death penalty and this state’s failure to implement and operate a fair and functional system of capital punishment, we conclude that the state constitution no longer permits the execution of individuals sentenced to death for crimes committed prior to the enactment of P.A. 12-5.
Which is it.  The Connecticut Constitution won't allow it.

Eleven men now have their sentences commuted from execution to death by natural means.  And under particularly horrific conditions, one assumes, since that's what P.A. 12-5 set up going forward for those who might have otherwise been sentenced to be killed.

There were three dissenting opinions (here, here, and here - Connecticut's court website doesn't provide a single link to the whole thing, sorry).  Each, excoriates the majority for what might charitably be called lawlessness.  Which maybe it is and maybe not.  Depends on where you stand, I suppose.  What the court does, pretty much by definition, comports with the state law because the state law is what the court says it is.  And the justices in the majority surely thought, just as strongly as those in dissent thought otherwise, that they were doing what the law told them to.

There were also two concurrences.  The first, by Justices Norcott and McDonald, bemoans what the issue before the court does not allow them to do, and its resolution will never allow them to do (though they go ahead and do it): take on the racism that inherently infects and at least in part controls the death penalty, and implicitly the whole criminal justice system.
[W]e write separately to express our profound concerns regarding an issue of substantial public importance that will never be resolved by this court in light of the majority’s determination that the imposition of the death penalty is an unconstitutionally excessive and disproportionate punishment. Specifically, we cannot end our state’s nearly 400 year struggle . . .  without speaking to the persistent allegations of racial and ethnic discrimination that have permeated the breadth of this state’s experience with capital charging and sentencing decisions.
In the second, Justice Eveleigh cuts to the heart of the moral issues involved, though he addresses them in legal terms.
Vengeance has no place in the orderly administration of justice by a civilized society. It certainly can never serve as the justification for the death penalty in today’s world. My review of the text and legislative history of the public act under consideration, No. 12-5 of the 2012 Public Acts (P.A. 12-5), leads me to the inescapable conclusion that vengeance was the motivating factor underlying the enactment of the provisions allowing the eleven men on death row to be executed while eliminating the death penalty for crimes committed in the future. Because I conclude that there is no longer any valid penological purpose justifying the retention of the death penalty for prerepeal defendants, and that our capital sentencing statutory scheme no longer guards against arbitrariness, it necessarily follows that the portions of P.A. 12-5 that allow the men on death row to be executed are violative of the federal and state constitutional bans against cruel and unusual punishment. 
A friend, who's done a lot of capital litigation over the years, told me once that "the death penalty brings out the worst in everyone."  I'm not sure he's wrong. Ending it is no panacea for our bad instincts.  The system is still racist, still driven by vengeance, still unimaginably cruel, still far more concerned with getting it done than with getting it right, still . . . .

But in this one way, by this act, Connecticut moves forward just a bit.  Out of what Norcott and McDonald call (in the words I purposely omitted from the quote above so I could quote them for the first time here) "the macabre muck of capital punishment litigation," 11 lives are saved with the stroke of a pen.  The Talmud teaches (and there's argument about it, as there is about pretty much everything the Talmud teaches) but go with this version:
[W]hoever preserves the life of a single human being . . . it is as if he had preserved an entire world.
Eleven times over, Connecticut.

Amen.

UPDATE
And see Connecticut's own, Gideon and Norm Pattis.

Friday, August 7, 2015

Because Not Him

If not him, then who?  

And not him.

Lest there be any doubt, I'm talking about this guy.


 James Holmes.  Killer of 12.  


The nightmare in the Colorado movie theater.


He's batshit crazy, of course.  But that didn't stop the prosecutors. 

He was willing to plead, offered to plead 2 years ago.  Just take killing him off the table. Life without the possibility of parole.  LWOP.  Death in prison by natural means rather than by state killing.  That didn't stop the prosecutors.

Millions of dollars.  Months of testimony.  Potentially years of appeals and post-trial.  That didn't stop the prosecutors.

Because he planned.  And executed.  He entered a crowded movie theater.  Midnight showing.  The Dark Knight Returns.  With gas grenades and handguns and long guns.  He wore fucking body armor f'rgodssake.  

Batshit crazy the prosecutor's own experts said.  Batship crazy like a fox, the prosecutors said.  Not enough for him to die.  He has to be killed.

Because if not him, then who?

And, as it happens.  Despite the tears and the horror and the anger and the impassioned pleas to kill, f'rgodssake kill.  But no.

Not him.

Not him.

Which means, just maybe, that it's finally time to admit it.

Because if not him.

Then, really, 

Not anyone.

Because not him.

Thursday, August 6, 2015

Sure They Considered Race. What's Your Point? - UPDATED

Linda Greenhouse offers what she inaccurately calls a "thought experiment."*
What if we abolished peremptory challenges?
The subject is discrimination in jury selection.  The occasion is Foster v. Chatman, a case of pretty blatant racial discrimination where a Georgia prosecutor used peremptory challenges to kick blacks off a jury and help secure a death sentence.  

The Supremes thought, in their naiveté, that they'd abolished that sort of discrimination in Batson v. Kentucky and a string of cases applying and extending it.  They were wrong.  They were also, as it happens, misguided.

Oh, the goal, end discrimination in jury selection, is high-minded enough.  Nobody much, today, is going to be a public advocate for racial discrimination.  (Batson's been extended beyond race, but the same point applies.)  That's not really the issue, though.  Because once you start down the road you've got a problem.

When Batson simply applied to the prosecution in criminal cases, it was a sham.  (Only the hopelessly - like the berobed ones in Washington - really thought it would achieve what they claimed.)  Built into the ruling was an easy out for prosecutors:  Offer a race-neutral lie for why they were kicking this or that juror off a case.  (Juror frowned; juror smiled; juror wore green pants; juror wore no pants (!); juror once knew someone who once knew someone who heard about someone who got a traffic ticket - or didn't; the possibilities are endless.)

But when the Court went further and made clear that the goal of Batson was not to ensure that defendants got fair trials but that discrimination ended, the largely empty but plausible logic went out the window.  Batson, it turns out, isn't about the rights of the accused - not about the rights of the litigants at all.  It's about the rights of the juror who is excused based on a discriminatory peremptory. The lawyer who challenges the peremptory, acts not (the court says) in the interests of her client but in the interests of the excluded juror.

That's bullshit, of course.  As a lawyer, your only responsibility beyond upholding the basic integrity of the system by obeying the rules, is the interests of your client.  If that peremptory - racially motivated or otherwise and regardless of reason - is one you're happy the other side exercised, you're not going to complain.  It's only when your client would get screwed that you're gonna bitch.

And that's as it should be.  The theory is that when I get rid of the jurors I hate and the prosecutor gets rid of the jurors he hates, the remaining 12 are going to be pretty fair.  That theory may be nonsense in practice (jury selection is largely a matter of gut feeling rather than hard science), but it's the underlying idea.  And it works.  There are jurors who pretty obviously will be biased one way or the other but don't fall into any of the categories where exclusion for cause is allowed (brother of the defendant, witness in the case, plaintiff's lawyer in another case, whatever).  So we have peremptories to get rid of them.

Doing away with peremptories means assuming that any 12 random folks will be fair to both sides. In the real world, that ain't so.  And nobody who litigates really wants that.  We want jurors who will vote our way. Same as the other side does.  So we all get rid of the ones who surely won't.  That's the idea.  And hundreds of years of Anglo-American jurisprudence suggests that it works pretty well.

Does it allow for discrimination?  Yeah.  Can the discrimination be invidious and unfair and racist and lead to appalling decisions?  Yep.  (Think of those all-white juries in the south that routinely sentenced blacks to die for looking crooked at whites and routinely acquitted whites who murdered blacks.)  

Of course, if instead we figured out how to give teeth to what seemed like the idea of Batson when it first came out.  Prevent the government from using race to secure convictions and death sentences. Now that was an idea. 

UPDATE

Scott Greenfield also takes on Greenhouse and Batson over at Fault Lines.











---------------
*If it were actually a thought experiment, the follow-up would be an examination of how that would (or would not) change things.  Her follow-up is to announce that there aren't enough votes on the Supreme Court to do it but that she longs for a day when there are.  Not an experiment at all.

Thursday, July 30, 2015

Just a Simple Human Act


This is Leroy Smith.

Thoughtful, composed.

This is Leroy Smith, too.

Therein lies a tale.

Smith is the Director of South Carolina's Department of Public Safety.  He was working the state capital that day, along with bunches of his officers.  They were doing crowd control for the rallying New Black Panther Party members who were cheering the removal of the Confederate Battle Flag and shortly afterward the rallying Klansmen and National Socialists on the other side of the building protesting the Battle Flag's removal.

Just another 100 degree July day in the trenches of our continuing racial divide.

But, some of the neo-Nazi's, apparently weren't used to Palmetto State summers.  Master race, perhaps, but taken down by the heat.

Dan Barry in the Times.
Bike-rack barricades had been arrayed to separate the white-supremacist demonstrators from a swelling crowd of people, some fresh from the black-empowerment rally on the north side. “You could kind of feel the tension in the air,” Mr. Smith recalled.
Soon the demonstrators, a few dozen, came marching from the west, flanked by Mr. Smith’s “advance civil emergency response team.” Many wore the black shirts of the National Socialist Movement, a neo-Nazi organization that, according to its website, believes: “Only those of pure White blood, whatever their creed, may be members of the nation. Noncitizens may live in America only as guests and must be subject to laws for aliens. Accordingly, no Jew or homosexual may be a member of the nation.”
Just another 100 degree July day in the trenches of our continuing racial divide.

But, some of the neo-Nazi's, apparently weren't used to Palmetto State summers.  Master race, perhaps, but taken down by the heat.

Seanna Adcox for AP:
Smith said that's when a protester approached, saying someone needed medical help. Smith and Columbia Fire Chief Aubrey Jenkins, who also is black, responded to a demonstrator overcome by the heat.
The first white demonstrator they helped climb the steps and enter the air-conditioned Statehouse could walk on his own. The second clearly could not, Smith said.
"He was struggling, fatigued, appeared to be lethargic. I knew there was no way he could make it up the steps on his own," Smith said. So Smith coached him up the steps, putting his right hand on his arm and his left arm around his body.
Smith helped him up the stairs, encouraging him, took him into the capital where it was air conditioned.  Sat him down to recover.

Rob Godfrey, the Governor's Deputy Chief of Staff, took the picture and sent it off by twit.  Where it went viral.

There's something about that photo: The black cop helping the ailing white supremacist.  Dan Barry again.
Asked why he thinks the photo has had such resonance, he gave a simple answer: Love.
“I think that’s the greatest thing in the world — love,” said the burly, soft-spoken trooper, who is just shy of 50. “And that’s why so many people were moved by it.”
Those of you who hang around these posts know that I believe deeply in, and marvel at, mercy and grace and the mysteries of the human heart.

Leroy Smith talks of the power of love.  

I suspect if you really pinned him down he'd say he was just helping someone in need because, well, that's his job.  And it's just the basic thing you do.

Except, of course, that mostly we don't.

Here's the picture again.