There are the folks who get harassed, and often arrested and sometimes prosecuted, for mouthing off to the cops, being belligerent, being black, or all of the above. (See Henry Louis Gates for the most high-profile recent incident.) Then there are the folks who get busted for violating someone's, anyone's moral sensibility. (See, e.g, Bowers v. Hardwick, which thankfully is no longer the law.) And then there are the folks who are victims of plain, old-fashioned, American, my-way-or-the-highway puritanism.
Which brings us to the truly sad saga of Stacey Anvarinia. She's the 26-year-old North Dakota woman, busted in Grand Forks, South Dakota for a BUI.
What's a BUI? No, not boating under the influence. It's breastfeeding under the influence.
In Grand Forks, apparently that's felony child neglect, or at least that's the offense to which she entered a guilty plea. (Who knows what the original charge might have been that bargained down to this one?) For that offense, she faced up to five years in prison and a $5,000 fine.
She was sentenced this morning and didn't get that much - just 6 months, which she can serve in substance abuse treatment facility. Oh, and she's hoping to get her kid back. Maybe. Sometime.
I'll accept the basic point. It's probably better to be sober when breastfeeding the baby. Hell, it's probably better to be sober, period. But serving time? A felony record? Years of registration as a child offender, perhaps? (South Dakota lawyers, feel free to jump in here with the answer to that last one.)
Note to law enforcement: Not all misbehavior is criminal.
(Thanks to Doug Berman for finding the story (here) and keeping it up to date (here).
Friday, August 7, 2009
Thursday, August 6, 2009
Judge - not much longer
By a vote of 69-31, she now just awaits swearing in. I suppose it's time I dropped the cute game of caller her "still Judge" and the like and got used to Justice Sotomayor. (Though, really, she's still just a judge, won't be Justice Sotomayor until she's sworn in.)
If the Republicans (31 of them, anyway) are right, she'll now throw off the, er, robe of moderation and obedience to the law and demonstrate that she's really a bomb-throwing radical tethered to nothing but her sympathy for underdogs of color. Rule of law be damned, she's unleashed.
Or maybe not. She seems, really, the most moderately conservative of possible appointments, one likely to fit in most comfortably as a less airy and less libertarian Anthony (the Constitution means whatever I say it does) Kennedy, though probably a bit more open to civil rights arguments and less open to civil liberties ones. The republic that withstood Dred Scott v. Sanford, Plessy v. Ferguson, Lochner v. People of New York, Korematsu v. United States, and Bush v. Gore (or perhaps Roe v. Wade, Mapp v. Ohio, Furman v. Georgia, and Tinker v. Des Moines School District, depending on your point of view) will withstand this, too.
The larger truth, of course, is that predictions are just that. Justices have surprised. So, of course, have movie stars (the report on Fred Astaire's screen test for Paramount was, "Can't act. Can't sing. Balding. Can dance a little") and for that matter bloggers who disappear even faster than they show up.
But the idea that Justices routinely shock and are altogether unpredictable is a myth based on careless (or non-existent) vetting and on the unpredictability of what issues will come before the Court in twenty or thirty years. In reality, we know that those who enter the Court with clear ideological backgrounds tend to stick to them.
Scalia, Thomas, Roberts, Alito - despite some occasional posturing and the odd surprising position, we knew what we were getting. Breyer had made his mark as a toady to the liberal vision of an Administrative State long before he got on the court. No surprise there. Ginsburg is what she's always been. It's those without strong prior positions (or who are sloppily vetted) that tend to be surprises. Stevens? Blackmun? Souter? Kennedy? O'Connor? There were some assumptions, but nobody really knew what they were getting.
Sotomayor? She was never the choice of the party's left wing. She had a great story and a moderate record. Despite the rantings of the right (and are you really gonna trust the views of the birthers on anything?), she was an easy sell to the Senate.
Still, until she's been ensconced on the high court for a few years, there's room for hope (or fear) that she'll actually be what the right claims. Or that she won't.
If the Republicans (31 of them, anyway) are right, she'll now throw off the, er, robe of moderation and obedience to the law and demonstrate that she's really a bomb-throwing radical tethered to nothing but her sympathy for underdogs of color. Rule of law be damned, she's unleashed.
Or maybe not. She seems, really, the most moderately conservative of possible appointments, one likely to fit in most comfortably as a less airy and less libertarian Anthony (the Constitution means whatever I say it does) Kennedy, though probably a bit more open to civil rights arguments and less open to civil liberties ones. The republic that withstood Dred Scott v. Sanford, Plessy v. Ferguson, Lochner v. People of New York, Korematsu v. United States, and Bush v. Gore (or perhaps Roe v. Wade, Mapp v. Ohio, Furman v. Georgia, and Tinker v. Des Moines School District, depending on your point of view) will withstand this, too.
The larger truth, of course, is that predictions are just that. Justices have surprised. So, of course, have movie stars (the report on Fred Astaire's screen test for Paramount was, "Can't act. Can't sing. Balding. Can dance a little") and for that matter bloggers who disappear even faster than they show up.
But the idea that Justices routinely shock and are altogether unpredictable is a myth based on careless (or non-existent) vetting and on the unpredictability of what issues will come before the Court in twenty or thirty years. In reality, we know that those who enter the Court with clear ideological backgrounds tend to stick to them.
Scalia, Thomas, Roberts, Alito - despite some occasional posturing and the odd surprising position, we knew what we were getting. Breyer had made his mark as a toady to the liberal vision of an Administrative State long before he got on the court. No surprise there. Ginsburg is what she's always been. It's those without strong prior positions (or who are sloppily vetted) that tend to be surprises. Stevens? Blackmun? Souter? Kennedy? O'Connor? There were some assumptions, but nobody really knew what they were getting.
Sotomayor? She was never the choice of the party's left wing. She had a great story and a moderate record. Despite the rantings of the right (and are you really gonna trust the views of the birthers on anything?), she was an easy sell to the Senate.
Still, until she's been ensconced on the high court for a few years, there's room for hope (or fear) that she'll actually be what the right claims. Or that she won't.
Cold, dead hands revisited
So I'm reconsidering. (It's a bit too soon to say "overruling.")
Two weeks ago, in a post discussing District of Columbia v. Heller and the Second Amendment, I argued that while the Court was right in Heller to conclude that the Amendment guaranteed an individual, not just a collective right to bear arms, it was wrong in it's analysis of the purpose behind the right. I said it wasn't for self-defense against random bad guys or marauding indians or grizzly bears. It was for self-defense - and affirmative rebellion - both individual and collective, against the government itself. I still think that's right.
I also said, rather confusingly and then corrected, that I thought DC's handgun ban was lawful under the Second Amendment because, "You're not going to stop a coup d'etat with a .22 on the nighttable." That's the part I'm reconsidering.
Of course, the factual claim is correct. The .22 won't be much use in the sort of defense with which the Second Amendment was concerned. But the test of a limitation isn't whether it doesn't much help with a right, it's whether it's irrelevant to it. An armed citizenry is the whole point, and to say that the protections of the amendment provide only to powerfully armed citizens is just silly. You can have a tank but not a pistol? I don't think so.
Which takes us to Plaxico Burress. You know, he's the football player who accidentally shot himself in the leg in a New York City nightclub with a gun he was, in violation of New York law, carrying in his waistband. He was arrested and has now been indicted on two counts of Criminal Possession of a Weapon and a single count of Reckless Endangerment. The possession charges are serious felonies.
For a while now, Doug Berman has been hammering the point that Second Amendment supporters ought to be rushing into this fray and arguing that New York's concealed carry law, which basically what's at issue here, violates the Second Amendment, especially in light of Heller. Scott Greenfield, who suggests he's no fan of concealed carry, signed on to the campaign today.
I made my general position clear two weeks ago: "I grew up a Jewish kid from New York, and I don't like guns." But like Scott, I do like the Constitution. And even if I weren't a fan, I think we need to hold the government to it. So what's the proper status of concealed carry as a mechanism for protecting yourself against the government?
Indeed, I might ask what's the proper status of concealed carry at all?
Yes, you can carry a gun. No, you can't be reckless in how you handle it. (Shooting yourself in the leg in a public place is, I think, reckless, which makes Burress properly guilty of a misdemeanor.) But why concealed?
Because we can? That's not an answer.
So businessmen and women can be armed discreetly, with guns in their briefcases rather than on their hips? No, that's not a constitutionally relevant reason.
So the government agents won't know who's armed and who's not and they'll have to think twice? Maybe. I'm open to plausible argument on that one.
For the time being, call me an agnostic on concealed carry laws.
Two weeks ago, in a post discussing District of Columbia v. Heller and the Second Amendment, I argued that while the Court was right in Heller to conclude that the Amendment guaranteed an individual, not just a collective right to bear arms, it was wrong in it's analysis of the purpose behind the right. I said it wasn't for self-defense against random bad guys or marauding indians or grizzly bears. It was for self-defense - and affirmative rebellion - both individual and collective, against the government itself. I still think that's right.
I also said, rather confusingly and then corrected, that I thought DC's handgun ban was lawful under the Second Amendment because, "You're not going to stop a coup d'etat with a .22 on the nighttable." That's the part I'm reconsidering.
Of course, the factual claim is correct. The .22 won't be much use in the sort of defense with which the Second Amendment was concerned. But the test of a limitation isn't whether it doesn't much help with a right, it's whether it's irrelevant to it. An armed citizenry is the whole point, and to say that the protections of the amendment provide only to powerfully armed citizens is just silly. You can have a tank but not a pistol? I don't think so.
Which takes us to Plaxico Burress. You know, he's the football player who accidentally shot himself in the leg in a New York City nightclub with a gun he was, in violation of New York law, carrying in his waistband. He was arrested and has now been indicted on two counts of Criminal Possession of a Weapon and a single count of Reckless Endangerment. The possession charges are serious felonies.
For a while now, Doug Berman has been hammering the point that Second Amendment supporters ought to be rushing into this fray and arguing that New York's concealed carry law, which basically what's at issue here, violates the Second Amendment, especially in light of Heller. Scott Greenfield, who suggests he's no fan of concealed carry, signed on to the campaign today.
I made my general position clear two weeks ago: "I grew up a Jewish kid from New York, and I don't like guns." But like Scott, I do like the Constitution. And even if I weren't a fan, I think we need to hold the government to it. So what's the proper status of concealed carry as a mechanism for protecting yourself against the government?
Indeed, I might ask what's the proper status of concealed carry at all?
Yes, you can carry a gun. No, you can't be reckless in how you handle it. (Shooting yourself in the leg in a public place is, I think, reckless, which makes Burress properly guilty of a misdemeanor.) But why concealed?
Because we can? That's not an answer.
So businessmen and women can be armed discreetly, with guns in their briefcases rather than on their hips? No, that's not a constitutionally relevant reason.
So the government agents won't know who's armed and who's not and they'll have to think twice? Maybe. I'm open to plausible argument on that one.
For the time being, call me an agnostic on concealed carry laws.
ODDS & ENDS
Time for another miscellany.
*********
Crime is down, and nobody seems to know why. At least, that's the thesis of an article in last Sunday's New York Times.
Of course, everyone takes credit. So Jon Corzine, Governor of New Jersey and well behind in the polls in his bid to win another term this November, is touting the wonders of his crime fighting efforts as the key to a dramatic decrease in violent crime - especially homicides - in the state since 2007. Maybe he's right and entitled to take credit. But if crime is down across the nation, maybe it's just coincidence? Or maybe . . . .
Ah, the hell with it.
One note though about New Jersey. Since it legislatively abolished the death penalty at the end of 2007, homicides are down. I'm not suggesting a causal relationship, but I am suggesting (nay, I'm insisting), that the Garden State's becoming the first state to legislatively abolish the death penalty in half a century certainly didn't lead to an increase in homicides.
OK, one more thought on New Jersey. Violent crime may be down, but corruption, it seems, at least if that massive federal bust reflects reality, is rampant. Here's exhaustive coverage from the Newark Star-Ledger. And here, courtesy of the Times, are the criminal complaints against three of the principles.
********
As reported in this story in the Winston-Salem Journal, North Carolina is on the verge of enacting a Racial Justice Act. A spokesman for the Governor indicates that she is likely to sign the bill which has passed both houses of the legislature. If she does sign it, North Carolina will join Kentucky as the only states pemitting challenges to the death penalty based on statistical evidence of racial bias.
The Journal reports that opponents claim the bill would
Actually, that's roughly what the U.S. Supreme Court said in McCleskey v. Kemp: We accept that statistical data demonstrates that the death penalty is applied in a racist way, but if we decided it mattered, then we'd have to call the whole criminal justice system into question, and we just aren't willing to do that.
But, it seems, North Carolina is likely to do the first step. Here's hoping the Governor Perdue signs the bill and that the courts then have the guts to actually apply it fairly.
*********
Sharon Keller, "Killer Keller" as she's known around Texas, is Chief Judge of the Texas Court of Criminal Appeals. She goes on trial/media circus August 17 in San Antonio for a variety of forms of judicial misconduct arising from her refusal to keep the courthouse open to permit a last minute filing by Michael Wayne Richard which, it's pretty much clear, would have prevented his execution.
You can get all the background you might want through the links at this Grits for Breakfast post.
Thanks to Mark Bennett, We've seen Keller's written response to the charges against her. As Bennett points out, she complains that she's being forced to hire her own lawyer for her defense. She believes she's entitled to have the state pay for the lawyer of her choice at the fee of his choice. As Bennett also notes, in the same post, Keller claims that applying the Texas Constitution to her would violate the Texas Constitution.
That might lead to a "Huh?" were Keller not so consistently willing to put reason aside in order to favor her own goals. She is, after all, the one who explained, in the context of Roy Criner's case where the DNA exonerated him, that finality trumps innocence. She told Frontline, "At best, he established that he might be innocent. We can't give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important. "
*********
We're still waiting for Strickland to decide whether to commute Jason Getsy's death sentence. As I wrote a couple of weeks ago, the parole board said he should. But the Trumbull C0unty Prosecutor is mounting a vigorous effort to convince Strickland to let the aggravated murder of Getsy go forward. (Story here.)
In the meantime, Rommell Broom, who's scheduled to be killed in September, got a big win in the 8th District Court of Appeals. The court said that he can use the public records that he received back in 1994, when it was lawful for him to get that information, to try to prove that if he'd been able to get that information before trial, he'd likely not have been sentenced to die.
What took him so long? you might well ask. The answer is that for years the courts have been telling him that he can't use evidence that the police basically hid from him to prove he shouldn't have been sentenced to die because, well, he just shouldn't.
After all, if people on death row could use the information police had to prove they shouldn't be there, we might have to reopen all these old cases. There'd just be no end to the confusion and uncertainty. Once you're convicted, that should be it. Oh, and you shouldn't be able to get to that stuff before you're convicted, either. Roughly speaking, that's what the Ohio Supreme Court said in 1994 in State ex rel. Steckman v. Jackson, overruling it's 1990 decision, State ex rel. Clark v. Toledo (Sorry, can't find a free copy of either on line, though Steckman should be out there.)
It's good news for Broom, and it's an important decision. Naturally, the state intends to appeal.
*********
I noted the other day that Kenya has just commuted the sentences of the 400 or so people on death row there. An AP report says that China is to begin using the death penalty "less often and for only the most serious criminal cases." On the other hand, Iran just had a mass execution of 24 bringing to at least 219 the number that nation has executed so far this year.
*********
And the beat goes on.
*********
Crime is down, and nobody seems to know why. At least, that's the thesis of an article in last Sunday's New York Times.
Of course, everyone takes credit. So Jon Corzine, Governor of New Jersey and well behind in the polls in his bid to win another term this November, is touting the wonders of his crime fighting efforts as the key to a dramatic decrease in violent crime - especially homicides - in the state since 2007. Maybe he's right and entitled to take credit. But if crime is down across the nation, maybe it's just coincidence? Or maybe . . . .
Ah, the hell with it.
One note though about New Jersey. Since it legislatively abolished the death penalty at the end of 2007, homicides are down. I'm not suggesting a causal relationship, but I am suggesting (nay, I'm insisting), that the Garden State's becoming the first state to legislatively abolish the death penalty in half a century certainly didn't lead to an increase in homicides.
OK, one more thought on New Jersey. Violent crime may be down, but corruption, it seems, at least if that massive federal bust reflects reality, is rampant. Here's exhaustive coverage from the Newark Star-Ledger. And here, courtesy of the Times, are the criminal complaints against three of the principles.
********
As reported in this story in the Winston-Salem Journal, North Carolina is on the verge of enacting a Racial Justice Act. A spokesman for the Governor indicates that she is likely to sign the bill which has passed both houses of the legislature. If she does sign it, North Carolina will join Kentucky as the only states pemitting challenges to the death penalty based on statistical evidence of racial bias.
The Journal reports that opponents claim the bill would
set up an enormous roadblock for capital punishment and reopen old wounds for the families of murder victims.Let's think about that for a minute. Here's the claim: If we look at general trends rather than particular cases, we'll discover that the system is so heavily racially biased that nobody will believe we're innocent of bias in any particular case. We can't have that.
Actually, that's roughly what the U.S. Supreme Court said in McCleskey v. Kemp: We accept that statistical data demonstrates that the death penalty is applied in a racist way, but if we decided it mattered, then we'd have to call the whole criminal justice system into question, and we just aren't willing to do that.
But, it seems, North Carolina is likely to do the first step. Here's hoping the Governor Perdue signs the bill and that the courts then have the guts to actually apply it fairly.
*********
Sharon Keller, "Killer Keller" as she's known around Texas, is Chief Judge of the Texas Court of Criminal Appeals. She goes on trial/media circus August 17 in San Antonio for a variety of forms of judicial misconduct arising from her refusal to keep the courthouse open to permit a last minute filing by Michael Wayne Richard which, it's pretty much clear, would have prevented his execution.
You can get all the background you might want through the links at this Grits for Breakfast post.
Thanks to Mark Bennett, We've seen Keller's written response to the charges against her. As Bennett points out, she complains that she's being forced to hire her own lawyer for her defense. She believes she's entitled to have the state pay for the lawyer of her choice at the fee of his choice. As Bennett also notes, in the same post, Keller claims that applying the Texas Constitution to her would violate the Texas Constitution.
That might lead to a "Huh?" were Keller not so consistently willing to put reason aside in order to favor her own goals. She is, after all, the one who explained, in the context of Roy Criner's case where the DNA exonerated him, that finality trumps innocence. She told Frontline, "At best, he established that he might be innocent. We can't give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important. "
*********
We're still waiting for Strickland to decide whether to commute Jason Getsy's death sentence. As I wrote a couple of weeks ago, the parole board said he should. But the Trumbull C0unty Prosecutor is mounting a vigorous effort to convince Strickland to let the aggravated murder of Getsy go forward. (Story here.)
In the meantime, Rommell Broom, who's scheduled to be killed in September, got a big win in the 8th District Court of Appeals. The court said that he can use the public records that he received back in 1994, when it was lawful for him to get that information, to try to prove that if he'd been able to get that information before trial, he'd likely not have been sentenced to die.
What took him so long? you might well ask. The answer is that for years the courts have been telling him that he can't use evidence that the police basically hid from him to prove he shouldn't have been sentenced to die because, well, he just shouldn't.
After all, if people on death row could use the information police had to prove they shouldn't be there, we might have to reopen all these old cases. There'd just be no end to the confusion and uncertainty. Once you're convicted, that should be it. Oh, and you shouldn't be able to get to that stuff before you're convicted, either. Roughly speaking, that's what the Ohio Supreme Court said in 1994 in State ex rel. Steckman v. Jackson, overruling it's 1990 decision, State ex rel. Clark v. Toledo (Sorry, can't find a free copy of either on line, though Steckman should be out there.)
It's good news for Broom, and it's an important decision. Naturally, the state intends to appeal.
*********
I noted the other day that Kenya has just commuted the sentences of the 400 or so people on death row there. An AP report says that China is to begin using the death penalty "less often and for only the most serious criminal cases." On the other hand, Iran just had a mass execution of 24 bringing to at least 219 the number that nation has executed so far this year.
*********
And the beat goes on.
Tuesday, August 4, 2009
Roll the tape
You know the old saw about how a picture is worth a thousand words. Well, this dramatic thing started happening a couple of decades ago.
People got video cameras and began taping stuff happening around them. The next thing you know, there's Rodney King getting the shit beaten out of him by the Los Angeles police right there on your television.
Fast forward, if you'll excuse the expression, a couple of years and video cameras started showing up in police stations. So you saw the police sexually assaulting a young woman in the Elkhart police station.
And with cameras in police cars, especially with the audio, just last week you might have seen the police planting drugs on someone and having the dog attack him. You might, also, have seen police in Florida planning to pin a DUI on a woman for an accident they caused.
And because of cameras in convenience stores attached to gas stations, we get to see Philadelphia police assaulting and then arresting a woman after the son of one of the officers rear-ended her car.
None of this is new. What's new is just how much of it there is. And that we get to see it for ourselves.
And just how dumb the cops are to do all this stuff while the tape is rolling. Or maybe they're not so dumb. Maybe it's an ingrained part of their culture, of the thin blue line, to accept that these things happen and to recognize that there aren't likely to be repercussions.
The truth is that police brutality, even outright criminality, is rarely punished with more than a slap on the wrist, if that. That woman who was beaten and arrested in the gas station. Officers asked the station owner to destroy the tape. He didn't. Internal affairs concluded they did nothing wrong.
Huh?
Juries believe what police say on the witness stand even when it's a lie. So do judges, who really do know better. It's called "testilying," and however much we all disapprove, the system tolerates at least some degree of it.
Years ago, I had a drug case. Two cars were driving on the Ohio Turnpike. It was a January afternoon. A highway patrol trooper, who testified that she was driving west at 65 miles per hour in the far right lane, noticed that the drivers of two cars going east, in the far lanes on their side of the road, also going about 65 miles an hour, had similar facial features. Yes, that's right. Across four lanes of traffic, a grass medial strip that was significantly wider than the length of a police car. Windows closed. Similar facial features.
Try it yourself next time you're on the highway. Bet you can't do it.
Anyway, she got suspicious. She found an excuse to stop one of the cars and radioed for another trooper to stop the other. His excuse for stopping the car: It was following too closely a semi that was driving faster than the car. Wait, isn't there something about the laws of physics here?
The judge believed the troopers. Or said she did.
Of course, there wasn't any video.
____________
Note: I've been saving these videos for a couple of weeks and can't frankly, tell you where I found most of them. But my sources include: Simple Justice, Jonathan Turley, Crime and Federalism, and Criminal Defense. If I forgot someone, or lost track, I apologize.
People got video cameras and began taping stuff happening around them. The next thing you know, there's Rodney King getting the shit beaten out of him by the Los Angeles police right there on your television.
Fast forward, if you'll excuse the expression, a couple of years and video cameras started showing up in police stations. So you saw the police sexually assaulting a young woman in the Elkhart police station.
And with cameras in police cars, especially with the audio, just last week you might have seen the police planting drugs on someone and having the dog attack him. You might, also, have seen police in Florida planning to pin a DUI on a woman for an accident they caused.
And because of cameras in convenience stores attached to gas stations, we get to see Philadelphia police assaulting and then arresting a woman after the son of one of the officers rear-ended her car.
None of this is new. What's new is just how much of it there is. And that we get to see it for ourselves.
And just how dumb the cops are to do all this stuff while the tape is rolling. Or maybe they're not so dumb. Maybe it's an ingrained part of their culture, of the thin blue line, to accept that these things happen and to recognize that there aren't likely to be repercussions.
The truth is that police brutality, even outright criminality, is rarely punished with more than a slap on the wrist, if that. That woman who was beaten and arrested in the gas station. Officers asked the station owner to destroy the tape. He didn't. Internal affairs concluded they did nothing wrong.
Huh?
Juries believe what police say on the witness stand even when it's a lie. So do judges, who really do know better. It's called "testilying," and however much we all disapprove, the system tolerates at least some degree of it.
Years ago, I had a drug case. Two cars were driving on the Ohio Turnpike. It was a January afternoon. A highway patrol trooper, who testified that she was driving west at 65 miles per hour in the far right lane, noticed that the drivers of two cars going east, in the far lanes on their side of the road, also going about 65 miles an hour, had similar facial features. Yes, that's right. Across four lanes of traffic, a grass medial strip that was significantly wider than the length of a police car. Windows closed. Similar facial features.
Try it yourself next time you're on the highway. Bet you can't do it.
Anyway, she got suspicious. She found an excuse to stop one of the cars and radioed for another trooper to stop the other. His excuse for stopping the car: It was following too closely a semi that was driving faster than the car. Wait, isn't there something about the laws of physics here?
The judge believed the troopers. Or said she did.
Of course, there wasn't any video.
____________
Note: I've been saving these videos for a couple of weeks and can't frankly, tell you where I found most of them. But my sources include: Simple Justice, Jonathan Turley, Crime and Federalism, and Criminal Defense. If I forgot someone, or lost track, I apologize.
Monday, August 3, 2009
Saluting Mwai Kibaki
I know what happens when you look at international law (those who don't like your position scream invectives). But I'm not doing that. Just reporting the news, with deep thanks to Doug Berman for posting it first. AP reports that President Mwai Kibaki of Kenya has just commuted the sentences of the more than 4,000 people on death row in his country. And he's ordered a study on whether the death penalty has any impact of fighting crime.
Would that some leader in this country had the same political courage. Perhaps someone of, say, Kenyan heritage?
Dream on, Gamso.
Would that some leader in this country had the same political courage. Perhaps someone of, say, Kenyan heritage?
Dream on, Gamso.
Sunday, August 2, 2009
Innocence lost
I don't imagine I have anything else in common with them, but like Sonia Sotomayor and Al Franken, I grew up watching Perry Mason on television. A criminal defense lawyer, week after week, year after year he defended the innocent accused. And, routinely, the real guilty party would confess in court - either during his grueling cross-examination by Mason or blurting it out from the gallery while Mason was cross-examining someone else.
I suspect Perry Mason inspired as many people to go to law school as Atticus Finch. Both gave us pictures of lawyers successfully defending the innocent accused.
It's a sham, folks.
I'm a criminal defense lawyer. Most of my clients are guilty of something akin to what they're charged with. No criminal defense lawyer routinely represents the factually innocent. And none who's been at it for more than a very short time wants to. I know. I've represented a few. Some I've gotten off. Some I've failed. Failure goes with the territory, regardless of innocence.
If you take the work seriously (and if you don't, you shouldn't be doing it), representing the guilty is both an honor and a burden. It's an honor because the work itself is honorable. It's a burden because so much rides on what we do. Civil lawyers represent the financial interests of their clients. There can be thousands, even millions of dollars at stake.
That's nothing. We in the criminal defense business have weightier things at stake. We fight for our clients' freedom - sometimes for their lives. If it's a burden always, the burden is greatest when we believe the client innocent.
It doesn't make us work harder. It just increases, exponentially, the stress. But you won't learn that from TV or the movies. You will learn it, though, from Abbe Smith's fine book, Case of a Lifetime: A Criminal Defense Lawyer's Story (and you'll get something of the flavor of it, though without the texture that elevates it from melodrama, in this article in the Washington Post). Smith, Professor of Law and co-director of the Criminal Justice Clinic at Georgetown Law School tells the story of her 20 year effort to free the apparently innocent Patsy Kelly Jarrett from prison. It's not your standard tale of innocence vindicated. There's no vindication here.
Jarrett was 21 when she took a summer trip from her home in North Carolina to Utica, New York, with Billy Ronald Kelly. Before they got back to North Carolina, Billy had robbed and killed at least two gas station attendants. Based on a single, shoddy, eyewitness identification, Jarrett was convicted of murder for playing a part in the killing in Utica. She insists she is innocent.
Smith got involved in the case while taking a clinical class at NYU Law School. By that time, Jarrett had been convicted and had lost her appeals in state court. While she was in law school, and then later while a law professor at Harvard, Smith fought for Jarrett. The fight is anguished and painful and, ultimately, unsuccessful. There are no magic bullets here. There's no real evidence or even accusation of prosecutorial or police misconduct. There's no DNA to prove innocence. There's just Smith's conviction that a great wrong was done, that Jarrett is too much of an innocent not to be innocent. And that's not enough, as Jarrett spent nearly 29 years in prison for a murder of which, according to Smith, she was wholly innocent.
I don't mean to sound cynical about this. I'm inclined, from what I read and from what I know about the system, to believe Jarrett innocent. On the other hand, I know better than to trust my judgment on these things. But it doesn't matter, for this isn't a story about Jarrett and innocence, it's a story about Smith and the loss of innocence.
It's about Smith and about how you fight and fight for your clients even when the fighting gets you nowhere. It's about Smith and about how you struggle with doubts about whether you're good enough and whether you care too much and just how you deal with this person you're certain is innocent but is doing all this time and you don't seem to be able to help. As I say, it's not Jarrett's story. It's Smith's.
And as she tells of what she does and how it ultimately seems to make no difference, she examines the role of the criminal defense lawyer. Here's what makes one. Here's who we are. Here's how we deal with clients. Here's why we never want innocent clients. Here's the anxiety and the stress and the ambiguity and the doubt. Here's the frantic struggle. Here's just getting through the day.
I'm not giving anything away to say that Jarrett finally gets released. The "case of a lifetime" is over. But there's no vindication here. It's not the glorious, heroic victory. And when it's over, there's something very like post-partum depression.
Case of a Lifetime is a moving and powerful book of an unreliable justice system, of the futility of innocence, of struggle and passion, of the joy and the pain of what we do in this business. It's about power and frailty and just getting by. It's something quite special.
I suspect Perry Mason inspired as many people to go to law school as Atticus Finch. Both gave us pictures of lawyers successfully defending the innocent accused.
It's a sham, folks.
I'm a criminal defense lawyer. Most of my clients are guilty of something akin to what they're charged with. No criminal defense lawyer routinely represents the factually innocent. And none who's been at it for more than a very short time wants to. I know. I've represented a few. Some I've gotten off. Some I've failed. Failure goes with the territory, regardless of innocence.
If you take the work seriously (and if you don't, you shouldn't be doing it), representing the guilty is both an honor and a burden. It's an honor because the work itself is honorable. It's a burden because so much rides on what we do. Civil lawyers represent the financial interests of their clients. There can be thousands, even millions of dollars at stake.
That's nothing. We in the criminal defense business have weightier things at stake. We fight for our clients' freedom - sometimes for their lives. If it's a burden always, the burden is greatest when we believe the client innocent.
It doesn't make us work harder. It just increases, exponentially, the stress. But you won't learn that from TV or the movies. You will learn it, though, from Abbe Smith's fine book, Case of a Lifetime: A Criminal Defense Lawyer's Story (and you'll get something of the flavor of it, though without the texture that elevates it from melodrama, in this article in the Washington Post). Smith, Professor of Law and co-director of the Criminal Justice Clinic at Georgetown Law School tells the story of her 20 year effort to free the apparently innocent Patsy Kelly Jarrett from prison. It's not your standard tale of innocence vindicated. There's no vindication here.
Jarrett was 21 when she took a summer trip from her home in North Carolina to Utica, New York, with Billy Ronald Kelly. Before they got back to North Carolina, Billy had robbed and killed at least two gas station attendants. Based on a single, shoddy, eyewitness identification, Jarrett was convicted of murder for playing a part in the killing in Utica. She insists she is innocent.
Smith got involved in the case while taking a clinical class at NYU Law School. By that time, Jarrett had been convicted and had lost her appeals in state court. While she was in law school, and then later while a law professor at Harvard, Smith fought for Jarrett. The fight is anguished and painful and, ultimately, unsuccessful. There are no magic bullets here. There's no real evidence or even accusation of prosecutorial or police misconduct. There's no DNA to prove innocence. There's just Smith's conviction that a great wrong was done, that Jarrett is too much of an innocent not to be innocent. And that's not enough, as Jarrett spent nearly 29 years in prison for a murder of which, according to Smith, she was wholly innocent.
I don't mean to sound cynical about this. I'm inclined, from what I read and from what I know about the system, to believe Jarrett innocent. On the other hand, I know better than to trust my judgment on these things. But it doesn't matter, for this isn't a story about Jarrett and innocence, it's a story about Smith and the loss of innocence.
It's about Smith and about how you fight and fight for your clients even when the fighting gets you nowhere. It's about Smith and about how you struggle with doubts about whether you're good enough and whether you care too much and just how you deal with this person you're certain is innocent but is doing all this time and you don't seem to be able to help. As I say, it's not Jarrett's story. It's Smith's.
And as she tells of what she does and how it ultimately seems to make no difference, she examines the role of the criminal defense lawyer. Here's what makes one. Here's who we are. Here's how we deal with clients. Here's why we never want innocent clients. Here's the anxiety and the stress and the ambiguity and the doubt. Here's the frantic struggle. Here's just getting through the day.
I'm not giving anything away to say that Jarrett finally gets released. The "case of a lifetime" is over. But there's no vindication here. It's not the glorious, heroic victory. And when it's over, there's something very like post-partum depression.
Case of a Lifetime is a moving and powerful book of an unreliable justice system, of the futility of innocence, of struggle and passion, of the joy and the pain of what we do in this business. It's about power and frailty and just getting by. It's something quite special.
DEATH PENALTY SCREED - PART II
It's only news to those who didn't know it already. For most, there's no such thing as closure. The pain doesn't go away in a moment.
I'm talking about the families and friends of murder victims. You know, the ones who, it is said, find relief in death sentences for the killers and, later (much later, ordinarily), in their executions. Those things, we're told so often it becomes a mantra, provide peace and closure. Now, they say, they can have peace. And I suppose it happens. But it's not the norm. Revenge is not, ultimately, healing.
This isn't just me. Nobody ever said that my understanding of human psychology was particularly insightful.
(That's almost not true. Years ago, when the Ohio decided to prohibit inmates being executed from speaking their last words, I was quoted in the Columbus Dispatch as saying that they were trying to "pretty up the whole process, sanitizing the execution to distance all of us from it. It dehumanizes even further the person you are executing." The comment was quoted In Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions, and described as having been made with "telling psychological accuracy." When I saw it, I told my wife, proudly, that nobody had ever before accused me of any psychological insight whatsoever. Quick to deflate, she pointed out that authors had described me as an "ACLU attorney in Toledo," but had omitted my name, so it remained the case that I had never been so praised. But I digress.)
The idea of closure from death sentences and executions is a myth exploited by execution advocates but supported by no reputable studies. But both studies (here, for instance) and a wealth of anecdotal evidence say something different. Sharon Tewksbury, who is pleased that the man convicted of murdering her husband was executed by the State of Ohio, commented afterwards on how she and her family felt.
What it does, and this is always important to remember, is make us them. The victim becomes the victimizer. And the friends and family of the executed become new victims. It's classic feuding. Unchecked, it's Hatfields and McCoys (sorry to my friends in both families for bringing that up, but your families did broker a peace).
And then there's the time.
As this AP story from Connecticut notes, victim family members spend years, sometimes decades, hearing over and over, reliving again and again, the details of what was done to their loved ones yet having the focus of attention be not on the victim of the crime but on the convicted killer. As the article notes, there's significant evidence that death sentences are harder on victim's families than are life sentences - where the process commonly ends quickly.
There's something perverse about the delays, but they're an integral part of a system that some percentage of the time has sentenced factually innocent persons to death and, at other times, has simply made the wrong choice in deciding who should and who shouldn't be executed. Once it's done, the error really can't be remedied. And frankly, there aren't the resources to look for errors after the fact.
But how do you imagine the victim family and friends feel when there are doubts? Denial, surely. But buried somewhere a degree of uncertainty. My innocent was killed. So we killed yours.
I mentioned Sharon Tewksbury before. The family won't admit it, and the courts wouldn't accept it, but there's every reason to believe that John Byrd, who was executed for the murder of Monte Tewksbury, wasn't the actual killer. And, as something more than a mere aside, if he wasn't the killer, under Ohio law at the time and as he was charged, he couldn't legally have been sentenced to die.
Did we kill the wrong man? I don't know. But if I had supported the killing, if I'd watched it with some satisfaction, I'd sure be haunted by the question. Closure, I don't think so.
I'm talking about the families and friends of murder victims. You know, the ones who, it is said, find relief in death sentences for the killers and, later (much later, ordinarily), in their executions. Those things, we're told so often it becomes a mantra, provide peace and closure. Now, they say, they can have peace. And I suppose it happens. But it's not the norm. Revenge is not, ultimately, healing.
This isn't just me. Nobody ever said that my understanding of human psychology was particularly insightful.
(That's almost not true. Years ago, when the Ohio decided to prohibit inmates being executed from speaking their last words, I was quoted in the Columbus Dispatch as saying that they were trying to "pretty up the whole process, sanitizing the execution to distance all of us from it. It dehumanizes even further the person you are executing." The comment was quoted In Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions, and described as having been made with "telling psychological accuracy." When I saw it, I told my wife, proudly, that nobody had ever before accused me of any psychological insight whatsoever. Quick to deflate, she pointed out that authors had described me as an "ACLU attorney in Toledo," but had omitted my name, so it remained the case that I had never been so praised. But I digress.)
The idea of closure from death sentences and executions is a myth exploited by execution advocates but supported by no reputable studies. But both studies (here, for instance) and a wealth of anecdotal evidence say something different. Sharon Tewksbury, who is pleased that the man convicted of murdering her husband was executed by the State of Ohio, commented afterwards on how she and her family felt.
None of us felt elation. None of us felt overjoyed. I don't have strong feelings about the death penalty one way or the other now. My goal is to get all of the media to understand that 'closure' is a bad word, a word survivors don't understand. 'Transition' is the word we use. That doesn't mean everything is OK. Never will it be OK, and no execution, no jail sentence, nothing, will help in that process.That should be self-evident. Killing doesn't heal. The sort of seemingly gentle killing we insist on in the United States doesn't even provide a sense of equivalence. How often we hear the cries for vengence that "he should die the way she did," yet those are the demands of individualized vengeance, not what government executions are designed to or can provide. And, yet again, vengeance may bring some sort of satisfaction, but it doesn't undo the harm, and it sure doesn't bring peace.
What it does, and this is always important to remember, is make us them. The victim becomes the victimizer. And the friends and family of the executed become new victims. It's classic feuding. Unchecked, it's Hatfields and McCoys (sorry to my friends in both families for bringing that up, but your families did broker a peace).
And then there's the time.
As this AP story from Connecticut notes, victim family members spend years, sometimes decades, hearing over and over, reliving again and again, the details of what was done to their loved ones yet having the focus of attention be not on the victim of the crime but on the convicted killer. As the article notes, there's significant evidence that death sentences are harder on victim's families than are life sentences - where the process commonly ends quickly.
There's something perverse about the delays, but they're an integral part of a system that some percentage of the time has sentenced factually innocent persons to death and, at other times, has simply made the wrong choice in deciding who should and who shouldn't be executed. Once it's done, the error really can't be remedied. And frankly, there aren't the resources to look for errors after the fact.
But how do you imagine the victim family and friends feel when there are doubts? Denial, surely. But buried somewhere a degree of uncertainty. My innocent was killed. So we killed yours.
I mentioned Sharon Tewksbury before. The family won't admit it, and the courts wouldn't accept it, but there's every reason to believe that John Byrd, who was executed for the murder of Monte Tewksbury, wasn't the actual killer. And, as something more than a mere aside, if he wasn't the killer, under Ohio law at the time and as he was charged, he couldn't legally have been sentenced to die.
Did we kill the wrong man? I don't know. But if I had supported the killing, if I'd watched it with some satisfaction, I'd sure be haunted by the question. Closure, I don't think so.
Saturday, August 1, 2009
So long, Skelly
One of the side benefits (maybe the only side benefit if you count the opportunity to mouth off at will as a direct benefit rather than a side one) I've discovered over the two and a half months I've been writing this blog has been the discovery of other legal bloggers or "blawgers" as they say (a term I haven't decided whether I like or hate). I check them out to see what is being/can be/should be done on a blawg. (And, of course, what shouldn't be.) I check them out for news, since there's much of interest that otherwise would slip below my radar. And I check them out for ideas to write about.
Every couple of days I find a few new ones, new to me, that is. Some I bookmark to revisit. Some I run from as quickly as possible.
But there really are the ones that stick.
From some of those I've absorbed things that I think will make me a better lawyer. From some I've taken things that remind me to be a better lawyer. From some I've taken a sort of kinship. It's always good to be reminded that you're not in this business - I'm speaking of criminal defense, but blogging, too - alone. (Though some I wish would quickly get out of criminal defense and go someplace where they might do less harm.)
I've become a pretty steady reader of a few and an occasional commentor on some of those and some others. The commenting isn't self-aggrandizement, I hope. It's a recognition that we're all in the same school. Besides, I'm a loudmouth, which is much of why I got into this in the first place, and if I think I have something to say, well, I'm gonna say it now. (Which is, by the way, the title of a great old Phil Ochs song which you can hear here.)
You can find some of the blawgs I'm reading in the blog links on the right side of the page down below the excessively long list of tags. I keep fiddling with that list, adding folks that I find consistently worth my time to read, deleting others as I realize they're out of the business or are losing my interest or never should have had my interest in the first place.
The struggle today is what to do about Arbitrary and Capricious, the blog of the PD who calls himself Skelly Wright. I've never met him, but I've been reading him every day, and going back and reading through his archives. He's a font of encouragement and news and passion and. OK, I'm blathering. It ain't Shakespeare, but it really is one of the best - and not just according to me. And as of late last night, it's on "hiatus." I've been reading it for a couple of months now. It's on my blog list, right at the top. Do I take it down now that it's over?
Not for a while, anyhow, I think.
Keep on keeping on, Skelly.
Every couple of days I find a few new ones, new to me, that is. Some I bookmark to revisit. Some I run from as quickly as possible.
But there really are the ones that stick.
From some of those I've absorbed things that I think will make me a better lawyer. From some I've taken things that remind me to be a better lawyer. From some I've taken a sort of kinship. It's always good to be reminded that you're not in this business - I'm speaking of criminal defense, but blogging, too - alone. (Though some I wish would quickly get out of criminal defense and go someplace where they might do less harm.)
I've become a pretty steady reader of a few and an occasional commentor on some of those and some others. The commenting isn't self-aggrandizement, I hope. It's a recognition that we're all in the same school. Besides, I'm a loudmouth, which is much of why I got into this in the first place, and if I think I have something to say, well, I'm gonna say it now. (Which is, by the way, the title of a great old Phil Ochs song which you can hear here.)
You can find some of the blawgs I'm reading in the blog links on the right side of the page down below the excessively long list of tags. I keep fiddling with that list, adding folks that I find consistently worth my time to read, deleting others as I realize they're out of the business or are losing my interest or never should have had my interest in the first place.
The struggle today is what to do about Arbitrary and Capricious, the blog of the PD who calls himself Skelly Wright. I've never met him, but I've been reading him every day, and going back and reading through his archives. He's a font of encouragement and news and passion and. OK, I'm blathering. It ain't Shakespeare, but it really is one of the best - and not just according to me. And as of late last night, it's on "hiatus." I've been reading it for a couple of months now. It's on my blog list, right at the top. Do I take it down now that it's over?
Not for a while, anyhow, I think.
Keep on keeping on, Skelly.
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