Proud To Be an American

Last night were the fireworks.

Bombs bursting in air and all that.

They disguise a certain gritty reality.

In celebration of Flag Day last month, the Supreme Court of Ohio announced that Mark Wiles and Abdul Awkal should be murdered next year on April 18 and June 6.  The court took yesterday off, so its formal celebration of Independence Day was delayed until today.

• Jeff Eley is to be murdered July 26
• Donald Palmer is to be murdered September 20.

Once again, Happy Holidays.

For reasons of its own, the court has, so far at least, kept May and August free of government murder.

Theirs won't be glorious killings.  Nobody's likely to write an anthem about them - or any of the others.

Right now, as I type this, there are 11 men in Ohio who have been scheduled for murder.

• Kenneth Smith
• Brett Hartman
• Billy Slagle
• Joseph Murphy
• Reginald Brooks
• Charles Lorraine
• Michael Webb
• Mark Wiles
• Abdul Awkal
• Jeff Eley
• Donald Palmer

At the moment, it appears we only have the means to kill Smith.  After that, we'll need to find a new drug.

Or a new idea.

The Good Old Days?

A bit over a week ago, John Kindley self-proclaimed anarchist who believes that "anarchy is order" (and though I've read his explanation and others to which he links, I remain perplexed about how the terms can be synonymous) indulged in a bit of foolishness.

I mean, so what if the homicide rate in the Old West was seven times what it is today? That doesn’t answer the question of whether life in the Wild West wasn’t better and grander than it is today, or whether life today wouldn’t be better and grander if the State suddenly collapsed . . . even if the homicide rate reverted to Wild West levels.

In a comment, Kindley acknowledged that he was being both "cavalier and simple-minded" which is something.  But he was also, at some level, channelling part of the myth of The West where men were men and men did what men had to do.

From James Fenimore Cooper and the Leatherstocking Tales to Owen Wister's The Virginian to Louis L'Amour's Sacketts, from Tom Mix to John Wayne to Clint Eastwood  (not so much Jeff Bridges, but him too), and from Johnny Appleseed, Daniel Boone, and Davy Crockett to Ronald Reagan with stops for Crazy Horse and Chief Joseph, Geronimo and Techumseh, The West and our images of it (thank you Frederick Remington and John Ford) have mixed the good with the bad (and the ugly, too, but I don't want to go there now).

The grass was greener, the corn taller, the mountains higher.  The violence was a necessary corollary of the freedom given by the great open spaces and the fact that the only law was the Peacemaker.  And of course, there was opportunity.  Fortunes to be made.  And glorious risks to run.

Ah, the Good Old Days.

Which is, of course, bullshit.  But it's part of our national myth.

Just as King Arthur and the Knights of the Round Table is part of Britain's.

Do I hear mention of Pericles?
In Xanadu did Kubla Khan
A stately pleasure-dome decree:
Where Alph, the sacred river, ran
Through caverns measureless to man
Down to a sunless sea.
 
So twice five miles of fertile ground
With walls and towers were girdled round:
And here were gardens bright with sinuous rills
Where blossomed many an incense-bearing tree;
And here were forests ancient as the hills,
Enfolding sunny spots of greenery.

And of course, in the beginning there was Eden. 

Or maybe the founding fathers.

And, like Kindley's cavalier and simple-minded musing about The Old West, it's all bullshit.  Don't misunderstand me, please.  I'm not saying this is the Golden Age.  It's not.

In many ways, and for most people in the world (and for tens, if not hundreds of millions here in the US of A), life pretty much sucks.  As it did. Although sometimes in new and different ways.

Yet the myth has staying power.

Rick Horowitz, one of the most thoughtful and articulate of the criminal defense bloggers, regularly refers to the days when Fourth Amendment rights were honored and enforced because the framers insisted.  Just yesterday, he wrote

that Tennessee has decided to go after one of the two remaining Amendments in the Bill of Rights that the United States Supreme Court has not yet seen fit to officially obliterate.

He was talking about the First Amendment.  You know, the one that protects freedom of speech.  And while it's true that a majority of the Court (not a unanimous Court, but a majority) has issued several important speech friendly decisions recently, it's also true that they've issued speech hostile decisions.  The Court never declared the Smith Act (which makes it a crime to advocate the overthrow of the government) unconstitutional.  And let's not forget that the speech-friendly framers, the ones who adopted the Bill of Rights in 1791, enacted the Alien and Sedition Acts in 1798.

No Golden Age there.

Norm Pattis finds a disconnect between the prosecution of British soldiers for the Boston Massacre in 1770 and the enormity inflicted by the Court on John Thompson.The framers wouldn't have stood for it, he says.  Look what they did, he says.  They actually hauled those soldiers into court to hold them accountable, he says.

Yeah, but John Adams got them off.  That's the story of the trial and it's a true moment of Founding Father Glory.  A future president stood up against the mob and defended in an American court in Boston British soldiers who killed Americans in Boston.  And did it well.

But it's hardly an example of American courts holding American officials responsible for anything.  Frankly, it's closer to the California prosecution (to not guilty verdicts) of the cops who beat the shit out of Rodney King.

You want to know where we came from?  Try this.

On October 29, 1698 Cotton Mather wrote in his diary about a woman condemned for killing her child.

Moreover, a miserable young Woman, being this day condemned to dy, for murdering her base-born child, I pray'd unto the Lord, that her Condition might bee so ordered in His providence, as to give mee a special Opportunity of glorifying my Lord Jesus Christ, on that Occasion.

But damn, she was to be hanged during a week when Mather wasn't going to be giving the sermons.  And then a miracle.  Mather wrote about it on November 13.

The Execution of the miserable Malefactor, was ordered for to have been the last Week, upon the Lecture of another.  I wondred then what would become of my Particular Faith, of her condition being so orered in the Providence of God, that it should furnish mee, with a special Opportunity to glorify Him. While I was entirely resigning to the wisdome of Heaven, all such Matters, the Judges wholly without my seeking, altered and allow'd her Execution to fall on the Day of my Lecture.  The General Court then sitting, ordered the Lecture to bee held in a larger and a stronger House, than that old one, where tis usually kept.  For my own part, I was weak, and faint, and spent; but I humbly gave myself up to the Spirit of my Heavenly Lord and Hee assured mee, that Hee would send His good Angel to strengthen mee.  The greatest Assembly, ever in this Countrey preach'd unto, was now come together; It may bee four or five thousand Souls.  I could not gett unto the Pulpit, but by climing over Pues and Heads: and there the Spirit of my dearest Lord came upon mee.  I preached with a more than ordinary Assistence, and enlarged, and uttered the most awakening Things, for near two Hours together.  My Strength and Voice failed not; but when it was near failing, a silent Look to Heaven strangely renew'd it.  In the whole I found Prayer answered, and Hope exceeded and Faith encouraged, and the Lord using mee, the vilest in all that great Assembly, to glorify Him.

So at least a Golden Day for Mather.  Though we might ask more of an age than a chance to preach a sermon on the day of an execution - especially one glorying in the killing.

Maybe I'm just too damned cynical. But I don't see that golden past.  That "demi-paradise" as Coleridge described Xanadu.

From Eden to Charles Foster Kane's Xanadu, from the Round Table to Wounded Knee, from Troy to Attila the Hun, and yes, from the Declaration to the Constitution, paradise carries its own destruction with it.

There is no golden age.  It was never better except for the odd blip, like a cool summer breeze or a January thaw.  The promise is never honored more than fleetingly.

Good came of the French Revolution.  So did the Terror.

It was bullshit then.  It's bullshit now.

Nostalgia, as they say, isn't what it used to be.

Rich, White Men - and Revolutionaries

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

With those words, a bunch of rich white guys signed off on this quite extraordinary document.

You know how it begins, and if you don't, you should.

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. 

Think about those words.  "When . . . it becomes necessary."  Not if it should happen.  When it does happen.  For it will.  That's the opening.  In time, "in the Course of human events," it will be "necessary" - not just once, from time to time - "necessary" to undo the government.  But it's no trivial thing.  So important is it, and so important and even tenuous an act, that it must be explained, justified.  With clear argument so as to make it understood.  That's the "decent respect [owed] to the opinions of mankind."  Logic.  Argument.

First the premises:   

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

And there it is again.

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

No small thing.  Not a bitch about this or that.  No revolution over health care reform or the Patriot Act or Scope and Grope.  Taxes too high or too low?  Nope, not enough. But "a long train of abuses and usurpations" intended to crush the people "under absolute Despotism."  Still, you work on it, wait on it, try to avoid it.  "[P]atient sufferance."  And then, there it is again, "now the necessity."

Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

And then the argument.

To prove this, let Facts be submitted to a candid world.

There follows the list of grievances.  It's a list that pretty well catalogues the usurpation of the Rule of Law and its replacement with the Law of Rule.

And, frankly, much as we in the criminal defense blawgosphere may bitch and moan about how bad things are, we're not close.  Much as the most rabid of the TeaPartiers may bitch and moan about how bad things are, we're not close.  This is what it takes.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefit of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies
For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

Or something of the sort.  Which will happen.  Because in time, power will beget power.  Absolutely.  And always.

Then, then, 

it is their right, it is their duty, to throw off such Government.

The thing is, Jefferson really believed it.  He is, after all, the one who offered this.

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.

Damn.

A bunch of rich white guys.  

Their lives, their fortunes, their sacred honor.

Happy Independence Day!

Justice Calls for Life

This case implicates United States foreign-policy interests of the highest order.

Generally, when someone from the Department of Justice says that sort of thing it's while prattling on about how national security requires that some innocent victim of extraordinary rendition be denied the opportunity to sue the government for kidnapping and torture.  Or maybe it's to explain why the court must not provide the defendant any information about the satellite photographs showing whatever it is.  Or it's to explain just why it is that Shrub or Obama or whoever next sits in the big chair in the Oval Office can drop bombs willy nilly and without Congressional approval or oversight despite that pesky part of the Constitution (Article I, Section 8) that gives to Congress the power "[t]o declare War."

Not this time, though.

This time it's the start of DOJ's explanation of just why the Supreme Court should prevent Texas from murdering Humberto Leal on Thursday.

I wrote about Leal's situation the other day.  Nobody denies that he was denied his rights under a treaty (the Vienna Convention on Consular Relations) that binds the United States.  Nobody denies that a duly enacted treaty is binding on the nation and the states.  It's just that, up till now at least, the courts including the Supreme Court have said that although the treaty was violated and although it's binding, it isn't enforceable.

Which sounds bizarre unless you're a lawyer.  See, here's the idea.

There's a treaty. Article VI of the Constitution says a properly enacted treaty

shall be the supreme Law of the Land.

You might think that means that it can't be violated.  You'd be wrong.  Violate at will.  Until Congress passes a law that says this binding treaty is actually binding.

Oh, the states aren't supposed to violate it.  It's just that it doesn't matter, doesn't legally matter, if they do.

Except that maybe it does matter.

This case implicates United States foreign-policy interests of the highest order. Indeed, this Court has recognized those interests to be “plainly compelling.” Medellin II, 552 U.S. at 524. Petitioner’s execution would cause irreparable harm to those interests by placing the United States in irremediable breach of its international-law obligation, imposed by the ICJ’s judgment in Avena, to provide judicial review of petitioner’s Vienna Convention claim. That breach would have serious repercussions for United States foreign relations, law-enforcement and other cooperation with Mexico, and the ability of American citizens traveling abroad to have the benefits of consular assistance in the event of detention.

Shrub, back when he was President, urged Texas to make up for its breach of the treaty and comply with the ICJ's judgment.  Texas refused.

We are the Sovereign State of Texas and don't give a damn what those effete foreigners and our pussy-whipped former governor have to say.  We didn't sign off on any damn treaty.  Anyhow, these guys are wetbacks and deserve whatever they get.  Fuck 'em.

OK, that's not exactly how they put it.  But that was the guts of it.  And since SCOTUS wouldn't actually order a remedy (and who knows what would have happened if it did? - prospective presidential candidate and Texas governor Perry has made clear that he and Texans so love the United States that they might one day decide to secede from it), then the hell with it.

Except there's that bill in Congress.  And DOJ says the Court should stay the execution until the end of the term (January 3, 2012)

in order to allow the United States additional time to meet its international-law obligations.

You know, to pass the law that says Texas has to obey the law.

Otherwise, Leal - and US foreign policy interests - have until Thursday.

Leal--US Amicus Brief

Because the Guy We Want To Kill Can't Be Found

Kenneth Smith, you'll recall if you read this post from a month ago, has had his larynx removed due to cancer since he was put on death row in Ohio.  He speaks now through an artificial voice box.  When they kill him in a couple of weeks, they plan to leave one arm free (usually they strap both down) so that he'll be able to use that voice box to say his last words.

I don't know what those words will be, though some reporter will likely either quote or summarize them.

I do know what he told the parole board though, when they interviewed him by videoconference.  I know because they told us in the report they issued on Friday.

The applicant told the Board that he was truly sorry for his crimes and that he takes full responsibility for his actions that led to the deaths of Lewis and Ruth Ray.  The applicant stated he is asking for clemency for his family, his kids and his church because his life has meaning to them.  He is requesting clemency in the form of a commutation to life without parole.  The applicant explained that he has two children, a son and a daughter, and one grandchild.  He related that he has become a better person in the last 16 years, has stayed out of trouble, and has joined the Catholic Church where he is an active member.

The Parole Board's response, and this time I'm paraphrasing from their report, was a unanimous

Big whoop.  Who gives a shit?

Smith was 30 when he was sent to death row.  He's 45 now.  He had a substantial criminal history before he committed the crimes that sent him to the row.  In the 15 plus years that he's been there, the Board report indicates, he

has never been placed in Disciplinary Control nor has he been cited with any conduct reports.

Without going back and reading all the prior clemency reports, I think it's likely that he's the first they've said that about.

Big whoop.  Who gives a shit?

Smith's siblings and children told the Board that he's important to them, that he helps them.

Big whoop.  Who gives a shit?

His priest talked of his conversion and his spiritual growth.

During their time together, the applicant was baptized and confirmed in the Catholic faith.  He became very involved in the weekly masses and has become very spiritual.  Father Borgia stated that when the applicant prays, he prays for forgiveness, for his wife Brenda who is deceased, for his victims and his victims' families.  Father Borgia stated that the applicant is not the same person he was 16 years ago.  

One more time.

Big whoop.  Who gives a shit?

Really, I shouldn't do that.  All that "Big whoop. Who gives a shit?" makes the Board sound callous, like they're dealing with something they might refer to as "the applicant" rather than a real, individual person with, you know, a name.  (Uh, Gamso, pay attention.  They do refer to him as "the applicant.")

It's not the Board that's callous though.  They're just doing their job figuring out that all the stuff that makes Kenneth Smith worthy of life isn't really worth much at all because it doesn't 

outweigh the nature and seriousness of the offense.

Which isn't too surprising since from the Board's perspective only actual innocence can really outweigh those things.

That's the Board though.

More interesting is what Butler County prosecutor Michael Gmoser told the Board.

While the applicant's family has provided testimony regarding the man he has become, this case is not about the man he is now; it is about the man he was at the time of the offense and the facts of that offense.  The progress he has made while in prison should not be relevant in considering a clemency application.

Gee, what should then?

A couple of weeks ago, the Supreme Court ruled in Tapia v. United States that it's improper to consider rehabilitating someone when imposing a federal prison sentence. Gmoser takes that several steps further.

OK, maybe I'm being a shade too glib.  But Gmoser's position is worthy of a glib response.  It doesn't matter who Smith is now, he says.  We should kill him for who he was.

He doesn't add that it's a shame the Smith of today has to die in order to kill the Smith of 1995.  Collateral damage.  Friendly fire.  Something.  Maybe he doesn't think it's a shame.  Sure we're killing this guy.  So what?  It's the best we can do since the guy we wanted to kill, the guy who deserved killing isn't around any more.

This guy?  Different fellow?

Big Whoop.  Who gives a shit?

Smith Clemency Report

Poisoned Tylenol, Anyone?

Fortunately, Ohio has enough pentobarbital left for the murder of Kenneth Smith on July 19.

But after that?

This business of killing people with the aid of the pharmaceutical industry is getting tricky.

I mean, there are all those problems with the three-drug sequence (see here, for instance).  Then, at least in Ohio, there's the continuing issue of even being able to insert the needles for the IV lines (see here).

So we went to one drug, thiopental sodium.  Except Hospira stopped making thiopental.  And then Dream Pharma's operation exporting thiopental (operated out of the the back of the Elgone Driving Academy in London) hit a snag when DOJ started confiscating the smuggled drugs.  So the states, those like Ohio now using a single drug and those still killing with a sequence of three, began switching from thiopental to pentobarbital (see here, for instance).  But now Lundebek, the Danish company that makes pentobarbital, has figured out what it thinks is a way to ensure that no more of it will end up in the hands of the executioners.

Here's the story, from WLWT in Cincinnati.

Lundbeck Inc. chief executive Ulf Wiinberg said Friday that his company is demanding that U.S. distributors and states not let pentobarbital -- a sedative with a number of uses -- be used as a lethal injection drug.
"Lundbeck will have to approve each order and everyone buying the product must sign a paper stating they will not sell it on to prisons," Winberg said. "We are confident that our new distribution program will play a substantial role in restricting prisons' access."

So what's a state to do?

Ohio prisons spokesman Carlo LoParo said that the state is struggling to find a new lethal injection drug.

But since we've got enough to kill Smith later this month we've actually got until mid-August (Brett Hartman, August 16) to track down some new drug for committing murder.

As I've written many times, the problem (if that's the right word) is that we insist on a killing that appears humane and inoffensive.  We want to kill without gore, without mess, and without pain.  We want it done with a G rating.

The goal is vengeance (we call it "retribution," but that's just more syllables for the same thing) without equivalence. 

There are, of course, ways to kill that will be painless. But each seems to carry baggage we want to avoid.

• Attaching sticks of dynamite to the body and then lighting them?  There's a gruesomeness (and a suggestion of terrorism) to that at odds with the desire to sanitize the process.  
• Gunshot to the back of the head?  China's abandoning it as a method.  And it sounds just a bit too much like a mobster execution.  Besides, there's all that spattered brain and bone and blood.
• Overdose with drugs of abuse like heroin or even marijuana?  Too kind.  And the DEA would object.  Besides, we've insisted for so long that they have no proper use it'd be hard to change gears.
• Inhale carbon monoxide through a face mask?  Too much like what Kevorkian designed.

Oh, I don't doubt that they'll find another drug.  There are lots of pharmaceutical companies and lots of drugs.  They'll even turn one up, eventually, that won't find it offensive to use a drug designed to heal in order to kill.

In the meantime, we can be comforted that Kenneth Smith's murder can occur without disruption.

You know, it gets tiring writing the same thing over and over again.  The drugs aren't the problem.  The problem is the death penalty.  It's murder, but we can't admit that because then we'd have to admit that it's wrong.

And so we have to hide it.

We kill indoors.  With a few witnesses, but away from the cameras, away from the glare.  And then we mask the murder with the veneer of a medical procedure.  So it looks nice.  So we can pretend it's not what we're doing.

We won't admit it.  We can't admit it.

Still, it keeps getting tougher to hide from the truth.

J'accuse (Ooops)

Dominique Strauss-Kahn did or did not sexually assault a maid at the Sofitel in New York City.

That is, of course, true of everyone.  You, my readers, each of you individually or even as a gang, did or did not sexually assault a maid at the Sofitel in New York City.

Ah, but you weren't accused.  You weren't publicly vilified, forced out of your high prestige job, removed as a powerful and plausible candidate to become the next president of France.

You weren't locked up.  You weren't denied bail.  You weren't confined to house arrest.  You weren't forced to find new digs because the neighbors were horrified at the presence of someone

• so vile
• so horrid
• so dangerous
• so damned accused.

May 16, Artie McConnell, Assistant District Attorney, in open court.

The victim provided very powerful details consistent with violent sexual assault committed by the defendant, which establishes all the necessary elements of the crime he is charged with.
. . .
She made outcries to multiple witnesses immediately after the incident, both to hotel staff and law enforcement. She was then taken to the hospital and was given a full sexual assault forensic examination. The observations and findings during that exam corroborate her accounts.

May 19, Artie McConnell, Assistant District Attorney, in open court.

The victim was given a complete and expert forensic examination and the findings from that examination are consistent with her account. The Crime Scene Unit processed the hotel room and the scene, and while those scientific tests have not been completed, the preliminary indications are that forensic evidence that supports the victim’s version of events may be found.

Jim Dwyer, William K. Rashbaum, & John Eligon, today's New York Times

Although forensic tests found unambiguous evidence of a sexual encounter between Mr. Strauss-Kahn, a French politician, and the woman, prosecutors now do not believe much of what the accuser has told them about the circumstances or about herself.
Since her initial allegation on May 14, the accuser has repeatedly lied, one of the law enforcement officials said.

And now?  Eligon, again, in the Times on line.

Dominique Strauss-Kahn was released from house arrest on Friday as the sexual assault case against him moved one step closer to dismissal after prosecutors told a Manhattan judge that they had serious problems with the case.
Prosecutors acknowledged that there were significant credibility issues with the hotel housekeeper who accused Mr. Strauss-Kahn of trying to rape her in May. In a brief hearing at State Supreme Court in Manhattan, prosecutors did not oppose his release; the judge then freed Mr. Strauss-Kahn on his own recognizance.

So what happened in that hotel room?  I don't know.  You don't know.  Artie McConnell doesn't know and neither do the guys from the Times.

Here's what I know.

She claimed to be a victim and was, therefore, believed. Because victims never falsely accuse.  Which is generally true if you think about it - it's only people who aren't victims who falsely accuse.  And who are they?  Oh, they're people who claim to be victims but aren't.

They're the ones who ruin lives with a word, hiding behind the cloak of anonymity we choose to give anyone who claims to be a victim because we've made this determination as a society.

It's better that one guilty person be convicted than that 10 innocent ones be freed.

Wait.  Hang on a second.  Isn't that supposed to be the other way around?

Better that 10 guilty persons be freed than that one innocent person be convicted.

Bah, that's second grade civics.  That's law school.  That's Blackstone and hundreds of years of Anglo-American jurisprudence.  That's those guys with beards and robes who wandered through the desert for 40 years after the flood and then the followers of some crank who got crucified after running the money lenders out of the temple.  That's, my god save us, foreign law.

We will hear now that the system works.  That the prosecutors are carefully examining and evaluating and won't go forward unless they really believe he's guilty and can prove it.

But that's bullshit.  Because you can't give it back.  You can't undo the damage.

Dominique Strauss-Kahn did or did not sexually assault a maid at the Sofitel in New York City.

So what happened in that hotel room?  I don't know.  You don't know.  Artie McConnell doesn't know and neither do the guys from the Times.

It's not that it doesn't matter.  It's not that if Strauss-Kahn did those things of which he's accused he should walk free.  It's not about cutting breaks for rapists or other malefactors.

It's about a presumption of innocence.  It's about not blindly accepting whatever accusers say. It's about starting with doubt rather than (if you'll excuse the word, but it's exactly the right one) conviction.

Monday is July 4, Independence Day, when we celebrate the spirit of revolution as the fertilizer of the tree of liberty.  (Which is kind of a lousy metaphor, but what the hell.) It's the day when we look at the document which emphatically does not say

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. And that when someone is accused of bad stuff all the rest of that crap doesn't count. 

Jefferson knew better.