Thursday, September 20, 2012


It's a widely held view that criminal defense lawyers don't think anyone should ever be punished.
  • scofflaws
  • reckless drivers
  • embezzlers
  • thieves
  • drug dealers on the street corner
  • drug kingpins
  • robbers
  • burglars
  • gang bangers
  • rapists
  • killers
  • terrorists
Set them all free.  Those are our people.
It's not true.  Not even a little bit.
Oh, many (most? nearly all?) of us believe that too many things are crimes.  (I just looked and discovered that I haven't used overcriminalization as a label, which seems odd; anyway, see here for an example of a post to which that label would properly have been appended.)  And we do tend to believe that the government should actually have to obey the Constitution when investigating crimes and prosecuting those it charges with them.  And we believe strongly in that beyond a reasonable doubt thing.
But the truth is that we want to get home safely at the end of the day.  We don't want to be sharing the road with drivers too drunk to control their cars.  We don't want to live next to crack houses.  We don't want our homes to be invaded, our loved ones to be attacked, our homes to be invaded, our buildings to be bombed.
There are people who should, for your safety and mine, be taken out of circulation for a period of time.  
Oh, we tend to believe in treatment and rehabilitation more than your average legislator or the folks who live their lives attending to the 24 hour news cycle.  And we've got some real concerns about overly long sentences and about forfeiture laws and conditions of confinement and absurd bonding provisions and overcharging and mandatory minimums and sentencing guidelines that effectively coerce guilty pleas regardless of the guilt (legal or otherwise) of the accused.
And then there's the fact that there's essentially no accountability for cops and prosecutors who abuse our clients, shoot their dogs, lie, and cheat and . . . . You get the idea.
Of course, it's not just the quotidian cops and prosecutors, the ones we deal with everyday, whether that's the uniformed patrol officer minding his own business in line at Krispy Kreme or the special agent (why aren't there any ordinary agents) of the FBI or the agent of ICE confiscating smartphones or the groper from TSA. (And enough with all the acronyms and initialisms, by the way?)  And along with the line prosecutors its the elected guys and of course the folks who work at main Justice and the people like John Yoo and Alberto Gonzales who helped undermine constitutional protections but who can't be prosecuted for it because Obama said so (in an effort, one suspects, to protect himself and his peeps.
And so we declare that torture is wrong and illegal and waterboarding is torture and "I was just following orders" is no defense but since the actual waterboarders were just following orders it's OK and the people who gave the orders and approved them . . . . well, it doesn't make sense to prosecute them because -- Why is that again?  Oh, yeah, because we're pure and clean even when we're diseased and dirty.  Because we're 'Mericans.  The big boys on the block.  And besides, when we do it.

But every once in a while.
Ian Shapira in the Washington Post.
Italy’s highest court on Wednesday upheld the convictions of 23 Americans — nearly all current or former CIA officers — for playing roles in the kidnapping of an Egyptian terrorism suspect in 2003. The Americans face prison sentences ranging from seven to nine years, but they were tried in absentia and are highly unlikely to be extradited.
The marathon Italian prosecution has strained relations between the United States and Italy, exposed tradecraft errors behind a CIA operation and raised questions about which U.S. officials abroad are eligible for diplomatic immunity.
Which is really something.  I mean, we're not talking about some rogue state going after the good guys.  We're talking Italy.  An ally.  A member of the European Union.  The home of pizza and spaghetti and Chianti.  And Don Corleone (or Tony Soprano for the whippersnappers reading this).
One of the people who's convictions were affirmed is Sabrina De Sousa.  According to Shapira,
De Sousa said that the evidence against her was highly circumstantial and that senior U.S. government officials who planned the rendition deserve to be held accountable.
Of course, circumstantial evidence (even "highly circumstantial" evidence, though I'm not sure what makes some circumstantial evidence especially circumstantial - either it is or it isn't) isn't necessarily false.  But that's the trivial part (except perhaps to her) of the claim.  The important part is that she says they should have gone up the ladder. Don't just hold the soldiers accountable. Go after the generals, too. Indeed.
Still, these aren't pure groundlings.  And they really don't get a pass because someone else planned the crimes they committed.  Just following orders really isn't good enough.
The rest of the world remembers that rule and applies it.
Even if we just sit on the sidelines pretending that we can do no wrong.

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