Paroline, Haugen, Maharaj - Catching Up on the News

We here at Gamso For the Defense (that's the Royal we, since I'm the only one here) struggle to stay atop the news and to keep tabs on stories.  Occasionally we even succeed.  As it happens, there are developments of a sort in two of the things about which I've written before.

So while we wait to find out how SCOTUS will parse the language of the Mandatory Restitution for Sexual Exploitation of Children Act -- Oh, I guess I'd better explain.

In 1994, Congress passed this law that said anyone convicted of federal crimes of sexually exploiting children must pay restitution to the identified victims of those crimes.  (There are a bunch of preliminary hoops that folks have to jump through - not least of which is identifying the victims.)  One child, known as Amy Unknown, was raped by her uncle when she was 8 and 9.  

She's 21 now, but her life has, apparently been a complete mess ever since she learned some years later that her uncle took pictures of the rape and they've been circulated widely on the internet.  (Don't go looking for them.  That's a serious federal crime.)  The damages she suffered and will continue to suffer from the knowledge that the pictures of her rape are being viewed by folks have been calculated at 3.4 million dollars.   To date she's been paid some 1.7 million in restitution.  Which means she's still owed 1.7 million.  The question is who should pay.  And how much.

That question made it to the Supreme Court this morning for oral argument in Doyle Randall Paroline v. United States.  (Transcript here.)  Paroline was discovered to have thousands of pictures of child pornography on his computer.  Two were of Amy.  He's been ordered to pay Amy 3.4 million for the harm he caused her by looking at her pictures.  Oh, nobody thinks he personally caused all 3.4 million in harm.  But he caused part of her harm by looking at the pictures of her being raped.  He's to pay what he can. After all, she's harmed whenever she learns that someone looked at her pictures.  

But should he really be stuck with the whole bill since he didn't cause the whole harm?  Maybe he should only have to pay restitution for the portion of the 3.4 million harm caused by his looking at those two pictures.  And how do you calculate that?  That's what the Court will try to work out in his case.

But hang on a second.  So he looked at Amy's pictures.  That doesn't harm her unless she knows, right? How is it that she knows?  How did she learn that Paroline had those 2 pictures?  Good questions.  The answer:  Our government told her.  Congress says the children in these pictures, if they can be identified, have to be told every time someone's caught looking at their pictures.  Which harms them. But the government isn't liable for the harm, even though it's actually the immediate cause of it.  That issue wasn't before the Court.

Did I mention that this is really fucked up?

Anyway

ALSO IN THE SUPREME COURT

Or maybe it would be better to say not in the Supreme Court, is Gary Haugen.  You remember Gary. He's the guy on death row in Oregon who was due to be executed when Governor Kitzhaber granted a reprieve explaining that he would not allow any executions as long as he's governor. Haugen was pissed, wanted to be killed.  He sued the Governor claiming that Oregon law makes a reprieve something like a contract and it has to be accepted or it doesn't count.  Since he didn't accept it, it didn't count and he could be killed.  The Oregon trial court agreed, grudgingly.  The Oregon Supreme Court said no. 

So Haugen went to the U.S. Supreme Court.  Which on Tuesday told him to go away

. They wouldn't hear his case.  Damn.  Now if he wants to die he has to kill himself.  Or wait till Kitzhaber's no longer governor and hope that the next guy is more bloodthirsty.  

The good news from Haugen's point of view is that Kitzhaber only has another year in his term.  The bad news is that he he just announced he's running for another term.  If he wins, that's 5 more years of reprieve.  Shit.

Oh, and there's this.  Jason Brumwell, Haugen's co-defendant is also on death row.  Same song, second verse.  Two weeks ago. Brumwell announced that he wants to be killed and will sue the Governor if he's granted a reprieve.  

Maybe it's something in the water.

WHILE IN FLORIDA

It was November 2012 when I reviewed Clive Stafford Smith's The Injustice System which told the story of Kris Maharaj, how he ended up in prison in Florida, first on death row, then just for decades, for the 1986 murders of Derrick and Duane Moo Young in a Miami hotel room.  A pair of murders he almost certainly did not commit.  He's 74 years old and confined to a wheelchair.  He's served some 27 years so far.  He'll first be eligible for parole in another 27 years, when he's 101. If he lives that long.  

Clive's been on the case for close to 20 years now, struggling to free him.

Just maybe.  

The evidence Clive presented in the book suggests that the actual killers may be from Columbian drug cartels.  There's more evidence now, including witnesses who can say that Pablo Escobar personally ordered the murders and that Maharaj had nothing to do with them.  And there are the fingerprints in the room which can be matched, maybe, to the actual killers.  If Florida would just let the examination be done.

But why would Florida do that?  Why would they want to find out?  Oh.  Right. 

What I say about the DNA in other cases, I say about the prints in this one.

TEST THE FUCKING FINGERPRINTS.

I mean, there are three possibilities.  Either they'll strongly corroborate the claim that Kris didn't do it and that a couple of Columbian drug cartel types did.  Or they'll show nothing of the sort.  Why wouldn't they want to know. 

There's supposed to have been a hearing earlier today.  I haven't found a news report.  

But when I do.

* * * * *

Just another day in the trenches.

The Valley of the Shadow of Death

On a pretty regular basis, people write or send e-mails asking that I volunteer my services on behalf of one or another person in prison or on death row who the writer knows absolutely to be innocent.  Often there's an additional inducement.  Perhaps a cut of the lawsuit against the oppressive police and prosecutors and judges who put this person behind bars or on a path to the gurney.  Perhaps the fact that it's so open and shut a case that no serious work will be involved to free the person who's languished in prison for decades.

There was, for instance, this note that I came across while clearing some old messages out of my inbox recently.

In my opinion, a private investigation of that matter should get acquittal by itself without even going to a court, a prosecutor can merely review the findings, then make a few phone calls, and sign some papers for his release.

Would that it were that easy.  Just find an investigator (not, obviously, one of the numerous corrupt and incompetent ones who have failed over 20 years or more to discover the readily available overwhelming proof of innocence) who'll work for nothing for a couple of hours and then call up the prosecutor.

Voilà

Except, well, no.  It doesn't actually work like that.

The evidence, if it exists, isn't sitting on the kitchen table ready to be picked up.  It isn't available with a quick Google search.  And it isn't, frankly, all that self-evidently compelling.
And even if it were, the prosecutor has neither the power nor, almost surely, the inclination to be readily convinced and then to act on it and secure the person's freedom with the stroke of a pen or a phone call or two.

It really is a lovely idea, It's also nonsense.

Once the jury says 

Guilty!

Well, it's pretty much over.   If they say he did it, then there's nothing much left to consider.  Just some technical mumbo jumbo about hearsay rules and exclusionary rules and Batson challenges and effective assistance of counsel, about which nobody gives a rat's ass.  

Because, after all, the jury said 

Guilty!

Which means it's pretty much over.  Because he either did it or might as well have.

That's the sad truth underlying Clive Stafford Smith's new book, The Injustice System: A Murder in Miami and a Trial Gone Wrong.

It was 1986 when Krishna (Kris) Maharaj, a successful businessman, was charged with the murders of Derrick Moo Young and Duane Moo Young at the DuPont Plaza Hotel in downtown Miami, a crime horrific in its coldness and brutality. It was 1994, when Smith first met him. represent him for free. By then, Kris had been on death row for seven years. All his money had been spent on lawyers who, truth be told, didn't do the job. Now he was broke and his best legal options largely past. In The Injustice System, Smith tells the story of how it is that Kris ended up there and of the fight to free an almost certainly innocent man.

In the world of capital defense, as in pretty much every field, there are stars, those lawyers others turn to for advice and inspiration.  Clive is among them.  He founded a couple of non-profits (the Louisiana Crisis [now Capital] Assistance Center and Reprieve). He teaches at major national capital defense seminars.  He's smart, clever, dedicated, passionate.  You get him in your corner, things look up.

That's certainly how it looked to Kris Maharaj.  But then, Kris had always figured things were going to look up.  He was innocent, you know.  That would be obvious to the jury.  If not, it would be obvious to the judge.  It followed that there was no need to fuss, no need to spend big bucks on a first rate trial team.  Just a lawyer who talked a good game.  Really, that would be all he'd need.

Except it wasn't.  And the next guy and the next guy and Kris was broke and then Clive came to see him and, as I said, with him in your corner, things look up.

As I said, this is the story of how it is that Kris ended up on death row for a crime he almost certainly didn't commit.  And about what happened after that.  Smith takes us through the case point by point, historical event through historical event.

He begins with the trial, then the sentence.  What happened next and his first meeting with Kris.  Then there's examination and investigation as Smith peels away the lies, the distortions, the misrepresentations.  And what he finds as he digs deeper. 

He investigates the witnesses.  He looks for other suspects.  He follows the money.  Was Derrick Moo Young tied to the Columbian drug cartels?  It sure looks that way.  Was his murder a hit for stealing from the Columbian drug cartels?  It sure looks that way.  

And what about the crooked judge?  And what about the jury?

Kris files post-conviction pleadings in state court, then in federal court.  This is how it goes, how these cases play themselves out.

Smith explains it all carefully and clearly.  These are the legal steps.  These are the legal hurdles.  Here are the stories of other cases and how the went.  Stories of other prosecutors and other judges and other juries.  Of other investigations and other innocent men and women. Here are stories of forgiveness and compassion, and stories of hatred and vengeance.  He tells the story of Rais Bhuiyan (which I've written about here and here).

Through it all, Smith never loses sight of Kris, who is himself both ordinary and extraordinary.  And of Kris's wife, Marita, who's simply extraordinary.  They, as much as the family of the Moo Youngs, are victims here. 

As an epigraph, Smith offers this from Pascal Calogero, a former chief justice of the Louisiana Supreme Court.

Our justice system makes two promises to its citizens: a fundamentally fair trial and an accurate result.  If either of those two primises is not met, the criminal justice system itself falls into disrepute.

And so it does. The Injustice System lays it out.  Piece by piece.  Kris's case is the model. But it's not just his case.  It's another and another and another.

Most of the books you'll read - even the really good ones - about innocent men and women caught up in the system, like most of the movies and TV shows, most of them are about a case where things went wrong.  For whatever reason, the system screwed up.  It failed. And then through some combination of diligence and luck and pluck the truth came out.

This book is different.  Oh, it shows the system screwing up.  But Clive makes clear that it's not an aberration. And diligence and luck and pluck - they just may not be enough.

Clive is, among other things, a terrific storyteller.  And he's got a terrific story to tell.  Of how the system fails.  How it's designed to fail.  How failure isn't an accident, it's a feature.

At the same time, ever and always, it's a story of man.  I'll give him the last word.  He was in the hospital associated with the prison. Shackled to a bed. Suffering from a flesh-eating bacteria. Smith paid him a visit.

I ask Kris what keeps him going, when he can't do anything in the hospital.  He responds by quoting Psalm 23, the entire thing from memory. "'Surely goodness, mercy and love shall follow me all the days of my life,'" he intones.  I look at the grubby wall again and wonder. 

------------------
My thanks to the publisher for sending me a copy of The Injustice System for this review.