One Here, None There

The story in today's Times begins this way.

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.

It's a powerful story of a federal judge in Brooklyn (John Gleeson) committed to doing something about an absurdly harsh sentence he was forced by law to impose, the lawyer he appointed (Harlan J. Protass) to represent Holloway finding a couple of similar situations in Montana, and a US Attorney (Loretta E. Lynch) who bowed (one senses grudgingly) to decency.

What happened is that Holloway was charged with three carjackings over the space of several hours.  In each case, his co-defendant had a gun.  Because he went to trial and got convicted rather than cut a deal and plead guilty, those guns in the co-defendant's hands ended up costing him decades.  As mandated by Congress.  

Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

Anyway, Judge Gleason did some strong arming, the prosecutor agreed to vacating a couple of the carjackings, and Holloway will be sentenced today to time served and released to the custody of the New York State prisons where he'll be eligible for parole in about 9 months.

It's a good thing.  And I don't really want to sound grudging about a case where everyone did the right thing.  But you know

Here's the thing.  There are hundreds, probably thousands of men and women (mostly men) in state and federal prisons serving sentences that are, by any rational standard (as distinct from, say, the Otis/Scheidegger standard) absurdly long.  There are thousands of men and women who've had their lives ruined, who've lost their families (and functionally their lives), whose families have been torn apart because we've chosen to make everything a crime and to lock up as many people as possible for as long as we can possibly lock them up.  There are thousands of men and women we release on the street, denied an opportunity to get an education or housing or employment, but ordered to become productive members of society or go back into the slammer.

Judge Gleason is a fine judge who's done good things before and surely will again, but really there isn't much he can do except in individual cases.  Harlan Protass may be a great lawyer, but really there isn't much he can do except in individual cases. And then there's Loretta Lynch, about whom I know absolutely nothing but that in this one case she was pushed and shoved and finally did a truly decent thing she didn't have to do.

I have no reason to doubt Lynch's basic decency and sense of fairness.  But I have to notice that just as our clients are all better than the worst things they've done, so Ms. Lynch is probably nowhere near as noble as the best things she's done.  The judge, as I say, can really only act in individual cases.  Defense counsel can only act in individual cases.  The prosecutor, though, she gets to set (yes, within bounds and with some constraints, but nevertheless) policy.

So Good for Francois Holloway.  And good for it working out.  But he's just one guy.  Of the thousands. And thousands.  

Loretta Lynch could change office policy.  Congress could act.

One can hope.  

Hope, of course, is the thing with feathers.  As, it appears, were the dinosaurs.

A Plea Bargan for the Judge

She cut a deal.  Really, it's a plea bargain.

The Chief Judge of the Court of Criminal Appeals admits she broke the law when she made an oopsie forgot to mention lied on her ethics disclosure reports in 2006 and 2007 by not mentioning some $3.8 million in property and income.  It was as she, who never met a criminal other than herself for whom she had any sympathy, explained when brought up on charges before the Texas Ethics Commission her 80-year-old Daddy's fault. He gave her bunches of property but didn't tell her.  (That doesn't address the income part, but hey, she ignored that before, why not now?

Really, you can't doubt her.  She is, after all, a judge.  And just as Clarence Thomas didn't understand when filling out his disclosure forms that the part where it said to list spouse's income actually meant he was supposed to list his spouse's income (he's a Supreme Court Justice, after all, not a tax accountant so can't be expected to understand complicated terms like that), so Sharon I'll-close-the-courthouse-door-whenever-I-feel-like-it-so-fuck-you-and-your-client Keller didn't know that her millions were, well, her millions.

Sure.

Anyway, back in 2010, the Texas Ethics Commission issued a "final order," found her guilty, and fined her 100 grand for her lies.  Which she promptly appealed because, after all, that's what criminals do after they're convicted it was unfair to hold her responsible and make her pay a fine just because she violated the law.  And so things hummed along until just a couple of weeks ago we learned that she wasn't actually appealing.  She was cutting a deal.  Like any good crook tries to do.

And now it's done.  Here's the guts of the deal:

WHEREAS, KELLER now agrees to pay a fine of $25,000 to TEC to resolve these
reporting violations and accepts the findings by TEC in the Final Order that the foregoing eight omissions from her Personal Financial Statements for 2006 and 2007 constituted reporting violations of Chapter 572 of the Texas Government Code.

(I'd post the settlement agreement here, but scribd and my computer seem no longer to be on speaking terms, so you just get a link.  Here.)
Grits offered this headline.

Sharon Keller ethics fine whittled down by 75%

And he explained

The income Keller failed to report in 2007 alone is nearly as much as she made for her job as a judge, which makes it difficult to accept the claim that the omissions were an oversight. If asked your income on a sworn document, would you be likely to forget nine sources of income totaling in the six figures?

Texas, it's worth pointing out, has executed something like 300 people since Keller became Chief Judge.  Her court could have stopped any of those executions.  It didn't.  The folks had been found guilty.  No deals for them.

That $100,000 fine would have been the largest the TEC ever issued.  The $25,000 one is still among the highest ever. But something of a drop in the bucket to Keller.  Who wrote a check.

Meanwhile, Duane Buck waits to see in her court will grant him any relief.  As do the others.

Rehabilitation Isn't an Empty Word

The last post was about the prosecutor who's bound and determined to keep Doug Pride in prison for a murder he didn't commit.

Year after year she argued that he shouldn't be allowed to test the evidence that could prove him innocent.  After the Ohio Supreme Court agreed to hear the case and ruled in Pride's favor she still managed to drag it out.  But ultimately, the testing was done.  Not him.

And not good enough for the prosecutor.  After all, the jury said he was guilty.  Why should it matter that they were wrong?  Just because the evidence proves it? Because the science makes it clear?  So what if the jury didn't know?  What difference should that make?

Sigh.

It doesn't have to be that way.

I've written about prosecutors doing the right thing before.  Most recently, there was Gary van Brocklin who put Jeff Eley on death row and then, with a powerful letter in the Columbus Dispatch, helped convince Governor Kasich to override the Parole Board's recommendation and grant him clemency.*

Then there was AUSA Jesse Barrett who looked at the evidence, determined that he'd charged an innocent man with a crime, and promptly moved to have the charges dismissed.

And Nicole Habersang who tried, with less than raging success, to dismiss the charges against Virgil Richardson because they were bullshit but the judge said that the interests of justice required the  continued prosecution of a man the state believed innocent.

And there were the prosecutors in Pinal and Yavapai Counties who bravely (really, I mean that) condemned Joe 'n' Andy's abuse of power in Maricopa.

And really, there are others.  Lots in the scheme of things.  For instance, there's John Piasecki and Derek Champagne from Franklin County, New York.

It was Piasecki who prosecuted Noah Lazore in 1976.  John Caher gave some details in the New York Law Journal just over a week ago.

Records show that Lazore, a Mohawk Indian, committed a grisly throat-slashing/multiple stabbing murder during a robbery at Akwesasne, a reservation in Northern New York and southern Canada, where both he and his 69-year-old victim lived.
Lazore pleaded guilty to second-degree murder and then-Franklin County Judge Ellsworth Lawrence imposed a sentence of 20 years to life, five years less than the maximum. The defendant had no prior felony conviction and was a 16-year-old high school dropout and alcoholic who had largely been raised by an older sister until she was killed by a drunken driver, records show.

Lazore was first eligible for parole in 1996.  Denied.  Denied again in 1998, 2000, 2002, 2004, 2006, 2008, and 2010.  Really, it's not surprising.  Vicious killers don't routinely get released, regardless of what the public believes.

But Lazore's an interesting case.  He got his GED while in prison.  And two associate's degrees.  And a BA with honors.  He has a spotty institutional record if you look at all 36 years he's been in prison, but he's not been in any trouble since 2007, and that time his punishment for the infraction was suspended. He's successfully completed programs in substance abuse and aggression control and has learned several trades.  A required risk analysis shows him 

at low risk of felony violence, arrest and absconding.

Sure.

But he's a vicious killer.

Which brings me back to Piasecki.  See, in 2002 - and every two years since - the guy who put Lazore in prison for life has written the Parole Board urging his release.  Caher again.

Piasecki started supporting Lazore's parole bid in 2002, when he sent a letter to the board saying it is "evident that Mr. Lazore has used his period of incarceration as productively as could possibly be done."
He noted in a letter to the board that at the time of the crime the inmate was "16 years of age, clearly immature, with a history of substance abuse who grew up in a reservation environment which at the time was on the lower end of the Third World."
Every two years, Piasecki sends a letter to the parole board urging Lazore's release. And every two years, he is rejected.
Piasecki can't figure it out.
"The guy has paid his debt to society," Piasecki who now has a private practice in Malone, said in an interview. He said he has no idea why Lazore has repeatedly been denied parole.
In his most recent letter on Lazore's behalf, Piasecki noted that the Akwesasne community is "ready, willing and able to receive Noah Lazore and to integrate him" into the reservation society.
Piasecki said Lazore can be an asset to his American Indian community, offering "the benefits of his experience to discourage vulnerable individuals from pursuing activity outside the boundaries of the law by providing active, affirmative guidance and counseling."

Somehow, when the parole panel looked at Lazore in 2010 . . .  well, here's the interview and decision, though you can skip ahead if you like to where I quote the bottom line.

Noah Lazore 2010 interview & decision

After a careful review of your record, your personal interview, and due deiberation, it is the determination of this Panel that if released at this time there is a reasonable probability that you would not live at liberty without violating the law, and your release at this time is incompatible with the welfare and safety of the community and will so deprecate the seriousness of the crime as to undermine respect for the law.

Oh.

This year, there was another letter.  Derek Champagne has been Franklin County District Attorney for 14 years.  Caher:

"I pulled the file," Champagne said. "I went through the whole file. I had my staff look at the file. We went through everything we have from the commission of the crime. It was a brutal crime, but so much has been developed and so much information has come out about the [adolescent brain]. He has gotten every degree and done every single thing he can. I was convinced that perhaps he is an appropriate candidate to be paroled into the community, to give him a chance."
In a letter to the parole board, Champagne cited "Lazore's significant academic, vocational and therapeutic successes."

There were only two people on the panel that interviewed in July this year, and they couldn't agree about what to do with him.  So there's no decision, just a transcript of the interview.

Noah Lazore 2012 interview & decision

In New York, a tie means a do-over. So on July 31, a full panel interviewed Lazore again.  And voted 2-1 to grant parole.  The interview and decision doesn't seem to be on-line yet, but Caher has the news.

After a two-commissioner panel split last month on whether to release Lazore, he was granted a new interview on July 31 before commissioners Ellen Alexander, Christina Hernandez and Michael Hagler. Alexander and Hernandez voted for release and Hagler dissented in a determination released yesterday. Lazore is slated for release once officials conduct a field investigation and approve a place for him to live. Lazore, a Mohawk Indian who committed the crime when he was 16, has expressed an intent to return to the Akwesasne reservation in northern New York/southern Canada.

Let's give credit, a lot of credit, to Piasecki and Champagne.  They didn't have to do it.  They chose to.

Not because he's innocent, not because they made a mistake back in '76.  He's not.  Piasecki didn't.

No, it's because at 53 Noah Lazore isn't the same person he was at 16. Because he took all those classes and did all that work. Because he's an honors graduate of the State University of New York at New Palz. 

And because, dammit, it was the right thing for a present and a former prosecutor to do.  You know, act with integrity.  Seek justice (whatever it might be).

Good for them.

Wanna come to Ohio, guys?

Oh, and Noah, good luck!

-----------------

*Thinking about it now, I was less charitable to van Brocklin than I should have been.  Yes, it would have been better had he not gone after Eley as he did.  But he had the integrity and strength of character to reconsider, and then he took a strong stand.  Good for him.

Epiphany

When my love swears that she is made of truth,
I do believe her though I know she lies.

 

Who'da thunk it?

Cops lie.

Under oath.

On the witness stand.

They lie to judges at motion hearings. They lie to juries at trials. They lie in depositions.

Really, they do.

Not all of them, and not all the time.  But enough of them.  More than enough, really, since even one lying cop on even one occasion is too many.

This is news to absolutely nobody who pays attention.

There is, after all, a reason the word testilying was coined and then made it into general circulation among those who practice in the criminal courts.

Now, if you couldn't figure out the reasons yourself, Brian D. Fitch is ready with the explanation: It's because they can rationalize it away.  Fitch has the credentials to explain.  He is, after all, a Ph.D. psychologist and also a lieutenant with the LA County Sheriff's Deparatment.  He hangs out professionally with cops who lie.

The solution, Fitch says, is serious ethics training, a clear ethics policy, and a system of rewards and punishments.  All this needs to be done in a "safe, supportive environment."  That way, over time, police will come to embrace honesty and to rat out the ones who lies and cheat.  Fitch even says that there's evidence this will work.

Sure.

Scott Greenfield is less than enthusiastic.

While I'm as much of a fan of empirical evidence as the next guy, I have to wonder why teaching police officer that it's wrong to lie demands rigorous training in a "safe, supportive environment." What's wrong with smacking them across the face with "don't lie"? But then, I'm no psychologist, and likely not as supportive of the difficulties of being a good cop as Fitch.

See, there are grey areas, borderline cases. 

What, exactly, is my obligation when my client tells me in confidence covered by the attorney-client privilege that the guy who's being executed next week is innocent of the killing and my client knows that because he's the one who did it?  Legal ethics point one way, morality maybe another.  Lawyers actually deal with that sort of issue.

The highway patrolman has to decide whether to stop the guy on the expressway who's careening wildly from lane to lane but close to the speed limit or the one who's driving 110 but sticking to his lane.

The doctor has to figure out exactly how to balance the need to give an honest assessment or risk with the need to provide some honest hope to the maybe, but maybe not, terminal patient.

I mean, sure, there are tough calls around the margins.

And then there's lying. And beating the shit out of someone because he didn't jump high enough or fast enough or mouthed off a little bit.

If you need training in those, it's hopeless.

And then there's Robert Fulghum's point.

And the larger point which is that if you didn't get those basic rules, you have no business being a cop.

I wasn't going to write about this because, really, it's kind of self evident.

Except, of course, that it's not.

I mean the rules are clear enough. Act with integrity. Don't lie. Don't cheat. Don't beat the shit out of people for fun.  But somehow we, too many of us, come to excuse it.

Judges know that cops lie on the witness stand.  They're as familiar with testilying as we at the defense table are.  But, for the most part, they choose to believe. Not just to give cops the benefit of the doubt, but to actually believe things they know are lies.

Except sometimes things happen.

The lie is too much and the judge just won't buy it.

Forty years ago this month, some burglars left a piece of tape on a door latch where it caught the eye of a security guard. In time, it brought down the President.

Last night, after 8,019 games, after a number of almosts, Johann Santana pitched the first no-hitter in New York Mets history.

Which is one reason we keep doing this work.

Oh, here's all of Shakespeare's Sonnet 138.

When my love swears that she is made of truth,
I do believe her though I know she lies,
That she might think me some untutored youth,
Unlearned in the world's false subtleties.
Thus vainly thinking that she thinks me young,
Although she knows my days are past the best,
Simply I credit her false-speaking tongue:
On both sides thus is simple truth suppressed:
But wherefore says she not she is unjust?
And wherefore say not I that I am old?
O! love's best habit is in seeming trust,
And age in love, loves not to have years told:
   Therefore I lie with her, and she with me,
   And in our faults by lies we flattered be.

h/t Greenfield who got the link to Fitch, well here's his summary.

Via Radley Balko and Pete Eyre, by way of an interesting post by Howard Friedman at CopBlock. Whew.

Calphurnia

Back on December 22, I wrote a post about image and the appearance of propriety and . . . aw, hell.  It was one of those discursive things that covered about fourteen subjects and ended up nowhere near where it seemed to begin and if you want to read it, here's the link.  It's not really relevant here except as how it's part of the genesis of this post.

What got me going then was the story of David Ferrante, formerly Sergeant David Ferrante of the police department in Parma, Ohio.  Ferrante, it was said, was color blind and back in 1994 cheated on the color identification test so that he'd be able to get a job with the Parma PD.  Sixteen years later, they found out, he allegedly confessed and he resigned.  Then he was charged the criminal offenses of tampering with records and with falsification.  The post wasn't about Ferrante.  His story, or more precisely the versions of it that I picked up from a couple of news feeds, were just the jumping off place for, like I say, one of these discursive, spin-it-out-and-see-where-it-goes things I write some of the time.

There was one weird comment that felt like spam but linked to so unlikely a web page I decided to leave it alone.  And Lee Stonum added his own almost surreal comment.  And so it sat there, the post did, for the past three weeks or so.

And then, this evening, I got an e-mail from David Ferrante, formerly of the Parma PD.

E-mails aren't exactly like comments.  Because this was directed personally to me, I don't think it's appropriate to go altogether public and start quoting it and all.  But I do need to try and give a hint of what he wrote - and he does caption the e-mail "My Press Release," so he seems to be at least somewhat open to my reporting on it.

Anyway, his pitch is something like this:

• I'm not actually color blind, but my color perception is deficient.
• I'm altogether capable of doing the work of a police officer.
• Color deficiency of the sort I have is a disability of the sort that is (or at least should be) covered by the Americans with Disabilities Act, and Parma's policy is illegal in light of that act.
• I ultimately got in trouble not because of my disability but because I wrote a book critical of the way police abuse their power.  Essentially, it was retaliation.

All of that may be true.  Whether color-perception deficiency is or should be a disability recognized by the ADA may be an interesting question for disability-lawyers and employment lawyers and the folks who work in HR departments.  I'm not such a person.   And, frankly, none of that is even marginally relevant to the post I put up on December 22.

What interested me about Ferrante's story is not that he is (or is not) color blind and is (or is not) capable of being a competent police officer regardless.  The only things about him, his story, his situation that interested me were:

• He confessed to cheating to become a Parma cop.
• He trained young officers.
• He wrote a book about police ethics.
• He apparently said (or at least the book blurb says in part), 
• Image is everything in law enforcement!

But now we have this other thing.  Sort of a meta-comment.  Which cries out for this response.

I don't give a rat's ass about his disability or deficiency or whatever.  But I'm seriously troubled by the fact that he never addresses in the e-mail the allegation (to which he apparently confessed, though I'm not so naive as to just blithely assume that makes the allegation true) that he cheated.*

Because, see, here's the question.

Assuming everything he says about his color perception is true, assuming that it's trivia, that it doesn't interfere with his ability to do the job, assuming that Parma's requirements are illegal and that he should never have been required to take a color perception test in the first place, assuming all that, so what?
Does that make cheating on the test OK?

Because I spend a lot of pretty fair chunk of my professional time dealing with the fallout from acts that people committed that they think didn't really harm anyone and the prohibition is just silly anyway, and who really cares, but sure, they made a mistake.  And I don't generally find that the cops are particularly sympathetic.  Nor, frankly, are the prosecutors.  Or the courts.

And there's that old adage about Caesar's wife needing to be above reproach.  Because there are those from whom we demand more.  Lawyers.  And judges.  And elected officials.  And cops.

And when you get right down to it, that's four categories of folks who seem to have a pretty high sense of entitlement.  And feel that their little ooopsies shouldn't count.

And they're wrong.






-----------------------
*That's not exactly correct, he says that he, and I guess I do have to quote here, "made a mistake."  But that hardly gets to the core issue. 

Questions for the General

We're down to the wire. The hearings begin in the morning.

Generalissima Kagan told us 15 years ago that confirmation hearings for Supreme Court justices should have substance. The senators should demand, and the nominees should provide, actual substantive answers on matters jurisprudential. The candidates should be, er, candid.  Don't hold your breath.

It seems a safe bet (though until it happens, it's only a bet) that she will disavow and dissemble. 

As Adam Liptak reports in the Times, William Rehnquist made the same point as Kagan in the Harvard Law Record in 1959.  Twelve years later, as a candidate for the Court facing questions from the Senate Judiciary Committee, he rejected his prior view.  Senator Phil Hart asked him if he had reconsidered what he wrote in that article.  Clearly, he had.

I think I did not fully appreciate the difficulty of the position that the nominee is in.

So there it is.  And so it is likely to be with the Generalissima.

And yet, one wishes.  (One might hope, but that seems too naive.)

Norm Pattis provides a set of questions he'd like the Senators to ask Kagan.  They cover her work as a trial lawyer (oops, there is none) and call for her views on specific cases that the Court has decided (oops, she won't have any or she'll keep them secret or they'll be so trivial that she might as well either not have them or keep them secret) and ask how Supreme Court justices should actually go about deciding things (oops, they don't decide things, they just recognize a ball or a strike or what Madison or Hamilton [which one depends on your view of the issue] would have said or voilà).

Then, as a counterpoint to her (presumed) avoidance of answers, Norm reports that Gerry Darrow promises to do more.

I'm looking forward to tomorrow. But I'll bet Kagan isn't. She locked up somewhere studying how to talk and not say anything. Haven't we had enough of that? I'd say we need a little frank talk for a change.

Meanwhile, indulging his own fantasy of substantive hearings, Doug Berman offers his own wish list.

Here are a half-dozen of the hundreds of criminal justice questions I would love to see asked of Kagan in light of some of the Supreme Court's recent criminal justice jurisprudence and her recent work as Solicitor General:

1.  Do you think the Supreme Court could and should take and decide more cases on the merits, and do you think it would be especially appropriate to take up more criminal justice issues?
2.   Do you think it is useful and appropriate for the Court to decide a significant number of criminal justice cases through summary disposition without full briefing and argument (as the Roberts Court has tended to do in recent terms)?
3.   Do you think criminal justice administration should be primarily the responsibility of the states and/or do you have concerns about the ever-growing size of the federal criminal justice system?
4.  What are your current views of the pros and cons of the modern exclusionary rule?
5.  What are your current views of the pros and cons of the modern death penalty?
6.   What are your current views of the pros and cons of the advisory federal sentencing system created by the Supreme Court through its Booker ruling?

Of course, his is as much fantasy as Norm's.  Even if he could get senators to ask, General K won't answer. 

Still, it's a fair parlor game. 

Herewith (thought I'd try sounding legal):

1. If it is not proper for you as a candidate for the Court to say whether you believe a recent decision of the Court was correct because you might be called upon to opine on a similar issue if confirmed, why is it proper for a judge or justice who voted in the prior case to sit on the future one?
2. Too obscure?  OK.  Justice Scalia has indicated that the Constitution is not offended by the execution of a factually innocent person assuming the person has had sufficient, albeit ultimately unavailing, procedural protections.  Do you agree or disagree?  Well, if you won't say, because the question might come before the court and it would be improper for you to have suggested how you'd answer, then isn't it also improper for Justice Scalia to sit on that case?  And also for Justice Ginsburg, who disagreed with him?
3. So then, was the Court right or wrong when it decided Citizens United?  Would you vote to overrule it?  Why or why not?
4. While you're answering that question, explain in detail how a justice should properly decide whether to overrule a precedent?  Give specific examples of how the Court decided properly and how it decided improperly.
5. This term, the Court held that when a lawyer is super-duper-grossly negligent in missing a filing deadline for a habeas corpus petition and the client acted with mega-diligence to prevent that and then to file his own pro se petition, it might be possible to excuse the delay and the client may still seek habeas relief.  But, the court said, there's no excuse for the delay and the can't can't seek relief if the lawyer was just negligent.  Can that possibly be right?  Why or why not?
6. Should we take as the basic presumption that people have the right to sue to enforce statutory and constitutional guarantees unless a proscription of the individual right to sue is absolutely clear or should we presume that individual have no right to sue unless it is absolutely clear that they may sue to enforce their rights?
7. On what legitimate basis, if any, should we afford absolute civil immunity to any government official for actions which are illegal or unconstitutional?  On what legitimate basis, if any, should we afford qualified civil immunity to any government official for actions which are illegal or unconstitutional?  If such immunity is improper, would you vote to reverse the decisions that allow it?
8. Is the Bill of Rights a contract to be narrowly construed or a guidepost to be understood expansively?
9. How much wood would a woodchuck chuck if a woodchuck could chuck wood?  Why are you more likely to try answering that question than any of the others?

Senators, the floor is yours. 

Overwhelmed By the News Cycle

I was going to do an Ohio update.

* * * * * * *

We have a government murder scheduled for Thursday morning.  Michael Beuke is due to be poisioned.  If there's a problem with the thiopentol (the anesthetic that's the basic killing method here now), then they go to Plan B.  But Plan B is problematic for Beuke, as Andrew Welsh-Huggins reported for the AP.

Beuke says a barbiturate he takes for a seizure disorder could limit the effectiveness of midazolam, the first drug called for in the backup method which injects drugs into muscle.

Of course, nobody's ever used the back-up plan, so if it does get used - whether on Beuke or someone else - Ohio will be conducting human experiments in murder.

There'll be a hearing in Beuke's case Monday afternoon in Columbus.

Joseph Mengele's ghost will be watching.

* * * * * * *

Former Ohio Attorney General Marc Dann entered Alford pleas on Friday to a pair of ethics violations.  The claim is that he illegally funneled campaign and office transition funds to staffers.  He was fined $1,000 and ordered to do 500 hours of community service.

Dann was in office just briefly, forced to resign after stories of sexual harassment and frat party behavior by Dann and his staff.  There's really not much to it.  Hubris, immaturity, foolishness.  He and his pals were little more than an additional embarrassment to a state who's prior governor paid $4,000 in fines as a result of his admission of ethics violations.  

Maybe that's why the plea got so little coverage in the media.  But it should have gotten more.  Government corruption takes many forms.  There's the great and the petty.  Dann's was petty, small potatoes.  But the Attorney General is the chief law enforcement officer of the state.  Corruption there is never minor, should never be seen as trivial.

If the Rule of Law (one of the themes of this blawg, it seems) is to be meaningful, it has to be top down.  And, frankly, ethics violations by government officials are more troubling than the slap-on-the-wrist sentences they typically draw.

* * * * * * *

Anthony Sowell's alleged home, the place where they supposedly found all those bodies, is the subject of the latest litigation in his case.  Sowell, you'll recall, is facing 85 counts derived from the discovery, it is alleged, of 11 bodies of raped and murdered women in his home.  We learned a couple of weeks ago that Judge Saffold had been removed from the case.  On Thursday, newly assigned judge Dick Ambrose had his first hearing in the case.

He rescheduled the trial, which was pretty much a given.  He's taken under advisement the request to issue a gag order.  But as I said, Sowell's home is the focus of the most interesting jockeying.  Karen Farkas from the Plain Dealer explained.

The judge also did not rule on a request to reduce protection of Sowell's home, which was filed by assistant county prosecutors Richard Bombik and Pinkey Carr.

The prosecutors said a fence costing more than $15,000 was put up around the home after Sowell was arrested and the Cleveland Police and Cuyahoga County Sheriff's Department are sharing a 24/7 detail outside the house. They would like to modify that to nighttime hours.

Sims said after the hearing the house needs to be protected because of threats to burn it down. 

Cleveland's broke, which could help focus the decision.  It wouldn't be the first time that fair trial stumbled over finances.

* * * * * * *

Like I say, I wanted to write about Ohio.  But then Obama decided that he needed to jump into the Miranda fray.  And then we learned that the rumors are true and Elena Kagan is to be nominated to the Supreme Court in the morning.

Kagan is, by all accounts, smart.  She's likely to get confirmed without too much trouble.  And she's never been on the bench, which is a nice change of pace.  She's also, alas, yet another creature of the east coast educational elite who's never represented real people.  No surprise there, of course.

The last Justice who'd ever practiced what a friend used to describe as "little guy law" was Thurgood Marshall.  Representing the little guy is not, after all, its own reward.

On Saturday, the New York Times got together 10 prominent and formally diverse (woman, Asian, gay, veteran, immigrant) voices to advance their theory of the sort of person who should be appointed to the the Supreme Court.  As Orin Kerr pointed out at The Volokh Conspiracy yesterday, many of these folks demonstrate the point that

when someone makes an argument that a President should select a Supreme Court nominee with a particular experience or worldview, there is a very highly likelihood that the person making the recommendation has that exact experience or worldview.

That much said, Norm Pattis, trial lawyer, has led the blawgosphere demands of a trial lawyer for the court.  I happily seconded the notion, though with not even a hint of expectation it would happen.  Presidents in general, and Obama in particular, may make appointments for diversity, but it's diversity aimed at satisfying interest groups, not at fundamentally changing the game.  Norm's Gerry Darrow was never going to be appointed.  Oh, sure, Obama wouldn't want the fight that would go with the appointment.  More to the point, though, he has no interest in rocking boats.

His "change" was to be one of style, manner (and of course pigmentation and backstory).  To think that it was going to be systemically revolutionary?  Nah.

You say you want a revolution?  (We all want to change the world.)  Think populism.  Think tea party.  Then imagine Sarah Palin for the Court.

Of Kagan?  Apparently a moderate liberal.  No serious concern for civil liberties.  No serious concern for checking the power of the executive.  How do we know?  Not from her speeches or law review articles and not from her filings as Solicitor General.  We know because if she were a firebrand with ideas and commitments outside the institutional mainstream, if she were genuinely interested in the little guy as more than an academic construct, if she were something other than a smart, establishment, lawyer with an ivy league (or equivalent) background, she would have been dangerous.

The one thing nobody in power wants to put on the Court, is someone dangerous.  And we define "dangerous" in this context as "someone who doesn't think - at least in broad terms - the way the power elite do.  And we measure that by searching for someone like us - or like those of our base we want to placate.

Elena Kagan.  You get what you elected.  And you shouldn't have expected anything else.

* * * * * * *

Which brings us to the final piece of the news.  Here's the beginning of the story from the Times.

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights.

I haven't weighed in on the debate over whether interrogators properly decided they should read Faisal Shahzad his Miranda warnings after several hours of interrogation.  Obviously, the warnings didn't stop him from talking.  Equally obviously, it seemed to me, they should have read him his rights - if they wanted to use his words against him in court.

I don't know how many times clients have explained to me that they can't be prosecuted because they weren't read their rights.  Were you interrogated?  I ask.  They never asked me nothing.  Then so what?  They don't get it.  

Doesn't every cop on TV have to read a Miranda card immediately upon arresting someone?  Sure.   But it's a literary trope.  Let me be clear.  Miranda is a constitutional requirement only for a person (1) in custody (courts find almost nobody to be in custody for Miranda purposes, but we're talking judicial theory here, not judicial practice), (2) being interrogated, and (3) from whom the authorities hope to get a statement that they will use at trial.

The law does not require Miranda before questioning in non-custodial settings.  The law does not require Miranda when there is no interrogation.  And most emphatically, the law does not prohibit custodial interrogation without Miranda warnings.  All it says is that statements made during such interrogation cannot be used at trial (with certain exceptions).  And, of course, even that rule doesn't apply when the "public safety exception" of New York v. Quarles comes into play.

And yet.

Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

He said interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions. 

Please.  No, they really don't.  Not unless we're talking about exceptions to the quasi-policy against waterboarding. 

And, frankly, as Orin Kerr explains, it's very far from clear that Congress can make any such exceptions and have them survive constitutional muster (not that such niceties seem to be much of a concern to either Presidents or Congress).

As I suggested above, those who believed Obama had any interest in change that was actually revolutionary, were delusional.  (I only suggested that above; I'm saying it now.)  One had hoped, though, that he was not so much interested in leading from the rear.

This Data Will Self-Destruct - NOT

Michael Seringhaus wants your DNA.
OK, that's not true.  What he actually wants, and he explains it in an op-ed in today's NYTimes, is for the government to collect a sample of your DNA (and mine, and everyone else's), run a profile, store the profile, and destroy the sample.  The complete national database would, he asserts

• invade nobody's privacy because it would provide no meaningful personal information;
• be completely secure because we'd all have a stake in that security;
• be a wonderful tool for identifying criminals and exonerating the innocent;
• deter first-time criminals since they'd surely get caught.

WOW.  What a great idea.
Scott Greenfield's wary, but worries that if Seringhaus is right that DNA profiles are based exclusively on junk DNA that reveals nothing, there's no clear and specific reason to oppose the plan.

My problem is that if Seringhaus is correct, then my arguments against the creation of a nationwide DNA database fail.  Sure, there's the genetic Big Brother position, but we've already lost that battle with social security numbers and the wealth of other information we regularly provide the government about ourselves in order to keep the monster well fed and happy.

There is no right to commit a crime and demand that the government not be able to identify the criminal.  We leave our DNA all over the place, so it's not like we're giving up some deep, dark, personal secret.  If the information in the government's hands does no more than provide a basis for personal identification, without giving up the private aspects of our being contained in our DNA, then I'm having some difficulty in finding a decent argument against this.  It's not that I'm for it, but in arguing against it, am I shooting blanks?

This doesn't alter the flaws that otherwise exist with DNA identification, from partial or decayed DNA to the grossly exaggerated claims of one in a trillion chance of it being wrong when the real number is more like one in twelve.  But these, as courts love to say, go to weight and sufficiency.

It's one thing to leave your DNA around.  That's a function of being alive.  It's something else, quite a different something, for the government to collect and analyze and store your DNA.
I've heard the same statement made: That they sequence only junk DNA that tells nothing about the person, and that they won't retain the samples but only the junk profile.  I've also heard that Social Security Numbers were to be used only for purposes of Social Security.  That's what legislation originally said.  Look around.
So let me offer a couple of thoughts, in no particular order.

• Data collected by the government will eventually be used/misused for purposes other than those for which is was collected.
• Any certainty that there's nothing personally meaningful in what we now believe to be junk DNA (if there actually is such certainty in the scientific community) is based entirely on current understanding. Who knows what will be discovered next week, or next year, or next decade? Don't believe that what scientists can figure out today is also what they'll be able to figure out in the future.
• DNA testing isn't as simple and straightforward as we'd like to believe. Nor is DNA matching as precise as popular culture and belief tells us; the database will be less useful (not useless, but less useful) than Seringhaus would have us believe;
• As anyone who's spent much time around criminals can tell you, it's virtual fantasy to believe that the existence of the database would serve as a deterrent to crime;
• Even more fantastic is the belief that the DNA samples themselves will be - always and ever - destroyed as soon as the profiles are compiled; some, at least, will be kept - at first through either malfeasance or negligence or incompetence; eventually, the law will be changed so that all will be kept;
• Sooner or later, those samples that are kept, or some of them, will be lost/stolen/or sold to the highest bidder.

It may very well be that what Seringhaus advocates will come to pass.  It may be that the train can't be stopped.  But it's a runaway train and we need to provide what braking power we can.
Ronald Reagan told us to "trust but verify."  He also told us that the most dangerous words in the language were "I'm from the government and I'm here to help." 
In fact, the far more dangerous words are: "I'm from the government so you know you can trust me."

This Is Still America - Sometimes

It was riveting television.

Richard Nixon, President of the United States, shaking his jowels and intoning the famous words one should never actually say, even if they're true, because the mocking will know no bounds:

I'm not a crook.

Now, with special thanks to Jonathan Turley and Paul Kennedy, we have the words of the estimable Keith Bardwell, justice of the peace for the 8th Ward in Louisiana's Tangipahoa Parish:

I am not a racist.

Of course, backing up these sorts of claims is different than making them. For Nixon, there was that whole messy obstruction of justice thing. And the authorization of illegal spying. And the illegal bombing of Campbodia. And, aw, you get the point. For Bardwell, there's that pesky refusal to give marriage licenses to interracial couples.

But there's always the defense. For Nixon:

When the president does it, that means that it is not illegal.

For Bardwell:

"I'm not a racist. I just don't believe in mixing the races that way," Bardwell told the Associated Press on Thursday. "I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else."

You fill your home, you give people the key to your bathroom (I'm assuming maybe a special one for the "coloreds"), piles of them, piles and piles. And look at the grief you get just because you violate the rights of a few interracial couples. But for the best of motives: It will be hard on the kids.

Bardwell said he has discussed the topic with blacks and whites, along with witnessing some interracial marriages. He came to the conclusion that most of black society does not readily accept offspring of such relationships, and neither does white society, he said.

"There is a problem with both groups accepting a child from such a marriage," Bardwell said. "I think those children suffer and I won't help put them through it."

What a softy. The children must not be conceived (at least not in wedlock) because life will be hard for them - at least among his circle of friends.

Justice of the Morals Bardwell may believe he's doing God's work when he tries to stop those mixed race children from being born. He probably does believe he's not a racist and that all those black folks he has over to use the bathroom prove it. It doesn't matter. The rules count, and one of those rules is the Equal Protection Clause of the Constitution, right there in the 14th Amendment. Another of those rules, premised on the Equal Protection Clause, was set forth in the aptly named Supreme Court case Loving v. Virginia.

Mildred and Richard Loving (she African American, he white) were married in D.C., then moved to Virginia. They were charged and convicted of violating the state's ban on interracial marriage. When their case made it to the Supreme Court, Chief Justice Warren writing for the Court explained the simple rule:

There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

That was 1967.

Of course, Bardwell and the morals police aren't alone in thinking the rules don't apply. So it's a pleasure to find that sometimes they do.

From Russ Bensing at The Briefcase comes the news that Ohio's 8th District Court of Appeals affirmed a suppression motion in State v. Johnson last week. That happens a lot in the 8th where the combination of a bench that believes in the Fourth Amendment and police departments that don't result in a lot of bad searches and seizures getting thrown out. In Johnson, the court explained that

merely because appellee was in a car parked in an area where several people were loitering on a sidewalk does not give the state justification to search appellee or the car he was occupying.

Yep. Good call. Better, Russ tells us, is what the trial judge had said. His entire written opinion explaining why the motion to suppress would be granted, and from which I took the title of this post, reads:

This is still America. Motion granted.

Amen.

Clap if you believe in fairies

Ronald Reagan used to say that the scariest words in the language were

I'm from the government, and I'm here to help you.

It was a good line, but I never bought it. What I've been saying for some years now is that the scariest words are actually

Trust us; we won't abuse the power.

There are so many contexts.

There's the PATRIOT Act which was going to protect us from terrorism and nothing but, and we could trust them on that. (Congress had routinely refused to grant the same powers of the years when proposed for law enforcement purposes.) Turns out, it's routinely used for everyday law enforcement. And, of course, the Senate Judiciary Committee just approved renewal - absent civil liberties protections, but that's OK, because we can trust them.

There's that law designed to prohibit crush films that does much more but don't worry, we can trust them. Still Robert Stevens was sentenced to 37 months in prison for selling films showing dog fighting - fights which were perfectly legal where they were filmed.

And here in Ohio, there's the Department of Rehabilitation and Correction's specious claim, completely belied by the evidence, that they are more than capable of doing lethal injections properly. The director of the Department, you see, is "fully supportive of the execution team and the current protocols." Trust them.

And so, I'm just not comforted.

If you've been following the news, last week the Federal Trade Commission announced that bloggers who endorse (by which they mean mention positively or negatively, it seems) products they've gotten for free can be fined up to $11,000 per endorsement if they don't mention that they got some remuneration - say the product. I'm not talking paid shills here. I'm talking ordinary bloggers who get, say, a book from a publisher in the hope they'll review it. Apparently that happens with some frequency.


[Not to me, though. In the months I've been doing this not one publisher or author, or Lexus dealer, for that matter, has offered me a free anything - let alone just mailed in books (or luxury sedans) in the hope that I'd write about them. But, honest, if you send them I will write - at least until I'm overwhelmed. Let me be clear. The one book I've reviewed here I'd taken out of the public library - and returned on time.]

Anyway, there was much concern since the rule is self-evidently silly applied to the occasional book review by a blawger and since the rule is also thoroughly ambiguous about just how ostentatious the notice of having gotten a free copy had to be.

Not to worry. They don't mean to use it against blawggers. That reassurance comes from Mary Engle, associate director for advertising practices at the FTC's Bureau of Consumer Protection.

"We are not going to be patrolling the blogosphere," she said. "We are not planning on investigating individual bloggers."

Whew. I feel better already. Unfortunately, there's more.

Engle did acknowledge a substantial gray area when it comes to blogging. If a blogger received an occasional free sample and happened to write something positive, she said, “that’s not something we think would change the expectation of the audience,” and might not require disclosure.

I, for one, am comforted that I "might not" have to disclose. Can't get much clearer than that. Oh, but they don't come after people like me.

[S]he said the agency has “never brought a case against an individual consumer endorser.” Nor will the FTC levy fines for violating the guidelines.

So the individual blogger doesn't need to worry. Unless the FTC decides to act differently.

But wait, they're from the government. I can trust them.