In the MomentCriminal Law and PoliticsBy David Tarrell

Powerful Ad

2008-10-29T12:39:00.001-05:00

I'm testing a new way to post video:

http://link.brightcove.com/services/link/bcpid1185304443/bctid1885474357

Charles Meets Barack

2008-10-28T21:51:00.001-05:00

Saw this at Digby's Blog. Watch it! It's quick and good.

Sarah Palin and Alaskan Independence Party (AIP)

2008-10-07T21:56:00.001-05:00

Hear Gov. Palin welcome attendees to the 2008 Alaska Independence Party gathering.

Ending This Blog - Starting Another

2008-03-12T21:52:00.001-05:00

I've always felt a little uneasy blogging under this address, as it probably looks like I'm calling myself a "TLC Warrior" from the title. In truth, I created this address for the purpose of turning TLC list serve arguments into discussions, as a lot of people complained about having to sort through 50 email messages a day that were from people arguing over politics or passing along news. I thought a blog was a much better way to deal with this, but it didn't pan out.

I also felt a little funny about using the "TLC" name, as I didn't ask permission and just thought the address would be easy for people to remember, hoping that it would turn from "my" blog into "our" blog as people got used to it.

But it didn't happen, so I created a new blog. Come check it out.

http://nelawyer.blogspot.com/

Nullifying the War on Drugs- Updated

2008-03-06T10:25:00.003-06:00

A couple weeks ago, I attended a graduation ceremony for a new drug court program for parents who have been charged with child neglect. The new program meets weekly, so the judge gets to know the participants well, and sanctions or rewards them quickly if they're either messing up or doing great. Of the participants, more than half were former clients from my days in the Public Defender's Office, so I got to see how the people I helped get into drug court were doing.

The results were stunning. A person who was graduating, whom I met for the first time in jail, and who was on the verge of losing his parental rights when he entered drug court, was doing well enough now to graduate and return to his family's home. I was helping another person enter drug court that day and it was great to see a former client, doing well, have all kinds of great advice to a current one. It reminded me of the AA principle of "one alcoholic to another" as I stepped out of the way and allowed a former meth user instruct my current client on the best way to navigate the system to remain both drug and jail free.

It was also nice to see a different approach to dealing with the issues of drug addiction that make up most of my criminal cases. Drug courts, per se, are not the answer as the effectiveness depends on the structure, but, in general, they are a step in the right direction, assuming the bad elements of the old punishment-based system don't creep in and destroy the unique elements that make well-structured drug courts work well.

Along those same lines, yesterday Time.com featured an article by the writers of HBO's The Wire. I noticed it for two reasons: first, I subscribed to HBO just yesterday, partially to be able to see series like The Wire and movies like Taxi to the Dark Side, which will be hard to find anywhere else. Second, I flagged the article for the frank way it discusses the drug war. While fictional series like "24" seem to be having a negative influence on public policy, perhaps another fictional series can affect the drug war debate positively by demonstrating realities that politicians of both parties won't touch. For example, the article states:

Yet this war grinds on, flooding our prisons, devouring resources, turning city neighborhoods into free-fire zones. To what end? State and federal prisons are packed with victims of the drug conflict. A new report by the Pew Center shows that 1 of every 100 adults in the U.S. — and 1 in 15 black men over 18 — is currently incarcerated. That's the world's highest rate of imprisonment.

The drug war has ravaged law enforcement too. In cities where police agencies commit the most resources to arresting their way out of their drug problems, the arrest rates for violent crime — murder, rape, aggravated assault — have declined. In Baltimore, where we set The Wire, drug arrests have skyrocketed over the past three decades, yet in that same span, arrest rates for murder have gone from 80% and 90% to half that. Lost in an unwinnable drug war, a new generation of law officers is no longer capable of investigating crime properly, having learned only to make court pay by grabbing cheap, meaningless drug arrests off the nearest corner.

What the drugs themselves have not destroyed, the warfare against them has. And what once began, perhaps, as a battle against dangerous substances long ago transformed itself into a venal war on our underclass. Since declaring war on drugs nearly 40 years ago, we've been demonizing our most desperate citizens, isolating and incarcerating them and otherwise denying them a role in the American collective. All to no purpose. The prison population doubles and doubles again; the drugs remain.
Our leaders? There aren't any politicians — Democrat or Republican — willing to speak truth on this. Instead, politicians compete to prove themselves more draconian than thou, to embrace America's most profound and enduring policy failure.

The article ends with a proposed solution that I've never argued for but have always wanted to request: jury nullification.

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

Jury nullification is American dissent... If some few episodes of a television entertainment have caused others to reflect on the war zones we have created in our cities and the human beings stranded there, we ask that those people might also consider their conscience. And when the lawyers or the judge or your fellow jurors seek explanation, think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren't fictional.

What do you think?

UPDATE: nebraska law on jury nullification is sparse, but in Nebraska v. Green (1990), 236 Neb. 33 (1991) the Nebr. Supreme Court held that "Although a jury may acquit an accused even if its verdict is contrary to the law and the evidence, the defendant is not entitled to have the jury instructed about the power of jury nullification."

Siegelman Case Update

2008-02-29T12:22:00.005-06:00

I've been reading Naomi Wolf's "The End of America" and last night read how when she initially heard about the U.S. Attorneys Scandal, she predicted, to a friend, that the attorneys replaced would be in swing states, where politically-motivated prosecutions could swing elections. What was scary about her description was that she said she knew this, as she'd been reading about Joseph Goebbels at the time and sensed that Karl Rove was behind this.

But as much as the Siegelman case is being described in horserace terms, the 60 Minutes story featured former Arizona Attorney General Grant Woods, who is both a Republican and godfather to John McCain's children.

But Grant Woods, the former attorney general of Arizona, says the case should never have gone to trial. “The prosecutor's gotta look at it and say, ‘Hey, is this the sort of thing that we're really talking about when we're talking about bribery?’ Because what the public needs to know here is there is no allegation that Don Siegelman ever put one penny in his pocket,” he says.

Richard Scrushy did make donations totaling $500,000 to that education lottery campaign, and after serving on the hospital board under three previous governors, Scrushy was re-appointed by Siegelman.

But Woods says that’s politics, not bribery. “You do a bribery when someone has a real personal benefit. Not, ‘Hey, I would like for you to help out on this project which I think is good for my state.’ If you're going to start indicting people and putting them in prison for that, then you might as well just build nine or ten new federal prisons because that happens everyday in every statehouse, in every city council, and in the Congress of the United States,” he says.

“What you seem to be saying here is that this is analogous to giving a great deal of money to a presidential campaign. And as a result, you become ambassador to Paris,” Pelley remarks.

“Exactly. That's exactly right,” Woods says.

Siegelman was campaigning in the 2006 Democratic primary as he went to trial. “We’re going to turn this bus into what we call the night shift, because after the trial every day we’re gonna be hittin the trail every day,” he said.

But he lost in the primary. After two months, the jury deadlocked twice, then, voted to convict on its third deliberation. Many legal minds were shocked when federal judge Mark Fuller, at sentencing, sent Siegelman directly to prison without allowing the usual 45 days before reporting.

“He had him manacled around his legs like we do with crazed killers. And whisked off to prison just like that. Now what does that tell you? That tells you that this was personal. You would not do that to a former governor,” Woods says.

“Would you do that to any white collar criminal?” Pelley asks.

“No, I haven't seen it done,” Woods says.

“Help me understand something. You're blaming the Republican administration for this prosecution. You're saying it was a political prosecution. You are a Republican. How do I reconcile that?” Pelley asks.

“We're Americans first. And you got to call it as you see it. And you got to stand up for what's right in this country,” Woods says.

Now former Reagan administration official, and obvious Republican, Paul Craig Roberts summarizes the case like this:

The Siegelman case makes it clear exactly what Bush, Rove, and the disgraced Bush flunky, Alberto Gonzales, intended by firing the eight Republican US attorneys. These eight refused to politicize their office by falsely prosecuting Democrats in order to achieve a Rovian political agenda. Apparently, there were only eight honest persons among the 1,200 Republican US attorneys. Bush, Rove, and Gonzales had no problem with the other 1,192.

Former Alabama Supreme Court Justice Terry Butts said that justice in America today is about political agendas, "not about convicting real criminals." Butts said that Siegelman’s attorneys and allies expect reprisals from the US attorney’s office and Alabama’s Republican establishment.

Karl Rove refused to testify about the case before Congress.

On February 25, Fox "News" gave Karl Rove airtime in which to deny the accusations and evidence against him, which he did.

The Department of Justice [sic] refuses to release Siegelman trial documents to Congress.

Siegelman’s family home was broken into.

Siegelman’s attorney’s office was broken into and ransacked.

Jill Simpson’s house was burned down, and her car was run off the road.

This is the way "justice" works in Bush Republican Amerika.

Think about that last line and remember that Roberts is a "a former Assistant Secretary of the US Treasury and former associate editor of the Wall Street Journal, has been reporting shocking cases of prosecutorial abuse for two decades."

Has he changed or have the Neocons taken the Republican party in a direction that's non-conservative, where the Justice Department becomes a tool of Bush's Brain?

60 Minutes Story on Selective Prosecution Blacked Out

2008-02-25T19:17:00.003-06:00

When I heard that 60 Minutes would broadcast a story about former Alabama Democratic governor Bernie Siegelman in which a former GOP campaign worker claims she was asked by Rove to look into whether he was having an affair, I spread the word by emailing the TLC listserve.

The story aired last night but you can find the video here. >

An AP story from yesterday described what the 60 minutes segment would describe:

"A former Republican campaign worker claims that President Bush's top political adviser, Karl Rove, asked her to find evidence that the Democratic governor of Alabama at the time was cheating on his wife...

Jill Simpson, who has long alleged that Rove may have influenced the corruption prosecution of former Gov. Don Siegelman...

Simpson testified to congressional investigators last year that she
overheard conversations among Republicans in 2002 indicating that Rove
was involved in the Justice Department's prosecution of Siegelman."

Governor Siegelman sits in jail in Alabama, but the 60 Minutes story was sure to make voters in Alabama question whether the prosecution was motivated by Justice or by a politicized Department of Justice doing Karl Rove's bidding. So what did most of the voters see?

Nothing.

Strangely enough, "technical difficulties" meant that many viewers in Alabama encountered a service interruption during the broadcast. As Scott Horton writes at No Comment:

I am now hearing from readers all across Northern Alabama—from Decatur to Huntsville and considerably on down—that a mysterious “service interruption” blocked the broadcast of only the Siegelman segment of 60 Minutes this evening. The broadcaster is Channel 19 WHNT, which serves Northern Alabama and Southern Tennessee. This station was noteworthy for its hostility to Siegelman and support for his Republican adversary. The station ran a trailer stating “We apologize that you missed the first segment of 60 Minutes tonight featuring ‘The Prosecution of Don Siegelman.’ It was a technical problem with CBS out of New York.”

But Horton, unlike the viewers in Alabama, was able to check out this story:

I contacted CBS News in New York and was told that “There were no transmission difficulties. The problems were peculiar to Channel 19, which had the signal and had functioning transmitters.” Channel 19 is owned by Oak Hill Capital Partners, who can be contacted through Rhonda Barnat, 212-371-5999 or rb@abmac.com. Oak Hill Partners represents interests of the Bass family, which contribute heavily to the Republican Party. Viewers displeased about the channel’s decision to censor the broadcast should express their views directly to the station management or to the owners.

Strangely enough, when I go to the link from the AP story I referenced yesterday, and quoted above, I read that "the story is no longer available." Why? As Horton states:

Hopefully the Associated Press editors will start paying close attention to the reporting that is moving over the AP wires with a Washington dateline about the Siegelman case. We now have the second straight AP story filled with highly tendentious and misleading statements which are carefully set out to mirror the attack line put out by the Alabama G.O.P., but using the wireservice’s own voice.

Horton lays out the misleading statements made in the article, and evidently it was later withdrawn. More stunning than the allegations themselves is the substance of the investigation. As Horton states:

The CBS piece, for which I was repeatedly interviewed, came through on its promise to deliver several additional bombshells. The most significant of these was the disclosure that prosecutors pushed the case forward and secured a conviction relying on evidence that they knew or should have known was false, and that they failed to turnover potentially exculpatory evidence to defense counsel. The accusation was dramatically reinforced by the Justice Department’s failure to offer a denial. It delivered a fairly elaborate version of a “no comment,” and even that came a full twenty-four hours after it had conferred with the prosecutors in question. The gravity of the accusations made and the prosecutors’ failure to deny them further escalates concerns about the treatment of the former Alabama governor.

...

But the show was dominated by one of 52 former attorneys general from 40 of the 50 states who have called for a Congressional probe of the conduct of the Siegelman case, former Arizona Attorney General Grant Woods. He leveled a series of blistering accusations at the Bush Administration’s Justice Department. With the Alabama G.O.P. this evening issuing a near-hysterical statement in which it characterizes the CBS broadcast—before its transmission—as an anti-Republican attack piece, it was notable that Woods, like the piece’s other star witness, is a Republican. Not just any Republican, either. Grant Woods is co-chair of the McCain for President leadership committee, and a lifelong friend and advisor to the presumptive 2008 G.O.P. presidential candidate. Woods is also godfather to one of the McCain children.

Attorney General Woods has this to say about the Bush Justice Department’s prosecution of Siegelman: “I personally believe that what happened here is that they targeted Don Siegelman because they could not beat him fair and square. This was a Republican state and he was the one Democrat they could never get rid of.”

No wonder "the base" is not comfortable with McCain. Consider for a second, the nature of the allegations:

The basic charge is that businessman Richard Scrushy gave $500,000 to the Alabama Education Foundation, a vehicle Siegelman created to run a campaign for a state education lottery, and Siegelman in exchange appointed him to the state’s hospital oversight board.

And that these allegations are being made by the Bush Administration's highly politicized Justice Department:

Karl Rove pursued financing for the Bush-Cheney campaign in 2000 and again in 2004 by organizing a special elite status—called “Pioneers” and “Rangers”—for persons who donated or raised $100,000 or more for the campaign. These donors understood that if they wanted to be appointed to a government office, like an ambassadorship, they only had to ask for it.

So how many Bush-Cheney donors in amounts of one hundred thousand and more were appointed to government offices or to positions in the Bush-Cheney transition team? The answer is one hundred and forty-six (146). And in how many of those cases did the Justice Department initiate investigations of corruption? The answer is zero (0).

Are prosecutors above the law?

2008-02-25T09:56:00.005-06:00

Are all pigs equal but some pigs more equal than others? That's the issue I worked on yesterday in a brief involving whether prosecutors have a right to review presentence reports, or PSI's.

The case involves a lawyer friend who, knowing that the trial court routinely allowed prosecutors to review PSI's, moved to preclude them from doing so in his client's case.

The statute involved allows the judge to determine who can review PSIs, but also imposes a requirement that the judge first decide whether review by the person seeking it is in an offender's best interests. As the statute, Neb. Rev. Stat. § 29-2261(6),says:

Any presentence report… shall be privileged and shall not be disclosed directly or indirectly to anyone other than a judge, probation officers to whom an offender's file is duly transferred, the probation administrator or his or her designee, or others entitled by law to receive such information... The court may permit inspection of the report or examination of parts thereof by the offender or his or her attorney, or other person having a proper interest therein, whenever the court finds it is in the best interest of a particular offender.

Pretty clear that not just anyone can view these PSI's, right? Well, the judge didn't see it this way, for whatever reason, and decided that the statute was inoperable against the State, as it was a "party" to the action. Fair enough. Take it up on appeal.

But the prosecutor, at the hearing on the Defendant's Motion to Preclude him from reviewing the "privileged" PSI, the prosecutor said:

“If the State doesn't have that information [in the PSI], the state will have to assume the worst on every individual defendant, assume they're not employed, things of that nature, and to make a recommendation for the maximum.”

Wow. In other words, if you don't let us see it, we'll just have to assume that the information is terrible and ask for the max every time.

Isn't this a perfect reason to be a criminal defense lawyer? The prosecutor can't read the plain meaning of a statute and threatens, should the judge apply the statute against him, to assume the worst and max them all out.

So much for a prosecutor's "duty to seek justice."

Goodbye to the Exclusionary Rule?

2008-02-20T08:44:00.002-06:00

In another example of being boiled slowly, and thus not feeling the change, in today's New York Times comes

this article

describing a new case accepted for certiorari:

Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.

The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.

In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.

He was convicted in a federal prosecution, with both the Federal District Court in Montgomery, Ala., and the United States Court of Appeals for the 11th Circuit, in Atlanta, refusing his request to suppress the evidence.

There was no dispute that Mr. Herring’s arrest lacked probable cause, and that both the arrest and the search were therefore unconstitutional. But the 11th Circuit, citing the Supreme Court’s most recent discussion of the exclusionary rule, in a case from 2006, said suppression of reliable evidence placed a heavy toll on the criminal justice system and should be used as a last resort.

Also, last week, during an interview with the BBC, Justice Scalia said that "It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that."

At the time, I wondered what the implications of this statement were to Scalia's view of interrogations of U.S. citizens. For example, if the ticking time bomb scenario prompted him to believe that "sticking something under the fingernail" were permissible, what does he also believe about a suspect being interrogated during an "exigent circumstances" scenario?

Is it "absurd" to think that Scalia wouldn't apply the same logic?

The Times article also hints about the possibility that exclusion will be, well, excluded, as a remedy next term:

Often in the past, the Supreme Court’s acceptance of a criminal defendant’s appeal suggested that the court was inclined to overturn the conviction. But this appeal, Herring v. United States, No. 07-513, which was prepared as a student project of Stanford Law School’s Supreme Court litigation clinic, might turn out to be a case for Mr. Herring of “watch out what you wish for.”

In the 2006 decision to which the 11th Circuit referred, Hudson v. Michigan, five justices expressed deep reservations about the utility of the exclusionary rule. That 5-to-4 decision refused to apply the exclusionary rule to evidence found by police officers who burst into a Detroit man’s home to execute a search warrant without first knocking and giving the man a chance to respond. Justice Antonin Scalia’s majority opinion appeared written to solicit further challenges to the rule’s application.

Our First Caucus

2008-02-09T16:30:00.000-06:00

The Nebraska Democratic Party wanted to do something different this year and adopted a caucus system for the first time. Of course, when the system was adopted, the goal was to encourage more grassroots involvement, to get people out talking and voting with their feet and voices rather than simply filling out an oval.

But no one predicted that the tight race would put Nebraska Democrats in a position of actually having an effet on a national election. It's not a position we're used to in this land of Go Big Red that seems to be a deeply red state as well. In fact, someone at the caucus I attended said, "I didn't know there were this many Democrats in Omaha!", and we were at one of 15 sites in Douglas County.

So the sudden importance of Nebraska brought the voters out in droves and made it difficult to prepare for both a new caucus system and a new surge of voters. According to the Lincoln Journal Star:

Sarpy County had one caucus site for 28,000 registered Democrats, triggering traffic backups for miles and complaints from voters while changing the way officials conducted the caucus.

“To only have one polling place for the third largest county in our (state) was certainly a mistake,’’ said Joe Pilakowski, a 31-year-old high school teacher from Papillion. “It’s kind of a mess.’’

Law enforcement shut down Highway 370 and the intersection leading into the site — a school cafeteria — because the area was packed with cars.

The influx of people was so massive that volunteers began collecting preference cards for people who preferred Obama or Clinton, then allowing them to leave. Traditional caucus procedures allow for more interaction, with supporters standing on either side of a room trying to persuade the undecided and not-so-sure supporters of other candidates to join them.

“People are threatening to leave, and we didn’t want anyone to leave without being counted.’’ said Marea Bishop, 43, of Bellevue, a volunteer at the caucus. “The turnout is so far above all our wildest dreams.’’

“Desperation,’’ Sarpy County Democratic Party Chairman Burke Summers said when asked why officials changed procedures at the last minute. School officials wanted the school cleared of caucus-goers by midafternoon to make way for a pair of youth basketball games.

Fought, the state party spokesman, said it was up to each county’s party leaders to adjust plans in the best way possible without drastically deviating from the procedures.

An early count showed that 6,000 people showed up at the school to caucus, including 2,000 people who registered Saturday. About 1,500 of the new registrants had switched from other parties.

“There’s a hell of a lot fewer Republicans in Sarpy County than there were yesterday,’’ Summers said.

The turnout was so high that officials in Douglas and Sarpy counties announced that they would delay the announcement of their results at least one-and-a-half hours.

“We had no ability to imagine anything,’’ Fought said. “That was part of the challenge here because we’ve never done this before.’’

While I sympathize with the position party officials are in, it was easy to imagine that something was different this year and that a surge of voters could be expected. I know this because the wild atmosphere at the caucus I attended was just like the atmosphere I experienced on Thursday night as 12,000 people showed up for Barack Obama's speech in Omaha. The arena held only 10,000, but I was lucky enough to be one of the overflow crowd allowed to enter an adjacent arena, where 1000-2000 people who showed up but couldn't fit into the main event were allowed to come in out of the cold.

Obama appeared and spoke to us before he went upstairs, and my two daughters and I thus got to see him from 100 feet away rather than seeing him on stage with 10,000 other people.

So any party officials who went to the Obama rally had to have known that if people would turn out that strong on a Thursday, a Saturday a.m. caucus was sure to be packed.

I arrived late and was one of the last to be admitted, but the crowd was easily 5 to 1 for Obama. It was simple to spot the Clinton "crowd" because it looked like they were standing at the back of the event. It wasn't until the crowd started chanting that I realized obama's group wasn't the event, they were only one side of it. It wasn't even close.

I predict Obama will win easily based on what I saw on Thursday in downtown Omaha and today in the west side of the city. The results should be in soon, but count on an Obama win.

Liberty or Death?

2008-01-25T09:25:00.000-06:00

In the debates accompanying each party's primary, much is being said about government's proper role in helping the poor, in fighting terrorism, and about crime, among many other things. In fact, in recent weeks the Clinton and Obama camps have brought racial issues into the mix, almost as never before, and Toni Morrison's famous characterization of Bill Clinton as "America's first black President" (yeah, right) has been brought up many times. John Edwards, at least in my view, has stayed out of this, choosing instead to target corporate greed as one of the most pressing problems we face.

But one issue has been largely missing from the debates. I was surprised to find out today that all 3 Democratic Candidates are pro-death penalty, via this Alternet story.

"Clinton, Obama and Edwards all support capital punishment. It's a position you'd be hard pressed to find on their websites, and they might not be bragging about it the way they might have in, say, 2000. Or 1996. Or 1992, the year their party's pro-death penalty stance was codified in its official party platform and then-presidential candidate Bill Clinton made a campaign trail detour to Arkansas, where he presided over the execution of mentally damaged prisoner Ricky Ray Rector. Nevertheless, all three hold on to their pro-death penalty stance, as have virtually all leading Democrats running for office in the past 20 years.

Why so much longstanding support for capital punishment? It is the easiest way to combat the quadrennial charge that Democrats are "soft on crime."

As the article goes on to say, this support was likely due to the way "Michael Dukakis was lampooned after a 1988 debate in which he failed to wax bloodthirsty when asked if he'd want to execute a theoretical rapist/murderer if the victim was his wife, Kitty."

I'm not trying to lambast the Democrats for this "stand," or rather lack thereof, as they obviously make it for complicated reasons.

But isn't the nation crying out for leadership on issues like this? Couldn't Edwards, who's likely to lose anyway, fulfill his mission of focusing the race on the right things by confronting this issue? For example, remember the way all three candidates tried to appeal to African American voters in South Carolina this week? Wouldn't it have been wonderful to see Edwards draw attention to this issue by pointing out the fact that, as Bill Moyers recently stated:

"Amnesty International urged the UN to pass a resolution for a moratorium on capital punishment declaring that it 'has never been shown to deter crime more effectively than other punishments.'... The American Bar Association has also called for a moratorium on capital punishment. And in late October, just moments before a prisoner in Mississippi was scheduled to die by lethal injection, the Supreme Court issued a stay of execution. This month, New Jersey became the first state in 40 years to abolish the death penalty, sparing the lives of eight men on the state's death row."

One of those executed in Texas three years ago was Dominique Green. Thomas Cahill, author of HOW THE IRISH SAVED CIVILIZATION, is coming out with a new book about Green's life, and death, as he turns his attention to more recent history. Cahill, in an interview with Moyers, describes Green's case as:

"[W]hat actually happened was-- and it's in an instance of how badly this is done in Texas, there were four kids. One of them was white. He was not charged with anything. Ever. And you cannot interview him til this day.

BILL MOYERS: Why?

THOMAS CAHILL: You can't find him. But he exists. I know his name. And the other three were black. Dominique was the youngest. And the two others turned against him to get lighter sentences, it looks to me. And they decided that he would take the rap. He was certainly guilty of robbery. I don't think he was guilty of murder. But even if he was, I don't think --- that's not what I see in this. What I see in this is that we as a country are actually sacrificing children to an evil God, to the God of whatever this justice is that we-- instead of take-- instead of doing something for Dominique Green who grew up without the aid of civilization, we condemn him to death, and to the torture of 11 years on death row. There was a trial. There was very bad representation. The judge that Dominique came up before was the same judge who in a slightly earlier appeal had been asked to reverse a decision because the lawyer who represented this kid in this earlier trial, had slept throughout the trial. And everyone had seen that and everyone knew about it. And the judge, in his decision, said, "The Constitution gives you the right to a lawyer. It doesn't say whether he has to be awake or not." So, I mean, this sort of-- there is, I think throughout the country but especially in the state of Texas, there is a kind of collusion among lawyers whether they're prosecutors or defenders, and judges, and an awful lot of horrible things happen in order to get as many people as possible executed.

Cahill also describes in this interview the fact that Green eventually became close with the two sons of the man who was killed, even describing how Green's rosary was given to one of the boys. You can read the article online at the links or download it for free on itunes.

I have great respect for John Edwards and the attention he's directed toward important issues other candidates are conveniently and self-servingly not bringing up. But it surprised me to hear that, despite his leadership on other issues facing the poor, he hasn't taken a stand against the death penalty.

Wouldn't the sleeping judge presiding over Green's trial and the way Green drew the support of the Pope and, presumably at least, of his victim's children make for a good story for John to tell, much as he uses individual stories to highlight issues that are being ignored?

Or have we reached a point where it's impossible for a viable candidate to do anything other than pander to the audience by pretending that the death penalty isn't (1) expensive to administer, (2) incapable of being remedied should further evidence ever be produced, much as DNA advancements have done recently, and (3) disproportionately applied to poor and African American defendants?

Wouldn't that stand not only be the right one to take, but also indicative of the leadership the public desperately craves?

MLK Day: Dream Not Realized, Irony Not Dead

2008-01-21T08:55:00.000-06:00

I woke up this morning, switched on the local news, and saw the news crawl stating two things: "Martin Luther King Day Holiday," and then "All City Offices Closed Except Garbage Services." I kept watching and saw that the forecast high with 14° with an 80% chance of snow. But the station wanted to let us all know that there was no need to panic. Garbage collection would go on as scheduled.

How ironic that on Martin Luther King, Jr., Day, the one city service that is not interrupted is garbage collection, undoubtedly one of the most difficult, dirty jobs in the city. Sure, much of their work is now automated, but they almost always have to get out of the truck and manually throw bags of garbage into the back of the truck at every house. They have a dirty job, but they work hard and move fast; their shoes, pants and often their coats grimy with our slop, spilling out of the cans, bags and bins.

Why is it ironic that garbage collection continues on Martin Luther King Day, but almost all county and city employees get the day off, except those with a worst job?

As the Washington Post writes,

"On Thursday, April 4, 1968, Martin Luther King Jr. had retreated to room 306 of the Lorraine Motel, worrying about a sanitation strike in Memphis and working on his sermon for Sunday. Its title: "Why America May Go to Hell." For King, whose focus had shifted from civil rights to antiwar agitation and populist economics, the Dream was turning dark. He had been depressed, sleeping little and suffering from migraines. In Washington, his plans for a massive Poor People's Campaign were in disarray. In Memphis, King's first march with striking garbage men had degenerated into riot when young black radicals--not, as in the glory days, angry state troopers--broke King's nonviolent ranks."

King himself would later tell his audience, in calling for boycotts of various products and businesses, that "only the garbage men have been feeling pain," urging them to "redistribute" this pain. From his famous "I've Been to the Mountaintop" speech, King said:

"And so, as a result of this, we are asking you tonight, to go out and tell your neighbors not to buy Coca-Cola in Memphis. Go by and tell them not to buy Sealtest milk. Tell them not to buy -- what is the other bread? -- Wonder Bread. And what is the other bread company, Jesse? Tell them not to buy Hart's bread. As Jesse Jackson has said, up to now, only the garbage men have been feeling pain; now we must kind of redistribute the pain. We are choosing these companies because they haven't been fair in their hiring policies; and we are choosing them because they can begin the process of saying they are going to support the needs and the rights of these men who are on strike. And then they can move on town -- downtown and tell Mayor Loeb to do what is right.

But not only that, we've got to strengthen black institutions... Now these are some practical things that we can do. We begin the process of building a greater economic base. And at the same time, we are putting pressure where it really hurts. I ask you to follow through here."

In fact, King himself traveled to Memphis, the site where he was later assassinated, to support striking garbage men:

"On February 12, 1968... 1,300 sanitation workers in Memphis, Tenn., decided that enough was enough. They went on strike to force the city to recognize their union, AFSCME Local 1733. The walkout capped a long history of mistreatment and disrespect amid shameful working conditions.

The strike was a defining moment for the modern labor and civil rights movements. Officially, the men were after rights and raises, but the signs they carried made clear that their struggle was for much more — dignity and respect.

Dr. Martin Luther King Jr. traveled to Memphis to support the striking workers. The evening of April 3, he delivered his famous “I’ve Been to the Mountaintop” speech to a packed room of strikers and supporters."

So, to recap:

- In mid-February 1968 King went to Memphis to support striking garbage men.
- On April 3, 1968, King said that only striking garbage men had been feeling pain, telling his audience to redistribute that pain with wider boycotts.
- The next day, April 4, 1968, Martin Luther King, Jr., was assassinated.
- But today, the day we honor the legacy of Dr. Martin Luther King Jr., the only workers who provide city services are the sanitation workers, the "garbage men" who now include "garbage women" as well.

So, as we celebrate Martin Luther King Jr. Day, remember that this hero whom the government later rightly recognized with a national holiday, was subjected to an illegal wiretapping by that same government that now takes a holiday in his honor. In fact, the FBI, led at that time by J. Edgar Hoover, even tried to convince King to commit suicide, threatening to expose alleged adulterous meetings with women to his wife in public if he refused. From the "STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS" prepared for the United States Senate in 1976,

"The FBI mailed Dr. King a tape recording made from its microphone coverage. According to the Chief of the FBI's Domestic Intelligence Division, the tape was intended to precipitate a separation between Dr. King and his wife in the belief that the separation would reduce Dr. King's stature. The tape recording was accompanied by a note which Dr. King and his advisers interpreted as a threat to release the tape recording unless Dr. King committed suicide. The FBI also made preparations to promote someone "to assume the role of leadership of the Negro people when King has been completely discredited."

What a gift it is that the FBI's dream of discrediting Dr. King did not become a reality and that we now honor him with a national holiday. But, if you think his dream has been realized, ask a garbage collector. And then ask yourself, WWMD if he were alive today?

The Unequal Protection Claws

2008-01-19T20:20:00.000-06:00

Scott Horton writes a great online column for Harpers Magazine called "No Comment" that I highly recommend. Today's entry, entitled "Blackwater and the Administration of Justice," covers a scandal you may have forgotten about, suffering understandably from "scandal fatigue." He writes:

I spent the better part of the last year looking in some detail into a series of legal policy issues surrounding private security contractors, a process that culminated in the issuance of a report last week entitled Private Security Contractors at War: Ending the Culture of Impunity.(4 MB PDF)

The report deals with an entire industry which has popped up like mushrooms after a spring rain. But when you examine this issue, and particularly its government relations aspects, you come very quickly to a focus on one particular company, Blackwater USA, whose baroque conduct seems to supply the material for novels, if not articles in Soldier of Fortune Magazine.

Horton then goes on to describe how Senior Bush Administration officials are intertwined with Blackwater in both marketing the firm to foreign governments. In fact, he describes speaking with local government officials in Azerbaijan and Jordan who told him of "extensive marketing efforts on Blackwater’s behalf by seniormost officials of the Bush Administration" and that they "pressured and cajoled the local officials to use Blackwater" even "offer[ing] substantial incentives in the process."

It's not hard to see why W found a lot in common with Blackwater founder Erik Prince, as Prince is described as "born to wealth and privilege" in a family "with a long track record of involvement in Republican and Religious Right politics." But Horton also offers evidence for his assertion that Blackwater's relationship with the Bush Administration is "truly extraordinary in many respects." He writes:

One career State Department observer put it to me this way. “In Blackwater’s dealings with the Department,” he said, “I often find myself wondering who is the service provider and who is beneficiary of the services.” His point was simple: Blackwater exercised an unseen influence over the process of contracting and supervision; often the Government seems to be working for them.

So, with this insider relationship between the government and a well connected contractor in mind, remember the investigation of Blackwater employees killing Iraqis in Baghdad's Nisoor Square last September? Last week an article in the New York Times described a briefing given privately on Capitol Hill discussing the Justice Department's investigation into prosecuting Blackwater, whom the Iraqi government now wants expelled from Iraq for its role in the killings. As Horton writes:

After giving the usual disclaimers, the briefers went on to state that notwithstanding the FBI’s conclusion that the facts showed multiple homicides for which no viable defenses existed, at present the prospects that charges would be brought were slim. Why? Two reasons were advanced. First, they stated that Acting Deputy Attorney General Craig Morford had severe reservations about whether the Military Extraterritorial Jurisdiction Act (MEJA) would apply in a case like this, and in any event, it had never been applied this way. Second, they said that State Department investigators had granted limited immunity to those who gave statements and they were skeptical that they would be able to build a case than would not collapse under the weight of that grant of immunity.

I interviewed two persons who were present at those briefings and who requested that their names be withheld. Both had roughly the same reaction. I thought these people were supposed to be prosecutors. It sure didn’t sound that way to me. They sounded like criminal defense counsel arguing against bringing charges. But even more telling one added, “They seemed to be focused on the reaction from their audience. It was as if they were really engaged in an exercise trying to judge ‘if we walk away from this, what kind of blow-back are we going to get?’”

Horton goes on to convincingly describe why he disagrees with the government's "analysis" of whether MEJA applies, saying that "even if it doesn’t, the Justice Department seems to have lost track of a number of other statutes that provide a basis for prosecution, like the War Crimes Act." The article concludes with this:

"...the Justice Department’s briefing showed an amazing willingness to drop the whole thing, rather than build a case.

And this does raise a question about Blackwater’s relationship with the Government, including the Justice Department. In the end, I believe this whole story will tell us much more about the inner working of the Bush Administration and its grossly disfigured Justice Department than it tells us about Blackwater. After all, although it needs to abide by it, Blackwater is not responsible for enforcing the law. That responsibility rests now with a team that seems to be very uncomfortable whenever questions of law enforcement affect the “home team.” And ultimately Americans may judge that a far bigger and more worrisome problem than the tragedy that occurred at Nisoor Square."

- I. Lewis Libby pardoned after jury conviction, just when he would have started talk ing to be granted a "substantial assistance" departure and perhaps avoid prison.
- Telecom retroactive immunity from past law violations pushed and likely to pass. - Prosecutors fired who went after the "home team," replaced with partisan, unexperienced Liberty University grads fresh out of law school.
- Secret Service agent sent to Guam after calling for probe into whether other agents changed their stories after talking to Cheney.
- 470 days of missing emails at the White House.
- And politicians on both sides afraid to stand up for the rule of law or to speak up for it to be applied equally for fear of being labelled "pro-terrorist."

Those who don't understand history are deemed to repeat it and last week Glenn Glenn Greenwald described the way criminal procedure applied differently depending on your social class in Ancient Rome:

...this change of procedure was accompanied by the increasing use of different scales of punishments according to the person of the delinquent.

For purposes of criminal jurisdiction the citizen body fell into a class of honestiores (including members of the Senatorial and Equestrian Orders, municipal magistrates and senators, and soldiers of all ranks), and another of humiliores.

For the same crime a privileged offender might suffer simple banishment, an unprivileged one would be sentenced to penal servitude in the mines;

in capital cases the honestior would be put to death quickly and cleanly, the humilior might be thrown to the beasts.

A person of higher status still enjoyed the right of appeal to the emperor, and he remained exempt from torture, except in trials of treason ... but these privileges were withdrawn from those of the lower order. From the time of Severus [early 3rd Century] the principle that the law was a respecter of persons pervaded the whole of the Roman criminal jurisdiction, a rule which constituted one of Rome's most harmful legacies to the Middle Ages.

Doesn't it sound, at least in the above description, like at least in Ancient Rome the law applied equally no matter what class you came from, except for the fact that appeals were available only to the upper crust? In other words, nowhere does the author describe different laws applying to different classes, only different punishments being meted out. All pigs were equal, at least in this description, regarding whether they broke the law; the inequality came later, when punishment was delivered. But now, in this age of the Gated Community, Orwell's satirical remark seems to have come true: some pigs are more equal than others.

It's as if the ancient proverb that "He who has the gold makes the rules" has become outdated. The new version is "He who has the gold, and the political connections, doesn't have to follow the rules."

And yet next week, as I stand beside some drug-addicted, uninsured, unemployed young person facing a jail sentence, or a termination of parental rights, or a fine that'll take food out of the kids' mouths, someone will think, and perhaps say, "how can you defend those people?"

Secret Service Agent: ‘The VP's [security] detail is involved in a cover-up,’

2008-01-18T16:26:00.000-06:00

It must be hard being a Secret Service Agent assigned to Dick Cheney. Consider the plight of Agent Virgil Reichle, who was assigned to guard the Vice President in 2006 while Cheney stayed at Colorado ski resort. A man named Steven Howards approached the veep, told him his Iraq policies were "disgusting" and touched him on the shoulder in the process.

About 10 minutes later Agent Reichle, who had not witnessed the incident himself, but who had spoken to two agents who were present, arrested Mr. Howards, telling him that he was being charged with assaulting the vice president. Later, Howards (who spent about three hours in jail) was charged with misdemeanor harassment that charge was later dismissed at the request of local prosecutor Mark Hurlburt. (you may remember him as the prosecutor of Kobe Bryant)

Now Mr. Howards has filed a civil lawsuit and the agents are contradicting each other in depositions. As the New York Times reports today (h/t David Feige):

The agent who made the arrest... said in a deposition that he was left hanging with an untenable arrest because two agents assigned to the vice president had at first agreed with a Denver agent that there had been assault on Mr. Cheney by Mr. Howards, then changed their stories to say that no assault had occurred.

Mr. Reichle, who did not witness the encounter, said in his deposition that he believed the vice president’s security detail had wanted the Howards arrest to go away so that Mr. Cheney would not be inconvenienced by a court case.

Basically, agents Doyle, McLaughlin and Daniels witness the man touch Cheney. Then, according to Reichle, Doyle describes the contact to Reichle and Daniels and McLaughlin agree. Reichle then arrests Howards, who is released 3 hours later.

Here's where it gets interesting. When Daniels and McLaughlin later claim in written statements that no assault occurred, Agent Reichle is left looking foolish. Reichle and Daniels then talk on the phone, but offer differing accounts of what was said. According to Reichle,

“I asked him if someone was pressuring him to change his testimony,” Mr. Reichle said in the deposition.

“What did he say?” asked Mr. Lane, the lawyer for Mr. Howards.

“He says, ‘No,’ ” Mr. Reichle said. “I said, ‘Well, this isn’t the rendition that I had heard three to four hours ago.’ ”

“And what did he say?”

“He hung up,” Mr. Reichle said.

So Reichle asks his supervisor to subject all the agents to lie detector tests (Where's an illegal wiretap when you need one!) and then, according to Reichle, who was asked what in a deposition his supervisor's reaction to this request was:

"“Don’t go there, Gus.”

[Deposing lawyer:] “What does that mean?”

“It means let it lie, drop it,” Mr. Reichle said.

In his deposition, Mr. McLaughlin said that Mr. Reichle had used the word “cover-up” as early as the morning after the encounter."

But here's the punchline of the article, and it's easy to miss. Where do you suppose Agent Reichle, the man who claimed Cheney's security detail changed their stories and left him hanging out to dry, works now? He's still a Secret Service agent. But as the article says, Agent Reichle,

"...has since been transferred to Guam."

Controversy Over Giving Teen Killers the Possibility of Parole?

2008-01-11T08:20:00.000-06:00

Last year, as I described in a previous post, the vote on a United Nations resolution calling for the abolition of life imprisonment without the possibility of parole for children and young teenagers was nearly unanimously approved. The vote was 185 to 1 with the United States the lone dissenter.

A similar issue is before the U.S. Supreme Court this term in Pittman v. South Carolina, a case which boils down to the question of, as I asked in a previous post, whether "30 Hard Years for a 12-Year Old Killer" is "cruel and unusual punishment" under the Constitution.

As the New York Times said describing Pittman and the issues surrounding it,

"the United States stands alone in the world in convicting young adolescents as adults and sentencing them to live out their lives in prison. According to a new report, there are 73 Americans serving such sentences for crimes they committed at 13 or 14."

Now a State Senator from Nebraska is taking action on the issue. Dwite Pederson's bill would not require that those who were classified under Nebraska law as "children" when they committed murder be given parole, it would simply change Nebraska law to allow for the possibility of parole after either 20 of 25 years. According to the World-Herald article this morning:

In the bill introduced by State Sen. Dwite Pedersen of Omaha, those convicted of murder before their 18th birthdays could be considered for parole after 25 years.

Those convicted of murder before their 16th birthdays could be considered for parole after 20 years.

The article also notes that "Eight states and the District of Columbia prohibit the sentencing of youth offenders to life without parole. Colorado is the most recent to ban the sentence, acting in 2006."

The article describes a young woman, recently convicted of a murder, who would have been, and possibly still could, take advantage of the change in the law. Understandably, the family of the murder victims disagree, saying,

"[The girl, now 18, who was 17 when she committed murder] was proven guilty in a court of law of being involved with the murder of two innocent individuals even though she was a teenager when the crime occurred. If she was old enough to be capable of committing the crime, she is old enough to serve a life sentence without parole. . . . No matter what remorse or rehabilitation she undergoes now or in the future, she is still being allowed to live a life, even if it is not of her choosing. [The murder victims] were not given that opportunity."

You can't really refute the fact that a murder victim doesn't have the opportunity to live, but isn't that really addressing the issue?

The question is, do we want to deprive the parole board of having the possibility to grant parole to a person who was a "child" in Nebraska when they committed their crime? Do we want to deprive the "child," when they grow up and reach their 40's of having the opportunity and the incentive to rehabilitate themselves, to behave themselves in prison, to build a good case for parole when they reach their 40's?

What do you think?

Another Reason to Never Wear an Ascot

2008-01-09T14:11:00.000-06:00

From the ABA Journal a few hours ago...

A Milwaukee judge known as a fastidious dresser held up a sentencing hearing for three hours yesterday because a prosecutor came to court wearing an ascot.

Judge William Sosnay said the ascot violates a court rule that requires lawyers to wear neckties and “borders on contemptuous," the Milwaukee Journal Sentinel reports.

“This is not about the definition of an ascot or a necktie," Sosnay said. "This is an issue which I believe deals with the integrity of the court."

When you threaten to hold a person in contempt for wearing an ascot, how much integrity do you have left?

I wasn't there, so maybe there's more to the story: Is the judge standing up to a prosecutor who pushed the limits of the rule requiring neckties or is he so anti-elitist, so blue collar, that a red ascot ignites a flame in his brain akin to to the one that led Ralphy to go over the edge in what became known as the "Scut Fargas Affair" in A Christmas Story?

The Milwaukee Journal article says that "the three people in the gallery ... had to wait two hours, 58 minutes" because of the "Ascot Affair." Said one of the innocent bystanders who ahd to wait:

"Don't they got a novelty shop in this place somewhere so he can buy a tie?"

I guess the more they fight with each other, the less anger they'll have to direct toward our clients?

Time for a Trial Lawyer in the White House?

2008-01-09T08:30:00.001-06:00

With a few alterations to make it anonymous, shown below is an email I sent to a person writing on a listserve I subscribe to, describing my thoughts on John Edwards' campaign compared to Barack Obama's. I don't doubt that the poster, who stated his earnest belief that Obama has something intangible that Edwards does not, genuinely believes this and believes in Obama. I'm just pointing out my frustration with Obama's criticizing Edwards for being a "trial lawyer" and making the mistake Bob Kerrey did a couple weeks ago when he inaccurately described Obama as attending a "madrasa:" repeating a right wing talking point that will come back to haunt you later, in the general election. Anyway, here it is:

"It may be true that Obama speaks with fire and faith and shows an "ability to move a nation” with his charisma, but could he learn something from Edwards?

I agree with you that Obama is passionate and charismatic, but if he tells
voters that the best proof of his commitment to public service is that he
“didn’t become a trial lawyer” will he truly challenge corporations?

In other words, if you already adopt the language and stereotypes of the
corporately-funded “tort reform” crowd, will you stand up to them once you’re in
office?

I think Obama is an amazing candidate, but can’t figure out why he’d attack
Edwards this way. Perhaps it’s just a ploy to win, but if he eventually does
win, wouldn’t Edwards be a great running mate?

In short, while Obama’s Iowa victory is an amazing event, isn’t it also amazing
that a trial lawyer, who was outspent 3 to 1 by both Hillary and Obama, and who
refused to accept any PAC or corporate cash, got 30% of the Iowa vote, coming in
second?

It looks to me like the country is ready for “sweeping social change” but that
Obama still thinks, like a lot of Democrats, that you have to attack your own
constituencies to win.

While Obama is exciting, I still think only Edwards is saying what truly needs
to be said and having a great effect, win or lose. In fact, Danny Glover
stumped convincingly for him on Democracy Now a couple days ago, presumably
because Edwards said things like this:

- And this is what I see in America today. I see an America where last year the
CEO of one of the largest health insurance companies in America made hundreds of
millions of dollars in one year.
- I see an America where ExxonMobil’s profits were $40 billion just a couple of
years ago. . .
- All of that happening at the same time this picture of America emerges.
- Tonight, forty-seven million Americans will go to bed knowing that if their
child gets sick, they’ll have to go to the emergency room and beg for
healthcare…
- Thirty-five million people in America went hungry last year in the richest
nation on the planet.
- And tonight, 200,000 men and women who wore our uniform proudly and served
this country courageously, as veterans, will go to sleep under bridges and on
grates."

I think Obama’s win shows an appetite for “sweeping change” but wish he’d talk
more about the numbers, and the people behind them, that Edwards courageously
talks about.

Maybe then I’d have more of his favorite word, “hope,” that he will push to
change the hold corporations have on our lives, laws, political parties, and our
justice system.

If you can’t even accurately describe the problem, and have to resort calling
the guy who does a "greedy trial lawyer," will you really address the corrupting
influence of corporate power once you get in office, having gotten there with
both charisma and corporate cash?"

Oh yeah, I wrote this yesterday, when the conventional wisdom was that Obama's nomination was inevitable. I guess that's why they play the games: the pundits often get it wrong.

What do you think?

Criminal Defense Lawyer Video Game?

2008-01-08T16:15:00.000-06:00

I used to worry about what my kids thought of my job when I was a public defender and they were in elementary school, hearing constantly from groups like MADD and DARE about how the police put bad guys behind bars, where they belonged. How would they rationalize, in their young minds, the fact that Daddy later stood beside these "bad guys" in court, trying to keep them out of jail, where all the authorities seemed to say they belonged.

I always thought I'd have to wait and explain this when they were old enough to see shades of gray in what their teachers described or when they realized that even the police need policing and the truth in Lord Acton's famous phrase about "all power corrupt"ing and "absolute power" tending to corrupt absolutely.

But then my daughter comes home with a new video game on her Nintendo DS called Phoenix Wright: Ace Attorney.

Yes, that's right criminal defense lawyers, a children's video game has one of us as the hero. His catchphrase? "OBJECTION!" delivered with his hand pointing directly at the bad guy, the prosecutor! As the Gamespot website describes the game:

"The game has you controlling Phoenix Wright, a lawyer fresh off the bar who is, initially, more than a little nervous. The first case you take on, a murder trial in defense of Phoenix's dopey best friend, Larry Butz, serves as a tutorial in which law firm chief Mia Fey guides you through the ins and outs of courtroom procedure...
. In Phoenix Wright: Ace Attorney, discovering the killer is not the surprise; instead, it's the way in which you bring him or her to justice. The events surrounding the murder always end up leading to the false accusations of innocent witnesses, and as a defense attorney, it's Phoenix's job to get a verdict of "not guilty," despite the lying witnesses, shady prosecutors, and a judge who sometimes forgets the letter of the law. "

Hilarious. And it seems to be finding a great reception in America after its introduction in Japan. According to Wikipedia:

Phoenix Wright: Ace Attorney was very hard to find in stores shortly after its North American release because of a shortage due to unexpectedly high demand...
The game received generally favorable reviews, most of which cited its interesting stories and enjoyable characters as strengths... Gamespot bestowed a "great" 8.8 score.

But, in a review that's bound to garner lots of respect for our profession's much maligned role in in the halls of corporate law firms, Marilyn Manson described the game as "$%#@ amazing" during an interview with E!

So, no more hemming and hawing when people ask you what kind of law you practice or say "how could you?" Just say, like PeeWee Herman said to Dottie at the end of his Big Adventure, "I don't have to play Phoenix Wright, Ace Attorney; I live it."

29-Year Old P.D. Builds Supreme Court Case Against Death Penalty

2008-01-01T14:01:00.000-06:00

Lucky for me this article came out after the Simple Justice award...

One of the biggest capital punishment cases to come before the U.S. Supreme Court in a generation was put together largely by a young, fresh-out-of-law-school member of Kentucky's overworked and underpaid corps of public defenders.

David Barron, 29, filed an appeal on behalf of two Kentucky death row inmates, arguing that the three-drug cocktail used in lethal injections across the country can cause excruciating pain, and thus amounts to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution.

After three years of long hours on Barron's part, the Supreme Court agreed to hear arguments in the case on Jan. 7...

Legal experts said the Kentucky case apparently got the attention of the high court because it arrived fully developed -- it went through a full-blown trial with more than 20 witnesses, who argued both sides of the question of whether inmates suffer extreme pain while immobilized, unable to cry out.

David, whom the article describes as a "hardcore Boston Red Sox fan" who "draws professional hope from the way the Red Sox finally won the World Series after 86 years of futility" says:

"There's something to be said about representing the people who society casts aside," Barron said. "They are the ones often left to fend for themselves."

While that attitude is exactly what I admiringly described earlier today in this post, let's face it: The Boston Red Sox didn't win the world series two out of four years by paying their players what "most Kentucky's public defenders" receive as starting pay in Kentucky, $38,000 a year.

In fact, the Red Sox paid their players the second highest amount last year in Major League Baseball, $143,123,714, second only to the New York Yankees $195,229,045.

In contrast, "Kentucky spends about $33.5 million in 2005 (the last year for which numbers were available) on a population of 4.1 million. That's about $8.14 per person for public defense -- 23rd among the 30 state-run public defender offices nationally. Oregon leads the nation at $23.75 spent per person."

When I read the article about Kentucky Public Defenders, I thought of how impressed I was with the people I met at NCDC in 2003 who came as both teachers and students from Kentucky's statewide p.d.'s office. And then, I read a quote from an NCDC instructor I remember well:

"It's an uphill battle," said Ernie Lewis, head of the Kentucky Department of Public Advocacy. "We can't provide an O.J. defense."

Maybe not. But O.J. had the assistance of a few former p.d.'s, such as Barry Scheck and Peter Neufeld, on his "dream team." Sadly, however, what the article says about the perceptions of public defenders in the legal community at large is probably true, at least of most lawyers:

"Public defenders work one of the lowest rungs of the legal profession, one that is often not very highly regarded by other lawyers. Many young lawyers right out of law school often get their start as public defenders, and often race from case to case with barely enough time to read the file, much less do the in-depth investigation attorneys in private practice can do."

I'm not sure I agree with the assertion that P.D.'s have "barely enough time to read the file" as the good ones refuse to go in unprepared, and even go to jail rather than try a case on one days notice. Personally though, I was frustrated by the demands on my time when I was a p.d., as I seemed to go from one catastrophe to the next, like an "emergency room lawyer." Now I have the luxury of more time to investigate and prepare, but I'm also thankful for the time I spent as a p.d. It was great training but, at least for me, the time had come to try to pay down those student loans before my own kids needed to start taking them out.

Perhaps if we committed to paying off the student loans of state public defenders who stay in the job after getting the training, or at least allowed them to do some private work on the side, we wouldn't lose so many to the private sector so quickly.

It's great that David prepared and brought this case, which will be argued in less than a week. It's even better that he "was paired with... a fellow public defender with at least a decade of experience" as it takes both commitment and experience to adequately represent what Clarence Mock calls "the citizen accused."

Why Me?

2008-01-01T10:59:00.001-06:00

I am very honored to be Criminal Defense Lawyer of the Year by Scott Greenfield at Simple Justice. Actually, I'm a little stunned. The exchange I had with the Juvenile Court Judge was posted almost as an afterthought, and I wasn't sure anyone would even notice. So, thank youver ymuch for the honor, Scott.

My first thought was to demand a recount or to ask why some other nominee like Jon Katz, Mark Bennett, Sunwolf or Barry Scheck wasn't named. After all, I'm in my sixth month of private practice, having worked in the Public Defenders Office for the last seven years since law school, proud to be a criminal defense lawyer but not exactly gifted with the talents these people consistently display in major cases. To paraphrase what George Kennedy said to Cool Hand Luke, I haven't done any "world shaking." (although I do have big plans for the new year!)

But then I read Scott's explanation of why he picked me. He writes...

"It's not that this incident reflects a picture perfect response to an overreaching judge, or an incident that one hopes to create through intransigence or disrespect. It was simply a brief snapshot of how a lawyer, without any reason to anticipate a confrontation, finds himself forced to make a decision as to whether he wants to fulfill his role in the scheme of the criminal justice system or play dead to appease a judge or just avoid confrontation at the expense of his client. This represents the sort of everyday decisions that defense lawyers are required to make, and David's choice, as a young lawyer faced with potentially harsh consequences, showed the fortitude that reflects the finest of the criminal defense bar."

After I read this, I feel a lot better about accepting the award because it shows Scott wasn't so much highlighting what I did as using this incident as a way to highlight the often thankless work criminal defense lawyers are required to do, often at low pay, while constantly being asked "how can you defend those people?" and being thought of as rich, slimy crime-enablers.

I didn't do anything extreme or brave; i just did what most other criminal defense lawyers would have done in the same situation. Like most of you every day, and like I said in the transcript, "I’m trying to do my job, the job you asked me to do." I didn't do anything heroic; I just stuck to my guns while the judge escalated the situation way beyond the way things usually go in the courtroom.

You would have done the same thing; you just haven't been confronted with a judge who would push things this far yet.

But the point is, as criminal defense lawyers, we all take these stands every day. Usually they don't involve handcuffs for us, but we take stands that protect people from the awesome power of the state, usually while simultaneously being thought of as the lowest rung in the legal hierarchy and accused of being "pro bad guy," as if that's all that were at stake in the criminal justice system.

So I'll gladly take the award and dedicate it to next year's winner: the "in the trenches," student loan buried, broken down car driving, criminal defense lawyer who refuses to work for the state or for the corporations, who doesn't give a rat's ass how his or her entry reads in next year's bar magazine, who fights for his or her clients even when they refer to him as a "public pretender" (I heard this one so much it became funny), who's the least likely ever (like me) to ever win a "lawyer of the year award" but who keeps fighting anyway, focused on keeping playing an essential role to keep the power of the prosecutors and the state in check and keep the criminal justice machine from feeding on more poor people.

Keep being a person with convictions, even though you may be standing beside a person with several priors.

So, at the risk of sounding like one of those satirical Budweiser commercials, "Here's to you Mr. or Ms. Simple Justice criminal defense lawyer of the year 2008." May you be just as surprised and shocked as I was to get an early morning email naming you as such and think "Why me?"

I mean, if I deserve it, you do too. Go get'em, tiger.

"Greatest Humiliation ... Ever"

2007-12-21T10:19:00.000-06:00

From the "Best of the Web" website (h/t Digby) comes a story about a young woman from Iceland who decided to take a trip to New York for some holiday shopping and soon found herself cuffed in the airport. (Who knew you could be in line one minute and cuffed the next?)

Last Sunday I and a few other girls began our trip to New York....
-As I waited [airport officials] to finish examining my passport I heard an official say that there was something which needed to be looked at more closely and I was directed to...Homeland Security [and] told that... I had overstayed my visa by 3 weeks in 1995 [and] would not be admitted... and would be sent home on the next flight... A detailed interrogation session ensued.
-I was photographed and fingerprinted... asked questions which I felt had nothing to do with the issue... [and] forbidden to contact anyone...
-I was then made to wait... for 5 hours.
When 5 hours had passed and I had been awake for 24 hours, I was told that they were waiting for officials who would take me to a kind of waiting room. There I would be given a bed to rest in, some food and I would be searched.
-What turned out was something else. I was taken to another office exactly like the one where I had been before and once again along wait ensued.
-At this office all my things were taken from me [but I sent}... a single sms [message?]}to worried relatives and friends when I was granted a bathroom break. After that the cell phone was taken from me...
-I was exhausted, tired and hungry. I didn't understand the officials' conduct, for they were treating me like a very dangerous criminal...
-I was removed from the cubicle and two armed guards placed me up against a wall.
A chain was fastened around my waist and I was handcuffed to the chain. Then my legs were placed in chains.
-I asked for permission to make a telephone call but they refused.
So secured, I was taken from the airport terminal in full sight of everybody.
-I have seldom felt so bad, so humiliated and all because I had taken a longer vacation than allowed under the law...
-We ended up in front of a jail. I could hardly believe that this was happening. Was I really about to be jailed? I was led inside in the chains and there yet another interrogation session ensued.
-I was fingerprinted once again and photographed. I was made to undergo a medical examnination, I was searched and then I was placed in a jail cell. I was asked absurd questions such as: When did you have your last period? What do you believe in? Have you ever tried to commit suicide?
I was completely exhausted, tired and cold.
-Fourteen hours after I had landed I had something to eat and drink for the first time...porridge and bread...
-I was afraid and the attitude of all who handled me was abysmal to say the least. They did not speak to me as much as snap at me.
-Once again I asked to make a telephone call and this time the answer was positive... [but] the telephone was setup for collect calls only and it was not possible to make overseas calls.
-The jailguard held my cell phone in his hand. I explained to him that I could not make a call from the jail telephone and asked to be allowed to make one call from my own phone. That was out of the question.
-I spent the next 9 hours in a small, dirty cell. The only thing in there was a narrow steel board which extended out from the wall, a sink and toilet.
-I wish I never experience again in my life the feeling of confinement and helplessness which I experienced there.
-I was hugely relieved when, at last, I was told that I was to be taken to the airport, that is to say until I was again handcuffed and chained.
-Then I could take no more and broke down and cried. I begged them at least to leave out the leg chains but my request was ignored.
-When we arrived at the airport, another jail guard took pity on me and removed the leg chains. Even so I was led through a full airport terminal handcuffed and escorted by armed men. I felt terrible.
On seeing this, people must think that there goes a very dangerous criminal. In this condition I was led up into the Icelandair waiting room, and was kept handcuffed until I entered the embarkation corridor.
-I was completely run down by all this in both body and spirit. Fortunately I could count on good people and both Einar (the captain) and the crew did all which they could to try to assist me.
-My friend Auður was in close contact with my sister and the consul and embassy had been contacted.
-However, all had received misleading information and all had been told that I had been detained at the airport terminal, not that I had been put in jail. Now the Foreign Ministry is looking into the matter and I hope to receive some explanation why I was treated this way.

Welcome to Tom Tancredo's America, baby! Crime is a disease and he's the cure! Maybe next time you'll think twice before you stay 3 extra weeks, or come over here to spend your money! Here's an explanation for you: don't do the crime if you can't do the time! Don't come for our sales if you don't like our jails!

(I know, I shouldn't laugh at things like this, but they're so stunning that I almost have to.)

How many times could criminal defense lawyers retell the part of the story below, after meeting with clients?

I saw the officials in this section handle other cases and it was clear that these were men anxious to demonstrate their power. Small kings with megalomania. I was careful to remain completely cooperative...

Yeah, guns and cuffs have a way of making you "cooperative," don't they? Tazers work pretty well too, I'm told.

Death of a Jazz Legend / Addict

2007-12-20T09:59:00.000-06:00

About 20 years ago, when I was in college, my dad took me to Washington, DC for a week as he had business, and a hotel room, there at the height of cherry blossom time. One night he insisted that we go to Blues Alley, a small jazz and blues club in Georgetown. I remember telling my dad the cover was too much, that he should save his money, but he insisted that I have this experience.

When we got in the club, I was amazed how intimate the atmosphere was. I could look right into the saxophonist's eyes as he played. In fact, when we sat down I remember him looking at us, as if concerned that we would be drawn into the music, as if he was trying to draw some energy from the crowd. It reminds me of Josh Karton's statement about real artists being that way because they're more concerned with what the audience is hearing, and how they're reacting, that in how the material is being delivered. In short, he seemed to focus on us and this created an incredible experience, and my first exposure to live jazz.

My dad was right. It was worth the cover as it's not often you remember a night 20 years ago that vividly. As my former poetry teacher described the feeling of writing a good poem, it was a "vertical moment in an otherwise linear life."

The man's name was Frank Morgan and he died last week at age 74.

On Tuesday, NPR's Fresh Air featured a 1987 interview he did (I saw him in 1988) and I was amazed to hear that he spent about 20 years of his life in prison, struggling with a heroin habit that he finally kicked in the mid-80's. The tragic part of the interview was that he described being treated like a celebrity in prison but being "a little fish in a big sea" on the outside. He described being able to play every day in prison and even said, as quoted on wikipedia:

"The greatest big band I ever played with was in San Quentin. Art Pepper and I were proud of that band. We had Jimmy Bunn and Frank Butler, and some other musicians who were known and some who weren't, but they could play. We played every Saturday night for what they called a Warden's Tour, which showed paying visitors only the cleanest cell blocks and exercise yards. But people would take that tour just to hear the band."

The NPR interview can be heard at this link. Wikipedia outlines Morgan's story:

Frank Morgan showed a great deal of promise in his early days, but it was a long time before he could fulfill his potential...in 1947 and was approached by Duke Ellington who wanted the then 15-year-old Frank to go on the road with his band. Frank's father wanted his son to finish school so the Ellington gig never materialized, but by the time he was 17, Frank was working at LA's Club Alabam, backing the likes of Josephine Baker and Billie Holiday. Morgan worked on the bop scene of early-'50s Los Angeles, recording with Teddy Charles (1953) and Kenny Clarke (1954), and under his own name for GNP in 1955.

Unfortunately, around that same time Frank followed his idol and mentor Charlie "Bird" Parker into heroin addiction, and spent most of the next thirty years serving time for thefts to support his habit. Yet except for periods in the Los Angeles County jail system, he never strayed too far from music. At most penal institutions, there were bands made up of inmates, and Morgan was greeted as a celebrity. He was constantly made gifts of mouthpieces, drugs, food, cigarettes.

When he was not incarcerated Frank performed occasionally around LA, but it was not until 1985 that Morgan, with the help of artist and future wife Rosalinda Kolb, managed to leave his life of "questionable interests" behind him and once again concentrate on his music. Resuming his recording career after a thirty-year hiatus, releasing "Easy Living" in June 1985, Frank was rediscovered and his unique history, combined with his equally unique sound and story-telling ability on his horn, made him a media star. He made multiple appearances on the Today Show in the '80s and '90s; starred in "Prison-Made Tuxedos," an off-Broadway play about his life, in 1987; was the first subject of Jane Pauley's "Real Life" primetime TV show on NBC in 1990; and won the Down Beat Critics Poll for Best Alto Saxophonist in 1991.

Is 30 hard years for a 12 year old cruel and unusual?

2007-12-19T11:28:00.000-06:00

That's the issue in Pittman v. South Carolina, a case in which a 12-year old who shot and killed both of his grandparents was sentenced to 30 years in prison without the possibility of parole. A petition for cert was filed yesterday in the Supreme Court (h/t How Appealing) alleging that:

...the 30-year sentence violates Christopher Pittman's Eighth Amendment protection from cruel and unusual punishment.

Such a lengthy sentence is "unconstitutionally disproportionate as applied to a 12-year-old child," according a copy of the petition provided by the Juvenile Justice Foundation. It said Pittman "is the nation's only inmate serving such a harsh sentence for an offense committed at such a young age."

Opponents of Pittman's sentence have created a web site devoted to his release, or at least his ability to apply for parole before he's in his mid-40's.

Don't get your hopes up. As I said in a previous post:

The vote on a United Nations resolution calling for the abolition of life imprisonment without the possibility of parole for children and young teenagers was nearly unanimously approved. In fact the vote was 185 to 1 with the United States the lone dissenter.

Or, as the New York Times described our national response to these issues compared with other nations:

[T]he United States stands alone in the world in convicting young adolescents as adults and sentencing them to live out their lives in prison. According to a new report, there are 73 Americans serving such [life without parole] sentences for crimes they committed at 13 or 14.

Don't Believe the Snitch

2007-12-14T10:18:00.000-06:00

Yesterday, Major League Baseball was rocked by the release of the Mitchell Report which contained allegations of widespread steroid use by current and former players.

Of course, the place most people turned were the names of players who, by their very inclusion in this very official looking report, were obviously guilty. Quickly, sportswriters like Dan Wetzel of Yahoo! Sports, in an article entitled, "Clemens is no different than Bonds" jumped to the conclusion that just being mentioned in the report, for people such as the Rocket, was enough proof to convict. Not only that, but the entire legend of a guy I saw pitch in the College World Series 22 years ago, was "gone." As muckraking journalist and truthseeker Wetzel put it:

It's all gone now, the legend of Rocket Roger dead on arrival of the Mitchell Report; one of the greatest pitchers of all time, his seven Cy Youngs and 354 career victories lost to history under a pile of lies and syringes. Clemens was injected with performance-enhancing drugs and human growth hormones by his former trainer starting in 2000 and continuing many times through the years, trainer Brian McNamee told George Mitchell in great detail.

Wetzel, showing a laughable lack of knowledge about people's ability to lie openly in court when it serves their interests, even says...

"The smoking gun comes from McNamee, a former New York Yankees employee who used to work as a personal trainer for Clemens and his buddy Andy Pettitte, who is also cited in the report. McNamee is also a witness in a federal investigation and spoke to Mitchell and federal investigators under the penalty of perjury."

In other words, McNamee's allegations must be true as they were:
1. In the Mitchell Report
2. Given in "great detail," and
3. Spoken under "Penalty of Perjury"

So they must be true, right? "Why even have this trial?," in other words. I mean he's been convicted in the press and the press never gets it wrong, especially after the lessons they learned on those WMD's, right?

Well, as Neil Young once said "there's more to the picture than meets the eye" (hey, hey, my my!). You see, Mr. McNamee wasn't merely talking under penalty of perjury and "in great detail," he was also out to save his own skin. He's not merely a former Yankee employee. He's also a snitch.

As Roger's lawyer says,

Clemens's lawyer, Rusty Hardin, said he had been told that McNamee was pressured by Jeff Novitzky, a tax investigator for the U.S. government, to give up names or face prosecution. McNamee agreed to cooperate with federal prosecutors under the terms that he would not be charged with a crime if he told the truth to the federal authorities and to investigators working for the report's author, former Senator George Mitchell.

Hardin criticized Mitchell, for naming players based on uncorroborated allegations. "He has thrown a skunk into the jury box, and we will never be able to remove that smell...,"

When I was in law school I clerked for a great lawyer named Clarence Mock. I was hooked on criminal defense work when I read a transcript in which the police took a witness to the scene of a "crime" and asked for the truth. After he told them he saw nothing about 20 times, the officer said something to the effect of "Do you know what we do to people who cover up for crimes? We charge them as accessories and they're punished the same way the criminals are. In this case, that could mean the death penalty."

After the witness continued to deny seeing the alleged perpetrator, our client, at the scene of the crime, even under threats of getting the death penalty (an obvious bluff) he finally began asking to go home and claiming to be hungry. The officer said something like, "Just tell us what you saw and we'll go eat those hamburgers that are in my car." Of course, immediate hunger outweighed possible future lethal injection and the "witness" started telling the officer the "truth," that he'd seen our client standing by the side of the road. So they pat the witness on the back, thank him for telling the truth, and go eat the burgers. The only problem was as soon as the dog got his treat, he didn't want to play anymore and said, "You know, everything I told you I made up. I didn't see anybody there."

I tell this story, which later lead to an acquittal before a judge, to illustrate the lengths the state will go to to get the "truth" which is occasionally nothing more than the information necessary to fulfill their current theory of the case.

The "penalty of perjury" and the "great detail" that lie behind the lies that are told in court all the time don't compare to the threat a snitch is facing when told:
1. Tell us the truth.
2. We'll keep asking you until you tell us what we want to hear.

I have no idea whether the Rocket used the roids. But I know that the greatest pitcher of the modern era shouldn't be convicted on the word of a "Yankees employee," who not only had to endure the horror of working under Steinbrenner, but who was telling the authorities what they wanted to hear to keep from being a trainer in what Spongebob refers to as "the stony lonesome."

His own "performance" was enhanced by his desire to stay out of jail. Before we ruin and write off the Rocket, maybe we should consider the source: the snitch.

Discovering the Client's Story and Telling it Well

2007-12-13T15:50:00.000-06:00

Josh Karton says we are all "hard-wired" for stories. Recently I saw this dramatized when I picked my daughter up at Borders at 2 a.m. after she waited for hours to buy the last Harry Potter book. Even in this digital age, it was amazing to see thousands of people at one bookstore and to realize there were many other bookstores that looked the same way in Omaha and perhaps millions of bookstores across the country looking the same way.

But how do we tell the judge a good story, one that doesn't simply entertain them but makes them genuinely empathize with our client and minimize the sentence she's facing?

I tried something new once after losing several appeals of termination of parental rights cases before the Nebraska Court of Appeals. I began my argument with the question, "May I tell you a story?," assuming that while they liked the respect inherent in "May it please the Court," that they were up for something different and perhaps bored with it. I knew it would get their attention and that I needed to do that to have a shot at winning this longshot appeal.

I went on to tell a story, seemingly unrelated to the case, about me watching baseball on t.v. and my wife asking me "How can you watch this stuff day after day? It's so boring." I said to her, and to them, "Yeah, you're right, it's boring but," I went on, "it's the only thing on t.v. that you don't know the ending to. And once in awhile, it's not boring; it's magical, and somebody digs down deep and surprises you, and you see an ending that's more dramatic than anything any made for t.v. drama. That's when it's amazing, when you see somebody get a chance to prove themselves against all odds, and they do something dramatic, right there live, before your eyes. That's why I watch baseball," I said, "for those moments when people do amazing things that you never expected."

The judges were still looking at me dumbfounded, and, while they hadn't even answered my question about whether they wanted to hear a story, I took their silence as agreement and carried on anyway. That's when I brought the story back to the case, saying "and that's what this case is all about, my client never had the chance to step up to the plate. And because she didn't get this chance, we never got to see how this story might have ended, how something magical might have happened..."

And then I went into my argument about how my client's parental rights should not have been terminated, how she didn't get the chance to see if she could do what was asked of her in an evaluation that was before the judges as an exhibit. The phrase "she never got a chance" became a theme that I hoped they would take back with them. I think I even mentioned something about the Bad News Bears, hoping they might have taken their kids there and remembered the scene at the end where the game ends early to chants of "Let Them Play!" as I wanted to get my client another chance to "play" too.

But, it didn't work.

I lost the case. But I felt like my presentation, my story, worked despite the fact that we lost, because the "live event" seemed to get their attention. My goal was to get them to look at the case differently, more closely, and to have the phrases I used echoing in their minds when they read the exhibits and crafted their opinion.

I wish I would have had the chance to ask them whether my odd way of beginning an argument repelled or attracted them to my client's cause. I knew it was a tough case to win and that drastic action was necessary. But, it didn't work, we didn't win, so I can't claim anything other than a feeling that it came off pretty well, but evidently not well enough.

Maren Chaloupka once wrote that there is a fine line between a "courtroom stunt" and a successful, engaging presentation that ultimately wins the case. My story might sound like a stunt described in words, but it felt like it hit home, even to judges who were uncharacteristically speechless throughout my argument.

But, let's face it. We've all seen and perhaps even performed courtroom stunts that had good intentions but didn't work in the moment. So what's the difference between a stunt and a good story? A stunt is about the lawyer's ego, about her need to be "different" or simply on stage. A good story, however, is about the client, about getting the judge to see that person as something other than a case number or offense, empathizing with the client's choices and background and sentencing the person accordingly, mercifully.

I've told some good stories in court that got the judge's attention, but I've also tried and failed, when my ideas sounded better in rehearsal than "on the stage" of a courtroom. But I've also seen a lot of lawyers who are afraid to do anything that's not "by the book" even when the case cries out for something creative and unorthodox, when not doing so turns the trial into a slow plea.

One phrase I remember from NCDC is "a trial is a contest between competing stories. The prosecutor is handed her story in the form of the police reports. But this is only one side of the story and until we discover our client's story, their story will win and our clients will lose." I have even heard a law enforcement officer say that "it's all in how you write the report" as if he was aware that what he wrote would be accepted as the truth, even when he was simply making up stories.

One luxury of private practice that I didn't have as a public defender is the extra time to "discover the story" of the client. In fact, the other day I met with a client for an hour before we cancelled her warrant, learned all about why she missed court, how she moved away to be closer to the couple who wanted to adopt her baby and then moved back to Omaha with the child after deciding to keep it. I learned that she came to Omaha after meeting the father of her child, how she met him while travelling across the country selling magazine subscriptions, and how he promised her a great life here, thousands of miles away from her family, and how he beat her up when she got here. She was charged with assaulting him, with damaging his car, and with disorderly conduct, but that was only the last chapter in a story that needed to be discovered.

When we got to court, the judge I'd picked as likely to let my client go with no bond was gone, replaced by a judge who would set a bond if we didn't enter a guilty plea that day to either assault, damage to property, or disorderly conduct. But the hour spent discovering her story paid off as the judge, after hearing my client's story behind missing her trial date, for purposes of deciding whether to set a bond, later asked the prosecutor to drop the assault and damage to property charges and plead to the disorderly conduct for a $25 fine.

The car my client had scratched with the paint can, that I was worried would lead to payments of restitution, was not important to the judge after he heard how the owner had two previous domestic violence convictions for assaulting my client and how she'd been struggling with what to do with the baby he'd left her with. The hour spent "discovering the story" paid off and probably saved her days in jail and hundreds in restitution, and perhaps an assault conviction. I didn't have to even attempt a courtroom stunt as her story was engaging enough by itself.

But how do you know when the time is right to step out of "lawyer mode" and try storytelling techniques that hopefully grab the fact finder's attention and win for your client? Like Jeff Bridges says about Duracell, "it just has to work." But if staying in "lawyer mode" isn't working, maybe it just has to change?

Defendant's "Failure" to Testify?

2007-12-10T10:18:00.000-06:00

Mark Bennett, a student of Terry McCarthy, who knows the importance of choosing language that not only doesn't demean your client but which describes him or her in the best possible light, spots something subtle but potentially important in Texas' Criminal Jury Instructions:

"You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify..."

Nebraska's instruction isn't quite so bad, but is entitled, "DEFENDANT'S FAILURE TO TESTIFY." (NJI2D Crim. 9.4) It doesn't mention the word "failure" in the instruction, but the judge reads the title before getting to the instruction itself:

"The defendant has an absolute right not to testify. The fact that the defendant did not testify must not be considered by you as an admission of guilt and must not influence your erdict in any way."

There is also no mention of the source of the privilege, but the comment says "the committee left mention of the Constitution to argument of counsel." In other words, it looks like defense attorneys need to start arguing for (1) a mention of this as being a "Constitutional" right and, (2) objecting to it being described as a "failure."

In fact, my former boss, Tom Riley, is arguing a death penalty case right now and I'm guessing that the defendant won't testify, meaning that the jury will undoubtedly hear about his "failure" when the judge instructs the jury. I'm sure my boss has more than this on his mind right now, but, in a case like this, even a subtle word choice might be the difference between life and death.

"I'm a piece of (deleted) and now I'm going to be [in]famous"

2007-12-06T15:37:00.000-06:00

Those are the words Robert Hawkins wrote in a note left in his room before he went to the Westroads Mall and opened fire randomly with an AK-47. From the local news story...

"Maruka-Kovac said Hawkins lived with her, her husband and their two sons. She said that the last time she saw him, she thought he was going to pick up his eyeglasses. The last time she talked to him, about 40 minutes before the shooting was reported to police, he told her he was sorry to be a burden and thanked her for taking him in. He also told her for the first time that he had been fired.

"I tried to talk to him and say, 'Come on home. We'll work it out,'" Maruka-Kovac said.

She said he told her it was too late, and that he'd left some notes in his room to explain why.

"He wrote, 'I'm a piece of (deleted) and now I'm going to be famous,'" she said.

Maruka-Kovac said she found the notes, called Hawkins' mother and then the police. It wasn't long before reports of the shooting were everywhere.

"I had a sick feeling when I heard about it," she said. "I can't believe he would go this far. He was a good-hearted kid. He was just going through some rough times."

I was in court getting a 12-year old's warrant cancelled when the news came that two had been shot at Westroads Mall, a mall where my wife used to work about five years ago. Then, after I stopped into another lawyer's office to talk about a personal injury case, the news came that 8 were dead. My wife, who was very familiar with that store, describes it as the most open of any retail store, with a clear view from the third floor onto the two lower floors and few walls or obstacles to hide behind besides racks of clothes.

Like a lot of criminal defense lawyers, my first thoughts went to "I hope it isn't one of my clients" as a lot of us can easily think of people about whom the question seems to be not "if" but "when."

The two scenes I'll remember most about this incident are the guy sitting next to me, by himself, at a stoplight, pushing up his glasses and wiping away tears, evidently hearing a report on the radio or just thinking about what the only news story has been around here lately. The other "scene" I'll remember is my dad calling and leaving me a message asking if we were out Christmas shopping last night and then saying, "but give me a call, would you?" It reminded me of the time he called at 6:30 a.m. when I was in college to "make sure I'd checked my oil lately."

Luckily there were a lot of officers on duty for Bush's visit, which evidently made the response quick. Unfortunately when they got there, they only found the effects, and ultimately the cause, lying next to his step-father's AK-47, smuggled in under his black sweatshirt.

Naomi Klein's The Shock Doctrine

2007-12-06T11:14:00.000-06:00

As a follow up to yesterday's post about Paul Krugman's dire forecast about the economy, below are two paragraphs that stood out as I read Naomi Klein's great book The Shock Doctrine.

A more accurate term for a system that raises the boundaries between big government and big business is not liberal, conservative or capitalist but corporatist. Its main characteristics are huge transfers of public wealth to private hands, often accompanied by exploding debt, an ever widening chasm between the dazzling rich and the disposable poor and an aggressive nationalism that justifies bottomless spending on security. For those inside the bubble of extreme wealth created by such an arrangement, there can be no more profitable way to organize a society. But because of the obvious drawbacks for the vast majority of the population left outside the bubble, other features of the corporatist state tend to include aggressive surveillance, once again, with government and large corporations trading favors and contracts, mass incarceration, shrinking civil liberties, and often, though not always, torture.
...
That is how the shock doctrine works: the original disaster -- the coup, the terrorist attack, the market meltdown, the war, the tsunami, the hurricane -- puts the entire population into a state of collective shock. The falling bombs, the burst of terror, the pounding winds serve to soften up whole societies much as the blaring music and blows in the torture cells soften up prisoners. Like the terrorist prisoner who gives up the names of comrades and renounces his faith, shocked societies often give up things they would otherwise fiercely protect... Evacuees at the Baton Rouge shelter were supposed to give up their housing projects and public schools. After the tsunami, the fishing people in Sri Lanka were supposed to give up their valuable beachfront land to hoteliers. Iraqis, if all had gone according to plan, were supposed to be so shocked and awed that they would give up control of their oil reserves, their state companies and their sovereignty to U.S. military bases and green zones.

I'm not finished with the book yet, but I am amazed at the parallels Klein draws between the will to torture, the will to invade, and an almost fundamentalist view of free markets with no tolerance for any interference. She describes true believers of Milton Friedman's economic philosophies as believing that the real enemy of progress was not communism or totaliarianism but instead people who believe in a mixed economic system in which government steps in to correct the effects of an unregulated free market.
Sounds a lot to me like a group of group of people whose supporters would write books with titles such as "In Defense of Internment" or "Treason" or even "How to speak to a Liberal, if you must." As Bill Maher says, they run on a platform of "government doesn't work" and then get into power and prove it.

It's time to get beyond labels such as "Democrat" and "Republican" and instead begin to look at candidates in terms of their "Corporatist" tendencies.

Paul Krugman's Scary Observation

2007-12-05T09:25:00.001-06:00

It's a little off topic, but I read this quote from New York Times columnist Paul Krugman from his Monday column. Frightening, don't you think?

The financial crisis that began late last summer, then took a brief vacation in September and October, is back with a vengeance. How bad is it? Well, I’ve never seen financial insiders this spooked — not even during the Asian crisis of 1997-98, when economic dominoes seemed to be falling all around the world.

This time, market players seem truly horrified — because they’ve suddenly realized that they don’t understand the complex financial system they created.
...
Why was this allowed to happen? At a deep level, I believe that the problem was ideological: policy makers, committed to the view that the market is always right, simply ignored the warning signs...And free-market orthodoxy dies hard. Just a few weeks ago Henry Paulson, the Treasury secretary, admitted to Fortune magazine that financial innovation got ahead of regulation — but added, “I don’t think we’d want it the other way around.” Is that your final answer, Mr. Secretary?

I haven't had a chance to read Krugman's latest book, The Conscience of a Liberal, yet, but am currently reading Naomi Klein's The Shock Doctrine about the "Chicago Boys" and their effect on modern economies, and politics. If you've read the book, you know the phrase "free-market orthodoxy" is an understatement as used to describe the followers of Milton Friedman, true free-market fundamentalists, as described by Klein.

Alan Arkin on Acting (and Lawyering?)

2007-11-30T09:26:00.001-06:00

Ever since I had the chance to attend seminars with Josh Karton, (the actor and writer turned trial lawyer instructor) I've been fascinated with how much lawyers can learn from actors. After all, when we're in trial, why not apply the techniques of the people whose specialty is captivating a live audience? Why try to reinvent the wheel in the courtroom when the techniques of the stage translate so well?

Josh Karton assisted Neil Kaytal before he argued Hamdan v. Rumsfeld before the Supreme Court and reportedly was able to get the brilliant law professor to be much more persuasive by placing nine of his kids' teddy bears in chairs before him during "warmup" arguments. This got the obviously extremely intellectual law professor to speak much more like he would if he'd been at home, telling his wife and kids about why the case was so important, rather than as a law professor making his first Supreme Court argument.

Some will laugh at that idea, thinking that the Supreme Court makes it's decisions purely intellectually, having no time for theatrics, "tricks," or teddy bear talk.

But you can't argue with the result, as Hamdan represented one of the most decisive blows to the excesses of the Bush administration thus far.

So I've tried to read up on the subject (even though an author I love, Anna Devere Smith, accurately says that "talking about acting is like dancing about architecture") and came across a book called "The Actor Speaks:Twenty-Four Actors Talk About Process and Technique" which features interviews of actors discussing their craft. The best interview is that of Alan Arkin, and includes this quote:

“The only time I was able to have a good time was when I got to the point in the role was playing me. When I wasn't acting anymore. It happened to me for the first time I was 19, and I became a junkie for that experience. The driving force, not only of my work of my life, is that experience. When you're not doing it anymore, it's just happening. You were just off somewhere in the sideline going “ Go, Go! Don't stop! It's okay!” Doing 50 things you never did before and that you’ll never do again. It’s playing you. The first time it happened was a play... I was playing something that I had no understanding of it all, a soldier home on leave, a husband and a father -- none of which I had ever experienced. I killed myself on the production... Then in one of the dress rehearsals, I went on stage, and I was no longer there. The character was there, and I just had to get out of the way. It was like downhill skiing on an endless perfect run, or surfing the perfect wave in Hawaii. Someone once asked me if it was an out of body experience. It never occurred to me that it was but the way people describe it, it feels that way. I felt like it was 40 feet away watching the performance. All my critical faculties were off with my observer, but onstage there was nothing but the character. Both of those people were me.

What took me years and years to find out was that this experience could happen to anybody in any walk of life. I became a junkie for acting, because I felt that the power of that experience lay in acting. It took years to discover that it didn’t lay in acting, it lay in me. Experiences like that cannot happen unless you are deeply devoted to whatever you're pursuing.”

I've been trying to become a good trial lawyer since I believe in the "role" trial lawyers play and also because I've found what my trial ad teacher told me to be true. He said something to the effect of "It's often a lot of work but unlike some other areas of the law, it's occasionally exhilarating."

But I've also found it true that the "experience" is rarely "exhilarating" unless I'm "deeply devoted to whatever [I'm] pursuing."

This experience reminds me of something Josh Karton said when I had the opportunity to work with him at Trial Lawyers College. I don't remember the quote exactly and haven't reviewed my notes in awhile, but remember him saying something like: "When you care about the audience's experience more than your own, something magic happens."

Doesn't Karton's advice sound like it will take you to that place Arkin described when he "felt like it was 40 feet away watching the performance."

As lawyers it's not about us, it's about the client, but if our "performance" motivates the jury and thus helps the client, don't we all need to realize what took Arkin "years and years to find out", that the experience of really connecting with an audience and using your own exhilaration to help your client win "could happen to anybody in any walk of life," even a lawyer whose law school experience probably taught her to check her emotion and heart at the door of the courtroom?

Please Don't Label My Client

2007-11-29T09:10:00.000-06:00

Last week I caught a portion of an NPR show called The Parents Journal which featured Dr. Scott Shannon, author of Please Don't Label My Child. The book's subtitle gets closer to its real point: "Break the Doctor-Diagnosis-Drug Cycle and Discover Safe, Effective Choices for Your Child's Emotional Health"

At first I thought this was another John Rosemond wannabe, simplifying a complex problem into a simple solution and who was probably more of a political commentator than a true child advocate. But I was wrong. It was a story he told that convinced me he was truly onto something. I haven't read the book, but the story reminded me of a lot of delinquents who have their symptoms treated but sometimes aren't able to address the root of their problems.

Dr. Shannon described a child being referred to him who was exhibiting a lot of behavior problems in school. After diagnosing him as something along the lines of "oppositional defiant" the doctor prescribed mood stabilizing drugs and the kid's behaviors improved greatly. End of story? Nope, not quite.

Shortly thereafter the kid disclosed ongoing sexual abuse, meaning that the behaviors weren't organic, but were more like a pool ball responding to being struck, repeatedly, by an outside source. In "numbing" the child's behaviors rather than getting to the root of them, the doctor was confusing causes and effects, and perhaps allowing the continuance of an abusive situation for a young child.

So that's what brought the book about. It reminded me of the juvenile delinquency client who disclosed to me that he'd been sexually abused by an older relative. Until we learned this, we treated the symptoms without realizing that they were responses to abuse and not manifestations of delinquency.

I haven't read the book yet, but I wonder how many other kids are "treated" this way: comfortably numbed and blamed, even sent back to abusive situations when the focus is on them and not on the source of the behavior.

Medication can be miraculous, but it can also be an easy way out for doctors, judges, attorneys and providers. Like Juvenile Detention Centers, it's probably overused, becoming the default treatment when the bureaucracy fails to get to the root of a kid's problem.

Along those same lines, Scott Greenfield at Simple Justice links to a link to a New York Post OpEd by an autistic man suffered from a system that tried to make him be "normal" when he was simply misunderstood. An excerpt:

"My isolation, combined with a longstanding rift I had with my family, led to severe depression by age 9, which went undiscovered until I was 14 or so. Unable to express my emotions, I was placed in outpatient therapy for four years, which was enough to allow me to see my existence as valid. In all, I'd say that part of my life wouldn't have happened if I were better understood and wasn't persuaded that I was diseased, disordered or sick and in need of a cure.

Parents, educators and others who work with autistic people should take these words to heart, and continue to do all they can to work with autistic kids and teens, rather than trying to make them normal."

Feeding the Wolves

2007-11-26T14:10:00.000-06:00

I met an old friend from law school today for lunch and we discussed how many lawyers seem to enjoy arguing over every detail, even when it does their client a disservice. When I got back to the office, I found this story from the Trial Lawyers College listserve:

Two Wolves

One evening an old Cherokee told his grandson about a
battle that goes on inside people. He said, "My son,
the battle is between two 'wolves' inside us all.
One is Evil. It is anger, envy, jealousy, sorrow,
regret, greed, arrogance, self-pity, guilt,
resentment, inferiority, lies, false pride,
superiority, and ego.

"The other is Good. It is joy, peace, love, hope,
serenity, humility, kindness, benevolence, empathy,
generosity, truth, compassion and faith."

The grandson thought about it for a minute and then
asked his grandfather: "Which wolf wins?"

The old Cherokee simply replied, "The one you feed."

A lot of lawyers feed the wrong wolf, in my opinion, but I have to admit that this is something I need to work on as well. Which wolf do you think law school teaches you to feed?

20 years for $1500?

2007-11-23T08:16:00.000-06:00

I occasionally use craigslist to sell things around the house. In fact, I tried to sell a piano (later gave it away) for $200 and got an email telling me to take it off the market tand that a "cashier's check" for $200 was on its way. That message was then followed by another that said the man's assistant had accidentally made the check out for $1200 and that if I could just cash the check and give the difference to the man who picked up the piano, we'd all be happy.

The "buyer" was from Nigeria and apparently had just inherited a bunch of money from a Nigerian prince. How could I lose?

As if that wasn't suspicious enough, the check arrived in a fedex envelope (I'd heard they do this to avoid mail fraud charges) and when I called the company to verify the check, they told me their checks had been used in frauds all across the country.

But other than this, I've had good luck with Craigslist as long as I've followed their advice to trade locally and get cash.

Then last night, bored after a day of eating and football, I checked the "legal services" portion of Omaha Craigslist for the first time, and saw this ad:

Misdemeanors $750; Felony - Fourth and Third Class - $1,500. Call David Tar***, Tar*** Law Office, 402-960-****.

I've never met this lawyer, but we share the same first name and the same first three letters of our last name. Even our phone numbers are very similar as both start with "960" and end with combinations of "3321." I've even received the guy's mail by mistake in the past.

Here's the problem, though. A "third class" felony in Nebraska carries, under section 28-105, this penalty:

Class III felony Maximum - twenty years imprisonment, or twenty-five thousand dollars fine, or both. Minimum - one year imprisonment.

So, you're a criminal defendant in Nebraska, facing up to twenty years, and you see an ad for a lawyer who will represent you for a flat fee of $1500! You think, "that's less than $100 per potential year;" what a deal!

But think about that for a second: You're facing up to 20 years in what Spongebob once called "the stony lonesome," you need a competent lawyer who will stand up against the awesome power of the state and you're scared. But, like most criminal defendants, you're also broke, living paycheck to paycheck, and you probably were found indigent and had a public defender appointed to represent you, as in Douglas County the "indigency hearing" usually consists of the judge asking you if you want to hire your lawyer or have a free one appointed.

Like a person diagnosed with cancer, however, you might, after talking to your p.d., decide to get a second opinion and scout out what a private attorney will cost. Then you find a guy who will take your case for just $1500!

But what will $1500 buy you, you ask? Well, you assume your lawyer is the expert, so you put your trust in him or her, again like a person facing a cancer diagnosis.

But, let's be honest, do you think that will buy you a motion to suppress, a focus group to prepare for your jury trial, hours of preparation, years of experience in dealing with the varied personalties of judges, prosecutors and potential jurors?

Nope. It will buy you a quick plea.

It's like going to the doctor for a pain in your head and having her tell you "I can fix that for $1500;" it won't buy you brain surgery. It will probably buy you a quick prescription even if your ailment truly cries out for $100,000 in medical care.

Not a fair comparison you say? After all, a doctor could save your life, but this lawyer is only dealing with TWENTY YEARS OF IT!

You see my point? You don't go to a doctor and say "Fix my problem for $1500." You let him or her diagnose you and decide whether you need $1000 worth of treatment or $100,000. And if you find someone who says she'll fix you for $1500 without first diagnosing your condition, run the other way fast!

Find a lawyer you feel comfortable with, who has passion, who cares about your case and the next 20 years of your life. Ask questions and be a consumer, finding out if he or she is a member of the local criminal defense attorneys association, if they've ever been to NCDC, or to Gerry Spence's Trial Lawyers College.

Find out if they've ever been a prosecutor and ask yourself whether that is important to you, whether it signals what you want in a lawyer.

Like an attorney picking a jury and asking herself whether a teacher, for example, will make a good juror for you, none of these questions should be decisive in itself. It's like my friend Terry McCarthy told me, "Don't single issue people."

What he meant, as he was teaching me to pick jurors, was to find a good person and not to strike someone simply because I found one thing out about them.

Find someone you trust, who seems competent, passionate, affordable and caring, kind of like the way you'd choose a doctor if you were facing a cancer diagnosis.

Above all, don't be cheap. And don't be intimidated. Shop around until you find someone you trust, who will fight for your rights and stand up against the cops and the prosecutors for you.

Don't trust 20 years of your adulthood to someone who says they'll take care of you for $1500.

If they do it right, they'll be earning less than minimum wage on a complicated felony. And if they do it wrong, you might be earning less than minimum wage in
"the stony lonesome" with your lawyer's name tattooed on your knuckles the way Jerry Seinfeld envisioned his Uncle Leo doing pullups.

Shop around. Don't try to "shop victoriously" for a lawyer, thinking cheaper is better or that competence is uniform.

The life you save might be your own.

Giuliani on the Exclusionary Rule

2007-11-19T16:49:00.000-06:00

In an interview with The Weekly Standard, Rudy says this about his views on the exclusionary rule:

"I remember once I had a case in court, wasn't mine, it was one of my colleagues', I'm pretty sure that's right. I remember it right, and a judge ruled that the seizure of the evidence and the guns was illegal. And the assistant U.S. attorney, who thought the ruling was wrong, got up and said to the judge, 'Do I have to give it back to him? Since it's his property, does it mean he leaves the courthouse not only a free man, but do I, should I, judge, should I give him the drugs and guns back?' And the judge got very angry. I think he was disciplined, the assistant U.S. attorney was disciplined, and I thought he was making a real point that the judge shouldn't have gotten angry about, because in essence--well, we didn't have to give the drugs and the guns back--but I'm pretty sure that a drug dealer, and a potential murderer, got out of the courthouse that day, and he got some more drugs, some more guns. Why should innocent people in society pay the price of mistakes that law enforcement officers make? And finally, when they're just mistakes, which happen in an intricate business like law enforcement, why, why the hell--why the heck--are you making society more dangerous as a result of it?"

Without a hint of irony, the article goes on to say,

"In his view, the judiciary--not the legislature or the executive or all three coequal branches--is the final arbiter of a law's constitutionality. In a July interview in Iowa, Giuliani explained to me the role each branch ought to play in the functioning of government. "It's real simple," he said. "The legislature makes laws, the executive carries out those laws, and the judiciary interprets them. And if any one of the three oversteps their bounds, it seems to me, we've actually deprived the American people of the liberty and the freedom and the democracy they have."

What about the judge who "ruled that the seizure of the evidence and the guns was illegal" and, following the Supreme Court's interpretation, ruled that the evidence be excluded at trial? Wasn't that judge simply carrying out his role and applying a law on the books that required the exclusion of evidence against the accused that was seized illegally in violation of the Fourth Amendment?

The interviewer then asks Rudy, "What do you do if you disagree with a law Congress has passed, I asked."

"Then you go to court," he said.

Here's where it gets really scary...

As mayor of New York City, Giuliani put these ideas [sic] into practice and, if you listen to him long enough, you begin to understand that if he becomes president he will attempt to apply them on a global scale."

Then Giuliani gets to this stunning paragraph, (which Andrew Sullivan describes in his blog at the Atlantic)

"Someone once said to me that what they don't get about the Democrats, and even some Republicans that do this, is they're more concerned about rights for terrorists than the terrorists' wrongs," Giuliani went on. "I mean, this granting of rights to criminals and terrorists, even when they're necessary, come with a price, a price at the other end of it. Even for the ones that are necessary, like, let's say, the Miranda ruling, it's one you agree with--there's a price for that. Maybe it's one worth paying. The exclusionary rule, there's a big price for that: Criminals go free. They walk out of court. If you say, you know, no aggressive questioning, then we're not going to find out about situations. If you say no wiretapping, well, there'll be conversations going on, planning to bomb New York, or Los Angeles, Las Vegas, and you're not going to find out. And, when we draw these lines, at least let's be honest with people about the consequences of them. Let's not fool them into thinking that there is no consequences to this. People will say that aggressive questioning doesn't work. I, you know, I . . . Honest answer to that is, it doesn't work all the time. Sometimes it does."

Wow. First it was "enhanced interrogation" and now it's "aggressive questioning." As Andrew Sullivan responds:

"Rights for terrorists"? How about rights for terror suspects? I'm sorry but those of us who support the Constitution, the rule of law, the Geneva Conventions, and the separation of powers are not in love with the evil that terrorists do. And it's deeply offensive to say we have more concern with terrorists' rights than with their wrongs. We have concerns about human rights and civil liberties - things that Islamists want to destroy.

We are just aware that demagoguic over-reaction can destroy liberty more profoundly than any terrorist act. And by demagoguic, I mean the notion that opposition to torture or detention without charges or warrantless wiretapping or a law-free executive is somehow pro-terror. It is, rather, pro-freedom. And freedom, in the end, is the only real answer to Islamism's evil.

Notice, moreover, that Giuliani seems to harbor no notion that any terror suspect in the US is innocent until proven guilty, and assumes a complete, reflexive conflation between "criminals" and those charged with a crime, as if no government official could ever confuse the two, or ever make a mistake and decide to cover it up. Notice also his assertion that some Democrats want no wiretapping, period. What they and rule-of-law Republicans favor is wiretapping with warrants, and minimal oversight, to prevent abuse. Again: what's staggering to me is that Giuliani never seems to contemplate that such abuse is even possible. Nothing could be more alien to a truly conservative mindset.

It seems to me that a vote for Giuliani is a vote for a police state that uses torture.

To people who think Giuliani will make a good president, I say "let's not fool them into thinking that there [will be] no consequences to this."

Scott Horton, Again, on Maher Arar

2007-11-16T15:58:00.000-06:00

Scott Horton, writing in his Harper's column, describes the case of Maher Arar, the man who was snatched in New York and sent off to Syria to be "questioned" by the Syrians 'cause, you know, "we don't torture."

Of all the Bush Administration’s many perversions of the justice system, there is something particularly distressing about the case of Maher Arar. A Canadian software engineer, he was changing planes in JFK on his way home to Canada after a Mediterranean vacation when American law enforcement snatched him up. Arar had been fingered as a terrorism suspect by Canadian authorities. Within a brief period of time, he was interrogated, locked-up and then bundled off to Jordan with directions for transshipment to Syria, a nation known to use torture. Indeed, it was plain from the outset that he was shipped to Syria for purposes of being tortured, with a list of questions to be put to him passed along. Never mind that Syria is constantly reviled as a brutal dictatorship by some Bush Administration figures who openly dream of bombing or invading it… the Syrians, it seems, have a redeeming feature—their willingness to torture the occasional Canadian engineer as a gesture of friendship to the Americans.

Read the entire article, and his on-going column for that matter. Harar's treatment and the subsequent stonewalling is particularly stunning but fortunately all is now right with the Bush administration. Here is a quote from Bush's speech to the Federalist Society, as illustrated by Glenn Greenwald. Bush should truly be commended for delivering it without cracking a smile. He truly is the perfect ventriloquist's dummy for Dick Cheney, whose secret service name is "Edgar" (Bergan) while Bush's is "Charlie" (McCarthy). Here is what he said, straightfaced, to wild applause at the Fed Soc:

The President's oath of office commits him to do his best to "preserve, protect, and defend the Constitution of the United States." I take these words seriously. I believe these words mean what they say.

Actually he believes these words mean what John Yoo thought they meant when Yoo wrote:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

"The words mean what I say and mean what I want," in other words.

Scott Horton on Mukasey / Waterboarding

2007-11-03T11:11:00.000-05:00

Scott Horton writes in Harpers about the real reason Attorney General nominee Michael Mukasey (who will likely be confirmed after Senators Schumer and announced their willingness to support his nomination yesterday) repeatedly refuses to state that waterboarding is torture:

The New York Times says the issue is one of legal culpability of those who have administered the program. In a speech I delivered in Ohio last October, “When Lawyers Are War Criminals,” I went over this analysis in some detail and concluded it was incorrect. The CIA personnel, military personnel and contractors all have immunity. But there is a class of persons who are probably not immunized in any effective way by the current statutes, namely the administration officials who authored this scheme: Dick Cheney, David Addington, Donald Rumsfeld, Jim Haynes and a handful of others. They are the figures “on the line” who are most adamant that Mukasey (or any substitute for Mukasey) provide them with the protection they feel they need.

Try to fathom Mukasey's dilemma for a second and what it says about where we are as a nation. The person nominated for chief law enforcement officer of the nation cannot say that a technique banned by the Army Field Manual, used extensively by the Pol Pot regime in Cambodia (remember The Killing Fields?), and by the Spanish Inquisitors cannot be described as "torture" because to do so would subject officials at the highest levels of government to prosecution for war crimes as well as force them to admit that Bush's claim of "We don't torture" was another outright lie.

A former federal judge, Mukasey cannot state as an official what he believes as a person, that pouring water continuously over a person's face while his legs are elevated to create the sensation of drowning, is torture. He can't say this as he undergoes the nomination process else he have to later admit that his description would or at least should require him to prosecute those who nominated him as chief law enforcement officer.

As Hamlet said, "That it should come to this!"

Then today, it is revealed that a Justice Department official who replaced Jack Goldsmith at the White House's Office of Legal Counsel, personally had himself waterboarded to judge whether it amounted to torture. As ABC News describes it:

A senior Justice Department official, charged with reworking the administration's legal position on torture in 2004 became so concerned about the controversial interrogation technique of waterboarding that he decided to experience it firsthand, sources told ABC News....Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use... But Levin never finished a second memo imposing tighter controls on the specific interrogation techniques. Sources said he was forced out of the Justice Department when Gonzales became attorney general.

If Levin found waterboarding terrorizing, think how it feels when you are not held in a controlled environment but instead led to believe it will be kept up until you drown. Mukasey finds this "repugnant" but can't call it "torture" because the Federalist Society screeners know this characterization will subject even Cheney and Addington to future prosecutions.

Sound like a guy you want as chief law enforcement officer? A majority of Democrats on the Judiciary Committee think so and his nomination seems inevitable.

As depressing as this is, consider another article by Scott Horton where he describes the fate of a member of the Nazi party and a lawyer.

I want to talk about a man who deserves to be remembered in the course of this meeting. He was more than merely a "good German;" indeed, he was a man whose powerful moral example serves as a model for all of us today, a man who represents the ethical pinnacle of our profession. And the strange thing is that he was a staff lawyer at the German defense ministry during the Second World War. His name was Helmuth von Moltke. His tenacious advocacy of the Geneva and Hague Conventions in the face of withering criticism and suspicion from the Nazi hierarchy saved the lives of thousands of civilians and prisoners, particularly on the Eastern Front and in the Balkans. It also led inextricably to his execution at the hands of the Nazis in 1945.

Disgusted by an atmosphere in which law was constantly subverted to political expedience, Moltke envisioned harsh prosecutions of politicians and lawyers who engaged in such antics as an essential purgative. In a draft dated June 14, 1943, Moltke envisioned a special international criminal tribunal to be convened at the conclusion of the Second World War for the purpose of bringing to justice those who violated the laws of war. Lest there be any doubt, it was principally the men he worked with every day in the Wehrmacht whose punishment he foresaw. In view of mounting evidence of a crime of genocide, and out of concern that international customary law failed yet to provide a medium for its punishment, he advocated an expansive posture for prosecution. "Any person who violates the essential principles of divine or natural law, of international law, or of international customary law in such a fashion that makes clear that he contemptuously disregards the binding nature of such law shall be punished," he wrote in a plan for a post-war tribunal in 1943.

I come to the example of Moltke for another reason, namely that he very properly puts the emphasis not on the simple soldiers who invariably operate the weaponry of war, but on those who make the policies that drive their conduct. And in that process, his stern gaze falls first on the lawyers. In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law – as Jackson said "the basic building blocks of civilization"? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated?

These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system."

How will history judge lawyers today? Is Rudy Giuliani right when he says that torture depends on who's doing it?

More on Matt Diaz

2007-11-01T12:53:00.001-05:00

Scott Greenfield of Simple Justice (recently nominated as one of the best legal blogs in the 2007 Weblog Awards) wrote a post last week in response to my posts about the plight of Matt Diaz, the Navy lawyer who secretly sent the names of all Guantanamo Bay detainees to one of the lead plaintiff's lawyers who was suing to have the names released.

As Greenfield observes:

I would very much like to write...that Diaz is an American hero for having bucked the military, given life to the Supreme Court's Rasul decision, and fought a government that he believed was violating the law. I would like to, but I can't...

I don't doubt Diaz's claim that there was no way up the chain of command that would have altered the government's decision to stonewall the defense lawyers seeking information about the Gitmo detainees. He had no lawful means to act to achieve the outcome he sought. Aside from his covert (and ill-conceived) plan to send the CCR lawyer a Valentines card, he was stuck. Frustration, coupled with a personal sense of morality, drove him to this act.

But Matthew Diaz was not like some corporate whistleblower. He ... was a Lieutenant Commander in the United States Navy... He picked his side, and upon putting on the uniform, undertook certain bedrock obligations that are larger than his personal vision of right and wrong at any given moment.

...

The military cannot function without discipline and following orders. We are not talking about orders to commit a crime or an atrocity. We are talking about orders that, for better or worse, reflect a position being argued at the highest levels of government, and challenged in the courts of the nation...

If Matthew Diaz wore anything other than a uniform, I would not hesitate to applaud his act of conscience. But once he chose Navy dress whites, the obligation that goes with the uniform trumps his right to act upon personal choices. He knew that. He chose the uniform. He violated his obligation. As wrong as our government can be, Matthew Diaz was more wrong."

I have to admit, Greenfield has a point. The fact that the information was released shortly thereafter, via a FOIA request, not only mitigates the punishment that Diaz received, it also demonstrates that his actions weren't the last resort. He may, from his position in Gitmo, viewed his actions this way, but later developments proved that the secret release wasn't necessary as the judge later ordered it anyway. In fact, I left the following comment at Greenfield's blog:

Before I found your post I asked one of my favorite, most trusted former colleagues at the public defenders office about Diaz's situation and, to my surprise, she (perhaps because she is married to a Marine and has spent a lot of time working military bases) made the same points you did.

Then, after I found your post, I had to reflect on my own frequent criticisms of people who cavalierly advise that violating the law isn't a problem if you're one of the "good guys." Giuliani said something similar to this today when he described the definition of torture "depend[ing] on who's doing it."

So I probably went a little too far arguing that Diaz is a like a modern day Rosa Parks. After all, she wasn't wearing a uniform and the fact that the information he revealed was ultimately released pursuant to a judge's order illustrates that Diaz's actions weren't a last resort more than it shows "no harm, no foul" as I previously argued.

I wonder though if he didn't see his acts as a last resort when he sealed the Valentine, thinking about his dad sold down the river by a bad lawyer and having to witness things like waterboarding and to hear the Navy argue things that the names didn't need to be released because the detainees had other ways to obtain lawyers, [WTF? They were in Gitmo!] while at the same time hearing his own government argue that these men, some as young as 13, weren't entitled to lawyers while they were being deliberately held out of U.S. territory in the hopes that geography would keep their cases out of the reach of U.S. Courts.

Diaz faced up to 20 years but he ended up getting 6 months to think about his mistakes. I know that's what they were, and guess that he does too, but I feel a little like an Monday morning quarterback describing them that way, here, from the safety of my new home.

My defense of him and offers to help amount to an argument for sentencing, I guess, rather than an argument about guilt. Perhaps when others, like the telecom execs and a certain ex-attorney general, are held accountable for their actions around this same time will Diaz's six months in the brig sit a little better with me.

Reminds me of the sarcastic quote about the law, in its "majestic equality" forbidding the stealing of bread and sleeping under bridges.

But you make a good point about the military being necessarily based on following lawful orders and the law being the law. I just hope as a nation that we're still up to making it apply to Alberto or George with the same energy that we want applied to Mr. Diaz.

As much as I agree with Greenfield's point that the law is the law, and the military is rule-based by necessity, I feel like I need to listen to Diaz before I judge the decisions he made.

So I'll ask him to respond to these points. I know he has a lot of his plate right now, and responding to a blog post probably ranks a little lower than finding a job to feed his family. Still, maybe he'll enlighten us all about what he was going through and what he was witnessing at the time. Hopefully he'll write a book someday, but I'm sure he has other priorities right now.

Update: Here's a story about a bizarre email from Col. Boylan in Iraq that sheds some light on something that might have been on Diaz's mind at the time: the fact that the top brass seems more concerned with how the war is described in the media than in how it's unfolding on the ground.

It will be interesting to see where this goes, since it involves Gen. Petreaus' spokesman claiming that he was the victim of identity theft when an email was received and subsequently published by a blogger. For a guy who's supposedly had his ".mil" address highjacked, he doesn't seem all that concerned with an investigation, making his claim of identity theft almost laughable.

Matt Diaz Needs A Job!

2007-10-25T11:53:00.000-05:00

As a follow up to the post just below this one about Matt Diaz and my efforts to help him get into Trial Lawyers College, I received this email:

Mr. Tarrell:

Thank you for the kind comments on your blog. I know the workshop would be an awesome experience. In the run up to my trial, I listened to Mr. Spence's book, "Win Your Case," on my Ipod during my long runs. I was close to doing my case pro se and had I done so, I would have definitely used what I learned from the book.

I would love to attend Mr. Spence's workshop, but don't know if I'm eligible. My Kansas license has been suspended pending my appeal - which could take at least 18 months to get through the Navy's intermediate appellate court. I'm not expecting any relief at that level, so it'll most likely be a longer wait while I take an appeal to the Court of Appeals for the Armed Forces. In the meantime, I'm flooding the market with my resume for almost any job that will take me. I'll miss practicing law (I already do, greatly).

I'll keep tuning in to your blog. Thanks for doing it. Lots of good topics. I watched the video of Mr. Spence talking about the Mayfiled case you posted on Sep 20. I really do envy his work.

Thanks,

Matt Diaz

That's quite a compliment to Gerry Spence and everything Trial Lawyers College is about. Matt strikes me as a modern day Rosa Parks, but most heroes aren't recognized at the time they act heroically but only when we look back on what they did through the lens of hindsight.

Right now Matt needs a bar license, but his is suspended pending his appeal. He also needs a job. Helping him out, if anyone knows of one or is willing to give him a chance, seems like a great way to reward Mr. Diaz's courage and willingness to do the right thing. The names were later released via a FOIA request by the CCR later, but Diaz was still prosecuted. Unlike Scooter, no pardon was granted. I wonder if we will say the same thing about Alberto "Fredo" Gonzalez, if his possible prosecution ever takes place.

I'm still going to try to help him get into TLC this summer, but, like the status of his bar license, that's up in the air as I'm not sure whether the rules would allow an unlicensed lawyer to get in . Also, the Board members might not want to give up a spot that a licensed lawyer could occupy.

The way I look at it, however, do you know anyone who's sacrificed more for our legal system in recent years?

He believed in the importance of legal representation enough to take a tremendous chance. He got caught after a likely terrified plaintiff's lawyer (Don't you bet she thought she was being set up by the government she was suing?) told a federal judge about what she'd received. The judge then told her to notify the Justice Department which easily traced the information back to Diaz's computer at Gitmo.

For taking this chance, Diaz lost (1) his freedom for six months, (2) his military career and, (3) his civilian law license.

Now he just needs a job. Can anyone help him out?

Matt Diaz Needs Our Help

2007-10-23T17:01:00.000-05:00

In yesterday's New York Times, (free subscription required) I read Tim Golden's amazing story of Matt Diaz, the Navy JAG who will be released from a Navy brig later this month after being convicted of releasing the names of the 551 Guantanamo Bay detainees to a civilian lawyer who was to get the information and begin stonewalled by the Navy. As the article describes what brought him from jail worker at Gitmo to jail inmate in the brig:

Sitting at a secure desktop computer, he printed out page after page of classified information, pulling each batch from the printer in case anyone wandered by. When he was done, Diaz had assembled a document 39 pages long. In tiny type, it listed names, prison serial numbers and other information for each of the 551 men who were then being held by the United States at Guantanamo Bay...

Now, Diaz knew he was crossing a line. For nearly two weeks after printing the list, he kept it locked inside the safe in his office. On another late night, he carefully trimmed the pages down to the size of large index cards. Then, on Jan. 14, the last night of his tour, he went back to the office one more time. While his colleagues were getting ready for his farewell dinner, he slipped the stack of paper inside a Valentine’s Day card he had bought at the base exchange. It was an odd touch. The card showed a cartoon puppy with long ears and bubble eyes and the greeting, “Hope Valentine’s Day is just your style.” Diaz would later say that he chose it because it was big enough to hold the list. He also hoped the lipstick-red envelope might pass unscrutinized through the Guantánamo post office."

Matt, now around 40, joined the Navy at 17 after his father was convicted of murder in California and sentenced to die in the gas chamber. His father, Robert, was convicted of killing elderly patients during his work as a nurse. But Matt's father Robert...

"...had never been in trouble with the law. No one had seen him inject the patients with lidocaine. Nor, despite the high levels of unmetabolised lidocaine in their bodies, was it certain they had been murdered. But Robert Diaz was the only nurse who was on duty when all of them died, and he sometimes carried preloaded syringes of lidocaine in his pocket. Two vials of the drug were found in the search of his home. (Robert said he had simply forgotten to empty his pockets before leaving work.) Prosecutors never offered a motive for the killings, but Diaz was arrested in November 1981 and charged with the murders of 12 patients.

“That’s when things started falling apart,” Matthew Diaz told me. At 16, he was left to fend for himself. He drifted back to Indiana, where his mother lived, but returned to California the next summer as his father’s trial approached. He soon dropped out of high school, found a job washing dishes and moved into a San Bernadino motel with a 28-year-old woman who had become his girlfriend.

Diaz stood by his father, but Robert Diaz’s legal defense was a debacle. Because he could not afford a private attorney, his case fell to a public defender’s office that was beset with dissension and budget problems. Robert’s attorneys persuaded him to forgo a jury trial and take his case before a judge — a move that was almost unheard of in a capital murder case."

Waiving a jury right? I admit there are rare cases where it's appropriate, but they're very rare. I remember interviewing for a scholarship to the National Criminal Defense College and talking about the number of bench trials I'd been stuck with when the interviewer said "Bench trials? Around here we call those slow pleas."

That's the way Robert's case ended up and his lawyer, "presented no new evidence or character witnesses in the penalty phase, noting simply that [Robert] Diaz was only 46 years old and had saved the taxpayers money by not having a jury trial." As you may have guessed, in April of 1984, Robert Diaz was sentenced to to die in the gas chamber. You can also probably guess where this left Matthew as well.

"For much of his adult life, [Matt] Diaz was the person in his family most likely to do the right thing. He was the one who would come to the rescue when someone needed help, the one who got through college and graduate school, the one who often kept the peace. His parents divorced bitterly when Diaz was 6, and he spent the next years careering back and forth between them. As children, Diaz, his older sister and their two younger brothers slept for a time in a single bed, cooking their own meals and shopping for groceries when the food stamps arrived. “We couldn’t count on our parents,” his sister, Shari Bravo, said, “but we counted on each other.”

Matthew probably counted on the lawyer at the Center for Constitutional Rights to do the right thing with the information he presented, but these are scary times to be a lawyer in her position. Can you imagine what she thought when she received these names? Am I being set up by the government? Is this a joke? She probably never guessed that the information was coming from inside the prison, from a whistle blower who knew what it was like to have a family member in prison and long for a competent lawyer to try to get you out. But, after considering turning the names over to the press (Can you imagine the fear a reporter would feel upon getting this information?) she decided to alter the federal judge who asked her to turn the info over to the Justice Department, who easily tracked the leak to Diaz.

"When we spoke a couple of months later at the brig in Charleston, Diaz was less contrite. He said he bore no resentment toward Olshansky and the Center for Constitutional Rights for turning his valentine over to the authorities; in fact, he was sending the group donations of $25 a month. Looking back, he insisted that he tried to do the right thing in the wrong way. “There was nothing else that I could really do,” he said. “I could have gone up the chain. But nothing I said would have ever left the island.”

Diaz is reviewing his own trial transcripts now — as he once reviewed his father’s — and working on an appeal with the same California lawyer who has handled his father’s appeals. Shortly before his scheduled release from the Charleston brig this month, he was stripped of his license to practice military law. He said he is unsure how he will support his family now but that he is thinking of trying to find work in legal aid, even if he is disbarred as a civilian lawyer too.

When I read this I emailed the author and am trying to secure Mr. Diaz a scholarship to Gerry Spence's Trial Lawyers College. I thought of him because Gerry defended Brandon Mayfield during the time I went to "the ranch" in 2005, resulting last month in a frustratingly little discussed blow to the Patriot Act.

The author emailed me back and forwarded my emails along to Diaz. I hope he takes advantage of this offer to help as I know many people who would chip in to help and know also that the things he learns there would help him come to terms with what he's done, with the amazing courage it took, and how he could continue to be a people's lawyer in civilian court. I know also that going to the ranch would connect him to a network of like minded people who believe in the rule of law and the importance of standing up to the government for the people.

I hope Mr. Diaz contacts me so I can explain this to him. Going to the ranch was a life-changing experience for me, and hope it could do the same for him. I know he deserves our help and a soft place to land when he walks out later this month, disbarred from the military and cast off by a government that purports to represent the land of the free and the home of the brave.

[Note: The information at issue was later released lawfully pursuant to a Freedom of Information Act request.]

2 Addiction Stories

2007-10-23T09:23:00.000-05:00

One of the blessings/curses of working in the area of criminal defense is the stories you to be a part of. As a public defender I felt, and still occasionally do in private practice, like a part time lawyer and full time drug counselor. With that in mind, a couple client's stories came to mind that other day:

(1) She told me she used her child's photos to cut lines of meth, thinking it would persuade her to stop using it by giving her a reason to feel guilty. While this sounds sick, she was at least trying to quit. However, she was an addict, meaning she was, by definition, unable to quit by herself. So while she had the desire to stop, she lacked the essential tools and thus kept cutting lines whith her baby's picture until she eventually fond a way into inpatient treatment which finally matched her desire to her true needs, her wishes to the realities of methamphetamine addiction. Wanting to quit, and the self-flagellation she attempted- using a photo in the place of a razor blade- only made her more desperate, which led to more drugs, which led to more guilt, which led to more self-flagellation, which led to more depression and more drugs. Only when she found a way to break this cycle, did she put down the drug and the picture and face the real child and the real future. She behaved very insensitively, but was in reality very sensitive. She numbed herself and guilt couldn't snap her out of it. Only real treatment helped.

(2) Another client told me that asking her to "just stop using" was like asking me to "just stop breathing." After all, like breathing, she couldn't remember living without it, used it every day to live through it, and had begun to use it almost unconsciously. Like a drowning person pullng down a potential savior, she would do virtually anything to get it if you tried to get between her and what had become like air to her. My first reaction was that she was making excuses, but the longer I thought of her description, the truer it rang. She was describing addiction to a non-addict and I missed her point. Later, though, it sunk it. What would it be like to be so addicted that you couldn't stop? And how frustrating would it be to have people yelling at you and simplifying your situation as if the solution were as simple as just walking away.

A "Mr. Smith" Moment

2007-10-18T15:06:00.001-05:00

Remember the scene in "Mr. Smith Goes to Washington" when Jimmy Stewart uses a filibuster to hold up legislation and then convinces his colleages to rethink their positions after a passionate speech?

Congressional Democrats caved today on the issue of whether to grant immunity to telecommunications companies that violated the law by illegally releasing information. In short, enough Democrats caved in to Bush's demand that these lawsuits not go forward despite the fact that:

1. We do not yet know the extent of the lawbreaking since its shrouded under a state secrets defense.
2. We know that at least one telecom refused to go along with the government's request for information and claimed it couldn't release the information since it would violate the law to do so.
3. We know that one judge has found AT&T's arguments silly, writing that "AT&T cannot seriously contend that a reasonable entity could have believed the lalleged domestic dragnet was legal." (Judge Reggie Walton, of Scooter Libby fame, opinion here)
"

Glenn Greenwald has an excellent post on what is truly at stake in this legislation, but what's important right now is Senator Dodd's move to put a hold on this capitulation and grant of retroactive immunity for corporate lawbreakers.

I just rewarded him for his courage with a small donation. Maybe his move will start a mini revolt and spark the "opposition" party to stop this move which grants lawbreakers immunity for past crimes before we have a chance to see the extent of the violations.

185 to 1

2007-10-17T12:07:00.000-05:00

Here's the issue: Should young adolescents who are convicted of crimes as adults be sentenced to life without the possibility of parole? The vote on a United Nations resolution calling for the abolition of life imprisonment without the possibility of parole for children and young teenagers was nearly unanimously approved. In fact the vote was 185 to 1 with the United States the lone dissenter.

According to the New York Times article (H/T Talkleft):

...the United States stands alone in the world in convicting young adolescents as adults and sentencing them to live out their lives in prison. According to a new report, there are 73 Americans serving such sentences for crimes they committed at 13 or 14.

What do you think? Do we spoil the child if we spare life without any chance of parole if you were a child when you first arrived there? Remember, we're not asking whether we let them out, only if a judge or parole board should be able to let them out in the future if they're sufficiently rehabilitated?

Along those same lines, should we hold boys as young as 13 at Gitmo?

Law Firm Believes Phone Lines Tapped By Feds

2007-10-15T11:45:00.000-05:00

This article, from the Burlington (Vermont) Free Press describes a law firm which defends clients currently held in Gitmo, and which believes its phone lines are being tapped and attorney-client communications compromised. The firm...

"that represents clients at Guantanamo Bay, Cuba, and in Afghanistan is warning its Vermont clients that it believes the federal government has been monitoring its phones and computer system... “Although our investigation is not complete, we are quite confident that it is the United States government that has been doing the phone tapping and computer hacking,” said the letter."

The lawyer who is interviewed goes on to say that the cause "could be a routine infection introduced into the machine by e-mail" but that "Given the phone situation, a number of another anomalies we’ve observed over time... we think we have legitimate cause for concern."

Here's the problem in a nutshell:

"Gensburg represents a client in Afghanistan as well as one of the prisoners held by the United States in Guantanamo Bay."

(h/t The Next Hurrah)

Mr. Rogers saves PBS from politicians

2007-10-04T09:02:00.001-05:00

"Alright Rogers, you've got the floor" begins the crusty Senator before Mr. Rogers begins speaking, requesting money for public television.

Gerry Spence talks about dealing with difficult judges, or as he describes it, dealing with "his honor, the tyrant."

Watch the difference in the Senator's tyrannical beginning until the moment (around 5:00) when he says "Well, I'm supposed to be a pretty tough guy and this is the first time I've had goose bumps for the last two days."

Notice how Rogers counters cynicism with hope and respect, staying in the moment and remaining respectful throughout.

I don't mean to spoil the ending, but isn't it this method, this credibility that leads the Senator to say at the end, "I think it's wonderful. Looks like you just got your 20 million dollars."

The last lecture of Randy Pausch 1

2007-10-01T13:34:00.001-05:00

I've heard a lot of "buzz" about this lecture from a 46 year old computer science professor who is dying of cancer. It's quite long, but if what i've heard is correct, it's well worth it.

“You can’t just stand out here. We have ordinances.”

2007-10-01T09:52:00.000-05:00

From TalkLeft, I found this article from the New York Times, called "Reporting While Black" which describes an African American reporter's experience trying to interview suspected gang members in Salisbury, North Carolina (population 30,000).

One part of the article that caught my attention was this scene when the 37-year old reporter approaches some young black men on the street, whom he suspects of selling drugs, to interview them:

“Man, you a cop,” said another. “Hey, this guy’s a cop!”

“You’ve got me wrong,” I said trying to sound casual as the men looked at me warily. I started to pull my press identification out of my wallet. “I’m a reporter. I’m just trying to talk to you about your neighborhood.”

In the distance I heard neighborhood lookouts calling: “Five-O! Five-O!” — a universal code in American ghettos for the approaching police. I thought they were talking about me, but thought again as three police cars skidded to a stop in front of us.

A tall white police officer got out of his car and ordered me toward him. Two other police officers, a white woman and a black man, stood outside of their cars nearby. I complied. Without so much as a question, the officer shoved my face down on the sheet metal and cuffed me so tightly that my fingertips tingled.

“They’re on too tight!” I protested.

“They’re not meant for comfort,” he replied...
After a quick check for outstanding warrants, the handcuffs were unlocked and my wallet returned without apology or explanation beyond their implication that my approaching young black men on a public sidewalk was somehow flouting the law.

“This is a dangerous area,” the officer told me. “You can’t just stand out here. We have ordinances.”

“This is America,” I said angrily, in that moment supremely unconcerned about whether this was standard police procedure or a useful law enforcement tool..

It's an interesting article, and I don't cite it as an example of aggressive police tactics but rather to gauge your thoughts on the author's point that "the problem is that when the police focus on gangs rather than the crimes they commit, they are apt to sweep up innocent bystanders, who may dress like a gang member, talk like a gang member and even live in a gang neighborhood, but are not gang members."

After all, we are talking about what is probably suspicious behavior: a well-dressed man approaching people visibly selling drugs in a high-crime area after dark. However, in this case, and in a lot of others no doubt, the individual caught up was, in his words:

At 37 years old, I’m beyond the street-tough years. I suppose I could be taken for an “O.G.,” or “original gangster,” except that I don’t roll like that — I drive a Volvo station wagon and have two young homeys enrolled in youth soccer leagues.

"To get out of a ticket... Don't break the law."

2007-09-27T10:17:00.000-05:00

That's the advice given by a police officer to the public on a website called "Cops Writing Cops: Where's the courtesy?" (hattip Scott Greenfield at Simple Justice) By "Writing" they don't mean love notes or blog entries, but mean tickets. Or, in the words of the officer who created the site, the purpose is:

If you are a police officer, trooper, court officer, correction officer, telecommunicator, highway patrol, federal agent, or any other type of police (peace) officer... that has been disrespected or insulted by another police agency (officer) by not receiving some sort of professional courtesy, please email staff (at) copswritingcops.com with the information."

Yes, the "don't break the law" advice doesn't extend to the brothers in blue as further down the page, the same guy who wrote this writes:

"Yes it’s true, cops usually don’t give other cops tickets. Think of it as an employee discount, perk or benefit. Other Cops are family and you wouldn’t give your brother a ticket if you were a cop either."

The Equal Protection clause isn't very fashionable here, but I'm sure those other parts of the Constitution are taken very seriously!

Reminds me of when I was in high school and my girlfriend at the time was babysitting for a police lieutenant's family. As the girl was getting a ride home, they were pulled over for speeding and the first words out of the officer's mouth weren't "your license and registration" but "I'm sorry! I didn't know it was you!" And that was the end of the traffic stop. I remember being shocked at this episode, at the lack of principle or even concern for whether the law was broken.

But wait, as a criminal defense attorney, don't I qualify as a "court officer" entitled to a little "professional courtesy" under the above definition. What am I complaining about? I'll just pull out my "Nebraska Criminal Defense Attorneys" card at my next traffic stop and threaten to expose their lack of "professionalism" on this site if they have the nerve to ticket a fellow "court officer."

Anybody want to bail me out afterwards?

Symbols of Our Prison Culture

2007-09-23T16:25:00.000-05:00

On Friday, the PBS program Bill Moyers Journal ran a fascinating interview with former corporate attorney turned photographer Chris Jordan about his work "Running the Numbers: An American Self Portrait." The two that caught my eye are shown above and they reveal what the prison population of America in 2004 truly looks like, if each of the 2.3 million prisoner's uniform were folded and stacked together. As Jordan says on his website:

My hope is that images representing these quantities might have a different effect than the raw numbers alone... Statistics can feel abstract and anesthetizing, making it difficult to connect with and make meaning of 3.6 million SUV sales in one year, for example, or 2.3 million Americans in prison... This project visually examines these vast and bizarre measures of our society, in large intricately detailed prints assembled from thousands of smaller photographs.

On the Moyers program, Jordan described what he was trying to show in the photographs above:

We have the largest prison population of any country on earth. There's also no other country that has that percentage of its population in jail. And that includes all of the dictatorships that we think of as the enemies of freedom."

Here's another way of looking at it: According to Wikipedia, "The United States has 5% of the world's population and 25% of the world's incarcerated population." So, while 1 in 20 of the world's population hails from the so-called "Land of the Free," 1 in 4 of the world's prisoners calls America home.

Isn't there a lesson here about how we can show judges the "big picture" as we ask them not to add to this grotesque scene? When we step back at look at what our prison population truly looks like, don't we have a better argument (especially in the case of non-violent drug offenders) that adding another orange uniform to this picture means isn't the only way, or the right one?

Gerry Spence - Falsely Accused of Terrorism

2007-09-20T16:03:00.001-05:00

"Don't Taze Me Bro!"

2007-09-19T10:39:00.000-05:00

That's what you can hear the young man yelling just before the cops taze him (video below) for refusing to obey their commands to "stop resisting" as 3 to 4 cops lie on him in the back of the auditorium.

At one point, Kerry says something about "he's unavailable to come up here and swear me in as President." It seems to me that's Kerry trying to laugh at the situation but what a pathetic spectacle to have a Democratic Senator droning on and making jokes while the young man is screaming his lungs out.

Admittedly, the kid was being rude but tazing him for this! Here is a comment I left at Talkleft:

"What a great metaphor for the position much of the Democratic party takes with regard to the so-called "fringe" that is demanding action on Iraq and against the Bush administration. Like the female officer who screams "stop resisting" (which has no real effect on a very frightened kid) they want to ignore these inconvenient truths, like the skull and bones society link, and tell us, at a time when we're surrounded by people who seem to have no regard for either the Constitution or the rule of law, simply to "stop resisting."

And Kerry carries on as if he can't even hear this, hoping it'll be over soon. What a sad display of force, juxtaposed with apathy, bearing down on a kid who, albeit rudely, is asking a question about the insider nature of our government, a government that currently seems oblivious to what the people truly want, whether it be with regard to Iraq, to a popular election, or to why the opposition to Bush is perpetually capitulating.

UF Student tasered at John Kerry Speech

2007-09-19T10:38:00.001-05:00

Going to Jail for Refusing to "Be Still" in Court

2007-09-17T08:52:00.001-05:00

Last year, when I was still in the Public Defenders Office, I was in court with a child who was being arraigned by the judge for a juvenile delinquency charge. The transcript below shows what happened, but first a little background.

As you can see, the judge very quickly began speaking directly to my client. What set her off was the moment that I pivoted in my chair (I'm serious!) and turned to tell him to behave himself since I was afraid, from the way she was talking to him and from his demeanor that he would either say something that would further draw the judge's ire or else say something incriminating about his case.

I haven't written about it for several reasons, not important for right now, and I've only shared the transcript with a few people since my former boss told me, at the time, to keep it quiet until he decided what to do. I don't think he ever did anything, but I could be wrong as I never asked him and quit that job two months ago to start my own practice.

Anyway, here's the transcript. What do you think?

(At 11:45 a.m., on January 26, 2006 in the Separate Juvenile Court for Douglas County, Nebraska, before the HONORABLE ELIZABETH G. CRNKOVICH, with Ms. Kristin Huber appearing on behalf of the State; with Mr. David Tarrell appearing on behalf of the minor child; and with the minor child Larry ****** being personally present with his mother, the following proceedings were had: )
THE COURT: What’s the matter, Larry?

LARRY ******: (nodded head)

Mrs. ******: She’s talking to you.

LARRY ******: I said nothing.

Mrs. *****: No you didn’t.

THE COURT: No, you didn’t. When I walked in, you’re very—it was – I don’t want to start anything, but I, I want you to know that, that you—you’ve got the judge you’ve have and—Mr. Tarrell, can I talk to your client for a moment?

MR. TARRELL: Well, I—

THE COURT: Can I talk to him, please, for a minute?

MR. TARRELL: Yeah, I’m – you know, I’m—

THE COURT: Thank you.

MR. TARRELL: Judge, you know—

THE COURT: Thank you, I’m just going to visit with him for a second.

MR. TARRELL: Judge, you know what—

THE COURT: You- Just a moment. Mr. Tarrell, if you do not be still, I’ll find you in contempt.

MR. TARRELL: You can find me in contempt.

THE COURT: All right.

MR. TARRELL: I think it’s important that I talk to my client, okay, Judge.

THE COURT: All right. Just a moment. Just a moment.

MR. TARRELL: If you want me to play a role here, then let me play that role.

THE COURT: I’d like a sheriff please, thank you.

MR. TARRELL: I think it’s important for me—

THE COURT: Just a moment. If you open your mouth, I will incarcerate you; do you understand?

MR. TARRELL: I think I should get a chance.

THE COURT: All right. I’m finding you in contempt of court because you have refused to follow the court’s order to be still. I need a sheriff.

(Deputy sheriffs entered the courtroom at this time)

[Note: When the sheriffs came in, they were responding to a “panic button” so three of them ran into the courtroom, the first one holding a taser. When they saw a calm situation, with everyone sitting in their seats, they looked surprised. So I stood up in my seat, and stuck my hands out behind me so they could cuff me. I was thinking at the time that the judge probably wanted me to beg to not be arrested, so I was “calling her bluff” by doing this. When I did this, she slammed her hand down on the bench and screamed the next line at me. The rest of the conversation is a battle over the record, as she’s trying to make it seem as if I’m not complying with her orders and I’m trying to show everything that is going on]

THE COURT: Sir, Mr. Tarrell, sit down, sit down in your seat now.

MR. TARRELL: Your honor--

THE COURT: Sit down and be still, sit down. I have three deputies here. I am ordering you this last time to sit in that chair. Are you refusing?

MR. TARRELL: Your honor, I need to make a record.

THE COURT: Are you refusing? Yes or no?

MR. TARRELL: I will sit down in the chair, but I need to make a record.

THE COURT: Thank you. We have a clear record here.

MR. TARRELL: I don’t think we do.

THE COURT: You are in contempt of this court. I am ordering the deputies to take you back at this moment.

MR. TARRELL: Your honor, what I want to put on the record is—

THE COURT: Deputies, now.

MR. TARRELL: I think I should—

THE COURT: Stop, we do not have a record. I have ordered him to be removed.

MR. TARRELL: It doesn’t have to be this way.

THE COURT: I know that sir, it didn’t have to be this way.

MR. TARRELL: I’d like to try to play the role that you want me to play.

THE COURT: Go, go.

MR. TARRELL: Okay. I’m not going to be intimidated by you. I’m trying to do my job, the job you asked me to do. Now, please put that on the record. It’s not fair.
(MR. TARRELL exited the courtroom at this time)

THE DEPUTY: Would you like me to stay ,or?

THE COURT: No, I’m not having any difficulty with anybody else. I was just going to have a conversation with the young man.

THE DEPUTY: Sure. If you needed me to stay. I was just asking.

THE COURT: No, that’s fine. Just hang on to Mr. Tarrell for a moment, please.
Young man, I’d like to explain where I was beginning, but under the circumstances, it would not be appropriate because your lawyer doesn’t need to be with you. Let me say that you remain in good hands in terms of your legal representation. I think there was just clearly something else going on , and the court has a responsibility to maintain its authority, so I’m going to take a recess. You may be excused.
(a brief recess was taken and all parties exited the courtroom.)

[Note: they took me into the back room, where they book prisoners into jail. The deputies all treated me very well and it seemed like they hated to be doing what she told them to do. I was wearing an antique watch and one deputy offered to keep it safe for me as they told me to take it off for processing into jail. I had my shoes, tie, and watch off when the judge called the sheriff’s phone and told them to bring me back into the courtroom]

(the proceedings reconvened with only Mr. Tarrell present in the courtroom.)

THE COURT: Mr. Tarrell, are you ready to listen for just a moment?

MR. TARRELL: Sure.

THE COURT: All right. No. 1, my experience with you has been that you are a fine and dedicated lawyer who more than adequately represents your clients in juvenile court, and that impression has not changed.
No. 2, it matters not your opinion of the court in a professional way because the fact remains that I am the judge in this court and when I issue a command, it is required to follow that command.
Now, what you did not know is what I observed when I walked in, and I made an effort to relate to and communicate with your client merely to set the stage so that we could proceed. I do understand, because I also observed this, you were attempting to communicate with him, and I have no doubt that you were trying to tell him, hey, shape up, so that he would not then get himself in trouble with the court. However, the court had a handle on it, and the court was addressing your client. Everything that transpired from that point when I asked you to cease was contemptuous of the court and, I must suggest, of this particular Judge, and I will not tolerate it.
Now, you stated truly that it didn’t have to lead to this, and I agree with you. But you have to reflect that not once but at least six times in the course of ten minutes you refused to follow a directive of this court, either to be still and/or to sit down. I did not escalate this.
I do not wish to find you in contempt. I do not wish to incarcerate you. I do not wish to have this kind of exaggerated incident happen again . It doesn’t serve you, it doesn’t serve the bench, and it doesn’t serve the kids and the families.
Now, I took a recess. This may not be the time to address the two boys and their family. I am happy to continue it until after lunch when calm and reason can prevail or to another day. I will give you an opportunity to talk to your clients. I will allow you to leave freely and without the deputy. You may be excused.
(12: 06 p.m. adjournment accordingly)

Unequal Protection Clause

2007-07-03T10:02:00.000-05:00

Many other bloggers are writing excellent commentary about Bush's decision to commute Scooter's 2.5 year sentence. Digby insightfully linked to this article from two weeks ago (headlined "Bush Seeks To Re-Impose Mandatory Minimums") regarding the Bush Justice Department's desire to impose legislation to require mandatory minimum sentence for those, like Scooter, convicted of federal crimes. Compare the language below to Bush's comments about Scooter last night:

First, here's Gonzo one month ago:

In a speech June 1 to announce the bill, Attorney General Alberto Gonzales urged Congress to re-impose mandatory minimum prison sentences against federal convicts — and not let judges consider such penalties “merely a suggestion.” Such an overhaul, in part, “will strengthen our hand in fighting criminals who threaten the safety and security of all Americans,” Gonzales said...
Justice officials also point to a growing number of lighter sentences as possible proof that crime is on the rise because criminals are no longer cowed by strict penalties"

And here's Bush last night:

"Mr. Libby was sentenced to 30 months of prison, two years of probation and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation. I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive."

So, lets recap: "Crime is on the rise because criminals are no longer cowed by strict penalties," and the law should be changed to require judges to impose prison rather than probation. But, the judge Bush himself appointed, Reggie Walton, who sentenced Scooter to prison time was acting "excessively" when he imposed a prison sentence.

Have you ever seen a more blatant example of changing the Equal Protection Clause from "no state shall… deny to any person within its jurisdiction the equal protection of the laws" into George Orwell's famous "All Pigs are Equal but some Pigs are More Equal than others?"

Finally, here's what Patrick Fitzgerald's spokesperson had to say on the subject (h/t emptywheel):

We comment only on the statement in which the President termed the sentence imposed by the judge as “excessive.” The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country. In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws. It is fundamental to the rule of law that all citizens stand before the bar of justice as equals. That principle guided the judge during both the trial and the sentencing.

Glenn Greenwald nicely sums up what this day means, including this obvious statement that you strangely won't read about in most papers:

"The Plame investigation was urged by the Bush CIA and commenced by the Bush DOJ, Libby's conviction pursued by a Bush-appointed federal prosecutor, his jail sentence imposed by a Bush-appointed "tough-on-crime" federal judge, all pursuant to harsh and merciless criminal laws urged on by the "tough-on-crime/no-mercy" GOP. Lewis Libby was sent to prison by the system constructed and desired by the very Republican movement protesting his plight... In every country ruled by a lawless government and a corrupt political and media elite, powerful political officials do not go to prison for crimes. That is why convicted felon Lewis Libby will remain free."

How might Bush respond to Greenwald's "emperor has no clothes remark?" Probably the way Lil' Bush responded to the NYT reviewer who called the show "tasteless:"

"Expect a visit from Homeland Security, writer guy!"

What You Won't Read About the 'Pants' Case

2007-06-28T10:33:00.000-05:00

Just this morning, when my 17-year old client was asked, by the victim of a theft for $25,000 in restitution, ($16,000 of which was listed as "pain and suffering") the judge jokingly remarked that "well, if someone can see $50 million of some pants...). In short, the "Pants Case", which was properly decided in favor of the defendant last week, will probably be held up for years as an example of how the system is in need of more "reform" (less corporate responsibility) rather than an example of a system that worked exactly as it should. In fact, I wonder if the judge who brought the suit (as a lawyer, not a judge) will be sanctioned or forced to pay attorneys fees for bringing the suit. If he is, expect to read about it on page 10 of the local paper, rather than in the newspapers covering this story as litigation run amok.

But this op-ed, pointed out on the TLC listserve, from the Houston Chronicle got my attention. An excerpt:

Tort reformers want to ban most, if not all, of these lawsuits and they
claim that eliminating them would translate into lower prices for the
consumer. The reasoning suggests that without the penalties associated with
launching an unsafe drug, pharmaceutical companies would enjoy larger
profits and be able to manufacture cheaper aspirin.

The problem with this flawed approach is that it has no end. Without
lawyers, homebuilders could build less expensive homes and not worry about
being sued due to defects in craftsmanship. The price of a pack of
cigarettes would decline because companies would not be held accountable for
the proven medical costs associated with smoking. And our stores would be
stocked with an endless supply of cheap toys because companies could
eliminate "safety" from their list of priorities...

Not every lawsuit is justified, not every verdict is legitimate and not
every lawyer is perfect. Lawyers, like people in any other profession, make
mistakes, and some lawyers file frivolous lawsuits. But our system works
because judges and juries are usually smart enough to recognize these
lawsuits for what they are, and they not only find for the defendant, but
they also sanction the people responsible for bringing the case.

The next time you hear Ann Coulter call John Edwards a "Las Vegas shyster," ask yourself what motives Ann could have for turning public opinion further against lawyers who represent people instead of corporate interests.

What's in it for Ann if the people follow Dick the Butcher's advice to "first kill all the lawyers?" Why would Ann want you to focus on her critics' hair rather than on her own motivations?

Who's really looking out for you?

Bush's Deadly Virtues

2007-06-22T14:36:00.000-05:00

Glenn Greenwald, who will be releasing his new book "A Tragic Legacy" next week, has a post up today in which he quotes Andrew Sullivan of the Atlantic quite

There is still a chance to repair the damage -- but given how much we have lost since 9/11, the constitutional consequences of another major attack are likely to be terminal to the American experiment in liberty. If a Giuliani or a Cheney is in power on such a day, we can kiss goodbye to the constitution. . . . America has exchanged some if its basic freedoms for the patina of phony security -- and so easily. The Republican party, to its historic shame, has been the main vehicle for the replacement of doubt, empiricism and calm judgment with certainty, fundamentalism and raw force.

Greenwald goes on the explain the purpose behind his book, and his blog:

The principal value, and the necessity, of examining the underlying assumptions and beliefs which have led us to this point -- an examination which is the primary purpose of A Tragic Legacy -- is not merely to provide some historical account of the last six years. Rather, it is to describe the extreme challenges America faces in recovering from the Bush legacy and, more important still, to expose the corrupt foundations of our political discourse -- ones embraced by the right-wing movement and our establishment media figures alike -- in order to change the terms and outcomes of those debates.

Greenwald goes on to note the futility of debating whether or not Bush's conversion is real or opportunistic, saying "the need to combat and refute the framework he offers -- that those who are committed to Christian piety must join his battles -- is urgent whether or not he personally, deep down, truly believes in those claims." In response, I left the following comment, which I was hoping would prompt a reply:

I agree that, rather than focusing on whether their alleged conversion is real or not, we first need to combat the destructive actions and uncover the philosophical framework that lies beneath leaders like Bush and Nkunda. Whether they quote scripture for devilish purposes or truly believe their unlawful, immoral, unChristlike means are justified is a question for historians as we have bigger, more pressing fish to fry.

Bill Moyers created a series in the late 80's which featured the Rev. Forrest Church (son of Sen. Frank Church of the commission) in which he described our nation's "virtues" as potentially more dangerous than our "sins." He summarized this by warning that "the devil most often appears in drag." Recently, Church commented on the grip of Bush's brand of Christianity on our foreign policy:

American fundamentalism... by trivializing sin into a moralistic catalogue of personal foibles... reserve[s] the badge of real evil for others... Luther put it this way: "The final sin of man is his unwillingness to concede that he is a sinner. ... [R]evelations of prisoner abuse in Iraq... should serve as a reminder to all of us, especially the idealists who drive our nation's foreign policy, of the first law of history: to "Choose your enemies carefully, for you will become like them."

Isn't that a pretty good summary of "the Decider" and his tragic legacy? Rather than contemplating how the sermon on the mount (which ironically I discovered via a reference in Vonnegut's last book) should affect a Christian politician's view of government, he simply says "We don't torture" and forces the soldier who reported this into retirement. (And he does this after viewing a picture of a naked Iraqi decorated by an American soldier with lights made in a Chinese factory to celebrate Christ's birth!) In short, the administration is so blinded an "with us or against us" mentality, that they don't see evil even when it plainly emerges from our side.

Rather than mobilizing the moral authority we held in the pre-9/11 world or utilizing any of the world's sympathy we received as a result of it, they disregard this rule of history, along with the Constitution and the law they swore to uphold. Instead of considering whether their policies made us like our enemies, their only response was (and still is) to accuse anyone who questions them of being a terrorist sympathizer or even an outright enemy.

This policy not only distorts true Christianity and corrupts our nation's legacy, it also plays right into the hands of a fundamentalist Islamic radical who similarly, though mistakenly, believes his own faith permits him to use devilish means to achieve heavenly ends."

Some Pigs are More Equal than Others

2007-06-19T13:00:00.000-05:00

Here is a comment I left at David Feige's blog, Indefensible. He was the best instructor I had at NCDC and he has a great piece up at Slate on the Mike Nifong disbarment that came out of the Duke Lacrosse fiasco. My comment tells the story of a complaint I read yesterday, which I don't think the prosecutor has even a good faith belief in. I'll talk to her soon, but unless her mind has changed lately, I believe she's alleging things that even she doesn't believe in.

Should prosecutors be able to do that? (If you hesitated, you better ask yourself why our founders created that pesky Bill of Rights)

Just yesterday I read a motion to terminate parental rights which alleged that my client "inflicted upon the juvenile... serious bodily injury." Yet the pros has told me many times that she doesn't believe my client caused these injuries. In fact, her boyfriend is in prison for causing them.

But the prosecutor here does believe my 22-year old client (whose tubes were tied last year) deserves to lose her parental rights for not getting the baby to the hospital quickly enough. So, believing that she's wearing a "white hat", the pros sees no problem alleging something she knows isn't true to be able go after someone she believes wears a "black hat."

The prosecutor (1) thinks my client deserves to lose her kids and (2) knows she has to prove "serious bodily injury" to get there. So what's the problem?

Like many in the Bush administration, some prosecutors tend to equate adherence to the rule of law with support for child abusers (or terrorists) when a person is changed with child abuse. The law is for people like you and me, not for people like Scooter and them.

I'll keep you posted on how it works out, but it's not looking so good. Yesterday I was told, by the child's guardian ad litem, to "do the right thing" by withdrawing my speedy trial motion, even though the right was clearly violated and that they are not offering me anything other than termination of parental rights.

So, they truly believe I should "do the right thing" and withdraw an obviously meritorious motion to dismiss, even when doing so would be per se ineffective assistance.

Don't mean to vent on your blog, but I'm glad someone pointed out that Nifong is the scapegoat and that the practices will continue unabated. Some pigs are, after all, more equal than others."

What do you think?

Judge Walton's Sarcastic Footnote

2007-06-14T19:55:00.001-05:00

It was a victory for the Equal Protection Clause today when Judge Reggie Walton denied Scooter Libby's Motion for Bail Pending Appeal today, meaning that Scooter will begin serving his sentence in a few months rather a few years.

What stood out to me, however, was Judge Walton's sarcastic footnote delivered last week, in which he commented on the sudden involvement of 12 prominent law professors, arguing that the grave constituional issues involved required that bail be set. The footnote reads,

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

As background, what Walton was commenting on (and his sarcasm is obvious) is the tactic of having 12 prominent law professors weigh in on this issue, while professing to not be concerned with Scooter but instead purely lending their expertise on the complicated constitutional issues involved. (link to pdf of motion)

But Walton isn't intimidated. He's got Lifetime tenure and he didn't check anything at the door. So he tells them that if the proper application of the Constitution is indeed their motive, he knows they can be counted on, just as quickly, in the future when poor, criminal defendant's case presents an equally compelling issue.

In a week or so, I need to ask for a continuance to submit a brief on a speedy trial issue and think it'll help to bring this up, cautiously, and say "by the way, I know some law professors who might be able to help us out on this, your honor." It probably won't get me anywhere, but I think I have a Walton-like judge who will see the irony and maybe look a little harder at my client's claim, or at least make him laugh a little bit.

Nice to see signs of an independent judiciary, to see some cajones rather than cowardice, in an era of Alitos.

My Thought on 9/11 and its aftermath

2007-06-01T15:00:00.000-05:00

David Feige, one of the best instructors at the National Criminal Defense College, runs a blog called Indefensible (he wrote a book with the same name). After reading one of his posts about what it was like to be near "ground zero" that day, I left the following comment:

"Great post, David. It was nice to read a first person account with concrete details like the single loafer, that made it real, even five years later. It sounds crazy, I know, but aside from running to my car to go pick up my daughters from school when they announced that the courthouse was closing, I vividly remember commenting to a fellow public defender that "this will trigger the biggest assault on civil liberties and the Constitution that we've ever seen."

I don't know what made me think of that at that moment. I think it's probably the experiences I've had as a public defender that made me think of the way the Fourth Amendment, that our ancestors fought so hard to achieve and uphold, would continue to become collateral damage in the war on drugs, on crime, and finally on terror.

I probably should have been thinking of something else at that point, and a big part of me just wanted to go home and be safe with my family. But another part of me knew we, as a nation, in our justifiable rage, would probably end up tearing down the sacred documents our country was founded upon in our quest to preserve the "American" way of life, as if it were necessary to tear down the Constitution in order to save it, as Cheney seems to believe.

What really scared me about my comment was my colleague's (also a public defender) response to it: She said, "well, I'd be willing to give up my civil liberties if that's what it takes to be safe." What's scary about that is that public defenders know, probably more than any other profession, the way we must necessarily balance individual rights with the interests of the state and how necessary the exclusionary rule is to ensuring that the police don't overreach and violate the Constitution as they attempt to stop people from violating the law.

My colleague, even though she sees firsthand the way the police will "testi-lie" and justify this as necessary for the "good guys" going after the bad, was still willing to sacrifice liberty for the sake of security. As all public defenders should know, those who make this trade, without even considering the consequences, deserve neither.

And my worst fears were realized. Who would have thought we would seriously debate whether to use torture to extract information, to confront a government that holds prisoners, even U.S. citizens indefinitely as "enemy combatants," that the Attorney General would be threatening to jail journalists for reporting on their government's secret, unconstitutional domestic spying programs, that we would use this day as an excuse to invade a country, unprovoked, to violate the Geneva conventions and alienate the world's empathy while placing tens of thousands of our troops in a quagmire that's killing thousands of them?

Thankfully we're seeing some "pushback" from the judicial branch against a group of neocons who believes in the unitary power the executive branch, and a minimum of pushback from the legislative branch.

But today Time reports that Karl Rove's "hail mary" play to retain power begins, and that the tragic events of 9-11 will be used not only to portray the other party as soft on terror, but to bring members of his own party, who still harbor antiquated ideas about the rule of law or the enforcement of the Constitution, back into line.

I'm fearful of another attack and motivated by the people who so needlessly and violently were murdered that day five years ago. But I'm also worried about where the next five years will take us, and whether that bargain my colleague made in her moment of fear, will continue to cause us to sacrifice the things our country stands for (the rule of law, the Constitution, checks and balances against a tyrant gathering too much power) in the name of making us all feel safer.

Today, rather than watching that fictional propaganda piece the Disney company is providing to the GOP just months before the election, google "Operation Northwoods" and read the recently declassified documents that discuss what bargains an overzealous, fearful military industrial complex was willing to make to motivate the American people into becoming fearful and thus easily manipulated.

As chilling as the events of 9-11 were, consider that the joint chiefs of staff were unanimously willing to murder American citizens in this country to create a climate of fear that would allow us to invade Cuba. Seriously, you can see the documents that verify this online in PDF format.

I'm not insinuating that 9-11 was an inside job, only pointing out that it is documented that the state will at times use the end to justify the means.

The price of liberty is eternal vigilance, and those who are willing to trade this precious, hard-fought freedom for security, (or to allow a small group of men the power to run roughshod over the Constitution and the traditions of this country, limiting liberties here while trying to create democracy abroad at the point of a gun) deserve neither one.

The real test of 9-11 will be the subtle one. The obvious test is whether we will defend ourselves. But the less obvious, subtle test is whether we will unwittingly destroy the American way of life, destroy freedom in this sweet land of liberty, as we hand power over to those who would exploit our fears to enhance their own portfolios and their own grip on power, who would destroy what is good and different about this country in the name of saving it for their gated community neighbors.

A Russian proverb summarizes this idea nicely: "choose your enemies carefully for you will become like them."

John McCain says what got him through torture was his belief that his country was different than that of his captors, that his nation valued something different and unique among nations. What's made us different is our willingness to uphold individual rights and to balance these against the state to keep the state's power sufficiently checked and anti-tyrannical.

Hopefully as a nation we will realize that, more than ever before, our Constitution is under assault, our leaders are hellbent on clinging to power and willing to exploit our fears to accomplish this, and our media not doing its job in educating us about these challenges to our way of life.

It's true that there are enemies out there trying to destroy us and that we need to defend ourselves from them. But it's also true that if we destroy our nation's ideals in the process, they win and we have only ourselves to blame.

Our enemies struck us five years ago, harder than ever before, but it's also true that in the last five years "we have met the enemy and he is us."

Hopefully we can win the War on Terror without killing off what makes us different as a nation.

Hopefully we can defeat our enemies without truly becoming like them in the end..."

Authoritarians at the Gate (updated below)

2007-05-02T15:08:00.000-05:00

Today in the news, three items appear that will go virtually unnoticed by most people. Yet these items, and particularly the scant attention any of them will receive by either the public at large or the mainstream media institutions charged with informing them will discuss things like CNN's "top story" about a "tiny terrier saving kids from pit bulls." Here they are...

(1) The Wall Street Journal Editorial Page...

... features an editorial authored by Harvey Mansfield, a William R. Kenan Professor of Government at Harvard (you know that great liberal institution) entitled "The Case for the Strong Executive
Under some circumstances, the rule of law must yield to the need for energy."

Some excerpts:

- "In other circumstances I could see myself defending the rule of law.

- In our time, however, an opinion has sprung up in liberal circles particularly that civil liberties must always be kept intact regardless of circumstances. This opinion assumes that civil liberties have the status of natural liberties, and are inalienable.

- Now the rule of law has two defects, each of which suggests the need for one-man rule. The first is that law is always imperfect by being universal, thus an average solution even in the best case, that is inferior to the living intelligence of a wise man on the spot, who can judge particular circumstances...

(2) Thomas Sowell's Random Comment that...

- "when I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can't help wondering if the day may yet come when the only thing that can save this country is a military coup." Enough said, right?

(3) This New York Times Headline stating "Administration Pulls Back on Surveillance Agreement"

The first paragraph reads, "Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January. Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants."

Apparently, the Fourth Amendment requirement that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" really means that "when the president does it, it's not illegal."

Lincoln's quote, from the Gettysburg address, about our country being "a nation of laws and not of men" no longer applies.

UPDATE: No, this isn't from the Onion. This is a quote from the President of the United States, you know "the commander guy."

From the White House website transcript of Bush's statement on the War on Terror this morning...

"By the way, in the report it said, it is -- the government may have to put in more troops to be able to get to that position. And that's what we do. We put in more troops to get to a position where we can be in some other place. The question is, who ought to make that decision? The Congress or the commanders? And as you know, my position is clear -- I'm the commander guy."

"Industry Wide" Insurance Practice to Dump Pregnant, Sick?

2007-03-24T07:34:00.000-05:00

Will this be in Michael Moore's upcoming "Sicko?"

From today's LA Times...

- "Blue Cross of California "routinely" violated state law when it canceled
individual health insurance coverage after policyholders got pregnant or sick...
according to a state investigation of practices that appear to be industrywide."

- "The state investigation found that Blue Cross used ... a dedicated department
to systematically investigate and cancel the policies of pregnant women and the
chronically ill... Regulators examined 90 randomly selected cases ... out of
about 1,000 a year in California — and found violations in each one."

- (Parent Company) "WellPoint Inc., earned $3.1 billion in profit last year on revenue of $57 billion."

All Pigs are equal, but some pigs are more equal than others

2007-03-21T10:31:00.000-05:00

You might recognize that line from Orwell's "Animal Farm" but it pretty much fits a disclosure by the Justice Department's Inspector General yesterday that (according to the Washington Post), "the FBI may have violated the law or government policies as many as 3,000 times since 2003 as agents secretly collected the telephone, bank and credit card records of U.S. citizens and foreign nationals residing here."

In other news, in the Justice Department's "Document Dump" from yesterday, comes news that AZ United States Attorney Paul Charlton, one of the 8 USA's fired last year, wanted to institute a policy of requiring federal agents to tape record or videotape interrogations." Like Jerry Maguire, he was fired shortly after calling for this change.

What's more shocking is the internal memos released yesterday. For example, a June
'06 ATF memo to the DOJ opposing such recording states:

"Law enforcement interrogation techniques (although completely legal) may still be unsettling for some jurors in video and audio form."

Even more shocking, an internal FBI memo, also opposing the AZ USA's desire to record interrogations, states:

"FBI agents have successfully testified to custodial defendants' statements for
generations with only occasional and rarely successful challenges.... as all
experienced investigators and prosecutors know, perfectly lawful and acceptable interrogation techniques do not always come across in recorded fashion to lay persons as a proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may be unfair deceit."

(Interestingly, in the FBI document, someone has handwritten the words "So we
want to hide the truth? Don't want the jury to reach its own judgement?" in the
margin." )

A link to Glenn Greenwald's article on subject, which includes pdf images and
links to the dumped docs, is here. You might have to click through Salon's first screen to get there)

Letter to the Editor re: Fired US Attorneys

2007-03-20T13:54:00.000-05:00

Below is a letter I sent to the Omaha World Herald after they ran a highly misleading political cartoon, by the same jackass who drew the one shown below. The cartoon itself isn't available until tomorrow) Since I'm pretty sure The WH won't publish it, here it is...

“It is highly misleading for the World-Herald to show a political cartoon today which depicts former President Clinton, standing beside a chalkboard with 93 tally marks behind him, calling President Bush an “amateur” while only eight tally marks appear behind Bush.

It is true that Clinton did ask for the resignation of all 93 U.S. Attorneys at the beginning of his term, but Bush did the same thing, as did both Reagan and Bush I. This is routine practice. In fact, an internal Justice Department memo written shortly after Bush assumed office (found at http://www.usdoj.gov/opa/pr/2001/March/107ag.htm), states “[c]ontinuing the practice of new administrations, President Bush and the Department of Justice have begun the transition process for most of the 93 United States Attorneys.”

However, while replacing USA’s at the beginning of a President’s first term is routine, what the Bush administration did, in firing 8 prosecutors they had originally appointed, is unprecedented. In fact, an email from Attorney General Gonzalez’ Chief of Staff Kyle Sampson from Jan. 9, 2006 shows that they realized the unprecedented nature of their actions. The memo states “[i]n recent memory during the Clinton and Reagan administrations, [the] President[s] did not seek to remove and replace U.S. attorneys they had appointed whose four-year terms had expired.”

What is alarming about the firing of eight United States Attorneys is that the list included Carol Lam, who had recently indicted Rep. Randall “Duke” Cunningham, R-CA, (currently in federal prison for fraud), and who had also announced her intention to execute search warrants against a Bush appointed CIA agent just days before Gonzalez’ aide Sampson discussed the need to fire her. The list of eight fired prosecutors included those who had indicted prominent Republicans, but also included David Iglesius who, despite being chosen as a trainer for voter fraud related issues by the Justice Department, refused to indict Democrats for voter-fraud related offenses, after Karl Rove publicly called for them. The fact that these firings relate both to prosecutors who indicted Bush supporters and those who refused to indict his opponents, should raise red flags to both anyone who cares about democracy, whether conservative or liberal.

If the eight (out of 93) United States Attorneys were indeed fired because they would not do Karl Rove’s bidding, the real focus of this story should truly shift not to the eight fired prosecutors who refused to “play ball” but rather to the remaining 85 whose “performance” either (1) satisfied Rove and his boss or who (2) received the message that those who don’t play politics with prosecutorial powers are soon looking for other work.

Trivializing this complex and important story about the role of politics in the exercise of the awesome power of the federal government in its prosecutorial (and thus potentially imprisoning and liberty depriving role) by picking up a factually incorrect, highly misleading political cartoon from the wires not only misinforms the public, it also puts the World-Herald in the role of propagandizing Pravda rather than perceptive, government-questioning press. How sad, both for your paper and its readers who depend on you for the truth necessary to be ensure that Lincoln’s dream of a government of, by and “for the people does not perish from the earth.”

UPDATE: The WH responded and asked me to cut it down to 200 words and I sent it in. Still not holding my breath, though.

Update II: The WH didn't publish it, either since it didn't meet their standards of decency or they don't like being compared to Pravda. The cartoon itself has not yet been released, but will be posted shortly.

Nothing More Intractable Than Seeking Death

2007-01-25T16:50:00.001-06:00

Over at TalkLeft, Jeralyn Merritt (who's blogging on her own dime from D.C. and needs all the help you can send her) links to a defense lawyer's "Motion to Declare U.S. Attorney's Appointment Unconstitutional" in which he argues that the Bush administration's move to replace Assistant United States Attorneys with party hacks (via a Patriot Act provision that allows for recess appointments) violates his client's rights as well as a federal statute.

[In case you missed it, Paul Krugman accurately observed that the "likely answer" to why this move now "is that for the first time the administration is really worried about where corruption investigations might lead..."]

The motion and attached memo, are accessible via the above link, but I was astonished to read the following comment on the TalkLeft post:

"How does this filing in any, way, shape or manner help the person whose life is at stake in this case? If defendant prevails (doubtful) is there ANY reason to believe the next person will change course and choose not to seek the death penalty or be more amenable to a reasonable plea offer if that is what the defendant is seeking? ... If the defendant loses (quite likely) will this maneuver run the risk of making the prosecution more intractable?"

Iresponded with the following comment:

So we shouldn't pull out all the stops, file every motion in a d.p. case 'cause we don't want to make the prosecution more "intractable?"

How do you get more intractable than death?

Are you concerned they'll also try to kick him when he's dead?

This touches on a great point, for defense lawyers and for Democrats: There are a lot of people who "advocate" that a defense lawyer shouldn't get too uppity else the prosecution get mad and up the ante. There are times, indeed, when heeding this advice is appropriate, but they're rare.

Most of the time the defense lawyer's best tactic is to adopt an attacking defense, akin to what is taught at the NCDC in Macon, GA. This is especially true in a d.p. case, when it's difficult to fathom the pros becoming more intractable, assuming cruel and unusual punishment hasn't, to paraphrase Gonzo, become quaint like his feelings about the Geneva Conventions.

I admire the tactic and wish more defense lawyers, and Democrats, wouldn't suffer from so much Stockholm Syndrome as to worry about what Big Daddy might do if we exercise our rights and fight against death instead of worrying about appearing intractable to a person whose asking permission to kill to punish killing.

Fight them with any means, inside the law, when they want to kill your client."

What do you think?

What effect will the execution videotape have on Iraq?

2007-01-04T15:32:00.000-06:00

That is the $64 billion question, but here are a few reactions from people with expertise.

First, Robert Baer, who is a former CIA case officer, author of both "Sleeping with the Devil: How Washington Sold Our Soul For Saudi Crude" and of "See No Evil" the book that eventually became the movie Syriana. In fact, George Clooney plays Baer's character in the movie. Baer has a new op-ed in Time which begins...

"The cat is out of the bag. Thanks to images from a cell phone, we now know that the Iraqi National Police unit we turned Saddam over to was in fact a Shi'a lynch mob."

On the subject of what this means to a future Iraq and the question of the effect of our presence there Baer writes:

"Only time will tell us what Sadr intends do with Iraq if he ever does take over. But the Sunnis today will tell you they don't need to wait. On Saturday, they saw all the evidence they needed: the symbolism of executing Saddam on the Muslim High Holiday of Id al-Adha as a gift to the Shi'a, and and the decision of Maliki to get special approval from Iraq's senior Shi'a clerics, the "marja'iya," to carry out the execution on that day. No one is ever going to take a poll, but it's safe to say that most Sunnis fear that Ayatollah Sadr's dream of an Iraqi Shi'a Islamic republic has already come true."

Second, CBS/AP reports that "After Hussein's burial Monday, rage over the hanging spilled into the streets in many parts of the Sunni Muslim heartland Monday, especially in Samarra where a mob of angry protesters broke the locks off the badly damaged Shiite Golden Dome mosque and marched through carrying a mock coffin and photo of the executed former leader." The article continues:

"Sunni extremists had blown apart the glistening dome on the Shiite holy place 10 months earlier, setting in motion the sectarian slaughter that now grips the troubled land.

The Samarra protest was particularly significant because it signaled a widening expression of defiance among Sunnis, the minority Muslim sect in Iraq that had enjoyed special status and power under Saddam and had oppressed the now-ascendant Shiite majority for centuries."

Third, Professor Juan Cole describes this Sunni protest of the Saddam execution as:

"Folks, this is very bad news. The Askariyah Shrine (it isn't just a mosque) is associated with the Hidden Twelfth Imam, who is expected by Shiites to appear at the end of time to restore the world to justice. (For them, the Imam Mahdi is sort of like the second coming of Christ for Christians). The Muqtada al-Sadr movement is millenarian and believes he will reveal himself at any moment.

The centrality of the cult of the Twelfth Imam, a direct descendant of the Prophet Muhammad who is said to have vanished in 873 AD, helps explain why the bombing of the Golden Dome on February 21 of 2006 set off a frenzy of Shiite, Sadrist attacks on Sunni Arabs. Last February, stuck in a Phoenix hotel because of a missed flight and without an internet connection for my laptop, I blogged from my Treo that it was an apocalyptic day. Sadly, it was, kicking off a frenzy of sectarian violence that has grown each subsequent month.

For Sunni Arabs to parade a symbolic coffin of Saddam through the ruins of the Askariya shrine won't be exactly good for social peace in Iraq. Can't that site be properly guarded or something?

Al-Hayat reports in Arabic that hundreds of demonstrators marched in Dur, near Tikrit on Monday, protesting the execution of Saddam Hussein. Young men carried machine guns and fired them in the air, chanting "Muqtada, you coward," and "Hakim! Yellow-belly! Agent of the Americans!" They unveiled an enormous mosaic of Saddam Hussein inscribed, "The Martry-Hero."

There was also a demonstration in the northern Baghdad district of Adhamiya, at which protesters shouted condemnations of Muqtada al-Sadr, according to al-Zaman. Some of those present at Saddam's execution shouted "Muqtada, Muqtada, Muqtada!" Saddam mocked them, asking if this was their sign of manliness. (Personally, I believe this is Saddam's reference to rumors in Iraq that Muqtada's wife left him, saying that he is actually gay. He is saying that chanting Muqtada's name is a sign that they are also not real men.)"

(To get to Cole's comment, scroll down to the "Tuesday, Jan. 2" entry)

Bottom Line: If Baer is correct that "most Sunnis fear that Ayatollah Sadr's dream of an Iraqi Shi'a Islamic republic has already come true" and Cole is correct that the Sunni break-in/ coffin protest at the "badly damaged Shiite Golden Dome mosque" is "very bad news" and not "exactly good for social peace in Iraq," where do we really stand in Iraq? And what will the future look like?

Is there any hope of "victory" for an occupying power in the midst of this current and potentially worse future bloodshed? Of course, to the right, the answer is simple. The killing is not a sign of failure but a reason for hope. As Dean Barnett puts it, on Hugh Hewitt's blog, in a post entitled "A Moment of Savagery - Now a New Hope?:"

"The only answer, as it always has been, is to stamp out that savagery ferociously and totally. At the end of this war, Iraq must necessarily be composed of people who always wanted to live in peace and the one-time enemies of peace who have come to realize they have no other choice but to live in peace. How much killing will this take? That will depend on how many enemies of peace there are and how determined they are to live in a state of war."

In other words, we are assisting in killing off the "bad" Iraqis, even though 1 in 20, at least, has now been killed. Just a little more progress, Barnett believes, and the good Iraqis, the ones who want to live in peace, will be left and the mission will be accomplished.

Amazingly, Barnett concludes his paragraph above with this prediction:

"One thing's for certain - the more resolute we are, the less killing there will be."

We have a President who just recently dropped the theme of "stay the course" and now, when 1 in 20 Iraqis is dead in the post Saddam era, after the "liberation" if we just stay "resolute" Barnett somehow has the gall to predict that the killing will stop.

Barnett then concludes his piece with these words about the "best news" coming out of Iraq:

"The best news of the past few days actually wasn’t Saddam’s execution, even though Saddam facing justice (in spite of the primitive savagery of the execution itself) is something that every American can feel proud of. The even better news than Saddam’s death is that (according to the reliable Strategy Page), American and Iraqi forces have begun to make war on the Sadr militia."

The worse the news is, the more it is spun as "progress" by the increasingly isolated Bush cabal. One in 20 is already dead after the "liberation" and U.S. forces now attacking the Shiite leader's militia is considered "good news."

Kurt Vonnegut described the Decider playing with U.S. forces like a rich kid playing with toy soldiers. While the analogy is fitting, the killings are real and the future for Iraq, and our forces, is bleak and bloody.

Who will be the last to die for Bush's mistake?

Top Ten Lists

2007-01-04T13:42:00.000-06:00

The end of the year always brings about top ten lists about the past year, but here are a couple you might have missed...

First, on the question of "Is the U.S. becoming a police state?" comes this top ten list (from Alternet). Here are the topics, some of which surprised me. See the article for more details/explanations.

1. The Internet Clampdown
2. "The Long War"
3. The USA PATRIOT Act
4. Prison Camps
5. Touchscreen Voting Machines
6. Signing Statements
7. Warrantless Wiretapping
8. Free Speech Zones
9. High-ranking Whistleblowers
10. The CIA Shakeup

And here is Juan Cole's "Top Ten Myths about Iraq 2006" The first line is pretty ominous: "Myth number one is that the United States "can still win" in Iraq." Here are the top ten myths, according to Professor Cole:

1. Myth number one is that the United States "can still win" in Iraq.
2. US military sweeps of neighborhoods can drive the guerrillas out.
3. The United States is best off throwing all its support behind the Iraqi Shiites.
4. Iraq is not in a civil war," as Jurassic conservative Fox commentator Bill O'Reilly insists.
5. The second Lancet study showing 600,000 excess deaths from political and criminal violence since the US invasion is somehow flawed.
6. Most deaths in Iraq are from bombings." (The Lancet study found the majority of violent deaths are from being shot.)
7. Baghdad and environs are especially violent but the death rate is lower in the rest of the country.
8. Iraq is the central front in the war on terror." (From the beginning of history until 2003 there had never been a suicide bombing in Iraq. There was no al-Qaeda in Baath-ruled Iraq)
9. The Sunni Arab guerrillas in places like Ramadi will follow the US home to the American mainland and commit terrorism if we leave Iraq." This assertion is just a variation on the invalid domino theory. (People in Ramadi only have one beef with the United States. Its troops are going through their wives' underwear
10. Setting a timetable for withdrawal from Iraq is a bad idea.

Justice Dept. Refuses Senator's Requests for Docs on Detainee Treatment

2007-01-04T10:44:00.000-06:00

From yesterday's L.A. Times:

"Setting up what could become the first showdown between the Bush administration and the new Democratic Congress, the Justice Department has refused to turn over two secret documents, describing the CIA's detention and interrogation policies for suspected terrorists, to the incoming chairman of the Senate Judiciary Committee."

Senator Leahy "waited until the week that Democrats take control of Congress to release — and denounce — the response" after sending the letter to DOJ during the congressional recess. Predictably, the DOJ responded that:

"Al Qaeda seeks information on our interrogation techniques — their methods and their limits — and trains its operatives to resist them," wrote James H. Clinger, acting assistant attorney general for legislative affairs. "We must avoid assisting their effort... Clinger said the department had already briefed members of the Senate and House intelligence panels about aspects of the anti-terrorism programs, fulfilling its obligations under the law."

Also, the FBI released documents regarding detainee treatment yesterday in response to an ACLU Freedom of Information Act Request. You can read the ACLU's response here and view the documents themselves here.

The ACLU describes the documents as including "some new accounts of abuse related to the detainees' religious beliefs:"

- Investigators wrapped a detainee's head in duct tape "because he would not stop quoting the Koran."
- Another agent said an interrogator bragged about making a detainee listen to "satanic black metal music for hours and hours."
- According to the same report, the interrogator later "dressed as a Catholic Priest and baptized the detainee in order to save him."
- In another incident observed by an FBI agent, a Marine captain squatted over the Koran during an interrogation of a Muslim prisoner, which the prisoner found extremely offensive."

Making enemies faster than we can kill them.

UPDATE: Marty Lederman, at Balkinization, writes an excellent analysis of possible DOJ justifications for refusing Leahy's request. He writes:

"The principal dispute here concerns whether it is appropriate for such legal advice to be "non-public" in the first instance. I tend to think that, except in narrow circumstances, OLC advice that certain Executive conduct is lawful ought to be made public--not least because it will help ensure that such advice is well-considered and that possible counter-arguments have been adequately anticipated and addressed. (See Principle No. 6, here.) Others disagree, principally for the reasons stated in the DOJ letter--namely, that if OLC advice will presumptively be public, the substance of that advice will be less candid, and officials will be less likely to seek it in the first place. I think these concerns are greatly overstated, and that when OLC is working as it ought to, its lawyers will be willing to provide very candid and honest legal advice, even knowing -- indeed, because -- such legal analysis will be subject to public scrutiny. But I understand that thoughtful OLC alums sincerely disagree on this point. It's a topic worthy of further debate.

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch's views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are."

Bush Claims Authority to Open Mail without Warrant

2007-01-04T10:09:00.000-06:00

From today's New York Daily News comes this statement:

"President Bush has quietly claimed sweeping new powers to open Americans' mail without a judge's warrant, the Daily News has learned.
The President asserted his new authority when he signed a postal reform bill into law on Dec. 20. Bush then issued a "signing statement" that declared his right to open people's mail under emergency conditions.

That claim is contrary to existing law and contradicted the bill he had just signed, say experts who have reviewed it."

The actual signing statement found on the White House website is here.

Hopefully we'll see more analysis and scrutiny of this latest, but unsurprising, assault on the Fourth Amendment.

Operation "Wagon Train" Sorts People By Skin Color

2006-12-13T14:36:00.000-06:00

From the Salt Lake Tribune, this article describing how ICE agents acted when they raided the Swift Plant in Hyrum, Utah as part of ICE's "Operation Wagon Train" Raid on suspected undocumented workers:

"If only for a few minutes, Maria felt like an ''illegal alien'' in her homeland - the United States of America. She thought she was going on break from her job at the Swift & Co. meat processing plant here on Tuesday, but instead she and others were forced to stand in a line by U.S. immigration agents. Non-Latinos and people with lighter skin were plucked out of line and given blue bracelets. The rest, mostly Latinos with brown skin, waited until they were ''cleared'' or arrested by ''la migra,'' the popular name in Spanish for Immigration and Customs Enforcement (ICE), employees said."

Later, the article quotes Maria saying "she hopes the authorities are not targeting Latinos."

Gee, ya think just because they put the whites in one line and gave them blue bracelets and the latinos in another without any bracelets that they might have been targeting latinos?

Speaking of targeting latinos, how nice that the Washington Post now says this of Augusto Pinochet, who died earlier this week:

"It's hard not to notice, however, that [Pinochet] the evil dictator leaves behind the most successful country in Latin America. In the past 15 years, Chile's economy has grown at twice the regional average, and its poverty rate has been halved. It's leaving behind the developing world, where all of its neighbors remain mired. It also has a vibrant democracy. Earlier this year it elected another socialist president, Michelle Bachelet, who suffered persecution during the Pinochet years.

Like it or not, Mr. Pinochet had something to do with this success..."

And...

"In 'Dictatorships and Double Standards,' a work that caught the eye of President Ronald Reagan, [Jeanne] Kirkpatrick argued that right-wing dictators such as Mr. Pinochet were ultimately less malign than communist rulers, in part because their regimes were more likely to pave the way for liberal democracies. She, too, was vilified by the left. Yet by now it should be obvious: She was right.
In "Dictatorships and Double Standards," a work that caught the eye of President Ronald Reagan, Ms. Kirkpatrick argued that right-wing dictators such as Mr. Pinochet were ultimately less malign than communist rulers, in part because their regimes were more likely to pave the way for liberal democracies. She, too, was vilified by the left. Yet by now it should be obvious: She was right."

So Pinochet came to power in a U.S. backed military coup to unseat a democratically elected President and was later responsible for the deaths of two to three thousand dissidents, and was implicated in a car bombing in Washington D.C. that also led to the killing of an innocent American civilian. That's o.k., according to the Post, because "his" policies ultimately led to the creation of South America's most economically successful state.

In short, the Post's logic is that "so you killed a few thousand, your policies led to the economic prosperity of millions, so we'll forgive you." How "liberal" is it to say that right wing dictators are "less malign than communist rulers" because liberal democracies are more likely to follow dictatorships?.

Remember this the next time you hear the media derided as "liberal." The paper that brought about the downfall of Nixon through thorough, necessary reporting is now editorializing about how a mass murderer isn't so bad after all. Thousands died, but millions now live better, so all is forgiven.

And these people are charged with keeping us informed about the dangers of governmental power run amok?

Gingrich: "Free speech should not be... cover for people who are planning to kill... people who have inalienable rights of their own"

2006-12-06T10:34:00.000-06:00

I'm guilty of parroting Glenn Greenwald's posts a lot lately, but the stories he picks up on are so important, and so invisible in the mainstream media, that I feel the need to spread the word.

Today, Greenwald points out this article from Newt Gingrich in which Gingrich states:

"[F]ree speech should not be an acceptable cover for people who are planning to kill other people who have inalienable rights of their own."

Gingrich further comments that:

"We need an expeditious review of current domestic law to see what changes can be made within the protections of the 1st Amendment to ensure that free speech protection claims are not used to protect the advocacy of terrorism, violent conduct or the killing of innocents."

The article, which Gingrich authored, is a follow up to his speech given on 11/27/06, in which he said,

"This is a serious long term war, and it will inevitably lead us to want to know what is said in every suspect place in the country, that will lead us to learn how to close down every website that is dangerous, and it will lead us to a very severe approach to people who advocate the killing of Americans and advocate the use of nuclear of biological weapons.

"And, my prediction to you is that either before we lose a city, or if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up their capacity to use the internet, to break up their capacity to use free speech, and to go after people who want to kill us to stop them from recruiting people before they get to reach out and convince young people to destroy their lives while destroying us.

"This is a serious problem that will lead to a serious debate about the first amendment, but I think that the national security threat of losing an American city to a nuclear weapon, or losing several million Americans to a biological attack is so real that we need to proactively, now, develop the appropriate rules of engagement."

Steve Earle once appropriately said, "It just gets tougher every day, to sit around and watch it while it slips away."

Observer: ICE Agents recorded their informant committing 13 murders, Left him on the payroll

2006-12-05T13:12:00.000-06:00

Today Glenn Greenwald recommends this article from the British newspaper The Observer.

To summarize the facts, I cut and pasted from Greenwald's narrative below...

- "Although the subject of the investigation (the U.S. Government's conduct as part of its "war on drugs") receives little attention in the U.S., the incident reported by the Observer powerfully highlights exactly what the Bush administration is and how its "Homeland Security" Department operates."

- "In 2000, agents from the Immigration and Customs Enforcement Department (ICE)... recruited Guillermo Ramirez Peyro, known as "Lalo," to work as an informant for ICE as part of its investigation into a Mexican drug cartel... and they paid "Lalo" more than $220,000 to work as a spy for them, including the wearing of a wire."

- "In August, 2003, Lalo's cartel boss ordered him to participate in the murder of a Mexican lawyer. Lalo participated in the murder -- which was extremely brutal -- while wearing the wire supplied to him by ICE. "

- "After the initial murder, the ICE agents sought permission to continue using Lalo as their informant. Permission was given by high-level Justice Department officials in both Texas and Washington, including several Texans who are very close associates of both George Bush and Alberto Gonzales..."

- "Permission was given by Homeland Security and the DOJ to continue to work with Lalo. Over the course of the next six months, Lalo directly participated in the murder of 13 different Mexicans, usually extremely brutal murders, and all with the knowledge of ICE. Despite one murder after the next being perpetrated by their paid informant, they never intervened.

- "On January 14, 2004, Lalo kidnapped Luis Padilla in El Paso, Texas, drove him across the Mexican border, and then murdered him along with two other Mexicans, all while wearing an ICE wire. It was later revealed that Padilla -- who had lived in the U.S. (legally) since childhood and at the time with living (legally) in Texas with his wife and three children -- had nothing to do with any cartels and was abducted by Lalo as a matter of mistaken identity.

- "[A]round the same time, members of Lalo's cartel-- the cartel which ICE knowingly allowed to go on murdering -- went to the home of an undercover DEA agent in order to kill him (they obtained his identity and home address by torturing an informant). The DEA agent barely escaped with his wife and daughters, through sheer luck.

- The DEA had not known about ICE's ongoing work with Lalo. They thought, naturally, that ICE severed its connection to him once he began murdering people while wearing an ICE wire. But after the DEA's agent and immediate family were almost murdered by the cartel, they found out that ICE was still working with Lalo and they reacted with extreme anger.

- "Once the DEA's Gonzalez put these accusations in writing, the Bush Justice Department responded boldly and vigorously . . . by attacking, threatening and ultimately forcing the retirement of the DEA's Gonzales -- the whistleblower who brought this to light -- for the crime of complaining about it and putting it in writing, thereby risking discovery of what ICE had done (with the permission of the DOJ). Not only was no action taken against the perpetrators, but they were actively protected."

As Greenwald notes, the whole article truly needs to be read, but here is an excerpt...

"Janet Padilla's first inkling that something might be wrong came when she phoned her husband at lunchtime. His mobile phone was switched off. On 14 January, 2004, Luis had, as usual, left for work at 6am, and when he did not answer the first call Janet made, after taking the children to school, she assumed he was busy. Two weeks later she would learn the truth.
'It was love at first sight for Luis and me, and that's how it stayed, after two years dating at school and eight years of marriage,' says Janet. 'We always spoke a couple of times during the day and he always kept his phone on. So I called my dad, who owns the truckyard where he worked and he told me, "he hasn't been here". I called my in-laws and they hadn't seen him either, and they were already worried because his car was outside their house with the windows open and the keys in the ignition. He would never normally leave it like that.'

"Luis Padilla, 29, father of three, had been kidnapped, driven across the Mexican border from El Paso, Texas, to a house in Ciudad Juarez, the lawless city ruled by drug lords that lies across the Rio Grande. As his wife tried frantically to locate him, he was being stripped, tortured and buried in a mass grave in the garden - what the people of Juarez call a narco-fossa, a narco-smugglers' tomb.
Just another casualty of Mexico's drug wars? Perhaps. But Padilla had no connection with the drugs trade; he seems to have been the victim of a case of mistaken identity.

"Now, as a result of documents disclosed in three separate court cases, it is becoming clear that his murder, along with at least 11 further brutal killings, at the Juarez 'House of Death', is part of a gruesome scandal, a web of connivance and cover-up stretching from the wild Texas borderland to top Washington officials close to President Bush."

Will we see the story on the news tonight, or is news of government agents doing nothing while an informant repeatedly murders people, while wearing a wire, not enough to draw national media attention?

Will Olbermann take notice? You can comment on his website by clicking here.

Jose Padilla - "What does [the case] say about our country?"

2006-12-04T16:23:00.000-06:00

In an article titled "Video Is a Window Into a Terror Suspect’s Isolation," the New York Times today reports that Jose Padilla's attorneys have obtained a videotape of Mr. Padilla being transported from his cell to the dentist to undergo a root canal.

Padilla is an American citizen was accused by then attorney General John Ashcroft of being involved in the detonation of a "dirty bomb" as well as a plot to blow up apartment buildings. However, as the article notes...

"Mr. Padilla’s status was abruptly changed to criminal defendant from enemy combatant last fall. At the time, the Supreme Court was weighing whether to take up the legality of his military detention — and thus the issue of the president’s authority to seize an American citizen on American soil and hold him indefinitely without charges — when the Bush administration pre-empted its decision by filing criminal charges against Mr. Padilla.

Mr. Padilla was added as a defendant in a terrorism conspiracy case already under way in Miami. The strong public accusations made during his military detention — about the dirty bomb, Al Qaeda connections and supposed plans to set off natural gas explosions in apartment buildings — appear nowhere in the indictment against him. The indictment does not allege any specific violent plot against America."

Several months ago, Judge Marcia G. Cooke of United States District Court in Miami dismissed the most serious charge, conspiracy to murder, kidnap and maim persons in a foreign country, "saying that it replicated accusations in the other counts and could lead to multiple punishments for a single crime."

Now that Mr. Padilla's public defenders have obtained the videotape, they allege that he is unfit to stand trial. According to the article, his lawyers:

"argue that he has been so damaged by his interrogations and prolonged isolation that he suffers post-traumatic stress disorder and is unable to assist in his own defense. His interrogations they say, included hooding, stress positions, assaults, threats of imminent execution and the administration of “truth serums.”

The article quotes former Navy JAG officer Philip D. Cave:

"There’s nothing comparable in terms of severity of confinement, in terms of how Padilla was held, especially considering that this was pretrial confinement."

The article also quotes Dr. Angela Hegarty, director of forensic psychiatry at the Creedmoor Psychiatric Center in Queens, N.Y., who examined Padilla in June and September, and who, in an affidavit filed by the defense on Friday, said that Padilla:

"lacks the capacity to assist in his own defense... It is my opinion that as the result of his experiences during his detention and interrogation, Mr. Padilla does not appreciate the nature and consequences of the proceedings against him, is unable to render assistance to counsel, and has impairments in reasoning as the result of a mental illness, i.e., post-traumatic stress disorder, complicated by the neuropsychiatric effects of prolonged isolation."

In another affidavit filed by the defense, one of his public defenders, Andrew Patel, said:

"Mr. Padilla remains unsure if I and the other attorneys working on his case are actually his attorneys or another component of the government’s interrogation scheme... During questioning, he often exhibits facial tics, unusual eye movements and contortions of his body... The contortions are particularly poignant since he is usually manacled and bound by a belly chain when he has meetings with counsel."

According the article, Orlando do Campo, another of Padilla's attorneys...

"...said that Mr. Padilla was not incommunicative, and that he expressed curiosity about what was going on in the world, liked to talk about sports and demonstrated particularly keen interest in the Chicago Bears. But the defense lawyers’ questions often echo the questions interrogators have asked Mr. Padilla, and when that happens, he gets jumpy and shuts down."

Here is a roundup of bloggers' comments on the revelations of this latest filing.

First Glenn Greenwald writes in this article that:

"As I have said many times, the most astounding and disturbing fact over the last five years -- and there is a very stiff competition for that title -- is that we have collectively really just sat by while the U.S. Government arrests and detains people, including U.S. citizens, and then imprisons them for years without any charges of any kind. What does it say about our country that not only does our Government do that, but that we don't really seem to mind much?"

Check out the whole article. Greenwald is one of the most insightful political commentators out there right now. While many lawyers have never even bothered to learn the details and implications of Jose Padilla case, he's been laboring for years, trying to hold the administration's feet to the fire for actions like this. I've even approached him about attending TLC as he's got the warrior part down pat.

Digby points out, via a link at TalkLeft, that

"I know that all the tough guys on the right will say that Padilla is just being a typical whining malcontent but I have a feeling that most of them would crumble into blubbering babies after five minutes in his position. This treatment is extremely inhumane. They basically blinded, deafened and then isolated him, essentially destroying his mind. There is no reason on earth to put those goggles and earphones on him to go to the dentist in the prison in South Carolina except to keep him from ever feeling like a normal human being, part of the natural world. It's sick."

And here is a link to University of Miami law professor Michael Froomkin's take on the case. In a nutshell, Froomkin summarizes the Government's response to this motion by the defense, alleging that the Government's case against Padilla should be dismissed because of "outrageous governmental conduct."

"We deny everything. And even if it's all true the remedy is to sue us, not dismiss this case."

You can view the Government's response to this defense motion here.

Sadly, when I asked another public defender about the Padilla case today, she didn't know who he was. It's not her fault. She is a hard working public defender who has very little free time. She depends on the media to tell her when important things are happening in this country. But, while the New York Times article is insightful, most people have no idea who Padilla is or, if they do, they remember him as the "dirty bomber" as if Ashcroft's allegations, which were never even charged, were somehow true.

But how can we expect average Americans to take note of Padilla's case- which has immensely dangerous implications for all of us- when people like Jules Crittendon, columnist for the Boston Herald, writes today that...

"I Think We're Supposed to Feel Bad About This... Padilla...[y]ou may recall he is the gentleman from Chicago who converted to Islam, hobnobbed with al Qaeda, and, our government has alleged, came back here with a plan to blow up apartment buildings, and now apparently lives in a state of virtual sensory deprivation while awaiting trial on charges of providing support to terrorists."

Once again, the government, via John Ashcroft, accused Padilla in the press of plotting to detonate dirty bombs and with blowing apartment buildings, but never charged Padilla with any such thing!

But accusation has become akin to conviction in post 9/11 America.

It is very likely that Padilla will never stand trial based on the fact that the evidence against him, which was obtained via torture, will either be suppressed because its gathering violated the Constitution or will be so unreliable that a jury won't buy it.

So the chances are great that an American citizen, who was convicted in the court of public opinion, but who may not be convicted in the real courts at all, will have to be cut loose, back onto the streets of his own country, convicted by the media but rightfully and lawfully acquitted in court.

We are left, sadly, with the system we ultimately deserve. I'll probably end up on a watch list for this last statement, but we truly have a choice: Exercise our First Amendment Rights now or risk losing more of the rest of the Bill of Rights later.

Do we go out with a bang or a whimper? If you view the Padilla case as a legitimate exercise of governmental power, you deserve the goverment you have right now. If not, we better all get off our asses and exercise our rights before they vanish, just like Padilla's did.

This case is beyond sickening and yet what do we hear from most of the institutions who are supposed to be informing us about this case's implications on the rest of our liberties? Crickets, followed immediately by Brittney Spears updates.

God help us... The precious rights our ancestors fought and died for, and thoughtfully preserved in the Bill of Rights, are being taken away, right before our eyes, and no one seems to even notice.

Spence / Mayfield Settle Suit for $2 million

2006-12-01T14:07:00.000-06:00

It's old news by now, but here are some things you might have missed regarding Portland attorney Brandon Mayfield and his attorney, Gerry Spence, agreeing to a settlement of $2 million in his civil case against the government for wrongfully holding him as a "material witness" for 14 days following the Madrid train bombings.

(1) Do You Fit The Sun's "Terrorist Profile:" , Glenn Greenwald has an excellent post describing the "typical breathless television report at the time" of Mayfield's arrest. The worst example is from the New York Sun in June, 2004. The Sun editorialized that:

"Mr. Mayfield 's political profile fits that of many disaffected, America-hating terrorists: he strongly opposes the Patriot Act, inveighs against American foreign policy related to Muslim countries, and is "particularly angered," according to his brother Kent, by close U.S. relations with Israel. Mr. Mayfield speculates that the Bush administration knew in advance about 9/11 but chose to let the attacks go ahead so as to justify going to war. And on his release from custody, he compared the U.S. federal government to Nazi Germany.

If those are the qualifications for a terrorist profile, we're in big trouble.

(2) FBI: "Not Enough Evidence": , (h/t sysprog in comments at Unclaimed Territory) here is an a probable reason for the $2 million settlement amount. According to an unclassified FBI email (link to original) from May 5, 2004, FBI agent Elizabeth Steele, emailed another agent (whose name was blacked out) that...

"I left you a voice mail this morning, but I figured this was a more secure way to leave the details for you.

There is a man living in the Portland area who has been tied to the Madrid bombings by a fingerprint found at the scene. His name is Brandon Mayfield, Muslim convert and attorney.

Earlier this week, an LA Times reporter in the Paris Bureau called the Legat in Spain, Ed Sanchez, to ask about information the reporter had heard that there was an American tied to the Madrid bombings. At that time, we don't think he had the name or location or the fact that the evidence is a fingerprint.

The problem is there is not enough evidence to arrest him on a criminal charge. There is a plan to arrest him as a material witness if and when he gets outed by the media.

Neither the National Press Office nor the Portland Division has received any media calls as of this morning, and *BLACKED OUT* thought is that, at some point; LA may receive a call from the Times trying to nail this down. If you do receive this call, we would ask that you confirm nothing and try to get out of them how much they have and whether or not publication is imminent. The powers that be are trying to hold off as long as possible on any arrest, but they want to make sure an arrest happens before anything hits the media.

To complicate things, the Legat just notified Portland that he received an inquiry from a Spanish publication about the same thing, and it had the details about the evidence that it said it planned to publish "soon".

Thanks for your help,
Beth Anne Steele / FBI Portland"

The AP article quoted Gerry Spence's take on this email: "The e-mail says that there wasn't enough evidence to arrest him on a criminal charge. I don't know if that makes your hair stand on end or what... Here the government is saying we don't have any grounds to hold him criminally, but if the media outs him then we are going to hold him as a material witness. It becomes a race to see if the government could arrest Mr. Mayfield before some member of the press outed him."

Yes, Mr. Spence, that does make my hair stand on end. My favorite part of the settlement, however, is not the amount but the fact that Mr. Mayfield (Mr. Spence) retained the right to contest the constitutionality of the PATRIOT Act. The patriotic defense lawyer (who beat a prosecutor named Giuliani in defending Imelda Marcos and who sucessfully defended Randy Weaver and who has never lost a criminal case) still gets a chance to strike down the unpatriotic, draconian provisions of the so called "Patriot Act." It's a good day to be a Warrior, in other words, and the case isn't over.

(3) "A Lot More Mayfields Out There?: , the LA Times reports that "a report on the Mayfield case in January, the Office of the Inspector General, the Justice Department's internal watchdog, said FBI experts had overlooked "important differences" between Mayfield's prints and those of the Algerian man, and had essentially ignored information from Spanish police that pointed to the other suspect."

The same article quotes Michael Cherry, president of Cherry Biometrics, an identification-technology company, stating that "misidentification problems could grow worse as the U.S. and other governments add more fingerprints to their databases." Mr. Cherry is quoted as saying,

"I really believe there are a lot more Mayfields out there," Cherry said. "We just don't know about these cases because the Spanish police don't always get to oversee them. We simply don't have an identification standard that fits with today's times."

According to the Bush administration, we don't have a Constitution that fits with today's times. Like the Geneva Conventions, they see it as quaint, and that attitude trickles down to FBI agents who play with people's liberty like toy soldiers in a spoiled child's game.

Just wait, however. The settlement amount will be used as a call for tort reform rather than as an admission of wrongdoing by a government who lied on an affidavit seeking a "sneak and peek" warrant. And the corporately owned and controlled media who reports it this shoddy, incomplete manner will be chastised as being "liberally biased."

Oh well, as one of Gerry's clients once said after hearing the words not guilty, and as Brandon Mayfield may well be saying now: "Fuck 'em. I'm free."

Gonzalez: A "Grave Threat" to Our Liberties?

2006-11-21T12:02:00.000-06:00

From a USA Today article regarding Atty. General Alberto Gonzalez' comments on the President's "Domestic / Terrorist Surveillance Program" we find the following quote:

"The administration has maintained that its warrantless surveillance program focuses on international calls involving suspected terrorists, and dismisses charges that it is illegal because it bypasses federal law requiring a judge-issued warrant for such eavesdropping."

That's right. The Bush administration's position is that the Authorization for the Use of Military Force (AUMF), which allowed the President to use "all necessary and appropriate" actions to confront the horrors of 9-11, allows him to bypass a federal statute that requires a warrant for "such eavesdropping" as well as bypass the Fourth Amendment's warrant requirement.

In short, a general statement passed hastily in the wake of 9/11, trumps a federal statute and the the Constitution Bush swore to uphold!

But there's also a backup plan. If the AUMF doesn't grant the President this power, Gonzales believes, his status as the "Unitary Chief Executive" puts him above the law. Here's what Alberto said:

"We believe the president has the authority under the authorization of military force and inherent authority of the constitution to engage in this sort of program, but we want to supplement that authority."

Shorter version: The Constitution puts us above the law, the Congress' general grant of authority puts above the law, but we want more power, without any judicial oversight!

With this in mind, I found this scary comparison between what Alberto's comments and the constitution of the former Soviet Union. (h/t Unqualified Offerings)

Here's what Alberto said as quoted by USA Today:

"Gonzales told about 400 cadets from the Air Force Academy's political science and law classes that some see the program as on the verge of stifling freedom rather that protecting the country.

“But this view is shortsighted,” he said. “Its definition of freedom — one utterly divorced from civic responsibility — is superficial and is itself a grave threat to the liberty and security of the American people.”"

Here is an excerpt from Article 39 of the Soviet constitution, as quoted by Richard Schifter in a 1987 address to the American Bar Association:

"Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interest of society or the state. . . ."

Or, from Article 59...

"Citizens’ exercise of their rights and freedoms is inseparable from the performance of their duties and obligations."

So, to paraphrase Carl the Groundskeeper from Caddyshack, "We've got (similarities to the Soviet Union) goin' for us.. which is nice."

Ritter on War With Iran?: "We're at war with Iran."

2006-11-20T12:40:00.000-06:00

Building on a suggestion from W on the listserve, here is a link to a video interview of Former U.N. Weapons Inspector and former intelligence officer Scott Ritter by Amy Goodman of Democracy Now.

You can read a transcript of the interview here, and here are a few snippets..

"Look, we’re already overflying Iran with unmanned aerial vehicles, pilotless drones. On the ground, the CIA is recruiting Mojahedin-e-Khalq, recruiting Kurds, recruiting Azeris, who are operating inside Iran on behalf of the United States of America. And there is reason to believe that we’ve actually put uniformed members of the United States Armed Forces and American citizens operating as CIA paramilitaries inside Iranian territory to gather intelligence.

"Now, when you violate the borders and the airspace of a sovereign nation with paramilitary and military forces, that’s an act of war. That’s an act of war. So, when Americans say, “Ah, there’s not going to be a war in Iran,” there's already a war in Iran. We’re at war with Iran. We’re just not in the declared conventional stage of the war. The Bush administration has a policy of regime change. They’re going to use the military, and the military is being used."

...

"Look, North Korea and Iran, you can’t compare; it’s apples and oranges.

North Korea is a declared nuclear power. They even declared their intent to have nuclear weapons. They haven’t hidden this from anybody. They withdrew from the Non-Proliferation Treaty in total conformity with the rule of law. They put the world on notice... the Bush administration said, “Well, they’re just bluffing,” well, they’re not bluffing. They just popped one off...

Now, we take Iran. Iran is a nation that says, “We don’t have a nuclear weapons program. We have no intention.” In fact, when North Korea exploded their device, the Iranians condemned it. They said nuclear weapons cannot be part of a global equation. And yet, we continue to try and lump them together as if North Korea and Iran are part and parcel of the same policy. Well, maybe they are part and parcel of the same incoherent approach that the Bush administration has taken to dealing with nuclear proliferation."

...

"Well, when we say “Supreme Leader,” first of all, most Americans are going to scratch their head and say, “Who?” because, you see, we have a poster boy for demonization out there. His name is Ahmadinejad. He’s the idiot that comes out and says really stupid vile things, such as, “It is the goal of Iran to wipe Israel off the face of the world,” and he makes ridiculous statements about the United States and etc. And, of course, man, he -- it’s a field day for the American media, for the Western media, because you get all the little sound bites out there, Ahmadinejad, Ahmadinejad, president of Iran. But what people don't understand is, while he can vocalize, his finger is not on any button of power. If you read the Iranian constitution, you’ll see that the president of Iran is almost a figurehead.

The true power in Iran rests with the Supreme Leader. The Supreme Leader is the Ayatollah Khamenei. He is supported by an organization called the Guardian Council. Then there’s another group called the Expediency Council. These are the people that control the military, the police, the nuclear program, all the instruments of power. And not only has the Supreme Leader issued a fatwa that says that nuclear weapons are not compatible with Islamic law, with the Shia belief system that he is responsible, in 2003 he actually reached out to the Bush administration via the Swiss embassy and said, “Look, we would like to normalize relations with the United States. We’d like to initiate a process that leads to a peace treaty between Israel and Iran.” Get this, Israel and Iran. He’s not saying, “We want to wipe Israel off the face of the earth.” He is saying, “We want peace with Israel.” And they were willing to put their nuclear program on the table.

Why didn’t the Bush administration embrace this? Because that leads to a process of normalization, where the United States recognizes the legitimacy of the theocracy and is willing to peacefully coexist with the theocracy. That’s not the Bush administration's position. They want the theocracy gone. They will do nothing that legitimizes that, nothing that sustains peace. They rejected peace. So, it’s not Ahmadinejad that represents the threat to international peace and security when it comes to American-Iranian relations. It’s the Bush administration."

NY Sun Shows Padilla's Face, Calls Him Al-Muhajir

2006-11-20T11:08:00.000-06:00

In a stunning example of the mainstream media as propaganda tool, Glenn Greenwald correctly observed that the photo of "Al Queda's New Leader in Iraq" as featured in today's New York Sun, is actually a photo of American citizen Jose Padilla. The Sun, either indifferently or mistakenly, assures its "readers" that the photo represents "Al-Muhajir's Evil Presence" when Padilla is safely held in a South Carolina military brig where he's been since 2003, when Ashcroft declared him a "Dirty Bomber."

The photo on top is from today's Sun and below is the obviously darkened mug shot of Jose Padilla. Stunning, but Murdoch owned no doubt.

The German magazine Spiegel features an interview with Ron Suskind and asks the author of "The One Percent Doctrine" and "The Price of Loyalty" to describe what he knows about the CIA's "interrogation" of Al Queda operative Kalid Shiek Mohamed. According to Suskind,

"The thing they did with Mohammed is that we had captured his children, a boy and a girl, age 7 and 9. And at the darkest moment we threatened grievous injury to his children if he did not cooperate. His response was quite clear: "That's fine. You can do what you want to my children, and they will find a better place with Allah."

Later, Suskind describes his opinion of what Bush knew and when he knew it:

"The president understands more about the mistakes than he lets on. He knows what the most-skilled interrogators know too. He gets briefed, and he was deeply involved in this process from the beginning. The president loves to talk to operators."

Read the whole article, as well as Suskind's books. "The One Percent Doctrine" is an amazing description of Bush's War on Terror, as carried out by Cheney. One revealing anecdote: The CIA's nickname for Cheney is "Edgar", as in Edgar Bergan. In other words, they think of Bush as the Dummy and Dick as the ventriloquist.

Finally, here is a quote from the Washington Post's Dan Froomkin with interesting implications:

"What will life be like with oversight? We've just gone through not only six years of congressional obedience, but six years of ignorance. Congressional oversight has historically put enormous amounts of important, otherwise secret information into the public domain -- about the government and the private sector alike. If you think bloggers have been a potent political force thus far -- just wait until oversight gives them better material to work with."

Amen.

Justice Dept. Argues No Habeas Rights for Non-Citizen "Enemy Combatants"

2006-11-17T14:45:00.000-06:00

In one of the first cases to test the limits of the "Military Commissions Act", which was passed last month, the Justice Department is arguing that Ali Saleh Kahlah al-Marri, a legal U.S. resident and citizen of Qatar, who has been in a South Carolina military brig since 2003 accused of being an Al Queda sleeper agent, no longer possesses the right to contest his detention through a writ of habeas corpus.

As the Washington Post puts it, "Critics of U.S. detention policies warned yesterday that a brief legal document filed by the Justice Department this week raises the possibility that any of the millions of immigrants living in the United States could be subject to indefinite detention if they are accused of ties to terrorist groups."

As the article states:

"In a six-page motion filed in the U.S. Court of Appeals for the 4th Circuit in Richmond, Justice Department lawyers argue that an anti-terrorism law approved by Congress last month allows the government to detain any foreign national declared to be an enemy combatant, even if he is arrested and imprisoned inside the United States."

This isn't really news, but the interesting aspect of Al-Marri's case is that, unlike most of those currently held in Gitmo, he was not captured on foreign soil, but was apprehended in the U.S., which according to Robert Chesney, a specialist in national security law at Wake Forest University gives him a "much stronger constitutional argument."

As the article concludes,

"Douglas Kmiec, a Pepperdine University law professor who was a Justice Department official during the Ronald Reagan and George H.W. Bush administrations, said the Justice brief signals that this administration believes Congress has given it clear authority to declare foreign nationals as enemy combatants, wherever they are captured.

"It not only opens up the universe of people who may be subjected to these specialized procedures, but it does it emphatically with Congress's approval," Kmiec said. "It remains to be seen whether that changes the judicial dynamic."

Unfair and Imbalanced: Memo Shows Fox News is Faux News

2006-11-16T20:14:00.000-06:00

The Huffington Post has obtained a leaked, internal memo from Fox News Vice President of News, which instructs its affiliates how to "spin" the election and its aftermath. Among the highlights....

- "Let's be on the lookout for any statements from the Iraqi insurgents, who must be thrilled with the prospect of a Dem-controlled congress."

- "The question of the day... is What's the Dem plan for Iraq?"

- "We'll continue to work the Hamas threat to the US that came hours after the election... Just because the Dems won the war on terror isn't over."

So much for fair and balanced. It's a good thing "Fox Broadcasting has nothing to do with the Fox News Channel," as Bill O'Reilly said today.

Operation Northwoods: Can You Handle the Truth?

2006-11-15T11:50:00.000-06:00

Take a look at this article from May, 2001 and ask yourself why the release of information that confirms "Operation Northwoods" wasn't widely discussed? After all, this article isn't on some small-time, little-known, conspiracy-driven website - it's on ABCNEWS.com and the documents that prove the existence of this program are available online even today.

Operation Northwoods was revealed in James Bamford's book Body of Secrets in 2001 but I wonder if the events that happened just four months later prevented us from properly discussing and considering the implications of such an operation?

As Bamford summarized it:

"Operation Northwoods, which had the written approval of the Chairman and every member of the Joint Chiefs of Staff, called for innocent people to be shot on American streets; for boats carrying refugees fleeing Cuba to be sunk on the high seas; for a wave of violent terrorism to be launched in Washington, D.C., Miami, and elsewhere. People would be framed for bombings they did not commit; planes would be hijacked. Using phony evidence, all of it would be blamed on Castro, thus giving Lemnitzer and his cabal the excuse, as well as the public and international backing, they needed to launch their war."

You can see the documents, via the National Security Archive online here.

More on this and the PNAC later...

Yet Another Image to Remember the Election By

2006-11-07T15:37:00.000-06:00

Here is how the British Paper, the Guardian, sees the recent GOP "Bounce."

Racist Desperation Tactics

2006-11-07T15:32:00.000-06:00

Here is an ad sent by the New York Republican Party. Yes, that's a darker skinned hand over a wide-eyed white girl's mouth.

Sick. Let's hope it's a sign of desperation that backfires.

Saddam to Hang for 1982 Killings

2006-11-07T15:28:00.000-06:00

But isn't Uncle Donnie shaking hands with the evil despot in 1983? Who was the VP then, by the way?

Corporate Oligarchy Demonstrated

2006-11-03T11:48:00.000-06:00

Either we have some really generous corporations out there that think enough of the electoral process that they give pretty much equally to both parties, or we a little diversification going on.

Check out this list of top ten corporate donors for both parties. (h/t billmon from crawfordslist) See any similarities? Wonder why that is? As exciting as it is to witness the party who brought us the "K Street Project" to crumble under scandals that all point to hypocracy and greed, it's naive to assume that things will be completely different with a Democratically-controlled congress.

I push for the Democrats to win because I believe they are, at least at the moment, less beholden to corporations than the GOP, but I also fear that "meet the new boss, same as the old boss" might be lyrics to best describe any new revolution. Deepthroat's advice to "Follow the money," also seems like a throwback expression that still fits today.

Still, the shitstorm we've been caught in recently makes me want to seek any port, even if Spence's observation that both arms lead to the same corporate heart still ring true. At this point, I'll take less beholden over completely beholden. Some influence, in between election cycles, has got to be better than none at all?

"Bloodthirsty Bitches and Pious Pimps of Power" Gerry's New Book

2006-10-31T14:30:00.000-06:00

In case you haven't heard, Gerry has a new book out with a great title: "Bloodthirsty Bitches and Pious Pimps of Power." (The Amazon link is here.)

From a New York blogger named Mickey Z here is a quote from the book....

"I’ve come to believe that the members of Team Hate are what and who they are because of what and who we are. The mirror is always at work. None of our bloodthirsty women and none of our pious pontificators could survive one segment on the tube but for the fact that they are speaking to us, the real us, that is, that part of us that resonates to the rantings of hate ... As we, they are angry because they, too, must have been forgotten, misled, lied to; because they are disappointed and have felt pain; and because their expectations have not been met. They are as trapped as we ... But they have learned to profit from it. We and they were born in the same culture, one that was not of their choosing, nor ours. They, as we, are like children who have grown up in a slaughterhouse and have forgotten the soft touch of a lamb. Might there one day be remembrance."

A wise man once told me it feels today in this country what it must have felt like in Berlin, in 1936, with so much hate in the air. I can't wait to read Gerry's take on the current state of our "union."

Easier to Declare Martial Law?

2006-10-31T10:46:00.000-06:00

From the listserve comes this link to an article by the San Francisco Independent Media Center describing a provision in the "John Warner Defense Authorization Act of 2007." According to the article this provision...

"allows the President to declare a "public emergency" and station troops anywhere in America and take control of state-based National Guard units without the consent of the governor or local authorities, in order to "suppress public disorder."

I haven't had the time to examine the allegations in the article including a claim that:

"Section 1076 of the massive Authorization Act, which grants the Pentagon another $500-plus-billion for its ill-advised adventures, is entitled, "Use of the Armed Forces in Major Public Emergencies." Section 333, "Major public emergencies; interference with State and Federal law" states that "the President may employ the armed forces, including the National Guard in Federal service, to restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of ("refuse" or "fail" in) maintaining public order, "in order to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy."

But, could it be that this bill, which passed unanimously in the Senate, is an another instance of the Bush Cabal attaching a provision to a defense appropriation bill, knowing that a vote against it would open the door to charges, like O'Reilly made on Letterman or like Lynne Cheney made against Wolf Blitzer, that if you're not with us, you must be with the terrorists?

Brings to mind the scene in Fahrenheit 9-11 when Rep. John Conyers admits that many votes are conducted without representatives truly knowing what's contained in them?

Here is a link to Sen. Patrick Leahy's Senate website, which includes this statement:

"Also expected to be included in the conference report is a widely opposed provision to allow the President more control over the National Guard. The conference committee has made changes the Insurrection Act, which governs when the President can call to action the National Guard without the consent of state governors to restore public order. Under the changes, the President would now be able to invoke the Act during such regular occurring events as a natural disaster. Because posse comitatus restrictions that prevent the military’s involvement in law enforcement do not apply when the Insurrection Act is invoked, the changes would nullify these long-standing laws."

As I said, I haven't had time to examine the actual bill that was signed, significantly, the same day the Military Commissions Act was signed.

But if the article's allegations can be verified, the ramifications are chillling, aren't they?

Brings to mind Bush's remarks, made during Katrina's aftermath, (see this CNN link with the headline "Bush Eyes Bigger Role for Military in Disasters") that Posse Comitatus hindered his ability to respond to a natural disaster. I wondered then, as I do now, that Katrina would be used to tear down these restrictions, opening the door not to natural disaster relief, but to the horrifying disaster of a "Unitary Chief Executive" given the power to label "enemy combatants" and to conscript the National Guard to round up "undesirable" protesters, even over the objections of the nation's governors.

Let's hope this story gets investigated and reported outside of the blogosphere. It's like I always say to my friends who question why I like to work as a public defender: "One day you'll realize why you need those rights and it'll be too late to realize you've surrendered them all in the name of cracking down on criminals."

More on this story later...

Waterboarding is like dunking, isn't it?

2006-10-26T14:45:00.000-05:00

Dick Cheney submitted to an "interview" (h/t Glenn Greenwald) with a right-wing talk show host and was hit with hard-hitting questions such as

""Would you agree a dunk in water is a no-brainer if it can save lives?" In reply to the latter question, Cheney replied: "It's a no-brainer for me""

Who's opposed to a little dunking if it can save lives, really? The "dunking" they're referring though isn't of the same type Foley tried to perform on the pages. They're talking about waterboarding, which can be seen clearly in this video, created by a former U.S. serviceman so we could see what all the fuss was about. Be warned; it's disturbing.

I bring this up because I left this comment at Greenwald's post.

"[x] says waterboarding is "stress but more intense than leaving the lights on."
If you have the stomach for it, here is a link to a video of a former member of the U.S. military who paid to have himself waterboarded (or "dunked" as dick might call it)so we could see what all the fuss was about.

Be warned though. It's difficult to watch, but equally disturbing to realize this is what's being done in our names, and now sanctioned by our representatives."

Apparently this sounded phony as another commenter noted...

"This is sooo phony - like that Michael Fox Democrapic commercial."

He is of course referring to Rush Limbaugh's assertion that Michael J. Fox, who displayed symptoms of his well-documented Parkinson's disease in an ad for the Democratic Senate candidate in Missouri, was putting on an act.

Here's what I wrote back, since it seems a little phony of me to accuse someone who dares act out the symptoms of their debilitating disease in public is faking it.

"[Y]accuses me of being phony for pointing out what waterboarding actually looks like and for commenting that watching it happen, knowing that it was approved by Congress, is sickening.

Then [Y] parrots Rush, saying that Michael J. Fox is being phony, apparently just like me.

On Countdown, discussing Rush's contention that Fox is acting, Sam Seder pointed out that Rush's real role is to insulate his listeners from reality. Thus, in Rush, [X] and [Y]'s world acts that send Japanese soldiers to prison at hard labor become simply "dunking" and waterboarding is just a little more "intense" than leaving the lights on.

Watch the video, and see if you still think it’s funny, or phony.

What's truly phony is describing what's on it as "dunking,” or declaring "we don't torture" while you ask for U.S. law to change to avoid future war crimes prosecutions, or believing that people who display the symptoms of Parkinsons, and who desperately need the medical advances of stem cell research to overcome them, are putting on an act.

Why don't you and Dick go "dunk" each other and see if people who are concerned about still seem phony?"

The Rule of Six

2006-10-25T15:11:00.000-05:00

From a suggestion by Alan on the listserve, comes this article by Judy Sorum Brown about a way to think about something perplexing. Since the article says it better than I can...

"When we are trying to figure out something perplexing (for which we often use the term, "a problem"), or when we are facing into uncertainty, it seems natural to our western way of thinking to find the right answer through questions like this: "Exactly what is the cause of this? What's going on here? How are things going to unfold? What is likely to happen? What should be our plan?

Many of the most heated arguments, whether within our own heads, or among colleagues or with family members, are about who has the right answer to the question before us.

The "rule of six," a Native American thinking process or discipline, requires that instead of coming up with the one best answer to the question, we instead come up with at least six possible, or good, answers. And then having done that, we hold all six in our head and do not choose among them.

This is very hard for the Western mind. Even when we think of two possibilities, it is for the implicit purpose of having those two possibilities fight it our, until one wins. Thinking about more than one cause of an event or more than one possibility of an outcome is, in our mind, simply an invitation for us to quickly choose the right one.

The Native tradition, by contrast, holds that there is a generous and open space after we notice something. And that is the space within which to hold many possible interpretations, or causes, or developments.

The ability to hold six possibilities in our mind accomplishes several things. It keeps our perceptions open to a wider range of data; it allows us to be 'systems thinkers' seeking multiple roots of causality in multiple dimensions of a situation; it keeps folks from having to fight with each other about who is right at a time when they should be listening with curiosity to why each other sees things differently.

And since we are not forcing ourselves to invest our ego in a single "best" idea, we naturally become more flexible in our thinking, and if our "favorite" of the possibilities doesn't turn out to be born out by the unfolding of data, we can more easily shift out emotional commitment to another idea which in the course of time has proved stronger; and we can make that shift earlier and more easily.

So in a sense, the rule of six allows us to remain aware and realistic, more flexible in our thinking, present to the world and to the thoughts and perceptions of others, and perhaps even more compassionate with ourselves when we are "of two minds" or more about something."

Why You Need to Read Blogs

2006-10-25T11:27:00.000-05:00

This Newsweek Online article, entitled "Are the Faithful Losing Faith?", details the results of the latest Newsweek poll on voting patterns. It describes bad news for the GOP, including a finding that "fifty-five percent of likely voters ... would vote for the Democrat in their district if the election were held today."

Sounds like great news for Democrats, right? However, on the issue of impeachment, the article continues:

"Other parts of a potential Democratic agenda receive less support, especially calls to impeach Bush: 47 percent of Democrats say that should be a “top priority,” but only 28 percent of all Americans say it should be, 23 percent say it should be a lower priority and nearly half, 44 percent, say it should not be done. (Five percent of Republicans say it should be a top priority and 15 percent of Republicans say it should be a lower priority; 78 percent oppose impeachment.)"

So, if you read this article, doesn't it sound as if the "Impeachment Part" of the Democrat's agenda is receiving low support? After all, the polling data regarding impeachment is described in negative terms, such as "receiv[ing] less support," concluding, once again in negative terms, that less than half of Democrats say impeachment should be a "top priority."

In short, the tone of the Newsweek article is that potential calls for impeachment are not being well received.

But, as Glenn Greenwald points out, if we break Newsweek's code, we can easily see that the other side of their conclusion that "44% of all Americans" say impeachment "should not be done" is that a minority of those polled believe this President should not be impeached.

So why isn't this the headline and why do we have to "parse the statement" to get to this finding? After all, this public call to impeach the Bush far exceeds the public call to impeach Clinton. But, like the proper conclusions to draw from the polling data, we have to figure this out on our own.

Looked at another way, the results of this poll are even more astounding. If "28 percent of all Americans" say impeachment should be top priority and , 23 percent "say it should be a lower priority," why doesn't Newsweek point out that a majority of those polled believe this President should be impeached. After all they agree on impeachment, but differ only on how much of a priority it should be.

But we have to break their code to figure this out!

Tragically, most readers of Newsweek's "Online Exclusive" poll would have missed this analysis and would likely have walked away thinking, as the article implied, that impeachment wasn't playing well in Palookaville.

To get to what wasn't stated, but what was clearly true, you had to read between the lines, or go to a blog that had already done so. That's why I go straight to blogs, like Greenwald's or Digby's, rather than trying to read between the lines of the corporate media sites.

What makes finding the right blogs, amongst a sea of bad ones, is that it gives you a look inside the "filter" that the news is pushed through, before it reaches you and me.

"Emotion Detection Technology" Anger Alerts

2006-10-20T10:56:00.000-05:00

This article describes a new technology being tested at telephone-based customer service call centers to alert supervisors when a customer's anger level reaches a certain point. In short, a computer measures 200 elements of voice tone, word choice, etc., and the new article describes a "major attraction of [the] emotion-detection technology is its promised ability to help identify customer frustration." The article continues...

"The software conducts a flow analysis of each call, examining 200 elements to give a holistic picture of the customer experience. Besides emotion detection, Perform uses two other methods to analyze customer experiences with call centers. The software allows users to create lexicons of words and phrases a caller may say that could raise red flags: cancellation, frustration, or a competitor's name."

While the new technology may be promising for companies seeking a better way to identify customers who are upset, what about the technology's potential for corruption? In other words, in an age when the President willingly violates the Fourth Amendment and allows agencies to eavesdrop on purely domestic phone calls between citizens, wouldn't this new technology make Dick Cheney's dark eyes light up?

We are told that the new "Military Commissions Act,"- which allows the President to determine who is an "unlawful enemy combatant" and who is thus able to retain their ability to be tried in U.S courts, to contest their detentions via writs of habeas corpus, and their ability to retain rights to counsel, to speedy trial and to confront their accusers- will not be used to punish his political enemies. "Don't you worry your pretty little heads," we're assured. "This power will only be used against terrorists."

But try to fathom now that (1) we don't know how much eavesdropping is being conducted, and that (2) soon this new "emotion detection technology" will allow computers to search speech for phrases which may be deemed to "purposefully and materially support[] hostilities against the United States" as is criminalized under the new MCA.

The implications are terrifying for anyone who believes the Fourth Amendment should be anything but a "quaint" reminder of an earlier, pre-9/11 mindset, to paraphrase the Attorney General's assessment of the Geneva Conventions application to the GWOT.

While the implications of this new technology and our lack of knowledge about the scope of eavesdropping is truly terrifying, it is even more shocking to read this description of the "enemy at home" by the Rishwain Research Scholar at the Hoover Institution at Stanford University, Disesh D'Souza.

"In this book I make a claim that will seem startling at the outset. The cultural left in this country is responsible for causing 9/11. … In faulting the cultural left, I am not making the absurd accusation that this group blew up the World Trade Center and the Pentagon. I am saying that the cultural left and its allies in Congress, the media, Hollywood, the nonprofit sector, and the universities are the primary cause of the volcano of anger toward America that is erupting from the Islamic world.

I realize that this is a strong charge, one that no one has made before. But it is a neglected aspect of the 9/11 debate, and it is critical to understanding the current controversy over the ‘war against terrorism.’ … I intend to show that the left has actively fostered the intense hatred of America that has led to numerous attacks such as 9/11. If I am right, then no war against terrorism can be effectively fought using the left-wing premises that are now accepted doctrine among mainstream liberals and Democrats.”

In other words, (1) you can be made to disappear at the Decider's whim, without access to a court or a lawyer if he concludes that you "purposefully and materially support[] hostilities against the United States," (2) phone calls between citizens are being eavesdropped upon at unknown levels and the ability of search these calls for phrases is now available, and (3) many mainstream, right-wing "intellectuals" believe, as D'Souza does, that "the left [in America] has actively fostered the intense hatred of America that has led to numerous attacks."

Is it too far of a stretch to believe the MCA will be "stretched" soon to allow the those they believe "caused" 9/11 to be described as "purposefully and materially supporting hostilities" against the U.S. to be deemed "unlawful enemy combatants" and removed to those new detention facilities being constructed inside the U.S. by a Halliburton subsidiary?

I sure hope so.