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Thursday, May 28, 2009

Cal Supremes show "Initiative" and "Restraint"

A corollary to Borenstein’s Law is that measures which are intended to be progressive reforms often evolve into tools for repression.

Opponents of Prop. 8, the anti-gay marriage initiative, have suddenly discovered the flaws in the Initiative process. Like Captain Renault in Casablanca, bloggers and commentators interested in gay rights are shocked by the ease with which perceived "individual rights" of minorities can be extinguished by the majority of voters.

They shouldn’t have been surprised. This has been happening for a long time. The voters have had many chances to show their contempt for individual liberties.

The difference is that a powerful and vocal constituency now see themselves as the victims of the process. A smaller, less powerful interest group, those concerned with the rights of criminal defendants, have whimpered in this wilderness for many years.

It is only a slight stretch to compare this attitude with the lesson derived from Christian disinterest in the fate of disappearing Jews in Nazi Germany ... you know, "when they came for the Jews, I didn't care because I was not a Jew ... now when they come for me, there is no one to complain..."

In 1982, the voters understandably passed a measure ironically titled "Victim’s Bill of Rights", which amended Article I of California’s constitution, reversing a generation of court rulings that "favored" criminal defendants. It included a broad wish list designed by frustrated prosecutors - limiting California courts to minimal federal rules of evidence, especially relating to 4th Amendment issues; requiring "truth-in-evidence" to prevent judges from excluding evidence prejudicial to defendants, such as prior crimes; eliminated the defense of "diminished capacity", returning the law relating to mental illness to the 18th century definition of insanity; purporting to restrict plea bargaining.

In 1990, Proposition 115, the "Crime Justice Reform Act", also called the "Speedy Trial Initiative", authored by a L.A. deputy District Attorney (Sterling Ernie Norris) and the state D.A. association, tilted the playing field further toward the prosecution. Hearsay was permitted in preliminary hearings, defendants were forced to disclose their defenses, among other "reforms."

Now, Chief Justice Ron George, writing for the 6-1 majority of the California Supreme Court, upholding the constitutionality of the the anti-gay marriage initiative which the voters passed in 2008, has implied that he and his brethren have serious misgivings about the ease with which California’s constitution can be altered. In a fine example of the philosophy of judicial restraint, George and his cohorts claim to set aside their qualms and "personal opinions" and decided the case solely on "the law."

The nation’s founding fathers wisely made the process of amending the federal constitution resistant to momentary moods of the majority, requiring super majorities in Congress, or unwieldy constitutional conventions, ratification by two thirds of the states, a lengthy process that insures thorough vetting. Even so, mistakes have been made, Prohibition being the most notorious example.

In the Progressive Era of the early 1900's, Senator Hiram Johnson championed direct democracy as an end run around corrupt state legislatures, which were in bondage to hide bound big business interests which regularly squelched reform measures. Recall, referendum, and initiative were intended to redress the perceived flaws in the system, which impeded needed reforms to "liberalize" the society.

These days, the California legislature is totally constipated, hamstrung by other seemingly brilliant ideas swept in by the initiative process over the past thirty years - proposition 13 (the Jarvis Initiative, limiting increases in property taxes), term limits, and balanced budgets.

California’s Supreme Court used to be a respected protector of individual rights, its holdings followed by other courts around the country. Beginning in the 1970's and continuing today, advocates of "judicial restraint" and "strict constitutional interpretation" have forced the Court to retreat to a reactionary stance that has made the state comparable to, if not worse than, the most repressive states in the South, minimizing individual rights in favor of the will of the majority of the people.

Sunday, May 24, 2009

Obama and The Supremes: hit or miss?

The political spin amounting to a tornado is beginning in the imminent choice of a replacement for Justice Souter on the Supreme Court.

The Right righteously demands a non-activist moderate instead of a radical liberal. Coming from the same shrill voices that applauded the nominations of Clarence Thomas, Antonin Scalia, John Roberts and Sam Alito, who were intended to and have tilted the Court sharply to the right for the coming decades, amounts to monumental chutzpah.

None of these men is moderate when it comes to the critical close calls (the 5-4 votes) on social issues that have the most impact on our country. On issues such as racial and gender equality, access to the courts, executive vs. legislative power, federalism, government vs. business interests, criminal rights, all four of these men always — I mean always — find rationales to serve their radical biased personal views against abortion but for capital punishment, against expansion of civil liberties and for expansion of corporate freedom, against regulation to redress inequality and for limiting access to justice for individuals.

They mouth the words of respect for precedent unless they can find intellectually dubious paths around it. They decry judicial activism that overturns laws that express the will of The People unless they disagree with such laws and can find excuses to overturn them by resorting to a strict construction of the Constitution.

Reaction from The Left has been predictably disorganized. The most vocal have been particular one issue interest groups : environment, labor, press and so on. The loudest voices have called for an "identity" choice, i.e, a woman, Hispanic, or other minority to make the Court look more like America – as if that is a good thing in and of itself.

My view is that choosing on those bases could be disastrous. Clarence Thomas and Sandra Day O’Connor are examples. Single issue candidates might be just as bad. In my legal experience, for instance, those only interested in womens’ issues are often disinterested in criminal rights for others, especially where women are the perceived victims. The same is true about any single interest group.

On the other hand, Obama has made comments that might presage other problems. He wants someone who, though intelligently grounded in The Law, is also compassionate, possesses common sense, and understands the struggles of people in the real world. This scares the indignant intellects of The Right, who read liberal judicial activist into the definition.

It scares me for a different reason. I remember California’s recall of state Supreme Court justices, including Chief Justice Rose Bird, on the complaint that she and her allies on the Court imposed their personal views against capital punishment to overturn numerous death sentences. The recall campaign was actually funded by corporate interests that were more concerned with the Bird Court’s bias against them. A succession of conservative governors — Republican (Dukmejian and Wilson) and Democrat (Grey Davis) made appointments that turned the Court around. The result pleased corporate lawyers. The California Supreme Court now affirms virtually all death sentences, overtly favoring compassion for crime victims over the perceived sympathy for criminals of the previous Court. The conservative justices are no less result oriented than those they replaced. They just support their rulings with different reasons.

The lesson I learn reading these cases over the last thirty years is that "compassion" and "common sense" is just as subjective and useless a standard as "strict construction" and "judicial activism".

Obama’s dilemma is that he is intellectually honest, respectful of the Constitution, and a decent person. I fear that he will not be as ruthless in his choice as W. and his neo-cons were. Obama is not likely to insist on a litmus test that includes ideological orthodoxy. In other words, Obama will not choose someone as far to the Left as those chosen for the Right.

Pundits and Court historians like to observe that presidents have been often surprised and disappointed by their choices. True, Eisenhower regretted Warren, FDR regretted Frankfurter. But modern appointments have not provided such shocks. Vetting is much more thorough; no longer are justices seen as rewards for lengthy service. Disgusted by the Warren experience and Roe v. Wade, the Right has been vigilant about critical issues and disappointments have been rare exceptions. Nixon misfired on Blackmun and Powell, but he satisfied the Right with Renquist who Reagan elevated to Chief.

The truth is that Obama’s first choice — and any he is likely to make in this or his next term — are not likely to radically alter the Rightward lean of the Supreme Court for the foreseeable future. Except for Scalia (73), the other sure reactionary votes are in their prime: Thomas (61), Alito (59), Roberts (54). John Paul Stevens (89), Ginsburg (76 , with cancer), and Breyer (71) make up the usual opposition to the four votes from the unified Right. Souter, now retired, sometimes joined the three moderates. The so-called swing vote is usually cast by Anthony Kennedy (73), a Reagan appointee.

So replacement of Souter with a certain vote on the Left will not change the Court’s math. But a mistaken choice — a stealth conservative on issues other than the one the judge has clearly in focus, a weak personality who cannot influence others on the Court, or an older person who will retire too soon — would be a tragedy.

Saturday, May 23, 2009

U.S. jury rejects death penalty for U.S. soldier.

Proponents of the death penalty make three powerful points. First, they cite the need to provide closure for the families of victims. If the justice system is to maintain its credibility, it must vindicate the rights of victims, defusing the rage an ineffectual system implies. Second, it is intended as a powerful deterrence to brutal crimes. The threat of death has never been shown to deter psychopaths or impulse killers, but the argument continues to be set forth. Third, it satisfies the primal moral and religious teachings that taking a life is the worst act against humanity, proportionally demanding a punishment equal to the crime; an eye for an eye, a life for a life.

So why hasn’t there been an outcry from the pro-death crowd about the following case, reported today among the furniture ads in the L.A. Times?

A civil jury in Kentucky sentenced Steven Green, 24, a former American soldier, to life without parole, instead of death. The crime: In 2006, the soldier, along with other members of his squad, raped and then murdered a 14 year old Iraqi girl and then killed her, her mother and her 6 year old sister. They then burned down their house to cover up the crimes. Four other soldiers were given sentences ranging from 5 to 110 years.

Iraqis were incensed by the crimes and are furious about the lack of a death penalty. A tribal leader said it was the only way to vindicate "the honor of the family."

In July, 2007, Fox News reported the arrest of the soldier, noting that then Attorney General Gonzales intended to seek the death penalty and citing several mitigating factors in the soldier’s favor.

"Dozens were killed in the unit's yearlong deployment and half of the battalion, including Green, sought help for combat stress. An Associated Press investigation in January found that an Army psychiatry team diagnosed Green as a threat to Iraqi civilians four months before the rape and murders. According to military documents, Green was treated with drugs to regulate his mood before returning to duty in a violent stretch of desert in the southern Baghdad suburbs known as the "Triangle of Death."

Perhaps these were mitigating circumstances that the jury found sufficient to grant mercy. Maybe they considered the stress and fear of occupying a dangerous country in an unpopular war. Maybe the jurors suspected the girls of sympathy with terrorists. Or maybe the Kentucky jury valued the life of an American soldier more highly than Iraqi children.

But if there is a case in which the victim impact and deterrent effect of the death penalty would seem to apply, this should be it. According to the Times, "As much as any of the abuses known to have been committed by U.S. troops in Iraq, this crime has resonated in the [Iraqi] national consciousness for its brutality and callousness."

Thursday, May 21, 2009

Obama the lawyer.

Today, President Obama made another dazzling speech that exposes his most important quality: the ability to "think like a lawyer" and speak like a democratic leader.

I am afraid that he is fighting a losing battle to impose reason upon the political process. In this speech, he explained his policy regarding the disposition of inmates of Guantanamo Bay in the most rational and lawyerlike way.

He made the speech in the wake of growing hysteria from the left, right, and panicked politicians from his own party. The ACLU demands that the detainees deserve strict adherence to "due process" as defined in the Constitution; Dick Cheney and redneck talkradio demand that Guantanamo be converted into a permanent Devil’s Island; the Congress panders to hysteria anticipating release of terrorists into small town America.

Obama’s dilemma is the same that faced every responsible and intelligent president who could be called a principled centrist, that is, not an ideologue or simple-minded and cynical politician who designs policy based on polls and contributions. Lincoln was opposed by the "left" of his day (the radical abolitionists), accused of disloyalty to his base; and hated by "the right" as a tyrant depriving the South of liberty and property. FDR had the same problems - with his supporters as well as his enemies. Both made decisions which history has criticized as violations of Constitutional rights (Lincoln: suspension of Habeas Corpus, preventative detention of suspected spies and rebels; FDR: preventative detention of Nisei Japanese and other "aliens").

Treading a rational middle ground is dangerous. The middle of the road is no place for a sane person when traffic from either side is racing in panic toward you. If cutting the baby in half is just an expedient, forced by inability to take a principled position, the fence sitter will be justifiably wounded.

But a thorough examination of Obama’s speech proves that is not this case. Obama’s speech, when examined in its entirety, states a coherent argument for his policies about Guantanamo, terrorists, torture, release of torture photos, and transparency. What follows is the text of the substance of his speech, which was delivered in the Archives, where the founding documents of our nation are under glass.

At the outset, he stated his principles:
"I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values. The documents that we hold in this very hall -- the Declaration of Independence, the Constitution, the Bill of Rights -- these are not simply words written into aging parchment. They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality, and dignity around the world.
"I stand here today as someone whose own life was made possible by these documents. My father came to these shores in search of the promise that they offered. My mother made me rise before dawn to learn their truths when I lived as a child in a foreign land. My own American journey was paved by generations of citizens who gave meaning to those simple words -- "to form a more perfect union." I've studied the Constitution as a student, I've taught it as a teacher, I've been bound by it as a lawyer and a legislator. I took an oath to preserve, protect, and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never, ever, turn our back on its enduring principles for expedience sake.
"I make this claim not simply as a matter of idealism. We uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps us safe. Time and again, our values have been our best national security asset -- in war and peace; in times of ease and in eras of upheaval.
"Fidelity to our values is the reason why the United States of America grew from a small string of colonies under the writ of an empire to the strongest nation in the world.
"It's the reason why enemy soldiers have surrendered to us in battle, knowing they'd receive better treatment from America's Armed Forces than from their own government.
"It's the reason why America has benefitted from strong alliances that amplified our power, and drawn a sharp, moral contrast with our adversaries.
"It's the reason why we've been able to overpower the iron fist of fascism and outlast the iron curtain of communism, and enlist free nations and free peoples everywhere in the common cause and common effort of liberty.
"From Europe to the Pacific, we've been the nation that has shut down torture chambers and replaced tyranny with the rule of law. That is who we are. And where terrorists offer only the injustice of disorder and destruction, America must demonstrate that our values and our institutions are more resilient than a hateful ideology.

What went wrong:
"After 9/11, we knew that we had entered a new era -- that enemies who did not abide by any law of war would present new challenges to our application of the law; that our government would need new tools to protect the American people, and that these tools would have to allow us to prevent attacks instead of simply prosecuting those who try to carry them out.
"Unfortunately, faced with an uncertain threat, our government made a series of hasty decisions. I believe that many of these decisions were motivated by a sincere desire to protect the American people. But I also believe that all too often our government made decisions based on fear rather than foresight; that all too often our government trimmed facts and evidence to fit ideological predispositions. Instead of strategically applying our power and our principles, too often we set those principles aside as luxuries that we could no longer afford. And during this season of fear, too many of us -- Democrats and Republicans, politicians, journalists, and citizens -- fell silent.
"In other words, we went off course. And this is not my assessment alone. It was an assessment that was shared by the American people who nominated candidates for President from both major parties who, despite our many differences, called for a new approach -- one that rejected torture and one that recognized the imperative of closing the prison at Guantanamo Bay.

"Now let me be clear: We are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability. For reasons that I will explain, the decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable -- a framework that failed to rely on our legal traditions and time-tested institutions, and that failed to use our values as a compass. And that's why I took several steps upon taking office to better protect the American people.

Actions Obama has taken ... and why:
(1)"First, I banned the use of so-called enhanced interrogation techniques by the United States of America. (Applause.)
"I know some have argued that brutal methods like waterboarding were necessary to keep us safe. I could not disagree more. As Commander-in-Chief, I see the intelligence. I bear the responsibility for keeping this country safe. And I categorically reject the assertion that these are the most effective means of interrogation. (Applause.) What's more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counterterrorism efforts -- they undermined them, and that is why I ended them once and for all. (Applause.)
"Now, I should add, the arguments against these techniques did not originate from my administration. As Senator McCain once said, torture "serves as a great propaganda tool for those who recruit people to fight against us." And even under President Bush, there was recognition among members of his own administration -- including a Secretary of State, other senior officials, and many in the military and intelligence community -- that those who argued for these tactics were on the wrong side of the debate, and the wrong side of history. That's why we must leave these methods where they belong -- in the past. They are not who we are, and they are not America.
(2)"The second decision that I made was to order the closing of the prison camp at Guantanamo Bay. (Applause.)
"For over seven years, we have detained hundreds of people at Guantanamo. During that time, the system of military commissions that were in place at Guantanamo succeeded in convicting a grand total of three suspected terrorists. Let me repeat that: three convictions in over seven years. Instead of bringing terrorists to justice, efforts at prosecution met setback after setback, cases lingered on, and in 2006 the Supreme Court invalidated the entire system. Meanwhile, over 525 detainees were released from Guantanamo under not my administration, under the previous administration. Let me repeat that: Two-thirds of the detainees were released before I took office and ordered the closure of Guantanamo.
"There is also no question that Guantanamo set back the moral authority that is America's strongest currency in the world. Instead of building a durable framework for the struggle against al Qaeda that drew upon our deeply held values and traditions, our government was defending positions that undermined the rule of law. In fact, part of the rationale for establishing Guantanamo in the first place was the misplaced notion that a prison there would be beyond the law -- a proposition that the Supreme Court soundly rejected. Meanwhile, instead of serving as a tool to counter terrorism, Guantanamo became a symbol that helped al Qaeda recruit terrorists to its cause. Indeed, the existence of Guantanamo likely created more terrorists around the world than it ever detained.
"So the record is clear: Rather than keeping us safer, the prison at Guantanamo has weakened American national security. It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries. By any measure, the costs of keeping it open far exceed the complications involved in closing it. That's why I argued that it should be closed throughout my campaign, and that is why I ordered it closed within one year.
(3)"The third decision that I made was to order a review of all pending cases at Guantanamo. I knew when I ordered Guantanamo closed that it would be difficult and complex. There are 240 people there who have now spent years in legal limbo. In dealing with this situation, we don't have the luxury of starting from scratch. We're cleaning up something that is, quite simply, a mess -- a misguided experiment that has left in its wake a flood of legal challenges that my administration is forced to deal with on a constant, almost daily basis, and it consumes the time of government officials whose time should be spent on better protecting our country.
"Indeed, the legal challenges that have sparked so much debate in recent weeks here in Washington would be taking place whether or not I decided to close Guantanamo. For example, the court order to release 17 Uighurs -- 17 Uighur detainees took place last fall, when George Bush was President. The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican Presidents -- not wild-eyed liberals. In other words, the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility; the problem exists because of the decision to open Guantanamo in the first place. (Applause.)
"Now let me be blunt. There are no neat or easy answers here. I wish there were. But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo. As President, I refuse to allow this problem to fester. I refuse to pass it on to somebody else. It is my responsibility to solve the problem. Our security interests will not permit us to delay. Our courts won't allow it. And neither should our conscience.

Response to the hysteria:
"Now, over the last several weeks, we've seen a return of the politicization of these issues that have characterized the last several years. I'm an elected official; I understand these problems arouse passions and concerns. They should. We're confronting some of the most complicated questions that a democracy can face. But I have no interest in spending all of our time relitigating the policies of the last eight years. I'll leave that to others. I want to solve these problems, and I want to solve them together as Americans.
"And we will be ill-served by some of the fear-mongering that emerges whenever we discuss this issue. Listening to the recent debate, I've heard words that, frankly, are calculated to scare people rather than educate them; words that have more to do with politics than protecting our country. So I want to take this opportunity to lay out what we are doing, and how we intend to resolve these outstanding issues. I will explain how each action that we are taking will help build a framework that protects both the American people and the values that we hold most dear. And I'll focus on two broad areas: first, issues relating to Guantanamo and our detention policy; but, second, I also want to discuss issues relating to security and transparency.

"Now, let me begin by disposing of one argument as plainly as I can: We are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders -- namely, highly secure prisons that ensure the public safety.
"As we make these decisions, bear in mind the following face: Nobody has ever escaped from one of our federal, supermax prisons, which hold hundreds of convicted terrorists. As Republican Lindsey Graham said, the idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational.
"We are currently in the process of reviewing each of the detainee cases at Guantanamo to determine the appropriate policy for dealing with them. And as we do so, we are acutely aware that under the last administration, detainees were released and, in some cases, returned to the battlefield. That's why we are doing away with the poorly planned, haphazard approach that let those detainees go in the past. Instead we are treating these cases with the care and attention that the law requires and that our security demands.

Guantanamo detainees: 5 categories
"Now, going forward, these cases will fall into five distinct categories.

(1) First, whenever feasible, we will try those who have violated American criminal laws in federal courts -- courts provided for by the United States Constitution. Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists. The record makes that clear. Ramzi Yousef tried to blow up the World Trade Center. He was convicted in our courts and is serving a life sentence in U.S. prisons. Zacarias Moussaoui has been identified as the 20th 9/11 hijacker. He was convicted in our courts, and he too is serving a life sentence in prison. If we can try those terrorists in our courts and hold them in our prisons, then we can do the same with detainees from Guantanamo.
"Recently, we prosecuted and received a guilty plea from a detainee, al-Marri, in federal court after years of legal confusion. We're preparing to transfer another detainee to the Southern District Court of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania -- bombings that killed over 200 people. Preventing this detainee from coming to our shores would prevent his trial and conviction. And after over a decade, it is time to finally see that justice is served, and that is what we intend to do. (Applause.)

(2)"The second category of cases involves detainees who violate the laws of war and are therefore best tried through military commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.
"Now, some have suggested that this represents a reversal on my part. They should look at the record. In 2006, I did strongly oppose legislation proposed by the Bush administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process rights for the accused that could stand up on appeal.
"I said at that time, however, that I supported the use of military commissions to try detainees, provided there were several reforms, and in fact there were some bipartisan efforts to achieve those reforms. Those are the reforms that we are now making. Instead of using the flawed commissions of the last seven years, my administration is bringing our commissions in line with the rule of law. We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify. These reforms, among others, will make our military commissions a more credible and effective means of administering justice, and I will work with Congress and members of both parties, as well as legal authorities across the political spectrum, on legislation to ensure that these commissions are fair, legitimate, and effective.

(3)"The third category of detainees includes those who have been ordered released by the courts. Now, let me repeat what I said earlier: This has nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have spoken. They have found that there's no legitimate reason to hold 21 of the people currently held at Guantanamo. Nineteen of these findings took place before I was sworn into office. I cannot ignore these rulings because as President, I too am bound by the law. The United States is a nation of laws and so we must abide by these rulings.

(4)"The fourth category of cases involves detainees who we have determined can be transferred safely to another country. So far, our review team has approved 50 detainees for transfer. And my administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation.

(5)"Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
"Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

"I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

"Now, as our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult. These are issues that are fodder for 30-second commercials. You can almost picture the direct mail pieces that emerge from any vote on this issue -- designed to frighten the population. I get it. But if we continue to make decisions within a climate of fear, we will make more mistakes. And if we refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future.
"I have confidence that the American people are more interested in doing what is right to protect this country than in political posturing. I am not the only person in this city who swore an oath to uphold the Constitution -- so did each and every member of Congress. And together we have a responsibility to enlist our values in the effort to secure our people, and to leave behind the legacy that makes it easier for future Presidents to keep this country safe.

Transparency - torture photos and memos:
"Now, let me touch on a second set of issues that relate to security and transparency.
"National security requires a delicate balance. One the one hand, our democracy depends on transparency. On the other hand, some information must be protected from public disclosure for the sake of our security -- for instance, the movement of our troops, our intelligence-gathering, or the information we have about a terrorist organization and its affiliates. In these and other cases, lives are at stake.

"Now, several weeks ago, as part of an ongoing court case, I released memos issued by the previous administration's Office of Legal Counsel. I did not do this because I disagreed with the enhanced interrogation techniques that those memos authorized, and I didn't release the documents because I rejected their legal rationales -- although I do on both counts. I released the memos because the existence of that approach to interrogation was already widely known, the Bush administration had acknowledged its existence, and I had already banned those methods. The argument that somehow by releasing those memos we are providing terrorists with information about how they will be interrogated makes no sense. We will not be interrogating terrorists using that approach. That approach is now prohibited.
"In short, I released these memos because there was no overriding reason to protect them. And the ensuing debate has helped the American people better understand how these interrogation methods came to be authorized and used.
"On the other hand, I recently opposed the release of certain photographs that were taken of detainees by U.S. personnel between 2002 and 2004. Individuals who violated standards of behavior in these photos have been investigated and they have been held accountable. There was and is no debate as to whether what is reflected in those photos is wrong. Nothing has been concealed to absolve perpetrators of crimes. However, it was my judgment -- informed by my national security team -- that releasing these photos would inflame anti-American opinion and allow our enemies to paint U.S. troops with a broad, damning, and inaccurate brush, thereby endangering them in theaters of war.
"In short, there is a clear and compelling reason to not release these particular photos. There are nearly 200,000 Americans who are serving in harm's way, and I have a solemn responsibility for their safety as Commander-in-Chief. Nothing would be gained by the release of these photos that matters more than the lives of our young men and women serving in harm's way.
"Now, in the press's mind and in some of the public's mind, these two cases are contradictory. They are not to me.
"In each of these cases, I had to strike the right balance between transparency and national security. And this balance brings with it a precious responsibility. There's no doubt that the American people have seen this balance tested over the last several years. In the images from Abu Ghraib and the brutal interrogation techniques made public long before I was President, the American people learned of actions taken in their name that bear no resemblance to the ideals that generations of Americans have fought for. And whether it was the run-up to the Iraq war or the revelation of secret programs, Americans often felt like part of the story had been unnecessarily withheld from them. And that caused suspicion to build up. And that leads to a thirst for accountability.
"I understand that. I ran for President promising transparency, and I meant what I said. And that's why, whenever possible, my administration will make all information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued -- and I never will -- that our most sensitive national security matters should simply be an open book. I will never abandon -- and will vigorously defend -- the necessity of classification to defend our troops at war, to protect sources and methods, and to safeguard confidential actions that keep the American people safe.

"Here's the difference though: Whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions -- by Congress or by the courts. We're currently launching a review of current policies by all those agencies responsible for the classification of documents to determine where reforms are possible, and to assure that the other branches of government will be in a position to review executive branch decisions on these matters. Because in our system of checks and balances, someone must always watch over the watchers -- especially when it comes to sensitive administration -- information.

"Now, along these same lines, my administration is also confronting challenges to what is known as the "state secrets" privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It's been used by many past Presidents -- Republican and Democrat -- for many decades. And while this principle is absolutely necessary in some circumstances to protect national security, I am concerned that it has been over-used. It is also currently the subject of a wide range of lawsuits. So let me lay out some principles here. We must not protect information merely because it reveals the violation of a law or embarrassment to the government. And that's why my administration is nearing completion of a thorough review of this practice.
"And we plan to embrace several principles for reform. We will apply a stricter legal test to material that can be protected under the state secrets privilege. We will not assert the privilege in court without first following our own formal process, including review by a Justice Department committee and the personal approval of the Attorney General. And each year we will voluntarily report to Congress when we have invoked the privilege and why because, as I said before, there must be proper oversight over our actions.
"On all these matters related to the disclosure of sensitive information, I wish I could say that there was some simple formula out there to be had. There is not. These often involve tough calls, involve competing concerns, and they require a surgical approach. But the common thread that runs through all of my decisions is simple: We will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it's uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why. (Applause.)

"Now, in all the areas that I've discussed today, the policies that I've proposed represent a new direction from the last eight years. To protect the American people and our values, we've banned enhanced interrogation techniques. We are closing the prison at Guantanamo. We are reforming military commissions, and we will pursue a new legal regime to detain terrorists. We are declassifying more information and embracing more oversight of our actions, and we're narrowing our use of the state secrets privilege. These are dramatic changes that will put our approach to national security on a surer, safer, and more sustainable footing. Their implementation will take time, but they will get done.

"There's a core principle that we will apply to all of our actions. Even as we clean up the mess at Guantanamo, we will constantly reevaluate our approach, subject our decisions to review from other branches of government, as well as the public. We seek the strongest and most sustainable legal framework for addressing these issues in the long term -- not to serve immediate politics, but to do what's right over the long term. By doing that we can leave behind a legacy that outlasts my administration, my presidency, that endures for the next President and the President after that -- a legacy that protects the American people and enjoys a broad legitimacy at home and abroad.

Why not investigate & prosecute Bush policy makers:
"Now, this is what I mean when I say that we need to focus on the future. I recognize that many still have a strong desire to focus on the past. When it comes to actions of the last eight years, passions are high. Some Americans are angry; others want to re-fight debates that have been settled, in some cases debates that they have lost. I know that these debates lead directly, in some cases, to a call for a fuller accounting, perhaps through an independent commission.
"I've opposed the creation of such a commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws or miscarriages of justice.
"It's no secret there is a tendency in Washington to spend our time pointing fingers at one another. And it's no secret that our media culture feeds the impulse that lead to a good fight and good copy. But nothing will contribute more than that than a extended relitigation of the last eight years. Already, we've seen how that kind of effort only leads those in Washington to different sides to laying blame. It can distract us from focusing our time, our efforts, and our politics on the challenges of the future.

The Principled Centrist:
"We see that, above all, in the recent debate -- how the recent debate has obscured the truth and sends people into opposite and absolutist ends. On the one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and would almost never put national security over transparency. And on the other end of the spectrum, there are those who embrace a view that can be summarized in two words: "Anything goes." Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants -- provided it is a President with whom they agree.
"Both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don't elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty and care and a dose of common sense. That, after all, is the unique genius of America. That's the challenge laid down by our Constitution. That has been the source of our strength through the ages. That's what makes the United States of America different as a nation.
"I can stand here today, as President of the United States, and say without exception or equivocation that we do not torture, and that we will vigorously protect our people while forging a strong and durable framework that allows us to fight terrorism while abiding by the rule of law. Make no mistake: If we fail to turn the page on the approach that was taken over the past several years, then I will not be able to say that as President. And if we cannot stand for our core values, then we are not keeping faith with the documents that are enshrined in this hall.

"The Framers who drafted the Constitution could not have foreseen the challenges that have unfolded over the last 222 years. But our Constitution has endured through secession and civil rights, through World War and Cold War, because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way. It hasn't always been easy. We are an imperfect people. Every now and then, there are those who think that America's safety and success requires us to walk away from the sacred principles enshrined in this building. And we hear such voices today. But over the long haul the American people have resisted that temptation. And though we've made our share of mistakes, required some course corrections, ultimately we have held fast to the principles that have been the source of our strength and a beacon to the world.
"Now this generation faces a great test in the specter of terrorism. And unlike the Civil War or World War II, we can't count on a surrender ceremony to bring this journey to an end. Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and -- in all probability -- 10 years from now. Neither I nor anyone can stand here today and say that there will not be another terrorist attack that takes American lives. But I can say with certainty that my administration -- along with our extraordinary troops and the patriotic men and women who defend our national security -- will do everything in our power to keep the American people safe. And I do know with certainty that we can defeat al Qaeda. Because the terrorists can only succeed if they swell their ranks and alienate America from our allies, and they will never be able to do that if we stay true to who we are, if we forge tough and durable approaches to fighting terrorism that are anchored in our timeless ideals. "This must be our common purpose.
"I ran for President because I believe that we cannot solve the challenges of our time unless we solve them together. We will not be safe if we see national security as a wedge that divides America -- it can and must be a cause that unites us as one people and as one nation. We've done so before in times that were more perilous than ours. We will do so once again."

Tuesday, May 19, 2009


I began my most recent trial on May 6. Testimony began 3 days later and today the trial came to a sudden screeching halt ... in a mistrial.

The lawyer for the co-defendant didn’t show up this morning. Yesterday, as he was cross-examining the DA’s investigating officer, he had an "episode" and brought the trial down around him.

His problems became apparent long before this trial began. He had been retained by his client’s family to represent him in this attempted murder case and had agreed to represent him in another, less serious case as well. Several months ago, he had completed that jury trial against the same DA and judge. His client had been convicted and he complained to me that the judge and DA had conspired against him, preventing him from presenting his defense and arguing the evidence.

I found his explanation unconvincing. In fact, as I probed him for details, it became apparent to me that he had failed to lay the foundations needed to challenge the evidence he complained of. Like many lawyers I’ve run across over the years who haven’t learned their craft in one of the government agencies, he lacked the discipline to anticipate objections and prepare his case in compliance with formalities that the law demands.

His performance during our trial reinforced my first impression. Time after time, he hit the stone wall of sustained objections to his poorly framed questions to witnesses. Each time, he attributed the opposition to bias against him personally and became more and more morose, sarcastic, pained.

Earlier, he had sought to delay the trial start, first trying to challenge the judge for "cause", then claiming a variety of vague health problems. Because of his vagueness and previous attempt to escape this judge, his credibility was challenged by the judge, who asked him to bring a doctor’s letter to explain his issues. He never did so, and when she offered to relieve him and appoint a substitute counsel, he refused, insisting that he was now able to go forward.

It was apparent to me as the trial went on that his health, which he told me were related to chronic heart problems which he controlled with nitro patches, was affecting his performance. There were times when he was detached, unfocused, misstated the names of witnesses, testimony that had been given earlier in the day. His concentration was shaky.

Yesterday, as he was again battered by the D.A.’s persistent objections to his questions, he stared vacantly, then mumbled "No further questions" and sat down.

The jurors, who had often smiled in embarrassment for his obvious ineptitude, now stared at him in shock. He was ashen, sweating, tears in his eyes. I whispered across the table to him.

"I’m confused," he said.

I brought it to the judge’s attention. She immediately called a recess. The bailiff called paramedics, who arrived, examined him, and wheeled him to the hospital.

The D.A., in her usual display of sensitivity, opined that he was "faking", a part of his clever plan to force a mistrial, a defense lawyer’s dirty trick.

This morning, the court was informed that he had been scheduled for an angiogram. The D.A. called the hospital herself to confirm the facts.

Last night, anticipating the problem, I researched the case law. What happens when a lawyer becomes incapacitated during a jury trial? The Constitution says that once a jury trial begins, jeopardy attaches. If a mistrial occurs without good cause, the defendant can’t be re-tried for the same crime. What is "good cause"? And what happens to the trial of the other defendant, i.e., my client?

I found a case that I remembered. In the early 1970's Charley Manson and his girls, Patricia Krenwinkel and Leslie Van Houten, were tried for the Tate-LaBianca murders, another "Crime Of The Century".

One of the lawyers was Ron Hughes. Ron had been a clerk with the Public Defender when I was there. When he passed the bar, the office refused to hire him, citing his obesity. He then lost a huge amount of weight and re-applied. They still refused.

Eventually, he turned up as attorney for one of the girls. Ron had met the girls when he clerked in Juvenile and had befriended them.

Manson had brought him in as his lawyer, and later as counsel for Van Houten. After six months of trial, Hughes suddenly vanished on the eve of closing arguments.

To his credit, Ron had tried to separate his client from Manson, although all the girls were anxious to sacrifice themselves to save Charley. With no notice, he didn’t show up for court one day, and eventually was replaced by the appointment of Maxwell Keith, who tried to prepare by reading transcripts.

The appellate court reversed Van Houten’s conviction, and summarized the alternatives available to a judge when faced with this kind of emergency.

Ron Hughes’ body was found in a creek bed some time after the trial concluded. Other Manson followers were suspected but no charges were ever filed.

So today, a mistrial was declared and my case will have to be re-tried to a different jury.

Thursday, May 14, 2009

Another Death Row Inmate Proved Innocent

Is the appointment of a Supreme Court Justice important?
Have innocent people been executed?
Is speedy justice in death penalty cases desireable?

L.A. Times of May 13, 2009 cites another in a long line of convictions which have been proved to be wrong by D.N.A. evidence which showed the condemned prisoner to have been innocent.

This one was from Tennessee. The inmate, Paul House, had been convicted of rape murder in 1985. He was a paroled rapist, who had been walking on a road near where the body was found. He "had no good" alibi - in other words couldn't prove his innocence.

Now, Peter Neufeld of the Innocence Project obtained tests of hairs, semen and material from under the victim's fingernails. The semen proved to be her husband's, and DNA of someone other than House was found in the other material.

Nonetheless, the Tennessee appeals courts and Federal appeals courts all denied a new trial, finding that the new evidence still didn't conclusively prove House's innocence, which is the standard a habeas corpus claim must satisfy to overturn a conviction.

The U.S. Supreme Court, in a 5-3 vote authored by J. Kennedy ordered the reversal. Chief Justice Roberts dissented. The Times article notes that a 4-4 vote would have resulted in House's execution.

The local prosecutor has now declined to retry House, saying "the new evidence 'raises doubts about his culpability...'" He noted that DNA science was not available 24 years ago when House was convicted. However, he still believes "House knew something about the slaying, even if he was not the killer."

The Federal Public Defender commented: "He is conclusively innocent... If the state ... had its way in this case, he would have been dead 10 years ago."

Tuesday, May 12, 2009

The mad hatter as counsel for the accused

It takes a certain amount of mental illness to be a criminal defense lawyer. The old public defender’s office was a bag of mixed nuts from the top down. Paranoia was practically a job requirement.

The system and everyone in it was against you. You walked into a courtroom and were met with the cold blast of hostile frost just because you were there to shake things up. If you could handle that, day after day, year after year, you could survive; if it gave you a rush, you could be a star.

You had to be able to stand losing most of your cases, even the rare ones where your client actually might be innocent. You have to be able to restrain your natural aggressiveness and competitive juices because effective defending is often a matter of conceding the high ground to the righteous prosecutors.

Most of the lawyers I have known in this business are severe eccentrics, minority thinkers who, to paraphrase RFK, don’t look at things and ask why, but rather "why the fuck not".

The guy representing my client’s co-defendant in this current trial seems to be close to the edge. He’s got the wild bug eyed look of the heroically messed up paranoid.

When he fails to make a point with a witness due to his inability to overcome the D.A.’s aggressive and persistent petty objections to his poorly drafted questions, he becomes petulant, accusing the judge of bias against him personally, and begins to sulk. Since most of his meanderings and pouts come near the end of a long day in trial, I suspect that his problem is medical.

Early in the day, he is merely scatterbrained and borderline incompetent. But as the clock nears 4 p.m. each day, his affect becomes stranger, his concentration even less focused and his questions less coherent. "Which direction was the car going which was going toward Van Nuys Boulevard?" he asks for the third time. "Objection: asked and answered, vague," the DA shouts. "Sustained," says the exasperated judge. Some jurors giggle.

The lawyer looks confused, as if shocked by the injustice. He asks the same question with the same result. He tries to bring out an inconsistent statement made by the witness at the preliminary hearing, but fumbles it so badly that the D.A.’s objections are sustained. When the D.A. is able to refer to the same prior testimony on another point with the proper foundation, he complains again of bias. When, after the jurors are excused, the judge warns him about his behavior, he stalks out of the courtroom.

The D.A. in her own paranoic way, thinks he is acting this way in a clever ploy to gain a reversal after he is committed to an asylum when the case is over. I feel sorry for the guy, although his bumbling may do some harm to my own case.

Of course, there is a chance that his client may be acquitted and mine convicted, despite or because of the lawyer’s pathetic performance. In the insane world of our legal system, skills and results are often inversely proportional.

Friday, May 08, 2009

Avoiding jury service: a How-To Manual

For the last three days I have been deep in the woods of a fictitious place on the far side of the looking glass. We’ll call this place Sin Flernarndoo.

That’s where the courthouse is situated. It is also where most of the accused people, their families, witnesses and victims - er, alleged victims - live or used to live before they were shot or in the case of the witnesses moved to undisclosed locations. It is also where there is much graffiti art decorating walls in the neighborhood - as well as in most of the cells in the courthouse and the necks, chests, arms, backs, and some of the faces - yes, faces, cheeks, foreheads, necks, eyebrows - of some of the accused persons and their girlfriends and associates who frequently have been summoned for business there.

The citizens fortunate enough to be called for duty to form a jury of "peers" in order to satisfy the whim of the 6th Amendment of an ancient Constitution are strangers to the city of Sin Flernarndoo and to its denizens.

In the present case, 65 such people sauntered into the courtroom, thinking they were to serve their one day of jury service.

A few years ago, the state legislature sought to rectify the age old problem of obtaining willing volunteers for this civic duty. The joke used to be that a juror was defined as someone too stupid to avoid jury duty. Ignoring the request was without penalty, hardship claims were readily accepted. Juries on the more serious and lengthy cases - the kind I mostly do - consisted mostly of government employees and those of other businesses large enough to pay jurors for an "unlimited" time, retired people and – in summer – the occasional teacher or student.

That law was changed. The basis for hardship was narrowed and the pool broadened to include the "middle class". In return, jurors are promised "one day or one trial" per year.

So, if not chosen for a jury on their first day, they are done. But if chosen, they are stuck for the duration of the trial, no matter how long. This results in depressed moans when the judge informs our panel that our trial is estimated to last 2-3 weeks.

The depression deepens when the judge refuses to excuse any of the following: single mothers with small children and no day care; people who work for commission, even those who claim that their house will go into foreclosure if they can’t work.

To be chosen, jurors must of course pass muster as "fair and impartial" in the jaded eyes of District Attorney, Defense Attorneys (there are two in our case, one for each defendant), and the judge. This produces the claim of attitudes, opinions and experiences designed to so outrage decent, competent lawyers and judges that we will throw them bodily from the courthouse and back into their lives where they can tell their friends how they snookered the system.

Some examples which worked in our case, forcing the judge to excuse them for "cause": a young man wearing a deadhead tee shirt and piercings is in a rock band. "I’m the only white guy in a Mexican band," he nervously reveals. "I’m scared of retaliation by gangs. And I use a lot of drugs, too." "So do I," another young man says, leaning forward. "I been a set painter on movies for 15 years and I sniffed so many chemicals my brain is fried. I can’t make any decisions." "That’s not so bad," a third young man says. "I am homeless, on worker’s comp for an accident and I’m on pain meds."

In some instances, the jurors ask to disclose personal experiences in private. We go to the "side bar", in this case a tedious trek to a hallway behind a closed door - lawyers, judge, court reporter and her machine. I lean against the wall as one woman cries. "I’m in a psychiatrist’s care, on medication, have panic attacks, my chest is heaving." A man tearfully relates a series of tragedies: friends or relatives killed by gangsters in New Jersey. A woman’s first husband was acquitted of attempted murder and her daughter was molested by him.

Then there are the certifiable wackos. One woman lists her occupation as "psychic reader". She thinks she may have trouble believing witnesses if she senses their auras are lying. Another claims he doesn’t believe anyone should be punished for any crime because society is to blame. A woman claims to fear that the defendants may look at her and she would be afraid to vote for guilt.

Then there have been the opposite kind. They deny any bias, contrary to all logic. One man tells us that his friend’s son was murdered by gang members and police caught no one yet. So he and many retired police officer friends have done their own investigating to solve the crime. Would this make him unable to fairly judge a case in which the 2 defendants are accuse of a gang drive by attempted murder in which their bullets entered a building and narrowly missed killing a child? "No," he says with eyes wide. "I can be fair." Because he says so, the judge will not dismiss him for cause. The defense will have to ‘strike’ him, using one of the 30 challenges each side has.

Most of the rest of our panel fits the following profile: they live in Santa Clarita, an area in the north Sin Flernarndoo Valley known as the bedroom of law enforcement personnel where housing values depend on White Flight and safety from urban – i.e. Sin Flernarndoo Hispanic gang crime. They are married to, or dating, or related to, or neighbors with, or in church with, or bowl with an average of 3 police officers each. Several recognize names from a list of 20 or so LAPD officers expected to testify for the prosecution. One such witness for the DA is married to the juror’s sister. All say they would not be biased by these associations, would have no qualms about acquitting, and would judge a cop’s testimony by the same standard as anyone else.

I want to ask them: "Will you pay my malpractice insurance if I leave you on the jury?" I don’t.