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Sunday, November 28, 2010

Two For The Road ... Sunday

Two apparently unrelated news stories about the death penalty should raise new doubts about its viability. But probably won’t.

The LA Times reminded us that one of the reasons for the lengthy delays between trial and execution is the lack of available and competent appellate lawyers willing to commit to pressure packed habeas corpus representation.

Paranoid prosecutors whine about a conspiracy of defense lawyers who raise multiple issues merely to cause delays. Noting that other states don’t seem to have problems finding defense lawyers, outgoing California Supreme Court Chief Justice Ronald George explains that California’s standards of legal ethics and competence are just a bit higher than those of Texas, Florida and the several other states that rush to executions.

The fact that DNA as well as otter revelations (such as the defects in arson expertise) have proven (yes proven beyond any doubt) that many (not some, many) innocent people have been executed because of the insistence on speedy results rather than correct justice.

The New York Times previews a coming article in the New York Review of Books written by retired US Supreme Court justice John Paul Stevens, who expresses his regret about his votes to uphold the death penalty and his revised opinion that the punishment is unconstitutional. He had voted to uphold it because he thought procedures could be devised which would insure its fair application. He no longer believes that. He cites later opinions by the shifting majorities on The Court that undermined he faith in the law’s ability to devise fair procedures.

From the prosecutoria decision to seek death to jury selection to victim impact testimony to sentencing and appellate review, he concludes that the entire system of capital justice to be fatally flawed. 

Justice Stevens was interviewed for CBS's "60 Minutes" to be aired tonight (Sunday, November 28, 2010).

If there is to be an educated and informed electorate to decide things like capital punishment, these are the facts that need to be exposed.

Wednesday, November 24, 2010

Free Speech And The Internet

The joke goes: one of the cool things about Alzheimer's is that you learn something new every day. The same is true of old people and technology. My friend has recently become alarmed about a new - to him - phenomenon: the internet. Now retired from a life competing in the bloody killing fields of high school football, Valley golf courses and various courthouses, he had discovered surfing of the browsing sort.

Inevitably, he came upon a website which disseminated Tea Party treats with arsenic centers. Reviving his vigor for combat, he used his legal skills to argue against their vitriol, lacing his inconvenient but legally correct factual revelations with his own brand of counter vitriol. He posted scathing comments responding to know-nothing blog posts and other comments without mercy to the feeble-minded.

As a result, he found that eventually, his comments were deleted. He complained to me about this and I tried to explain the concept of "moderating" comments. "Where's the First Amendment?" my friend cried.  "This internet thing is outrageous. This isn't free speech."  To no avail, I tried some logic of my own with a legalistic Socratic analogy: "Don't newspapers censor letters to the editor that criticize their articles?" He was having none of it. "This is different. The internet is full of lies and no one can challenge them."

He decided to do more legal research. Having learned the magic word: "Google", he now spent his life in research. So he sent me proof. An article in "The Atlantic" online edition by Garrett Epps, a legal journalist and law prof at the University of Baltimore.

Epps reported on the Supreme Court oral argument in the so-called funeral-picketing case, in which a church picketed and on their website ridiculed the funeral of an American soldier, in protest over some perceived lack of religious education his parents had provided, involving gays in the military or some stupid notion. The parents were offended by the action and sued the church members for "intentional infliction of emotional distress." One problem for the plaintiffs was an element of such torts: that the "victim" has to be confronted by the action. Does posting on the internet meet this test. The statute and older case law never anticipated this issue - is the internet different from Hyde Park corner, or radio? If so, is the difference legally significant.  And, hey, what about the First Amendment? The traditional refuge of scoundrels like Neo-Nazis, Daniel Ellsburg, and others. 

So, here's what I wrote back to my friend.

Thanks for forwarding Garrett Epps’ opinion piece in The Atlantic. It is an interesting if superficial analysis of some of the issues presented to the law by internet speech. Although he makes a few cogent general points, I disagree with his tone, which is a bit hysterical and with his conclusions, which are speculative and argumentative with insufficient factual support.

The author’s citation of the Prop 8 case is inapposite. There, the court censored broadcast of the gay marriage trial proceedings on Utube. But that was well within precedent. The rationale was to prevent intimidation of potential witnesses. This is traditional balancing: fair trial vs. free press.

The reference to Breyer’s concerns about the potential need for new rules in the funeral picketing case is weak support for the case for “radical change” (i.e., reduction) of First Amendment protections. Breyer himself recognized that televising was not significantly distinguishable (in this context) from the internet publication in this context:

“So now we have two questions. One is, under what circumstances can a group of people broadcast on television something about a private individual that's very obnoxious? . . . And the second is, to what extent can they put that on the Internet, where the victim is likely to see it? Either on television or by looking it up on the Internet. Now, those are the two questions that I'm very bothered about. I don't know what the rules ought to be there.”

Breyer’s voiced worry about the Koran burning video disseminated to the world on the internet is also an issue that can be treated within the traditional context of First Amendment analysis. Breyer himself acknowledges this with his reference to Holmes’ fire in the theatre example, which has been a hypothetical bright line in the law for more than 100 years.

That doesn’t mean the internet doesn’t pose new and difficult issues for consideration by the law. It certainly does. As a source of unauthorized, unedited and unverified information, it is a dangerous weapon in the hands of advocates of any persuasion, left, right, lunatic.

But civilization has faced similar challenges many times. With the invention of the printing press the law had to alter its notions about slander, recognizing the greater danger of the written word, upping the penalties for libel. When technology permitted cheap publication, allowing access by all classes to “The Press”, its power was seen as frightening, even potentially disastrous by the elite educated leaders who previously held a monopoly on ideas and arguments. Eventually, the process became so cheap that anyone with a mimeograph machine in the basement could foment revolution, on paper at least.

Concerned “journalists” decry the lack of editorial control over content of blogs and other sites. This is true. It is also, as the author writes, “instantaneous,” “ubiquitous,” and “persistent.”

These issues create problems, but are they unique in the history of the law? Do they require reduction of our First Amendment protections? I am still a “free market” conservative when it comes to the “marketplace of ideas.”

I believe the time has long since past when people assumed that whatever was printed must be true. Of course there are some who will, either out of ignorance, or wishful thinking. The internet has not (yet) altered human nature. Humans often choose to believe and to act — based on faith rather than reasoning. Hatred or fear of Obama leads to “birthers” and this rumor is of the kind that would have thrived at any time in our history.

For example, Lincoln was widely reported to be and believed by huge portions of the public, north and south, to be part “Negro” - there was no Gallup poll back then but penny newspapers gleefully spread the rumors.

Frets about the accuracy of information on the internet seem to me to be not any different than what appeared in biased American newspapers for 200 years and more. Pro Hamilton / Federalist publications printed rumors about Jefferson’s love life. Jefferson even financed print reports about Hamilton’s scandals. The lies published about Lincoln keep historians employed. Fox News need not be on the internet to carry enormous influence in its biased reporting.

I am dubious about the ability of the nine members of the Supreme Court, especially those currently sitting, to define universal rules for internet censorship that would be effective and unharmful. Their “conservatism” may lead them to favor the “individual” over the “police power” of the state, whereas the “liberals” as exemplified by Breyer, are even more dangerous to individual liberties because they tend to look to government for rational regulation of behavior. But I don’t trust either side to be intellectually honest or intelligent in deciding such issues.

Having studied the history of the 4th Amendment, you know as well as I that it is always in times of crises and in extreme cases that our panic results in diminishing our rights. Once forfeited, these rights are difficult to regain. 

[NOTE: My friend was able to gain a measure of revenge against the nutso webbies. One blogger or commenter suggested to his readers that our president was a usurper who deserved the fate or all such usurpers.  My friend called the Secret Service, asking whether athreat against the life of the president was something they might be interested in knowing about. He received a cordial response and felt that he had succeeded in striking a blow against the blowhards in the war in cyberspace.]

Who says all wars are fought by the young.  

Sunday, November 14, 2010

The Shame and The Horror

The shame of the Holocaust and its consequences continue to reverberate, more than a half century later. The L.A. Times reports that the French state railroad company, SNCF, which wants to bid on a high speed rail contract in Florida, has finally conceded its complicity in the transportation and “deportation” of more than 70,000 French Jews to their doom.

Collaboration has always been a sore subject with the French people who have a hard time swallowing the truth of their behavior during the Nazi occupation after June, 1940.

But you don’t need to visit Paris to find shameful actions and inactions regarding Nazis. The New York Times exposes a US Justice Department report of American use of Nazi scientists after the war.

Fifty years after the events, the government continues to conceal embarrassing details about this episode. In response to the Cold War, some Nazis were given safe haven here, used by U.S. intelligence agencies including the C.I.A., to follow East German Nazis who were aiding the Soviets. One was Otto Von Bolschwing, an assistant to Adolf Eichman. He died peacefully in the U.S. in 1981 before the O.S.I. could deport him.

Another Nazi that the U.S. government valued was Arthur Rudolph, whose story has been well documented and dramatized in other sources. The scientist was credited by NASA and the military with work on the Saturn 5 rocket. He had a leading role during the war in managing the slave labor used to build and maintain the German V1 and V2 rocket program. More slave laborers, mostly Jews, died in the launching of the rockets than were killed in England by the explosions caused by the rockets.

"Operation Paperclip", the program to bring these scientists, including the famous Werner Von Braun, to the U.S. is well known. The recently disclosed documents show details of how the C.I.A. conducted the cover-up to conceal the extent of their complicity in war crimes.

Tuesday, November 02, 2010

Baseball As Metaphor Department

San Francisco over Texas equals a minor victory in what is likely to be a day of bloodbath for blue state vs red state symbolism.

Whatever, the win by the Giants is also payback for the Dodgers and their miserable fans this year and for the past 56 years.

As one of the few people still alive who actually remembers watching the 1954 World Series, the last time any Giants team won, it was gratifying to see this series - which, judging by the miniscule television ratings, I am also one of the few who watched.