Category Archives: psa

Things that are also good at stopping crime/terrorism

Stopping crime and/or terrorism is a noble, if unattainable goal. So it is with that in mind that the governments of various countries (most pertinently to this snarky post, the U.S. and now the U.K.) employ tactics such as the round-the-clock-surveillance of its citizens or collection of “metada” in bulk.

But these are only half-hearted measures. There are many, greater measures that would be infinitely more effective in stopping/preventing dastardly and nefarious acts.

First, though, let us set the ground rules for who is or is not a terrorist:

As gleaned by that, in light of yesterday’s revelations about Glenn Greenwald’s partner, it’s pretty clear that a terrorist or criminal is someone who is defined as such by the Government. When they make it a crime to be you, you will be a criminal, even if you were the same person as the day before the change in status.

So, dear criminal, let us count the ways the government is not extracting information from you, you evil scumbag who is here to hurt my precious children!

1. Detaining your loved ones and interrogating them for 9 hours under an “Anti-Terrorism” law. [Scott has more on this.]

2. Preventive detention: where we hold you in custody before you’ve committed a crime, because we want to prevent that crime, because you might be a criminal1.

3. General warrants [PDF]: This one, for you history buffs, dates from the time of Colonial America. Such an ancient ritual surely can’t be wrong! Broadly, the authority to search anything belonging to anyone they suspected of being, you know, someone they didn’t like.

4. Warrants with no standards: Here’s a clever way: require a warrant, but set the standard for getting that warrant so vague and nebulous that no one will ever know what doesn’t satisfy that standard, ergo the warrant is but a rubber stamp. Everyone start queing for the Government’s office to turn in your criminal papers.

5. No warrants: The above, but with less work. See also: NSA.

6. Waterboarding/torture/rack and pinion/Room 101: Because nothing prevents terrorism and crime than beating the shit out of someone to get them to confess to something they didn’t do.

7. Racial Profiling: Wouldn’t it be great if we could just tell who was a terrorist/criminal simply by looking at them? I like this one the best. Start with this and apply a healthy dose of the above and viola! No crime.

Why waste your time defending “secret FISA courts” and “Hey-that-guy’s-name-is-Miranda-is-he-a-journalist?” There’s plenty more out there to stand up for! The rights of your Government to eviscerate every modicum of freedom and privacy have not been adequately defended yet. They’re doing so much more.

If you don’t, that makes you a terrorist, right?

 

Freed and fired: how one woman put justice over her job

Albeit a few weeks old, this story out of Jackson County is a truly bizarre tale of modern day American Justice and the confluence of a strong desire to adhere to rigid bureaucratic rules and the grander notions of Doing The Right Thing and Justice1.

A Kansas City2 man, Robert Nelson, was convicted in 1984 for a rape and sentenced to 50 years consecutive to sentences he was already serving. Those sentences ended in 2006, meaning that’s when he started serving the 50 year sentence for rape3.

Thing is, Nelson claimed from the beginning that he wasn’t the guy. He was innocent and should be let out of jail. So:

In August 2009, Nelson filed a motion seeking DNA testing that had not been available at his trial 25 years earlier, but Jackson County Circuit Judge David Byrn denied the request. Two years later Nelson asked the judge to reconsider, but again Byrn rejected the motion because it fell short of what was required under the statute Nelson had cited.

You know how this goes. Eventually, Nelson gets a third motion granted, the DNA is tested and lo-and-behold, he’s fucking innocent.

So what was different this time? Someone gave him a template to use that had been successful in another case. That someone was Sharon Snyder, a 70-year old court clerk of 34 years. She simply took a public document from another case, redacted identifying information and gave it to Nelson’s sister, saying “here, file it in this format”4.

So:

Nelson used that motion – a public document Dunnell [the sister] could have gotten if she had known its significance and where to find it – as a guide for a motion he filed Feb. 22, 2012, again seeking DNA testing. That August, Byrn sustained the motion, found Nelson to be indigent and appointed Laura O’Sullivan, legal director of the Midwest Innocence Project, to represent him.

And then Byrn finds out that it was Snyder who provided a copy of a public document. This obviously could not stand, so 90 days before she was set to retire, Snyder was fired. For. Umm. Hang on a second. Let me find a good phrase. Bureaucratic disobedience?

Five days after Nelson was released, Court Administrator Jeffrey Eisenbeis took Snyder into Byrn’s office near closing time and told her the prosecutor and defense attorney “had a problem” with her involvement in the case.

What defense attorney? You mean the one who was appointed after his motion for DNA testing was granted? I doubt it. And what problem? Making them look bad?

Keep in mind that nothing in the article or in the facts that can be gleaned or inferred from the reporting indicate that Nelson’s first two motions were denied because of their merits. They weren’t rejected because he didn’t make a sufficient factual claim that he should get DNA testing. It appears as though they were rejected for bureaucratic, ‘not-filed-in-triplicate-signed-by-your-deceased-great-grandmother’ reasons. They were rejected because the format of the motions didn’t comply with the statute.

So who is Nelson to turn to? An incarcerated inmate who took two cracks at filing a pro-se motion just to get an attorney appointed to get DNA testing performed to prove that he wasn’t guilty of the crime he was convicted of. No one. The point was that he was on his own or out of luck. That’s what the system does to pro-se litigants.

There is such a stubborn desire across the nation to protect convictions at all costs. There’s also a very strong sense of territorialism in county and district courts in some parts of the country where some judges rule like petty kings. Anyone who may dare to cross their path shall be smited, ridiculed and fired.

Prosecutors, judges and legislatures are so invested in this idea of “finality” and are so afraid of finding out that they’ve convicted an innocent person that rules across the country have cropped up erecting the most intricate and elaborate obstacles to post-conviction review of convictions. The Great Writ, once a pillar of the vindication of justice, a shining beacon and last resort of the illegally detained, has been eviscerated to the point that it’s unrecognizable. Post-conviction DNA statutes are absurd in their requirements and innocence has been held to mean not only your innocence but proof beyond a reasonable doubt of the guilt of another identifiable person. A technicality, I’ve said recently, isn’t what you think it is. A technicality is more often the tool of the state to protect its interest in the finality of convictions it obtains, the validity and legality of those convictions be damned.

Here, Nelson was, indeed, innocent, about to serve 50+ years for a crime he didn’t commit. And if Snyder hadn’t given him the magic form to fill to get Byrn’s attention, he’d be stuck in jail for the next 50 years, banging his head against a wall, wondering just why he couldn’t get anyone to listen to him.

“The document you chose was, in effect, your recommendation for a Motion for DNA testing that would likely be successful in this Division,” Byrn wrote. “But it was clearly improper and a violation of Canon Seven … which warns against the risk of offering an opinion or suggested course of action.”

What is Canon Seven? Can someone find out?

I think, in the end, whether she was “rightly” or “wrongfully” 5 fired is but a sideshow. Snyder is happy with her pension and the knowledge that she was able to help an innocent man get out of jail, bureaucratic nonsense notwithstanding.

The real tragedy here is that our system of justice is so adamant to put form over substance that an innocent man being denied a chance to prove his freedom is an acceptable consequence of failing to color inside the lines.

There are rules – don’t kill/harm/rape and don’t let innocent men go to prison – and then there are rules – submit on yellow typepaper, scrawled with the ossified tooth of a wildebeast’s carcass found in the northwest region of the Massai forest. There should be no confusion as to which rules are to be followed and which are not to be strictly so.

When we start sacrificing the former for the latter, we know the system has gone mad6.

 

 

Billy Slagle and the tragedy of death

Billy Slagle, when all is said and done, will cut the most tragic figure. His story is ripe for a Shakespearean tragedy 1 or at the very least a documentary with a most somber soundtrack. Consider the evidence:

1. He was sentenced to death for a crime he committed at 18, when there was no option for LWPOR 2

2. The chief prosecutor for Ohio, Ted McGinty, recommended to the parole board that he shouldn’t be executed, which is pretty extraordinary.

3. In yet another surprising twist, given that parole boards and Governors usually do whatever prosecutors tell them to, both the board and the Governor’s office rejected his plea for clemency and continued on with the death sentence.

4. Three days before his scheduled execution, early Sunday morning, Slagle said “enough” and hung himself. 44 years old, having spent the last 26 years in jail, he took his own way out.

5. And then this. This that will just break your heart. This, this missive of reprieve that arrives too late or never arrives. This message of hope that, but for a series of harmless and innocuous actions would’ve gotten there in time, but didn’t.

Parallel Construction: the government lies

[Update: Oh, look. There's more. "NSA handing over non-terror intelligence.]

Reuters reports this morning that a government agency is using secret tactics to arrest Americans and then fabricating just how they got about doing so. Called SOD, short for “sod-off, you nosey bugger” 1, this DEA program basically uses all sorts of secret NSA type wiretaps, foreign intelligence surveillance, informants and phone records to stop global terrorism, catch murderers, solve global warming, I dunno, do something with drugs? Arrest those that import them or something I guess? Whatever.

And as is required for governmental agencies in this post-Communist era, everything it does is secret. Oh, and it lies.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

Go on…

In war, everyone loses something

[P]recisely at the point when you begin to develop a conscience, you must find yourself at war with your society.

James Baldwin, “A Talk to Teachers“, 1963. War is many things, none of them good. This job, this fight, this battle to protect and preserve and to traige, is war 1.

Sure, nobody dies 2, but there is much loss and there is much lost. The hallmarks are there: the thousand yard-stare; the separation from reality; the perverse sense of humor; the paranoia; the anger, so much the anger.

War has casualties. Ask my friend and fellow public defender and blogger Daniel Partain, who loves to quote Hawkeye from M*A*S*H. After 13 years, he’s walking away from the calling for good 3. Daniel’s journey to this point reads like a script for a movie about the struggles of an indigent defender:

Just like the ocean slowly ebbs away the coastline, so did being a public defender to my well-being. I made poor decisions regarding my health, both physical and mental, and I suffered for it. However, a day came where I realized that I needed to take better care of myself, and I started to alter some of my lifestyle choices. While my physical health improved, the diminution of the joy that I had in being a public defender continued to fade away from me. Without warning or great fanfare, one day I woke up, and I started viewing being a public defender as a job, and not as a calling. My viewpoint about being a public defender had become like one of Hawkeye’s rants from MASH about the disdain for being in the Korean War. However, I am my father’s son; I am my mother’s son; I refused to quit. I told myself that I was letting the stress get the better of me, and that I can persevere. For a while, it worked. I was able to carry on, and be the dutiful advocate for my clients. Yet, I knew that I needed a change.

Daniel’s story isn’t unique. Every public defender office and system throughout the country has tales to tell of similar people. Those that “lost it”, or “had a nervous breakdown” and couldn’t handle the work anymore. Those who had to be shifted around into less stressful positions because the job got hold of them and gave them the beating of their life.

Sometimes I wonder, here on this blog and out loud in real life, why we do this. The pay isn’t spectacular – even 30 year veterans who are supervisors make less than first year associates fresh out of law school do at big firms; the day to day drudgery of the work is overwhelming; the rewards are fleeting and far between; the accolades non-existent. Some get shot at, some stabbed, some stalked, some threatened and spat upon – literally and figuratively- and mocked and ridiculed and not always by our clients.

To do this job right is to do this job all the time. There is always something to be done. But you can’t do it 24/7. And that brings guilt. Because every minute I’m at home watching True Blood is a minute less spent on a client sitting in jail. But you can’t do it all the time. So you do it most of the time. It’s in your head. It percolates. You become anesthetized. The three bullet wounds to the head aren’t a tragedy, they’re a fact. The little boy who claims to have been anally raped isn’t a horror, it’s a problem 4.

You take a part of your brain, add a part of your soul and mix in a healthy heaping of emotions and you lock them away. The alternative is to render yourself unable to function.

It’s a war alright. A war against a system that’s eating itself without realizing. A war against a society that is full of so much hate that it is blind to the devastation it is causing to itself. A war against those that purport to exercise their better judgment for me. A war against a machinery that sees people as cattle, to be branded with the mark and shepherded into dark corners, ignored and forgotten.

It is a war that cannot be won.

And for what? Is it worth it? Are the six months I shaved off the offer because I worked till 7:30pm or because I spotted a legal argument worth any of that? Maybe yes. Because it’s 6 months less that someone needs to spend in those hell-holes we call “correctional facilities”.

Or is it the principle of the thing? Is it the ideal. The ‘one for all, all for one’. “My rights are your rights.”

And if it is the principle that drives you, then be prepared for the anger. Because there are no principles that the establishment won’t run over, leaving us on the sidelines, helpless.

Trial courts and prosecutors are in the conviction business. Appellate courts are in the affirmation business. We are in the triage business. You don’t care unless it happens to you. No one is in the rights business.

But for now, it goes on. Monday morning comes and there are people clamoring for attention. There are deals to be struck and clients to placate. There are lunches to miss and jails to visit and a mountain of stress waiting to strap itself back onto your back. It is both a job and a calling. For Daniel, it stopped being the latter. He walked away. Others may not have that courage. As for me, it sates for now, but how long is now?

Footnotes:

In these times

It is good to recall, from time to time:

More than one student of society has expressed the view that not the least significant test of the quality of civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community.

One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him.

How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding the matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.

Irwin v. Dowd, Justice Frankfurter, concurring.

An acquittal unlike any other

Just when you think you’ve heard it all with regards to George Zimmerman 1, you’re accosted by this…article…claiming to have uncovered stunning jury tampering in the trial. But you already know, without even reading the article, that that’s just bullshit.

I’ll leave the debunking in depth to the Windypundit, but the gist is that the jurors in the Zimmerman trial did not, in fact, look anything like the 12 Angry Men and were permitted, for two hours on the weekends, to have contact with their families, ergo there was tampering and the verdict is illegal or something.

But hidden in that catastrophe of an “expose” is the far more curiouser point. The author seems to be adamant – in the comments – that:

actually, yes, you can declare a mistrial after the verdict in cases where jury tampering is found. Florida has multiple cases of it on record and validated all the way up to the SCOTUS.

When pressed, he asserts that:

Actually yes, it can. In cases of jury tampering, the entire verdict can be thrown out and the whole case retried, per the laws of the state of Florida.

and

I checked the books, Florida has a statute of up to three years for such a mistrial declaration.

Of course, there’s no cite to any of this, nor is there a clarification of what “verdict” entails. Here’s a hint if you can’t wait for literally the next sentence: verdict means guilty verdict, because it is a violation of the Fifth Amendment to retry someone after an acquittal.

Nathaniel Downes, meet Justice Brennan:

Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that “[a] verdict of acquittal. . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.” United States v. Ball, 163 U.S. 662, 671 (1896).

And Justice Day:

As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution.However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense. United States v. Sanges, 144 U.S. 310.

There is, of course, no provision or allowance for the declaration of a mistrial after a jury’s acquittal of a defendant because of a discovery of “juror misconduct” which is nothing more than jurors acting like human beings and talking to their families.

Except.

Except that there’s Harry Aleman 2. Harry Aleman is now serving a sentence of 100-300 years in jail, after being tried and convicted of murder in the late 1990s. Harry Aleman is the subject of a very unusual ruling. You see, in May 1977, Harry Aleman was acquitted of that same murder.

And so arises the one strange instance in the last 50 years 3 where someone was successfully re-prosecuted after a prior acquittal. But to underscore how unusual and bizarre this is, the reasoning for permitting this reprosecution was that he bribed the judge to acquit him in 1977.

Yep. Straight up bribery of Judge Frank Wilson – $7,500 worth – to acquit Aleman of the charge of murder. Eventually, someone got wind of it, started a new prosecution and Aleman argued that it was prohibited by the Double Jeopardy Clause.

In what can only be described as an outcome-oriented decision, the Seventh Circuit Court of Appeals affirmed the re-prosecution, deftly arguing that since the judge was bribed, Aleman was never “in jeopardy” of conviction and thus, the Clause didn’t apply. Get it? He wasn’t in jeopardy.

The legal conclusion urged by Aleman might not be an unreasonable application of Supreme Court precedent,[6] but the highly deferential standard of collateral review leads us to hold that the contrary interpretation —the one adopted by the Illinois courts in this case — is also not unreasonable. The Illinois courts viewed the authority cited by Aleman as begging the question; the Double Jeopardy Clause may well be absolute when it applies, see Burks, 437 U.S. at 11 n. 6, 98 S.Ct. at 2147 n. 6, but determining if it applies is the real issue in this case.

Similarly, the State argues that the protections of the Double Jeopardy Clause only extend to a defendant who was once before in jeopardy of conviction on a particular criminal charge; the State contends that, by bribing Judge Wilson, Aleman created a situation in which he was never in jeopardy at his first trial. The first trial, therefore, was a sham and the acquittal there rendered has no effect for double jeopardy purposes. Under this theory, the State was free to re-indict him because he has never been in jeopardy of conviction on the Logan murder charge.

SCOTUS held its nose while denying certiorari and the rest is history, relegated to the stacks never to be cited again. Literally. No one has cited that case for that proposition in the last 16 years 4.

That’s because, as this law review article willed into existence solely by the Aleman case argues, the downsides of carving out such an exception are tremendous 5. The purpose of the Double Jeopardy Clause is that the Government gets only one opportunity to bring its might and power to bear on the individual and if the Government is unable to use that opportunity to convince 6 or 12 people that the weight of its evidence proves guilt, then they are not deserving of a second chance.

If we are to permit States to continually re-try people until they get a favorable verdict, then defendants will forever live in fear of prosecution and the burden will be too great to bear. While the State may have (comparatively) unlimited resources, no individual would be able to match it and would necessarily eventually succumb to pressure and either admit guilt or be unable to defend himself. Who is to determine that the acquittal was obtained in an illegal way? What is the standard of proof? What is to stop vindictive prosecutors from asserting, time after time, that the acquittals were products of tampering or other illegality and thus keeping the individual forever under the unyielding microscope that is the State’s attention? Convictions would be the product of tyranny and coercion rather than an adversarial testing of the evidence.

Certainly, arguing that the principles that we hold so dear should be ignored and altered because of one unfavorable and undesirable result creates a situation that undermines those rights for all of us.