by TChris

A federal perjury charge must be supported by the testimony of two witnesses, or of one witness whose story is supported by an independent document. But what does "independent" mean?

Richard M. Strassberg, the lawyer for Martha Stewart's stockbroker and co-defendant, Peter E. Bacanovic, argued in response to a question from the jury that an "independent" document must be a document created by someone other than the testifying witness. That would seem a sensible interpretation. If the function of a second witness is to provide independent corroboration of the testimony of the first witness, it would stand to reason that a document which substitutes for the second witness should come from a second, "independent" source.

Unfortunately for Bacanovic, that isn't the way Judge Miriam Goldman Cedarbaum reads the law.

Judge Cedarbaum's ruling said effectively that the requirement was fulfilled by the testimony of an employee of Ms. Stewart's, Ann E. Armstrong, and phone logs kept by Ms. Armstrong.

The judge said that there were two reasons why the two pieces of evidence in question were independent and legitimate: Ms. Armstrong did not rely on the phone log for her testimony, and the phone logs were legitimate documents because they had been kept "in the normal course of business."

The judge gave that answer to the jury this morning. The jury continues its deliberations today on the charges against Baconovic and Stewart.

by TChris

Solicitor General Ted Olson, speaking for the Bush administration, has filed a brief with the Supreme Court asking the Court to uphold the administration's right to detain indefinitely any foreigner that it captures and holds on foreign soil. Granting those individuals access to our courts, Olson says, "not only would be very damaging to the military's ability to win the war, but [would] no doubt be highly comforting to the enemies of the United States."

Showing the "enemies" of the United States that the United States treats every person fairly (even those the administration regards as "enemy captives") might promote respect for our government, but it is difficult to understand how that "comforts" terrorists or interferes with the military's ability to wage war. While Olson argues that giving detainees access to courts "almost certainly would lead to the filing of scores if not hundreds of follow-up actions by the relatives of other aliens held at Guantanamo," that is true only because the United States has chosen to detain hundreds of individuals at Guantanamo and other overseas military bases. Is it the administration's goal to detain even more people to further an argument that granting them access to the courts would be unduly burdensome?

The notion that the executive branch of government is entitled to detain someone forever, with no judicial review to determine whether the detention is supported by reasoning or evidence, is repugnant to the values that define our nation.

The Court will hear argument in the case next month.

by TChris

Our one and only Attorney General, John Ashcroft, was admitted to intensive care last night for a severe case of gallstone pancreatitis. The condition is extremely painful, but probably not life threatening.

Let's hope the man doesn't become addicted to pain medication as a result of this unfortunate event.

For those who choose to comment, please don't go over the top.

by TChris

Happy Anniversary, California. It's been ten years since you enacted one of the nation's toughest "three strikes" laws. Are you comforted to know that your state is so much safer now than it was ten years ago?

With 57 percent of the third strikes being nonviolent offenses, typically drug violations or burglary, the law largely hasn't necessarily targeted the most dangerous criminals. Third strikes are 10 times more likely to be for a drug offense than for second-degree murder. In fact, third-strikers sent to prison on a drug offense outnumber the combined total whose offense was assault, rape and second-degree murder, according to the Justice Policy Institute, a research and public policy group that has been critical of the law.

The institute's 10-year analysis of the law also found African Americans and Latinos were far more likely to be imprisoned than white offenders for the same third-strike crimes.

One quarter of California prisoners are serving life terms under the three-strikes law, at a cost so far of about $8.1 billion. More than half that amount was spent to warehouse offenders whose third strike was not a violent crime.

So the law is expensive, it wastes prison resources on people who don't deserve life sentences, and it seems to be implemented in a racially discriminatory manner. California, is that what you intended?

"We're filling our prisons with people who don't belong there,'' said Assemblywoman Jackie Goldberg, D-Los Angeles, whose reform attempts have been routinely rebuffed. "You can get less time for second-degree murder than for stealing a six-pack of beer. It's not what the public had in mind.''

by TChris

A report released yesterday sheds additional light on the theft by Republican staff members of documents prepared for the use of Democratic Senators.

The two former Republican aides were identified as Manuel Miranda, who already had been named as a central figure in the investigation, and Jason Lundell, whose name had not been known previously. Investigators said an inexperienced computer coordinator did not make files adequately inaccessible, and that Lundell observed the coordinator opening files with a few key strokes and then copied what he had done. For the next 18 months, the report said, Lundell supplied documents to Miranda after getting access to the files of staff aides for Democratic Sens. Joseph Biden of Delaware, Russell Feingold of Wisconsin, Richard Durbin of Illinois, Sen. Patrick Leahy of Vermont, Feinstein and Kennedy. The largest share was from Durbin's office.

Reporters were told that names would be redacted from the report, but the copies distributed yesterday mistakenly included the names.

Miranda denies that the reports were confidential "because they were easily accessed." Sorta like arguing that it isn't wrong to steal pencils from the blind because it's so easy to do.

by TChris

George W. Bush fans, especially those lacking a sense of humor, may not want to click the accompanying link. For the rest of you, this is hilarious.

by TChris

Now that Republican Senator Ben Nighthorse Campbell has created the opportunity for a competitive race in Colorado by deciding not to run for reelection, Roger Ailes (no, not that one) has conceived a brilliant plan: Draft Jeralyn Merritt.

For those who have never clicked About TalkLeft in the upper right corner of this site, Jeralyn is the voice of TalkLeft. She is also a respected, creative and committed criminal defense lawyer, a frequent lecturer at legal education seminars, and a legal analyst who guests on a variety of national news broadcasts, always doing her best to keep the government honest. Colorado would be fortunate to have her in the Senate.

by TChris

Don't fret about military tribunals for foreigners accused of aiding and abetting terrorism. Sure, there's no appeal from a tribunal's verdict, and the government gets to listen in when the suspects are eventually given access to lawyers, but not to worry. Foreigners facing the death penalty don't need a full panoply of rights (or any at all, really) because the USA is always fair.

Right. Why should we believe this? Because Donald Rumsfeld says so.

Defense Secretary Donald Rumsfeld on Thursday dismissed criticism of Pentagon's rules for planned trials of foreign terrorism suspects before U.S. military tribunals and said the proceedings will not be "a kangaroo court."

On the other hand, Rumsfeld thinks that it is "appropriate for the United States to hold foreign terrorism suspects at Guantanamo without charges or legal represenation." That sentiment tells us something about the Defense Secretary's understanding of due process.

Detainees from Yemen and Sudan, charged with conspiracy to commit war crimes, will be the first Guantanamo prisoners to be tried before a military tribunal. It isn't clear when the last of the 640 prisoners will be tried, but Rumsfeld acknowledged that some may remain locked up for years.

While Rumsfeld considers it "irresponsible" to suggest that military tribunals are "kangaroo courts," critics say "the rules are rigged to produce convictions, compel guilty pleas, and make it as easy as possible to win the death penalty."

Critics say hearsay evidence and coerced confessions could be admissible under the rules. Even the military lawyers assigned by the Pentagon to represent Guantanamo prisoners during the trials have called the rules fundamentally unfair and hopelessly antiquated, ignoring decades of legal advances since World War II.

by TChris

Jurors pondering the charges against Martha Stewart's co-defendant, Peter Bacanovic, sent an interesting question to the judge. They're wondering what it takes to prove perjury.

U.S. District Judge Miriam Goldman Cedarbaum told jurors before deliberations that perjury requires special rules: Jurors must rely on testimony from two witnesses, or one witness whose testimony is supported by a document.

In a note Thursday, the jurors asked whether it was enough to have the testimony of one witness plus a document created by the same witness.

"I think the short answer is yes,'' Cedarbaum said.

On its face, the answer may be bad for Bacanovic. Still, all the jurors would have to agree that the witness and the supporting document are so believable as to exclude reasonable doubt before finding Bacanovic guilty.

The question suggests that the jurors are focusing on Bacanovic. Now in their second day of deliberations, they may have already decided Martha Stewart's fate.

by TChris

As politically popular as it has been for legislators to "get tough on crime" by increasing maximum sentences, imposing mandatory minimums, creating "three strikes" laws, and generally encouraging incarceration as the first and best solution to crime, there are consequences to soaring prison populations. Some of the consequences are financial, as states with faltering economies try to pay for new prison beds. But when states ignore the financial problems and simply jam more inmates into existing spaces, crisis is inevitable.

That is the lesson learned in Arizona, where a panel studying a standoff with prisoners criticized the "chronic underfunding," inadequate training, and staff shortages at state prisons.

Many of the problems that contributed to a 15-day prison hostage situation resulted from "years worth of bad decisions by the Department of Corrections at all levels," investigators said in a draft review obtained Thursday by The Associated Press.

While the panel made several recommendations, many of which require increased funding, it would be wise to consider whether the prison environment could be improved by releasing to community supervision those inmates who don't need to be in prison. Many inmates who serve time for drug or other nonviolent offenses are consuming scarce correctional resources that would be better devoted to those who, for society's protection, actually need to be behind bars.

by TChris

The first stage of Scott Peterson's murder trial -- jury selection -- began today as prospective jurors filled out lengthy questionairres. The precise content of the questionairres has not been disclosed, but the one-hundred-plus questions apparently include "whether they read Field and Stream magazine, what stickers grace their car bumpers and whether they've ever lost a child."

Potential jurors in Peterson's case will eventually be questioned individually by prosecutors and defense lawyers, outside the presence of other potential jurors. Jury selection is expected to take four to six weeks.

by TChris

Defense attorneys contend that the FBI used an informant to record communications with his lawyer, Scott Leemon. At the time, Leemon was representing Joseph Massino, who is accused of being a "boss" in a criminal organization. Massino's current counsel, David Breitbart, argues that Brooklyn federal prosecutors used the informant to learn the strategy that lawyers representing various members of the organization intended to use at an upcoming trial.

Prosecutors deny the allegation, saying that the FBI was merely looking for evidence of a crime when its informant recorded the conversations with Leemon. Breitbart says the tapes reveal no evidence of criminal activity, but they do show that the informant "pumped Leemon for defense strategy and learned that the defense would not try to dispute government evidence about the structure of the organized crime family."

As a result, the defense attorneys said they are asking that the lead prosecutor, Assistant U.S. Attorney Greg Andres, be removed from the case or barred from using evidence gathered by the informant in the upcoming racketeering trial of reputed Bonanno boss Joseph Massino and two other men.

Judge Nicholas Garaufis instructed prosecutors to produce FBI documents and other reports that show how the informant was handled by investigators. Leemon may also be asked to testify.