We thought this was a joke. It isn't. On Friday, the Bush brothers, Jeb and GW, along with Attorney General John Ashcroft, announced plans for the first faith-based prison. It will be at Lawtey Correctional Institution in rural Northern Florida and all inmates will be required to participate in the faith-based programs.

Update: Link fixed.

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We've been gone a day and a half and over 400 comments have been posted on TalkLeft. It will take us hours to read them all, and we won't get to most of them while we're still in Key West. So this is just a thanks to those of you who take the time to post your thoughts.

Again, we're on light posting duty until Monday....between the dialup connection and wanting to experience and enjoy Key West, we're going to take a break.

The Fulton County Daily Report has named Stephen Bright as 2003 Newsmaker of the Year. Stephen heads up the Southern Center for Human Rights and is a legend among capital defenders. This is a well-deserved honor. From the article (subscription only):

Stephen B. Bright - Angry Man of Indigent Defense
By Trisha Renaud

While powerful State Bar leaders and politicians worked the Capitol this spring to help pass a historic indigent defense bill, activist Stephen B. Bright worked the courthouses. As committees debated the details of a bill that would establish a statewide public defender system, Bright filed another suit-the sixth in which he and other prominent defense attorneys have demanded sweeping
changes in how counties provide legal representation for the poor.

This latest litigation targeted the four-county Cordele Judicial Circuit. The message was hard for legislators to ignore. Bright had spelled it out for them time and again: If the system doesn't change, he warned, he would keep filing such suits around the state. Or, as he said about indigent defense litigation at a symposium in 2002, "Coming to a courthouse near you."

....For his unrelenting efforts over the years to expose Georgia's shortfalls in indigent defense, Bright is the Daily Report's 2003Newsmaker of the Year.... At first, Bright may seem an odd choice for our Newsmaker of the Year. Others played equal, if not more prominent, roles in passing the legislation this year. ....But Bright's prodding over the years-some would say unrelenting agitation -was critical in bringing the issue to the fore. Sometimes with lectures, other times with pleas, threats or impassioned speeches, Bright was the most implacable and visible crusader for better legal defense for the poor. He brought a sense of urgency to the fight for reform, railing in speeches, letters and reports against inaction. To Bright, it was a battle to fulfill a promise made 40 years ago by the U.S. Supreme Court in Gideon v. Wainright, 372 U.S. 335 (1963), that the right to counsel is fundamental to a just system. And he has fought to ensure that right over the years, with little tolerance for compromise. As he put it in a recent interview, "So many people talk about the minimum. Shoot for the stars, not the floor."

A new poll shows support for the death penalty in America is at it's lowest since 1978.

According to the latest Gallup Poll in October 2003, support for the death penalty has dropped to 64%, its lowest level since 1978. The 32% of Americans opposed to the death penalty represented the most opposition since 1972. (2003 poll: CNN.com, November 25, 2003; Fox News, November 26, 2003) This finding is particularly noteworthy given the extensive media coverage leading to the trials of John Muhammad and Lee Boyd Malvo in Virginia. Two other polls this year also recorded a drop in death penalty support to 64%: ABC News poll and Pew Research Center Poll.

According to Magnus Ranstorp, head of St. Andrews University's Center for the Study of Terrorism and Political Violence, America's death penalty is hindering the war on terror. From America's Eager Executioners:

Europe has been described as the jumping-off place for Islamic terrorists bent on infiltrating and harming the United States. European cities are ringed by Muslim slums where clerics preach violence to the impressionable. Many of the 9/11 bombers spent time in Europe before they entered the United States. Americans badly need Europe's full cooperation in helping to foil terrorists and bring them to justice. But the death penalty stands in the way.

I asked Magnus Ranstorp, head of St. Andrews University's Center for the Study of Terrorism and Political Violence, if he thought capital punishment was hurting America's war on terror. "Without question," he said. The argument that the death penalty deters crime doesn't apply to terrorists who seek death. "As a matter of fact, it does the opposite," he said. "It creates martyrs."

"You have to measure justice with effectiveness," he continued, "and justice is served by life in prison without parole."

If capital punishment is actually hurting the United States in the war on terror, it ought to be abandoned for no other reason than enlightened self-interest. But try telling that to John Ashcroft.

Gone fishin'...
We're out of here until Sunday.... Key West beckons...we're speaking at the 20th annual NORML continuing legal education seminar. We'll have our computer and will update as time permits once we get there late tonight, --till then, here's an open thread--please be nice.

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Amnesty International has released a new report titled The Pain Merchants:

The administration of U.S. President George W. Bush is violating the spirit of its own export policy by approving the sale of tools to countries known to use them to torture detainees, according to new report released here Tuesday by Amnesty International.

In 2002, U.S. exports of electro-shock weapons and restraints that can be used for torture amounted to some US$14.7 dollars and $4.4 million, respectively, according to the report....

Along with the sales of such equipment, Washington is also reported to have handed over suspects in the ''war on terror'' to the same countries, the 85-page report said.

From the National Coalition to Abolish the Death Penalty:

Eight executions are scheduled to take place in the next 16 days, including the executions of at least three people with severe mental illness and three people whose lawyers performed abysmally at trial. Five are scheduled during a nine-day period in Texas, and two are set for Dec. 10, International Human Rights Day.

"The scheduled executions in Texas, Georgia, North Carolina and Virginia follow a disturbing but familiar pattern," said Brian Roberts, executive director of the National Coalition to Abolish the Death Penalty. "At a time when Americans are beginning to take a hard look at who is sentenced to death, these states are failing to meet even the lowest constitutional bar in carrying out executions.

Simply put, people with severe mental illness or ineffective lawyers should not be eligible for execution in any humane and civilized society."

Attorney General John Ashcroft may be crowing about the sentencing of the Buffalo Six (Lackawanna) defendants this week, but perhaps not for long. The 9th Circuit Court of Appeals today dealt a serious blow to the darling of the Justice Department's terrorism nursery--the law prohibiting providing material support to a terrorist organization. It's an issue we think is likely to reach the Supreme Court.

In an opinion written by Judge Harry Pregerson, the 9th Circuit ruled unconstitutional a portion of the "providing material support to terrorist organization" provision of the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”). The law was enacted under Clinton following the 1995 Oklahoma City Bombing.

Under the Act, [8 U.S.C. § 1189 and 18 U.S.C. § 2339B], the Secretary of State may designate an organization as a “foreign terrorist organization.” One who provides material support or services to such an organization commits a crime that is punishable by up to life in prison.

The issue in the case:

...whether a criminal prosecution under 18 U.S.C. § 2339B requires the government to prove as an element of the offense that the defendant knew the organization had been designated by the Secretary as a foreign terrorist organization, or at least knew of the organization’s unlawful activities leading to its designation.

The ruling:

...we construe 18 U.S.C. § 2339B to require proof that a person charged with violating the statute had knowledge of the organization’s designation or knowledge of the unlawful activities that caused it to be so designated. In addition, we reaffirm our decision in Humanitarian Law Project II that the prohibition on providing “training” and “personnel” in § 2339B is impermissibly
overbroad, and thus void for vagueness under the First and Fifth Amendments.

...The language of 18 U.S.C. § 2339B does not in any way suggest that Congress intended to impose strict liability on individuals who donate “material support” to designated organizations.

....we believe that when Congress included the term “knowingly” in §2339B, it meant that proof that a defendant knew of the organization’s designation as a terrorist organization or proof that a defendant knew of the unlawful activities that caused it to be so designated was required to convict a defendant under the statute.

Talk about prejudicial 404(b) evidence coming in at trial--this has to be very damaging to Bill Janklow in his manslaughter trial:

Eight months before Rep. William J. Janklow (R-S.D.) allegedly sped through a stop sign at a rural crossing and killed a passing motorcyclist, Janklow's white Cadillac evidently ran the stop sign at the same intersection at more than 70 mph and came within "a few feet" of hitting another driver, the jury in his felony manslaughter trial was told Wednesday.

We're surprised the Judge let it in. We think the prejudice outweighs the probative value by a mile. Great grounds for appeal.

The New York Times picks up on the arguments we and other defense lawyers have been making the past two weeks about the Michael Jackson case, even suggesting the case may be too weak to support a filing.

Some hard news: The police spokesman says despite the prosecutor's call for additional victims to come forward, "no one has come forward to tell of separate acts of molesting by Mr. Jackson."

So maybe the defense has been right all along:

Mr. Jackson's defenders and relatives contend that the case is groundless, the confluence of a frustrated prosecutor and a greedy mother exploiting her son's onetime friendship with a rich entertainer.

What brings it home for us is that the mother sought out the services of Larry Feldman, the lawyer who represented and obtained a multi-million dollar settlement for the 1993 accuser, before her son changed his story from "Michael is great" to "Michael took advantage of me." The change in the story occurred after the kid met with a therapist per Feldman's recommendation.

McMartin pre-school, anyone? How about the 1692 Salem Witchcraft Trials?

In both sets of trials, people urged others to "believe the children." In practice, that generally meant, "believe the children when they are making remotely plausible accusations, but ignore the inconsistencies in their stories."

Ten years. That's tbe sentence imposed on the first of the "Buffalo Six" defendants today. For what?

Mukhtar al-Bakri went to Afganistan and attended a training camp. He heard Osama bin Laden speak there. Then he got married. The day after his wedding, while in Bahrain, he got arrested. Then charged with providing material support to a terrorist organization.

The Government acknowledged it had no evidence that al-Bakri or his confederates planned a terrorist act. What it had was a theory dependent upon guilt by association and perceived thought.

"It's the first time in American history where people are going to prison for going to a training camp," said David D. Cole, a Georgetown University law professor ..... "It's wrong. . . . It's unconstitutional." Cole said he believes that the section of law used to convict the six men is unconstitutional and will be struck down by the U.S. Supreme Court within the next couple of years.

Elaine Cassel, a Virginia lawyer and civil rights advocate, calls the Lackawanna case "one of the worst examples of the vengeful Bush and Ashcroft battle against terrorism." "It's like the movie "Minority Report,' " Cassel said. "The idea is, "Let's go out and arrest people before they actually commit a crime, or even think of a crime.' "

A hollow and ominous victory for Ashcroft.

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A Colorado judge has struck down the state's school voucher law. Denver District Court Judge Joseph Meyer said the idea behind the law was "laudable" but it violated the Colorado Constitution because it "run[s] afoul fo the principle of local control."

Colorado's law was the first enacted in the country following the Supreme Court's ruling approving vouchers last year.

Opponents object to giving state support to religious schools and contend the plan will undermine public education by siphoning off students and the tax dollars they bring.

That's our position.