"The Supreme Court sided Tuesday with a black Texas death row inmate who claimed prosecutors stacked the jury with whites and said he was not allowed to present evidence of the alleged bias."

"The high court ruled 8-1 that Thomas Miller-El should have been given an opportunity to present his evidence during his federal appeals. The court's action does not mean Miller-El will ultimately win his case. The justices sent the case back to a lower court, where Miller-El could get a new hearing on his claims that prosecutors used their power to challenge specific jurors as a way to eliminate 10 out of 11 potential black jurors before Miller-El's trial...."

The Court sharply criticized the Texas trial judge and the 5th U.S. Circuit Court of Appeals for dismissing Miller-El's claims without affording him a full hearing.

Roman Polanski's film, The Pianist, is up for several Academy Awards. Polanski has been in France the past 25 years due to an outstanding sexual assault case against him dating back to 1977. He and the prosecution had agreed to time served. He pleaded guilty, but before sentencing, the Judge informed the parties that he was unlikely to accept the agreement and might give Polanski 50 years. Polanski fled to Europe. The victim of the assault was 13 at the time.

She is now 38 and living in Hawaii with her husband and children. And she wants the Academy to disregard Polanski's past actions in deciding who gets the Oscar.

She also wants Polanski to be able to return to the U.S. for the ceremony. The LA District Attorney says no way. Polanski says he won't come back.

Samantha Geimer, now 38 and living in Hawaii with her husband and three sons, made her plea in an article in the Los Angeles Times in which she urged academy voters to choose Polanski and his film, The Pianist, as Oscar winners despite his crimes. She said that what the Polish director did to her 25 years ago should not affect their judgment.

Geimer was 13 when Polanski, then 44, told her mother he wanted to take pictures of her for a French magazine at a photo session in Los Angeles. He gave her champagne and a drug that causes drowsiness, then had sex with her at a house on Mulholland Drive in Los Angeles.....

"I believe that Mr Polanski and his film should be honoured according to the quality of the work," wrote Geimer. "What he does for a living and how good he is at it have nothing to do with me or what he did to me. I think academy members should vote for the movies they feel deserve it. Not the people they feel are popular."

She added: "I don't have any hard feelings toward him, or any sympathy either. He is a stranger to me."

Geimer also said Polanksi should be allowed to return to the US because the longer he remained a fugitive, the longer she had to deal with the issue.

"Dozens of men over the years have alleged that Chicago cops used torture to elicit confessions. The word "torture" still hangs over the police department -- and, if a coalition of defense lawyers has its way, over the Chicago judiciary as well. The coalition is asking that all Cook County judges be disqualified from hearing the cases that include torture allegations. A court is expected to rule on the motions on Thursday."

"The defenders argue that many criminal court judges are ex-prosecutors themselves or are colleagues of former prosecutors. Specifically, the coalition is focusing on the cases of 12 people who are currently in court appealing their criminal convictions. "

Prosecutors oppose the motion.

If you can get a paper copy of Tuesday's Washington Post or New York Times, you will see full page ads by the ACLU targeting Attorney General John Ashcroft's insatiable demand for increased surveillance and intelligence gathering powers.

"This new advertisement highlights the serious concerns shared by an unlikely alliance that includes groups and individuals as ideologically disparate as the ACLU and well-known conservative Bob Barr." The ad describes examples of the slew of new intelligence gathering and law enforcement powers either asserted unilaterally by the Administration or granted to the President by Congress since September 11, 2001. It also warns against the proposed Domestic Security Enhancement Act of 2003, the Department of Justice's follow-up wish list of expanded powers not granted in the original USA PATRIOT Act.

If you don't have access to the paper, you can view the ad here.

Here is a the ACLU's section-by-section analysis of the proposed Patriot Act II--officially known as the Justice Department's draft of the “Domestic Security Enhancement Act of 2003.”

Among the objectionable provisions:

For example, Ashcroft's proposals include broader wiretapping authority; reprise the Operation TIPS program by granting broader immunity to private businesses that phone in fake terrorist tips and allow the President the sole power to strip Americans' citizenship if they are found to have supported organizations deemed "terrorist" by the Administration, even if they know nothing about alleged links to terrorism.

Sorry, but we think random stops and searches of vehicles en route to the airport is overkill, and we have substantial doubts about its efficacy, fairness and constitutionality. Today, it's Atlanta and Denver announcing the institution of the stops:

"Starting Monday, police will randomly pull over cars heading to the Denver International Airport terminal for inspection. Sally Convington says the inspections, asked for by the Transportation Security Administration, shouldn't cause any unusual delays for most travelers. Anyone going to levels four, five, or six will be subject to the random inspections. Since the nation moved to Orange alert status, any car parked in the parking garage or lot is subject to a search by authorities."

The policy is the result of an Order issued by the Transportation Security Administration, the federal agency in charge of airport safety. It has instructed local police to begin looking through cars and trucks approaching airport terminals for weapons or explosives.

We think they are going too far. The reference to Denver's "levels four, five or six" are to the passenger pickup, passenger drop off (ticketing) and baggage claim levels. So if we go to drop someone off, they now can pull us over and search our car, without an individualized reasonable suspicion of wrongdoing. We don't think so.

Roadblocks are legal ways state and federal law enforcement protect U.S. borders and assure highway safety. But they are only allowed under the law for specific reasons, such as to search for illegal aliens and to check for sobriety - not to ferret out crime.

Officials are being close-mouthed about details of the policy, which has understandably drawn the ire of civil libertarians.

''They said to give us any details at all, even the broadest parameters of this program, would jeopardize security,'' said Barry Steinhardt, director of the American Civil Liberty Union's Technology and Liberty Program, ''as if Osama bin Laden was sitting in a cave somewhere in Pakistan worrying about whether or not (U.S. officials) are advising the airport authorities to adhere to the constitution.''

The policy is already in effect in San Antonio, Philadelphia, San Jose, Oakland, San Francisco and elsewhere. Not in Seattle though--authorities there have refused to go along with the privacy invading plan:

In Washington, Seattle-Tacoma International Airport officials have rejected the inspections, saying the state constitution prohibits police searches that aren't based on suspicious behavior. ''On a public roadway in the state of Washington, a police officer needs something 'articulably suspicious' to search a car,'' said Sea-Tac spokesman Bob Parker. ''We're trying to find a way to all get to the same place, which is as safe an airport as we can make it. If (federal officials) mandate this and show us a way that it's legal under our state constitution, then we're good to go.''

At least one law professor thinks the program will pass court muster:

Constitutional scholars agree that high courts have historically granted law enforcement officials the authority to take action to protect public safety in populated settings like an airport terminal. ''I'm confident that the courts will say the necessity of avoiding bombs detonating at airports would justify this kind of search,'' said Santa Clara University law professor Gerald Uelmen. ''In this era of concern for terrorism, I'm confident the courts would strike the balance in permitting these kinds of intrusions based on public safety and necessity.''

Where is the showing that public safety requires this action--or that it will make us any safer? What are the statistics on people dropping explosives off at the airport? We haven't read of many--if any. This is definitely pushing the envelope, and we have strong doubts the policy will be executed in a truly non-discriminatory manner.

So what should you do if you see flashing lights behind you en route to the airport? Well, we don't give legal advice here, but we'll tell you what we intend to do if they pull us over. We will stop as we approach the roadblock, or pull over if reqested. We will comply with a demand to show our driver's license or proof of citizenship. We will not answer questions about where we are traveling or why we are going to the airport. We will refuse to consent to a search of our car. If they still want to search it, it will be without our approval. We think the police do not have the right to search our car unless, while we are stopped, unless specific facts develop that lead them to believe criminal activity is afoot. If we feel our right to privacy was violated, we will write a letter to the head of the local police department outlining the name of the officer, his badge number and our belief that he requested or performed an illegal search.

To avoid making a bad situation worse, we will make our refusal to waive our rights or consent to a search very clear. Then we will be cooperative and not stand in their way, even if we think they are violating the law or our rights. If we get charged with a crime based upon what they find in our car, our lawyer will challenge their actions in court.

At 2:00 PM today, Attorney General Ashcroft announced a new and major effort to crack down on online drug paraphernalia sales, along with major criminal indictments. Ashcroft criticized former Attorney General Janet Reno for not enforcing the laws with the same zeal that he possesses.

Can he be serious? We are on the precipe of war. The American public is constantly reminded we are under high to very high terror alerts, and Ashcroft and Bush want to go after bong sellers?

From the Department of Justice Press Release:

FOR IMMEDIATE RELEASE MONDAY, FEBRUARY 24, 2003 WWW.USDOJ.GOV CRM
(202) 514-2008
TDD (202) 514-1888
OPERATION PIPE DREAMS PUTS 55 ILLEGAL DRUG PARAPHERNALIA SELLERS OUT OF BUSINESS - National Sweep Shuts Down Retailers, Distributors And Internet Sites

WASHINGTON, D.C.-- Attorney General John Ashcroft and U.S. Attorney Mary Beth Buchanan of the Western District of Pennsylvania today announced the indictment of 27 individuals on charges of trafficking in illegal drug paraphernalia. The charges, contained in 17 separate indictments, are the culmination of a nationwide investigation code-named "Operation Pipe Dreams," and include 10 indictments against national distributors of drug paraphernalia and seven indictments involving businesses located in Western Pennsylvania.

"With the advent of the Internet, the illegal drug paraphernalia industry has exploded," Ashcroft said. "The drug paraphernalia business is now accessible in anyone's home with a computer and Internet access. And in homes across America we know that children and young adults are the fastest growing Internet users. Quite simply, the illegal drug paraphernalia industry has invaded the homes of families across the country without their knowledge. This illegal billion-dollar industry will no longer be ignored by law enforcement. Today, the Organized Crime Drug Enforcement Task Force, under the leadership of Deputy Attorney General Larry Thompson and Associate Deputy Attorney General Karen Tandy has taken decisive steps to dismantle the illegal drug paraphernalia industry by attacking their physical, financial and Internet infrastructures."

The Drug Enforcement Administration led the investigation and was assisted by OCDETF members from the U.S. Marshals Service, U.S. Secret Service, U.S. Postal Inspection Service, and the U.S. Customs Service.

The defendants have been charged with conspiracy to sell and offering to sell various types of drug paraphernalia, in violation of 21 U.S.C. Sections 846, 853 and 863. Federal law defines drug paraphernalia as those products that are primarily intended or designed to be used in ingesting, inhaling or otherwise using controlled substances, and include user-friendly and dealer-friendly devices. Items such as miniature scales, substances for "cutting" or diluting raw narcotics, bongs, marijuana pipes, roach clips, miniature spoons and cocaine freebase kits, among other things, are all considered drug paraphernalia.

All the defendants are alleged to have knowingly, intentionally and unlawfully sold the items for use with illegal narcotics. Many of the items were disguised as common objects such as highlighter markers and lipsticks to elude detection as drug paraphernalia and were marketed using code names and symbols.

"Those who sell drug paraphernalia are not only violating federal law, they are supporting a culture of illegal drug use. Drug users, in turn, by creating demand for heroin, cocaine and marijuana, and other illicit substances, are responsible for the violence and huge profits which accompany drug dealing in our cities and communities," said U.S. Attorney Buchanan.

After this comes a lot of back-patting of law enforcement and prosecutors we don't see the reason to re-publish here. Oliver Willis also has some thoughts on this--and pictures of bongs.

We just saw our last perfect beachside sunset for a while, and are on our way out for a last Mexican feast--we have to say, Cancun has been great, perfect weather, incredibly coral blue waters, a hotel out of a story book, and lots of comraderie among the criminal defense folks who traveled down. Yes it was a long way, the timing could have been better (it felt a little weird going off to an idyllic setting while as a nation we sit poised to go to war at any moment), but four days of sand, sunsets guacamole and friends were a great tension reliever.

Many think the criminal defense bar are all of one view. As to crime, we are. But not as to war. Several of the staunchest defenders in the country think we ought to take out Hussein as soon as possible--a greater number are hesitant, but inclined one way or the other. At the other extreme, are the pacifists, and they are not all holdovers of the 60's.

One item of interest was the pharmacies. Non-psychotropic drugs that are prescription in the US are over- the- counter here, and according to the pharmacies, legal to take back to the U.S. It was suggested to us that we buy cipro and amoxicillian while we were here. We asked why we would do that, couldn't we just call our doctor when we got home if we needed it? The answer was, "What if your Doctor's dead?" A pretty extreme but sobering thought. We wrestled with that for a few hours, and a group of us went over to the pharmacy to check it out. So, better to be "Chicken Little" and be "safe than sorry?" Or to say, forget it, if it happens it happens, you can't guard against all the possibilities. Some of the group bought the pills, some didn't. We didn't. But we definitely had a moment's pause there.

We'll be back posting at our regular pace Monday night.

Daily Kos reports that John McCain will run for a 4th term from Arizona. Disappointing, Kos says, because the seat might have gone to a Democrat otherwise.

Peter Rothberg over at Salon reports on a spate of new anti-war songs.

We'll be interested to learn how many of tonight's Grammy winners refer to the war.

Louis Fisher, author of "American Constitutional Law" (5th edition, 2003), writes in an op-ed in today's Los Angeles Times, Who's Minding the Courts on Rights?

Times of war and emergency jeopardize civil liberties. Ironically, it is precisely at such moments, when we most need independent judges to check executive abuse, that judicial safeguards are weakest. Protections must therefore come from outside the courts. That has been the pattern in the past, and it appears, thus far, to be the record after the Sept. 11 terror attacks on New York and the Pentagon. Whatever moxie exists in the courts is likely to come from district judges or circuit courts, which are then typically reversed on appeal.

Fisher reviews the cases of Hamdi, Padilla, John Walker Lindh and others, and reminds us, protecting our civil rights ultimately is the responsibility of the citizenry...and the press.

Writing for the New York University Law Review in 1962, Earl Warren, then-chief justice of the United States, warned that courts are unreliable in time of war or emergency, and that "other agencies of government must bear the primary responsibility for determining whether specific actions they are taking are consonant with our Constitution." In a democracy, "it is still the Legislature and the elected executive who have the primary responsibility for fashioning and executing policy consistent with the Constitution." Moreover, "the day-to-day job of upholding the Constitution really lies elsewhere. It rests, realistically, on the shoulders of every citizen," Warren said.

Or in the words of Sixth Circuit Judge Damon Keith in the case holding deportation proceedings must be open to the public,

"In our democracy, based on checks and balances, neither the Bill of Rights nor the judiciary can second-guess government's choices. The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardian of their liberty."

Judge Damon's warning in that case, you may recall, was "Democracies die behind closed doors." Fisher has a new book out this spring, "Nazi Saboteurs on Trial: A Military Tribunal and American Law". We hope he puts to rest the Government's contention that In Re Quirin serves as precedent for the current round of detentions without counsel and access to the courts.

What is it with Texas? While the rest of the country is rethinking the death penalty and Illinois has emptied Death Row, Texas is proceeding at a record pace.

Eight of the nation's first 10 executions in 2003--including six in January--were carried out in the Huntsville prison unit commonly called The Walls. Nearly half of the next two dozen scheduled executions also will be in Texas. By the end of March, Texas should record its 300th execution--more than one-third of all those in the country since the mid-1970s, when the death penalty was reinstated in the United States after a brief Supreme Court-imposed hiatus.

Aside from the excessive number of executions in Texas, the state's death penalty system is rife with other miscarriages of justice. Here's a few:

A Tribune investigation of the death penalty in Texas in June 2000 found that the system repeatedly was compromised by the use of unreliable evidence, incompetent defense attorneys and an appeals system that often fails to remedy injustices.

This year--as Texas moves toward possibly breaking its record of 40 executions in a year, set in 2000--the cases involving those put to death by the state have raised troubling issues.

One man's state appeal was presided over by a judge who had been a prosecutor and done research for prosecutors at the man's original trial, according to defense attorneys.

Another prisoner had no federal review of his case because his lawyer filed his appeal five days after a key deadline. Consequently, the prisoner forfeited that critical stage of review, although the mistake was his attorney's, not his.

Another inmate was executed even though the jurors who convicted him later signed a statement in which they requested that he be allowed DNA testing before his execution.

Other inmates claimed that their attorneys were incompetent or inexperienced or that the inmates suffered from brain damage--issues that might have been grounds for relief from an appeals court.

Among those calling for a moratorium on the Texas death penalty this week was the League of Women Voters of Texas.

The pressure will mount in Texas, the same way it did in Illinois. We need a nationwide moratorium now. This will be an issue in the 2004 elections, we promise.