"New York City police officials on Wednesday dropped a request to submit secret evidence to a federal court in their fight to loosen federal limits on police surveillance of political organizations. Groups that support the surveillance restrictions -- which require the NYPD to have suspicion of criminal activity before monitoring political groups -- say the request to submit secret evidence was unprecedented for a local police force."

"The department had contended that the secret evidence -- testimony from David Cohen, deputy commissioner of intelligence -- would help prove that officers investigating terrorism can no longer afford to wait for signs of criminal activity before monitoring political groups."

"Franklin Siegel, a professor at City University of New York School of Law and an attorney for the plaintiffs, said the request to submit secret evidence to help decide the merits of a case was unparalleled in the context of local, rather than federal, law enforcement in the United States. "There are no state precedents," he said."

The News & Observer has produced an outstanding 4 part series, "Time of Death," about a wrongful conviction. The introduction states:

Allen Ray Jenkins was murdered in Bertie County in April 1995. Three years later, a petty drug dealer, Alan Gell, was convicted of the crime and sentenced to die. He is now on Death Row at Central Prison.

There is a problem. A wealth of evidence indicates that Gell was in jail when Jenkins was killed. Some of the evidence was suppressed by police and prosecutors. Some was simply not pursued by defense lawyers who put on a hurried and haphazard case.

Like most people on Death Row, Gell insists he is innocent. Gell, however, may well be telling the truth. This is his story.

On Monday, a Bertie County Superior Court judge threw out his conviction and ordered a new trial after finding that the state had failed to turn over evidence of his innocence to the defense.

The Des Moines Register reports that Democrat Tom Harkin is about to take a turn to the left.

"Sen. Tom Harkin of Iowa plans a series of speeches in January designed to move the Democratic Party leftward after setbacks in last month's midterm elections, and establish himself as a leading liberal voice."

"Harkin, a 1992 Democratic presidential candidate, said that he is not interested in the nomination for himself this time, but wants to urge Democrats to express real differences with congressional Republicans and the executive branch - for example, on tax cuts advocated by the president."

"With the death of Democratic Sen. Paul Wellstone of Minnesota, Harkin becomes one of the most left-leaning members of his party in the Senate. Harkin was deeply upset by Wellstone's death in an airplane crash, calling him his best friend in the Senate and breaking down at a news conference after the crash."

"While Harkin is not calling himself the new Wellstone, he's also clearly interested in pushing the party to reject any notion it must moderate to win votes."

That's been our advice too. But if Harkin isn't interested in running, who is he figuring can take the left/progressive lead for the Democrats?

(link via Political Wire and Daily Kos)

Via Eric at Altercation: "By the way, Bruce is on Conan O’Brian tonight, along with Al Gore. Let’s hope and pray that Al doesn’t sing and Bruce doesn’t mention the patients’ bill of rights.”

Searching trash put out for the garbage collector without a warrant may not violate the 4th Amendment, but an Oregon judge finds that under Oregon's stricter constitution, it's not acceptable without a warrant. A few rules apply: You have to put your trash out in your own bin, not a collective bin in which it is comingled with other people's garbage. And it can't be in a transparent bag. If in a garbage can, it should be covered to visually conceal its contents.

"A Multnomah County, Oregon judge threw out felony drug charges against Portland Officer Gina Hoesly, ruling Tuesday that police unlawfully rifled through her garbage in March. "

"Circuit Judge Jean Kerr Maurer said Hoesly did not abandon her garbage when she placed her filled 32-gallon trash can, covered with a lid, outside her home for collection. The so-called police "garbage pull," conducted without a warrant, violated her rights under Article 1, Section 9 of the Oregon Constitution, Maurer said. "

"The defendant did not abandon all of her possessory and privacy rights," Maurer said. "I am finding that the search was unlawful. I am likewise suppressing the evidence."

"Maurer stressed that her ruling was a narrow opinion based on the facts of Hoesly's case, in which her metal garbage can -- opaque, covered with a lid and contained -- was placed outside her house for collection. Her opinion, she said, does not extend to community garbage bins or disposal of trash in transparent plastic bags or open containers. "

"Maurer's ruling marks the second trial court decision in Oregon this year knocking down a warrantless police garbage pull as unconstitutional. On May 16, a Columbia County judge threw out evidence that a multi-agency narcotics team obtained from a similar garbage pull in a marijuana grow case. "

The state plans to appeal both rulings. Until then, the cops in these two jurisdictions aren't happy but they are going to abide by the new rules.

A little more about the defendant police officer:

"As Maurer announced in court that she was granting the defendant's motion, Hoesly quietly turned to her lawyer, Stephen Houze, and mouthed, "Does that mean we won?"

"Houze nodded, and a wide grin spread across Hoesly's face. Hoesly, 34, is a 12-year veteran of the Police Bureau who has been out of work since May 2000 on a disability claim. She was indicted in June on one count of first-degree possession of a controlled substance and six counts of second-degree possession of a controlled substance. "

"The garbage pull turned up "minute trace" amounts of cocaine and methamphetamine on what police call short "snort straws," methamphetamine from a plastic bag and marijuana from a pipe and jar. Police also removed a tampon from the trash, which tested negative for drug residue or semen but gave police Hoesly's DNA profile."

"Mark McDonnell, a Multnomah County senior deputy district attorney, argued that Hoesly, like the suspect named Purvis in the another case, had
"abandoned" her trash and lost her "reasonable expectation of privacy" once she placed it on the sidewalk in a public right of way."

"But Maurer identified several factors that distinguished Hoesly's case from the Purvis case, noting that the renter of the hotel room left the trash in plain sight, did not try to conceal it and left it in a location that was not his but rented temporarily. Hoesly's garbage, in contrast, was covered with a lid."

"The steps she took by purchasing a metal container with its lid fitted to its top reasonably suggests that she intended that its contents be seen only by the employees of the garbage company with whom she had contracted to collect her waste," Maurer wrote. "It is not reasonable to conclude on these facts that she abandoned all rights to the property."

Many state constitutions offer stricter privacy protection than the federal 4th Amendment counterpart. We pass the ruling along in hopes of getting more state courts to rule this way.

Democrats.Com has a Trent Lott Must Resign Petition here.

Update: Although, Daily Kos reminds us we're better off with Trent alive than dead (figuratively speaking of course). We haven't taken a position of whether Trent Lott should stay or go, we kind of feel like what's the difference if he goes, another one will just take his place, and what if it's one who hides in sheep's clothing? The voters knew who Lott was when they elected him and they elected him anyway. We think Lott should be outed and ostracized, which he has been, but we'd rather see pundits and politicians move on after that and focus on opposing the Bush Administrative proposals, like war. Like civil liberties.

Digital surveillance critic and journalist Jack King directs us to this Department of Justice Press Release outlining the "improvements" in electronic surveillance for "law enforcement" purposes contained in the Joint Intelligence Committee Inquiry Recommendations:

FOR IMMEDIATE RELEASE AG
WEDNESDAY, DECEMBER 11, 2002(202) 514-2008
WWW.USDOJ.GOVTDD (202) 514-1888

STATEMENT OF BARBARA COMSTOCK, DIRECTOR OF PUBLIC AFFAIRS, REGARDING THE JOINT INTELLIGENCE COMMITTEE INQUIRY (JICI) RECOMMENDATIONS

"The Department of Justice welcomes the recommendations of the Joint Intelligence Committee Inquiry into the events preceding September 11th and views the recommendations as an endorsement of our FBI reforms over the past 15 months since the attacks, as we transform the FBI to meet the unprecedented terrorist threat. After September 11, we redefined the primary mission of the Department and the FBI to prevent future terrorist acts on the American people and immediately began to build the new FBI to meet this extraordinary challenge.

For nearly 100 years, the FBI has earned a reputation as the world's premier law enforcement agency based primarily on its ability to collect information - whether through physical surveillance, electronic surveillance, or human source development. The FBI has a national and worldwide presence with more than 11,500 highly trained Special Agents in 56 domestic field offices and 45 foreign offices. We have built upon those decades of experience to transform the FBI into an organization capable of preventing terrorist attacks against Americans. We are constantly improving and refining our efforts.

Under the direction of Attorney General Ashcroft and FBI Director Mueller, the Department and the FBI have undergone tremendous change, both in structure and culture, as the Department dedicates itself to prevent terrorist attacks. While improvements are necessary and ongoing as we adapt to this unprecedented threat, the Department believes that the FBI is well suited to serve as the domestic intelligence and terrorism prevention agency in the United States.

To that end, the Department began this transformation immediately after the 9/11 attacks. In fact, most of the recommendations of the joint inquiry reflect initiatives that have been ongoing within the Department since the early days following 9/11. And all this has been done while simultaneously conducting the largest investigation in the history of the United States.

Recommendations of the Joint Intelligence Committee that are already underway within the Department of Justice and the FBI include:

*The reorganization of the FBI for the prevention of terrorist attacks:

*Doubled the number of intelligence analysts.

*Established the National Joint Terrorism Task Force at FBI headquarters and 56 regional JTTFs.

*Established the Foreign Terrorist Tracking Task Force, which has identified 204 known or suspected terrorists.

*Enhanced its analytical capacity through the creation of the Office of Intelligence, the component which ensures that intelligence is shared as appropriate within the FBI and the rest of the United States Government. The FBI has also significantly increased the resources allocated to analysis.

*Reduced the legal and cultural barriers between law enforcement and intelligence agencies by implementing the USA PATRIOT Act and the Attorney General's Investigative Guidelines. USA PATRIOT allowed for the sharing of information obtained under provisions of the Foreign Intelligence Surveillance Act (FISA) between law enforcement and intelligence personnel, both within the FBI and the Intelligence Community.

*The FBI's reallocation of manpower and effort to combat terrorism since 9/11 has resulted in substantially increased efforts to penetrate terrorist organizations operating in the United States through greater use of electronic surveillance, development of human sources, and the use of undercover operations. While the exact numbers are classified, we have utilized these methods with much greater frequency - and to great effect -in terrorism investigations since 9/11.

*Information sharing concerning terrorist activity with other federal, state and local agencies has been improved in a variety of ways. The Bureau's Joint Terrorism Task Forces (JTTFs) currently have 649 state and local epresentatives and 438 representatives from other federal agencies participating. The pilot project JTTF Information Sharing Initiative is an integrated database of federal, state and local law enforcement information, which will soon be expanded to select cities across the country. The FBI Intelligence Bulletin is published once a week and provided to state and local law enforcement agencies. The Office of Law Enforcement Coordination was created as a new Division within the FBI to
enhance the coordination and communication between the FBI and state, municipal, county and tribal law enforcement on a national level.

*Following the terrorist attacks on 9/11, FBI HQ compiled what became known as the "Project Lookout Watch List." The project was successful in identifying a number of individuals potentially connected to the 9/11 investigation. Due to the success of this effort and in recognition of the need to maintain a centralized repository of names of investigative interest related to terrorism investigations, Director Mueller instructed the establishment of a permanent Terrorism Watch List (TWL) to serve as the FBI's single, integrated listing of individuals of investigative interest that is accessible throughout the law enforcement and intelligence communities.

*Significant improvements are underway in the FISA program.

*Better coordination between law enforcement and intelligence agents and prosecutors, recognizing the fact that persons involved in terrorism are often involved in other criminal activities.

*The development of a secure communications capacity in the field so that FBI Field Offices, FBI Headquarters and the Department of Justice can communicate and manage the FISA process in real time.

*Doubling the number of attorneys in the FBI's national Security Law Unit.

*The creation of a FISA unit within the FBI's General Counsel's Office to ensure all FISA applications move expeditiously through the process.

*Creation of a new mandatory training program in the use of FISA for FBI agents and Designated Justice Department prosecutors from every U.S. Attorney's office.

*The deployment of Office of Intelligence Policy Review (OIPR) attorneys to the field to work directly with Assistant U.S. Attorneys and FBI agents.

These reforms have led to major successes in the war against terrorism and our efforts to protect the American people from terrorist attacks:

*We've disrupted alleged terrorist cells in Buffalo, Detroit, and Portland and arrested 18 suspected terrorists.

*We arrested Zacarias Moussaoui (who is awaiting trial) and obtained guilty pleas from John Walker Lindh and the shoe-bomber, Richard Reid.

*We've brought criminal charges against 134 individuals and have secured 99 convictions, either through trial or plea to date.

*We've deported 478 individuals.

*We've designated 39 entities as terrorist organizations and frozen the assets of 62 organizations that fund terrorist activities resulting in $125 million in frozen assets worldwide.

The President's vision for Homeland Security emphasizes information sharing between agencies and the integration of law enforcement and intelligence capabilities. We have made great strides already at implementing that vision. Moreover, the FBI brings decades of experience working within the parameters of the 4th Amendment and within the processes and supervision of the Department of Justice which is charged with not only enforcing our laws, but with upholding and defending civil liberties.

We look forward to working with the Congress and the Administration to continue to improve our capacity to protect America and defend freedom."

That second to last paragraph about the FBI's experience with the 4th Amendment and DOJ's experience with upholding and defending civil liberties is really reassuring to us. We say watch these changes closely--Big Brother is not just out there, he's moving in with us.

Here is the original scope of the Joint Intelligence Committee Inquiry on Sept. 11.

Great flash campaign ad by Oliver Willis on the Trent Lott/Strom Thurmond comments, which is turning out to be a much bigger deal than originally thought. Let's keep the pressure on.

And don't miss this one (with sound) from DubyaDubya (via Patrick Nielsen Hayden at Electrolite)

Patrick has some praise for left-leaning and libertarian bloggers, and we thank him for including us in the company of such other fine blogs.

Via TBogg, we came across this: Judge Who Used Slurs May Be Impeached

"Two state lawmakers are seeking to impeach a judge who was videotaped using racial slurs and profanity while arraigning inmates. Rep. Ron Wilson said Tuesday that he and Rep. Harold Dutton, both Democrats, have asked the Texas Legislative Council to draft articles of impeachment against Judge Matt Zepeda."

"Zepeda, a Republican, has acknowledged he did wrong and apologized, but said he shouldn't be penalized for one mistake. He has vowed to fight efforts to remove him from his job."

"Black community leaders are supporting efforts to remove the Hispanic judge. A jail camera recorded Zepeda using obscene and abusive language to two prisoners in separate episodes during magistrate hearings this year."

TBogg, by the way, is a very funny blog and one we plan to read more often. We found him via Tapped and Ruminate This.

Lisa over at Ruminate This has the scoop on (and the text of) President Bush's not-so-nice letter to federal employees following the passage of the Homeland Security Act.

Newsday is on a roll. The Long Island paper has had these four articles in the past two days on the plight of the indigent defendant and the wrongfully convicted. Please take the time to read them all.

Calls To Improve Pay For Court-Appointed Lawyers
Newsday

Moving to Stop Wrongful Convictions
Newsday

Compensation is Hard to Come By
Newsday

Getting it Right
Newsday

The Washington Post has a welcome editorial today, Lessons for Virginia Justice on why Virginia should change its current rule that except for cases with biological evidence, challenges to convictions in criminal cases must be raised within 21 days:

"As uncomfortable as it is to acknowledge, certainty in criminal cases is a mirage. People confess falsely. Even where there seems to be no doubt, there is doubt. The total picture created by evidence is a constantly shifting mosaic. So the system must be open to new evidence whenever it appears -- as New York's system was here. In New York, the rules allowed prosecutors to do the right thing, even more than a decade after the conviction. In Virginia, by contrast, newly discovered evidence is -- with a narrow exception for biological material -- never admissible more than 21 days after a conviction. The Virginia Supreme Court is now considering a change in this rule. It is long overdue. Allowing the evidentiary mosaic to freeze at any particular moment only guarantees that injustices become irremediable."

The Supreme Court is hearing oral arguments today in the Virginia cross-burning case.

The issue is whether burning a cross on your front lawn is protected symbolic free speech or illegal intimidation. Virginia, backed by the Bush Administration, says that it is illegal intimidation:

"The Bush administration, siding with Virginia, argued that cross burning "has a particularly strong association with acts of vigilantism and violence. "A person has no First Amendment right to burn a cross in order to intimidate others, whether or not he also intends to express an idea or philosophy," Solicitor General Theodore Olson told justices in court papers."

In the past, the high Court has been protective of the free speech rights of even the most controversial groups, such as "flag-burners, adult entertainers, people who display swastikas and those who set crosses ablaze."

Providing an opposing point of view is "John Whitehead, president of the generally conservative Rutherford Institute in Charlottesville, Va., who said in court filings that states may not limit controversial speech just because of concerns about the public reaction to that speech."

Twelve states have laws prohibiting cross-burning which could be affected by the decision in the Virginia case.