Dec 3rd Rally -- Exploiting the Sniper Tragedy

Don't let politicians turn tragedy into a blank check to execute!

Tuesday, December 3rd, 7pm
George Washington University's Marvin Center -- 3rd Floor Amphitheatre, at 21st and H St. NW, near Foggy Bottom Metro (Washington, DC)

Speakers:

Shujaa Graham, former death row inmate
Johnny Barnes, Executive Director ACLU, National Capital Area
Robin Maher, Director American Bar Assoc., Death Penalty Representation Project***
Jack Payden-Travers, Director Virginians for Alternatives to the Death Penalty
Mike Stark, Campaign to End the Death Penalty

Why: As the region searches for answers to the horrible sniper shootings, politicians like Attorney General John Ashcroft and Maryland Governor-elect Bob Ehrlich are eager to use this tragedy to sell and expand the death penalty. Ashcroft quickly moved sniper suspects, Gulf War veteran John Muhammad and John Lee Malvo, to Virginia to ensure their quick execution; Ehrlich pledged to overturn Maryland's moratorium on executions and to lower the eligible age for the death penalty to 17.

Attend the indoor rally and show Ashcroft and Ehrlich that you won't let them turn back the clock!

Sponsored by the Campaign to End the Death Penalty

For more information email them .

*** The American Bar Association does not oppose the death penalty. It does support a moratorium and opposes the execution of juveniles.

A brouhaha is developing in Texas over a trial judge's acquiesence to a request by PBS and lawyers for a 17 year old charged with capital murder to allow the filming of the actual jury deliberations as part of a documentary for Frontline on the murder trial.

As jury selection was underway today, the Texas Court of Appeals, acting upon the request of the prosecution, issued an order staying the trial and directing the trial judge to explain his ruling by next week in writing.

The defense lawyers want the filming. They want to show the reality of trying a juvenile for murder which includes the state's arguing for the death penalty for a 17 year old and the jury's grappling with both the guilt decision, and potentially, the life or death decision. The Prosecutors oppose it.

We are as much of an opponent of the death penalty as anyone, and we rarely agree with prosecutors, but this is a tough one. There is something just too unseemly about it, too Gladiator-like, too reminiscent of the days of ancient Rome when people went to the colliseum to watch so-called sporting events in which one contestant was brutally killed. What's next after broadcasting deliberations into into our living rooms? Football stadiums where people cheer as the final needle is administered?

However, we acknowledge that some death penalty opponents think that by televising executions and confronting citizens with the reality of their brutality and inhumanity (yes even lethal injection is a brutal process, it's not like getting an iv before surgery), more people will come to oppose them.

The fact that it's Frontline makes a difference to us, but not enough to change our mind. Frontline is an exceptional documentary series on PBS that frequently deals with injustices in the criminal justice system. Their programs Snitch and What Jennifer Saw (on eyewitness misidentification) and A Case for Innocence were simply masterful (and are re-run from time to time.)

Rejecting the idea of televising jury deliberations isn't such a big leap for us because we have always been opposed to cameras in the courtroom unless the defendant and his lawyers want it. It should be the defendant's choice--he has the constitutional right to a fair and impartial trial --although, that being said, we can't imagine wanting a televised trial for one of our clients. We think cameras that broadcast trials into living rooms affect the participants. Everyone plays to them a little bit, no matter how much they may deny it - from the Judge, to the lawyers to the witnesses.

We were surprised to read, in the same article, that Henry Schleiff, the CEO of Court TV, opposes the filming of deliberations and said Court TV has never requested to film them. Another opposing view came from Richard Dieter, who heads up the excellent anti-death penalty organization, Death Penalty Information Center.

We were a little curious about the Texas Judge who agreed to it.

"Poe, a former prosecutor who was appointed to the bench in 1981, is well known in Houston. He has forced convicts to carry signs outside the courthouse proclaiming their crime and earlier this year said a teacher convicted of having sex with a student was ``a bigger threat to our culture and our students than Osama bin Laden and his cave dwellers.''

Not our kind of Judge. But, even so, but we have to vote against Frontline on this one. Jury deliberations have always been sacrosanct and secret. We believe the secrecy of deliberations encourages people to speak freely and share their views (even as awful as some of them might be) and return a verdict that is more likely to be free from external influences. We like juries. We don't want them to be afraid to vote "not guilty" in a case involving an ugly crime but the wrong perpertrator because they fear being ostracized by the community afterwards.

Update: The New York Times takes the same position we do in an editorial Wednesday, The 13th Juror.

The 11th Circuit Court of Appeals has reversed the convictions in the 1998 church arson cases.

"The 11th U.S. Circuit Court of Appeals has reversed 2-1 the arson convictions of self-described "Luciferian" Jay Scott Ballinger, who set fire to five North Georgia churches during the 1998 Christmas and New Year's holidays. The majority concluded that state prosecutors should have handled the cases because the fires were not sufficiently connected to interstate commerce to trigger a 1996 federal church arson statute. "

A few bloggers (see Bo Cowgill, for example, who graciously has posted a clarifying addendum) thought our post on who's to blame for allowing our civil liberties to be infringed upon labeled Bill Clinton as an enemy of the Consitution. Not so.

Just to set the record straight, we admire Clinton. We voted for him, we wish he were president now and we'd vote for him again. What we criticized were his and his administration's policies on civil liberties, privacy and criminal justice--admittedly, areas of great importance to us.

We didn't say and we don't believe that Clinton was "an enemy of the Constitution. " We said he was too centrist and not liberal enough for us on privacy issues like wiretapping and on criminal justice issues. But we also pointed out that we admired his accomplishments in other areas.

We were striving to make a point with our criticism--the point being that it's the centrists we need to watch out for when it comes time for democrats to nominate a presidential candidate for 2004-- they are the real danger. Clinton was centrist in these areas, as is Bush (if he were a true conservative, he'd support privacy rights.) The left (among them the ACLU and many criminal defense lawyers) and the libertarians and the right have more respect for civil liberties and privacy rights than do centrists.

The right continues to lack credibility in areas other than privacy issues. For example, they are simply medieval in their views on crime--they always want to punish longer and lock more people up while refusing to address the root causes of crime or make an attempt to reduce recidivism through rehabilitation and treatment. With Clinton, drug offenders got overly harsh ten year mandatory minimum sentences, but if it were up to Bob Barr or Newt, they'd all be getting life--if not death.

We think the Democratic party needs to return to its true liberal roots of decades ago and the values our parents and grandparents embraced. Like individual freedom and privacy, fair treatment of immigrants, meting out just but not excessive sentences while stressing rehabilitation--and providing every child with an equal opportunity to succeed.

Update: Kip Manley over at Long Story, Short Pier goes further with the left/right distinction and asks, Would people support the same powers in the hands of a Democratic administration?

Arkansan Asa Hutchinson, who now heads the Drug Enforcement Administration, will take charge of immigration and border security -- and a workforce of one hundred thousand -- in the new Department of Homeland Security.

The Arkansas Democrat-Gazette promises full details Tuesday.

From an editorial Monday in the Gainesville Times, We should preserve freedom from terror, not sacrifice it more :

"The government should tread cautiously around the Constitution and civil liberties. They are the underpinnings of an unencumbered and enlightened society. When talk turns to obtaining evidence surreptitiously or by circumventing search warrants, the public should respond with skepticism and suspicion. The war against terror is, after all, supposed to be about defending freedom, not surrendering it. "

"Ashcroft, we believe, has been far too zealous in pursuit of remedies that infringe on civil rights. Our fear is that once those rights are modified or curtailed, they will never be restored."

The FBI issued a report today showing a dramatic surge in hate crimes against Arabs since Sept. 11. You can read the whole report here.

On December 4, the Supreme Court will hear arguments in a case that could reshape and weaken Miranda warnings. Specifically, the court will decide whether the Fifth Amendment conveys a "constitutional right to be free of coercive interrogation," or just a right not to have forced confessions against them at trial. The Department of Justice and the Bush Administration, not surprisingly, are behind the police. The case is Oliver Martinez v. Chavez. The 9th Circuit's opinion, which is the one under review by the high court, is at 270 F.3d 852, available here for free.

Be forewarned, the case is a sad one. Martinez, a 29 year old farm worker, was riding his bicycle home from his work picking strawberries. Police were looking for a narcotics suspect they wrongly believed was selling drugs in a field. When Martinez passed, they demanded he stop, get off his bicycle and 'assume the position.' One officer located Martinez' strawberry knife. A struggle of some sort ensued, although police have conceded Martinez never struck or kicked them. One of the cops opened fire on Martinez, pumping him with five bullets, leaving him blind in one eye and paralyzed. He is now 34 years old and resides with his father in a one room trailer. He has a wheelchair and wears dark glasses to cover his missing eye. Oxnard has refused to pay for any therapy for him. He has not been charged with a crime.

Immediately after the shooting, Martinez was taken to the hospital. The police barged their way into the emergency room where Martinez was being treated. He repeatedly told them he did not want to talk to them. They persisted in trying to question him until he passed out.

Martinez sued the city and police for a federal civil rights violation (called a 1983 action) seeking damages for unlawful arrest and engaging in excessive force. The action lies against police officers who violate an individual's clearly established legal rights and prevents them from using qualified immunity from lawsuits as a defense to the lawsuit.

The lower courts ruled in Martine'z favor on the issue of whether he could sue the city and police. The 9th Circuit ruling, which is now under review by the Supreme Court, stated:

"Sgt. Chavez doggedly pursued a statement by Martinez despite being asked to leave the emergency room several times. A reasonable officer, questioning a suspect who had been shot five times by the police and then arrested, who had not received Miranda warnings and who was receiving medical treatment for excruciating, life-threatening injuries ... would have known that persistent interrogation of the suspect despite repeated requests to stop violated the suspect's 5th and 14th Amendment right to be free from coercive interrogation."

"Without proper safeguards the process of in-custody interrogation . . . contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. Chavez persisted in questioning Martinez during, not after, medical treatment. Although Martinez did not... affirmatively request counsel, he repeatedly requested that Sergeant Chavez refrain from interviewing him until his medical treatment was complete and his life was no longer in danger. In light of the extreme circumstances in this case, a reasonable police officer in Sergeant Chavez's position could not have believed that the interrogation of suspect Martinez comported with the Fifth and Fourteenth Amendments. Accordingly, the district court did not err by holding that on these facts qualified immunity was not available to Chavez to insulate him from Martinez's civil rights suit for damages."

U.S. Solicitor Gen. Theodore B. Olson and Michael Chertoff, the chief of the Justice Department's criminal division, will argue that there is no clearly established constitutional right to be free from police interroogation and that therefore Martinez's suit should be dismissed.

This is preposterous to us. The Fifth Amendment has a specific guarantee against self-incrimination. No one can be forced to answer police questions against their will. The most the police can demand, particularly during a 'stop and frisk' or Terry-type stop is basic identification.

The exclusionary rule, fashioned by the Supreme Court in part as a remedy for police misconduct, holds that if the police violate a suspect's Fifth Amendment rights, any statements obtained as a result of the improper questioning may not be admitted or used against them at trial. The purpose of the exclusionary rule iis to is to deter police from engaging in such misconduct, by denying them the benefit of the fruits of their illegal conduct. It turns the exclusionary rule on its head to say that police can engage in the misconduct so long as they abide by the remedy -not using the statements at trial.

The question before the Court, as stated in the Amicus brief of the California Attorneys for Criminal Justice, the ACLU and other groups, is "how to address flagrant and willful violations of Miranda's dictates by law enforcement agencies that systematically and institutionally disregard this Court's admonitions. "(Brief available on Lexis.com in Supreme Court Briefs database.)

A ruling in favor of the police will eviscerate Miranda warnings. As University of Texas law professor Susan Klein told the LA Times:

"Officers will be told Miranda is not a constitutional right. If there is no right, and you are not liable, why should you honor the right to silence?" she asked. "I think it means you will see more police using threats and violence to get people to talk. Innocent people will be subjected to very unpleasant experiences."

Two years ago the Supreme Court considered a challenge to the Miranda warnings and upheld them. Chief Justice William Rehnquist, who is known to oppose the warnings, sided with the majority. We don't know if he will join those justices voting to uphold Miranda rights as consitutional rights, but we predict Miranda will again survive.

We hope Martinez garnishes the cops severance pay and pension funds for as long as they live.

Update: Atrios, Calpundit and Daily Kos appear to agree the cops position is over the top nonsense and out of step with the law.

Toby of 'Let it Begin Here' has some thoughts on repression in this country and on the Iraqi professor at U Mass who became the focus of an FBI probe, prompting student protests.

John Shattuck, CEO of the John F. Kennedy Library Foundation, delivered a speech last week on <a title="Boston Globe Online / Editorials | Opinions / Human rights in an age of terrorism" human rights in an age of terrorism at the University of Western Bohemia in the Czech Republic. Among his points:

"Democratic countries have to find ways of helping people who are living under tyranny. This must be done carefully so that it doesn't cause repressive governments to crack down even more. But it has to be done, because repression breeds human rights abuse, and human rights abuse breeds terror. Authoritarian countries must be encouraged to reform, and reformers within those countries supported for what they are trying to do."

"The danger today is that, as the NATO alliance joins with the United States in fighting the war on terrorism, it will ignore what the world should have learned since 1989 about the urgency of defending human rights. If in the name of fighting terror we abandon the struggle for human rights, we should certainly know by now that in the long run we are only likely to have more terror. "

We've been so busy reporting on civil liberties and politics this week, we missed this press release, on the DEA's website:

"DEA To Launch "Operation X-Out" New Club And Predatory Drug Initiative Enforcement Effort and Public Education Keys to Success"

"On Thursday, November 21st, DEA Administrator Asa Hutchinson will announce "Operation X-Out," a national club and predatory drug initiative at a news conference followed by a town-hall meeting in San Diego, CA. The initiative is designed to engage the public on the dangers of these drugs, as well as increase enforcement operations on what has become a critical national and international drug problem."

"The explosive use of Ecstasy and predatory drugs among our youth is fast reaching epidemic levels. Unscrupulous dealers and promoters are marketing Ecstasy, Rohypnol, GHB, Ketamine and other lesser known drugs to individuals who, all too often, do not truly understand their potentially devastating effects," Hutchinson said. "Not only is the DEA targeting these traffickers, we're also reaching out to communities in an unprecedented way to get them involved."

Through James Capozzola's TRR we found the Religion Test . The test is like the gender test lots of bloggers have taken lately (we came out 86% female on that one). Here are the results of our religion test, indicating which religions most match our answers:

1. Reform Judaism (100%)
2. Liberal Quakers (87%)
3. Unitarian Universalism (85%)
4. Bahá'í Faith (76%)
5. Sikhism (75%)
6. Islam (70%)
7. Orthodox Judaism (70%)

We were struck by the apparent closeness of the belief systems of Islam and Judaism, an assertion also made by reputable texts on the subject (we wouldn't take the word of an online test). As to what that means or portends for the future of either group in the middle east, we're not even remotely qualified to render an opinion, so we won't.