"The judge overseeing the long-delayed capital murder trial of Oklahoma City bombing conspirator Terry Nichols unexpectedly stepped down on Friday, blaming the grinding delays that have stalled it on his docket for more than two years."

"State District Judge Ray Dean Linder became the second judge to leave the case, which has been beset by a host of problems and has already seen the original prosecutor and judge removed."

We heard late yesterday that funding for the defense has been restored, and a preliminary hearing for Mr. Nichols has been set the first week in February. We're curious as to any connection between those these events.

By Stephen Rohde, a constitutional lawyer and President of the ACLU of Southern California. Adapted from the original by Rev. Martin Niemoller (1937).

Then They Came for Me

First they came for the Muslims, and I didn't speak up because I wasn't a Muslim.

Then they came to detain immigrants indefinitely solely upon the certification of the Attorney General, and I didn't speak up because I wasn't an immigrant.

Then they came to eavesdrop on suspects consulting with their attorneys, and I didn't speak up because I wasn't a suspect.

Then they came to prosecute non-citizens before secret military commissions, and I didn't speak up because I wasn't a non-citizen.

Then they came to enter homes and offices for unannounced "sneak and peek" searches, and I didn't speak up because I had nothing to hide.

Then they came to reinstate Cointelpro and resume the infiltration and surveillance of domestic religious and political groups, and I didn't speak up because I had stopped participating in any groups.

Then they came for anyone who objected to government policy because it aided the terrorists and gave ammunition to America's enemies, and I didn't speak up because...... I didn't speak up.

Then they came for me....... and by that time no one was left to speak up.

The best selling edition of People Magazine ("Sexiest Man Alive", Dec. 2, 2002) features the issue of wrongful convictions and profiles Peter Limone, Gary Gauger, Ray Krone and others. It also links to the Campaign for Criminal Justice Reform .

Nat Hentoff has a new article in the Village Voice, Resistance Rising about the increasing number of Americans who view John Ashcroft as the biggest threat to personal liberty in the nation. He begins with:

"Despite the self-satisfaction of George W. Bush and John Ashcroft, and the somnolence of the press, there is rising resistance around the country to the serial abuses of our liberties. More Americans are becoming aware of what Wisconsin Democratic senator Russ Feingold prophesied from the Senate floor on October 11, 2001, when he was the only Senator to vote against Ashcroft's USA Patriot Act: "There is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country where police were allowed to search your home at any time for any reason; if we lived in a country where the government is entitled to open your mail, eavesdrop on your phone conversations, or intercept your e-mail communications; if we lived in a country where people could be held in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, the government would probably discover more terrorists or would-be terrorists, just as it would find more lawbreakers generally. But that wouldn't be a country in which we would want to live."

Hentoff talks about the many citizens around the country who are forming local Bill of Rights defense groups--

"But what is most encouraging is the continued growth in cities and towns throughout the nation of Bill of Rights Defense Committees or their equivalents, a number of which are working with ACLU affiliates. The first BORDC, as reported here, was formed in February this year in Northampton, Massachusetts, when about 300 doctors, nurses, lawyers, students, teachers, and retirees formed a group to protect the citizens of that town from the USA Patriot Act and the subsequent unilateral attacks on our liberties by John Ashcroft."

"After the Northampton city council unanimously passed in May a resolution officially supporting the protests of the BORDC, other towns and cities learned how to organize similar committees through the Northampton group's Web site".

Toby Sackton of Let It Begin Here wrote eloquently about why he joined his local group, the Lexington Justice and Peace Committee.

Go over to BORDC and learn how to start a group in your community. We are firm believers in grass roots efforts. They can succeed.

Skippy has been carrying on a dialogue critical of bloggers who have tipboxes or paypal links on their blogs asking for donations. Skippy believes we should be asking people to contribute to charity instead. Many people have agreed with him in the comments sections of his various posts on the matter. Skippy's original and much more opinionated post on tipping is here.

Skippy says that he had trepidations about posting his "rant" as he calls it--in part because he was concerned that we, TalkLeft, would be angry with him since we accept contributions and he stresses what a fine blog we are:

"we try to have no regrets as we go through life, but we must admit that we are sorry if our little diatribe upset talkleft in any way, for she has not responded to our email. talkleft is a fine blog, even with a paypal link on it [ed. note: it is actually an amazon honor system link], and we highly recommend it to all."

So, we respond as follows:

"Skippy, we agree with SK Bubba too, when he says:

"This blogging stuff does cost money for hosting, bandwidth, software, and so forth, not to mention the time. I don't blame them for trying to offset the cost a little. So if you enjoy reading a blog on a regular basis and appreciate the blogger's efforts you should support them if you can. "

For those of us with paying day jobs, time is money and the time we spend blogging costs us money. Especially if we spend hours a day doing it. Contrary to your first post on the subject, many of us are published writers, not frustrated writers who can't get published elsewhere.

True, some bloggers are putting out only personal diaries, or tend to mostly recap what other blogs say, at little or no cost to them other than bandwidth, if that. But there are other blogs that are, for example, news resources shelling out real dollars for various subscription costs and for expensive news syndication software programs, with which they put out their own individualized daily newsfeeds that are a cut above free but more generalized news services like Moreover.com. Many blogs pay for advanced search engines; for linkchecker services that enable them to locate and repair broken links so their readers don't log on to dead webspace; subscribe to lexis or nexis or other paid financial or political services that they use in part for their blogs--to research topics, chronicle events, fact-check their statements and provide analysis that is more in-depth than what you get from an AP wire story--thereby gaining a reputation as a trusted resource--even to those who disagree with their conclusions or point of view.

As SK Bubba points out, contributions, are a way for regular readers of a blog to say, "Hey, thanks for what you are doing, we stop in here often and we appreciate you." Just as you tip for good service in a restaurant, why not tip for good service on the web? It's a way of saying, thanks for keeping us informed and we appreciate the effort you put into your blog.

We donate to blogs we read frequently either because they ask us to or because something they write on a particular day touches us or otherwise strikes a chord. Tipping is a sign of respect and appreciation.

Among blogs we highly respect who ask for contributions are Atrios, Daily Kos, and Instapundit.

We also give to charities and hope everyone does too. Why make giving to charity and tipping a few bucks to a blog an either/or proposition?

Skippy, we're not mad at you and we still read you every single day. That said, we now must return to our day job.

The difference between crime and terrorism appears to be merely "trust me." according to this article today in Legal Times called "Walking a Fine Line."

"What's the difference between a criminal and an enemy? A crime and an act of terrorism? One year after President George W. Bush launched the war on terrorism, the dividing line is murkier than ever. The government still hasn't articulated a standard for how it decides whether someone will face criminal charges in federal court or be held indefinitely and incommunicado in a military jail, as is the case with U.S. citizens Yaser Hamdi and Jose Padilla."

The Sixth Circuit has resolved a long-standing conflict by allowing death row inmates with claims of factual innocence to pursue them, even though they have been determined to be procedurally barred from doing so. The opinion doesn't free the defendant, Paul House, but it stops his execution while the case goes back to the state court in Tennessee to determine whether other avenues may exist to review the claim.

We know, it sounds awfully technical, and it is, but some of the language in the opinion, particularly that criticizing the dissent point of view, is instructive, hopeful and worth a read through:

The opinion is written by Judge Gilbert Merritt (no relation) and available here.

From the opinion:

"In this death penalty case from Tennessee, the habeas petitioner presents a strong claim of "actual innocence" or "miscarriage of justice".... The Supreme Court has assumed that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant habeas relief if there were no state avenue open to process such a claim."....Justice O'Connor has referred to such an execution as a "constitutionally intolerable event." 506 U.S. 417. As a matter of traditional comity and respect for our colleagues on the Supreme Court of Tennessee, we therefore certify certain questions to that Court in order to ascertain whether there remains a "state avenue open to process such a claim" in this case."

" The petitioner, Paul House, has been sentenced to death on the basis of a set of facts that now turns out to be false in significant respects...."

"The question is not, as our dissenting colleagues seem to believe, whether the trial evidence with the new information remains sufficient for a juror to vote to convict but rather "if they [the new statements] . . . are true," whether "a juror, conscientiously following the judge's instruction requiring proof beyond a reasonable doubt, would vote to convict." 513 U.S. at 331. This is far different from the test used by our dissenting colleagues -- the sufficiency of the evidence in the trial record. The dissent looks to whether there is evidence that could have supported a jury's decision to convict, regardless of the new evidence. But Schlup looks instead to the "likely behavior of the trier of fact" -- what a conscientious juror would do given all the evidence. Justice Stevens specifically holds, in reversing the Eighth Circuit, that "petitioner's showing of innocence is not insufficient solely because the trial record contained sufficient evidence to support the jury's verdict." Id.(4)"

" With respect to the question of "delay," it is better to be safe than sorry, as we learned after Lloyd Schlup's case was reversed. We must remember, as members of the Supreme Court have advised us, that "death is different -- that "[t]he taking of life is irrevocable," so that "[i]t is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights," Reid v. Covert, 354 U.S. 1, 45-46 (1957), (Frankfurter, J. concurring), and that "[i]n death cases doubts . . . should be resolved in favor of the accused," Andres v. United States, 333 U.S. 740, 752 (1948), and that "[t]he Court . . . has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U.S. 992, 998-99 & n.9 (1983)."

"We must take seriously the Supreme Court's admonition in Schlup, quoted above, that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant habeas relief if there were no state avenue open to process such a claim," 513 U.S. 298, 314 n. 28. In such cases as this one, it is not obvious what avenues of relief are open, and we are not inclined to agree with our dissenting colleagues that the door should be closed and the man executed without asking any questions."

Howard Bashman of How Appealing discusses one of the dissenting opinions.

Jim at Rittenhouse points us to this newsworthy article: California has passed a law granting a new hearing to inmates doing time for killing their abusive partners.

The law, almost a year old, may release hundreds of battered women serving jail terms for murder. It provides inmates with "a chance to prove the outcome of their trial could have been different had evidence of "battered-woman syndrome" been presented." The effect: Abused women now have "one last legal tool to seek a new trial, have the severity of their offense reduced or even be released with time served"

Kudos to California, we hope other states follow suit.

Check out this totally impressive site dedicated to the Central Park Jogger case--called One People's Project.

The National Association for the Reform of Marijuana Laws, also known as NORML, reiterates its stance against driving while impaired by pot but Questions Feds' Proposed Crackdown On "Drugged Driving."

"This plan advocated by the Drug Czar would result in the unfair arrest of tens of thousands of unimpaired motorists each year," NORML Head Warns"

"While driving under the influence of pot is never acceptable, neither is it sound public policy to treat sober drivers as if they are impaired simply because inactive marijuana metabolites may be detectable in their blood or urine, said Keith Stroup, Executive Director of The National Organization for the Reform of Marijuana Laws (NORML). Stroup's remarks were in response to this week's launch of a new federal campaign to prosecute drivers who test positive for any presence of marijuana, including inactive metabolites that can remain present in the body for days or even weeks after past pot use."

By the way, if you are a criminal defense lawyer or wannabe, NORML is having its annual continual legal education program Dec 5 to 7 in Key West at the Pier House. Go here for details.

We'll be there speaking on the topic "Everybody's Listening: Changes and Updates to Electronic Surveillance After the USA Patriot Act."

Welcome Back to Jim Capozzola of the Rittenhouse Review who was on blogging hiatus last week but has returned. As always, he provides a unique perspective that is easy to read yet thought-provoking - sometimes serious, sometimes entertaining, and sometimes caustic --on a variety of current issues.

"The Homeland Security Act has been passed, and the Pentagon has been cleared to begin snooping into Americans' public and private acts. Get ready to read even more references to George Orwell."

New commentary, Sacrificed for Security, at Mother Jones