Marc Shiner, who prosecuted 13 year old Nathanial Brazill for killing his teacher, has switched sides. He is now defending juveniles and decrying the Florida juvenile justice system.

"Shiner says he switched sides to fight what he calls Florida's flawed criminal justice system -- one that goes strictly by the book in sentencing juveniles, without regard for what drove them to crime or how they might be rehabilitated."

"How can we play God with children's lives? And why should we be in that business to put away kids forever?" he asked. "We don't know. We're just gambling. And that's a gamble I don't want to be betting on."

Good for him, we need more prosecutors like him who will speak out on obvious injustices in our system.

We just came across this very descriptive Associated Press article on how the FBI has been conducting secret FISA searches up until now.

Ashcroft has promised, and we believe him, that far more of these clandestine searches will be coming in the future, now the Government doesn't need to show probable cause that we've committed a crime or even allege that we are involved in terrorist activity to bypass the federal courts and get a FISA court order to spy on us.

Some things the FBI has done in the past:

"Broken into homes, offices, hotel rooms and automobiles. Copied private computer files. Installed hidden cameras. Listened with microphones in one couple's bedroom for more than a year. Rummaged through luggage. Eavesdropped on telephone conversations.... pried into safe deposit boxes, watched from afar with video cameras and binoculars and intercepted e-mails. They have planted microphones, computer bugs and other high-tech tracking devices."

We can only wonder what new techniques the clever feds will come up with now that they know they have practically unbridled power to snoop on all of us.

Remember James Ujaama, the man arrested in Denver and charged in Seattle with materially supporting a terrorist organization for allegedly scouting for a terrorist training camp in Oregon?

"The Seattle Post Intelligencer today offers clips from a video detailing Ujaama's vision for Islamic state :

"Seattle terrorism suspect James Ujaama envisioned a perfect Islamic state, where believers could live separately from Christians and Jews, attend military training camps, and where homosexuality and pornography would be outlawed."

"The place: Afghanistan."

"There are many Muslims who have forgotten that the Jews and Christians are our enemies," Ujaama says in a 2-½-hour video obtained by The Seattle Times, small portions of which were recently revealed on the Internet."

"The video, shot sometime before the Sept. 11, 2001, attacks, gives the first public glimpse into Ujaama's beliefs as told in his own words, and tells of at least one of his trips to Afghanistan. It also provides a look at his association with Abu Hamza, whom federal prosecutors in the United States have targeted for indictment on terrorism charges."

"At least one thing Ujaama says, however, casts doubt on an assertion made by prosecutors: that Ujaama traveled to Afghanistan to attend an al-Qaida training camp. In the video, Ujaama doesn't say why he went, but he states he did not attend jihad training. "I wish I had," he says. "

Ujaama's lawyer, Peter Offenbecher, says the video is consistent with Ujaama's claim that he went to Afganistan for charitable purposes: to deliver laptops to a girls school. "Ujaama asserts in the video that it was a myth that women were oppressed under Taliban rule and received no education. "

Offenbecher said the government has produced no evidence so far that Ujaama went to Afganistan to receive jihad training.

[we found the article on Instapundit-- he's on a roll today.]

On November 15, 2002 the Second Circuit held that a court's denial of a motion to withdraw a plea of guilty was an abuse of discretion because defendant's attorney's affirmative misrepresentation about the deportation consequences of her guilty plea fell below an objective standard of reasonableness, amounting to ineffective assistance of counsel.

The case is US v. COUTO, No. 01-1636 (2d Cir. November 15, 2002)
To read the full text of this opinion, go here.

In its opinion, the Court referenced the Supreme Court's citing of the amicus brief filed by the National Association of Criminal Defense Lawyers in the St. Cyr case last year. The Couto Court stated:

"We have held that an attorney's failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness. See, e.g., United States v. Santelises (Santelises II), 509 F.2d 703, 704 (2d Cir. 1975) (per curiam) (noting that attorney's failure to inform a defendant that a guilty plea could result in deportation "is of no legal significance"). At the same time, we have implied that an attorney's affirmative misrepresentations on the subject might well constitute ineffective assistance. See, e.g., id. ("Since [the attorney] does not aver that he made an affirmative misrepresentation, [the defendant] fails to state a claim for ineffective assistance of counsel."); United States v. Santelises (Santelises I), 476 F.2d 787, 789-90 (2d Cir. 1973) (no ineffective assistance claim where the defendant "does not allege that he was affirmatively misled by his counsel"). And on some occasions, we have suggested that an attorney does have a duty to provide that information. See Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974) ("Where his client is an alien, counsel and not the court has the obligation of advising him of his particular position as a consequence of his plea." (emphasis added)). Moreover, recent Supreme Court authority supports this broader view of attorney responsibility as well. See, e.g., INS v. St. Cyr, 533 U.S. 289, 323 n.50 (2001) ("Even if the defendant were not initially aware of [possible waiver of deportation under the Immigration and Nationality Act's prior] § 212©, competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision's importance." (emphasis added) (citing Amicus Br. For Nat'l Assoc. Criminal Defense Lawyers et al. at 6-8)); id. at 322 n.48 (noting that "the American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel `should fully advise the defendant of these consequences' " (citing ABA Standards for Criminal Justice, 14-3.2 Comment, 75 (2d ed. 1982))). (Emphasis supplied).

Earlier this month we complained about the raid on a fundraising benefit in Racine, Wisconsin where scores of people were arrested and fined outrageous amounts because techno music was played at the event. More details of the Racine case are at Haunted House Party.

Today, via Instapundit , we learn a grand jury is contemplating false arrest charges against police for their conduct in what has become known as the "K-Mart Sweep" in Houston.

The mass arrests in the K-Mart sweep resulted in lawsuits filed against the city of Houston and the suspension of 13 police supervisors . More than 270 people were arrested in the parking lot on trespass and curfew charges that have since been dismissed. The Houston Police Chief was indicted for aggravated perjury and has resigned pending the outcome of his case.

Here's an interesting twist:

"The police union expressed concern that the grand jury reviewing the case was impaneled only two weeks ago. "We wanted a very seasoned grand jury to hear this," [Union president] Marticiuc said."

Maybe we should start filing motions to dismiss on behalf of our clients on the grounds that an "unseasoned grand jury" returned the Indictment, and that had an experienced grand jury deliberated on the case, our clients wouldn't have been charged.

Right.

In the meantime, we hope the grand jury takes a hard look at whoever authorized the mass arrests and takes appropriate action--and that the authorities in Racine do the same there.

Courtesy of Mercedes Benz, Salon Premium articles are free today. All you have to do is look at four pictures of a new mercedes, it's very short. We did it because we wanted to read Eric Boehlert's interview with law professor and civil liberties expert David Cole about the effect of the new FISA court opinion. It's a good interview.

Another don't miss is Bush's Reefer Madness that confirms what we reported last week, "Terrified that an increasingly pot-tolerant America will spell the end of their moral crusade, the president's anti-drug warriors are making a last stand over marijuana."

There is an excellent, very long article recapturing the Central Park Jogger case, and particularly the conduct of the original prosecutors, in this week's Village Voice, When Justice Is a Game: A Journey Through the Tangled Case of the Central Park Jogger by Sydney H. Schanberg. We recommend you read the whole thing, but here are some highlights:

"Morgenthau has a court date of December 5 to deliver his recommendations on whether the convictions should be vacated. Unseen backstage, the two assistant district attorneys in charge of Morgenthau's reinvestigation, Nancy Ryan and Peter Casolaro, are said to be under heavy lobbying from the players who produced those convictions. It's now a tug-of-war between a fair decision and one that would try to protect some carefully crafted reputations. "

Of prosecutor Linda Fairstein, Schanberg writes:

"So intense was the push for confessions that Fairstein, who had sought and achieved celebrity from her sex-crime prosecutions, bullied and stalled and blocked the mother and two friends of one suspect, Yusef Salaam, from gaining access to him. Fairstein's apparent purpose was to keep the suspect under wraps because she had been informed by the interrogating detective that the questioning was in a delicate phase where Salaam had begun to make some admissions. A short while later, Fairstein realized she could not bar the mother any longer, and the angry parent halted the interrogation."

"Linda Fairstein, a fiercely competitive, driven professional who was 41 at the time of the jogger rape, has since left the D.A.'s office to write novels about an assistant district attorney who prosecutes sex crimes. When the rape occurred, she raced into the fray to wrest the case away from Nancy Ryan, 39, another upward A.D.A. who was Fairstein's chief rival in the Morgenthau constellation. Now, Morgenthau has put Ryan in charge of his reinvestigation of the case. Those who know Fairstein say she harbors a dream of succeeding Morgenthau as Manhattan D.A. The latest developments could wreck that dream."

"....People sometimes use the phrase "the game" to describe how big systems like government and multinational corporations often get manipulated not for the common good but for the good of the people who run them. It's not a description of evil, but rather of human nature. It explains what happens when individuals have been doing things a certain way for a long time and come to believe this is always the right way. One symptom is when a player begins to focus only on winning, on trouncing the opposing side. Another is when people become so habit-formed and sure of themselves that they stop asking the question: "Could I possibly be wrong about this?"

"The story of the Central Park jogger case may be in large part a story about people in the justice system playing the game—when they should have been doing the right thing. "

The second article is about DA Linda Fairstein, and three cases she's botched, not just the jogger case, leading the author and others to speculate that her quest for higher office and greater power and fame may be at a dead-end:

"Following a confession to the Central Park attack by imprisoned serial rapist Matias Reyes, whose DNA links him to the brutal crime, the jogger case seems to be cracking open to reveal prosecutorial failures. Worse, this appears to be the third flub of a major case from the glory days of a prosecutor who was once a Clinton administration candidate for United States Attorney General and who is still considered by some a contender to replace current district attorney Robert Morgenthau should he retire."

"Fairstein's behavior seemed so outrageous that in the 1993 appeals decision on Salaam's case then appellate court judge Vito Titone specifically named her in his dissenting opinion and blasted the entire interrogation process. He recently told Newsday, "I was concerned about a criminal justice system that would tolerate the conduct of the prosecutor, Linda Fairstein, who deliberately engineered the 15-year-old's confession. . . . Fairstein wanted to make a name. She didn't care. She wasn't a human."

"Though Fairstein retired from the D.A.'s office last spring, many attorneys agree that she still has devotees both in that office and among detectives. And according to some close to the case, the rivalry between her and Ryan, who is said to believe the Central Park Five were not linked to the crime, still exists."

"But there is the possibility that Fairstein's power is beginning to diminish. She recently pressured producers at ABC's Primetime not to run a story featuring interviews with a few of the Central Park Five. ABC not only ran that show, but aired a clip of it on Good Morning America, which is co-anchored by Diane Sawyer, a longtime Fairstein friend who wrote praise for her first book. Of course, her staying power remains to be seen in February, when the D.A.'s office is scheduled to release its final decision on the Central Park case."

Also not to be missed on the Jogger case are the recent Voice articles, Marked as the Enemy by Dasun Allah in which the five convicted youths speak and Across 110th Street by Rivka Gewirtz Little, about the changed lives of the families of the five convicted youths.

Government officials are leaking again. This time its about details of the military's interrogation of Ramzi Binalshibh, the roomate of Mohammed Attah who was captured in Pakistan a few months ago.

Officials say Binalshibh has tied Moussaoui to Khalid Sheik Mohammed, alleged to be a senior Al Qaeda leader and a major planner of the 9/11 attacks.

A review of the information provided leads us to conclude that Moussaoui, as he claims, was a member of Al Qaeda but was not involved in the commission of the 9/11 attacks. Still at issue is whether he was involved in their planning.

"Authorities have debated Moussaoui's role in the suicide attacks since Vice President Cheney named him as a possible 20th hijacker a month after the terror strikes. Binalshibh has told investigators that he and [Khalid Sheik]Mohammed ultimately lost confidence in Moussaoui's discretion and decided to use him in the hijack plot only as a last resort, the sources said."

Khalid Sheik Mohammed is still at large. The Government alleges that Moussoui met with him in Afghanistan in the winter of 2000, and Binalshibh supposedly confirms this.

"Binalshibh's disclosures place Moussaoui in direct contact with Mohammed, believed to be al Qaeda's director of operations, who allegedly spent two years planning the terror attacks. Mohammed provided Moussaoui with names of contacts in the United States, and Binalshibh gave him an e-mail address and wired him money to advance the plot, Binalshibh has told interrogators. "

"Binalshibh has told interrogators that he and Mohammed talked by phone in July, and discussed their concerns that Moussaoui was drawing attention to himself, acting in conspicuous ways and talking too much. Mohammed told Binalshibh that he did not have a lot of confidence in Moussaoui and the two decided they would use Moussaoui in the planned hijackings only if they really needed him, and would give him specific instructions at the last minute."

In other words, if Binalshibh is being quoted correctly, and if what he says is true (big "ifs," in our mind), it seems like Moussaoui may have originally been considered for a part in the 9/11 attacks by Mohammed, but his flunking flight school and his talking out of turn made him an undesirable liability to the planners, who decided he would only be used as a last resort. Apparently, they got by without him.

The Government is trying mightily to avoid having to produce Binalshibh for a witness interview with Moussaoui's defense team. Moussaoui has claimed Binalshibh could provide exculpatory information as to him. It seems like the Government is trying to debunk that theory in the media, by putting out details of Binalshibh's alleged interrogation which incriminate, rather than exculpate Moussaoui, at least on the conspiracy charges.

For the conspiracy charges, it is enough if Moussaoui entered an agreement with the others to launch the 9/11 attacks. It wouldn't be necessary for the Governrent to prove Moussaoui actually took part in them, so long as they could prove an "overt act" committed by Moussaoui in furtherance of the unlawful agreement, such as receiving wire transfers of money to be used in the attacks.

But, we're a long way from that point. None of this information is contained in any public court records, just in the media, and it is all being provided by anonymous sources.

A British anti-war group plans legal action against the British Government to stop the War in Iraq unless Britain promises not to particpate if U.N. approval is not granted.

The group, Nuclear Campaign for Disarmament, is relying upon an opinion by a British law firm, Matrix Chambers, of which Prime Minister Tony Blair's wife Cherie is a partner.

"The legal opinion from Matrix lawyers Rabinder Singh and Charlotte Kilroy argues that the resolution agreed by the Security Council on Nov. 7 does not authorize the use of force to disarm Iraq. The resolution is designed to rid Iraq of chemical, biological and nuclear weapons programs and threatens the country with unspecified "serious consequences" if it fails to cooperate with U.N. weapons inspectors."

"In October, lawyers from Matrix argued both sides of a mock legal inquiry into military action against Iraq. The inquiry chair, Colin Warbrick, ruled that force was unjustified without a new U.N. resolution."

Via Atrios, the nine who voted against the Homeland Security Bill:

Akaka (D-HI)
Byrd (D-WV)
Feingold (D-WI)
Hollings (D-SC)
Inouye (D-HI)
Jeffords (I-VT)
Kennedy (D-MA)
Levin (D-MI)
Sarbanes (D-MD)

Dennis Shedd, a controversial nominee for a judgeship on the 4th Circuit Court of Appeals was confirmed today by the Senate. Shedd is a protege of Republican Strom Thurmond.

"The Senate voted 55-44 to agree to the promotion of U.S. District Court Judge Dennis Shedd to the 4th U.S. Circuit Court of Appeals in Richmond, Va., despite accusations that the South Carolina federal judge had been insensitive in civil rights and employment discrimination cases. It was the closest vote on a federal appeals court judge since the Democrats took over the Senate in June 2001. They had enough votes to filibuster the nomination and hold confirmation up until next year, senators said, but decided against the action in deference to Thurmond."

The Homeland Security Bill passed the Senate today by a vote of 90 to 9.

By a 52-47 vote, earlier today Senators rejected "a Democratic bid to block provisions that will aid vaccine producers and other industries. That vote came after Republican leaders made last-minute concessions that ensured support from four moderate senators."

The final vote was 90-9.