LA Weekly is featuring the search for a new police chief this week. We agree with Joe Domanick, author of To Protect and To Serve: The LAPD's Century of War in the City of Dreams, and the senior fellow at the Institute for Justice and Journalism at the University of Southern California, in his strong support of William Bratton, former police commissioner for NY and Boston.

In Rethinking the LAPD: An Open Letter to Mayor Hahn: Be Bold, Domanick says:

"You must hire only an outsider, one unencumbered by decades of exposure to the ossified ethos of the LAPD. You need a veteran cop who's avid about different ways of doing business."

"I suggest William Bratton, the former New York City police commissioner. He'd come to Los Angeles with a reputation as a reform leader with huge successes in turning around both the Boston and New York police departments. His selection would be an affirmation that you could identify, capture and attract that caliber of talent to the city of Los Angeles. "

"Bratton, moreover, would also be ideal in carrying out a major step toward reform that you, in fact, helped negotiate: the consent decree between the city and the U.S. Justice Department mandating major LAPD reforms. Bratton not only supports such reform, but he's already a member of the monitoring team overseeing the LAPD's compliance with the decree. "

We've endorsed Bill Bratton before, here, and here, and hope the powers that be in LA are listening.

Law Professor Glenn Reynolds of Instpundit assesses the results of the War on Terror to date, giving it a less-than-stellar review.

"So a year after Sept. 11 we’re left with big and not-very-effective law enforcement bureaucracies that want more power, but show no signs of more accountability, promising to protect us against a terrorist threat while showing no great evidence of learning from past mistakes, or adjusting old policies in order to meet new threats. Somehow, I don’t feel safer."

The Des Moines Sunday Register (September 1, 2002 edition) published this list of changes to civil liberties since September 11. It was in the print (but not online) edition of the paper accompanying the opinion article Lessons in Freedoms, Rights" by Rekha Basu. Thanks to NACDL Board Member and criminal defense attorney Priscilla Forsythe of Spirit Lake, Iowa for retyping it so we could include it here:

"Some of the fundamental changes to Americans' legal rights by the Bush administration and the USA Patriot Act following the terror attacks are:

Freedom of Association: Government may monitor religious and political institutions without suspecting criminal activity to assist terror investigation

Freedom of Information: Government has closed once-public immigration hearings, has secretly detained hundreds of people without charges, and has encouraged bureaucrats to resist public-records requests.

Freedom of Speech: Government may prosecute librarians or keepers of any other records if they tell anyone that the government subpoenaed information related to a terror investigation. The FBI won't say how many public libraries it has checked in order to determine who is getting particular books or looking up certain information on computers. A University of Illinois survey of nearly 2,000 libraries in December and January determined that the agency searched one of every nine of the nations largest libraries.

Right to Legal Representation: Government may monitor federal prison jailhouse conversations between attorneys and clients and deny lawyers to Americans accused of crimes.

Freedom from Unreasonable Searches: Government may search and seize Americans' papers and effects without probable cause to assist terror investigation.

Trial: Government may jail Americans without a trial.

Right to Liberty: Americans may be jailed without being charged or being able to confront witnesses against them.

Other Changes: Government may listen to suspects on any telephones they might use, not just on a specific phone. The FBI and intelligence agents may share information, an unprecedented shift away from a 24-year-old policy that placed a high wall between domestic law enforcement officials and the CIA. The Treasury Department may target banks and foreign countries deemed havens for money-laundering. The Immigration and Naturalization Service may hold noncitizens up to seven days without charges and detain them indefinitely if they are considered a threat to national security.

Now: At least 147 people remain in custody in the United States, Seventy-four of those were in custody for immigration violations, 73 on secret federal criminal charges, and an undisclosed number as "material witnesses," according to Justice Department court filings. The detainees were among an estimated 1,200 rounded up under the government's post-Sept. 11 secret arrests, detentions and interrogations.

Internationally, nearly 600 people from Afghanistan, Pakistan and 30 other nations were captured by U.S. soldiers and taken to the U.S. naval base in Guantanamo Bay where they remain, and an undisclosed number are being held at a U.S. air base in Bagram, Afghanistan. The military Wants to add more that 200 cells at Guantanamo because space is running out.

Court rulings: A U.S. district judge has ordered the government to identify domestic detainees and their lawyers before the end of the month. The Justice Department has appealed.

A Cincinnati-based federal appeals court has ordered the government to open deportation hearings, ruling unconstitutional the policy of barring public and media from deportation hearings deemed a "special interest" to the anti-terrorism campaign.

Another U.S. district judge ruled the Cuba detainees don't have a right to U.S. court hearings.

What's ahead: The Senate will vote on President Bush's plan for a Department of Homeland Security, including his proposals to create a national identity card and a civilian corps to report suspicious activities in neighborhoods around the country.

The 4th U.S. Circuit Court of Appeals will decide whether an American citizen held incommunicado by the military has a right to a lawyer.

A special national security appeals court will consider how much and what kinds of information intelligence agencies can give federal prosecutors and investigators."

Is NY Attorney General Elliott Spitzer too much of a lone wolf to be elected to higher office in that state?

"A failure to schmooze is an odd problem for a Bronx native, or any gifted politician, but it's one that Spitzer has yet to solve. Only now it's haunting him in a much higher-profile dispute than one over legal fees. As everyone with a newspaper subscription or a cable connection knows, last spring Spitzer famously wrested a $100 million settlement from Merrill Lynch & Co. Inc., the brokerage house he had accused of defrauding the public. Wielding stacks of incriminating e-mail, Spitzer also won for himself the sort of publicity that not even the 43-year-old son of a rich man could buy. With one bold stroke, he became the most prominent state attorney general in the land.

But that settlement may be in jeopardy because it requires the unanimous consent of all 50 states plus the District of Columbia and Puerto Rico. After three months, 20 had not signed. It turns out that once again Spitzer had neglected to schmooze the room. "

In Texas, teenage girls are being arrested for violent crimes at an increased rate. State facilities are overwhelmed. The same trend is occurring nationally.

While the debate as to "why" rages on, the juvenile justice system is struggling to cope. "Defense attorney Laura Peterson says she has "to be a lot more of a social worker because there are so few services for girls."

The article offers an in-depth look at the problem.

Since the death penalty was reinstated in 1976, The Innocence Project reports that in Illinois "twelve people had been executed and thirteen freed from death row after their innocence was proven, five of them due to postconviction DNA testing" by the time Governor Ryan issued his death penalty moratorium two years ago.

Not all wrongful convictions can be established by DNA evidence. Ineffective assistance of counsel is a significant cause of wrongful convictions. According to The Innocence Project, in a study of the first 70 cases of wrongful convictions, 23 involved bad lawyering.

Howard Bashman of <a href="How Appealing found today's 7th Circuit decision granting a habeas action and reversing the conviction of mentally ill Johnnie Brown due to ineffectiveness of counsel in a case the court describes as a "tragic breakdown" of the state's justice system.

"This case exposes a tragic breakdown in the Cook County, Illinois criminal justice system. A mentally ill criminal defendant of recent vintage was arrested, put on trial, convicted of armed robbery, and sentenced to a term of thirty years without anyone taking proper notice of the fact that this same defendant had been diagnosed on more than one occasion, confined and treated (from 1986-88), and medicated intermittently for chronic schizophrenia for an extended period of years. "

"His court-appointed attorneys provided a halfhearted defense, neglecting to thoroughly investigate his medical condition and failing to procure medical Records establishing that he suffered from a myriad of psychiatric problems."

"Thereafter, the attorneys proffered self-serving affidavits once their lackadaisical lawyering was revealed and challenged. Their less-than-lawyer-like attention to duty caused problems for the court-appointed psychologist and psychiatrist. These doctors, relying on inadequate data, filed reports with the court that could best be classified as incomplete, as they ignored essential documentation of his medical history (i.e., his past psychiatric records), a basic element and requirement of any competency evaluation, and furthermore overlooked important information easily ascertainable from the defendant’s family members. "

"The state probation officer, in preparing the pre-sentence investigative report, neglected to interview the defendant’s family members, to make a thorough inquiry about Brown’s prior confinement, (i.e., his adjustment to his institution), to investigate the circumstances surrounding his general discharge from the Navy, or his mental health history. Thus, the sentencing judge was less than well-informed of critical information, including the Defendant’s long and welldocumented history of mental illness, as well as his prolonged period of treatment and confinement in a psychiatric unit during his prior imprisonment."

The opinion concludes with the following sobering language:

"This case is a striking example of a legal system that processed this defendant as a number rather than as a human being; it signals a breakdown of a process that might very well be in need of review, adjustment, and repair. Brown’s psychiatric illness was not given so much as a sideways glance by the parties involved. Not only did Brown’s public defender trial attorneys drop the ball; so did the court-appointed mental health doctors (a psychologist and a psychiatrist) and probation officer, all of whom failed to conduct even a sufficient inquiry into his family background and extensive medical history. As a result, the state trial court proceeded without any awareness of his condition. We have a record before us that mandates—in the interest of justice—the conclusion that Brown was denied his Sixth Amendment right to effective assistance of counsel on the grounds that his counsels’ failure to investigate his history of mental illness prejudiced the outcome of his trial."

The federal judge in Atlanta presiding over the libel lawsuit brought by the parents of JonBenet and Burke Ramsey against Court TV for airing a program in which it was insinuated that Burke Ramsey was once a suspect, notwithstanding that he had been declared by the police not to be a suspect, will be heard in Georgia, home of the Ramseys, not New York. Court TV had battled mightily for the case to be heard in New York.

And in other venue news, ex-NY cop Charles Schwarz lost his bid to have his re-trial on charges he assisted Justin Volpe in the brutal assault against Abner Louima that took place in the police precinct bathroom moved out of NY. Jury selection begins again Monday. (Didn't we just cover this re-trial? Yes, but that was the third trial. This is the fourth trial for Schwarz.)

"Earlier this year, a jury found Schwarz, 36, guilty of lying about escorting Louima toward a bathroom in 1997. But it deadlocked on more serious charges alleging he held Louima down while another officer sodomized him with a broken broomstick. Schwarz denies being in the bathroom during the 1997 attack, which touched off protests alleging widespread abuse of minorities by police. "

Yes, we will follow the fourth trial too. We think the Government is right to retry Schwarz. We've been on Louima's side since day one of this case. But Schwarz proclaims his innocence and we certainly don't begrudge him his day in court.

Still, we can't help wondering why can't these guys find some common ground? Surely there is some offense Mr. Schwarz can plead to that won't involve his admission to conduct he disputes he engaged in and will entail a sentence that, when considering the time-served credit to be applied against it, Schwarz can live with and Louima can feel adequately redresses the wrong done to him.

So how much time would you want someone to serve for sodomizing you with a broomstick while their cronies looked on and, at best, did nothing and at worst, acted as a lookout or helped hold you down? Us too.....so get ready for Trial IV.

And to see what's become of Abner Louima, here is Jim Dwyer's great article from the New York Times Magazine this summer.

For some of our coverage of the last re-trial, go here and here.

We're talking about the appeals court for the secret FISA (Foreign Intelligence Security Act) Court.

When we last left off on August 22, the secret court had taken the unprecedented step of making public its scathing May, 2002 written opinion on the Justice Department's position that the Patriot Act allowed for the crumbling of the wall of separation between federal prosecutors and intelligence gatherers.

In today's Legal Times, Vanessa Blum reports at length on the controversy, raising some interesting points of concern.

Chief among them, the appeal is one-sided. Only the Justice department is represented. The Court is "designed to operate in secrecy and to hear arguments only from the executive branch." There is no one to balance its position from the other side.

In addition, "Presumably, only the Bush administration would have standing to appeal the review court's decision to the U.S. Supreme Court. "

The three judge appeals court is meeting for the first time. How come there haven't been any prior cases?

"The FISA review court was created by Congress along with the Foreign Intelligence Surveillance Court in 1978 to authorize search and surveillance warrants for foreign intelligence targets. The review court has never convened because the lower court, known as the FISA court, has never turned down a government surveillance request. The court has approved approximately 13,000 applications since its inception. And just once, in 1997, the government withdrew a request that the court had found deficient. "

The issue the appeals court will be deciding is this:"Does the USA Patriot Act remove or merely loosen previous constraints on the coordination between prosecutors and intelligence gatherers."

Many groups would like to file an amicus (friend of court) brief with the court on the issue. But there is no legal process by which they can intervene to do so.

Who's on this appeals court? "The review panel is now made up of three senior judges: Ralph Guy of the 6th U.S. Circuit Court of Appeals, Edward Leavy of the 9th Circuit, and Laurence Silberman of the D.C. Circuit. "

Law Professor Jonathan Turley is highly critical of the process, and we share in his concerns. He says, "To call this a court of appeals is to stretch the conventional definition of an appeals process....In a real court of appeals you would have a collection of opposing views. You would also have an argument that would occur in public so citizens could judge the merits of the government's position."

What's the big deal about this? In a nutshell, the FISA court was created to allow officials to obtain evidence pertaining to intelligence activities upon a less stringent showing than is required to get a search or surveillance warrant for criminal law violations. It required that the primary purpose of any application be to obtain intelligence information.

Along comes the draft of the Patriot Act. Ashcroft initially requested that the requirement that intelligence gathering be the primary purpose of the application be reduced to simply "a purpose" from "the primary purpose."

Congress balked and a compromise was worked out. The final Patriot Act language (which is now law) requires FISA court warrants be issued only for applications that allege intelligence gathering is a "significant purpose" of the request.

Ashcroft's twisted interpretation of this change is that law enforcement purposes can now be the primary purpose of a FISA warrant request. And in May, 2002, he approved guidelines providing that prosecutors may "advise intelligence officials on the initiation, operation, continuation, or expansion of FISA searches or surveillance."

The lower FISA Court cried foul, finding that "such extensive collaboration would amount to law enforcement 'directing FISA surveillances and searches from start to finish,' which it considers illegal. "

The reason for the appeal of the FISA court's ruling is that "the FISA court based its decision on peripheral provisions of FISA left unchanged by the Patriot Act. The Justice Department asserts that FISA surveillance can now be used more extensively for law enforcement purposes" as a result of the new Patriot Act language.

So the never-before used appeals court has to decide the issue. With only the Justice Department allowed to present its case before it. And no one arguing against its position.

"Civil liberties advocates call the Justice Department's position 'a bait and switch.'" According to Turley, "The whole point of that compromise [with Congress] was to deny use of FISA in investigations that were principally law enforcement. After agreeing to compromise in congressional proceedings, they went on in secret to implement what was originally refused by Congress."

We hope this is clear. It's a complicated issue but the result is that once again Justice is attempting an end-run around our contstitutional right to be free from unreasonable searches and seizures and the Fourth Amendment's and Title III's strict warrant requirements.

In other words, if the government gets a FISA court warrant, they don't have to show either probable cause of the commission of a crime or probable cause that evidence of a crime is likely to be uncovered by the intrusion. In a criminal court, such a showing would have to be made before the government could search our homes or businesses or wiretap our phones.

Which brings us back to, what kind of appeal will this be with no one to argue against the Justice Department?

Certainly not a fair one.

The links contest is over and the new bookmarks are up on Eric Alterman's great blog Altercation

TalkLeft is proud to have had a hand in the selection.

Cheers for the New York Times and their sharp editorial urging the Senate to reject the nomination of ultra-conservative Texas Supreme Court Justice Priscilla Owen to sit on the 5th Circuit Court of Appeals.

The Times points out that at one time even President Bush's own White House Counsel, Alberto Gonzales, charged Owens (in a dissenting opinion) with engaging in "unconscionable . . . judicial activism."

For those not familiar with Judge Owen or the ongoing criticism of her, she gives new meaning to the word "conservative." She is perhaps best known for her staunch opposition to abortion.

Now while everyone is entitled to his or her own personal views, Owen "has been at times so eager to issue conservative rulings in cases before her on the Texas Supreme Court that she has ignored statutory language and substituted her own views." Hence the label, "unconscionable judicial activist."

Judges are allowed to have personal views on issues. They are not supposed to allow those views to dictate their judicial decisions.

"A former lawyer for the oil and gas industry, she reflexively favors manufacturers over consumers, employers over workers and insurers over sick people. In abortion cases Justice Owen has been resourceful about finding reasons that, despite United States Supreme Court holdings and Texas case law, women should be denied the right to choose."

The Times also finds Owen lacking in the ethics department:

"Justice Owen has also shown a disturbing lack of sensitivity to judicial ethics. She has raised large amounts of campaign contributions from corporations and law firms, and then declined to recuse herself when those contributors have had cases before her. And as a judicial candidate, she publicly endorsed a pro-business political action committee that was raising money to influence the rulings of the Texas Supreme Court."

It's not just the New York Times that has publicly called for Owen's rejection. An editorial in the San Francisco Chronicle called upon California Senator Diane Feinstein to vote against her confirmation . "The point is, Owen has created a strong record of "rewriting" the law when it does not match her conservative convictions. This is why it is vital that Feinstein reject this nomination."

The organization People for the American Way has published a report criticizing Owen's nomination. The report focuses on her dissenting opinions while a Texas Supreme Court Justice in the specific areas of "discrimination and employee rights; reproductive rights; environmental issues and public information rights; and consumer and citizen rights."

The report finds that "many of Owen's dissents reveal a judicial philosophy directly contrary to President Bush's asserted goal of nominating judges who will interpret the law, not make it. As explained by the Texas Supreme Court majority, a number of the dissents she has written or joined would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens."

We agree that Justice Owen should be rejected as a Judge on the 5th Circuit Court of Appeals because she is a "judicial nominee who would make the law, not interpret it."

The Fifth Circuit decides appeals from the U.S. District Courts in Texas, Lousiana and Mississippi.

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Who goes to prison under New York's Rockefeller drug laws? According to a well-documented June, 2002 report by Human Rights Watch entitled Collateral Casualties:

"Few of the drug offenders sent to prison are major traffickers or violent, dangerous individuals for whom serious prison sentences are justified. Whether first time or repeat offenders, most of them were convicted of participating in voluntary, nonviolent, retail-level transactions between adults to obtain or sell drugs, or of functioning in other low-level roles in the drug trade:

· 60 percent of the incarcerated drug offenders were convicted of offenses in the three lowest classes of drug felonies-Class C, D, and E-which involve only minute drug amounts.

· Among drug offenders sent to prison, almost one in three (30.7 percent) had no prior felony convictions for any crime.

· 46.1 percent had prior convictions limited to nonviolent felonies.

· Less than one in four (23.2 percent) had any prior violent felony convictions."

"Put in place over a quarter century ago, the so-called Rockefeller drug laws prevent judges from tailoring sentences that are proportionate to the crime. Harsh prison sentences are required for even minor offenses; judges lack the authority to impose alternatives to incarceration such as community-based sanctions or substance abuse treatment."

"For example, for a single $10 sale of cocaine, the lowest sentence a court can impose is a term of one to three years. If the offender has a prior conviction-as many drug offenders do-the lowest sentence is a term of four-and-one-half to nine years in prison. The sentences can be far worse: a first-offender convicted of involvement in the sale of two ounces of cocaine faces a mandatory minimum sentence of fifteen years, with a life-term maximum."

These are hardly cartel-level trafficking amounts.

The laws also unfairly punish mules and drivers by considering only the amount of drugs involved in the offense and the offender's prior record. Federal law recognizes that such persons may occupy a minor or minimal role in the offense and should receive a lesser sentence than the person who hired them to transport the drugs or who was otherwise extensively involved in the distribution chain. New York law makes no such distinction. These outdated laws are among the most punitive in the nation. They need to be changed.

There are at least two additional issues that demonstrate the gross unfairness of these laws: racial disparity and the children.

"The unfairness of many drug sentences is compounded by their discriminatory impact. Prison sentences for drug offenses have been imposed disproportionately on members of racial and ethnic minorities-blacks and Hispanics constitute 94 percent of the drug felons sent to prison but only 31 percent of the state's population. "

"Black men in New York are sent to prison on drug charges at eleven times the rate of white men. The racial disparity in incarceration for drug offenses bears little relation to racial differences in drug offending."

"Available evidence indicates that whites-who constitute 62 percent of New York residents-use, buy, and sell drugs in proportions that differ little from blacks. In absolute numbers, the total of whites who commit drug offenses exceeds the number of blacks. "

"Yet blacks are more likely than whites to be arrested, convicted, and incarcerated on drug charges, because drug law enforcement efforts target participants in street-level, retail drug transactions in poor-primarily minority-urban neighborhoods."

Perhaps saddest of all is the effect on the children of the imprisoned, see the comments section to our post yesterday on Andrew Cuomo's withdrawal from the NY Governor's race (we are referring to our comment of course, not the one we were replying to.)

If you are opposed to people being jailed for marijuana crimes, and you don't mind the whole world knowing about it, you might want to visit "NoJailForPot.com" and sign their open declaration, which states:

"I accept and declare to the world my support for the idea that by December 25, 2004, no one in the United States of America will be in prison for any non-violent activity related to the use, possession, cultivation, transportation or sale of hemp / marijuana."

The page is dedicated to "Peter McWilliams, writer, poet, civil libertarian, humanitarian and inspirational human being who died on June 14, 2000 as a direct result of government policies that cause non-violent users and cultivators of marijuana to be imprisoned."

We didn't sign, but we're thinking about buying their t-shirt.