The Wall Street Journal Online is running a poll today where you can vote and post comments on the question:

Should a jury be able to reject laws it considers unjust?

In an op-ed piece in today's New York Times, Washington Bends the Rules, James Bamford, author of a recent book on the National Security Agency, compares Ashcroft's recent actions to those of the government in Franz Kafka's The Trial.

"With increasing speed, the Justice Department of Attorney General John Ashcroft is starting to resemble the "always vengeful bureaucracy" that crushed Josef K. Recently, in two federal cases, the Justice Department argued that it is within the president's inherent power to indefinitely detain, without any charges, any person, including any United States citizen, whom the president (through the Justice Department) designates an "enemy combatant." Further, the person can be locked away, held incommunicado and denied counsel. Finally, Mr. Ashcroft argues that such a decision is not subject to review by federal or state courts. This situation is beyond even Kafka, who in his parable of punishment and paranoia at least supplied Josef K. with an attorney."

Bamford points out that despite Ashcroft's increasingly "draconian dictates," it is not Congress that has come to our aid but the judiciary. He interprets the recent FISA court opinion taking the FBI to task for its mispresentations in 75 secret snoop applications as a sign that the court is more than a little concerned with Ashcroft's attempts to expand the Justice Department's powers.

"What triggered the court's extraordinary public rebuke was Mr. Ashcroft's proposal last March to greatly increase the amount of intelligence information shared between the spies and the cops. Many fear that erasing the line between the two groups will open up, in particular, a Pandora's box of domestic electronic espionage by the F.B.I. and the National Security Agency."

Bamford's description of the secret court is a little eerie.

"Today, like a modern Star Chamber, the F.I.S.A. court meets behind a cipher-locked door in a windowless, bug-proof, vault-like room guarded 24 hours a day on the top floor of the Justice Department building. The 11 judges (increased from seven by the U.S.A. Patriot Act) hear only the government's side."

The FISA court has approved 10,000 interception requests in its twenty five year history. It has never turned one down. In the event it were to deny a request, there is a special FISA appeals court. It is the only appeals court in the country which has never heard a case. Its first case will be the Government's appeal of the recently released May 17 FISA Court order.

Bamford describes the FISA appeals court judges as "the Maytag repairmen of the federal judiciary." Government appeals from the FISA appeals court go directly to the U.S. Supreme Court--in closed session.

Bamford calls upon Congress to hold hearings, some of them open, on how to fix the system.

He compares the FISA Court's unprecedented public release of the May 17 opinion to Josef K. in Kafka's The Trial, when he was so tired of the fight he lost his will to resist. "The release of the May 17 opinion (by the court's new presiding judge) to the Senate Judiciary Committee, and the committee's release of it to the public, can reasonably be seen as cries for help."

Transactional Records Access Clearinghouse (TRAC) has just put up on the web a breakthrough service that allows users to examine the official actions of individual federal district judges.

With the tool -- accessible on TRAC's subscription site, -- users can review the work of most judges who served from FY 1968 to FY 2001. Available information includes their workload, sentences and case disposition times. The service also allows the user to compare the work of one judge with the work of all the judges in that district or the nation as a whole and to generate annual case-by-case lists of matters disposed of by a particular judge.

Coverage includes criminal cases and civil matters where the government is a party and that were handled by assistant U.S. attorneys.

Although court proceedings are typically open, and court records can be examined about most specific cases and opinions are often published, this site provides a different view: systematic comparative information about how a judge has functioned in the overall handling of the court's business.

For this reason, TRAC's new service is expected to be of interest to federal judges, to defense attorneys, legal scholars, news organizations, public interest groups, law schools, Congress and others.

To explore the various kinds of information available on TRACFED go here. . You can sign up online or call for an annual subscription.

Transactional Records Access Clearinghouse
trac@syr.edu

From the National Coalition to Abolish the Death Penalty press release today:

TEXAS POISED TO EXECUTE YET ANOTHER AFRICAN AMERICAN JUVENILE OFFENDER

"Aug. 26, 2002 -- Amid growing protests from both within the United States and abroad, the state of Texas is prepared to execute yet another African American juvenile offender. If the execution of Toronto Patterson proceeds as scheduled on Wednesday, Aug. 28, it will mean that the past six executions of juvenile offenders in the United States will have taken place in Texas and will have
involved African Americans...."

"Toronto's coerced confession did not even conform with physical and forensic evidence at the crime scene," Hawkins said. "Toronto's trial attorneys did not reveal to the jury the full circumstances surrounding Toronto's so-called confession. They did not offer to the jury substantial mitigating evidence concerning Toronto's background. They failed even to present biological evidence that juvenile offenders have lesser capacity for reflective judgment
and impulse control than adult offenders. This should obviously not have been a death penalty case."

NCADP Executive Director Stephen Hawkins "renewed his call for Texas Gov. Rick Perry to acknowledge the role that race and geography play in the application of the death penalty, particularly as it relates to juvenile offenders,
and to stay Toronto's execution."

Here are some statistics in the press release:

Of the 80 juvenile offenders on death row in the United States, 51, or almost two thirds, are people of color. Of the 80 inmates, just over half -- 41 -- are from Texas or Alabama.

As to the company we keep:

"Only three countries -- the United States, Iran and the Democratic Republic of Congo -- are believed to currently execute juvenile offenders. Earlier this month, Pakistan announced it is sparing the lives of 72 juvenile offenders while in the Philippines, the Supreme Court ordered the removal of a dozen juvenile
offenders from death row, ruling that their execution would violate the law."

It is just plain wrong and contrary to human decency to execute those who committed crimes as juveniles. As Mr. Hawkins points out:

"The mind of a juvenile offender is by definition less developed than the mind of an adult. Juvenile minds do not handle social pressure, instinctual urges and other stresses the way that adult minds do. Juvenile offenders therefore cannot be held to the same degree of culpability as adults, just as mentally retarded people cannot be held to the same degree of culpability. We now ban the
execution of mentally retarded offenders. There can be little justification for applying a different standard when it comes to juveniles."

On a related matter, 160 death row inmates in Illinois are peparing to file clemency petititions by Monday.

Gov. Ryan initiated the moratorium in 2000 after after 13 Illinois death row inmates had been found to have been wrongly convicted. But he's leaving office in January. The due date for clemency petitions is Monday. Gov. Ryan also appointed a commission to study the cases. The commission issued a report recommending 85 changes to the Illinois death penalty system.

But Gov. Ryan isn't receiving praise today. Seems there isn't enough staff to review all the petitions in time to make a reasoned decision.

``I'm going to think about all these things and see how it all falls into place between now and when I leave,'' the Republican governor said.

"Bill Ryan, president of the Illinois Death Penalty Moratorium Project, said, ``That's ludicrous.'' ``That almost makes me speechless. We're talking about people's lives,'' said Ryan, who is not related to the governor.

And neither George Ryan nor Bill Ryan is related to Jim Ryan, who is running for Governor of Illinois and who Daily Kos today said was receiving his kharmic due for prosecuting Rolando Cruz many years back, another case of wrongful conviction.

While we are on the subject of false confessions and wrongful convictions, don't miss Daily Kos: Karma not on Ryan's side.

The Rolando Cruz case is one of the most infamous examples ever of police misconduct. We hadn't realized until Kos pointed it out the original prosecutor in the case, Jim Ryan, is now a candidate for Governor in Illinois. He's trailing in the polls which we agree, is his kharmic due.

Just to add a few more details about the Cruz false confession from the Northwestern University Legal Clinic:

"In his third trial in 1995 a key State's witness, Lieutenant James Montesano, recanted his earlier testimony that he was informed by Cruz's interrogators that Cruz gave a "dream statement" in which he related details of the crime only the killer could know. Montesano testified that he had actually been out of state at the time of Cruz's interrogation, so could not have been told of the alleged statement -- a confession which was neither videotaped nor even mentioned in police records. "

"Additionally, there was no other physical evidence nor any witnesses linking Cruz to the crime. After hearing the Lieutenant's recantation, DuPage County Circuit Court Judge Ronald Mehling delivered a verdict in Cruz's favor, ending the ordeal. "

"Only a year after Cruz was first incarcerated, another man, Brian Dugan, confessed to killing Nicarico after pleading guilty to raping and killing another girl and a woman. He has not been tried of the Nicarico murder, however, because prosecutors say that inconsistencies in his story make him unbelievable. "

They quote as sources:

Ken Armstrong & Christi Parsons, Half of State's Death-Penalty Cases Reversed; A Variety of Errors Found in 130 Trials, Chi. Trib., Jan. 22, 2000, at 1.

Man Jailed 12 Years is Freed in Trial for Girl's Killing; Acquittal Comes After Twice Being Convicted, Balt. Sun, Nov. 5, 1995 at 18A.

Check out the new online Intervention Magazine covering War, Politics,and Literature. Eric over at Hamster says it's an online gem.

Many thanks to Instapundit, Eric Alterman, Hamster, Atrios/Eschaton , Cursor, Volokh Conspiracy and others for quoting and/or linking to us this past week. Our hit counter soared!

We expect some serious outrage over news, received from Greg Greene and George Chang that the Delaware police are collecting citizen photos for use in investigating future crimes.

"The pictures, names and addresses of the people - mostly minority men - are being used to create a database of potential suspects to investigate future crimes, Police Chief Michael Szczerba said."

Some legal experts and prosecutors say the tactic is legal. "Criminal defense attorneys, the American Civil Liberties Union and minority groups say it is not."

Let's see what you think, after reading this description of how the new policy is being conducted:

"The police units taking the photographs are known in some Wilmington neighborhoods as 'jump-out squads' because they descend on corners, burst out of marked and unmarked vehicles and make arrests in seconds. Up to 20 officers make up each squad. "

"Police routinely line the people on the corners against a wall and pat them down for weapons...."

Then the police take the men's names and addresses, snap their pictures and send them on their way.

The police justify this as a Terry stop, "...named for a 1968 Supreme Court decision, Terry vs. Ohio, that allows officers to stop, question and frisk people they think are suspicious or people in high-crime areas."

Defense attorney Joseph A. Hurley disagrees with the police. Hurley says "police have a right to photograph a citizen walking home from a grocery store or a library, but they cannot take a picture of someone they are temporarily detaining. The second they say, 'We're the police, put your hands against the wall,' the photos become wrong. They're unconstitutional. Bad idea."

The police intend to use the photos for photograph lineups in future crimes. But are the police running a risk here? Will a future defendant charged with a serious crime on the basis of a lineup consisting of these citizen photos have grounds to get his case dismissed?

Defense attorney Eugene J. Maurer Jr. thinks so. "If they're not arresting these people and [are] using the loitering laws as a subterfuge just to get these pictures, I think there are some serious constitutional problems....Absent individualized suspicion, you're not supposed to be able to detain somebody."

The ACLU does not want the police to be "intimidating people who are lawfully assembled ... on the basis of loitering laws....And the retention of photographs is intimidating."

The police chief condescendingly responds with, "These are targeted, directed sweeps in high-crime areas where police have been turned loose to attack bad people...Good little kiddies in the wrong place at the wrong time are not getting their picture taken."

The NAACP is rightly troubled because the sweeps target the poor and minorities.

We object to the practice. It has a chilling effect on the first amendment right to freedom of assembly. We think Terry stops require individualized suspicion of wrong-doing, and hanging around a street corner in a known drug area falls far short of the test. Sure, the police can take pictures of people on the streets, just like tourists do--but they cannot detain them without suspicion of wrongdoing in order to get the pictures. Rounding innocent people up and lining them against the wall to get their pictures when they haven't done anything wrong is antithetical to both our criminal justice system and the core principles of a free society.

No legal challenges have been filed to the practice yet. We expect Delaware defense lawyers will bring them when the time is right.

For the rest of us, we think protests to this kind of practice should begin now. It's just another step in the "May I see your papers, please" process. Once the practice is accepted for those considered to be the lowest among us, it will eventually spread to the rest of us, and by then it may be too late to complain.

Eddie Joe Lloyd's confession had his signature, but the DNA did not. He is about to be released from prison after serving 18 years for a murder he did not commit.

Here's what happened:

After a series of fatal child abductions in Detroit, including the brutal rape and murder of 16 year old Michelle Jackson, the city was on edge.

Eddie Joe Lloyd was an involuntarily-committed patient at a mental hospital. He wrote the police letters about the crime. They came to the mental hospital to question him. He confessed. His detailed account, contained in a six page statement and on tape, was described as "chillingly accurate."

But...the confession was false.

"At a hearing on Monday, prosecutors and defense attorneys will appear together before the judge who sentenced Mr. Lloyd to life in prison in 1985, lamenting as he did so Michigan's lack of the death penalty. They plan to present DNA evidence to show that Mr. Lloyd is the wrong man and request his release."

What went wrong?

Barry C. Scheck, the co-director of the Innocence Project and Mr. Lloyd's lawyer, says "This cop had to know, he had to know, that he was feeding a paranoid schizophrenic guy, a guy with a mental disorder, in a mental institution, facts in order to clear a major homicide so everybody could look good," Mr. Scheck said. "If you permit this kind of questioning, you're going to end up not just with innocent people in jail but the real perpetrators still out there."

Scheck is calling for the criminal prosecution of case detective Thomas De Galan. He also has called for misconduct investigations into William Rice, the sergeant who oversaw the case, and the prosecutor, Timothy Kenny, because biological evidence available at the time that could have cleared Mr. Lloyd was never pursued.

Eddie Joe Lloyd will be the 110th person freed from jail after DNA evidence has proven their factual innocence. About 20% of these wrongful conviction cases involve false confessions.

A fairly simple remedy exists: Require the police to videotape all confessions. Currently only two states, Minnesota and Alaska, require this.

Michelle Jackson's case has been reopened. The DNA doesn't match anyone in the DNA databases. As with most of the 110 cases of wrongful convictions, this means that the real killer is still out there.

Now that's chilling.

A new report from the Justice Department's Bureau of Justice Statistics was released this afternoon. Probation and in the United States, 2001 has some disturbing figures.

The ever-increasing prison and correctional population in the U.S. reached 6.6 million at the end of 2001.

That means 1 of every 32 adults in America is now in prison, on probation or on.

The bulletin, "Probation and in the United States, 2001," was written by BJS statistician Lauren E. Glaze. Single copies may be obtained by calling the BJS Clearinghouse at 1-800-732-3277.

The full report is available online here.

As to what it all means:

"The overall figures suggest that we've come to rely on the criminal justice system as a way of responding to social problems in a way that's unprecedented," said Marc Mauer, assistant director of the Sentencing Project, an advocacy and research group that favors alternatives to incarceration. "We're setting a new record every day."

More stats:

"Texas had more adults under correctional supervision than any other state, 755,100. California was second with 704,900. Texas also had the most adults on probation, 443,684, followed by California at 350,768."

"Whites accounted for 55 percent of those on probation, while blacks made up 31 percent, statistics show. On the other hand, 46 percent of those incarcerated were black and 36 percent were white."

The number of women on probation and also increased.

Update: Instapundit took the words right out of our mouth but says them far more eloquently and persuasively than we could:

"How many people have to be under direct supervision of law enforcement before you have a police state? Whatever the number is, at the current rate of growth it won't take us long to get there. According to these DOJ figures one out of 32 American adults -- over three percent of the population -- is in jail, on, or on probation. This represents a whopping forty-nine percent increase over the last ten years. Most of this growth appears to come from nonviolent drug offenses. Another example of how the Drug War is leading -- in this case directly, not metaphorically -- to the creation of a police state.

Okay, I don't want to go over the top. But really -- prisons are hellholes for the most part. And some people deserve to be in hellholes. But not all that many. Certainly not this many. I think that future historians will look back on this mass imprisonment the way we look on the internment of Japanese-American citizens in World War Two."

U.S.A. Today reports Dr. Steven Hatfill again proclaimed his innocence and denounced Ashcroft at a news conference.

Hatfill has been so utterly outraged since the first day the media published his alleged involvement in the Anthrax mailings, he's convinced us and many others.

At today's press conference he said:

"I want to look my fellow Americans directly in the eye and declare to them, 'I am not the anthrax killer. I know nothing about the anthrax attacks. I had absolutely nothing to do with this terrible crime.'"

"My life is being destroyed by arrogant government bureaucrats who are pedaling groundless innuendo and half-information."

Hatfill's lawyers have filed an ethics complaint against Ashcroft and others involved in the investigation.

As Skippy said today over on his blog:

"Six words come to mind: wen ho lee and richard jewell."

Update: Instapundit tells of us Joel Mawbry's new article on NRO comparing Hatfield and Jewell and saying, basically, the Government ought to put up the evidence or shut up.

Joseph Salvati spent 30 years in prison for a murder he did not commit. The New York Times reports today that he has provided notice to the Department of Justice that he will sue the F.B.I. for $300 million.

The unusual part about his case is that the FBI, including J. Edgar Hoover, knew Salvati didn't commit the murder and let him languish in jail anyway. They were protecting their informants.

"The Federal Bureau of Investigation had evidence ahead of time that two well-known gangsters were planning a murder and that the head of the New England Mafia was involved."

"But when indictments in the case were handed down in 1967, the real killers — who also happened to be informers for the F.B.I. — were left alone. Four other men were tried, convicted and sentenced to death or life in prison for the murder, though they had had nothing to do with it."

Mr. Salvati's case "is the latest in a series of lawsuits against the F.B.I., the Justice Department and some F.B.I. agents growing out of the tangled, corrupt collaboration between gangsters and the F.B.I.'s Boston office in its effort to bring down the mob."

"The lawsuits are based on evidence uncovered in the last five years in a judicial hearing and a Justice Department inquiry. The documents show that officials at F.B.I. headquarters, apparently including Mr. Hoover, knew as long ago as 1965 that Boston agents were employing killers and gang leaders as informers and were protecting them from prosecution."

The new investigation has already taken down one retired agent, John J. Connolly. A jury recently convicted Connolly on racketeering and obstruction of justice charges for helping two other mob leaders who were F.B.I. informers, James Bulger and Stephen Flemmi. He is awaiting sentencing.

Salvati had his sentence commuted in 1997, and the murder charges were officially dismissed against him last year.

Two of his innocent but convicted co-defendants were not so lucky. They died in jail.

The fourth defendant, Peter Limone, was sentenced to die in the electric chair. His death sentence was overturned in 1974 when Massachussetts abolished its death penalty.

Limone and survivors of the two who died in prison have sued the FBI for $375 million.

There's one more unusual aspect to Mr. Salvati's case: His wife Marie stood by him during the 30 years he spent in prison and visited him every week.

The Salvatis now reside in a modest apartment in Boston's North End.

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The San Francisco Chronicle has a fascinating, informative, human-interest type article profiling a Chinese lawyer who represents death row clients in China with unusual success.

According to Amnesty International, there were "4,015 death sentences and 2, 468 executions in China last year, accounting for about 80 percent of executions worldwide." Amnesty believes that the actual number of executions in China is probably much higher.

Lawyer Li Yunlong has represented 16 of these death row inmates, winning reprieves for 12 of them. Sometimes his only pay is a basket of eggs.

Li doesn't get a lot of time to prepare his cases. "The appeals process sometimes lasts just weeks or even days. Sentences are carried out swiftly, often by a bullet to the back of the head soon after the verdict is read, in a public place, such as a stadium. "

His inspiration to defend death row inmates resulted from his having witnessed an immediate execution as a child.

Defense lawyers in China are a relatively new additon to their system.

"It has only been five years since China adopted the "lawyer's law," which created the role of a genuine defense lawyer for the first time in Chinese courts. Before that, the verdict and punishment were decided at a secret Communist Party meeting, and a lawyer's principal duty was to encourage the defendant to confess and acknowledge the correctness of the party's will."

"Even now, defense lawyers are sometimes arrested for attempting to thwart the authorities if they plead their cases too vigorously."

There is so much more to this article, you really should read it for yourselves--particularly on the history of the death penalty in China and the effect of other nations trying to reduce its use as a punishment, particularly for non-violent crimes. Pressure from other nations is having an effect on China, just as it will, we predict, have that effect here in the not too distant future.

Lawyer Li puts it this way: "My family taught me that one should walk without killing the ants," he said. "Killing is not the right way to solve problems."