Attorney General John Ashcroft is again under fire--this time for blocking attempts by Congress to review Justice Department counterterrorism policies and provide terror-related documents.

Republican Congressman F. James Sensenbrenner Jr. (R-Wis.), "has threatened to issue a subpoena for Ashcroft if answers are not provided by Labor Day."

Stay tuned....

New Jersey has settled three racial profiling suits for $250,000. This does not seem like a lot compared to what the state has been paying out the last few years.

In 1998, the then-Attorney General of the state admitted that troopers engaged in racial profiling after four minorities were shot at by two troopers on the New Jersey Turnpike. To date the shooting victims have received $12.95 million from New Jersey.

In addition, New Jersey has paid $5 million to black and Hispanic officers who say they were victims of discrimination.

For up-to-date information and documents on racial profiling, check out New Jersey criminal defense lawyer William Buckman's site.

Clay S. Conrad, the author of Jury Nullification, the book under discussion this week by Instapundit, How Appealing, the Volkh Conspiracy and others, has responded to TalkLeft's post on the issue. It's in the comments section of the post, but we are reprinting it here so more people can see it. Thanks, Clay!

"As so many are citing my book on here, I rather thought I should offer my own two cents worth.

First, it is useful to think of jury instruction as an affirmative defense that the law is unjust or is being unjustly applied. Now Eugene Volokh is concerned that juries will nullify defenses, acquitting the innocent. If a JN instruction is only available at the urging of the defense, however, there is no reason to believe this would increase nullification convictions (what I call "reverse nullification" in the book.) Defendants are unlikely to ask for nullification instructions in cases where they don't believe the jury is likely to go their way. And the State should never be able to request such an instruction, because, in the words of Duncan v. Louisiana, the purpose of trial by jury is to prevent oppression by government. (That's also one reason JN is mainly a criminal law doctrine: there is little government oppression in most civil cases, property forfeiture cases being the major exception to that rule.)

Secondly, it should be noted that in Old Chief, the Supreme Court noted that prosecutors are already permitted to put on evidence to establish the moral underpinnings of their cases. If they can do this, then certainly the defense should be entitled to reciprocal evidence showing that the law is not morally supportable. Once such evidence is in, the jury should have somewhere to go with it.

Many federal judges - like Judge Weinstein in NYC and Judge Hoyt in Houston - already broaden the scope of admissibility to allow a defendant to put on nullification evidence. And this, I think, is proper and good. However, it is ridiculous to allow the evidence in, and then not to give either instruction or allow argument as to how the jurors should use the evidence.

Jurors have a role to play as a pressure valve, as a regulator, in the American system of justice. We shouldn't try to seal off the safety valves too tightly, because when the pressure builds up it should be released. Thanks to the war on drugs and our increasingly prosecutorial society, the pressure can get pretty intense some time.

We need some common sense - and jurors are the best source for keeping the actions of the criminal justice system in line with the thoughts of the community. Prof. Norman Finkel, in his wonderful study Commonsense Justice, demonstrated that juries do a remarkably good job of reflecting public sentiment - a better job than the legislature can do. We need to let that voice speak, and then we need to listen to that voice very carefully.

Finally, I think being honest about jury nullification simply shows respect for jurors - to tell them "yeah, you have this prerogative, and this is how it is intended to be used, this is the purpose of this power which the Founders meant for jurors to retain."

I actually went for jury duty today, and was not seated in a civil case. The lawyers for both sides went on and on about how they wanted an impartial jury. During a break, the whole venire panel had a good laugh at those lawyer's expense. Everyone realized that NOBODY wanted an impartial jury. The judge was a possible exception, but he was more concerned with getting 12 people who'd come back on time from lunch than with whether they were partisan or not.

Let's treat jurors like adults. Let's tell them the truth about their role in our courtrooms. Let's tell them that if they cannot conscientiously convict, whatever the evidence, whatever their instructions, they retain the lawful prerogative to, in our former First Lady's words, "just say no." "

Clay S. Conrad

The Chicago Tribune has a good article raising both sides of the Hamdi Detention Issue--the detaining of American citizens as so-called "enemy-combatants" when no criminal charges are brought, when Congress has not officially declared a war, and when they have not been declared "prisoners of war." Is it legal for the President, as chief executive, on his own to withold basic constitutional rights from these people, such as the right to consult with a lawyer?

"One would hope that we don't start locking people up without giving them a lawyer, judge, jury and charges they can refute," said Frank Dunham, the public defender who has been appointed to represent Hamdi. "Mr. Hamdi is being held on an executive charge, with no opportunity to refute or counter the charge, and that is scary."

No kidding. We also agree that the chief executive shouldn't be able to trump the Courts. That would bring down our entire system.

"There has never been a court case that has acknowledged the unfettered right of the executive to detain--without trial, without any due process, without charges, without access to counsel--a U.S. citizen," said Kenneth Hurwitz, a senior attorney with the Lawyers Committee for Human Rights. "There is no precedent whatsoever for the power grab that they are asserting."

Here is the battle shaping up:

"Presidents traditionally are jealous guardians of presidential power, and this White House is perhaps more protective than most. If Doumar [the judge in the Hamdi case] maintains his insistence that Hamdi is entitled to a lawyer and higher courts back him up, and if the White House flatly refuses to comply, it could prompt a constitutional crisis, with the executive and judicial branches both insisting on their powers."

"If you're the president, there is a point at which you will tell [the courts] to go jump in a lake," [Northwestern University law professor Ronald Allen] said. "The risk here is that the courts will be ignored. That would be shattering."

Howard Bashman, author of the first, best and most informative appellate law blog How Appealing just issued TalkLeft a challenge:

"Will TalkLeft condemn today's action by Louisiana's Supreme Court because it removed from office a trial court judge whose conduct caused convicted criminals to obtain their freedom? Only time will tell."

You bet we criticize the Louisiana court's decision. Not because we delight in convicted criminals going free, but because the sanction of removal was far too harsh for this Judge's misdeeds.

First, we acknowledge, as did Sharon Hunter, the Judge under attack, that in the past several years her court lost key parts of trial transcripts resulting in 11 reversals including five murder cases. (Note, the sources for the quoted material below are New Orleans Times Picayune articles published August 19, 18, 17, 16 and 12--available on Lexis.Com.).

The Louisiana Supreme Court had several options in Judge Hunter's case: Upon finding she engaged in the specified misconduct, they could have censured, suspended or removed her. The Court chose the harshest sanction, removal.

Judge Hunter, and her lawyer, Jim Boren of Baton Rouge, one of the finest and most dedicated lawyers we know, argued that Judge Hunter should be disciplined, but not disrobed, and that she deserved a second chance. We agree.

First a little background. Six years ago, Judge Hunter became the first black woman to sit on the criminal court bench in New Orleans. She is a New Orleans native who received a bachelor's degree in political science from Xavier University and graduated from Southern University's law school in 1980.

Boren told the Court that Hunter was a rookie judge when the trial tapes in question were lost, and that despite the "public humiliation" of the past several months, being suspended from the bench and blasted by the Judiciary Commission, she wants to improve.

Boren charactarized Judge Hunter as a hard-working, honest judge who fell off track. He said this was in part attributable to the fact that as the first black woman judge in New Orleans Parish, she was an outsider who lacked the mentors that other new judges have.

As Boren pointed out, Judge Hunter was not the first New Orleans Judge to have problems with transcripts. She did not invent the problem. She did not do anything intentional in delaying them. The problems occurred early on in her judgeship, and she had tried to correct the problem. The record corroborated her improvement.

Judge Hunter personally apologized while appearing before the Lousiana Supreme Court for the mismanagement of her courtroom. But she also made it clear that while she would take the fall, part of the blame for messy record-keeping lay with former employees, particularly court reporters who routinely broke her rule against removing audiotaped recordings of trials from the courthouse.

In owning up to the problems, Judge Hunter told the Court,

"I've taken responsibility, and I do feel responsible as a judge and a supervisor. .. I fault myself for not doing something more aggressive in supervising former court reporters. It's a massive caseload over there. Court reporters frequently take tapes in and out. You trust them because they are licensed professionals."

Her lawyer said Judge Hunter is willing to have a supervisor present in court to help her improve her managerial skills. He compared the judge's management problems to "clumsiness, using an analogy of a child breaking its parents' priceless vase while dusting. It's broken, he said, but that is different than if the child had smashed the vase while playing ball in the house."

Hunter has undergone a "high-tech lynching" of her character, Boren said. (The same phrase was used by U.S. Supreme Court Clarence Thomas to describe his embattled 1991 confirmation hearings.)

Hunter acknowledged, through Boren, that she has not been great at accepting criticism or dealing with subordinates and problems. But neither have other judges. In a brief to the Court, Boren said, "Let the judge who is without those sins cast the first vote to remove her."

Boren said the Judge knows she has to "clean up her act." He also pointed out that one of her cases was resurrected last week after tapes of the trial were found by court staff. On Wednesday, the 4th Circuit Court of Appeal reinstated a murder conviction and life sentence for one of the affected defendants.

Charles Jones, one of the 4th Circuit judges deciding the case, acknowledged Judge Hunter's turnaround in a concurring opinion and wrote, "Much has been made of this district judge and her competence as a trial judge, but the newfound tapes prove she did her job."

Significantly, as Boren argued, Judge Hunter's administrative bungling and disorganized files came nowhere near the intentional misconduct of other judges who have been subjected to removal.

"This is not something evil, this is not a fraud or a theft," Boren wrote in his brief. "This is a judge who is poorly organized and is not a good administrator or manager but who is not incorrigible and who is not beyond redemption."

Many of Judge Hunter's constitutents support her. As one of them, Glenda Harper, wrote to the Times Picayune (published August 12),

"Selection of judges by the power elite (i.e. merit selection) is an idea whose time has passed. I am a 61-year-old black woman who remembers our struggle to get our constitutionally guaranteed right to vote. It amazes me that we are still fighting for our right to elect the people we choose. Your current editorials focusing on Judge Sharon Hunter as an example of the poor state of the judiciary are simply a smoke screen for your real agenda."

"Judge Hunter worked hard to campaign for the seat she now holds. The problems she faced as the only black female judge on the Criminal Court bench were not all of her making. The people of Orleans Parish elected her as judge. If they believe she is incapable of serving as judge, they can vote her out of office Oct. 5. "

"I remember from growing up in New Orleans that when white people were the majority in Orleans Parish, they elected all white judges. Now that black voters have the political strength to do the same thing, conservatives like Sen. John Hainkel offer "merit selection" for judges. What they really want is to retain the power to hand-pick judges. This would undermine the power of black voters in Orleans Parish and the choices we make at the polls. "

Since 1970, the Louisiana Supreme Court has removed only four elected judges. Bottom line, as her attorney Jim Boren said,

"Hunter is not asking for a full exoneration ... Punish her for the mistakes she made, but don't give her the death penalty."

Another lawyer, Darleen Jacobs, practicing 32 years in New Orleans said, give her some supervision, but don't kick her off the bench. "She cares about the community, which is more than I can say for some other elected officials. She's got my vote."

"We were not lazy. We were not indifferent to people's rights," Hunter said. "We do apologize for anything we have been charged with. By no means was any of it intentional. We apologize."

She has our vote too. The punishment should fit the crime. There was no fraud, no intentional misconduct, and the Judge clearly suffered from a lack of guidance. She should have another chance.

Howard, the ball is back in your court now.

Update: Howard has responded in an update to his earlier post, and Ernie the Attorney takes issue with our position. We'll grant Ernie some leeway as he hails from Lousiana, but we stand by our position: For negligence accompanied by an apology and a plan to improve, as opposed to illegal or fraudulent misconduct, it should be the voters who decide whether Judge Hunter stays or goes. She had planned to run for re-election on Oct. 5, and now she can't. Her district has been effectively disenfrancished by the Court.

(but, Ernie was correct that we incorrectly identified the court Judge Jones sits on, and we've corrected it.)

The Cardozo Law School Innocence Project, led by esteemed lawyers Barry Scheck and Peter Neufeld, have a new, continually updated feature on their website called DNA News.

The column is written by Peter J. McQuillan , who retired in 1992 after serving 21 years as a Justice of the New York State Supreme Court. He is presently a member of the State Commission on Forensic Science and the Criminal Jury Instructions Committee.

We highly recommend adding the column to your bookmarks.

Findlaw Columnist Joanne Mariner today discusses the case of Abdallah Higazy and its potential ramifications.

Higazy is the 30 year-old Egyptian grad student with a valid visa. who was detained after a security guard at the Millenium Hilton Hotel, located across the street from the World Trade Center attack site, claimed to have found an aviation radio his room on Sept. 12.

Later, the radio was claimed by an American Airlines pilot. By that time, Hgazi had been interrogated outside the presence of his lawyer and intimidated into falsely confessing the radio was his.

Mariner examines the consequences of the government's position that lawyers must be excluded from the interrogation process because "they would pose an impediment to intelligence gathering" and, get this, "undermine the interrogation dynamic."

Mariner says that the Higazy case and those of other detainees being held as material witnesses and on immigration charges "... suggests that the desired atmosphere for interrogations is one of intimidation rather than trust, and that the denial of legal counsel may result in injustice rather than the collection of accurate information."

In court documents made public last week, the judge in the Higazy case, the Hon. Jed Rakoff, ordered prosecutors to investigate the FBI's conduct of the investigation. He feels they misled him at hearings in the case.
Mariner's article is thorough, well-researched and should give all of us pause to wonder exactly what it is our federal prosecutors and the Justice Department are doing behind closed doors.

Murder Victims Families for Reconcilition today released a new report, Dignity Denied.

The report reveals the bias against surviving family members of murder victims who oppose the death penalty.

"From prosecutors, judges, police officers, policymakers, and the victim services community, victims’ family members who oppose the death penalty seek two things: awareness of our perspective and recognition that victims who oppose the death penalty are as deserving of respect and dignity as those who support it. "

"Today, as MVFR publishes this account of silencing and discrimination against anti-death-penalty victims, we are not aware of a single protocol in the office of any prosecutor in the United States that alerts victim assistants to the possibility that some family members of victims may oppose the death penalty and that they are entitled to the same assistance as those who support it."

"Some advocates see victims who oppose the death penalty as more closely identified with the defendant than with their own status as victims, thus rendering them ineligible for or undeserving of advocates' help....Such a view disregards the possibility that survivors may oppose the death penalty for
their own reasons, not because of sympathy for the murderer."

"Dignity Denied" challenges lawmakers, the federal government's Office of Victims of Crime, and leaders within the victims' services community to address past and current discrimination and commit to equitable treatment of survivors of homicide victims. "

"Specifically, the report recommends that victims' rights laws should be amended to ban discrimination based upon a victim's position on the death penalty; victims' services should be administered independently, not as part of the prosecutor's office; and leaders in the victims' services community should develop protocols for serving victims' families who oppose the death penalty."

For those of you who are not familiar with MVFR, here is a portion of their mission statement:

"Founded in 1976, Murder Victims’ Families for Reconciliation is a national organization of family members of both homicide and state killings who oppose the death penalty in all cases. Our mission is to abolish the death penalty. We advocate for programs and policies that reduce the rate of homicide and promote crime prevention and alternatives to violence. We support programs that address the needs of victims, helping them to rebuild their lives."

And here is the statement of Marie Deans, founder of Murder Victims' Families for Reconciliation"

"After a murder, victims' families face two things: a death and a crime. At these times, families need help to cope with their grief and loss, and support to heal their hearts and rebuild their lives. From experience, we know that revenge is not the answer. The answer lies in reducing violence, not causing more death. The answer lies in supporting those who grieve for their lost loved ones, not creating more grieving families. It is time we break the cycle of violence. To those who say society must take a life for a life, we say: 'not in our name.' "

Howard Bashman and Instapundit both have thoughtful pieces on jury nullification as a result of the Ninth Circuit's recent decision on the issue of whether a grand jury must be told that even if they find probable cause that a person has committed a crime, they do not have to indict the person. (Note: The majority opinion did not have a good ending, from our point of view-- we liked the dissent.)

Like Instapundit, we also give a "thumbs up" to Clay Conrad's book, titled Jury Nullification: The Evolution of a Doctrine.

Update: Since Howard and Professor Reynolds don't quite agree on the subject, we thought we'd weigh in.

Howard says, "Jury nullification is something our system endures because there's no other alternative, but it's not something to be encouraged. "

The Professor says,

"... As unfolding scandals in every big city illustrate, murder of innocents, planting of evidence, and perjury by police officers - all winked at by prosecutors who depend on the cooperation of police - is rampant. *696[ FN41] Such abuses can no longer be described as the occasional errant behavior of a few bad apples; they are systemic and deeply embedded. At the same time, many crimes go unpunished, even untried, in those same cities - and there is a suspicious correlation between the wealth and fame of defendants and the likelihood that they will escape prosecution."

"Given that the current criminal justice system is failing both at convicting the guilty and at protecting the innocent, perhaps it is time for a significant change. Reempowering the jury, through both appropriately couched nullification instructions and other structural mechanisms, is likely to improve the situation considerably. "

We side with the Professor on this one.

Update #2: Professor Eugene Volkh has now weighed in on the topic. He has concerns about how jury nullifcation would work in practice.

Polygraphs are entering the mainstream. Law enforcement is now being joined by insurance companies, employers and businesses in the use of the dubious device.

Add to the traditional polygraph, newer devices such as those that purport to "analyze a person's voice, blush, pupil size and even brain waves for signs of deception," and you get the picture.

But no studies have ever proven that lie detectors work. They are about as reliable as a coin toss. The vast majority of courts don't allow them as evidence for good reason--they have never been shown to be scientifically reliable.

And then there's the moral issue: "The recent proliferation of lie detectors has reignited a decades-old debate over the ethics and politics of when and how they should be used and whether such important questions as guilt or innocence should be left to machines."

And finally, what a lot of people overlook, is that the true value of using a polygraph to law enforcement is not in the machine's ability to determine if the suspect is lying, but in the pre-test interview phase of the process in which the investigator tries to elicit a confession from the suspect. Such as, by telling the suspect that the machine will be able to detect any lies, so they are better off fessing up now. Such as by manipulating the suspect's memory of events and manufacturing other memories such that the suspect begins to doubt his or her own memory and begins to believe the interrogator's version is correct--leading to a failed polygraph.

We could go on and on, but you get the point. It's bad enough law enforcement relies so heavily on these ouija boards. For it to spread to the public at large where people's livelihoods and careers are in the balance, is dangerous.

Here is a free, digital, downloadable, printable book The Lie Behind the Lie Detetor from Anti-Polygraph.Org. which has lots of links and additional information.

The CrimeLynx Forensic Page has carried a link to Anti-Polygraph.Org for years. It is informational and continually updated. We just checked and it currently has information on Dr. Steven Hatfill's polygraph and the recent refusal of Congressional members to submit to the test.

In a first of a kind opinion, a Ohio Judge has rejected the death penalty due to its cost.

"While the court has authority to approve expenses, it would be disingenuous to suggest that a trial judge can consider such requests without an awareness of the financial impact on this county. The court finds that the potential impact of financial considerations could compromise the defendant's due process rights in a capital murder trial."

The prosecutors' response: They asked for reconsideration and filed an appeal.

Thanks to Patrick McCarthy of Astronomical Facts who referred us to Gotcha! in today's Washington Post on the dangers of media coverage of suspects, and opines:

"The media has become the judge, jury and executioner in today's society. From the high profile cases of today the suspects and "persons of interest" are convicted in the media before charges are filed."