The ACLU remains critical of "Operation Tips" even after the Justice Department's "scale down" announcement. It has started a new web page Please Help Us Turn Back the Assault on Freedom where you can vent your frustration and opposition to the ill-conceived plan. From the Site:

"Help the ACLU stop the snooping ! Reverse the Bush-Ashcroft agenda to undermine our most cherished freedoms."

It offers links enabling you to :

"Send a free fax to your Senators.

Send a Special Request to Your Utility Companies asking for their pledge not to spy on their customers.

Download a printable door-hanger to let others know that the privacy of your home is protected by the ACLU.

Spread the word about the ACLU's TIPS Watch Web site.

Use the links below to join now or give additional support to the ACLU. "

We're spreading the word. As we have been since the plan was first reported. If you missed some of our early criticism, visit : Operation Tips: Another Assault on the Constitution and A Distinction Without A Difference

U.S. District Judge Jed Rakoff (Southern District of NY) believes the Government misled him in the case of Abdallah Higazy, the Egyptian who was detained for 30 days after the FBI arrested him alleging that an aviation radio was found in his hotel room overlooking the World Trade Center. Turns out, a pilot later acknowledged the radio belonged to him and a security guard, who had claimed to have found the radio in Higazy's room safe, recanted his story.

Today Judge Rakoff ordered the release of more than 100 pages of court documents in the case.

At a hearing on March 18, Judge Rakoff expressed concern over misleading statements by a prosecutor about a supposed confession by Higazy, made during a polygraph test. The confession was false. Hizazy says the FBI extracted the confession by making" veiled threats" against his family in Egypt.

Charges against Hizazy were ultimately dismissed.

A Jury of Your Peers? Only If You're Clueless is a frightening portrait of jurors today.

Experts say that a decade of studies show that jurors do not understand the concept of "reasonable doubt" and frequently misunderstand such basic concepts as "mitigation."

One solution according to the author: Written instructions in plain English. They help a juror understand. What is plain English? English at the level of a sixth grader.

Also recommended: Judges should be more juror-friendly and responsive to juror's questions.

And this should come as no surprise: Studies show that jurors are most confused in capital murder cases.

Judge Gladys Kessler, the federal judge who issued the order directing the Government to release the names of the detainees, has granted a Government request for a stay pending its appeal of her ruling to the D.C. Circuit Court of Appeals. The AP says the appeals court ruling could be months away.

Mexico's President Vicente Fox has cancelled his trip to the U.S. following Texas' refusal to accede to their request to stop the execution of a Mexican citizen who was not afforded the opportunity to consult with the Mexican counsulate after his arrest.

A Fox spokesman said the trip, which had been scheduled for Aug. 26-28, was seen as "inappropriate under these lamentable circumstances."

""Mexico is confident that the cancellation of this important presidential visit contributes to a strengthening of the respect by all states of the rule of international law," Mr. Elizondo said. "[Mr. Fox] is convinced that his position of repudiation of the death penalty is the correct posture. ... The Mexican government will continue defending the rights of all of our citizens abroad, independent of the charges against them."

We're convinced Mexico is right as well. We also think that international opposition to America's death penalty is growing and becoming more vocal. We want it to become a roar.

The Justice Department reaches a new low today in the case of James Ujaama. Arrested in Denver as a material witness in the 9/11 investigation. Ujaama allegedly sold laptops to the Taliban before Sept. 11 and maintained a website with Anti-American sentiment. He had a secret hearing in Denver after which he was moved to Alexandria, VA.

His family couldn't find him after the move. Why? The Justice Department is holding him under another name. Charlie Brennan of Denver's Rocky Mountain News writes about it today in Security lid clamped tight on Ujaama case.

We are not great fans of informants and snitches. Criminal defense lawyers have represented far too many people who have been subjected to, and in many cases received, double-digit sentences based on lying snitch testimony and little or nothing else.

Since 1987, when the U.S. Sentencing Guidelines went into effect, one of the few ways a defendant can get a sentence reduction from the draconian federal drug penalties is to provide information that assists the government in its investigation or prosecution of someone else.

We consider the testimony of these people to be "purchased testimony," testimony that is purchased by the Government with promises of leniency or freedom. Think about it -- freedom is a far more precious commodity than money.

Now to the point. Jailed Informant Wants Protection tells the story of an informant who provided key testimony in the trial of Cali drug operatives who were charged with killing a crusading journalist. The informant is accusing the Government of not living up to its promise to protect him because several of his family members later were killed in a bloody retaliation in Colombia.

"John Harold Mena said five family members, including his 77-year-old father, have been killed since he agreed to cooperate with federal prosecutors in the 1992 slaying of Manuel de Dios Unanue."

The Government apparently is not disputing this. "U.S. authorities have confirmed Mena's family is under siege, and say they are investigating his latest claims. They believe [the cartel member who ordered the hit on the journalist and was captured in Colombia in 1999] may have ordered retaliation from jail."

Now Mena was no minor player in the killing of the journalist. He admitted in his plea that he was one of the hit men. And he chose to be an informant, knowing the risks of possible retaliation. But he didn't get a walk for his testimony. He got 18 years and he's serving the sentence. With a sentence that long, you don't go to a Club Fed. You are behind the walls, and that is hard time.

Mena has asked for a court-appointed lawyer to represent him in his claim against the Government. Today's New York Times says the Judge granted this request, and will likely schedule a hearing soon. As much as we don't like snitches, we support his right to a full and fair hearing. Why? If the Government is going to turn people into informants and promise them protection, it ought not abandon the person after obtaining the favorable testimony it bargained for.

Mena alleges that in exchange for his testimony, prosecutors promised him that the Drug Enforcement Administration would bring his family to the United States. "He claimed he gave the government names of family members who were at risk, but the DEA refused to protect them because agents 'no longer needed my assistance.' "

There has been no comment on his allegations by the DEA.

While this case involved a drug-related murder, the vast majority of cases involve just drugs. Without the draconian mandatory minimum penalties for drug offenses, for which there is no, defendants wouldn't have to choose between going to trial and risking a life sentence and pleading guilty, cooperating and receiving a lesser sentence.

Perhaps if the risks of cooperation become more publicized, and as defendants come to realize their "snitch jacket" follows them into prison making their time there much more dangerous and unpleasant, they will choose to "just say no" when the feds come calling.

We lawyers like to think that one day, "Nobody Talks, Everybody Walks" will be a reality. It often was in the old, pre-guideline days.

Thanks to the incredible amount of hard work and long hours contributed by DailyKos, we are transforming the TalkLeft weblog today. It will have a new look and new content--and the blog and the home page will be one and the same.

There will be a redirect link on the current blog url as well as the TalkLeft Today page, so you don't need to update your link list yet, but soon, please change your link to us to to simply www.talkleft.com

The other sections of TalkLeft (crime policy, injustices, politics and legislation and media) have also been redone to fit the new look and will be accessible on the blog page.

And of course, our unique newsfeed from our sister site Crimelynx will continue to appear on the left side of the blog, updated several times a day with hand-selected news and opinion articles.

Other talkleft pages (the forums and 2000-2001 archives) will be accessible on CrimeLynx.

Hopefully there will be no glitches, but if there are, please be patient and keep checking back.

And thanks again to DailyKos who has a particularly insightful political blog that has been really gaining steam lately, with Hamster, Cursor and others quoting directly from his writings.

Just in from the Marijuana Policy Project on the upcoming Nevada ballot initiative to end arrests and prosecutions for personal possession of up to 3 ounces of marijuana:

"With only 12 weeks to go, our Nevada ballot initiative campaign is in a dead heat. And some police officers are possibly breaking the law
-- and certainly lying -- in their desperate scramble to try to defeat us.

The Reno Gazette-Journal, the largest newspaper in Reno, has released a statewide poll showing that 48% of the voters are planning to vote
for our initiative, 48% are opposed, and 4% are undecided. Our campaign is closing the gap ...

A week prior, a statewide poll conducted by the Las Vegas Review-Journal found 44% in favor, 46% opposed, and 10% undecided."

They need contributions to be used for a tv campaign blitz. Please give if you can.

The Sixth Circuit Court of Appeals ruled today that the Supreme Court's decision in Atkins v. Virginia (June 20, 2002) banning the execution of the mentally retarded is retroactive.

The case is Hill v. Anderson, No. 99-4317, --- F.3d ----, 2002 WL 1836589. Here is the link for a free copy from the Sixth Circuit website.

Thanks to Chris Adams, NACDL Death Penalty Resource Counsel at the Southern Center for Human Rights for the alert.

The Justice Department yesterday released a proposed new rule on relief from deportation in response to last year's Supreme Court ruling in the St. Cyr case.

The Justice Department's analysis of the St. Cyr. decision is as follows:

"The St. Cyr case resulted from five years of litigation involving the application of two statutes that Congress enacted in 1996. The first statute -- the Antiterrorism and Effective Death Penalty Act (AEDPA) enacted on April 24, 1996 -- barred section 212© relief for permanent resident aliens with very serious criminal convictions. The second statute -- the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA) enacted six months later -- eliminated section 212© relief altogether."

[In St. Cyr] "the Supreme Court disagreed with the government’s interpretation. The Court held that Congress did not clearly intend to apply the AEDPA amendments to aliens who were placed in deportation proceedings before the statute’s enactment, or to aliens with relief applications pending on the date of enactment. The Court further held that applying the statute to
these aliens may attach unexpected consequences to their past criminal conduct -- that is, it would deprive them of the opportunity to apply for section 212© relief for which they were eligible at the time of their convictions by plea agreement. "

"Thus, the Court concluded that, notwithstanding AEDPA and IIRIRA, aliens whose convictions were obtained through plea agreements could still apply for section 212© relief, if those aliens, notwithstanding those convictions, would have been eligible for section 212© relief under the law that was in effect at
the time of their pleas."

The newly proposed rule establishes "procedures for eligible lawful permanent residents (LPRs) with certain criminal convictions, prior to April 1, 1997, to apply for relief from deportation or removal under former section 212© of the Immigration and Nationality Act. This relief is available to eligible individuals who are currently in immigration proceedings, who may be placed in removal proceedings, or who have completed immigration proceedings and are under final orders of deportation or removal. It does not apply to those who have already been deported from the United States."

Eligible individuals who are under final orders of deportation or removal who are still in the United States must apply for this relief within 180 days after the publication of the final rule.

The rule is published in the Federal Register and can be accessed here.

The Executive Office for Immigration Review has published a six page question and answer sheet on the relief provided under the new rule.

A step in the right direction, for sure. But the proposed rule does not provide relief to people who have already been deported which means that these people would be unable to reopen their cases or return to the United States even though their deportation came about through the government's mistaken interpretation of the law. This should be changed.

We expect many groups will be submitting comments on the extreme unfairness of the lack of provision for persons already deported.

[comments now closed]

Congratulations to Dennis Archer, selected today to be the first African American President of the American Bar Association

Mr. Archer is a past Michigan Supreme Court justice and two-term mayor of Detroit. Here's a description of his background:

"Archer, a native of 1,500-resident Cassopolis, Mich., grew up in a home with no indoor plumbing and took weekly baths in a metal tub. His father had a third-grade education and couldn't find good work after he lost an arm in a car accident. Archer started working at age 8 with odd jobs like setting up bowling pins and caddying at a golf course."

Some interesting factoids: For the past 125 years, all of the ABA presidents have been white. There are 408,000 lawyer-members in the ABA. Until 60 years ago, blacks were banned from membership in the organization.

"While its ban on black members was in place, the ABA checked to make sure applicants were white. There was an effort to run out several black lawyers after they slipped through the application process in 1912."

The ban was lifted in 1943, but not until 1986 did the group begin seeking active recruitment of minorities.

The group acknowledges their horrid past. It offers no excuses, but there is plenty of tangible evidence the group has changed. Two incrediblyaccomplished and committed women, Roberta Cooper Ramos and Martha Barnett have been President in recent years. We are proud to know and have worked with both of them. And another African American lawyer, Robert Grey Jr. of Richmond, Va. , will follow Mr. Archer as President in 2004-2005.

We give high marks to the ABA this year--for its stands against the treatment of detainees and in support of civil liberties, for its criticism of the death penalty as applied in this country and for making the final break with its past by electing Mr. Archer President.

If we weren't already a member, we'd join today.