Update: The Innocence Protection Act is scheduled for markup before the Senate Judiciary committee tomorrow (session starts at 10:00 am).

Why do we need the IPA?

So we never read another opinion like this one -- Burton v. Nixon, July 8, 2002, 8th Circuit Court of Appeals: (link to full text)

"Darryl Burtonís habeas petition depicts a troubling scenario. One cannot read the record in this case without developing a nagging suspicion that the wrong man may have been convicted of capital murder and armed criminal action in a Missouri courtroom.

Burton was convicted on the strength of two eyewitness accounts. Since his trial and imprisonment, new evidence has come to light that shakes the limbs of the prosecutionís case. One eyewitness has recanted and admitted perjury. The other eyewitnessís veracity has been questioned by a compatriot who avers it was physically impossible for him to have seen the crime.

A layperson would have little trouble concluding Burton should be permitted to present his evidence of innocence in some forum. Unfortunately, Burtonís claims and evidence run headlong into the thicket of impediments erected by courts and by Congress. Burtonís legal claims permit him no relief, even as the facts suggest he may well be innocent. Mindful of our obligation to apply the law, but with no small degree of reluctance, we deny Burton a writ....

....we have squarely rejected the notion that a prisoner may receive a writ simply because he claims he is innocent. ì©laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.î Meadows v. Delo, 99 F.3d 280, 283 (8th Cir.
1996) (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)).

For more on the bi-partisan Innocence Protection Act currently before Congress.

The first man sentenced to death under New York State's death penalty law has won a reversal. The 1995 law under which he was convicted was declared unconstitutional.

"The Court of Appeals ruled 6-1 that the law at the time of Darrel Harris' trial violated his constitutional right to a trial by jury by offering him an incentive avoiding death if he pleaded guilty and accepted the sentence of life without."

A month after deciding Moussaoui was competent to represent himself, the Judge may be having second thoughts. Judge Brinkema correctly noted "The competence of a defendant must be considered by a court whenever the issue is properly raised." Prosecutors weren't too happy with that one.

Stand-by counsel told the Judge that Moussaoui is unstable. In today's unsealed pro se filing, he compared his situation to that of Lee Harvey Oswald, fearing a similar assasination. "Or they migh (sic) claim that I committed suicide. After all they already have done the ground work by claim (sic) that I was mentally unstable, paranoid."

The special session of the Colorado legislature called by Governor Owens to fix the state's death penalty law began yesterday. For the past several years, Colorado has been using a three judge system, the kind ruled unconstitutional by the Supreme Court two weeks ago.

Owens is wisely requesting the legislators go back to a unanimous jury system as that apparently passes Supreme Court muster. Others are suggesting an abolition (our choice) or a non-unanimous jury system (doubtful that would be constitutional.)

Yesterday, a former death row inmate, one of the 101 freed from death row after being found factually innocent, told his story to the legislators.

Two good columns on his testimony: Time is Short for Officals and Inmates by Diane Carman in the Denver Post and Mike Littwin's There is No Such Thing as a Free Ride on Death Row in the Rocky Mountain News.

We don't want a death penalty. But if we have to have one, and apparently we do for now, let's make it as fair as possible by returning to a system where the jury that decided the accused's guilt must thereafter unanimously make the life or death decision.

Bruce Fein's take on the Pledge of Allegiance uproar in the Washington Times.

Jesse Jackson calls Bush and Ashcroft "the most threatening combination in our lifetime."

We think the Van Dam murder trial, coming to an end in San Diego, may have prompted this San Francisco Chronicle article on the increasing number of swingers, clubs, conventions and resorts devoted to them.

Danielle Van Dam was the 7 year old San Diego girl kidnapped from her bedroom and found dead days later. Westerfield, a neighbor with a motor home, was charged and is on trial. If convicted, he could face the death penalty. Court TV has been covering the trial live.

A hot debate topic in the case is whether the defense is engaging in "victim-bashing" in highlighting the parents' swinging lifestyle which included bringing strangers to their home for pot and sex parties. The case is circumstantial in that no one saw Westerfield with the girl that day and nothing links Westerfield to the Van Dam home. Witnesses yesterday testified that the mother was "dirty dancing" with Westerfield at a bar called Dad's the night of the murder, giving him a possible explanation for any hair and fibers that may have been found in his motor home. They transfer easily. Plus the mother denied on the stand that she danced with Westerfield that night. She did admit to all the swinger stuff though.

We believe it would be grossly negligent not to bring up the parents' lifestyle. The fact that they brought strangers into their home to have sex makes it possible that one of them committed the crime. While DNA of Danielle's was found in Westerfield's home, as were pornographic images on his computer, evidence was also brought out that Danielle had been in Westerfield's motor home the week before she disappeared selling girl scout cookies and his son shared his computer and the downloaded images may have been his.

We feel sympathy for the Van Dams, who lost their daughter. But a man is on trial for his life, and the evidence of who was in their home and when is relevant to make that trial fair.

Thanks to the Washington Post Editorial, "Still No Lawyers" for reminding us that Hamdi and Padilla are still sitting in military brigs, not charged with any crime and unable to meet with lawyers. All because the executive branch says they have the sole right to declare someone an "enemy combatant."

This is an arrogant usurption of power as we have mentioned here before. We'll bump this comment:

"We think the military has the right to accuse someone of being an enemy combatant but it should be a judge who makes the decision. In open court. At a hearing where Hamdi is afforded a right to a lawyer, the right to review the evidence against him, and to call and cross-examine witnesses. Until and unless a court determines he is an enemy combatant, he should retain his rights as an American. To say otherwise means the Government can brand someone with a label and then imprison them indefinitely, even forever. We think that's way too much power to give the Government."

By the way, anyone see the ABA's ad promoting the Constititution that started in newpapers yesterday? If you do, send us the link so we can post it, ok? Thanks.

Thirteen New Jersey state troopers who filed racial discrimination claims against the state police, alleging they were harassed, hazed and denied promotion, have agreed to settle their claims for a total of $4 million. The lawyers will get an additional $1 million. The settlement was a decade in the making--the case started in 1993 when a complaint was filed with the EEOC.

New Jersey has plenty more to worry about from two pending class action lawsuits by all minority motorists stopped by state troopers who claim that their civil rights were violated because of racial profiling. Settlements or trials could result in millions more in damages paid out by New Jersey.

Crime is paying off big time for white collar criminal defense lawyers, particularly in California where securities fraud busters have been busy beavers. Seems that the the SEC investigators and federal prosecutors are using a "tag team approach," making defender advice essential even at the negotiating phase.

The large retainers are now being welcomed by the big firms that have seen a drop-off in corporate work.

The cop has been suspended.

Today was the filing deadline for any remaining motions pro se defendant Moussaoui wants heard by the Court. Among them are a motion complaining that the FBI used an electric fan planted on his car to track his movements prior to September 11, and another in which he compares President Bush to the Roman emperor in the movie "Gladiator."

"The one who say that he was going to return honors to the office was definitely talking about Ceasar Type Honors like in Gladiator: Stabbing the enemy in the back before the fight. Not surprising for Daddy son. Leading (or I must say cheating) from the back," he wrote.