Following Maxspeak's lead yesterday, Talkleft is proud to become today's site of the day at The People's Republic of Seabrook. We were advised to take it in stride as most of the readers over there "tend to be heavily medicated and/or deeply disturbed." That's okay, if they can read, we'll take them and we appreciate the recognition.

Why should we hang the man, let him hang himself. We think that's the subtext of Judge Brinkema's ruling yesterday that she would not stop Zacarias Moussaoui from testifying before Congress or a federal grand jury. The feds are apparently inclined to take him up on his offer.

And while the Judge ordered two of his counsel to go with him, Moussaoui won't speak with either of them.

Moussaoui claims he has evidence that the FBI had him and the hijackers under surveillance before September 11 and before his arrest. He says that the government wanted the terrorist attacks on September 11 to go forward so the United States could later destroy Afghanistan. And that therefore the Government would not have arrested him if they thought he had anything to do with the conspiracy.

Moussaoui said in letters that he doesn't think he will be allowed to bring his evidence out in his trial so he wants to bring it to the American public. He also wants to to speak with the media.

Meanwhile, his court appointed lawyer filed a motion with the Court describing the evidence against him: 400 audiotapes, 170 CD-ROMs, two videotapes and 755 pages of documents that all were classified. Moussoui is not allowed access to the classified information because he won't use a lawyer. An additional 1,217 audiotapes, 296 videotapes and 202 computer hard drives are useless to Moussaoui because he does not have the equipment to view or hear them.

You can peruse or read the significant filings in the Moussaoui case here.

For those who haven't read it recently, here is the Declaration of Independence.

There are some good reads in the July 22 The Nation now on line:

Re-thinking the Death Penalty by Bruce Shapiro posits that politicians are taking their cues from growing public opposition to capital punishment.

John Nichols talks about how the White House is "packing the judiciary with extreme rightwingers like Texas judge Priscilla Owen" in Karl Rove's Legal Tricks

And a variety of writers express their feelings about patriotism. Many on the left apparently doesn't like patriotism, believing it to be a blind devotion to the government. Others just feel awkward about it.

Our belief, at least with respect to America's criminal justice system, which is the focus of this weblog, is that despite all its faults, and there are many (failure of Congress to abolish the federal death penalty, pass the Innocence Protection Act or eliminate mandatory minimum drug sentences to name some,) it is still the best criminal justice system in the world.

Think of the alternatives--countries without the presumption of innocence, the right to confront one's accusers, trial by jury requiring unanimity of verdict, or proof beyond a reasonable doubt.

We like the portion of the comments by Erwin Kroll, Editor of the Progressive , in explaining how he started celebrating Independence Day. "It's something we started doing when Richard Nixon and his pals were sporting American flag pins in their lapels. Damn it, we thought, it's not their flag, it's not their country, and we're not going to let them steal America from us."

We don't see patriotism as supporting war but supporting the freedom to dissent from war and other uncacceptable government practices. Along this line, and far more eloquently stated, read Sharon Basco's Tom Paine interview with Historian Howard Zinn titled "Dissent In Pursuit Of Equality, Life, Liberty And Happiness." To paraprhase, dissent is the highest form of patriotism. Patriotism does not mean support for the government. Government is a but an artifical creation to carry out certain ends, like life, liberty and the pursuit of happiness, and when it acts contrary to those ends, it is our duty to disobey it and nothing could be more patriotic.

TalkLeft would like to turn this page over to you readers through this holiday weekend. Mail us your thoughts on civil liberties, the Patriot Act , the state of the nation, the death penalty, the terrorism trials, whatever you think is relevant, and we'll post as many as we can with links back to your sites if you wish. Anonymous is fine too.

Happy Independence Day from us here at TalkLeft

Kudos to Judge Jed S. Rakoff for his courageous and well-reasoned decision in U.S. v. Quinones declaring the federal death penalty unconstitutional and violative of due process because there is too big a risk that innocent people are being executed.

Since 1973, 101 people in 24 states have been released from death row with evidence of their innocence. Check out this breakdown by state and year. To understand how this can happen, take a look at Convicted By Juries, Exonerated by Science, a study commissioned and published by the National Institute of Justice, the research arm of the Department of Justice, and cited by Judge Rakoff in his decision.

Reporters and commentators are noting Judge Rakoff did not rely on the 8th Amendment's ban against cruel and unusual punishment to arrive at this conculusion. He looked at the irrefutable and steady data that has been pouring in the last few years proving that more than 100 people have been found factually innocent after being sentenced to die. Among the most important of studies in recent years is A Broken System: Error Rates in Capital Cases, 1973-1995, by Professors James Liebman and Jeffrey Fagan of Columbia University, also relied upon by Judge Rakoff.

DNA often is not available for years after conviction to prove innocence. How does one prove one's innocence after he's dead? We agree with Judge Rakoff that this is a due process violation. Could there be a bigger one?

And while we are cheering Judge Rakoff, let's not forget to send loud hoots and raspberries to Attorney General John Ashcroft.

From the ACLU : "Recent reports show that since taking office last year, Attorney General Ashcroft has reversed the recommendations of his agencyís own prosecutors at least 12 times ñ each time ordering them to seek execution in cases where they had recommended against doing so. This aggressive pursuit to execute is unconscionable when so many questions about fairness continue to exist. "

The New York Times had an excellent editorial today commending Judge Rakoff and his opinion. For analysis of the opinion, we like Daily Kos who got right on it yesterday. Tom Perrotta of the New York Law Journal is also worth a read.

Where do we go from here?

Call and fax your elected officials in Washington to get on the ball and pass the Federal Death Penalty Moratium Act and the Innocence Protection Act.

Then let's study the problem without anyone being at risk of wrongful execution. For more information about these bills, and what you can do to help, check out The Moratorium Campaign and The Justice Project Press Information Kit.

Dean Schabner of ABC News reports that cities across the country have been quietly staging a revolt against the USA Patriot Act, saying it gives law enforcement too much power and threatens civil rights.

Three of the cities are Berkely, CA, Cambridge, MA and Ann Arbor, MI. Those who spent their college years protesting there thirty years ago are undoubtedly proud to see that these college towns are still fertile hotbeds of skeptism and activism when it comes to the federal government.

City officials in Denver, the largest city to pass the resolution and the home of TalkLeft, said their resolution was a reaffirmation of Denver's commitment to civil liberties. We always knew this was a great place to live...

Why was the public so overwhelmingly in favor of this new law? Our view: Because after September 11, the Bush/Ashcroft Administration did a remarkable job of instilling the fear of terrorism in the heart of every American. What's wrong with the USA Patriot Act? It is an unnecessary piece of legislation that will strip away our civil liberties while not making us any safer from terrorism.

If you are into legalese, you can read the text of the Act yourself here, courtesy of Epic, the Electronic Privacy Information Center .

If you would like to read a section by section analysis of the Act with some critical commentary, you can pay $19 to LexisNexis and order the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001: An Analysis by Stanley Mailman, Jeralyn E. Merritt, Theresa M. B. Van Vliet, Stephen Yale-Loehr. Book Description and On-Line Order Form. Full Disclosure: TalkLeft is a co-author but we don't get royalties or commissions.

Do we really want the FBI monitoring our Fourth of July parades?

The defense began today in the re-trial of ex-NYC cop Charles Schwarz, accused of obstruction of justice and civil rights violations for allegedly lying about being in the bathroom with Justin Volpe, the (also former) cop who admitted torturing Haitian immigrant Abner Louima by shoving a broom handle up his rectum at the station house. For more on the history of the case, see our post from last month.

Schwarz has been claiming it wasn't him, but a third cop (whose conviction was also overturned on appeal) who was in the bathroom with Volpe.

So who does Schwarz call as his first witness? Justin Volpe, who pleaded guilty mid-way through his own trial and got a 30 year sentence. He testified for Schwarz and as expected, said it was not Schwarz but the third cop who was in the bathroom.

Then the fireworks. A four hour cross-examination by the prosecutor, who produces a tape that was secretly recorded in prison last month, of Volpe talking to his father after he had been brought back to NY from Minnesota, where he is serving his sentence, for the trial.

Seems Volpe tells dad on the tape he is testifying for Schwarz in hopes of getting Schwarz's lawyers to help him win a sentence reduction. Volpe says, "If I'm not getting my time cut, I want to go back tonight," and that he had a "surprise" in mind for Mr. Schwarz's defense lawyers, "if they think I'm falling on the sword again for nothing." Tape Excerpts.

This was obviously a big blow for Schwarz's defense, compounded by the news that the third cop won't testify at all and will be invoking his 5th Amendment privilege against incrimination.

Volpe didn't look well, he apparently is having a hard time doing time. Couldn't happen to a nicer guy.

[comments now closed]

Great news! Judge Jed S. Rakoff of the Southern District of New York just declared the federal death penalty unconsitutional in the case of U.S. v. Quinones! Here's the opinion.

The basis for his ruling is the "undue risk" that a meaningful number of innocent people have been executed.

Judge Jed S. Rakoff is the first federal judge to declare the current federal death penalty unconstitutional.

This is an issue that's not going away--

What's troubling about the Elizabeth Smart case and the focus on the handymane, whether he turns out to be innocent or or not, is the likely negative effect it will have on hiring ex-inmates. It's already tough enough for them out there. If we want to break the cycle of recidivism, we must provide employment opportunities for them when they are released from jail. The Fortune Society is a not-for-profit community-based organization that helps ex-offenders and at-risk youth break the cycle of crime and incarceration.

They also publish a magazine called Fortune News. This months theme is Coming Out, Life After Prison. Check out When You Get Out, All You Know is What You Knew

We also like last week's excellent New York Times article by Alan Feuer that put faces and personal stories on what it's like to come out of prison in New York. For Ex-Convicts, a Bed, a View, a New Outlook .

For the past two years State Representative Mike Lawlor (D-Conn.), Chair of the Connecticut House Judiciary Committee has been working with the Council of State Governments and many others to develop a response to the recent sudden increase in the number of mentally ill persons coming in contact with the criminal justice system. The goal is to end the vicious cycle that keeps returning the mentally ill to jail.

Their report was released in June and prompted a hearing before the U.S. Senate Judiciary Committee. The hearing testimony is online.

The report is very impressive. So is the list of groups and individuals who developed it.

Some findings of the project: At Rikers Island, the length of stay for the average inmate was 42 days. For the mentally ill inmate, the average stay was 215 days. In 1955, the population in the state's mental health hospitals peaked at 559,000. In 1999, it dropped to less than 80,000.

Another death penalty case the Supreme Court decided this week that is not getting much attention is the Bass case out of Detroit. The Court not only refused to find the feds are racially discriminatory when seeking the death penalty, they reversed the Sixth Circuit's decision that documentation showing how the feds decide to seek the death penalty must be disclosed to the defense to prove such a claim. Text of Opinion

The Supreme Court bought into Solicitor General Ted Olson's argment that the Sixth Circuit ruling "threatens to stop federal death penalty prosecutions in their tracks." Lawyers for Bass dismissed Olson's claims about the potential disruption of all federal capital cases as "melodramatic hyperbole" and "doomsday warnings."

The Supreme Court ruling acknowledges a federal study in 2000 that found that of 882 capital defendants, 20 percent were white, 48 percent were black, and 29 percent were Latino. The Sixth Circuit found that statistics from the same study demonstrated that ì[t]he United States charges blacks with a death eligible offense more than twice as often as it charges whitesî and that the United States enters into plea bargains more frequently with whites than it does with blacks. (citing U. S. Dept. of Justice, The Federal Death Penalty System: A Statistical Survey (1988ñ2000), p. 2 (Sept. 12, 2000)).

The study concluded that the reason for the higher minority percentage of capital defendants is not bias--it is because they make up a larger percentage of the pool of federal defendants.

25 inmates are now on federal death row awaiting execution. The Supreme Court says each must make a ìcredible showingî that ìsimilarly situated individuals of a different race were not prosecutedî in order to survive a racial challenge to the application of the death penalty in his or her case.

How exactly are they supposed to do that if the Govenment won't turn over the data from which they either can substantiate their claim or realize its unfounded?

Talk about a Catch-22...

Lawyers have been forced to the front lines since September 11th--we are fighting the government on everything, from use of military tribunals to how we will treat detainees and non-citizens, to the serious threat new anti-terror legislation has posed to everyone's civil liberties.

Now, with the ABA footing the bill, we are going to fight harder. Beginning July 8 in major newspapers, the American Bar Association has commissioned its first paid advertising campaign to promote the Constitution itself.

A broad and diverse coalition of national organizations are urging their elected officials to oppose H.R. 4633, the "Driver's License Modernization Act of 2002." This legislation essentially creates a national identification system (read national id. card) through the back door of state drivers' licenses.

Both the ACLU and EPIC are out in front on this one.

Our view: It's a quick fix that won't do anything to stop terrorists or enhance our safety. It will only further diminish our privacy rights.