Fair Trial

Back in the good old days when Americans were interested in freedom, criminal defense attorneys had an ethical duty to zealously advocate for their clients. The concept being that an adversarial system of justice was more likely to produce just results than an inquisitorial system of justice. However, the Arizona Supreme Court recently decided that the age-old duty of zealous advocacy is no longer appropriate. Attorneys in Arizona now have no such ethical duty.

I interpret this change to mean the government has determined it is no longer in the government?s interest for criminal defense attorneys to be zealous when they fight the government. No kidding. One could expect nothing different so long as the government supplies all the judges,1 the prosecutors and strictly regulates all criminal defense attorneys. Imagine a situation where one baseball team unilaterally approves and pays the umpires and determines who plays for the other team. You wouldn?t be shocked when they picked players for the other team who agreed not to play too zealously.

This is a subtle change, one likely to be overlooked by the general public, but it makes a big difference to people facing criminal charges -- especially those financially unable to sustain a defense, and thus forced to rely upon public defenders -- who are notoriously overworked, underpaid, and often incompetent.

In a dramatic reversal, the Justice Department (news - web sites) acknowledges its original prosecution of a suspected terror cell in Detroit was filled with a "pattern of mistakes and oversights" that warrant the dismissal of the convictions.

In a 60-page memo that harshly criticizes its own prosecutors' work, the department told U.S. District Judge Gerald Rosen on Tuesday night it supports the Detroit defendants' request for a new trial and would no longer pursue terrorism charges against them. The defendants at most would only face fraud charges at a new trial.

This is interesting simply on its own merits, as well as providing evidence that the government has been a little overzealous with its application of anti-terrorism laws. But it's also interesting on other fronts. Most telling to me is the comparison between two Attorney Generals: Reno and Ashcroft.

Ashcroft is usually portrayed these days as either a puritan or a tyrant, and sometimes both at once. But, under his leadership, his Justice Department has recognized a fundamental mistake in its own ranks and taken steps to correct it. And not just in any case: this is a terrorism case and catching terrorists is the number one mission of the Justice Department these days. And on top of that, it's an election year -- barely two months before the election.

UPDATE: Originally I meant to post a little more to go along with this. I had in mind a comparison of Ashcroft's Justice Department dealing with errors in this civilized fashion, whereas the Clinton/Reno Justice Department never managed to deal with the errors of Waco and Ruby Ridge; trials took place in both cases with no sign from the government that anything wrong had been done. I was also going to tie this in with an article I read some time ago, comparing Ashcroft and Kerry on civil liberties pre-911; surprisingly, Ashcroft has a better record. And now, I have accomplished both goals.

Hat tip to the Geek with a .45.

Pentagon officials' intention to hold hundreds of prisoners captured in the Afghanistan war indefinitely at the U.S. Naval Base at Guantanamo, Cuba, will soon become untenable for legal and humanitarian reasons.

Prisoners are being held without charges, and no military tribunals are scheduled. One Pentagon official has said that even if there are tribunals, a convict still might not be released at the end of a sentence if he were deemed too dangerous.

It is perfectly understandable that the U.S. military would hold prisoners of war with the intention of repatriating them at the end of conflict. But the Pentagon considers the war on terrorism open- ended and detainees as potential terrorists who be held for years without legal process, military or civilian.

The United States Supreme Court announced today that it would review the case of Jose Padilla, an American citizen being held in a Navy brig as an enemy combatant, thus setting the stage for an historic debate on the balance between individual liberties and national security.

The justices will hear the case of Mr. Padilla in April, when they will hear a related case, that of Yaser Esam Hamdi, another American citizen being held in a brig without charges as an enemy combatant.

Still another case already scheduled to be argued before the court in April concerns nearly 700 foreigners being detained as enemy combatants at the United States naval base at Guantánamo Bay, Cuba.

The justices are expected to rule on all three cases before their summer recess. Collectively, the rulings are likely to be of profound importance, drawing lines between the powers of courts and the administration and, perhaps, affecting the civil liberties of Americans in ways not yet imagined.

One of the benefits of a Supreme Court system that requires cases to work their way up through the lower courts is the little-recognized characteristic of this process: allowing courts to play for time. It's now been over 2 years since the 9-11 attack and we are only now beginning to see cases reaching the high court concerned with some of the defensive measures taken.

In the immediate aftermath of the attacks, Congress and the courts were extremely deferential to the executive on this matter. No one wanted to be responsible for letting a terrorist in custody go free, only to find out later that he was responsible for an attack, especially not an attack of the magnitude that Al Qaeda had just proved itself capable of committing.

This attitude has already produced some extremely poor legislation and similarly poor court opinions. But the appeals process continues, and the Supreme Court will have the opportunity to rule on the matter only after careful consideration at the lower court level -- and only after enough time has passed for the air of hysterical panic to fade.

The Supreme Court has the opportunity here to set difficult policy during a time of national concern over the terrorist threat, and growing concern over the threat to civil rights. No longer is there nationwide consensus; no longer does the threat of Al Qaeda loom quite so large as it did. And in this calmer atmosphere it will be easier to produce a ruling that protects the rights, as well as the physical safety, of all Americans.

In the case of a Thurston County man, the U.S. Supreme Court ruled yesterday that criminals have a constitutional right to cross-examine witnesses against them, an opinion that overturned 25 years of precedent and has sweeping implications nationwide.

Among other things, the ruling casts serious doubt on child-abuse prosecutions, which since the 1990s have often allowed social workers or investigators to testify in place of the victims, saving the children from the ordeal of taking the stand.

"Prosecutors and victims and children and witnesses lose, and defendants win," Thurston County Senior Deputy Prosecutor Steven Sherman, who argued the case before the high court, said yesterday.

But Jeffrey Fisher, the Seattle attorney who made the winning argument, said the decision restores an important constitutional right ? with roots dating back to the trial of Sir Walter Raleigh ? that had been seriously undermined.

Why won't they stand up for the right to keep and bear arms? Still, this is a victory.

When Congress creates a federal penalty for actions traditionally prosecuted at the state level, it violates the core constitutional principle of federalism, which prohibits Congress from legislating on local matters. Such laws also burden the federal court system, promote selective prosecutions, and stack the deck against defendants. In addition to duplicating state law, Congress has created derivative offenses, such as racketeering and mail fraud, an approach that makes convictions easier to obtain because the offense consists mainly of otherwise innocuous behavior. In Logan Young?s case, for example, the government does not have to prove bribery. For two of the counts against him, all it has to prove is that he crossed state lines and withdrew money from his bank account in pursuit of his alleged bribery scheme. The actions are not in dispute, and it is relatively easy for a jury to infer criminal intent.

Getting even further from the essence of criminal behavior, many federal laws impose criminal sanctions for so-called public welfare offenses. These laws often do not require a "guilty mind," or mens rea, which historically has been an essential element in common law crimes. Indeed, public welfare "crimes," such as violations of environmental regulations or insider trading laws, need not involve even unintentional harm to third parties. The overreaching of federal criminal law is especially troubling because institutional and procedural features of the federal system invite prosecutorial abuses, make convictions easier to obtain than in state systems, impose harsh mandatory sentences even for nonviolent acts, and result in disparate treatment of similarly situated defendants.

Congress must oppose the practice of designating prisoners, "enemy combatants." It is an unequivocal violation of U.S. and international law.

The Bush Administration's use of "enemy combatant" designation sets a dangerous precedent where the government detains people -- including prisoners in the United States -- indefinitely without charging them with a crime.

If the government has evidence that an individual is involved with terrorism, there are other, better, legal options than detaining them without charge. By simply locking people away people without giving them the chance to clear their name, the government is violating their civil rights and increasing the chance that an innocent person will be improperly locked up.

Congress must oppose this practice and must not offer any endorsement of indefinite detention. If Congress were to pass legislation allowing this practice, it would be a violation of international law and in clear contradiction of the Constitution.

Take Action! Urge Congress to oppose the indefinite detention of American citizens by the Bush Administration.

The ACLU offers us a chance to speak out about the Bush administration's policies on "enemy combatants". This is a debatable issue for most of the people concerned; if you are captured in a war area, armed, but not in uniform, then you don't fall under the protections the Geneva convention offers to uniformed soldiers. You also don't really fall under the protections offered to civilians. The Geneva conventions don't apply to non-uniformed spies or saboteurs, they can be shot on sight as I understand it. Terrorists are certainly closer to "spies" than "soldiers" or "civilians".

However, the Consitution provides basic restrictions on the actions a government can take, and requirements for the actions it can take. One of those requirements is due process of law. Due process of law can be a military tribunal, or a civilian court, but it has to be a legal process by which the accused can confront his accusers, and in which the government can overcome the presumption of innocence.

In other words, the people being held as enemy combatants can't just be held; there must be evidence against them, and the evidence must be weighed by an impartial judge and jury (whether military or civilian). There's enough latitude there to deal with terrorists.

A former biologist in the FBI laboratory pleaded guilty Tuesday to submitting falsified DNA analysis reports in more than 100 cases.

Jacqueline A. Blake, 40, of Upper Marlboro, Md., pleaded guilty in U.S. District Court in Washington to a single count of making false statements on official government reports she prepared. Blake faces a maximum penalty of a year in prison and a $100,000 fine at sentencing scheduled for Sept. 20.

Blake admitted that from August 1999 to June 2002 she wrote and submitted more than 100 reports containing false statements about her DNA analysis work. In particular, she falsely certified that she had performed certain control tests designed to ensure the reliability of the DNA analysis.

This goes beyond mere carelessness. Over three years this woman has probably sent 100 people to jail based on her supposedly expert and impartial testimony. Some of them may even be guilty -- but now, to ensure a fair trial, we will need to go back and re-do all the tests, and probably re-try most of the people involved. It's a waste of time and a waste of money.

What should concern us even more than the wasted time and money is the possibility that this sort of thing goes on regularly. The police and the FBI, particularly their crime lab, are given a great deal of trust in court proceedings. We can't afford to allow sloppy or fraudently test results to put innocent people in jail for years before the errors are discovered -- if they are discovered at all.

The thing this reminds me of is the series of reports on speech given by a high-level official in the BATF. The speech said, in essence, that the BATF agents were aware that their firearms database was incomplete and inaccurate, but that they were always to testify in court that it was 100% complete and 100% accurate. This amounts to perjury, and it was announced in a speech to the entire agency! If the culture is such that that sort of statement goes unchallenged, can we be surprised that other government agencies have a similar attitude?

We have a possible case of rendition: a US citizen has been arrested and held without charges for 20 months in Saudi Arabia.

His parents, originally from Jordan, sued the U.S. government last summer, alleging that the United States had arranged for their son to be held by the Saudi government on suspicion of terrorist acts and that U.S. authorities expected he would be tortured there.

Bates ruled in December that the parents could seek government documents to try to prove their allegation of a U.S. role in their son's imprisonment.

On February 11, the US government asked Bates to dismiss the case based on evidence that was to be kept secret and presented only to Bates. A week earlier the State Department was reported to have requested the Saudis to either indict Abu Ali or turn him over.

So, if you end up in a foreign prison for whatever reason and your government suspects you are a terrorist / enemy combatant, they may just leave you there to rot for a year or two.