Angela Davis' Arbitrary Justice

Her recent Time magazine profile talks about some of the underhanded but legal tactics prosecutors use:

When prosecutors pick which criminal charges to file, they need have only probable cause, or reasonable belief that the suspect committed the crimes charged. This low standard creates room to pile on the most severe charges possible to bully a defendant into a plea bargain. If a case ends up going before a jury, the prosecutor would have to prove his case beyond a reasonable doubt. So why give him the chance, Davis argues, to "intimidate, harass or coerce a guilty plea" with charges he knows he cannot prove at trial? Davis would bump the probable-cause standard to something requiring more certainty.

Her new book can be purchased here.

Kafka in Florida

From the Reason blog:

Tampa's Mark O'Hara was released from prison this week. He was serving a 25-year sentence for possession of 58 Vicodin tablets. Prosecutors acknowledge he wasn't selling the drug. They acknowledge that he had a prescription for it. At his trial, two doctors testified they'd been treating O'Hara since the early 1990s for pain related to gout and an automobile accident.

But prosecutors inexplicably brought drug trafficking charges anyway, because as the article explains, "Under the law, simply possessing the quantity of pills he had constitutes trafficking."

Fighting off a vindictive prosecution is nearly impossible for the innocent. The prosecution took Mr. O’Hara’s business, his cars and his condos and he was in jail for two years before the sentence was overturned.

Unfortunately prosecutors are almost never held accountable for their actions. No matter how abusive their action they hide behind the, “it’s the law and we have no choice” shield, as if they have no prosecutorial discretion. Even a child could tell you this was absurd case yet they face no penalty at all. An informed jury can prevent these abuses right now with out any changes to the law.

Several comments on the Reason blog expressed skepticism that jury nullification would have helped here since the information that there was a prescription was not available during the trial. Even so, a fully-informed juror would have enough reason to nullify on the basis that this was a victimless crime and that possible sentence of 25 years was grossly out of line with the alleged offense. Keeping juries in the dark is the only way to get them to convict.

False Confession Stat

From The Innocence Project:

In more than 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty.

These cases show that confessions are not always prompted by internal knowledge or actual guilt, but are sometimes motivated by external influences.

An Attack on Religious Freedom - Where is the ACLU Here?

If recent history is any guide, they are shooting lay-ups on 10 commandment displays while ignoring the State’s persecution of religion.

Currently, advocates of religious rights continue to focus on the abstract limits of the establishment clause while ignoring the more relevant free exercise clause. The establishment clause in the First Amendment, a prohibition on the establishment of a national religion, is the focus of the ACLU’s frequent suits against displays of the 10 commandments.

Victories in establishment clause cases are generally symbolic though the cost in political capital makes them losers for the ACLU. The link between displaying the commandments and the State proselytizing/discriminating for/against a religion is tenuous at best. It follows that the fight comes off as obnoxious grand standing to people who would otherwise be neutral on the issue. There or not there, the displays existence doesn’t affect anyone’s rights directly. At the same time restrictions on the practice of religion are overlooked.

More thorny issues of prohibition of religious practices are raised by the free exercise clause which guarantees freedom from Government inference in such practices. In this recent case, a California minister’s religion requires the use of marijuana; the State called him a drug dealer and brought charges. This case is a prime candidate for jury nullification, in a “trial by country” this would never result in a conviction:

A Hollywood church that burned marijuana during services and distributed it to members is protected under federal law because the drug is a religious sacrament, the leader of the congregation argued in a hearing before his drug possession trial Tuesday.

The Rev. Craig X Rubin, 41, the leader of the 420 Temple who has appeared in episodes of the Showtime comedy "Weeds," faces up to seven years in prison if convicted of possessing marijuana for sale. Jury selection was set to begin Tuesday afternoon.

When Judges Become Politicians

Like anybody a position of power, judges are prone to bias and
corruption. In a new article in Forbes, Alexander Tabarrok quantifies how
much worse the damages are if the judge is an elected official.

In research published in the Journal of Law and Economics, Eric Helland, associate professor of economics at Claremont McKenna College, and I analyzed thousands of tort awards throughout the U.S. We found that awards against out-of-state defendants were 42% higher in states that use partisan elections to select their judges than in states that appoint judges; a $363,000 per-case increase on average.
…
Such awards help judges get re-elected. In a remarkably frank admission, Richard Neely, a West Virginia Supreme Court judge (now retired), explained the incentives that govern elected judges: "As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else's money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me."

No surprise here – people respond to incentives. Giving a jury greater
discretion to determine rewards will, at a minimum, give more power to
a group of people who are not directly incentivized to lean one way or
another. This serves as another reminder that bureaucrats in costume
shouldn't be given the benefit of the doubt anymore than the next guy.

The Bush Nullification

Humorous story from Law.com:

Apparently President George W. Bush is now so unpopular that some lawyers believe the mere mention of his name in front of a jury could tip the scales against them.

The Common Man vs The State

Why doesn't a normal person, innocent or not, stand a chance? Take a look at the costs of defense from the WSJ law blog. These guys could afford the huge legal tabs most people are forced to settle.

Sanjay Kumar, Computer Associates: $14.9 million

Dennis Kozlowski, Tyco: $17.7 million and $8 million for each of two trials

Kirk Shelton, Cendant: $24 million

The Rigases, Adelphia: $25 million

Richard Scrushy, HealthSouth: $32 million

Kenneth Lay, Enron: $25 million

Jeffrey Skilling, Enron: $70 million

Richard LaPointe - An Innocent Man Serving Life

The details of the case are shocking. Two years after the murder of Bernice Martin, Richard Lapointe, a mentally handicapped man, was snatched from his family in the middle of a picnic. For the next ten hours an unrecorded interrogation took place and three contradictory "confessions" were extracted. Mr. Lapointe was then jailed for over two years before the trial since he was unable to afford bail. He was convicted of murder.

It's seems clear why he was targeted. His handicaps made him an easy target for trained interrogators who had no physical evidence to rely on.

His supports have their own take:

They say the case is preposterous, that Mr. Lapointe, a victim of numerous mental and physical infirmities, was not capable of such conduct. They say to commit a crime of astounding brutality, Mr. Lapointe, who had no history of violence of any kind, would have decided to sneak out in a 45-minute interval while his wife and son were upstairs. He would have taken a short walk to Mrs. Martin’s apartment, raped her, stabbed her, strangled her with a ligature that required far more dexterity than he had ever shown and set the place on fire.

And then, with no one seeing him come or go, he would have returned home, with no wounds, no blood, no smell of smoke, in time to calmly watch a National Geographic special with his family.

Video taping interrogations was cost prohibitive in 1989. That is not the case today. With storage and equipment costs so low the police have other reasons to avoid taping interrogations today. If the jury saw the techniques that were used to get confessions, a written confession would lack its current stand alone veracity. You can bet that if the jury had to watch 10 hours of intimidation and bullying of a handicapped man, the verdict would have gone a different way.

Justice Prevails in KPMG Case

Today Judge Kaplan dismissed charges against 13 KPMG's due to DoJ misconduct. The case demonstrated the lengths the DoJ would go to get headline generating victories.

The same case also showed the difficulty of fighting baseless prosecutions. Some costs estimates for the defendants were close to $40 million, giving the prosecution tremendous leverage against the accused. The same prosecution also held a proverbial gun to the head of KPMG and threatened to shut them down unless they cut off the accused partners. Kaplan said of the case:

The government "foreclosed these defendants from presenting the defense they wished to present and . . . deprived them of counsel of their choice. This is intolerable in a society that holds itself out to the world as a paragon of justice," he wrote.

Ultimately the fate of 13 lives relied solely on the discretion of one judge. He made the right decision this time, but what chance do normal people stand against the unlimited resources and power of the State?

Barred From Court Due to Supposed Blacklist

This is certainly a huge loss from a property rights perspective. Currently the State tells NY landlords who they can rent to, how much they can charge, and how to maintain their buildings. With so little under their control landlords only have the barest appearance of ownership as it is.

In any case, the judge’s reasoning is suspect. There is nothing preventing the tenant from being added to the ‘blacklist’ even if the case is tried in Supreme Court and now Dawn Weisert can be identified as a problem tenant with a google search.

A Manhattan judge has barred a landlord from launching eviction proceedings against a Chelsea tenant because the tenant could unfairly be "blacklisted" by other landlords even if she wins her case.

The judge, state Supreme Court Justice Barbara Kapnick, said tenant Dawn Weisert could suffer "irreparable harm" if she's sued in Housing Court because that court sells its eviction data to "tenant-screening bureaus" that, in turn, sell the information to landlords around the country.

Kapnick cited a recent ruling by a federal court judge who found that "risk-averse landlords are all too willing to use such 'consumer reports' as a 'blacklist,' refusing to rent to anyone whose name appears on it."

Judicial Diva "Easy Ernie" Accused of Misconduct

"Easy Ernie" Murphy who recently won a libel suit against the Boston Herald has been accused of "willful misconduct" by a Massachusetts state commission. According to the charge he sent several letters and used his position intimidate the publisher.

In the first handwritten note, dated just two days after the jury awarded him $2 million, Murphy asked for a private meeting with the Herald's publisher, Patrick J. Purcell.

"You will bring to that meeting a cashiers check, payable to me, in the sum of $3,260,000," the letter said. "No check, no meeting."

A separate, single-page post script warned Purcell that telling anyone about the letter would be "a big mistake." The word "big" was written in all capital letters.

Judges accounted for 10% of libel suits nationwide in 2005. Do judges conduct themselves with impartiality and fairness during libel trails against other judges? There can be no fair trial in a situation like this:

Six current and former state Supreme Court justices testified on his behalf, many addressing Thomas as "Your Honor," even though he was the plaintiff, not the judge in the case. But when lawyers for the newspapers sought to cross-examine the justices about the disciplinary case that was the subject of the newspaper's columns, they refused, invoking what was later upheld on appeal as a "judicial deliberation privilege."

The newspaper's brief alleges that "the Illinois judiciary barricaded itself behind a wall of privilege that made it impossible for the Chronicle defendants to defend themselves."

Prosecuted For A Clerical Error

A case of a vindictive prosecution by the superfluous DEA. This must be what they do what they aren't throwing flash bangs into houses of the elderly. The NY Times summaries the frightening implication for doctors here.

No matter what you have learned in medical school, if you are prescribing opioids in doses that seems high to narcotics agents and prosecutors, you are at risk of a trial. And once you enter the courtroom, anything can happen.

At the first trial, Dr. Hurwitz was convicted of writing prescriptions that caused bodily injury, crimes that carried a mandatory minimum sentence of 20 years. At the retrial, the judge dismissed the charges for the very good reason that there was no proof the prescriptions actually caused the injuries.
...
I wouldn't feel safe until doctors' prescribing practices are judged by state medical boards, as they were until the D.E.A. and federal prosecutors started using criminal courts to regulate medicine.