A New Standard for Death Penalty?

Lawyers for a convicted killer in New York are asking the New York Court of Appeals for a new standard to sustain the death sentence for their client.  Lawyers for Angel Mateo are seeking an interpretation of the New York constitution to require proof of a defendant’s guilt “beyond all doubt” to justify an execution.  They urge that a special rule for death penalty cases is required, a standard higher than the centuries-old one of “beyond a reasonable doubt.”

Mateo confessed in 1996 to killing four people in Rochester.  The Court of Appeals is New York’s highest court.  Observers do not believe the court will adopt the new standard, but the fact that the suggestion has reached this high in the judicial system is a new development.

There is a growing public concern about the possibility that innocent people might be put death.  In state after state, death row inmates have been proven scientifically innocent of the death for which a jury convicted them.  Never until DNA evidence could such a certainty of innocence be obtained.  Now people have doubts about the system that allowed this for so many years, a system that was supposed to prevent this.

Increasing the level of certainty required for conviction is one of a handful of proposals to modify capital punishment that have gained attention around the country in the last few years.  James Liebman, a Columbia Law School professor, has written widely on the death penalty.  He said the proposal to increase the standard of proof in death penalty cases has been endorsed by some influential criminal law experts since the 1960’s.  He favors the idea, which he says “is a very logical outgrowth of the view that we can have a death penalty and make it reliable.”

Frank Keating is a former governor of Oklahoma, and former senior Justice Department in the Reagan administration.  When he was governor, he sought in 2001 to change the death penalty law in Oklahoma to require proof “to a moral certainty.”   “I think if you’re going to take somebody else’s life, you need to be convinced to a moral certainty, ” he said.

The idea of increasing the level of certainty required for conviction is one of several proposals to modify capital punishment in the last few years.  Some of the proponents are death penalty supporters who say the only way to bolster public support for execution is to ensure that only those who clearly deserve the ultimate punishment are put to death.

Prosecutors oppose this “beyond all doubt” proposal because they believe it would block all death penalty cases. They believe it is not possible to eliminate all doubt.  Michael Arcuri, district attorney in Utica, New York, and president of the New York State District Attorneys Association, said, “If that standard is adopted, we will not have the death penalty in New York.”

A New Jersey Supreme Court Justice, James H. Coleman, Jr., dissented in a death penalty decision in 2002.  He wrote that there is a special need of reliability in capital cases.  He said the same standard “used to determine whether an individual should be found guilty of possession of a marijuana cigarette should not be used in determining whether an accused can be executed.”

Another law professor, Robert Blecker, favors the death penalty. A professor at New York University, he suggests that the finding of guilt continue under the traditional standard of persuasion of “beyond a reasonable doubt.”  He says a higher standard would make convictions impossible.   However, he suggests then using the higher burden in the second stage of the bifurcated proceeding, the penalty phase of the trial.  He says when jurors determine whether to sentence someone to death, they should be required to meet a higher standard.  He said that standard should be proof to a moral certainty that a defendant should die.

The justifications for the death penalty, of course, have taken a hit since the implementation of sentences for “Life without the Possibility of Parole.” If such a sentence means exactly that, and it always has in Oklahoma, then doesn’t the state get its due from such a sentence?  No criminal defense lawyer expects a defendant sentenced thus ever to get out.  Nevertheless, death penalty proponents point to societal revenge, satisfaction and other philosophical achievements that they believe only the death penalty can satisfy.  Maybe so.  But it really is not much of a deterrent.  Ask anyone who is facing a death penalty charge or was convicted.  All of them, they never expect to get caught.  So how could the penalty possibly affect them?

Criminal Defendants Wrongly Convicted by False Evidence—– More wrongdoings by Joyce Gilchrist

The ghost of Joyce Gilchrist remains with us.  Gilchrist is the forensic chemist who worked for the Oklahoma City Police Department who fudged, concocted, created and lied about evidence in order to help the prosecution wrongly convict several defendants.  One of her better known victims was Jeffrey Todd Pierce.  Gilchrist lied about microscopic evidence to get him convicted, and only after he had served 15 years in prison did Gilchrist’s wrongdoing come to light.  Gilchrist was fired, Pierce was released and received $4 million in damages from the City of Oklahoma City.

As the questions rose over the years about Gilchrist and her work, people continue to wonder:  Why did then-District Attorney Bob Macy continue to use Gilchrist as a witness to convict people, even after her fabrication of evidence and unsupported testimony had been called into question?  Why did Oklahoma County judges continue to allow Gilchrist to testify, even after Gilchrist’s employer, the City of Oklahoma City, was trying to fire her?

Of course Gilchrist has always denied all wrongdoing and claimed the City of Oklahoma City was racially prejudiced against her when the City fired her.  That accusation went nowhere in court.  Gilchrist has never admitted doing anything wrong despite a tsunami of evidence against her.

The latest case of Gilchrist’s malfeasance is the case of David Johns Bryson.  After serving 17 years in prison, Bryson has been released.  Gilchrist’s evidence against Bryson was reviewed by another expert, Brian Wraxall, chief forensic serologist at the Serological Research Institute in California.  Last November, he looked over Gilchrist’s lab notes from the Bryson trial and found serious flaws.  Gilchrist had received some of her training at the institute, and Gilchrist was as student of Wraxall.

Bryson was charged with rape.  Key evidence used to convict him were hair, blood and semen samples.  There was also other evidence linking Bryson to the crime, including eyewitness testimony and injuries to the attacker’s penis.   Gilchrist testified the hair, blood and semen were “consistent” with Bryson.  Better DNA techniques later developed showed the samples were not a match to Bryson, but other scientists concluded, based on a review of Gilchrist’s work done at the time, that Gilchrist should have excluded Bryson even before the 1983 trial if Gilchrist done her science correctly, regardless of DNA testing.

“Ms. Gilchrist failed to run a substrate or background control from the robe as she was taught in my laboratory, “Wraxall reported.

Gilchrist’s hair analysis was already discredited.  In 2001, the FBI conducted reviews of Gilchrist’s work and concluded the hair evidence did not match Bryson.  When asked about this finding, Gilchrist, in a deposition, said, “That happens all the time.  Hair examination is very subjective and experts may or may not agree on the conclusions that are reached.  So if someone else agrees or disagrees with my findings, I don’t put much weight in that, “she testified.  Do you think Gilchrist admitted at Bryson’s jury trial that hair testified was a “subjective” finding about which experts disagree all time?  More likely Gilchrist gave the jury the impression her findings carried the force of objective science, inexorable conclusions, undeniable fact.   But that was her testimony to get convictions.   Her later deposition was to save her own hide.

Whether Gilchrist was even qualified to conduct such tests was an issue in the lawsuit filed by Bryson.  Gilchrist’s college transcripts show she had some trouble performing academically in some of her courses.  She was placed on academic probation plural times and academic suspension.  She was questioned at her deposition about her sometimes sub-par performance at the FBI Academy as well.  For instance, she misidentified some hair samples on tests.  But she graduated from the Academy and from college.

Gilchrist at one point stated she regretted not expounding on her answers more in trials.  She did not specifically state she regretted putting so many innocent people in prison with her false testimony.

And, despite the criticism that was becoming more public, then-District Attorney Bob Macy backed her fully and continued to use as his expert witness.  She got convictions, so why quit?  Even after the Oklahoma City Police Department tried to can her, Mr. Macy wrote on her behalf and wanted to continue to use to get more convictions.  When he was asked about the falsification or tampering with evidence, he expressed indignation that anyone would question “law enforcement” or its motives.  In other words, just take our word for it and don’t ask any questions, exactly what the public did for too long.

It took the heroic act of U.S. District Judge Ralph Thompson to bring Gilchrist down.  Only someone so respected as Judge Thompson, when he ruled so unequivocally and extensively about her mistakes, could call attention to her wrongdoing and stop her.  No state judges had the courage or the understanding to do it;  they simply rubber-stamped the prosecution to assist in sending one after another innocent man to prison.

Criminal Defendants Constitutional Right to Confrontation

Your constitutional rights.  The United States Supreme Court tells us what they mean. The latest revelation is Melendez-Diaz v. Massachusetts, an appeal from a conviction for drug distribution.

At the defendant’s trial, to prove that the substance which the defendant possessed was, in fact, cocaine, the prosecution had offered into evidence a report from the chemical lab.  According to Massachusetts law, the report was accompanied by affidavits by the chemists who analyzed the substance called “certificates of analysis.”  In one of these certificates, the signatory swore he or she found the stated results.    But the chemist himself or herself did not appear in court to testify.  Defendant’s lawyer objected to the admission of this evidence at the trial without the defendant having the opportunity to “confront” this witness and cross examine him or her, just like any other witness before the jury.

The Massachusetts procedure provided that such forensic analysis was to be admitted into evidence as prima facie evidence of its conclusions.  That is, the report could be contradicted by scientific evidence offered by the defendant, but, if uncontradicted, that would be the only evidence offered as to the chemical character of the substance.

The Supreme Court decided today that this procedure deprived the defendant of his Right to Confrontation under the Sixth Amendment to the United States Constitution. “Petitioner was entitled to ‘be confronted with’ the persons giving this testimony at trial, ” the Court held.

The Sixth Amendment to the United States Constitution provides:

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Similarly the Oklahoma Constitution provides in Article 2:

§ 20. Rights of accused in criminal cases.
In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed or, where uncertainty exists as to the county in which the crime was committed, the accused may be tried in any county in which the evidence indicates the crime might have been committed. Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses. (emphasis added)

In 2004, the Supreme Court had ruled that the Confrontation Clause really meant what it said in Crawford v. Washington. In Crawford, the defendant’s conviction had been based in part on evidence at trial of the tape recorded statement of a witness made outside court, but the witness was not presented in open court for cross-examination by the defendant. The Supreme Court reversed that conviction

Massachusetts had argued (and all law enforcement with them) that these chemical reports are not “testimonial,” that the witnesses who perform these chemical tests and complete the accompanying affidavits as their test results are not “accusatory” witnesses like eyewitnesses or arresting police officers, and therefore the “Confrontation” provision should not apply to them.  They should not be required  to appear in court.  These witnesses, the respondent argued in this case, were not like the “notorious” ex parte witnesses used to convict Sir Walter Raleigh of treason in 1603 by reading the written statements of witnesses instead of producing live witnesses, the case said to be the source for our England’s and our system’s belief in the Right of Confrontation.  But Justice Scalia noted that the Sir Walter Raleigh case was not the source of the Right of Confrontation but instead its violation in convicting Raleigh was a scandal to the jurisprudence of England because the Right was already well established.

“It’s just too much trouble for our chemists to have to come to court all the time,” runs one of the arguments.  The Supreme Court said, “The arguments advanced to avoid this rather straightforward application of Crawford are rejected.”

Justice Scalia, writing for the majority of the Supreme Court, noted that the “certificates” in the Massachusetts trial were really “affidavits,” condemned in the earlier Crawford decision. Justice Scalia said of the certificates, “They are incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” “The ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’”

The Court noted that the cases involving such “affidavits” had arisen in the last 30 years, since the Court’s 1980 decision in Ohio v. Roberts.  The Roberts case had some language to the effect that unconfronted testimony was admissible so long as it bore “indicia of reliability,” and a number of state supreme court decisions had ruled that such affidavits or certificates did not violation the Confrontation Clause.

The Court noted precedents upholding the Confrontation Clause.  It cited Kirby v. United States decided in 1899.  In that case the defendant had been convicted at trial of receiving stolen property, some of the trial evidence of which was records of convictions of three other persons who were found guilty of stealing the property.

The dissent argued that an honest analyst to forensic tests will not alter his testimony when confronted by the defendant, i.e., just because he has to come to court.  “…The same cannot be said of a fraudulent analysis,” Justice Scalia wrote, noting cases where no analysis was done.   “Like the eyewitness who has fabricated his account to the police, analyst who provides false results may, under oath in open court, reconsider his false testimony.”  And, “like expert witnesses generally, an analyst’s lack or proper training or deficiency in judgment may be disclosed in cross-examination.”

Winning the War on Drugs by Quitting

The United States has been waging a “war on drugs” for some time.  We even had a cabinet-level “Drug Czar”, who reported directly to the President of the United States.  Reminiscent of the Viet-Nam war, the more we had to win, the less we seemed to win.

The “Drug Czar” has disappeared.  Much of the Republic of Mexico is consumed by open gun fights, kidnaping  and blatant police corruption.   Now the American border states, especially in Arizona, have experienced a spike in kidnaping. All this from the drug trade.

What drives the drug trade?  American consumers, of course.  It’s the American drug user who pays for much of the drugs world-wide, from Afghanistan to Thailand to Columbia, but especially in North and South America.  No matter what our law enforcement seems to do, that demand continues to drive the growing supply.

From time to time, people voice the idea that it’s time to declare victory in the “War on Drugs” and go home – just like in Viet-Nam.  Their point is, there is no “winning” this war, so we should admit the undeniable facts and get on with our lives.

The Law Enforcement Against Prohibition (“LEAP”) is the latest group to call out for this solution.  LEAP claims to have 13,000 members according to Jack Cole, executive director of the national association.  He served in law enforcement as an undercover narcotics officer for 14 years in New Jersey. The group claims 102 members in Oklahoma, including 11 members who have law enforcement experience.  They just put up a billboard on the Broadway Extension in north Oklahoma City that reads, “Drug Abuse is Bad.  The Drug War is Worse.”

LEAP makes the argument so often made comparing the “War on Drugs” with prohibition of alcohol in the 1930’s.  Prohibition spawned the rise of gangsters as the alcohol-seeking public paid for illegal alcohol.  Similarly, LEAP argues that all the crime associated with drugs, most notably all the violence, comes from the illegal character of drugs.  If the drugs were legalized, the market would evaporate overnight, the profit would disappear, and there would be no need for any violence.  Moreover, by legalizing drugs, the use of drugs and drug users could be better regulated and monitored that it can now, when everything is simply illegal.  The idea is that the government could control the quantity, quality, production, price and distribution of all drugs.

The argument is a good one, but the American public is just too afraid to accept drugs, too afraid to accede to addiction-causing drugs, notwithstanding the acceptance of addiction-causing alcohol.  It just seems too big a “leap.”

No surprise that law enforcement types decry LEAP and its arguments. Mark Woodward, spokesman for the Oklahoma Bureau of Narcotics and Dangerous Drugs said legalizing and regulating drugs would cause more problems than it would solve.  “It’s frightening and reckless that a group of law enforcement officers would endorse something like that….Look at what happened when we legalized alcohol and prescription drugs.   Now they’re the two most abused substances globally,” Woodward said.

President Obama has called for $14.1 billion to support the “War on Drugs” for the year 2009, according to the Office of National Drug Control Policy.  There is no let-up in sight.  The war goes on, just like Viet-Nam.  We could never win, but we just could not make ourselves face the fact that we were not winning and – apparently – never could win.

Investment in Drug/Alcohol Treatment

The National Center on Addiction and Substance Abuse has just released its three-year study.  For every $100 the state of Oklahoma spent on substance abuse over the last 3 years, $2.30 went toward prevention and treatment.  The state can save millions if it spends more on treatment and prevention, Joseph Califano said.

Califano is founder of the non-profit foundation, which is sited at Columbia University, New York. After serving in various government positions in the Department of Defense and practicing as a partner in the well-known law firm of Williams, Connolly & Califano, he served as United States Secretary of Health, Education, and Welfare from 1977 to 1979.  From that position he was fired by President Jimmy Carter, reportedly for his aggressive anti-smoking campaign.

“In terms of public spending, it is an upside-down cake,” Califano said.  “It is an inexcusable waste of money when we could avoid all the human wreckage, and all the public spending that’s imposed on taxpayers if we could just move to prevent this disease, to treat this disease.”

The report ranks Oklahoma twenty-second among the fifty states in percentage of substance abuse spending for prevention and treatment.  “The middle of the pack isn’t good enough…I would like to see us leading the nation,” said Terri White, state secretary of health and mental health and substance abuse services commissioner for the state.  “This report is a national study confirming what we know in Oklahoma, which is when you invest in the prevention of addiction and the treatment of addiction, the overall costs to the state go down even above what you spend.”

Oklahoma’s drug court costs about $5,000 per offender, whereas incarceration costs from $10,000 to $19,000 per offender per year.

Suggestions are that funding more treatment programs could come from a sales tax on alcohol of one or two cents or from the $95,000,000 Oklahoma Tobacco Settlement Endowment Trust.

The report is based on data from 2005.  New Hampshire spent $0.22 per $100, while Connecticut spent $10.39.  Oklahoma’s $2.38 per $100 is about the national average.  The report states that most of the spending by local, state and federal government is for health care from untreated addiction, which causes or contributes to more than seventy other diseases.  In 2005, Oklahoma spent $24,600,000 on substance abuse, while the federal government spent $238,200,000,000.

The Oklahoma Department of Mental Health and Substance Abuse estimates that 5% of the population over the age of 18 needs treatment for alcohol addiction (140,000 people); that 1% the population needs treatment for other types of drug addictions (21,000 people); that 6% of the adolescent population needs treatment for alcohol and drug addiction (about 20,000 young adults); about 7 ½ people need alcohol treatment for each person who needs drug treatment in Oklahoma.

Law Enforcement Agent will Not receive honor

Four law enforcement officers died last year from on-duty traffic accidents, but only three of them will have their names inscribed on the National Law Enforcement Officers Memorial in Washington, D.C.

Special Agent Robert P. Flickinger will not be included.  Flickinger was a 16-year veteran of the Chickasaw Nation police officer, or, as it is called, the Chickasaw Lighthorse Police Department.  He died March 7, 2008, in a two-car crash on State Highway 199.   Flickinger tried to pass another car on a hill east of Madill, according to the Oklahoma Highway Patrol, which resulted in the accident.  Flickinger had been with the Chickasaw Nation since 2004, was a graduate of the FBI National Academy and a member of the Lighthorse scuba diving and SWAT teams.

“The only reason given by the national memorial was that he was passing in a no passing zone,” Dennis Lippe, state law enforcement memorial chairman, said. “We and [Chickasaw Lighthorse] Chief of Police Jason O’Neal do not agree that a mistake in judgment should keep an officer from being honored – if it was in fact a mistake in judgment and not some other reason like falling asleep at the wheel or a medical reason,” Lippe said.

Two Oklahoma officers being honored this year also may been at fault in traffic accidents.  Latimer County Deputy Dustin Duncan was headed home on a Le Flore County highway when his patrol car crossed into oncoming traffic and collided with another vehicle. Kiefer police sergeant Les Wilmott, rear-ended a tractor-trailer on a Rogers County highway.  The case is closed, but highway patrol investigators never determined the accident’s cause.

If human error should disqualify officers from having their names engraved on the national memorial, Lippe said, then many officers would not be honored.  Flickinger was added to the Oklahoma Law Enforcement Memorial last May, “and he will continue to be honored in Oklahoma,” Lippe said.

Being at fault did not prevent the inclusion of Jeffrey Rominger, an officer with the Oklahoma City Police Department, in the Oklahoma Law Enforcement Memorial. The City of Oklahoma City even named a stretch of Interstate 40 for officer Rominger, who died in 2000 while cresting a hill in pursuit of a car on the wrong side of Interstate Highway 40 at highway speeds.  The driver of the car he was chasing, Patrick Kiplinger, was killed, along with Kiplinger’s 15-year old passenger nephew.  Also killed in the inferno was an Oklahoma Highway Patrol trooper, Matthew Evans, who was coming from the opposite direction, in the correct lane of traffic, unaware of the wrong-way, high-speed chase coming directly at him.

Kiplinger’s only known crime that night was what Jeffrey Rominger told the dispatch.  “I’ve got one running from me.”  Would Kiplinger have continued in the wrong direction had he not been pursued?  Whatever Kiplinger’s past criminal record was, was this chase worth it?  The wrong way on an interstate highway?  If the vehicle coming from the other direction had not been another law enforcement, this “accident” would likely be given a closer look.   Should shooting into a crowd of people be permitted?  Isn’t that analogous to speeding the wrong way on an Interstate highway cresting a hill?  If to anyone else, why not to law enforcement?  Only to stop the most dangerous crime, of which there is no evidence here.  Perhaps the City of Oklahoma City thought that since officer Rominger gave his life in the event, he deserved to have that stretch of highway named after him.  It is small comfort to the citizens of Oklahoma City or anyone passing through on Interstate 40, however, that this is what it means to “Protect and Serve.”

Larceny in Oklahoma instead of Finders Keepers, Losers Weepers

When you find apparently abandoned property, you may think it’s “finders keepers.”  But in Oklahoma, if you find it and keep it, you could be prosecuted.

Larceny – Lost Property

One who finds lost property under circumstances which gives him knowledge or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person who is not entitled thereto, without having first made such effort to find the owner and restore the property to him as the circumstances render reasonable and just, is guilty of larceny.
Oklahoma Statutes, Title 21, Section 1702 (Supp: 2009)

Interestingly, this statute which was enacted in 1910, has not one court decision construing it.

What is the penalty for such larceny?  That depends on the “degree” of the larceny, which in turn is defined by the value of the item found:

Degrees of Larceny

Larceny is divided into two degrees; the first of which is termed grand larceny, the second petit larceny.  Title 21, Section 1703 (Supp: 2009)

Grand Larceny and Petit Larceny – Definitions

Grand larceny is larceny committed in either of the following cases:

1. When the property taken is of value exceeding Five Hundred Dollars ($500.00).

2. When such property, although not of value exceeding Five Hundred Dollars ($500.00), is taken from the person of another.

Larceny in other cases is petit larceny.
Oklahoma Statutes, Title 21, Section 1704 (Supp: 2009)

Wrongful Convictions in Houston Caused by Bad Forensics

Now it’s the turn of Houston to develop a rash of wrongful convictions.  Gary Alvin Richard is expected to be released any day due to errors from the Houston crime lab.  He has spent 22 years in prison for a rape. The conviction for that rape was based upon forensic tests which now indicate he did not commit the crime.

Richard is the latest case to discredit the Houston Police Department crime lab.  Richard , if ultimately cleared of this crime, would be the fourth person whose conviction was overturned because of faulty forensics from the lab.

Both prosecutors and Richard’s defense lawyers agree that Richard should be freed on bail, but prosecutors are not convinced Richard is innocent of the crime. Prosecutors agree that the new lab results contradict the findings that were used to convict Richard at trial, but prosecutors maintain they do not know Richard is innocent of the rape.  Gary Alvin Richard’s lawyer, Bob Wicoff, claims the new tests prove his client’s innocence.

Other problems in the Houston lab have prompted a review of past cases.  A review was undertaken of more than 150 cases involving questionable blood-typing evidence.  The review showed in Richard’s case that crime lab analysts had conflicting results from their tests but reported only conclusions that pointed toward conviction.  Then they destroyed the physical evidence that was tested, thus eliminating any possibility of DNA testing.

While Richard was in prison, his mother, father and brother died.  His son, nine years old when he entered prison, is now 32 years old with two children.   But Richard himself is philosophical about it all.  Richard not surprisingly had prior convictions, convictions for drug dealing and theft. He said it was “God’s will that he ended up in prison.”  “I probably would have ended up back in prison or dead,” Richard also said in an interview from jail.  “I have gotten a hold of my life. I am not angry.”

Without waiting to pour over any other evidence, without a moments thought about any scintilla of evidence they might use to convict Richard in a retrial, the prosecution ought to dismiss all charges against Richard just for his attitude.

Cheating Prosecutors May Face Rare Penalties As Conviction is Reversed and Justice Department to be Investigated

It is not unheard of for the prosecution to cheat, hide evidence, manufacture evidence and generally manipulate the justice system to achieve injustice.  But in the case of former United States Senator Ted Stevens Republican-Alaska, not only was the ill-gotten criminal conviction dismissed but the Judge has vowed to investigate the Justice Department.  This is rare on both counts, especially for a Judge to pursue sanctions beyond the routine tongue-lashing.

“In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case,” United States District Judge Emmet Sullivan said, as he spoke for 14 minutes with thinly-veiled anger.  The trial of the former Alaska Senator was held in the District of Columbia, where Judge Sullivan sits.   Judge Sullivan appointed a special prosecutor to investigate the Justice Department lawyers who prosecuted Senator Stevens.  They repeatedly withheld evidence from Senator Stevens’ lawyers during the trial.  The trial resulted in Stevens’ conviction last October for lying on federal disclosure forms about gifts and home renovations he received from wealthy friends.  The rules of federal procedure provide for the appointment of a special prosecutor for contempt investigations, but is rarely done.

Judge Sullivan, appointed Henry F. Scheulke III of Washington, D.C., to investigate contempt and obstruction by the Justice Department lawyers.  Mr. Scheulke is a former prosecutor and experienced defense attorney who oversaw a Senate Ethics Committee investigation and influence-peddling allegations in 1989 against former New York Senator Alfonse D’ Amato.  Scheulke will investigate six career lawyers with the Justice Department, including the William Welch, chief, and Brenda Morris, deputy chief of the Public Integrity Section, an elite unit that deals with official corruption.  The other lawyers to be investigated for possible criminal charges are Joseph W. Bottini, James A. Goeke, Nicholas A. Marsh and Edward P. Sullivan (no relation to Judge Sullivan or to Brendan Sullivan, attorney for Senator Stevens).

The judge said the matter was too serious to be left to an internal investigation by the Justice Department, which had dragged its feet, he said, before looking into the misconduct.  He criticized Attorney General Michael Mukasey for not responding to complaints.  The said reaction of the Justice Department was “shocking but not surprising.”  Of course, this is the usual result of charges of misconduct by the prosecution: File 13.  Nothing ever happens, the prosecutors know nothing ever happens, so what disincentive is there not to do again.  It is similar to police who manipulate evidence: they only rarely suffer any penalties for their constant corruption of the justice system.

But Judge Sullivan did not let die the wrongdoing of these prosecutors.  He called on Attorney General Eric Holder, who dismissed Senator Stevens’ conviction on April 1st in recognition of his department’s ill deeds, to retrain all prosecutors in the Justice Department.

Some observers have remarked that, notwithstanding the wrongdoing of the Justice lawyers, there was a healthy amount of evidence incriminating Senator Stevens.  These observers suggest he has not been convicted, but he really doesn’t look innocent of wrongdoing.  Senator Stevens was defeated in his Senate reelection campaign days after the guilty jury verdict in this trial.

Regardless of the guilt or innocence of this Senator or a thousand other accused citizens, if the United States Justice Department, and its elite Public Integrity Section no less, cannot carry out its work in an ethical manner, our system of justice is corrupt.

During the five-week trial, the prosecution lawyers were repeatedly forced to admit they had not turned over materials to the defense.  Judge Sullivan even said then,“How does anyone have any confidence that the Public Integrity Section has any integrity?”  But the judge overruled defense objections, as always happens, and allowed the prosecution’s tainted case to go the jury.  Not surprisingly, the jury found the Senator guilty.  However, the surprise came when Judge Sullivan then threw out the jury verdict.  The still-further surprise came when the Judge gave notice that the wrong-doing prosecutors would not just go home to cheat again in their next trial.  This time they might have to pay some penalty for wrongdoing—for a change and for the better.  It’s about time.

“Drug Arrests” and Your Fictional Constitutional Rights

Police search vehicles every day on trumped up excuses and cover their tracks later.  Who cares?  Certainly not the citizens of the United States.  The protections citizens believe they have from the Fourth Amendment concerning unreasonable search and seizure simply do not exist in reality, on the street where the uniformed police always push the envelope in the name of “fighting crime.”

A pastor in Arizona was beaten by Border Patrol agents when they insisted on searching his car at a Border Patrol checkpoint.  The pastor thought he had rights protected by the Constitution.  The Border Patrol knew otherwise because they were more powerful and they could later justify pretty much anything they did because, no matter what they do, they are “fighting crime.”

Steven Anderson, pastor of Faithful Word Baptist Church in Tempe, Arizona, was stopped by Border Patrol checkpoint 87.5 miles from the Mexican border.  He was well within the United States.  When stopped, he refused to allow a search of his rented vehicle.  He had no drugs and no other occupants in his car.  That did not stop the Border Patrol, who used a drug sniffing dog, which, the Border Patrol claims, made a “hit” on Anderson’s car, thus giving them “probable cause” to search his car for drugs. When Anderson refused to allow a search, the police broke both front  windows, immediately began using a Taser gun on him and continued to so, bashed his head into the broken glass on the car window, dragged him out and shoved him on the ground and stood on his head, regardless that he never physically resisted at all,  As blood streamed over his face, they handcuffed his hands behind his back, put him in their trailer, and the officers came in to laugh at him.  Eventually the police drove him to be given eleven stitches but took as long as possible, with stops to exchange casual chat with some fellow officers along the way, before allowing Anderson to use the rest room.  This is standard procedure, in case you don’t know.  Police officers think it’s funny to degrade arrested suspects by making them wet their pants.

Anderson says the drug dog did not bark or give any other indication, but the Border Patrol insists the dog “alerted” to drugs in the vehicle.  Of course, no drugs were found in the vehicle, and we have only the Border Patrol’s word that the dog ever made any indication.  Some have claimed in the past that police goad  drug dogs to make a sign when the police want them to.  Then, the police can just point to the dog as though the dog is some sort of scientific instrument with objective reliability as the predicate for their actions.  But in many cases, as in this case, no one can say the dog ever made any indication at all.

After arresting him, the police told the bloodied Anderson this would never have happened if he had just answered their questions when they stopped him.  Anderson called them on their story switch and said “I thought you said you searched my car because the drug dog hit on it.”

The United States Supreme Court ruled in 2000, in Indianapolis vs. Edmond that police cannot set up roadblocks with drug dogs to randomly search vehicles for drugs.   However, an earlier exception had been made for the Border Patrol.  The Court in 1976 decided United States vs. Martinez-Fuerte, there is an exception to this rule which allows Border Patrol the unique power to establish checkpoints for seeking illegal immigrants, allowing a secondary purpose of finding drugs.  Therefore, while ordinary police cannot set up a checkpoint with a drug-detecting dog within the Fourth Amendment, the Border Patrol is allowed to do so, and the Border Patrol is not required to have “probable cause” before using their drug-detecting dog on a vehicle.  Moreover, the Border Patrol is allowed to establish checkpoints up to 100 miles inside the United States.

There is another exception allowed for checkpoints that applies to ordinary police.  That is the checkpoints set up to find drunk drivers, which was allowed by Michigan Department of State Police v. Sitz, decided by the U.S. Supreme Court in 1990.

Anderson was pulled from his car by officers of the Arizona Department of Public Safety, tasered and bloodied by the glass the police broke.  He was then jailed overnight.  Certainly he is startled that the rights he thought he had, the rights talked about on television and in classrooms are trumped by the reality of armed uniformed police who are on a mission to stamp out crime, and who are given more and more leeway by the courts.

Who cares?  No one, apparently.  The United States Supreme Court has continued over the years to chisel away at the rights of citizens so as to make things easier for police to act with impunity.  The Supreme Court has even mused about eliminating the exclusionary rule, the “Fruit of the Poisonous Tree” doctrine, which requires suppression of evidence illegally obtained by the police.  You can imagine how illegal activity by police will flourish if that action is taken. The Congress has never given any indication it believes its citizens are at risk from police increasing intrusion.  It, like the press and most Americans, believes that American citizens are at risk from “crime,” not from the crime chasers.

Only the Bill of Rights limits the use of government power.  Police naturally push the boundaries of the permitted use of government power- always.  They think they are doing their jobs by impinging on the right of citizens whenever a criminal case might be made.  Once in a while police officers are caught red-handed lying, trumping up evidence or the like, just to make a case against a suspect the police “believes” really has it coming.  This corruption in the system is inherent where the word of police is taken and rarely can be challenged factually.  The more slack leash the United States Supreme Court gives them, the police will be able to make a few more criminal cases stick, of course, but the more diminished will be the rights of the American citizen.  The Bill of Rights becomes just a wall ornament.