Scoplaw

Mean Spirited Conservatives

Really the only conclusion you can draw after listening to some of the Blawgosphere’s responses to the Ninth’s Circuit’s decision on the LA anti-public sleeping law.

The contention that sleeping on the street is conduct is true – the question is how voluntarily that conduct is.  If the state isn’t going to provide shelter, counseling, etc. to people are not able to procure private, paid shelter, it seems particularly egregious to criminalize the default option for many, which is to sleep on the street, without negotiating with private property owners so as not to violate trespass.   See this old chestnut (or bag of peanuts), which couldn't be more on point - Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State,  38 Political Science Quarterly (1923), 470-478.) 

Even then I’ve seen a judge lock up a homeless person for sleeping (trespass) on *private* property where there was no evidence the property owner desired to bar the homeless person from the property. 

There’s another question here, which is how much the government should restrict traditional uses of public space on first amendment grounds.

But aside from all that - ask why the conservatives care about this.  Humane compassion?  This is really the best way to deal with the problem of homelessness?  Or is another interest being asserted here.

Time to get Ill

I can't read this without wanting to vomit.  And this is my second time through it.  Bush should be impeached.

http://www.house.gov/judiciary_democrats/iraqrept.html

For a pdf version of the whole thing, you can click here.

Moussaoui

There’s been a lot of press about the Moussaoui trial  – specifically the witness coaching by Transportation Security Agency Senior Attorney Carla J. Martin.  (The TSA is under the Dept. of Homeland Security Agency, by the way.) 

If you’d like to work for the TSA, I’m sure there will soon be a position that’s available.   Does anyone out there have a picture of Martin?  I’d like to see what she looks like.

Clearly this is a deep embarrassment for the government.  Moussaoui is probably not in his right mind to begin with, and now the flimsy trial is tainted and looks that much less impressive (not that this is anything new). 

You wonder what the Bush Administration would have to do to have a judge take the death penalty option off the table or declare a mistrial.  I mean, really, what would they have to do? 

In a related question - given that the Bush Administration is so very hot to detain people who have alleged terrorist ties, why do they want to execute Moussaoui.  Wouldn't the nations interests be better served by keeping an Al-Qaeda operative alive and questioning him?  Who knows what useful things that Moussaoui might say?  As, opposed to, say, the hundreds of people detained at Guantanamo Bay who were determined to have done nothing wrong and to have no ties to Al-Qaeda? (These people were turned in by local bounty hunters seeking reward money.)

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I'm putting the following up in this post instead of commenting below (as I really should have kept on writing the initial post and don't want to bury this in the comments box.)

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Nice find on the photo, Lo!  I looked yesterday and couldn't find anything.

As to what I think about it - well, with the usual caveats that I'm not a lawyer, I think it's outrageous.  "The Rule on Witnesses" isn't an obscure part of evidentiary rules, and it is certainly not a "technicality" as some bloggers have suggested; it's an important rule that we see in play every day, in almost every courtroom. If you've ever been to a trial, you notice the witnesses are often called from outside the courtroom and then they often leave the courtroom once they've testified. That's "the rule on witnesses" in action.

From the Federal Rules of Evidence (emphasis mine):

Rule 615. Exclusion of Witnesses

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

The basic theoretical underpinnings of "the rule on witnesses" is pretty easy to understand if you think about trial dynamics:
1 It prevents witnesses from altering their testimony (even minutely) to align with previously introduced evidence, and
2 It thus helps to reveal any possible inconsistencies in testimony.

It's important to note that these don't necessarily involve someone consciously lying on the stand, but rather "coloring" their testimony or not fully thinking it through.

For example, let's say you're pretty sure you saw the defendant (D) do something, like walk out of a house carrying a television.  But it was a bit dark and you're not 100% sure it was on Tuesday or Wednesday.  If you're sitting in the courtroom and hear 3 other people tell a story about *this* guy stealing a TV on Tuesday, you might become that much more sure you really did see *him* on *Tuesday*. 

But suppose Witness 2 wasn’t entirely sure it was *this* guy, but was sure he saw someone with at TV?  And suppose Witness 3 was completely sure it was the guy, but thought it could have been a cardboard box?  You put them all in a room, and all it takes for a much more damning story is for just one of those uncertainties to drop out; which might take place on an unconscious level. 

Some might scoff and say that memory is pretty reliable, even though we know that it's not from our own experience and from modern science. Further, there are a number of disturbing cases where people have been convicted and sentenced for awful crimes largely on the basis of eyewitness testimony; these people were later exonerated when DNA evidence conclusively proved they could not have committed the crime (usually rape) that they were charged with.  (You have to wonder how many other wrongful convictions there are out there that don't have a prayer of being overturned on the basis of DNA evidence - simply because there's no DNA evidence in that case.)

Think about that for a moment - you'd expect that if someone was sexually assaulted, they'd have no trouble identifying their attacker (if the attacker wasn't wearing a mask, as many of the above weren't). What about the much *lower* standard of just observing someone doing something?  Imagine the last 20 retail transactions you've had - can you visualize all those persons in enough detail to describe them to a sketch artist?  Can you even remember what they were?

Granted, the witness testimony here isn't about identification, but the same principle applies.  You don't want witnesses "leaning" on each others testimony in any way. You don't want to derail justice by accidentally creating a false story where all the 5-10% doubts people have get erased because other people are telling a similar story, shading their facts with conclusions.

In this case, when you have an attorney (perhaps former attorney) sending witnesses written testimony that they can study and advising witnesses in a Death Penalty Sentencing how to emphasize points of their testimony (that they wouldn't otherwise emphasize) to make the government's case more coherent and stronger, then I think there's a very very very thin line between that and just fabricating evidence; it depends on how significantly you're changing the import of testimony by emphasizing and de-emphasizing elements of that story. 

So: What does it say about someone who takes that kind of action?  What does it say about "an officer of the court" who does?

Moussaoui is, as I noted, probably not quite right upstairs.  He may want to die, become  a martyr.  He may really have wanted to kill Americans.  Who knows?  To me the really disturbing thing about this is that when these things happen the government seems to be sending a message that all they want is some kind of PR trial where just about anyone will do, as long as they’re sufficiently demonic looking (in a press sense). 

Now, I’d like to make clear that I don’t personally *like* Moussaoui and that I don’t endorse a lot of the things he’s said (especially the things he wishes he’d done.)  But then again I don’t like a lot of other people, and I don’t want to see them dragged off to an execution by the state, especially when, as I pointed out, they’re such a good source of information. 

(It seems to me that in this sense the “war on terror” is inconsistent.  Either you’re for existing principles, in which case there shouldn’t be an Abu Ghraib or Gitmo, and then you execute people who have been fairly tried for the crimes they’ve been convicted of (i.e., no breaking the rules to get what you want) OR you’re for utility, in which case you might want to torture people to get useful information, but you certainly wouldn’t try to kill (execute) someone so intimately connected to the most devastating terrorist attack on our soil.  Instead we mostly detain and torture ordinary citizens and seek the death penalty for people who might actually tell us something.  You'll note this assumes that Moussaoui actually knows anything of value (which he would if he’s guilty as charged) and isn’t just a sacrificial lamb to the PR gods.) 

 

Petition

Law Students Against the Expanding Executive

Tamboli also points out that the ACLU has a petition designed to go straight to your representatives.

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As an aside, I often wonder how effective such actions are - Do they change public opinion and affect real outcomes of elections and judicial decisions, or do they drain away energy by absorbing political expression that does not even become a data point in the debate on the issue, thus serving as a kind of enabling pressure valve?  I really don't know.   

Honestly, there are times when I yearn for a parlimentary system.

More Cheney

I just wanted to note that there's a more serious underside to the story (in fact, this is perhaps the only story) which is that a human being was grievously injured, perhaps disfigured, and has shotgun pellets lodged near his heart.  For an older man, this could be quite serious indeed, even life threatening or life shortening. 

I don't want my comments on the blog to detract from that.

It's odd that one of my childhood heroes, Greg LeMond, was similarly injured and won a Tour de France with shotgun pellets in his heart lining (and they say Armstrong is tough).  I say that it’s odd because, on one level these kinds of incidents *do* occur, and the right way to handle them is to speak to the shooter, the victim, and everyone involved before deciding whether or not to pursue criminal charges.  The victim (or the victim’s surviving family in the worst case) can also try to pursue a civil suit for damages, which, in this case, could be considerable.

I responded kind of bitterly when I first heard the news, thinking that the whole event would get swept under the rug.  On one hand, you’d like to see the executive office not be pestered by minor complaints and lawsuits dragging them hither and yon to sit in courtrooms all day (and there’s a legal doctrine for this).  On the other, the executive office should certainly be accountable for serious crimes, and it’s hard to see what could be potentially more serious than shooting another person.

But the level of spin-control, including offering Cheney up to be sacrificed on the altar of comedy (which might defuse tensions and allow things to blow over in the media), is understandable, but disturbing, so disturbing that I think we ought to look carefully at what’s going on.  Please remember that Cheney, during the 2000 campaign, said Clinton and Gore "offer more lectures and legalisms and carefully worded denials. We offer another way, a better way, and a stiff dose of truth,” and "We're embarking on a great crusade to restore dignity and integrity to Washington." 

Based on the bare bones of the media coverage, I don’t think that Cheney was deliberately trying to kill Whittington – that just does not seem to make much sense, does it?  I suppose that there might be a reason for it, but let’s assume that looking for possible motives reveal nothing – no long smoldering resentment, insults on the day, political tensions, that might result in a hasty act of aggression or a planned murder in the guise of a hunting accident (a favorite and very old form of political assassination).  I’m not saying we should rule it out entirely, but if nothing is found it won’t be shocking.

However, I do think that it’s completely possible that Cheney was careless or reckless with his loaded firearm, and that carelessness or recklessness resulted in the severe injury of another man.  That’s a crime.  There might be some disagreement over what to do with Cheney if he’s committed such a crime, but it’s none-the-less a pretty serious matter.

As Seth points out, there are a number of problems with the “investigation” thusfar, as it’s been reported by the press.

Dick Cheney: How to Hunt

Well, the photo proved popular, and there's nothing I like more than caving to popularity, even though the subject is kind of like shooting fish in a. . .righto.  Thus, I've decided to crack open the vault and, with the help of some white house press photos of Dick Cheney out hunting, show the proper way to hunt both quail and 78 year old attorneys. 

How to Shoot Quail (note the elevated gun, aimed to hit flying quail):

How to Shoot a 78 year old attorney (note the depressed gun, aimed to hit crouching 78 year old attorneys):

How to spot Quail (Quails are birds):

How to spot the 78 year old attorney (attorneys are humans, which are primates that outweigh quail by a factor of like 400 or something, but as the Vice President can attest they are very!!!! easily confused with quail due to the silver crest on the head and blue torso coloring):

Kapow

Dick Cheney Shoots a 78 year old with a Shotgun

And in so doing, reveals the double standard of American Law.  Were this any other person, and not the VP, they'd be criminally investigated for shooting someone.

I'm also glad to see the US press running in to characterize this incident as an accident.  Granted, it might have been stupid, reckless, arrogant, high-handed, or what have you, but I'm glad the psychic powers of the press came through for Dick on this one.  I was worried that there might have to be some kind of investigation by law enforcement or something (and *gosh* wouldn't that put a cramp on the VP's weekend?)  But no worries on that score - see the first paragraph. 

Also, While We're At It

Can we just impeach Bush now?  Please?

From http://www.whitehouse.gov/news/releases/2006/01/20060126.html

Q    Mr. President, though -- this is a direct follow up to that -- the FISA law was implemented in 1978 in part because of revelations that the National Security Agency was spying domestically.  What is wrong with that law if you feel you have to circumvent it and, as you just admitted, expand presidential power?

THE PRESIDENT: May I -- if I might, you said that I have to circumvent it. There -- wait a minute.  That's a -- there's something -- it's like saying, you know, you're breaking the law.  I'm not.  See, that's what you've got to understand.  I am upholding my duty, and at the same time, doing so under the law and with the Constitution behind me.  That's just very important for you to understand.

Secondly, the FISA law was written in 1978.  We're having this discussion in 2006.  It's a different world.  And FISA is still an important tool. It's an important tool.  And we still use that tool.  But also -- and we -- look -- I said, look, is it possible to conduct this program under the old law?  And people said, it doesn't work in order to be able to do the job we expect us to do.

And so that's why I made the decision I made.  And you know, "circumventing" is a loaded word, and I refuse to accept it, because I believe what I'm doing is legally right.

(Except that he knew about the law, then he broke the law.)

Senator Russ Feingold Gets It

Do you?

Bush's State of the Union

Have I mentioned lately that I'm in love with this woman?