The Ghosts of Clients Past

A few weeks ago, on a whim, I typed some of the names of my long-past clients whom I had long ago represented, into the Michigan Department of Corrections "Offender Tracking and Information System.

The first two I looked up were clients I represented on appeal, under a program offered by my law school and the State Appellate Defender's Office, I briefed the cases for appellate attorneys who signed the briefs and argued the case. One of the cases was very interesting to brief, and I put together a compelling argument that the defendant was convicted on the basis of an improperly obtained confession, but as they say, "bad facts make bad law". The facts made it almost certain that the woman had killed her boyfriend as the result of a fight which resulted from his spending the woman's welfare check on crack. The woman's sentence was rather light - one lawyer speculated that the trial judge gave that relatively short sentence to "make up" for the bad ruling permitting use of the woman's statement - and her appeal had been delayed for several years for various arcane reasons. Although her conviction was affirmed, she was paroled soon after the appeal was decided and, apparently, has not since been in trouble.

The second was a man whose conviction made me angry - in part because he got such a raw deal, in part because I suspected from the outset that his appeal would be unsuccessful, and in part because I pay taxes. You rarely win criminal appeals by arguing that the evidence was insufficient to support conviction. Correction - you rarely win criminal appeals, period, and almost never when the issue is sufficiency. This man, who couldn't speak a word of English, unquestionably showed very poor judgment - agreeing to ride along with a friend on an infamous drug route from Illinois into Michigan, while both consumed alcohol in the car. They were pulled over, supposedly for driving below the speed limit. A keen-eyed officer noted that the rear seat was unbolted from the floor of the car, and cocaine was found beneath the seat. Beyond what I just described, the strength of the case against the passenger was that it appeared that the name "Juan" had been written at one time on the plastic which had been used to wrap the Cocaine - and that was his middle name. (Well, not actually his middle name, which I changed for this narrative from something about as common.) Based upon the quantity of cocaine, he received an automatic minimum sentence of 20 years without possibility of early release. The driver, guilty as the day is long, had not yet been tried - he entered into a plea bargain for a five year sentence. The client, though, benefited from the revision of Michigan's drug sentencing laws, and was released from custody after a "mere" twelve years. Cost to Michigan's taxpayers for trial, appeal, room and board, probably not less than $400,000.00.

The last was convicted of assault with intent to commit murder, and a host of associated crimes, at the age of seventeen - in Michigan, making him an adult in the eyes of the criminal justice system - and had been sentenced to a great many years in prison. The law school's clinical law program was representing him in a civil rights suit. He was polite, well-spoken, and witty. What struck me most about him was that we were almost the same age. When I was starting college, he was going to prison. As I was about to graduate, he was clinging to the false hope that he might be released in less than two more years. Were we switched at birth, I like to think that my personality would have kept me from following his path - but his changed upbringing would almost certainly have led to his leading a very different life. His picture is in the OTIS database. In some ways he looks young for his age - probably as the result of having spent most of his life incarcerated and thus out of the sun. He looks tired. He'll probably be in prison for at least another decade, probably longer.

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Elopement

What started out as a sunny getaway in Costa Rica turned into something much more exciting....



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Out of Town....

See you next month.

Reminding us of her roots....

Mona Charen today brings back Newt Gingrich's proposal for replacing foster homes with orphanages. Er, I mean boarding schools. If properly funded, managed, and supervised, boarding schools could theoretically be a good thing for some kids who might otherwise languish in a dysfunctional "child protection" system. But the troubled history of state boarding schools, and the reasons such endeavors have been abandoned following prior efforts, should give one pause....

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Let Loose the Hounds of....

According to the oh-so-insightful Charles Krauthammer, the Democrats are attacking poor President Bush when all he's done is let loose one (extraordinarily hypocritical) Internet ad, and one critical speech.... They're "crying wolf" over "how the Republicans are preparing to go negative in the general election with a campaign of singular viciousness against John Kerry." Let's see what some of his colleagues have to say on the matter in their latest editorials....

• Robert Novak insinuates that Kerry is lying when he says he didn't know Jane Fonda back in the days when he was an anti-war protester (while allied with an anti-war group "whose diatribes against flag and country are shocking from the distance of three decades").
• Oliver North whines about being attacked by Kerry over his illegal activities in the Iran-Contra scandal. "He says he held me accountable? How? When? Where? Right, Ollie - we remember. You got off on a "technicality" after being convicted at trial. Rub it in, why don't you. (North also attacks Kerry's military service, claiming it was short, and lies about Kerry's testimony to Congress about the war....)
• Jonah Goldberg depicts Kerry as a wimpy "liberal" who would be afraid to use force, and whose election would be welcomed by "Osama bin Laden, Mullah Omar and their cronies.
• Ross Mackenzie tells us that Kerry is a far-left "liberal" with an indefensible record and the inability to give a straight answer.
• Paul Greenberg suggests that Kerry is waffling on the Iraq war, isn't willing to stand behind his record, and suggests that all of the Democratic candidates are lying when they say the White House described Hussein as an imminent threat
• William F. Buckley Jr. hits Kerry with the backhand: "As for John Kerry, he can be trusted, never mind his cakewalks on army service, the Vietnam War, the national responsibility for deterring enemy activity, and a basic commitment to property rights."
• David Limbaugh? The man's contempt for Kerry knows no focus.

Yup... Not one negative word. Thanks for tipping us off to that, Charles.

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Iraqi Women

Iraqi women are facing some difficult times - I don't know if I should be more impressed by them, or more scared for them.

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Coulter Most Foul, II

A true conservative would own up to her misconduct and apologize. But no - like the "conservatives" she worships - including Joe McCarthy and George Bush, Jr. - that would be too much to expect from the likes of Ann Coulter. Her effort to claim that she "technically" told the truth is positively Clintonian.

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"But That's Different"

A confessed drug addict and suspected felon, with the aid of the ACLU and a clever trial lawyer, is trying to get a judge to suppress on a "technicality" the records which are likely to result in the addict's criminal conviction - they claim that the records, although accurately reflecting the addict's conduct, were improperly seized by the prosecution and should thus be suppressed.

Rush Limbaugh, as you might expect, stands firmly behind the drug addict, the trial lawyer, and the ACLU.

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For the Graphically Inclined

Inspired by the fake photograph of Kerry and Fonda, the London Guardian has started a contest, Shampaign moments, asking readers to:

Help liven up the build-up to the US elections by entering our photograph-doctoring competition. A selection of our favourites will be published on the site.

Happy editing.

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AP Math: One, two, three, four, two....

No, not "Advanced Placement" - I'm talking about the Associated Press: Democratic Presidential Race Down to Two. Or, as they later say,

The Democratic race once had 10 candidates, but the field is now down to five, including Dean, Dennis Kucinich and Al Sharpton, three candidates who haven't won a single contest.

Five? Two? What's the difference?

Howard Kurtz explains,

The media are desperate for a two-man race -- not just because it's a better story line but because the alternative is no race, if Dean and Edwards keep splitting the non-Kerry vote.

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The Wall

Today's Toronto Star describes the massive wall that the Sharon Government is building, not along the Green Line border but often very deep into Palestinian land. The article points to at least the perception that the wall is diminishing terrorism - the reason I support Israel's right to build a wall on the Green Line - but also its horrendous effect on Palestinian civilians, as a result of the byzantine path of the wall into the occupied territories.

The World Court has agreed to hear litigation over the placement of the wall. Israel, anticipating a loss in that forum, is refusing to participate in the proceedings.

Meanwhile, Shaul Arieli, the last Gaza Brigade commander, is criticizing the present fence plan not on the basis of its extension into Palestinian lands, but on more pragmatic grounds: he fears that it will exacerbate terrorism.

Last week, he was called in for a closed session with senior officials of the National Security Council, chaired by Major General (res.) Giora Eiland. Some close associates of prime minister Ariel Sharon have also been listening to what he has to say. He tells all the same - the zigzag route of the fence drawn up by Sharon and the heads of the security establishment will create enclaves within the Palestinian zone, cutting off villages from the large Palestinian cities.

This will not only fail to prevent terror, it will propagate terror, particularly in the close environs of the separation fence. Aside from that, he makes it clear that there is no chance of the world accepting the route of the fence in its current version.

The planned route of the fence, part of which is already standing, was fed by Arieli into a computer, in accordance with updated data furnished by the defense establishment's Seam Line Authority.

The PowerPoint presentation shows, by maps and aerial photos that cover the entire West Bank, the alarming truth about the fence. When completed, some 300,000 Palestinians will be imprisoned between it and the Green Line, cut off from the large urban centers. Another 300,000 Palestinians will be adversely affected by being cut off from their fields or wells.

In the Jerusalem area, the fence will separate 270,000 Palestinians, who would live on the west side of the fence within the metropolitan area of Jerusalem, away from the rest of the Arab population in the West Bank.

* * *

"If you take a good look at the map," says Arieli, explaining what he believes are the real motives behind the fence route, "you'll see that there are also two settlements, Naaleh and Nili, within this enclave in the Budrus area. It's all intended to ensure that both of them will be west of the fence. The enclave in this area captured no less than nine Palestinian villages in the area between the deep-territory barrier and the separation fence that runs along the Green Line.

"The objective is for them to not have access to the State of Israel, for demographic reasons. Conversely, the Palestinian authorities will have a hard time supplying the residents of this area with health, education and legal services, not to mention jobs.

"The village residents will not be able to continue living under these sorts of conditions. They will abandon their homes and go to the big cities, at which point it will be possible to expand the borders of the State of Israel without paying the demographic price. It would be voluntary transfer."

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Faux News in Russia

Apparently, Russia's television news service isn't very good at confronting the Putin Administration over its transgressions.

To think....

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Strange Bedfellows....

The following events, of course, have nothing to do with the upcoming election campaign... unless you have a brain in your head and can see the obvious:

• Bush went to Florida to set off a NASCAR race. ("The White House described Bush's overnight trip to Florida as non-political, meaning that taxpayers - not Bush's reelection campaign - will pick up the tab.")


• Tony Blair is planning a trip to Washington for a series of photo ops with Bush.

That second story.... what to make of it? Tony Blair "modernized" Britain's Labor Party, dragging it kicking and screaming into the political center, and in the process marginalizing the stalwart Conservative Party. But at least as he has historically expressed them, whatever you make of his support for the war in Iraq, his politics are far removed from those of Bush.

At the same time he plans his own trip to Washington, Blair is reportedly discomfited by contacts between John Kerry and Gordon Brown, a Member of Parliament and Chancellor of the Exchequer.

Tony Blair last week said that he had "learned enough... not to interfere in the American presidential election".

Nevertheless, Mr Blair is bound to become embroiled in the re-election effort of his ally in the Iraq war during a planned visit to Washington later this year.

Meanwhile, Brown supporters are quietly offering help and advice to the campaign team of the man seeking to unseat Mr Bush.

Like Bush, Blair's popularity has taken a beating in recent months, and he legitimately fears a leadership convention. He apparently believes that the reelection of Bush will strengthen his position as leader of the party, and thus permit him to stay on as Prime Minister. (For those of you not familiar with the process, in a parliamentary system the leader of the majority party is Prime Minister - and if the leadership changes as the result of a party convention, the new leader becomes Prime Minister.) Brown may be anticipating a leadership challenge, perhaps leading to the selection of Michael Howard as the new leader. (Or perhaps somebody else?)

More than ever, Tony Blair's future seems to be tied to that of President Bush. To the extent that Blair ever sincerely held a particular set of political values, like so many politicians before him he seems willing to sacrifice them all in order to cling to power.

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What Kerry "Should" Do

Today's Washington Post lectures John Kerry:

Now, with the nomination seemingly within his reach, the Massachusetts senator must begin to more fully explain where he stands on the major challenges facing the country.

He must?

Last I checked, the purpose of the primary process was the selection of a party's candidate. The purpose of the subsequent election process is to choose between the parties' selected candidates. There may be benefit to Kerry, and perhaps to voters, if Kerry were to set forth a more specific platform - but there is also risk of harm. And there is absolutely no reason he must provide a detailed plaform unless and until he receives the nomination.

Assuming, as the Washington Post clearly does, that Kerry will be nominated, the principal beneficiary of an early enunciation of a Kerry platform would be President Bush. Bush could (and would) immediately start spending the astronomical sums he has raised for his unopposed "race" for his party's nomination to attack Kerry's platform. That would benefit Bush far more than absurd, hypocritical attacks on Kerry as having taken money from special interests - charges which open Bush up to very credible charges of hypocrisy. It would certainly benefit Bush better than having Republican ankle biters like Matt Drudge try to dream up a Kerry affair with an intern.

The editorial also demands that Kerry explain how he will treat post-war Iraq:

More important, Mr. Kerry should clarify what he believes should be the objectives of the U.S. mission in Iraq going forward -- and what military and aid commitments he is prepared to make. In his last substantive speech on the subject, in December, the candidate called for replacing the U.S. occupation authority with a United Nations mission and recruiting NATO and other allied troops "so that we get the targets off the back of our soldiers." But there is no prospect of a U.N. administration; its envoys are instead negotiating the terms under which an Iraqi government will succeed the U.S. authority. The Bush administration has meanwhile invited NATO to share responsibility in Iraq, only to receive a cool response from Germany and France. Mr. Kerry spoke of "completing the tasks of security and democracy" in Iraq. But he hasn't yet offered a realistic plan for how he would do it or committed himself to the likely cost in American troop deployments and dollars. If he is to offer a credible alternative to Mr. Bush, he must explain how he would manage the real and dangerous challenges the United States now faces in Iraq -- without the fuzzing.

As a possible candidate, Kerry is in a poor position to make promises about what he would do. As a nominee, Kerry will be in a position to speak with world leaders as the alternative to Bush - and may in fact be able to promise that the coolness Germany and France display toward Bush will be replaced by a new era of cooperation - once Bush has been replaced with a President who has not attacked and belittled the leadership of those allies. Even accepting their pre-war conduct of those nations as reprehensible, even Bush should have realized that there was little chance of turning things around by spitting in their leaders' eyes.

Meanwhile, perhaps taking his lead from David Brooks, Thomas Friedman presents his dream interview between Kerry and Tim Russert. I agree that Kerry needs to, at some point, express firmly that the U.S. will not abandon Iraq before that nation is stable and ready for self-rule. I expect him to do that after he has a lock on the nomination - perhaps at the national convention in his acceptance speech.

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It's All About Me!

Is it megalomania? In Thomas Friedman's challenge to Arab nations to reaffirm, and unconditionally extend to Israel, Prince Abdullah's peace plan - full normalization with Israel in return for full withdrawal from the territories - Friedman writes, "You are holding an Arab summit this March. I want you guys to invite Sharon and me to attend." I agree with Friedman that it would be a very positive move for the Arab nations to invite Sharon to their summit and unconditionally offer that plan, but... "and me"? Which nation does Friedman lead, again?

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The Credibility Gap Continues

So Bush has released what is claimed to be all of his Guard records, which for some reason

...left unanswered questions about what duties Mr. Bush – trained as a fighter pilot – performed in late 1972 and early 1973, and why he failed to take a flight physical, which resulted in his suspension from flying.

The Washington Post also noticed Many Gaps In Bush's Guard Records

The records show Bush was an eager fighter pilot who said he wanted to spend a lifetime in aviation. But they provide no evidence that he did any military service in Alabama, to which he had requested a transfer in May 1972 to work on a Senate campaign that ended in November 1972.

I am reminded of certain defendants during discovery who, knowing that they have something to hide, refuse to cooperate with discovery requests. Documents are painfully teased out of them through repeated "motions to compel" and court orders, but somehow never quite fit the request. When the defendand simply cannot avoid dislcosure any longer, perhaps at risk of default, the plaintiff receives a truck full of documents with the relevant page ostensibly hidden somewhere inside. (If you can't withhold it, maybe you can bury it.)

In the Gene Hackman movie Class Action, which is a highly fictionalized account of the Ford Pinto litigation, the defendant went a step further - they sent over the truckload of records, ostensibly "everything they had", but didn't include the "smoking gun" document. Of course, in that movie the plaintiff's lawyers suspected a "smoking gun" but couldn't prove it existed. Here, pretty much everybody knows that records of Bush's service exist somewhere, and pretty much everybody suspects that Bush knows exactly where they are - but that he is intentionally withholding records he thinks will be damaging. Otherwise, why wouldn't he have disclosed the records a long time ago? Why would he be dribbling them out, at first page-by-page and now in torrents, instead of simply offering an open file?

I think he should have put the issue to rest with the type of statement I suggested yesterday. But no, the President who ran on the platform, "I trust you", doesn't trust us enough to take responsibility for his actions.

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Coulter Most Foul

The L.A. Times rebukes Ann Coulter for her latest lies:

The Heritage Foundation posts an Ann Coulter column saying a Kerry supporter, Vietnam vet and former Georgia Sen. Max Cleland, "did not give his limbs for his country" because the grenade that injured him was not hurled in combat. How absurd and insulting to all veterans.

Read what really happened.

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... Because We Don't Really Care About Children

There's something of a furor in New Jersey, were a high profile failure of the child protective system has revealed systemic faults, top to bottom, in that system. Cries are going out for "reform". Head will roll. Whatever.

The fact is, failures like that occur every day, around the nation. The difference is that if they don't inspire a headline, nobody notices. Our nation is very good at caring about specific children - a baby who falls down a well, the sole survivor of an airline disaster, the four starving boys from this case - and many Americans will give in an extraordinarily generous manner to funds set up for these children. But when children fall into the amorphous classification of "other people's kids", or worse - the children of the poor - our generosity ends. Where, with a name and a face, we can overlook the parent's "fault" in how the child was raised, and can overlook the child's "fault" in being born into poverty. But when it comes to taking action which will help impoverished and disadvantaged children as a whole, we plug our ears and shut our wallets.

The faults with the New Jersey child protective system were very real. But the fault for those defects lies with the people of the State of New Jersey. And when a similar travesty is discovered within your state's underfunded, overburdened child protective system, as will all-but-certainly happen, you should be ready to accept your share of the responsibility.

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The Credibility Gap

When I first heard G.W. Bush explain his rationale for a war in Iraq, and the whole "Hussein's a danger", "Hussein's in bed with Al Qaeda", "The post-war will be all candy and flowers" arguments, I was a bit more than skeptical. My gut reaction was that it was a deliberate snow job, to dupe the people into supporting a war of choice. As time went on, my perspective changed a bit - not on the fact that this was a war of choice, or that the evidence of Hussein's danger to other nations and supposed ties to Al Qaeda were being blown completely out of proportion, and certainly not the notion that the post-war occupation would be easy - but on the issue of Bush's credibility. I do think that Bush was overstating his case - in the law, we might deem it "zealous advocacy" - but that on the whole he truly believed what he was saying. (That's scary in its own right, certainly, but it doesn't make him a liar.)

Thus, scratch my head a bit when I read the Washington Post's "Most Think Truth Was Stretched to Justify Iraq War ":

Barely half -- 52 percent -- now believe Bush is "honest and trustworthy," down 7 percentage points since late October and his worst showing since the question was first asked, in March 1999. At his best, in the summer of 2002, Bush was viewed as honest by 71 percent. The survey found that nearly seven in 10 think Bush "honestly believed" Iraq had weapons of mass destruction. Even so, 54 percent thought Bush exaggerated or lied about prewar intelligence.

That is, the nation's impressions of Bush's statements on Iraq are going in the opposite direction of mine.

I think this may be associated with the Bush Administration's refusal to take responsibility on the issue of Bush's Guard service, and their dancing around the issue of releasing records which would establish precisely how Bush completed his Guard service. The Bush Administration's evasions make it hard to believe that they aren't hiding something, even if you accept that he "completed" his Guard service in an acceptable manner. If I were Bush, I would accept the thirty seconds of pain (as I described a couple of days ago), by making a statement to the effect of,

As you know, questions have been raised about my service in the Texas Air National Guard. As you know, I have documented that I completed my service, and that I received an Honorable Discharge at the conclusion of my service. Now questions are being raised as to how I served out the last two years of my Guard duties.

At the time I served in the Guard, I was a young man. An immature man. And yes, I took advantage of the relaxed reporting and service requirements of the time, and completed my Guard duty in a manner which was better for me and my selfish personal goals than it was for the Guard and the nation. I am very proud of my service in the Guard prior to that time. But as I look back on it now, I am not proud of the choices I made during my last two years of service.

I have since learned many lessons in duty, responsibility, and humility. I regret and am deeply sorry for the mistakes I have made in the past. The man I am today would have acted very differently.

If he chooses not to clear up the clouds that hang over his credibility, they are likely to continue to darken.

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The Milosovic Trial

Although the political spin and conclusions set forth in this analysis of the Milosovic trial makes me choke, the author's larger point about the absurdity of the process seems valid. Not the question of whether prosecutors have overstated the strength of their case, or whether the defense has poked some holes in the prosecutor's initial statements - that's to be expected in pretty much any trial, let alone one as complex as this. But the fact that this trial has been going on for two years, and the fact that the clumsy and prolonged proceedings serve as a warning (although not necessarily the same ones inferred by the author) in relation to the nascent International Criminal Court.

In an era where international institutions are under attack, this type of proceeding provides no reassurance that international institutions can fairly or efficiently resolve something as mundane as a criminal prosecution - granted, a prosecution for war crimes, but on the basis of facts and allegations which are far less complex than the world's courts handle on a routine basis. It may well be that the ICC can overcome some of the institutional defects that make the tribunal so slow and clumsy, but if it cannot there really isn't much point to hand-wringing over whether the U.S. should or should not join. If the ICC's eventual prosecutions will look like this one, it will defeat itself.

It will be interesting to see if the U.S. sets a higher standard for justice and efficiency with whatever process it creates or permits for the trial of Saddam Hussein.

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