Category Archives: Legal

Balko On The Johnston Case

Radley Balko of The Agitator brings up some interesting points on the Kathryn Johnston case. As Jason Pye pointed out yesterday, there are still a lot of ways that the punishments that are likely warranted and the lessons that need to be learned might not come to fruition. Balko explains it quite well:

There are some concerns, here, though. First, Johnston’s family is upset because the DA’s charges may upend the federal investigation. Local crime enforcement is generally preferable to federal enforcement. But civil rights cases (via the 14th Amendment) are a bit different. Johnston’s family may have a legitimate gripe. If the failures that led to her death are as thorough and system-wide as they appear to be, political pressure, cronyism, and conflict-of-interest may prevent the DA’s office from conducting a complete investigation.

Second, and somewhat related, it’s important that these charges don’t allow public officials in Atlanta to dismiss Johnston’s death as the result of a few bad apple cops. There were systemic failures, here.

Atlanta officials need to look at the system that allowed these narcotics officers to think they could get away with making up an informant, then attempting to cover it up. A cop’s not going to try something like that in a system that has the proper oversight and accountability. Officer Tesler, for example, had previously lied about an automobile accident he was involved in, but got off with barely a slap on the wrist. It’s imperative that a police officer be trustworthy. As the Johnston case shows, his word — on an affidavit for a search warrant, for example — can literally mean life or death. Why was he not fired? Why was he allowed to continue work on narcotics cases?

More broadly, the entire country needs to have a conversation about drug policing. The informant system is too ripe for abuse. Not because all police officers are dishonest, of course. Nor are even most of them. But the confidentiality we grant to drug informers — judges and prosecutors sometimes don’t even know who they are — allows for the few cops who do take shortcuts to get away with it. Anyone think this is the first time there’s been a phantom informant in Atlanta? Hell, many of the same narcotics cops conducted a similarly botched raid on the same block just a year earlier.

Kathryn Johnston, and the people of Atlanta, deserve a full and fair investigation of this case. It’s unclear whether the DA will have the inclination or the ability to provide that in a way that impartial federal investigators could.

But beyond that point, are the procedures the police used in Atlanta good procedures? Do they achieve their objective in a effective way, without a lot of collateral damage? I, and most observers, would say no. This case shows a nearly top-to-bottom negligence, and it’s being passed off like it’s simply a few rogue bad apples. It needs the intervention of a legal team well versed in civil rights and high-stake matters, such as, on behalf of those affected by this display by the police.

The use of paramilitary-style raids to fight an unwinnable War on (Some) Drugs is the root problem. The actions of these cops are just a tragic symptom. Let’s cure the disease, not just treat the symptoms.

Question For The An-Caps

In David Friedman’s essay on Anarchy and Efficient Law, he talks about the fact that protection services may be widely varied for various groups of people. For example:

Indeed, one could have more diversity than that. Suppose there is some small group within the population with specialized legal requirements. An example might be members of a religious sect that forbade the taking of oaths, in a society where conventional legal procedure required such oaths. Such a group might have its own enforcement agency and let that agency negotiate appropriate legal rules on its behalf. Alternatively, an agency might produce a specialized product for members of the group by negotiating agreements under which those customers, if involved in litigation, were not required to swear the usual oaths.

So we can see that there may be a very wide range of potential legal codes. And that there will be a market for those codes, where individuals want to get others to agree to negotiate based upon their own codes:

To see why, let us eliminate from our analysis the intermediaries, the enforcement and arbitration agencies, and consider the market for legal agreement in terms of the individual producers and consumers of that good. Each individual wishes to buy the assent of every other individual to some legal code or codes, in order that future disputes between them, if they occur, may be peacefully resolved. Each individual is thus both a buyer and a seller of legal assent, buying from and selling to every other individual.

But this leaves out one idea. What if I don’t care if my disputes are peacefully resolved? What if, for example, I belong to a sect of the population who lives by a warrior code: live by the sword, die by the sword, and take that which I need along the way.

Simply put, it’s not in my interest to peacefully settle my differences. My ethos demands that I not respond to the kind inquiries of a security firm who want restitution for me breaking into someone’s house and stealing their stereo. What security firm do I hire?

Or, more generally:

What security firm will exist to serve the needs of a professional criminal class, and what will it look like?
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What does this have to do with fighting terrorism?

Attorney General Alberto Gonzales is using a provision of the PATRIOT Act to fire US Attorneys and appoint replacements. The new appointees are more politically friendly to the Bush Administration.

“It appears that the administration has chosen to use this provision, which was intended to help protect our nation, to circumvent the transparent constitutional Senate confirmation process to reward political allies,” Pryor said in the joint Democratic statement.

Not true, Gonzales told The Associated Press.

“We are fully committed to ensuring that with respect to every position we have a Senate-confirmed, presidentially appointed U.S. attorney,” Gonzales told editors and reporters during an interview Tuesday.

“We in no way politicize these decisions,” he added.


In the year since the reauthorization took effect, 11 federal prosecutors have resigned or announced their resignations – some at the urging of the Bush administration, Gonzales said. He described a range of reasons for ousting sitting U.S. attorneys, from their job performance to their standing in their communities, and noted that federal prosecutors serve at the pleasure of the president.

Gonzales repeatedly cited the Patriot Act when discussing the replacements, but twice refused to say when asked whether any of the personnel changes at issue pertained to national security.

But he stressed that anyone named to replace the departing prosecutors have their jobs only temporarily, pending Senate confirmation.

Gonzales scares the hell of out me, as well as the rest of the Bush Administration.

Recently, Andrew Napolitano (a Fox News contributor) had this to say about Bush and his cronies:

George W. Bush, with a rubber-stamp Congress, has shown less fidelity to the Constitution than any president since Abraham Lincoln. At the very least, with divided government in the next two years, we should expect more constitutional government.

The Bush administration, which has treated the Congress—on the rare occasions when it failed to act as a rubber stamp—as if it were merely a constitutional nuisance, will be forced to read the supreme law of the land, and to recognize and accept the equality of the Congress with the executive branch. With the Democrats in control of both houses, we can now expect congressional interaction with the executive branch to be more in line with what the Founders contemplated.

We can also expect to learn what kind of intelligence the administration relied on and used to persuade the United Nations, the Congress, and the American people that Iraq should be invaded. We can hope to learn what kinds of activities were included in the National Security Agency’s warrantless surveillance program and in the CIA interrogation, detention, torture, and rendition program. And perhaps we’ll discover what poor souls have unknowingly suffered the rape of their constitutional liberties silently administered through the PATRIOT Act.

I’d say that FDR was more abusive to the Constitution than Lincoln, but other than that, Napolitano nails it.

[UPDATE] Instapundit reports that it’s no different from what Clinton did when he came into to office.

The Scales of Justice Need Rebalancing

In civics class, we are taught a few lessons about the American criminal justice system: the accused is innocent until proven guilty in a court of law, has the right to a court-appointed defense attorney if the accused wishes not to pay for his or her own, has a right to a trial by a jury of his or her peers, and jurors can only convict the accused if there is a lack of reasonable doubt in their minds. We are told that the accused is guaranteed a fair and speedy trial. We are told the burden of proof falls on the state; the accused only has to provide reasonable doubt (meaning the accused ‘probably’ did not commit the crime). We are to believe that an individual who is innocent would rarely (if ever) be wrongfully convicted because our criminal justice system is about finding the truth and rendering justice.

What the civics classes usually fail to mention is that regardless of the fact that jurors are supposed to consider the accused innocent until proven guilty, it is human nature to assume the worst of someone who is accused of committing a heinous crime which is what makes the defense lawyer’s job so difficult and why anyone in such a position should seek out an experienced and competent criminal defense lawyer to protect their rights. Jurors come with their own biases and world views and may find it difficult to suppress their inclinations and deal with the facts of the case. The civics lesson also usually fails to point out that if the accused chooses to go with a court-appointed lawyer, he or she will not be as likely to have an as aggressive and competent advocate as the state will. If the accused makes the wise decision to pay for his or her own defense, he or she can expect to spend his or her entire life’s savings (and perhaps the life’s savings of other friends and family members) just to have competent representation. Even if the accused has the means to pay for such a competent lawyer, there are no guarantees that he or she will be found not guilty regardless of the evidence or whether or not the accused committed the crime. And if the jury finds the defendant not guilty, then what? Sure, he or she is technically cleared of the crime but he or she still has to pay all the legal fees for his or her lawyer, and the fact that he or she was ever charged will remain on his or her criminal record. In any case, hiring a criminal defense attorney could be immensely beneficial in terms of regaining control of your life one move at a time.

The state, on the other hand, has virtually unlimited access to technology, witnesses, forensic, medical, psychological, and other expert witnesses and a virtually unlimited budget to pay for other resources necessary to prove to a jury the accused is guilty. The state also has its own lawyers; prosecutors from the District Attorney’s office. To some, DAs have a little more clout than a criminal defense lawyer (court appointed or not, you could easily get your own though even if you were in another country. So if you were in Spain for example you could just look up something like this Abogado de Delitos de Drogas, if something bad were to happen to you).). After all, the DA’s job is to ‘put the bad guys behind bars’ while the criminal defense attorney ‘gets the bad guys off the hook’ by finding some sort of legal loophole.

In many parts of the country, the DA is elected to office. What do voters want in a good DA? The answer is usually someone who pledges s/he will be ‘tough on crime’. A DA who is running for another term in office will want to have a solid conviction record; otherwise his or her opponent will attack him or her for being ‘soft’ on crime. The DA’s position is now compromised to remain in office. No longer is it his or her job to necessarily pursue ‘justice’ but to secure a conviction-regardless of whether or not they convict a guilty person.

Now enter the media. If the case becomes a compelling enough story, the media becomes a factor. The media is something of a wild card because the media can help or hurt the accused based on whatever the media wants the storyline to be. Now the job of finding an impartial jury has become infinitely more difficult. Ideally, prospective jurors should know nothing about the case other than what has been presented them by the judge. If this proves impossible, some jurors may already have an opinion based on what they have seen or read in the news.

After considering all these factors that the civics class likely did not teach us, can anyone truthfully say the process is fair? I conclude that the process is not fair, neither for the accused nor for the victims. The scales of justice need to be rebalanced.

Certainly, there is no perfect system nor will there ever be but our system can be improved. One way the system can be improved is by correcting the imbalance between the prosecution and the defense. If the DA has access to all the experts, forensics, technology, with a virtually limitless budget, so should the defense regardless of if the defense is court-appointed or not. If the government wants to continue to tell us that the goal of the criminal justice system is justice, then the accused should have the ability to have a competent lawyer of comparable competence of the prosecutor regardless of the defendant’s ability to pay. In addition to this, every time the state discovers it has wrongfully convicted an individual, the state should be required to pay that individual for every year spent in prison (something on the order of $1 million a year), reimburse his or her lost wages, and expunge both the conviction and the original charges. Putting an innocent person in prison should be very expensive for the state.

I realize that some of my fellow contributors as well as others who read this might see this as a form of welfare. To you I want you to consider the following: the Sixth Amendment of the Constitution guarantees everyone the right to a fair trial complete with legal council provided by the government if the defendant wishes not or cannot provide his or her own lawyer. I cannot imagine the founders intended a system that would allow the government to overwhelm an accused citizen with money, power, intimidation, and influence while the accused is forced to either spend his or her life’s savings or risk being represented by inferior council. Unlike most welfare programs that we are opposed to, when a person is put on trial, his or her very liberty, and life in some cases, is at stake (Note, I would not approve of government funded council for civil matters. Civil matters should be handled with a ‘loser pays’ approach). If it is truly one of government’s few legitimate functions to aid citizens in protecting their life, liberty, and property from those who would take these basic freedoms away, this seems to fall under that umbrella.

The so-called Duke Rape Case has many of these unfortunate elements of our criminal justice system. The MSM had largely made up its mind that the Duke lacrosse players David Evans, Collin Finnerty, and Reade Seligmann had raped and/or sexually assaulted a stripper by the name of Crystal Gail Magnum (the name has largely been not mentioned in the MSM). Without any trial or any kind of finding of facts, Duke students and faculty protested in favor of Magnum’s allegations holding up signs and shouting about how these boys should be neutered. The president of Duke University also reacted by canceling the remainder of the team’s games.

By March 2006, the Duke case was a big story with the following narrative: rich white lacrosse boys brutally sexually assault poor, black stripper at a drunken party. The MSM ran with this narrative without spending much time looking into the accuser’s background or the possibility that the accuser was lying. Michael Nifong, the DA who was to prosecute the case faced an upcoming election. Nifong saw this as an opportunity to prove to the voters that these privileged athletes would not get away with what they had allegedly done. Convicting Evans, Finnerty, and Seligmann was so important to Nifong that he with held crucial DNA evidence from the defense and allowed the accuser to identify her attackers in a photo lineup which only included Duke lacrosse players. Nifong even failed to personally interview the accuser!

With the MSM and any overly zealous DA, the odds of receiving a fair trial were stacked against the accused players. To receive competent council which could hold up against the media and the state, the families of the players hired defense attorneys which cost $80,000 per month. This case is already almost into its 11th month. Though Nifong is facing the possibility of disbarment and possible criminal charges, the rape charges against the players have been dropped, and that the accuser’s story continues to change, the players still face other charges. Thanks in-part to talk radio, bloggers, and others in the alternative media asking questions the MSM failed to ask, everything seems to be swinging in the defendants’ favor. Evans, Finnerty, and Seligmann may receive justice after all but no one ever said justice was free.

The Duke case is but one high-profile example of a more widespread problem. Most individuals who are accused of a crime cannot afford to shell our $80 grand a month for quality representation. In Cory Maye’s case (for details of his story click here, here, here and here), he nor his family had the means to pay for quality representation which may be the reason he is spending his life behind bars now. Justice should not be reserved only for the O.J. Simpsons and Michael Jacksons of the world and denied to the indigent. In a just society, the scales of justice should not be weighed based on affluence, influence, or the lack thereof but should be blind and balanced…just as our civics teachers promised us.

An Out Of Control Prosecutor

Many of my fellow contributors have written about the abuses of police departments in various parts of the country, but the Duke University Lacrosse case highlights another problem in our legal system, the out of control prosecutor:

RALEIGH, N.C. — The state bar has added ethics charges to a complaint filed against the prosecutor who brought sexual assault charges against three Duke lacrosse players, accusing him of withholding DNA evidence and misleading the court.

The new charges by the North Carolina State Bar against Durham County District Attorney Mike Nifong were announced Wednesday and could lead to his removal from the state bar, according to a copy of the updated complaint.

Nifong’s office arranged for a private lab to conduct DNA testing as part of the investigation into allegations three men raped a 28-year-old woman hired to perform as a stripper at a party thrown by the lacrosse team last March.

Those tests uncovered genetic material from several men on the woman’s underwear and body, but none from any lacrosse player. The bar complaint alleges those results weren’t released to defense lawyers in a timely fashion and that Nifong repeatedly said in court he had turned over all evidence that would potentially benefit the defense.

In other words, Nifong had in his hands evidence that pretty much excluded then men he was prosecuting for rape from even having had sexual intercourse with the accuser. And he choose to not only not release them to the defense as required by law, but to lie about it to a Judge.

And it’s even worse than that, because Nifong apparently had exculpatory evidence in hand before he even filed charges:

[A]ccording to the bar complaint, testing conducted at DNA Security Inc. had concluded by April 10 that none of the samples provided to police by 46 lacrosse players matched any material recovered from the accuser’s “rape kit.” A week later, Nifong charged Collin Finnerty and Reade Seligmann with rape.

If these allegations are true, then Nifong should most certainly be disbarred. Whether there remain grounds after that for criminal prosecution or civil liability is uncertain. In either case, though, it’s clear that an out of control prosecutor can be as much a danger to civil liberties as a cop with an itchy trigger finger.

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