Neal Kumar Katayal became famous three years ago  as the lead counsel for the Guantanamo Bay detainees in the Supreme Court case Hamdan v. Rumsfeld.  Back then, Katayal was arguing that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay “violate both the UCMJ and the four Geneva Conventions.” 

What a difference a change of administrations makes.

Now Mr. Katayal is arguing that American citizens have no “free-standing due process right not to be framed.” 

Asked to explain this perverse doctrine, Katayal said that prosecutors must not be dissuaded from their responsiblity to prosecute hard cases by fears that a resentful defendant might take them to court. 

In other words, a lawyer once on the side of the angels is now dancing with the devil. 

But the irony deepens.  The attorney arguing that prosecutors should occasionally be liable for their sins is former Bush Administration Solicitor General, Paul Clement. 

This strange reversal of roles is partly explained by the changing of the guard in Washington.  The conservative Clement was willing to defend the authoritarian doctrines of the Bush administration, but now that it’s a Democrat pushing the authoritarian envelope Clement is pushing back.

We must also remember that Clement and Katayal are both lawyers who argue the position they are retained to argue.  When your boss is the government, you argue the government’s position. 

So why are bleeding hearts like Neal Kumar Katayal and Barack Hussein Obama now arguing that prosecutors should be as nasty as they wanna be?

I emphasize the middle names because both Katayal and Obama were fathered by men who entered the United States as immigrants.  They can identify with outcasts like the Guantanamo defendants who are tried outside the constitutional protection of American law.  So why are they so eager to strip men like County Attorney David Richter and Assistant County Attorney Joseph Hrvol (the defendants in the Pottawattamie case) who forced witnesses to fabricate lies against two black defendants before feeding these lies to a jury? 

Neither Obama nor Katayal derives any pleasure in this mambo with Mephistopheles.  But at the great cotillion we call politics you dance with the devil (now and then) or you don’t dance at all.  We can’t know what quid pro quo bargain Mr. Obama thinks he’s making with legal conservatives, but he has something in mind. 

Pretty it ain’t.  Scott Henson of Grits for Breakfast recently took Obama and the Democrats to task for their role in the Pottawatomie fiasco.

Katayal insisted to the court that while a policeman or even a prosecutor who fabricated evidence in the investigative stage of a case only had qualified immunity, if the same prosecutor put the fabricated evidence on at trial, they would confer upon themselves absolute immunity for the act – an outcome Stevens referred to as “perverse.” Yes, that’s right, one of the liberals on the US Supreme Court – the Justice President Obama is most likely to replace next, in fact – called the Obama Administration’s doctrine of prosecutorial exceptionalism “perverse.” Chew on that for a moment, Democrats.

This afternoon I was  perusing Katayal’s Friend of the Court brief in the Pottawatomie vs. McGhee case when I was alerted to an incoming email from Radley Balko. The senior editor of Reason shared my wonderment at the Justice Department’s strange arguments before the Supreme Court. 

Pottawatomie vs. McGhee has Balko revisiting the case of Ann Colomb and her three sons.  Five years have passed now since my jeremiads against snithc testimony were being featured in the online version of the Lafayette Daily Advertiser while the Colomb trial was unfolding.  Each night I warned that “perjury parties” were being conducted in the federal prison system.  Unfortunately, I wasn’t able to keep Ann and her boys from being convicted and sent to the slammer. 

But it wasn’t long before two defendants stepped forward to confirm my worst fears.

Balko (the only journalist I have ever been able to interest in the Colomb story) begins his most recent essay with an extended critique of Brett Grayson, the man who used fabricated testimony to prosecute the Colomb family.  Grayson is precisely the kind of man who could benefit from a law suit.  The devout Pentecostal layman might not like being sued, but it would be good for his soul.

Balko’s reflections deserve to be quoted in full:

Absolute Immunity on Trial

Bush’s former solicitor general tries to roll back prosecutorial abuse.

In 2006, Assistant U.S. Attorney Brett Grayson lined up more than 30 jailhouse informants to testify that they had sold drugs to Church Point, Louisiana homemaker Ann Colomb and her three sons. (I wrote about the Colomb case in the May 2008 issue of Reason.) Grayson had used some of these snitches before, in the trial of a Houston drug kingpin. After the Houston trial, Grayson was notified that several of his informants had lied, and that there may have been an information sharing network and perjury ring inside the federal prison system. No matter. Grayson used them again. Colomb and her sons were convicted, and spent three months in prison.

The Colombs were eventually freed, with all charges dismissed. Grayson’s jailhouse snitches had lied again, and this time, federal judge Tucker Melancon ordered an investigation into new evidence that, somehow, portions of Grayson’s case file were being distributed through federal prisons in Texas and Louisiana. The Colombs, meanwhile, spent their life savings on their defense, and were never compensated. According to defense attorneys, Grayson said at one point during the trial that it didn’t matter if he personally believed his snitch witnesses, it only mattered what the jury believed, a notion he articulated again in his closing argument.

I thought about the Colomb case while reading the transcript of the oral arguments in Pottawattamie v. Maghee, heard last Wednesday before the U.S. Supreme Court (read my previous column on the case here). The case turns on whether prosecutors who knowingly fabricate evidence to convict an innocent person should be susceptible to lawsuits, or if prosecutors should always have absolute immunity from such suits, no matter how bad their behavior.

During the hearing, Deputy Solicitor General Neal Katyal argued that “if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence.” Katyal made similar statements throughout the hearing: “When someone is introducing evidence at trial, you don’t want to chill them in the performance of their duties in any way,” and “the overriding interest is protecting the judicial process and not letting information be chilled and not come in.” Chief Justice John Roberts underlined that formulation, twice inquiring as to the “chilling” effect of stripping immunity for prosecutors.

It took new Associate Justice Sonia Sotomayor to make the obvious point: We want prosecutors to “flinch” before introducing evidence they suspect might not be true. In fact, we want them to not introduce that evidence at all. And there should be a chilling effect on misconduct as egregious as coaching witnesses to lie. If Brett Grayson had known he could be held liable for his parade of lying jailhouse snitches, perhaps he’d have vetted their stories a bit more carefully, or been more vigilant about ensuring that portions of his case file didn’t somehow get passed around the prison system.

The amount of liability the would-be plaintiffs in Powattattamie want prosecutors to shoulder is minimal. The Supreme Court has held for 30 years that even prosecutors who knowingly withhold exculpatory evidence in a case that results in the conviction of an innocent person can’t be sued for damages. The wrongfully convicted men in Powattattamie aren’t even seeking to undo that. They’re asking that prosecutors who knowingly fabricate evidence against an innocent person, then use that evidence at trial, be susceptible to a lawsuit. And even there, prosecutors would still be afforded the qualified immunity given to police officers, which means potential plaintiffs would still have a high hurdle to clear before getting into court. (It’s worth noting that the prosecutors in Powattattamie weren’t sanctioned or disciplined in any way, which is about par for the course in the criminal justice system.)

The problem here is that the Supreme Court has painted itself into a corner. While the Court has always upheld absolute immunity for prosecutors while trying a case, it has ruled that prosecutors who help investigate a case—that is, who act as police officers—should receive the same, reduced qualified immunity given to cops. But here’s where it gets messy. At what point is a prosecutor acting as a prosecutor, and at what point is he acting like a cop? The roles have been muddied over the years.

Consider snitch testimony. Under federal law, only a federal prosecutor, and not a federal police investigator, can gauge whether information offered by a jailhouse snitch is useful enough to offer time off the informant’s sentence in exchange for his testimony. That means prosecutors are put in the role of interviewing potential informants to determine whether the stories are plausible (or, if they’re less scrupulous, merely whose stories are most damaging to the defendant). This is more the role of an investigator than the prosecutor of a case.

Solicitor General Katyal and the attorney for the prosecutors in Powattattamie both made the absurd argument that the actual injury in Powattattamie occured when the defendants were wrongly convicted and jailed, not when the evidence against them was manufactured. Therefore, because the prosecutors were acting in their role as triers of the case when the injury occurred, they should be immune to lawsuit, even though they were acting as investigators when they conjured up the perjured testimony in the first place. Had they passed the evidence off to another prosecutor for trial, they could still be sued. This led Justice Anthony Kennedy to ask, “so the law is the more deeply you’re involved in the wrong, the more likely you are to be immune? That’s a strange proposition.”

It certainly is. Katyal went so far as to argue that even police officers who manufacture evidence used to convict an innocent person may not be liable, so long as they tell the prosecutor ahead of time that the evidence has been faked—again because the actual injury occurs at the time of conviction, and at the time of conviction the state actor inflicting the damage is the prosecutor acting in his role as prosecutor, at which point he has immunity. Kennedy reiterated the problem: “Again, the more aggravated the tort, the greater the immunity.”

Katyan went on to argue that there is no “free-standing due process right not to be framed,” a striking line that made it around the Internet last week. If you’re a constitutional originalist, that statement isn’t quite as controversial as it first sounds: An originalist may believe that the Constitution protects us from government overreach, but it doesn’t explicitly lay out a method of recovering damages for government violations of our rights; that’s left up to Congress.

The problem with the originalist interpretation is that the Constitution’s authors surely would have hoped for and expected at least some relief. The Bill of Rights both establishes a civil courts system to allow citizens to recover damages from one another, and lays out a clear set of rights that government officials aren’t permitted to abrogate. It makes little sense to think, then, that the document would be consistent with the notion that government officials could systematically violate two citizens’ rights in a way that resulted in significant injury (in this case, 26 years in prison), and yet be wholly immune from those citizens’ efforts to collect damages, simply because Congress failed to legislate a path to relief.

One of the notable things about this case is that the pro-law enforcement position was argued by Katyan, an official in the Obama administration, while the pro-defense, anti-executive branch position was argued by Paul Clement, the former solicitor general for the Bush administration. The Obama administration has consistently taken the pro-prosecution side in criminal justice cases, proving that where the rubber meets the road on issues related to police powers and the rights of the accused, what matters most is not political ideology but who holds the reins of power.

Clement’s toughest questioning came from the Court’s two Bush appointees, Chief Justice Roberts and Justice Samuel Alito. But Clement rather brilliantly concluded his time with a direct challenge to the two Bush-appointed justices that probably won’t affect either’s ruling, but at least ought to make them squirm. Keeping prosecutors immune from liability, he argued, is a classic case of judicial activism.

The phrase “absolute immunity” appears nowhere in the Constitution, nor does it appear in Section 1983, a part of the federal criminal code that provides a way for citizens to collect damages against the government. The Court read absolute immunity into the law in the 1976 case Imbler v. Pachtman because it feared the ramifications of prosecutors being susceptible to lawsuits. As Clement argued, there is “no common law support at all for absolute immunity. And I wouldn’t think that this Court was particularly interested in coming up with implied immunities that aren’t in the statute and had no basis at the common law, and that’s why I think some of the Justices that have looked at this as an original matter have tended to be quite reluctant in recognizing absolute immunity because it lacks support in the text.”

So while for most of the hearing the Court and litigants took absolute immunity as a given and debated whether and how to carve exceptions into it, Clement concluded by pulling the sheet back on absolute immunity, period. In doing so, he cleared a path for the justices to revoke absolute immunity altogether, or at least severely limit the concept. That almost certainly won’t happen. But it should (but probably won’t) give the Court’s conservative wing some cover to at least poke enough holes in prosecutorial immunity to discourage the more egregious examples of misconduct.

Radley Balko is a senior editor at Reason magazine.

Harvard sociologist Orlando Patterson makes two major claims in this stimulating op-ed piece in the New York Times. First, he suggests that racism has changed its shape without losing its power.  This means that a black president must never address the race issue directly.

Patterson understands the historical roots of American racism as well as any living American scholar.  Here’s his mini-lecture on the subject:

We became this way because of the peculiar tragedies and triumphs of our past. Race and racism scar all advanced nations, but America is peculiar because slavery thrived internally and race became a defining feature of personal identity.

Slavery was quintessentially an institution of exclusion: the slave first and foremost was someone who did not belong to and had no claims on the public order, nor any legitimate private existence, since both were appropriated by the slaveholder. The Act of Emancipation abolished only the first part of slavery, the master’s ownership; far from removing the concept of the ex-slave as someone who did not belong, it reinforced it. The nightmare of the Jim Crow era then extended and reinforced the public slavery of black Americans right up through the middle of the 20th century.

At the same time, the status of blacks as permanent outsiders made whiteness a treasured personal attribute in a manner inconceivable to Europeans. Whiteness had no real meaning to pre-immigration Swedes or Irishmen because they were all white. But it became meaningful the moment they landed in America, where it was eagerly embraced as a free cultural resource in assimilating to the white republic. In America race had the same significance as gender and age as defining qualities of personhood.

The civil rights movement opened up new opportunities for educated people of color by abolishing “the lingering public culture of slavery”, but while black people have made great strides in the entertainment, athletic and political fields, the social segregation in America has actually deepened.  African Americans are still perceived to be “culturally different”, Patterson writes, and ”In the disciplined cultural spaces of marriages, homes, neighborhoods, schools and churches, these same differences become the source of Apollonian dread.”

Social isolation means that white Americans have a hard time grasping the individuality of black Americans.  As a result, the pathologies of the few are attributed to the many.  Although the relationship between social pathology and bad public policy is simply assumed in the academic community, a black president must never appear to be making excuses for absentee dads and street-hardened thugs if he wants white votes.

I’m not sure if Patterson is trying to describe the president’s thinking in this op-ed, or if he is telling Obama how he ought to think.  Maybe he’s doing both.  Obama, Patterson suggests, must never lecture white America about race.  In the wake of the Jeremiah Wright controversy, Obama had to speak out to keep the race issue from derailing his candidacy.  But since entering the White House, he has made only one foray into racial politics (his remarks about the Gates-Crowley affair) and Patterson sees that as an unmitigated disaster. 

Therefore, the professor says, America’s first black president ”will not be leading any national conversations on race, convinced as he must be that they exacerbate rather than illuminate.” 

Patterson seems to agree with this stark assessment.

Are white Americans so ignorant and reflexively defensive that they can’t engage in an intelligent give-and-take on the subject of race?

So progressive analysts seem to believe.  So it has always been.  The NAACP was horrified by Martin Luther King’s practice of non-violent direct action because the strategy invited a violent white backlash.  King persisted because he knew the sheer pathology of the typical white reaction to marches, buoycotts and sit-ins exposed the irrational hatred at the heart of racist public policy. 

Similarly, the Freedom Rides of 1961 received negative reviews from the mainstream press.  It was generally assumed that anyone foolish enough to sit in the front section of a bus in Alabama or Mississippi had only themselves to blame if they received a brutal beating.  But every Freedom Rider sent from Jackson to the notorious Parchman prison in the Mississippi Delta weakened the position of Southern politicians.  Ultimately, Attorney General Bobby Kennedy pressured the Interstate Commerce Commission into changing the law.

Only after non-violent and inter-racial strategies were abandoned did a conservative backlash against civil rights take hold in America.   For an entire decade, the conflict between civil rights and states rights shaped the way Americans thought about the past and the present.  The living narratives unleashed by non-violent direct action seized white America by the throat.  The strategy was daring, dangerous and uniquely effective.  Civil rights activists created a social crisis in America and waited for the truth to surface.

The narrative strategy Friends of Justice employs is rooted in the early civil rights movement.  By taking hold of the narrative surrounding actual criminal cases we spark an intense conversation about race and justice.  Initially, public officials ignore us.  When that doesn’t work they attempt try to spin the story in their own favor.  In the resulting clash of narratives the truth ultimately rises to the surface.  Not everybody sees it, of course.  Some folks remain convinced that Tom Coleman made good cases in Tulia or that the nooses hanging from a tree in Jena held no racial significance.  But Jena changed the way school administrators think across America, Tulia led to widespread reforms and the Colomb case (though it gained less publicity than Jena and Tulia) exposed fundamental flaws in federal conspiracy law. 

Orlando Patterson hopes Barack Obama can “quietly” reform the criminal justice system.  Not by himself, he can’t.  Our punitive justice system was shaped by tough-on-crime politicians exploiting and feeding public fears at the top of their lungs.  There was nothing subtle or “quiet” about this process.  Divisive and damaging narratives about crack babies and inner city thugs built the present system and only healing justice narratives can take it apart.  

Conservative politicians could afford to be speak loudly because they reflected the zeitgeist.  White people were angry, afraid and in the majority.  Progressive leaders must wait for somebody else to change the tenor of the conversation, but if everyone is quiet nothing will change.

White skin is no barrier to reflection and repentance.  Given the right environment, all people can learn.  But there will be nothing quiet about the process.  “You shall know the truth,” Jesus tells us, “and the truth shall set you free.”  Politically nuanced fudge phrases are good for winning elections but they will never reveal truth or expose lies. 

Orlando Patterson is right about one thing: a sitting president can’t be the standard-bearer for a twenty-first century civil rights movement.  Barack Obama shouldn’t take the lead in the conversation about race and justice–but he has already changed the context in which that conversation unfolds.  It’s up to the rest of us to speak the loud truth without apology.

Terry Harrington (pictured at the left) and Curtis McGhee served a quarter century of prison time for another man’s crime.  In 1977, an all-white jury found the two men guilty of killing John Schweer, a recently retired Council Bluffs (Iowa) police officer who was working security at a used car lot.  This week, the Supreme Court of the United States will decide if Harrington and McGhee can sue the prosecutors who framed them.

According to an article at Law.com, then-County Attorney David Richter and Assistant County Attorney Joseph Hrvol ”shifted their attention from a suspect who was white and had been seen in the area carrying a shotgun, toward a group of blacks.”  Paul Clement, the attorney representing Herrington and McGhee, claims “a witness was coerced to pinpoint Harrington and McGhee, and jailhouse informants were recruited to make false statements about them.”

A recent Washington Post editorial claims that ”The prosecutors allegedly coaxed a witness to offer a version of events that implicated two African American men, Curtis W. McGhee Jr. and Terry J. Harrington; the witness gave several different statements over time and had trouble keeping his facts straight. Prosecutors also allegedly coerced other witnesses to lie and withheld evidence that pointed to a different culprit.” 

When the star witness couldn’t produce a credible story that would stand up in court, prosecutors showed him statements made by other inmates.

None of this would have come to light if prison barber Anne Danaher hadn’t struck up a casual conversation with member’s of Terry Harrington’s family.  The enterprising Danaher thought the case sounded fishy, and filed freedom of information requests on Harrington’s behalf.   The inmate had exhausted the appeals process by that time, but clear evidence of prosecutorial misconduct compelled the Iowa Supreme Court to vacate the conviction.  

In another odd twist, Harrington and McGhee are being represented before the Supreme Court by former Bush Administration Solicitor General, Paul Clement, a staunch defender of prosecutorial immunity.  Asked to explain his sudden shift in emphasis, Clement said, “What it signifies is that I’m no longer working for the government.”

Radley Balko, a Senior Editor at Reason.com and a leading critic of prosecutorial and judicial immunity, sums up the key issue this way:

Hrvol and Richter contend that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect’s innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years. Their motivation for making this argument is obvious; they’d rather not pay for their misconduct. But they’re supported in amicus briefs filed by the U.S. Solicitor General, the National District Attorneys Association, and the attorneys general of 27 states and the District of Columbia. Notably, Cook County, Illinois, home to a number of wrongful convictions, also filed its own brief in support of the prosecutors.

A brief filed in support of Hrvol and Richter by Iowa prosecutors cuts to the heart of the matter: “There is no freestanding constitutional ‘right not to be framed’.”

Maybe not, but there should be.  The Washington Post’s editorial board says good prosecutors have little to fear if Harrington and McGhee prevail:

Prosecutors need to be able carry out their duties without fear that they’ll become the targets of personal lawsuits if defendants are found not guilty or charges are dropped. But such lawsuits face high hurdles. The Supreme Court has recently — and correctly — made it even more difficult for plaintiffs to make officials personally liable unless there’s convincing evidence that they were directly involved in knowingly violating a clearly established constitutional right. Mr. McGhee and Mr. Harrington have shouldered that burden and should be allowed to proceed with their case.

Here at Friends of Justice we are following Pottawattamie County v. McGhee and Harrington with great interest.  A similar species of prosecutorial misconduct is evident in the case of Curtis Flowers (and every other case in which we have intervened).  There is strong evidence, for instance, that potential witnesses in Winona were bribed with promises of a $30,000 reward and, in some cases, threatened with prosecution if they didn’t cooperate.  The major difference is that witnesses in the Flowers case clearly were not exposed to the testimony of other witnesses.  If they had been, their physical descriptions of Flowers would have overlapped at least a little. 

The Washington Post assures us that most Hrvol and Richter are just a couple of bad apples; but there is nothing unusual about prosecutors pressuring vulnerable people into perjured testimony.  Hrvol and Richter represent an egregious instance of a common phenomenon.  They knew their star witness was lying; in most cases, prosecutors merely suspect that the men and women they browbeat into cooperation might be lying–they don’t know for sure . . . and they don’t care.

The Dallas Justice Revival kicks off two weeks from tomorrow at the Dallas Market Hall.  This three-day event will feature the preaching of Zan Holmes, Samuel Rodriguez and Sojourners founder, Jim Wallis (find bios here), and some of the best Christian music you will ever hear.  But the revival doesn’t end with final altar call; event participants are committed to long-term goals like advocating for the construction of 700 low-income homes and the creation of twenty-five partnerships between schools and area churches. 

In addition, IGNITE Greater Works, “A Best Practices Community Transformation Gathering” will feature practical social ministry workshops the morning and afternoon of Wednesday, November 11th and the morning of Thursday, November 12th.  Friends of Justice will have a booth in the Exhibit Hall beginning on Tuesday evening, so drop by and introduce yourself. 

This event is uniting Roman Catholic, Pentecostal, Evangelical and Mainline Protestant churches around the theme of Christian compassion and the call to put feet to our faith.  If you can get to Dallas for this event please make your plans now.  This is a free event, but participants are encouraged to register (it just takes a few seconds).

Last night Priscilla Hutton was telling the youth group at her Catholic church about her work in the prisons.  In the course of her presentation, Priscilla shared this letter from Donna Stites, an inmate at the Indiana Women’s Prison in Indianapolis.  A few weeks ago I introduced you to Donna’s amazing story after I visited her in prison.  Below, Donna tells her own story. 

Priscilla Hutton with Donna Stites

To All Who Listen:

My name is Donna Kaye Stites and I have been incarcerated in the Indiana Department of corrections for over 25 years. I want to talk to you about my experience with going to school and the importance of getting an education.

When I was in grade school, I was considered a bully and I hated school. I acted out, for the most part, because I was ashamed of my being poor. I felt like I was not good enough. That hurt me and my anger came from those feelings. I was living with my father and his wife on a farm.

When I got to middle school, my financial circumstances changed. I was living with my mother and step-father, who was a wealthy business owner. However, I still hated school. I thought it was a waste of time. I had better things to do with my life, like selling drugs for my mother and hanging out with the older crowds.

I was doing drugs and drinking heavily by the time I entered high school. I was having sex and doing things like shoplifting and credit card theft throughout my high school years. I simply thought that school was not for me. I was in Girls’ School twice, did prison time and was in a work release center before being sent back prison for the final time. I have now been in prison, continuously, since I turned 21.

When I turned 30 years old, I decided things in my life needed to change. I made a list of six changes that I thought would help me. They are as follows:

• Stop doing drugs

• Stop smoking

• Resolve the issues between my mother and me

• Resolve a dysfunctional relationship

• Take better care of my health (I am a brittle diabetic)

• Go to college

I started my first year of college when I was 32 years old. I felt very intimidated and stupid. I felt like I was going to quit at least a hundred times, however, I stuck with it and at the end of my first semester, I had gotten all A’s and B’s on my report card. My GPA was 3.5. I was one point from making the Dean’s List and I couldn’t have been prouder of myself.   Even now I am smiling just thinking about it.

After that experience, I decided to make the Dean’s list (my seventh goal) every semester. I received an Associates Degree with academic distinction and I got my Bachelor’s degree with honors. I finished Ball State with having been on the Dean’s List every semester after the first.

I want to encourage you to do the best you can in school now and to continue your education after high school. I am not an old person, I am not someone’s mom, and I am not getting paid to tell you about getting educated. I am someone who has had their life changed for the better as a result of getting educated. Education opened doors for me that had never been opened before. I found out who I was. I don’t believe I could make the sound decisions that I make now without having been educated. I believe that formal education with a solid scriptural foundation is the best way for you to not get caught up in the distractions, like I was. I have a lot of regrets, but getting my college degrees is not one of them.

There’s nothing more important than you taking care of you: your mind, your body and your spirit. It is all you have in the end.

Let God bless you with all that has your name on it. Don’t cheat yourself out of what’s yours and what’s you.

Peace,

Donna Kaye Stites

Inmate at Indiana Women’s Prison

Indianapolis, Indiana

A guest post by Friend of Justice, Charles Kiker 

“[God] has broken down the dividing wall.” St. Paul

“Something there is that doesn’t love a wall.” Robert Frost

“Mr. Gorbachev, tear down that wall.” Ronald Reagan

On the weekend of October 3-4, I was in El Paso attending my final meeting of the Board of Directors of the American Civil Liberties Union of Texas. Due to some health difficulties and to the increasing challenge of reaching meeting venues from my home in the Panhandle, I had been contemplating resigning my post for quite some time. My term was to expire in April 2010, so I decided to hold on through the October ’09 quarterly meeting, and get a chance for a brief visit to El Paso as part of the deal. I’m glad I did.

On Saturday afternoon we sat through the usual processes of approval of minutes of the former meeting and various reports, we loaded up in cars and went to Annunciation House, a shelter for undocumented people which operates openly and with at least tacit ICE (Immigration and Customs Enforcement) approval. In fact, from time to time ICE refers people to Annunciation House rather than putting them in detention.

People at Annunciation House come into direct contact with immigrants, both documented and undocumented. One documented worker in Colorado died with his surviving spouse living in Mexico. In order to get her Social Security survivor’s benefits she has to be legally in the United States for a thirty day period once every six months. We were told that this requirement does not apply to survivors in Europe or Canada, but I have not been able to verify this claim.

The situation at the border near El Paso is extremely serious due to the activities of the drug cartels. People with no involvement with the cartels are routinely slaughtered for no offense but being in the wrong place at the wrong time. The police, and increasingly the Mexican army, look the other way. Family member on the wrong side of a dispute are routinely threatened and frequently murdered. People whose lives are threatened are routinely denied asylum by ICE.

I asked the question there, I will ask it again in these paragraphs: ”What would happen to the drug cartels if we read in the morning paper that cannabis had been legalized or decriminalized in the United States?” The history of prohibition and repeal suggests it would deal a major body blow to the Mexican cartels and thus eliminate much of the suffering and violence associated with the drug trade between our countries.

Later in the day we visited the border fence between New Mexico and Mexico. When we got out of the van and approached the fence, children from the other side began flocking toward us. While I do not speak Spanish, I could understand that they were asking for “una dollare.”

What would Jesus do? I wondered if he recognizes that dividing wall of partition between us. I didn’t wonder long. My faith tells me emphatically that he does not!

That evening we dined sumptuously (and expensively) at a restaurant near the wall, bringing into stark contrast our abundance with the poverty of the children on the other side.

What would Jesus do?

Mr. Obama, tear down that wall!

Charles Kiker

October, 2009

Charles Kiker is a Baptist minister living in retirement in Tulia, Texas.  As charter members of Friends of Justice, Charles and Patricia Kiker were instrumental in the fight for justice in their home town.

Last night I heard Dr. Steve Langford, my Methodist pastor, talk about the God who answered Job “out of the whirlwind.”  Just when I thought I was too damn educated to learn anything from a preacher I ran into Langford.  This guy changes my thinking every time I listen to him–something I didn’t think was possible.

As I waited for the Bible Study to begin I was thinking about Scott Henson’s recent blog post on the Cameron Todd Willingham case.  Willingham’s ex-wife spent years telling reporters that Todd was an abusive husband, but no murderer.  But recently Stacy Kuykendall has been saying that her ex-husband confessed to the vile deed on the verge of his execution.  Henson (like the New Yorker’s David Grann)  thought this change of story was more than a little suspicious.

Then the Bible study began.  Pastor Steve had spent several weeks dissecting the tangled words of Job and his pious companions–tonight it was God’s turn to speak “out of the whirlwind”. 

“Who is this,” God asks, “who darkeneth counsel by words without knowledge?”

Then the Creator takes Job on a whirlwind tour of creation.

“Where were you when I laid the foundations of the earth?  Tell me, if you have understanding.  Who determined its measurements–surely you know!”  God asks Job about the birds of the air and the beasts of the field; about the wind and the waves; about the great Behemoth and the fearsome Leviathan. 

Pastor Langform told us that “the sea” is often used as a symbol for chaos in the Hebrew Scriptures.  Horrifying beasts like the Behemoth (described as an alligator in Job) and Leviathan (described as a crocodile) were also mythological symbols of death and destruction.  Yet all are creatures of God.

This means that evil, death and chaos are God’s creatures.  God let them loose in the world and set strict bounds beyond which they dare not roam.  We don’t know why God created the forces of chaos and the Book of Job, by design, doesn’t shed much light on the subject.  That’s the whole point.  If we could understand God’s life and death struggle with chaos we would be God. 

“What if you were in my position?” Yahweh asks Job.  “Do you think you could handle it?  Are you are up for a wrestling match with death and hell?”

Job thinks about it, bows his head, and succumbs.  “I had heard of you by the hearing of the ear,” he says, “but now my eye sees you; therefore I despise myself and repent in dust and ashes.”

All of which took me back to Scott Henson and Todd Cameron Willingham.  Scott hasn’t been arguing that the Corsicana native is innocent.  Perhaps Willingham did  intentionally set fire to the house in which his darling babies slept.  All Henson is saying (and all any of us can say) is that the folks with the best scientific tools don’t believe that, given the available evidence, a strong case can be made for arson. 

Rick Perry, the immaculately groomed governor of Texas, assures the electorate that Willingham is a guilty ‘monster’ (Leviathan?) the conclusions of pointy-headed pseudo-intellectuals notwithstanding. 

But if Perry is so confident that Texas executed a guilty man why is he so intent on blocking an objective investigation?  And why did he eliminate several members of the commission tasked with evaluating the work of the state’s forensic experts?  Does the governor protest overmuch?

No one is deriding the good men and women who listened to all the expert and eye-witness testimony in the Willingham case and made their decision.  The issues were exceedingly complex.  So much depended on the inner workings of the defendant’s mind.  Was this guy a dysfunctional slob with a gift for poetry or was he every bit the Behemoth Mr. Perry believes him to be?

The comment section at the end of Henson’s post was bristling with indignation.  Some said Scott had it dead right; others decried the blogger’s obdurate refusal to admit a self-evident truth.  Some thought Willingham was guilty as hell; others were convinced the state of Texas executed an innocent man.

Might it be that the facts of the Willingham case are too much for mortals.  We are too prone to error, fancy and blind prejudice to evaluate the guilt or innocence of Todd Willingham or hundreds of other people who have been dragged before the bar of justice in recent years.

I’m not saying that all murder cases are too complex for a human jury, or even that most of them are.  But the recent parade of DNA exonerations must give us pause.  How could well-intentioned juries have been so thoroughly bamboozled?  Why have so many prosecutors pressed ahead with bogus cases and withheld exculpatory material from defense counsel?  And why have so many eyewitnesses testified so convincingly of things that never were?  What were these people thinking? 

Were they thinking at all? 

Yes and no.  Juries, judges, police officers and prosecutors are rational creatures . . . so far as human rationality goes.  But sometimes it doesn’t go very far.  David Brooks, the staid NYT columnist, wrote an interesting piece last week on recent advances in the field of neuroscience.  Here are his cursory conclusions:

The work demonstrates that we are awash in social signals, and any social science that treats individuals as discrete decision-making creatures is nonsense. But it also suggests that even though most of our reactions are fast and automatic, we still have free will and control.

Many of the studies presented here concerned the way we divide people by in-group and out-group categories in as little as 170 milliseconds. The anterior cingulate cortices in American and Chinese brains activate when people see members of their own group endure pain, but they do so at much lower levels when they see members of another group enduring it. These effects may form the basis of prejudice.

The still-misty world of neuroscience should give us a renewed respect for the presumption of innocence.  The mere fact that a defendant has been arrested, indicted and formally charged should not be equated with guilt.  Yet how many jurors will vote “not guilty” just because the facts are fuzzy?  Not many.  What role does prejudice play in the courtroom?  What if we find that white and black jurors view the same facts in an entirely different light?  How often is sweet reason mugged by fear and anger?

And we haven’t even talked about blind ignorance.

Who are we who darken counsel with words without understanding?  When the criminal justice system casts mere mortals (jurors, prosecutors, judges) in the role of God, we have cause for worry.  Sure, somebody has to referee the game of life and death.  But when a frail human soul hangs in the balance, we must always err on the side of mercy.  Every few years we are called down to the courthouse to wrestle with chaos, death and hell.   Sometimes we’re just not up for the challenge.

A few days ago, the Dallas Morning News asked a number of priminent religious leaders from Texas to assess the morality of the death penalty.  Public discussion of criminal justice issues is rarely inspired by academic studies or cold statistics; discussion is prompted by specific stories.  In the last few weeks, especially in Texas, the newspapers have been filled with Cameron Todd Willingham stories crammed with quotations from both sides of the debate.  It’s a messy process, but we work things through in America one story at a time. 

Since the religious leaders selected for the DMN story were mostly selected from moderate-to-liberal “Mainline” denominations it comes as no surprise that most of them thought the death penalty was immoral.  But my eye was drawn to the only letter that eschewed complex theological arguments in favor of storytelling.  Cynthia Rigby (no relation to Eleanor), Professor of Theology at Austin Presbyterian Theological Seminary, began her resp0nse with a story about her preacher daddy who escorted condemned prisoners (some of whom he believed to be innocent) to their rendezvous with the Oklahoma hangman. 

Her second story hearkened back to strange story of Karla Faye Tucker, the drug-addled murderer whose broken life was redeemed by the grace of God.  Televangelist Pat Robertson thought Karla Faye’s contrition ought to buy her a pass from death row, but then-governor George W. Bush made cruel jokes about Karla Faye before giving the nod to the executioner.  Dr. Rigby’s story unfolds against that backdrop.

My second “scene” is from 11 years ago, shortly before the execution of Karla Faye Tucker. You might remember that the late ’90s was the time when the “WWJD?” (“What Would Jesus Do?”) movement was in full swing. In a class I was teaching, I asked my mainly-mainliner seminary students if they saw any value to “WWJD?,” and if they thought we should do what Jesus would do, if we were pretty clear on exactly what that was. Every student in the class (20+, as I recall) answered, emphatically, “yes!!”

Since the biggest issue in the news that week was that Tucker was asking for a stay of execution, I spontaneously asked: “Would JESUS execute Karla Faye Tucker?” “No!” all the students answered. Feeling like I was on a roll, I then asked, “Well, then: should WE execute Karla Faye Tucker?”

Silence in response to a question that I thought was a no-brainer, in light of the conversation. Suddenly, the mood of the class shifted. My students acted indignant; as though they had been betrayed. A senior student shot his hand in the air, declaring that he thought it would be “presumptuous for us to assume we could do what Jesus should do.” “We need a new question,” he said: “WWJWUTD?” “What would Jesus want us to do?” he asked, looking around at his classmates. And then he answered: “Jesus would want us to leave forgiveness to him, and to EXECUTE Karla Faye Tucker.”

We took another vote, and all but 2 of my students agreed with him.

Kinda makes your blood run cold, don’t it.

Landis Barrow went to prison back in 2000 on the twisted word of undercover agent Tom Coleman.  (In the mugshots to the left, Landis is #2; see if you can pick out his twin brother, Mandis.)  Now the Texas Court of Criminal Appeals has granted Mr. Barrow a re-do of the revocation hearing that put him in prison.  Landis and his twin brother Mandis were implicated in an Amarillo robbery in 1996 and given ten-year probated sentences.  Tom Coleman claimed to have purchased drugs from “the twins” in 1998 but the state had a problem: since no one, even their mother, could tell the twins apart, how could Coleman know which twin handed him the dope?

There were other problems.  Eliga “Man” Kelly was with Coleman at the time of the alleged sale and Kelly wasn’t backing up Coleman’s story.  “Mandis asked me why was I still riding around with that police,” Kelly said in a signed affidavit. Coleman walked up “and asked me were those the twins? I told him yes and he asked Mandis where could he get some smoke? Mandis told him that he didn’t sell dope and he didn’t know where to get any and furthermore don’t ever approach him about any dope. Then the twins drove off very mad.”

The simple solution was to drop the drug charges and use Coleman’s allegations to revoke the Twins’ probation. 

So why are you just hearing about Landis and Mandis Barrow now? 

I wrote an article about the Twins for the Texas Observer  and the Amarillo Globe-News in 2004 , but that’s the only press they ever received.  When Governor Rick Perry pardoned 35 of Coleman’s victims a few months later, the “Tulia 46″ were presented to the world as the innocent victims of a racist plot.  No one could go to bat for Landis and Mandis without addressing that inconvenient theft charge from 1996.  Attorneys associated with the Tulia defendants felt they couldn’t risk the negative publicity, so the Twins were left to languish in prison.

Here’s the real irony: Landis and Mandis received their share of a $6 million legal settlement but could only spend their money on tooth paste and chocolate bars in the prison commissary.

Here’s what I had to say five years ago:

[Judge] Emerson nodded patiently as officer Coleman entangled himself in a bizarre web of deception. Coleman said he bought drugs from Mandis Barrow on June 23, then remembered it never happened. Coleman testified he had no idea which of the Barrow twins sold him the dope on September 3, then remembered that Eliga Kelly had cleared up his identification problem. Coleman said he had been suspended from active duty in May of 1998, then remembered that the suspension didn’t go into effect until August. Finally, the Texas Law Officer of the Year alleged a criminal conspiracy hatched by a vindictive sheriff. Judge Don Emerson must have been convinced by Coleman’s grotesque performance because he ruled for the state and sentenced Mandis Barrow to 20 years in prison.

The Texas Court of Criminal Appeals upheld the judge’s decision. The June 23 indictment had obviously been “mistakenly filed” but “an honest mistake does not rise to the level of perjury,” the court declared. Coleman may not have been able to distinguish Landis from Mandis, but it was conceivable that Eliga Kelly “had identified which twin passed the controlled substance to Coleman.” Finally, the Appeals Court argued, if Judge Emerson was convinced by Coleman’s testimony, no perjury had been committed by definition.

Now, almost five years after Tom Coleman was found guilty of aggravated perjury, the Texas Court of Criminal Appeals decided to change its mind.

I have stayed in touch with the Twins over the years.  They sent me a card every Father’s day and kept me apprised of their ongoing legal battle.  Mandis called me  when he was released from prison a few months ago.  Yesterday, I received the good news from Landis. 

Hopefully, we haven’t heard the end of this story.

Doug Evans, the prosecutor who will put Curtis Flowers on trial for a record sixth time in June of 2010, has close links to an organization that denounces the civil rights movement as a communist conspiracy and wishes it could reinstitute Jim Crow segregation. Don’t believe me? Read on.

The year was 1992. The place was the meeting room of the Regency Inn in Greenwood, Mississippi. The keynote speaker was Robert “Tut” Patterson, father of America’s White Citizens’ Council movement and a featured columnist with “The Informer”, a publication of the Council of Conservative Citizens. Patterson’s topic was the “historical background of the ‘civil rights’ movement.” Other speakers at the Council of Conservative Citizens seminar included District Attorney Doug Evans (D) of Grenada.

The Greenwood meeting wasn’t considered controversial. It was covered on the local ABC affiliate and the Jackson Clarion-Ledger and the Greenwood Commonwealth provided coverage and, if the write-up in the Informer is anything to go by, “Reports were carried by the news media across the South.”

And why not: the keynote speakers for the gala banquet later that evening were Kirk Fordice, the newly elected Mississippi Governor, and Senator Trent Lott. “The people in this room stand for the right principles and the right philosophy,” Lott told the gathering.

Ten years later, Senator Lott would be forced to resign his position as Senate leader after remarks he made at Strom Thurmond’s 100th birthday party. Lott reminded the gathering that Thurmond had run for president as a segregationist Dixiecrat in 1948 and recalled that Mississippi voters had supported his candidacy ”If the rest of the country had followed our lead,” Lott told the gathering, ”we wouldn’t have had all these problems over all these years either.”

Lott insisted that he didn’t mean to endorse the politics of segregation, but it was difficult to understand what else he might have had in mind.

But that was 2002 and Doug Evans’ speech in Greenwood took place a decade earlier, just a few years after the Council of Conservative Citizens rose from the ashes of the old Citizens’ Councils. In 1991 the Citizen Informer reported that “Thirty of the thirty-nine candidates for state and district offices” had addressed the Council of Conservative Citizen’s Black Hawk Rally. You can’t get more mainstream than that?

A 1991 edition of the Informer proudly reported that Doug Evans, then a Justice Court Judge running for District Attorney, gave the keynote address at the Council of Conservative Citizen’s Webster County meeting. The CCC might have looked like a tawdry pack of racists to most Americans but to an insider like Doug Evans it just looked like normal.

When Mississippi politicians like Trent Lott, State Senator Lydia Chassaniol (R-Winona), State Representative Bobby Howell (R-Kilmichael) or District Attorney Doug Evans (D-Grenada) are asked about their cozy relationship with the racist CCC they give a standard response: “Everybody was doing it and, besides, I didn’t know I was addressing a racist organization.”

Why does it matter anyway? Who on earth is this Doug Evans character I keep mentioning and why should you care who he talked to back in the day?

Doug Evans is the prosecutor who has made five (5) failed attempts to sentence a young gospel singer named Curtis Flowers to death for murdering four people in a Winona, Mississippi furniture store in 1996. This is the case that has divided Winona along racial lines. The jury in trial number four (the only jury with a substantial number of black residents) split 7-5: all seven white jurors voting guilty and all five black jurors voting for acquittal. Trial number three ended in a unanimous guilty verdict after Doug Evans moved heaven and earth to produce an all-white jury in a county that is half black. (The Mississippi Supreme Court ruled that Evans’ behavior in the jury selection process demonstrated clear racial bias.)

Recently, Doug Evans attempted to prosecute James Bibbs, a black juror who refused to find Curtis Flowers guilty. Judge Joey Loper accused Bibbs of lying to get on the jury. Last week the Mississippi Attorney General’s Office looked at the facts and dropped the charges.

What would happen if the Curtis Flowers case was dumped in the AG’s lap? What would happen if a fresh set of investigators went back to square one and re-interviewed all the witnesses and re-evaluated all the physical evidence? Would they proceed to a sixth trial, or would they drop the charges against Flowers for the same reason they refused to proceed against Bibbs?

It’s hard to say, but I think we need to find out. A man as racially biased as Doug Evans shouldn’t be in charge of a racially sensitive murder prosecution.

Moreover, a racially biased state senator and house representative shouldn’t be sponsoring legislation designed to get the racially biased Mr. Evans another all-white jury.

Return with me to the CCC event in 1992, four years before the tragic events in Winona. Doug Evans is sitting at the table of honor listening to Robert “Tut” Patterson place the “civil rights” movement in historical context. What did the founder of the White Citizens’ Councils have to say?

Fortunately, we don’t have to guess. In 2006, the CCC reprinted Patterson’s last column, written just a few months previously, in which, once again, he placed the civil rights movement in historical context. We might expect that the veteran segregationist, an old man weeks away from death, had little new to say on the subject and that his speech in 1992 closely resembled the column from 2006.

Patterson (pictured to the left in his prime) began his final column with a harrangue against the “liberal reporters” who covered the Emmett Till trial in 1955. Did they even once report that Louis Till, Emmett’s father, was executed by the US military following the second world war? According to Patterson, the media should have realized that the children of flawed parents can be murdered indiscriminately.

I suspect he made a similar case in 1992, with Doug Evans nodding his agreement.

Next, Patterson attacked George W. Bush for advocating the renewal of the 1965 Voting Rights Act–at the Rosa Parks memorial, no less. Rosa, as every Southern conservative knows, was a communist agitator. According to Bob Patterson, the Voting Rights Act has carried nothing but woe and pestilence in its wake. “The liberal media help to keep the blacks stirred so they will vote, usually Democrat, on election day by rehashing events that may have happened fifty years ago. How many times has Mississippi Burning been shown on TV?”

Patterson didn’t mention that he was one of Mississippi’s fanatical never-in-a-thousand-years boys who engineered events like the killing in Neshoba County or the brutal beating of Annell Ponder and Fannie Lou Hamer in Winona. Sheriff Earl Wayne Patridge may have orchestrated the violence in Winona, but the likes of Robert Patterson and Senator James Eastland shaped the context. The Citizens’ Councils preferred to starve out the opposition, but the rope, shotgun and blackjack were always kept in the trunk just in case.

Patterson’s next target was ”Black Monday” and the Supreme Court’s Brown vs. Board of Education decision in 1954. “These civil rights bills have forced white people to flee from their neighborhoods all over our nation,” Patterson lamented. ”The only defense against forced integration and government-controlled schools in the North, West and South is white flight and private schools.”

This last comment is fitting considering that the CCC was created to raise money for all-white segregation academies.

Finally, lest anyone question his commitment to the fundamental principles of democracy, Patterson provided a brief disclaimer. ”We all expect healthy dissent in our form of government,” he said, ”and there must always be a loyal opposition. We should expect, however, a reliable impartial news media that will give both sides of all issues so that the voters can vote intelligently.”

Did Patterson believe in “healthy dissent” in 1954 when he formed the Citizens’ Council, or in 1964 when he opposed the Civil Rights Act, or in 1965 when he used all means necessary to keep black people from voting in Mississippi? Hardly. Those who disagreed with the Jim Crow regime, white or black, were systematically persecuted, beaten or deprived of an occupation. If that didn’t work they were beaten or disappeared.

Strangely, men like Patterson and Eastland remained active in mainstream politics when the civil rights era ended. Nobody held them accountable for their actions back in the day. For a brief period between 1998 and 2002 southerners with links to the Council of Conservative Citizens were anathema. Then old patterns reasserted themselves. A rehabilitated Trent Lott had risen to the position of Republican Senate whip by the time he retired in 2006.

Here’s the problem: You couldn’t condemn Lott and company without taking on a wide swath of mainstream southern culture. You can’t critique Doug Evans for the same reason.

We can assume that in 1992 Robert Patterson gave the folks in the Greenwood Regency Inn his standard anti-civil rights speech and that an appreciative audience rose in a loud and lusty ovation.

Did Doug Evans, the newly minted prosecutor from Grenada, stomp out of the room in angry protest? Was he sitting on his hands while others rose to applaud?

Not at all. The prosecutor stood and clapped along with everyone else as he patiently waited his turn at the microphone. Civil rights bashing was part of the political culture the District Attorney was raised in. It was the only style of politics he knew. It is the only style of politics he knows. The Council of Conservative Citizens preaches a gospel of civil rights resentment. In this culture, “conservative” is code language for “white”.

You have to pity a guy like Doug Evans–what are the chances that a boy raised in a civil rights hating culture could emerge with a stout commitment to equal justice? But when we see the man prosecuting an evidence-free case against a black defendant we have the responsiblity to raise questions. I don’t wish to be disagreeable, but a man’s life is on the line here.

In 1992, the Citizens Informer billed itself as “The Voice of the No Longer Silent Majority”. Perhaps it was. Perhaps it still is. Which may explain why Lydia Chassaniol’s recent address to the annual conference of the CCC drew a collective yawn from the Mississippi press. And this may explain why everyone assumes that the five black jurors who voted to acquit Curtis Flowers in trial #4 were just trying to protect one of their own.

Could it be that black jurors, because they didn’t grow up under the spell of men like Eastland and Patterson, are in a better position to see through a desperately weak case?

Has anyone in the Mississippi media stopped to examine the “evidence” Evans has scraped together in the Flowers case? It appears not. Doug Evans, the duly elected protector of the Peace and Dignity of Mississippi, grew up on a steady diet of black-bashing like the following:

Nearly a third of all black men in their twenties have criminal records and 8% of all black men between the ages of 25 and 29 are behind bars. Although blacks are only 13 percent of our overall population in the U.S. they account for more than half of all new HIV infections. Black women account for an astonishing 72% of all new cases among women. Over two thirds of all black children are born out of wedlock.

That’s a straight quote from Bob Patterson’s final column in the Informer. It’s the same garbage you can read today on the CCC’s website. Patterson didn’t want his lilly white children going to school with a bunch of black thugs and welfare queens.

When Doug Evans sees Curtis Flowers in the courtroom he doesn’t see a gospel singer, he sees a cold-hearted super predator–the kind of guy Bob Patterson (and a thousand speakers of the same ilk) warned him about. Nothing could be more natural than for a guy like that to blow away four innocent people in cold blood. That’s just the way those people are.I may have the Honorable Doug Evans all wrong. For all I know he may be be a card carrying member of the liberal ACLU. If I have misread the man I ask his friends to set me straight. Show me the evidence and I will issue a sincere apology. But from where I sit, Fannie Lou Hamer and Curtis Flowers have more in common than a love for gospel music.