TalkLeft

Bernie Madoff Will Not Appeal His 150 Year Sentence

Jeralyn — 2009-07-09T19:16:30-05:00

Bernie Madoff's lawyer has confirmed that Bernie won't appeal his 150 year sentence. He thinks any sentence Bernie would get, even under the guidelines, would be a life sentence.

Can someone remind me what Bernie Madoff's lawyers' accomplished for him? He could have stayed with his wife in his apartment on bond for another year or two while fighting the case. He got no agreement that his family and friends wouldn't be investigated or charged. He and his wife gave up all his assets (except $2.5 million his wife gets to keep), including those that would have been difficult for the Government to prove were forfeitable, he got no sentence concession, no agreement on place of incarceration. And now they won't appeal the sentence.

What's left for Bernie? Any bets on whether he'll file a 2255 to overturn his guilty plea and sentence based on ineffective assistance of counsel? It wouldn't have a snowball's chance in h*ll but he's got a lot of time on his hands and a year to file it. As I've said a few times, what more could the Government have done to him --we don't have life plus cancer as a penalty (yet.)

Supermax Won't Allow Inmates to Read Obama's Books

Jeralyn — 2009-07-09T19:00:04-05:00

This is pretty funny. Officials at Supermax prison in Florence, Colorado have turned down an inmate's request to read the two books written by President Obama. Why?

The federal government's most secure prison has determined two books written by President Barack Obama contain material "potentially detrimental to national security" ....

What standards did the use to make the determination? Ones supplied by the F.B.I. Who requested the books?

Ahmed Omar Abu Ali is serving a 30-year sentence at the federal supermax prison in Florence for joining al-Qaida and plotting to assassinate then-President George W. Bush.

Thurday Afternoon Open Thread

Big Tent Democrat — 2009-07-09T13:18:52-05:00

Here is one of the funniest dkos diaries and threads I have read in some time. I think that most of the humor is unintentional. I admit to uncertainty on that point.

There has been a lot of "news" on the Sotomayor confirmation that I have not written about. I have chosen not to because well, they are pretty much just staged endorsement rollouts by the Obama Administration that, to me at least, add nothing to the story. I know they are doing their political job on this, and good for them, but I have no interest in writing about press releases on endorsements. I will return to the Sotomayor confirmation story when the confirmation hearings start and hope to see a real discussion about judicial philosophies. That would be of interest to me.

One last thing, the Tour de France begins in earnest tomorrow in Stage 7 with the first trip into the mountains. Can Armstrong or anyone stay with Contador? I say no. We'll see.

This is an Open Thread.

Once Again On Preventive Detention

Big Tent Democrat — 2009-07-09T12:20:49-05:00

Glenn Greenwald highlights a superb piece of reporting by McClatchey reporter Nancy Youssef on the injustices of the detention regime of the Bush Administration. But I was struck by this part of Greenwald's post:

It cannot be overstated how flimsy is the basis for so many accusations of "enemy combatant" status from the U.S. Government. Wakil is someone who -- as the Bush administration knew and admitted since as early as 2004 when it conducted a status review hearing -- actively opposed the Taliban and al Qaeda . . . Despite all of that, the Pentagon continued to keep him in a cage for four more years based on extremely vague associations that led them to insist that he was an "enemy combatant." . . .

This is one of the reasons why I support a preventive detention regime that complies with the Constitution and the Geneva Conventions (read here and here.) Greenwald rightfully disdains the thoughtless defenses of preventive detention after acquittal. More . . .

Mark Kleiman wrote:

All right-thinking people are shocked and horrified that the Obama Administration is thinking about keeping some suspected al-Qaeda and Taliban fighters locked up even if they aren't charged with, or are acquitted of, war crimes.

Color me wrong-thinking.

Whether someone has committed war crimes, and can be proven to have committed them beyond reasonable doubt under the rules of evidence that apply in a criminal trial, is one question. Whether he's a fighter for the other side in a war is a completely different question. Someone can be innocent of any war crime and still be an enemy fighter.

This is facile sophistry. The issue is whether you can try someone on charges that are the equivalent of a hearing on whether an individual is an enemy combatant, have that person acquitted and have the executive unilaterally decide to hold such a person anyway. Any "right thinking person" would be troubled by such an idea. Kleiman is not. He simply is not thinking at all, either right or wrong. Consider this from him:

Now it's possible that the Obama Administration has deferre[d] to the desire of the Pentagon and the CIA not to release people who could, if released, tell about the horrible things that were done to them. To the extent that's true, I disapprove. But the claim that, if we don't at once release every captive we can't convict of a war crime, the President will have the power to point at anyone and say "He's a terrorist; let's lock him up forever without a trial," is nonsense. The Bushies were claiming those powers, but the current crew isn't making any such claim.

(Emphasis supplied.) The straw and misinformation contained in that passage is astounding. Kleiman is an expert at criminal law policy, but he clearly has not been following the developments on the preventive detention issue.

The Obama Administration has been reported to be considering enacting by executive order a preventive detention regime. An Obama Administration official in testimony before Congress claimed that the Obama Administration can preventively detain a detainee it has not designated an enemy combatant AFTER acquittal on charges that would in fact support an enemy combatant designation. Kleiman seems not to know any of this.

It's fun for TNR types to pretend that people concerned about civil liberties are DFHs. Kleiman seems to like to do it too. But these are serious issues requiring serious thinking. Kleiman does not provide that here.

Speaking for me only

A Return to Regulation

TChris — 2009-07-09T09:32:00-05:00

The Obama administration has asked Congress to create a Consumer Financial Protection Agency that would increase access to financial services markets while protecting consumers from unfair and deceptive practices. It would also consolidate consumer protection responsibilities that are presently scattered among different financial industry regulators. Barney Frank introduced the legislation yesterday "with 12 Democratic co-sponsors but no Republicans."

Republicans who oppose the bill adhere to the conservative philosophy that government is the problem and that regulation is the root cause of all evil. At a hearing before a congressional committee yesterday: [more ...]

most of the Republicans on the committee [felt] compelled to work Fannie Mae and Freddie Mac into their opening statements at some point. Because, you know, this whole thing is really their fault. (It's not, but I guess that once you've picked a talking point, it is important to stick to it.)

Democrats are also working on a spending bill that will increase the FDA's budget by 11 percent. The FDA's regulatory role was sabotaged by the Bush administration.

Democrats blame George W. Bush’s administration for neglecting the agency and say budget cuts led to a decline in the FDA’s oversight role. Specifically, critics say funding cuts led to a 47 percent reduction in FDA inspectors and a 75 percent drop in safety testing between 2003 and 2006.

Despite widespread concerns about food-borne illnesses, some Republicans continue to argue that food safety should be left to the private sector. They might feel differently after consuming eggs or spinach contaminated with salmonella. The real question is whether an 11 percent increase will be sufficient, given the FDA's new charge to regulate tobacco products.

The War Against Crime: Explaining Police Misconduct

TChris — 2009-07-09T09:05:00-05:00

Tanya Eiserer has an interesting post in the Dallas Morning News crime blog. The post relates to a story she wrote about a Dallas police officer who pepper sprayed a man and a second officer who lied about it to internal affairs investigators. The two officers cooked up a story to explain the use of the pepper spray. A rookie officer who was also present failed to report the incident immediately because he feared retaliation. He eventually told investigators that he saw an officer pepper spray the man without provocation.

The officer who wielded the pepper spray explained why the rookie's account matched the victim's:

"Rookie officers interpret and see things differently than more mature veteran officers."

In other words, rookies in the Dallas Police Department haven't learned to lie to protect other officers. [more ...]

In many police departments, officers maintain a "blue wall of silence" as a matter of honor. Eiserer writes:

Many cops view peers who report misconduct as "squirrels" and will ostracize them.

According to Eiserer, officers are more likely to report misconduct that is committed for the officer's personal gain, while keeping silent about misconduct that's viewed as a component of effective police work.

Many police officers differentiate between "noble cause corruption" and "bad corruption."
"Bad corruption" would be something like taking a bribe or robbing a drug dealer, and they would not hesitate to report such criminal behavior.
The line gets blurry when dealing with so-called "noble cause corruption" -- the idea that police are at war and the ends justifies the means, i.e. raiding a drug house without having probable cause to do so or roughing up a gang member.

While there's probably some truth to that distinction, it's relatively rare for an officer to rat out another officer when money goes missing during a drug investigation. The subtle distinction between "bad corruption" and "noble cause corruption" can be elusive. Once officers are willing to justify corruption, it's easy to rationalize misconduct. If officers think a suspected drug dealer's money is ill-gotten profit, for instance, why should they let the dealer keep it?

Eiserer nonetheless makes an excellent point when she points to "the idea that police are at war." The war mentality -- the war against drugs, the war against crime -- creates the belief that anything officers do to harm the bad guys is justifiable. After all, it's war, and war isn't pretty. Wars are fought against enemies. Wars produce casualties. Defeating the enemy is the primary goal of a war, and if the enemy is harmed, or the enemy's property is destroyed or taken, that's an acceptable consequence of war.

Richard Nixon declared a "war against crime" as an alternative to the "bleeding heart liberal" approach that conservatives regard as insufficiently punitive. Nixon promoted "fear of crime" in the way conservatives have more recently instilled "fear of terrorism." A fearful public doesn't much care about misconduct that harms the "enemy," whether the misconduct is committed by police officers against alleged criminals or by interrogators against alleged terrorists.

The war analogy is damaging to civil liberties. The presumption of innocence and the right to a jury trial are meaningless if officers believe any harm they inflict on individuals they suspect of criminal behavior is justified as an act of war. If all members of society, not just "bleeding heart liberals," expected police officers to obey the law, a culture that accepts the blue wall of silence would be eventually be replaced by a culture that demands accountability. That change will not come easily, but it should start by ending the war upon people who are suspected of criminal behavior.

Playing Hillary

TChris — 2009-07-09T08:32:00-05:00

Julianne Moore was scheduled to play Hillary Clinton in the HBO film "The Special Relationship" which "chronicles the unique and sometimes turbulent political relationship between newly installed British Prime Minister Tony Blair and U.S. President Bill Clinton in the late 1990s." A scheduling conflict forced her to drop out. She's being replaced by Hope Davis, who (to my eye at least) more closely resembles Hillary.

Bill Clinton will be played by Dennis Quaid, while Michael Sheen will take on (for the third time) the role of Tony Blair.

Innocent Man Finds Freedom and Poverty

TChris — 2009-07-09T08:18:00-05:00

Arthur Whitfield could use some money. He served almost 22 years in prison for two rapes that occurred in Norfolk's Ghent neighborhood. DNA testing recently ruled out his involvement. As is common, his wrongful conviction resulted from the victim's mistaken identification.

Whitfield's freedom is largely attributable to two government employees who deserve praise for doing their jobs well.

[more ...]

Mary Jane Burton, a state forensic lab analyst who has since died, preserved biological evidence, including Whitfield's, at a time when it was not required. And Norfolk Commonwealth's Attorney Jack Doyle pursued Whitfield's freedom as soon as the DNA tests in 2004 showed he was innocent. Doyle, now a judge, petitioned the state parole board for Whitfield's immediate release. In April, three months ago, Gov. Tim Kaine pardoned Whitfield.

Whitfield's lawyer applied for a $15,000 transition grant so that Whitfield could begin putting his life together while the Virginia legislature decides how much compensation he deserves for his wrongful incarceration. It turns out that Whitfield faces a classic Catch-22.

Absurdly, the law says such grants can be given only to people still in prison, a condition that essentially requires Virginia to keep innocent people behind bars.

So Whitfield is struggling.

Whitfield now has a job but no car. The gas and water in his apartment have been turned off because he couldn't pay the bills.

In prison, Whitfield at least had access to running water and regular meals. How ironic is it that he regained his freedom only to live as a pauper?

About Those Congressional Hearings on Detainees and Due Process

Jeralyn — 2009-07-08T22:15:16-05:00

Big Tent Democrat wrote here about the Obama Administration's position on continued detention of detainees who may be acquitted.

There were two Guantanamo-related hearings this week. One was yesterday, before the Senate Armed Services Committee. The other was today, before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. The ACLU provided testimony at the second hearing, and reports on both. As to yesterday's hearing:

Justice Department official David Kris testified that the Due Process Clause of the Constitution should indeed apply to the commissions system. However, in other testimony, Defense Department official Jeh Johnson stated that the United States can continue to indefinitely hold detainees who have been acquitted of crimes.

[More....]

As the ACLU says:

Continuing to detain a person indefinitely without charge or trial for a crime for which he has been acquitted is absurd and unconstitutional. If the government has sufficient evidence to warrant criminal charges against prisoners held at Guantánamo, it should file those charges and prosecute the prisoners in ordinary federal courts. But the government should not be holding prisoners indefinitely without charge or trial, and it should certainly not be holding show trials from which guilty verdicts will be honored but acquittals will be ignored. The suggestion that the government can protect the country only by disregarding the Constitution is an extremely dangerous one that should be unequivocally rejected."

The first issue here is the unfairness of the Military Commissions, which cannot be fixed. They must be scrapped. As the ACLU says,

"For the first time ever in a public setting, a Justice Department official testified that the Due Process Clause of the Constitution applies to the military commissions at Guantánamo and, as a result, that coerced evidence must be barred from military commission trials. But it is too late to fix this irreparable system that flies in the face of the most basic principles of our democracy and justice system.

The military commissions system was set up to circumvent the law and the Constitution in order to achieve easy convictions, not to provide justice, and the results of such a sham system will never be legitimate. The only way for America to live up to its highest ideals is for the president to commit to ending the Guantánamo military commissions, trying detainees suspected of a crime in our federal court system, and resettling or repatriating those who are not charged and tried."

We should make no distinction between holding a detainee indefinitely without charges or trial and after acquittal at trial. Indefinite detention in the absence of a conviction is abhorrent to our system of justice.

If there is evidence against someone, charge them in federal court and try them. If the evidence came about through torture and is inadmissible, it is not acceptable for the U.S. to hold those people without charging and trying them because it fears an acquittal without the coerced admissions. The constable blundered, the suspect goes free. It's been that way for 200 years and there's no reason to change it now. In this case, the U.S. can try to repatriate them or send them to another country. If no other country is available, then they must be released here. If the government doesn't like that, then next time it should ensure its agents follow the law and Constitution when interrogating suspects.

What kind of deterrent will it be for torturers if they know there is no need to fear an acquittal because there won't be a trial? All they have to do is give a heads-up to the military, "I don't think you want to charge this one, you won't get a conviction" and his goal is accomplished: No charges will be filed but his victim remains locked up, indefinitely, perhaps for life.

That's too much power to give the military. We need judicial oversight of those charged by Article III judges who are not beholden to the military. And, we need to allow those not charged to file habeas petitions in federal court seeking release.

It's really quite simple: It's either Federal court or release them. If the Government loses in federal court, hopefully they'll learn to conduct their investigation and interrogations legally next time.

Indefinite detenition, either before charges and trial or after trial and acquittal are two sides of the same coin: Both must be rejected.

Palin: Hillary Did Not Go Through What I Am Going Through

Big Tent Democrat — 2009-07-08T22:09:27-05:00

Earlier I wrote about Palin's Hypocrisy. Via Digby, Palin repeats her hypocrisy and falsehoods:

[Q:]At one point during the campaign you said Hillary Clinton whines a little bit too much about being in the public eye. Do you now sort of sympathize with her?

[PALIN]: What I said was, it doesn't do her or anybody else any good to whine about the criticism. And that's why I'm trying to make it clear that the criticism, I invite that. But freedom of speech and that invitation to constructively criticize a public servant is a lot different than the allowance to lie, to continually falsely accuse a public servant when they have proven over and over again that they have not done what the accuser is saying they did. It doesn't cost them a dime to continue to accuse. That's a whole different situation. . . .

(Emphasis supplied.) Palin is full of it here. For anyone who has slept through the last 2 decades and the last political campaign, Digby has the details.

Speaking for me only

Obama's Detention After Acquittal Policy

Big Tent Democrat — 2009-07-08T15:17:05-05:00

As someone who has argued that there could be a sound, fair, constitutional and Geneva compliant preventive detention system, it seems that every day the Obama Administration takes positions that would shock even a "centrist" (snark) like me. Glenn Greenwald details the latest:

Spencer Ackerman yesterday attended a Senate hearing at which the DOD's General Counsel, Jeh Johnson, testified. As Ackerman highlighted, Johnson actually said that even for those detainees to whom the Obama administration deigns to give a real trial in a real court, the President has the power to continue to imprison them indefinitely even if they are acquitted at their trial.

Unbelievable. Now, if we are going to have preventive detention (and I have explained my view on how it could be done before), you can not place someone in preventive detention AFTER acquittal. This is just ridiculous. More . . .

Again, a preventive detention system would have to be based on a POW-style approach imo (outlined here and here.

It is true of course that prisoners of war can be charged with crimes independent of their status as POWs. But it seems clear that that is not what the Obama Administration is contemplating. The idea appears to be try some detainees on the charges that would establish a combatant status and reserve the right to hold a detainee even if acquitted on such charges.

As Greenwald writes:

Whatever else is true, even talking about imprisoning people based on accusations of which they have been exonerated is a truly grotesque perversion of everything that our justice system and Constitution are supposed to guarantee. That's one of those propositions that ought to be too self-evident to need stating.

Apparently, it requires stating now.

Speaking for me only

As the Worm Turns: Blagojoveich Aide to Plead and Cooperate

Jeralyn — 2009-07-08T15:15:08-05:00

Former Ill. Gov. Rod Blagojevich's chief of staff, John Harris, has agreed to plead guilty to a single count of wire fraud. In exchange, he will cooperate against Blagojevich and Fitzgerald's office will recommend a sentence just under 3 years.

The plea deal was not unexpected. Harris' lawyer sayd he began cooperating almost immediately after indictment.

Judge Vacates Ward Churchill Jury Verdict, Gives Him Nothing

Jeralyn — 2009-07-08T14:56:52-05:00

Denver District Court Judge Larry Naves has vacated the jury verdict finding controversial professor Ward Churchill was improperly terminated.(Background here.) You can read the opinion here.

Naves ruled the Board of Regents has quasi-judicial immunity. I'm no expert in civil procedure, but wouldn't you expect him to rule on that before the trial, like at the summary judgment phase, to spare everyone (including us taxpayers) the expense of a trial?

As a result of the jury's verdict, Naves had the option of reinstating Churchill's job or ordering "forward pay" for him. The verdict should also have resulted in an award of legal fees for Churchill's lawyer. (The legal fees were about $1 million.) In addition to vacating the verdict, Judge Naves refused to order Churchill reinstated and refused to give him any "forward pay." And I guess because the verdict was vacated, no legal fees were awarded. So a jury finds Churchill was improperly terminated for his political views and he gets nothing. Nice going. (/sarcasm.)[More...]

The ruling surprised one legal expert, who said jurors made their feelings about Churchill clear by awarding him only $1 but left no doubt he was wrongfully dismissed. "The jury said, 'Look, we didn't like Churchill, but we liked what you did less,' " said trial lawyer Michael Canges.

Churchill's attorney, David Lane, says he will appeal, but he doesn't sound confident.

I doubt anyone who doesn't know Ward Churchill has a favorable impression of him. But this isn't a popularity contest. It's about granting immunity to officials at a state university for whatever decisions they make...and a judge ruling in such a way that he nullifies and disregards the factual findings of the jury.

I do like Judge Naves, and I don't know much about civil litigation, so I can't say he's wrong. I can say his decision seems unfair and has the potential to chill the right to redress of others who are improperly terminated or treated unfairly by universities.

Prisoners Freed From Sentences Based on Torture-Induced Confession

TChris — 2009-07-08T08:16:00-05:00

Torture extorts false confessions, a fact that was apparently irrelevant to interrogators who tortured detainees suspected of terrorism. The unreliability of torture-induced confessions was equally irrelevant to former Chicago Police Cmdr. Jon Burge. In a series of posts dating back to 2003, TalkLeft followed the developing evidence of Burge's aggressive interrogation practices to this conclusion:

Burge and the detectives under his command found unchecked power to torture suspects, primarily black, on the south side of Chicago.

After the evidence of Burge's reliance on torture became too overwhelming to ignore, more than twenty cases that hinged on confessions given to Burge or his detectives were reviewed by the state attorney general's office. Yesterday, as a result of that review, Ronald Kitchen and Marvin Reeves were freed from prison after serving 21 years for multiple murders. The strongest evidence against them was Kitchen's torture-induced confession. [more ...]

Kitchen says Burge's detectives coerced a false confession by hitting him in the head with a telephone, punching him in the face, kicking him, and striking him in the groin. In addition to Kitchen's confession, prosecutors (one of whom is now a judge) based their case on the testimony of an inmate witness who was given a sentence reduction in exchange for his testimony -- an exculpatory fact that they withheld from the defense. The witness claimed that Kitchen confessed to him during two telephone calls, but the attorney general's review of the evidence found that no such calls were made.

Acknowledging that they had no reliable evidence of guilt, prosecutors yesterday reopened the cases against Kitchen and Reeves and dismissed the charges. Meanwhile, Burge awaits trial on federal charges that he lied under oath in a lawsuit concerning his abuse of suspects.

Troy Davis: 'The Most Compelling Case of Innocence in Decades'

TChris — 2009-07-08T00:12:45-05:00

What do Jimmy Carter, William Sessions, Pope Benedict XVI, Bob Barr, Desmond Tutu, and TalkLeft all have in common? A belief that Troy Davis is innocent, and that his execution would be a perverse injustice. NAACP President Benjamin Jealous writes that Davis "represents the most compelling case of innocence in decades."

While Davis' chances of avoiding execution appear to be slim, he's been given a glimmer of hope by the Supreme Court's adjournment for the summer without deciding whether to review his claim that he's entitled to a hearing to demonstrate his innocence. [more ...]

Before new evidence of his innocence was discovered, Davis brought an unsuccessful direct appeal in Georgia's state courts and an unsuccessful habeas petition in federal court. Later, on the strength of the new evidence (including recantations by several trial witnesses and new testimony from three witnesses who heard another man confess to the crime), Davis tried to obtain a new trial from Georgia's state courts. The Georgia Supreme Court decided that Davis was not entitled to an evidentiary hearing to prove his actual innocence. Last year, the U.S. Supreme Court denied Davis' petition to review that decision.

As required by the noxious AEDPA, Davis asked the Court of Appeals for the Eleventh Circuit for permission to file a second habeas petition alleging that the new evidence, unavailable at the time his first habeas petition was filed, established his actual innocence. The Eleventh Circuit stayed Davis' execution while it considered that request, but lifted the stay after deciding (pdf) by a 2-1 vote that Davis did not meet the AEDPA's strict requirements for commencing a second habeas proceeding -- requirements that, as a practical matter, are nearly impossible to satisfy. The dissenting judge objected that the "AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed."

Davis asked the Supreme Court to review the Eleventh Circuit's decision. In a surprising but welcome turn of events, the Court recessed for the summer without acting on that request. The result: there is still hope, however slim, that a man who is widely believed to be innocent will escape the death penalty.

At some point after the Court resumes its work on the first Monday in October, it will decide whether to hear Davis' petition. While it should be self-evident that the right to due process -- the right to fundamental fairness -- protects an innocent inmate from execution, the Supreme Court has never decided whether there is a "constitutional right to be released upon proof of 'actual innocence'." Just a month ago, Chief Justice Roberts sidestepped that "open question" in a majority opinion holding that due process does not guarantee an inmate's access to DNA evidence in the state's custody for the purpose of establishing his actual innocence.

Roberts observed that the abstract right to be released upon proof of innocence raises difficult questions. Inmates would presumably be held to a "high standard" of proof, but if the bar is set so high that it can never be met, the right would be meaningless. Those questions need not be addressed in Davis' case, which (as the dissenting judge in the Eleventh Circuit recognized) poses simpler questions: whether executing Davis "in the face of a significant amount of proffered evidence that may establish his actual innocence, is unconscionable and unconstitutional," and whether Davis "may be lawfully executed when no court has ever conducted a hearing to assess the reliability of the score of affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence, thus entitling Davis to habeas relief."

If the Supreme Court is unwilling to confront those questions, Davis will be put to death unless Chatham County's newly elected District Attorney, Larry Chisolm, can be persuaded to reopen the case. While that isn't something a prosecutor would ordinarily do, most prosecutors don't receive pleas for justice from Desmond Tutu and the Pope. Davis' hopes for a reprieve from death are dwindling, but they aren't lost.