Presumed Guilty

On several occasions, I found myself putting down my book -- The Innocent Man by John Grisham -- and shaking my head, declaring that the story was just too outlandish. Who would ever believe such a ridiculous tale, I mumbled? If this had been a novel, it certainly would have been panned for being unbelievable.

Yet the miscarriage of justice not only happened, it was compounded over and over during the course of the history of this case that spanned almost a dozen years.

The Innocent Man is Grisham's version of Truman Capote's In Cold Blood. As noted in the Washington Post review:

Many wild and crazy things take place in the 15 novels John Grisham has published about the law and those who play fast and loose with it, but, as he says, "not in my most creative moment could I conjure up a story as rich and as layered" as the one he tells in The Innocent Man. It is nonfiction, a detailed examination of the story of Ronald Keith Williamson, who was wrongfully convicted of a murder in 1988 and who was saved from death by lethal injection only through the intervention of men and women who believed in his innocence and were able to obtain the DNA report that cleared him.

I decided to read Grisham's book after following the Troy Davis case, the Georgia man whose conviction for killing a policemen has been called into question. See Death is Final. In fact, the Supreme Court recently took the unusual step of ordering a hearing into Davis' Claims of Innocence.

Like me, Hilde of wrongful-convictions just finished the book and our opinion of the book is similar:

The book tells the story of Ron Williamson of tiny Ada, Oklahoma. A washed-up minor league baseball player with delusions of grandeur, Williamson was a somewhat unpleasant character who is eventually convicted of murder and sentenced to death because of shoddy police work, tunnel vision, lackluster defense counsel, forensic fraud, and the abject failure of the court to ensure a fair trail. The book could read as a Cliff’s Notes guide to wrongful convictions if it could be boiled down to 10 pages, but that would do it an injustice.

The book’s reputation proceeds it, and it lives up to every word of the praise that has been heaped on it since it was published three years ago. “Meticulously researched,” is a common refrain among reviewers, and they’re dead on. I found it hard to believe, at times, that Grisham was intricately describing reality – dozens of interviews, thousands of pages of documents – rather than crafting a world of his own: his creation is so complete as to be completely engulfing.

Death penalty proponents argue that the system is fair and prevents an innocent person being put to death. However, cases like Williamson's make a mockery of those claims. Another case was detailed in the current issue of the New Yorker, where it is likely that the man put to death for a fire that killed his children was not arson, as had been claimed by the "experts" who testified at trial. See Cameron Todd Willingham, Texas, and the death penalty.

Unfortunately, despite the so-called presumption of innocence in a criminal case, many of those involved in the criminal justice system do not share that belief. Too often, "gut feelings" and biases are involved in the process. The arrogant and dogmatic personality of many prosecutors and officers does not allow them to deviate from the course they are following once they have focused on a suspect, despite indications to the contrary. Naturally, this generalization does not apply across the spectrum, but it happens often enough to be a serious problem -- especially when liberty and life is at stake. As Hilde observes:

And so continues the portrait of America’s criminal justice system that Grisham paints: full of unintentional yet overwhelming absurdity, laced with vengeance, spite, dehumanization, and utterly confusing and overwhelming for whomever should become ensnarled in the maelstrom.

Except for the cruel & hard-hearted, such as some of the very characters that were involved in the prosecution of the case highlighted in the book, this true story of a wrongful conviction in a small town in Oklahoma should be used to establish that the death penalty is too risky for a civilized nation to use. Last I checked, the US is still on the list of civilized countries.

Nineteenth on Grisham’s list of publications, the book aligns with Grisham’s well-known theme of legal drama but takes one major detour from his past work: it is nonfiction. The project forced Grisham to take a hard look at a troubled system in which the consequences of a lost court case are all too real.

“Even if you support the death penalty, you cannot support the death penalty system as it stands in the U.S.,” Grisham said. “My one hope is that people realize this system we have is simply too unfair to continue.”

From a summary of the book at speech at University of Virginia School of Law, Author John Grisham Finds Troubled Story Behind “Innocent Man”.

As Jonathan Yardley said in his Washington Post piece:

The bizarre twists and turns of this case are exceeded only by the calculated efforts by law-enforcement officers to warp and abuse the law to their own ends. Perhaps it really was the passionate conviction of the cops and the prosecutor that Williamson and Fritz murdered Debbie Carter, but what they did to win their convictions made a mockery of justice. They ignored clear evidence of Williamson's mental incompetence, they suppressed a tape recording that probably would have cleared Williamson, they sought out and employed snitches. The convictions they got were wrongful in the moral as well as the legal sense of the word, but, as Grisham says, "until the system is fixed, it could happen to anyone."

For more on Dennis Fritz, who was wrongfully convicted with Ron Williamson, see Barbara's Journey Toward Justice.

The Persistent Pant-a-Loon Pearson

If at first you don't succeed, try, try again. Of course, this maxim wasn't necessarily meant to apply as a litigation strategy, but apparently Roy Pearson didn't quite make the connection.

Pearson was an ALJ in DC, who first sued his dry cleaners over a lost pair of pants, then sued over the job he lost because he sued over the pair of pants. I've followed his saga for some time, gleefully chronicling his tale of legal woes. See Never Can Say Goodbye.

As Lowering the Bar explains the latest loss, in Judge Who Lost Pants Loses Another Suit:

It seems that our old friend Roy L. Pearson, Jr., he of the $65 million pants, has recovered sufficiently from losing that case to get on with losing another one. This one was a wrongful-termination lawsuit against the District of Columbia, his former boss (Chief Administrative Law Judge Tyrone Butler), and other alleged miscreants.

As the Boston Globe reports, Judge who sued over lost pants loses bid to keep job:

A federal judge has thrown out a lawsuit brought by Roy L. Pearson Jr., the former District of Columbia judge whose previous $54 million lawsuit against a dry-cleaning business generated international headlines.

Pearson filed the later suit in May 2008, alleging that the District of Columbia government broke the law in refusing to reappoint him to a 10-year term as an administrative law judge. The decision came after news reports about Pearson’s lawsuit against Custom Cleaners, which he said had misplaced a pair of his pants.

The district’s Commission on Selection and Tenure of Administrative Law Judges cited Pearson’s temperament and prudence on the bench in not giving him the job.

Once again, Pearson was left holding his pants. The Court rejected his retaliation claim:

In a 37-page opinion issued last Thursday, US District Judge Ellen S. Huvelle rejected all of Pearson’s arguments. She called Pearson’s lawsuit against Custom Cleaners a “personal vendetta.’’

No wrongful termination here, said the Judge, The Pants Lawsuit: Still Not Over:

But the federal court was not buying it. Retaliation claims are only viable where an employee has been disciplined or fired for so-called "protected speech." To succeed in his case, Pearson would have to show that his speech (the pants lawsuit) involved a matter of public concern. The fact that he sued in part to compel enforcement of D.C.'s consumer-protection laws (going so far as to characterize himself as a "private attorney general" for doing so) did not impress the judge.

Looks like we won't have Pearson around to mock for much longer. But there's always someone new to fill the spot.

Speaking of lawyers behaving badly, a receptionist has sued her former law firm -- an employment law firm -- claiming that they wouldn't let her take a potty break. Her revenge: she wants to relieve the firm of some money for not letting her relieve herself. Claiming that she was fired for complaining about the lack of breaks, she's asking for $1.59M in damages, no less.

As the Washington Business Journal reports, Former receptionist sues Littler Mendelson over bathroom breaks:

Enter Rebecca Landrith, the now-former receptionist in the McLean office of employment law giant Littler Mendelson PC.

According to the July 27 lawsuit the receptionist filed — with no help from a lawyer — Littler provided no substitute receptionist, and “had no consistent policy or procedure as to when or how Landrith could take a restroom break.”

Need we go on? Oh, if we must. “Impromptu requests” for cover by employees — like attorneys — elicited mostly resentment and condescension, she alleges.

On two separate occasions, Landrith claims, she had to “wet her pants” at the desk because nobody would, well, relieve her.

The incidents caused Landrith depression, stress, anxiety and helplessness — ergo, her claim for $1.59 million for intentional infliction of emotional distress.

I think the best comment about the case came from Above the Law:

Littler is one of the leading employment law defense firms in the country. It's really not surprising that a firm well-known for 'defend[ing] many of the world's leading corporations' told this lady to leave before she dripped anything on the stationery.

I think this one may be known as the case of the Potty Potty.

Both Sides Now

Like Judy Collins, Robert Simels could say that he's looked at life from both sides now. He's gone from criminal lawyer to criminal. The prominent New York criminal defense lawyer was convicted of plotting to kill witnesses last week. N.Y. Defense Attorney Found Guilty of Bribery, Attempted Witness Tampering:

Attorney Robert Simels was convicted Thursday of 12 felony counts -- including bribery of a witness, attempted witness tampering and conspiracy to commit witness tampering -- stemming from his efforts to prevent potential witnesses from testifying against his client, Guyanese drug-smuggler Shaheed "Roger" Khan.

Simels was acquitted of only the least-serious charge against him, making a false statement to a corrections officer in order to visit an inmate.

* * * *

"The defendants' crimes were an affront to the criminal justice system," Eastern District U.S. Attorney Benton J. Campbell said in a written statement Thursday. "This case demonstrates that those who seek to use their license to practice law as license to commit crimes will be brought to justice."

When Simels was indicted last September, he ranked among the city's better-known defense attorneys, with a roster of clients that had included mobster Henry Hill (of "GoodFellas" fame), drug-trafficker Kenneth "Supreme" McGriff and former New York Jet Mark Gastineau.

As Jonathan Turley explained, Two New York Criminal Defense Attorneys Convicted of Witness Tampering:

Simels is a former prosecutor who often appeared on Fox and CNN as a legal expert. The charges stem from his representation of Shaheed (Roger) Khan, a major cocaine trafficker from Guyana. He was convicted of tampering with eight witnesses and both Simels and Khan were convicted of possessing illegal eavesdropping equipment.

Much of the trial focused on Simels taped statements boasting to a gang member. He is heard saying such things as planning to “neutralize,” “eliminate” and “destroy” a government witness against Khan. Simels insisted that he was just talking “street” to a lowlife (who proved to be a government informant): “Guyana is a Third World country. They sometimes speak in a very unappealing fashion, so I spoke down in a manner he would appreciate.”

On his website, Simels tell prospective clients: “I have been providing personalized legal services to individual and corporate clients in criminal and civil matters for more than 30 years. My exceptional success as a litigator has earned me a renowned reputation in the legal community.” Prosecutors insist that it became a bit too personalized in this case and crossed over into criminal acts.

It's more than a truism to say that lawyers like to win. From my days practicing as a young lawyer at a large firm, I can recall the senior attorneys preaching a "scorched earth" view of litigation. That is, in order to be a really good attorney, it wasn't enough just to win. You had to destroy your opponent as well.

And I also spent some time in the DA's office, where I experienced the "win at all costs" mentality of many prosecutors first hand. This personality trait is not left behind when moving over to criminal defense work. The case of Robert Simels may be an extreme example of the line crossing that sometimes results. See Judge rips 'dark side' of attorney Simels in murder plot conviction to protect drug lord client.

Stony Olsen of Law Crossing humorously explains the difficulties and perils of crossing the line when zealous advocacy, in When Zealous Advocacy Goes Too Far:

It's important to be zealously engaged on behalf of your client. But there are lines that no attorney should ever cross. Sometimes the ethical decisions are hard. . . .

But sometimes the ethics are completely clear. It's just too bad that Robert Simels didn't think so. Simels was once a Special Assistant Attorney General for New York's Special Prosecutor Office, and thereafter he went into criminal defense.

And in that defense practice, he managed to represent some real winners. Simels claims, for example, to have represented mobster Henry Hill, whose story was retold in the movie GoodFellas. Simels also represented another drug kingpin who is now in prison for life without parole and, according to the IRS, once targeted rapper 50 Cent.

But this time Simels went too far. He was representing one Shaheed Kahn, who was facing charges of cocaine trafficking. Or rather, he was representing Kahn until the federal government arrested him on September 10th, 2008, on charges of witness tampering. Apparently, wiretaps have Simels urging various witnesses against Kahn to be ''eliminated'' or ''neutralized.''

* * * *

Now, my memory of professional responsibility in law school is admittedly a bit hazy. But, I do think that arranging to eliminate witnesses against your client is against the rules. Of course, with the kind of trouble Simels is in, I imagine his law license being yanked is the least of his worries.

Still, in case other attorneys are reading this, let me warn you that witness tampering and trying to eliminate the other side's case against your client will not be looked on favorably — not by the bar or by the authorities. So don't do it!

And like most lawyers, Simels certainly didn't help himself when he ended up taking the stand in his defense during the trial. In another instance of seeing both sides now, the former defense attorney who was known for killer cross-examinations, was crushed when he himself was on the stand. As the NY Daily News noted, Robert Simels, lawyer who defended drug kingpins, convicted of plotting to kill witnesses:

At one point, Simels' became so combative on the stand that Judge John Gleeson ordered the jury out of the courtroom and chided Simels.

"Your career is at stake, your liberty is at stake . . . but I'm not going to allow this to continue," Gleeson said. "I'm going to step on you in front of the jury, and it's not going to help your case."

As unfortunate as it is for Simels to end his career in such an ignominious fashion, it is even worse for his associate, Arienne Irving, who was convicted of five of 11 counts, including attempted witness tampering and conspiracy to commit witness tampering. Irving was a 2003 law school graduate who had been employed by Simels as an associate only since December 2006. As her lawyer noted:

The evidence, he contended, as he did throughout the trial, repeatedly showed that Irving was not present when any of Simels' crimes took place, and that she did little more for her boss than forward phone numbers and addresses to private investigators.

"It's devastating not only for her, but for any associate," Solano said. "What is someone in her position to do? Every time a boss or a partner or a supervisor tells them to do something that's totally within the realm of their employment, do they have to ask, 'What is this about?' For anyone in the legal profession this is a scary case."

Scott Greenfield at Simple Justice echoes this sentiment about Irving, Simels Goes Down:

What is troubling is that Simels associate, Arienne Irving, who has been largely forgotten in this case although she too faces life in prison, was convicted along with Simels. It's my read from the news reports that there was essentially no evidence against her, other than being Simels associate. While Simels is master of his own fate and made his own choices, I question what role she had in this fiasco, and whether her indictment was a ploy to get her to flip on Simels. Now she's convicted, and it's not clear what she did or how she shared Simels' intent to justify it.

While it's fair to rip Simels to shreds, give some though to Arienne Irving.

The final experience of both sides now will come with when the prison door closes.

A Claim of Innocence

Surprising. Shocking. Highly Unusual. Extraordinary. Stunning. Those are some of the reactions (the last one's mine) to the Supreme Court's recent decision in the Troy Davis case.

As the NYTimes reports, Supreme Court Orders New Look at Death Row Case:

The Supreme Court on Monday ordered a federal trial court in Georgia to consider the case of Troy Davis, who is on death row in state prison there for the 1989 murder of an off-duty police officer.

* * * *

The Supreme Court’s decision was unsigned, only a paragraph long and in a number of respects highly unusual. It instructed the trial court to “receive testimony and make findings of fact” about whether new evidence clearly established Mr. Davis’s innocence. Justice Sonia Sotomayor, who joined the court this month, did not participate.

See also, U.S. Supreme Court orders new hearing for Troy Davis.

The SCOTUSblog explains the unusual nature of the decision, Hearing on innocence claim ordered:

The action was highly unusual, because Davis had filed what is called an original writ of habeas corpus — that is, a plea for his release, filed directly in the Supreme Court rather than in lower courts. Such claims rarely succeed. Justice Scalia noted in his dissent that the Court had not taken a similar step “in nearly 50 years.”

The action also was unusual because the Court normally does not take actions of this significance during its summer recess. The case had been ready for the Justices’ consideration near the end of their past Term, in late June, but they simply took no action at that time. There was no word on why the Court took it up again at this time, rather than waiting until a new Term had opened. The length of the two opinions released Monday, however, may have taken some time to prepare, especially with most of the Justices traveling during the summer recess.

Considering the implications of this move by the Court, the LATimes notes, Supreme Court orders new hearing for Georgia death row inmate:

In a surprising move that could indicate a more liberal stance toward death penalty appeals, the Supreme Court on Monday granted a new day in court for a Georgia death row inmate whose two-decade legal saga gained international attention after seven trial witnesses recanted their testimony against him.

The court's order was the first of its kind in nearly 50 years. The recantations have helped Troy Anthony Davis, 40, earn powerful allies in the court of public opinion, including Pope Benedict XVI and President Carter.

Davis' attorney considered the petition a long shot, but the Supreme Court instructed a federal district court to hold a hearing to determine whether Davis' innocence could be established by evidence that wasn't available in his 1991 state trial.

"The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing," Justice John Paul Stevens wrote in concurring with the order.

* * * *

Legal experts were taken aback by the rare move, which came during the court's typically sleepy summer recess. A number of experts said it could indicate that the federal justice system may be loosening its conservative position toward death penalty appeals.

Federal court rulings in recent years had been making it harder for inmates to win writs of habeas corpus, or pleas for their release. Congress also raised the bar in 1996 with the Anti-terrorism and Effective Death Penalty Act, passed in the wake of the Oklahoma City bombing.

I have followed the Troy Davis case for some time. After his last appeal was denied by the court of appeals in Atlanta, I did not have much hope for success in further avenues of appeal. As I said then, We Remain Unpersuaded: "Unfortunately, the news is not surprising. Even when the court granted the appeal, I noted in Hold On, that 'the remaining hurdles that Troy Davis still faces are still overwhelming. Although there is much evidence that brings his conviction into question, even getting approval to hold a hearing where such testimony would be considered is difficult. The legal standard that must be met before a hearing would be permitted is exceedingly stringent.'" With the number of conservative members on the Supreme Court, I would have expected that Davis' claim would have been denied. Luckily, I was wrong.

Of course, the decision of the Court was not unanimous. The NYTimes observed:

The decision set off a sharp debate between Justices John Paul Stevens and Antonin Scalia about Supreme Court procedure, the reach of a federal law meant to limit death row appeals and the proper treatment of claims of innocence.

“The substantial risk of putting an innocent man to death,” Justice Stevens wrote in a concurrence joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer, “clearly provides an adequate justification for holding an evidentiary hearing.”

Justice Scalia, in a dissent joined by Justice Clarence Thomas, said the hearing would be “a fool’s errand,” because Mr. Davis’s factual claims were “a sure loser.”

He went on to say that the federal courts would be powerless to assist Mr. Davis even if he could categorically establish his innocence.

“This court has never held,” Justice Scalia wrote, “that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

See also, Split Supreme Court Orders Review of Death Row Inmate's Claims That Witnesses Recanted Testimony.

Scalia & Thomas epitomize the problems of having Justices without empathy on the court. Thankfully, that was not ultimately found to be a bar for Justice Sotomayor. These two compassion-less conservatives would defer to the jury's decision on guilt -- even in a death penalty case -- despite the myriad cases where a wrongful conviction have later been established. See Two Readings of Scalia. While I understand the need to have finality in court proceeding, the considerations are obviously different when death is the penalty. As I noted before, in Hold On:

And yet, when a life is at stake, it is unconscionable to impose a standard that impairs the ability to get at the truth. I am somewhat heartened by the fact that the Court of Appeals requested that the parties address the question whether a person who may be able to establish innocence may nonetheless be denied an opportunity to establish his innocence because of a procedural requirement.

In other words, are we as a society willing to permit an innocent man to die merely to satisfy some legal rule that may prevent the truth from ever being discovered? And if so, what does that say about us?

Josh Patashnik of the Plank echoes this sentiment in The Troy Davis Case and Standards of Review:

But the problem is that . . . we generally don't think that level of certainty should be sufficient to put people to death. And this is a conflict between the way we think about the death penalty and the way the federal court system works in death penalty cases under AEDPA. Out of necessity, appellate courts grant immense deference to the factual findings of a trial court. You can't constantly be relitigating complex factual matters on appeal; the system would grind to a halt. Ordinarily, we're willing to tolerate the possibility that the trier of fact might have made a mistake, in order to provide some finality and preserve scarce judicial resources. In death penalty cases, for obvious reasons, people are inclined to throw such prudent procedural niceties out the window and say that the question of factual guilt or innocence should always be on the table in an equitable fashion, whether in state court or on habeas review in federal court, without stacking the deck in favor of the jury's verdict. But the system isn't set up that way.

Ultimately, the Davis case demonstrates the problems with the current law itself. In Preventing Another Troy Davis, Adam Server explains:

In the aftermath of the Supreme Court's decision to send consideration of Troy Davis' habeas case back to a federal court in Georgia for review, its worth reconsidering the law that made Davis' journey so harrowing in the first place. Despite the mountain of exculpatory evidence that emerged in the aftermath of his conviction (recanting witnesses, allegations of police coercion) and the weakness of the initial case (zero physical evidence) Davis' appeals were denied time again on legal technicalities arising from provisions in the Antiterrorism and Effective Death Penalty Act of 1996, which limited habeas petitions from prisoners sentenced to death in most circumstances.

* * * *

In this case though, what the law did was prevent a potentially innocent man from obtaining habeas relief in a case where he almost certainly deserved it. I understand the government's interest in preventing frivolous appeals from the convicted in capitol cases, but it's not in the interest of the government or society to execute the innocent, no matter what Antonin Scalia says. It's worth revisiting the habeas provisions of this law and seeing whether it can't be amended to make sure something like this doesn't happen again. Constitutional concerns about AEDPA also aren't new, even if the law has been upheld by the Supreme Court in the past.

No Ham Sandwich

A New York Judge famously joked that a prosecutor could persuade a Grand Jury to indict a ham sandwich.

That's because the DA decides which evidence to present to the grand jury (and what is not presented). The Prosecutor decides which witnesses to call, and which questions to ask -- or not to ask. And then there's the fact that defense lawyers are not permitted in the grand jury room, so there is no cross-examination or way to point out any flaws in the government's presentation.

The result is as carefully orchestrated as opening night on Broadway, with the closing act carefully calculated to reach the desired result. If the DA wants an indictment, she will get one.

Unfortunately, that Judge didn't know Philly's Lynn Abraham -- at least when it comes to prosecuting cops.

Lynne Abraham, the long time DA of Philadelphia, has been called a "tough cookie" over the years and was crowned the Deadliest DA a few years ago because she's so fond of the death penalty. See Lynne Abraham: for better or worse, an institution in Philadelphia.

Yet she's also notorious for her failure to aggressively prosecute police brutality cases.

In the latest example of that, unlike the ham sandwich, she wasn't able to get the Grand Jury to indict the police in an egregious police beating case. As the Inky reports, Grand jury exonerates Phila. police in beating video:

To Police Commissioner Charles H. Ramsey, then newly arrived in Philadelphia, last year's news video of police officers beating three suspects was a black eye for the department.

In the days after May 5, 2008, when police stopped a fleeing car and arrested the three men, the Fox29 news helicopter video was telecast locally, nationally, and internationally. Ramsey took prompt action, firing four officers and disciplining four others.

Yesterday, a Philadelphia grand jury vindicated the officers who arrested Dwayne Dyches, Brian Hall, and Pete Hopkins. The grand jury recommended that no criminal charges be filed and decided that the officers used only the force necessary to subdue three men they had reason to believe were armed and had just fired into a crowd, wounding three others.

"The video, in fact, did not speak for itself," District Attorney Lynne M. Abraham said in announcing the grand jury report.

"We found that the design of the force applied by the police was helpful rather than hurtful," the grand jury report concluded.

"The kicks and blows, in other words, were aimed not to inflict injury, but to facilitate quick and safe arrests. We found that the kind of force administered was completely consistent with police training and guidelines and the laws of the commonwealth."

When I heard the news that the Grand Jury declined to prosecute, it was just what I expected from Abraham. There was no doubt in the outcome in my mind. Likewise, if things had been reversed -- the victims had attacked the police -- she would have aggressively pursued them, with an array of charges.

And once again, Abraham's propensity to take a dive for the police is being questioned. As observed in Cops-D.A. ties questioned:

Close ties between the Philadelphia Police Department and the District Attorney's Office, which presided over a grand jury investigation into a police beating caught on tape, have led some to question the jury's findings.

The D.A.'s office announced yesterday that a grand jury found that a group of police officers did not commit a crime while trying to subdue three shooting suspects last year.

Now, some, including attorney Paul Messing, who specializes in civil rights litigation including cases related to police misconduct, are asking whether the grand jury was unduly influenced by the D.A.

Lucky Abraham will be retiring soon. Unfortunately, it's not soon enough.

Oh, blasphemy!

One of the LLWL Gang is heading off to a vacation in Ireland today. Good thing for her, she's not one who needs to be concerned about the latest law passed there.

As reported at TPM, Ireland revisits blasphemy:

Blasphemy is one of those old issues that Westerners assume has passed into the realm of sketch-comedy or articles about Muslims losing their tongues. But now Irish atheists and religious alike are wary of Justice Minister Dermot Ahern's new Defamation Act, which revives awareness that blasphemy has been, and still is, a crime in the traditionally Catholic country. Although the new penalties may be less severe than in the 1961 version, fines of up to 25,000 euros may still be levied for the crime of blasphemy against religion - and now against any religion.

Yes, it's true. Luckily, I've already been to Ireland, so I can cross it off my list of vacation spots. Lord knows that I've been known to criticize religion (especially the Catholic Church), knows that I'd be in trouble if I were to step foot in Ireland.

Staks Rosch notes, Ireland passes blasphemy law:

On Friday July 11th, 2009, Ireland passed the Defamation Bill by one vote. One of the aspects of this bill would make it illegal to criticize religion… any religion under penalty of fines up to 25,000 Euros. That is the equivalent to nearly $35,000.

* * * *
[A]ny religious criticism is a crime, because many Christians are critical of differing religions. Atheists are not the only ones being targeted here. Simply claiming that the Pope is not infallible might be considered blasphemous to many Catholics. Claiming that the prophet Joseph Smith was not really visited by angels and given magic golden plates would be blasphemous to Mormons. Mentioning the prophet Mohammad without adding the phrase “peace be upon him” would be considered blasphemous to Muslims. And claiming that Scientology is a sham and that Tom Cruise is crazy would obviously be blasphemous to Scientologists.

What if a Christian claimed that if someone was not saved through Jesus Christ, he or she would spend eternity in Hell? An argument could be made that such a statement and even the Bible itself might be considered blasphemous to other religions. In fact, most religious are blasphemous to other religions. Maybe the Irish police will fine everyone.

Atheist Ireland plans to test the new law by publishing a deliberately blasphemous statement. See Trees, worshippers and Ireland’s new blasphemy law. Now, blaspheme -- that's something to praise!

(Via onegoodmove)

Annie Happens to be Right Here

On a lighter note, the Sotomayer hearings weren't all the stuff of old white men wearing their victimhood on their sleeves. There were a few memorable moments.

Josh Marshall of TPM highlights one such, in Classic: Shades of Annie Hall:

Remember that scene in Annie Hall where the Alvy and Annie are waiting in line at the movie and Alvy is going nuts listening to the pontificating blowhard going on about Marshall McLuhan and then Alvy pulls McLuhan himself out from behind the movie poster to tell the guy he's an idiot. Not quite identical and Sotomayor could have driven the point a bit harder but Judge Sotomayor managed to pull off something like that.

During yesterday's session:



Brings back memories of this:

Judge Not

Although it appears that the confirmation of Sonia Sotomayer is a foregone conclusion, that hasn't stopped the Judiciary Committee from making much ado about nothing over the "record" of Judge Sotomayer. Of course, it's all about the chance for the esteemed Senators to pontificate in front of the cameras rather than to truly probe the record of the Judge.

And Senator Sessions needn't worry. He still has the pointy hat crowd locked up. The same is true for his colleagues. As Craig Crawford of CQ Politics notes, Smiling GOPers Ought to be Frowning:

Watching Lindsey Graham's gotcha grin as he needled Supreme Court nominee Sonia Sotomayor with disingenuous and rhetorical questions you had to wonder what was so funny.

Does the Republican senator think it is amusing that he and his party's condescending tone toward the Hispanic woman was costing them ethnic votes with each passing hour of Tuesday's Judiciary Committee hearing?

It is not that the Republican inquiries were out of bounds in legal terms. A confirmation hearing like this is a political forum.

Even if they vote for her, the fallout for Republicans could reach well beyond Hispanic voters. They are coming across as a bunch of snarky and bitter old white men who cannot bear the thought of their kind losing power.

The impact of this story on the political scoreboard should give Democrats much more to smile about. (Emphasis added)

Beyond the Committee charade, the most annoying part of the confirmation hearing is the fact that Judge Sotomayer's record has been so twisted and misrepresented by the GOP and the media.

Shortly after she was nominated by President Obama, I spent some time reading up on the various decisions that she was involved in during her tenure on the Court. SOTUSblog had a 4 part series on her opinions, see, Judge Sotomayor’s Appellate Opinions in Civil Cases, Part II, Part III, Part IV. See also, Reports on Judge Sotomayor’s Record, for a round up of legal blogs and other opinions on her record.

The reality is that she is a moderate Judge who carefully follows precedent, notwithstanding what may be perceived as her personal views. That should not be a surprise, since when all was said and done, the biggest issue the GOP could come up with was a supercilious attack on the fact that she might harbor some empathy in her soul. See The GOP's misguided and confusing campaign against judicial empathy.

Not that empathy was always such a dirty word. As Americablog recalls, Ah, empathy:

Justice Sam Alito on empathy and judging

“When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”

Flashback: Alito Knows A Thing Or Two About Empathy Also

On Wednesday, Glenn Greenwald posted a key part of the transcript of Justice Samuel Alito's 2006 confirmation hearing, which suggests that, just three and a half years ago, Republicans thought empathy was a pretty righteous quality in a Supreme Court nominee. Well, we've dug up the footage of that portion of the hearing and, as it turns out, he sells the empathy pretty well.

Flashback: George H.W. Bush On Clarence Thomas' 'Great Empathy'

"I have followed this man's career for some time," said President George H.W. Bush of Clarence Thomas in July 1991. "He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor."

But when you've got nothing else, what's are you going to do?? The early smears about her temperament problems, Early Smears On Sotomayor: ‘Dumb,’ ‘Bully,’ ‘Doesn’t Play Well With Others,’ ‘Obnoxious’, didn't quite cause enough of a stir. The problem was, no matter how tough she is, she's no match for Justice Scalia. See Sotomayor’s Blunt Style Raises Issue of Temperament. Then, there was that little problem of sexism creeping into the equation. As the Times observed:

Judge Guido Calabresi, a former dean of Yale Law School who taught Ms. Sotomayor there and now sits with her on the Second Circuit, said complaints that she had been unduly caustic had no basis. For a time, Judge Calabresi said, he kept track of the questions posed by Judge Sotomayor and other members of the 12-member court. “Her behavior was identical,” he said.

“Some lawyers just don’t like to be questioned by a woman,” Judge Calabresi added. “It was sexist, plain and simple.”

He said Judge Sotomayor’s forceful and lucid arguments had persuaded him to reconsider his position in a number of instances. “And I’m a tough act,” he said.

As usual, what all this has done is framed the debate, making this moderate judge appear to be a leftist zealot rather than the moderate she is. It has dampened the cries of the liberal left, who wanted a true liberal to be appointed to the court. Seeking a bomb-throwing, passionate, liberal Scalia for a seat on the Supreme Court. And, she may be a very good judge, but a liberal she's not.

For more on the Judge, see the array of quotes gathered by Shaun Mullen at Kiko's House, Quotes From Around Yon Soniasphere.

A Loss of Innocence

Once again, the Supreme Court has effectively held that the concept of justice does not mean that justice should ultimately prevail in the halls of justice. Ruling in the DA's Office v. Osborne case, Supreme Court says convicts don't have right to DNA test, the Court found:

Prisoners have no constitutional right to DNA testing after their conviction, a split Supreme Court ruled yesterday, even though the technology provides an 'unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.'

In the court's first examination of how to treat the rapidly evolving field of biological testing, Chief Justice John G. Roberts Jr. wrote for the 5-4 majority that it was up to the states and Congress to decide who has a right to testing that might prove innocence long after conviction.

The 'challenges DNA technology poses to our criminal justice systems and our traditional notions of finality' are better left to elected officials than federal judges, he wrote.

'To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,' he wrote. He was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr.

Calling it "a beaut of a decision from the increasingly brutal and inhumane conservative-dominated Supreme Court," Matthew Yglesias observes (as I have also), that the Court's decision compounds the errors that can occur with the win-at-all costs mentality that all too often exists in criminal justice system:

Obviously, the purpose of the established system of criminal justice is to use punishment of the guilty as a means of controlling crime. The general hostility of most people in the law enforcement and prosecutorial universe to exonerating evidence is a little bit hard to understand. The predominant thinking of Alaska in this case seems to be that the punishment of the innocent works as a close substitute for the punishment of the guilty, so that given the heinous nature of the crime the state has a strong interest in convicting someone or other of it irrespective of the facts. This is exactly the sort of madness and injustice we rely on the judicial system to rescue us from. But not the new Roberts Court!

See Conservative Justices’ Strange Enthusiasm for the Punishment of the Innocent.

Of course, this is precisely what I would have expected the Court to do after denying an appeal in the Troy Davis case last year. In that case, which I've written about several times before, there were compelling issues raised about guilt or innocence in that death penalty case and Davis' attorneys appealed to the Supreme Court, hoping for a ruling that the Eighth Amendment creates a right of an innocent person not to be executed. The appeal also sought a new hearing to present the new evidence in an effort to spare his life, which the Court declined to accept for consideration.

But what else could be expected from the Roberts court, as BuzzFlash notes, High Court's Supremely Flawed DNA Ruling Puts States Rights Before Due Process, Justice, Public Safety and Empathy:

At the Supreme Court of the United States Thursday, a 5-4 ruling against William Osborne seemed to confirm that ideology and lack of empathy trump everything else for some of the right-leaning justices now serving there. 'Although the right wing bloc obviously consider themselves on the 'law and order' side of the bench, their lack of empathy in this matter actually promotes lawlessness and needlessly puts women in danger,' one court observer wrote yesterday.

Likewise, Lawyers, Guns and Money, in This Is Your Court On Conservatives, adds:

Roberts and his right-wing colleagues share another longstanding trait of American conservatives: prioritizing 'state's rights' over human rights. And as in most cases, the benefits of this as applied to this case are hard to discern. While federalism may promote liberty in some respects, there is no tangible benefit to permitting states to imprison potentially innocent people when assessing exculpatory evidence would entail little expense. And interpreting the due process clause to give the defendant a right to present exculpatory evidence in this case can only be a threat to the 'sovereignty' and 'dignity' of the states if one believes that there should be virtually no federal supervision of the state criminal procedure, which the 14th Amendment precludes even if it wasn't a stupid idea on the merits. If preventing illegal detention isn't at the heart of due process, I'm not sure what is.

Noting the criticism of the case and of the conservatives who endorsed it, Glenn Greenwald observes that the Obama DOJ also continued to advocate this egregious position before the Court as originally proposed by the Bush Administration, Obama, the Right and defendants' rights:

[T]his was yet another case where the Obama DOJ sided with the Bush administration and advocated the position that the conservative justices adopted. The Obama DOJ aggressively argued before the Court that convicted criminals have no constitutional right to access evidence for DNA analysis. Indeed, its decision to embrace this extreme Bush position caused much controversy and anger . . . .

* * * *

There may be justifications for what the Obama DOJ did (all other things being equal, government lawyers tend to prefer continuity in positions after changes in administration), but -- as is true for so many controversies these days -- it's rather difficult to heap all the blame on conservatives for something that the Obama administration itself embraces and is working to bring about.

What was not mentioned in Greenwald's piece is the fact that AG Eric Holder spoke out after the opinion was announced in favor of the use of DNA evidence. As reported by the Blog of the Legal Times, DNA Evidence Can Exonerate the Wrongfully Charged:

A day after the Supreme Court ruled defendants have no constitutional right to a review of DNA evidence in post-conviction proceedings, Attorney General Eric Holder Jr. underscored the Justice Department position that seeks to expand access to DNA evidence in the courts.

* * * *

“And we are mindful that DNA evidence can be used to exonerate those who are wrongfully charged,” Holder said today. “Our mission at the Justice Department is not simply to win cases. It is to do justice, and science and DNA can help us accomplish this.”

Yesterday, Holder issued a statement in response to the Supreme Court 5-4 decision in District Attorney's Office for the Third Judicial District v. Osborne that said, in part: “Constitutional rights are only one part of a fair and full system of justice. Simply because a course of action is constitutional does not make it wise.” Holder said in the statement that the Court “merely spoke about what is constitutional, not what is good policy.”

I'm not sure I agree that the constitution would not also require such a result, but I agree that it is good policy, at a minimum, to ensure that an ability to establish innocence is always guaranteed in our system of justice, at whatever stage in the process. As I mentioned before, with respect to the Troy Davis case, former Judge William Sessions noted:

Former Chief Justice William Rehnquist once wrote that the judicial system, “like the human beings who administer it, is fallible.” I agree. Especially when it comes to a human life, the courts should always be able to examine claims of innocence.

In Guns We Trust

Admittedly, I'm not much of a fan of the Terrorist Watch list, as I've mentioned before:

One of my major pet peeves (if you can characterize a desire to uphold our constitutional rights as a pet peeve) is the TSA's "No Fly List." My main objection is that The List is a secret list, with information gathered by the government from various sources (including, no doubt, the various illegal spying efforts that the FBI and others have engaged in), that has information about you that you are not permitted to see, challenge or be removed from. More Power than Law. The true size of The List is unknown. See, Big Brother Run Amuck: 435,000 Americans in "Terrorist" Database. Numerous errors have been reported, to no avail.

Despite my objections, I also believe that if we have to have The List, a process should be put in place that would allow a person who believes he is on The List to have a way to petition for review and removal, if appropriate. Rather than fix the problems with The List by paring down the numbers to those who may in fact be "terrorists," this over-inclusive list has grown even larger since I wrote about it 2 years ago. Back in 2007, the database contained over 400,000 names. Now, it's over 1 million.

Clearly, The List is riddled with problems. Yet, being on The List doesn't deprive one of all of our rights under our constitution. Thankfully, the right to buy and bear arms is a precious freedom that even The List cannot infringe.

A NYTimes article, On Terrorist Watch List, but Allowed to Buy Guns, reports:

People on the government’s terrorist watch list tried to buy guns nearly 1,000 times in the last five years, and federal authorities cleared the purchases 9 times out of 10 because they had no legal way to stop them, according to a new government report.

In one case, a person on the list was able to buy more than 50 pounds of explosives.

The new statistics, compiled in a report from the Government Accountability Office that is scheduled for public release next week, draw attention to an odd divergence in federal law: people placed on the government’s terrorist watch list can be stopped from getting on a plane or getting a visa, but they cannot be stopped from buying a gun.

Gun purchases must be approved unless federal officials can find some other disqualification of the would-be buyer, like being a felon, an illegal immigrant or a drug addict.

Responding to blogger Instapundit, who defends the gun purchase exclusion, No More Mister Nice Blog echoes my sentiments, in The Gun Is Sacred:

Well, terrorist watch lists are bad and Orwellian when they're full of mistakes and put together without due process. And the one we've got, yes, is quite flawed. I've criticized it repeatedly for ensnaring people just because they have common names, or merely share names with people who are under suspicion. And there need to be much better procedures for appealing inclusion on the list. But if we're using it to keep people off planes, or for any purpose at all, why is the gun so sacrosanct that it gets a carve-out? Oh yeah, I forgot: this is America, and the gun is God.

Yes, we must keep our priorities in order.

Above all, we believe in Life, Liberty & the pursuit of Arms.

MoBo's Gotta Go

Another story that I've been wanting to write about is the dismissal of the criminal case against celebrity Pittsburgh coroner Cyril Wecht. As was reported by TPM, Wecht Charges To Be Dropped:

The charges against Dr. Cyril Wecht, the celebrity forensic pathologist and prominent Pittsburgh-area Democrat, will be dismissed.

U.S. Attorney Mary Beth Buchanan, a Bush appointee who had been accused of pursuing a politically motivated prosecution against Wecht, [last week] filed a motion to drop the charges, reports the Pittsburgh Post-Gazette.

Wecht, the former Allegheny County coroner, was charged in 2006 with misusing his office for private gain. Last year, his trial ended in a hung jury.

Buchanan said in a news conference that her decision to ask for the charges to be dropped was prompted by a judicial ruling last month -- finding that crucial evidence was inadmissible because prosecutors' search warrants were too general -- which she said made it difficult to move forward with the prosecution.

Not happy about having to admit defeat, Buchanan couldn't resist taking a last swipe against Wecht. Lacking the professionalism of her office, the Pittsburgh Post Gazette notes that Buchanan added, Wecht charges dropped:

'He wasn't acquitted of anything. It was a hung jury.

'However, in our society, everyone is innocent until proven guilty.'

Dr. Wecht, at a news conference yesterday afternoon following the judge's signing of the order to dismiss the case, called Ms. Buchanan a 'sore loser.'

'Her record, her actions speak for themselves,' he said. 'She has no shame at all. Absolutely none. Evidently, whether it's biological, or genetic or an environmental, infectious contaminant of some kind, she is incapable of simply telling the truth, not to mention being a gracious loser.'

Dr. Wecht criticized the government for filing an 84-count indictment and whittling it down to just 14 counts before dismissing the entire case.

'What does that say about professional decency and ethical responsibility?' he asked.

Her conduct at the end -- and throughout the course of this partisan witchunt -- have earned her the scorn she deserves. Showing the degree of vindictiveness she exemplified, even the conservative Scaife-owned Pittsburgh Tribune Review criticized her, Buchanan's big case slams shut for good:

The problem isn't that U.S. Attorney Mary Beth Buchanan lacks the courage of her convictions.

The problem is — after spending more than three years, and by conservative estimates more than $200,000 — she lacks a conviction against Dr. Cyril Wecht.

Given the resources her office devoted in the case against the nationally renowned forensic pathologist and former Allegheny County coroner, that's a significant problem.

Buchanan pursued Wecht with the same dogged determination the 17th-century residents of Salem, Mass., displayed in hunting alleged practitioners of the occult.

But Tuesday, she reluctantly announced she would drop public corruption charges against Wecht.

Buchanan had little choice, really.

Last year's seven-week Wecht trial ended with a hung jury. Before a retrial could occur, U.S. District Judge Sean McLaughlin recently ruled there was a bit of trouble regarding the evidence the government compiled against Wecht.

Owing to the use of improper search warrants, the evidence was inadmissible.

Oops.

Red-faced and empty-handed, Buchanan yesterday was left to star in her own personal version of every prosecutor's most terrifying horror movie: 'Dude, Where's My Case?'

See also, the Post-Gazette editorial, End of the road: More than the Wecht case should be over and Bush US Attorney Buchanan, of GOP ProsecutorGate Infamy, Gets Accused of Over-Prosecuting Dems by Richard Mellon Scaife's Paper.

As I've mentioned before: Because of my ties to Pittsburgh, I have followed the Cyril Wecht case for some time, which has been prosecuted by Buchanan amid claims of political prosecution. The Party's Out of Step. As I noted in another essay on Buchanan's refusal to leave, Bush League Leftovers:

I've written about Mary Beth Buchanan before and her adherance to the GOP party line, The Devotee. In fact, the partisan prosecution of Cyril Wecht of Pittsburgh earned the ire of former Governor Dick Thornburgh, a Republican, who testified in Congress against conduct of Buchanan. The Party's Out of Step. And the fact that she's a crony of former Senator Santorum -- need I say more? She was, of course, in good company in a department stacked with the likes of [Alice Martin of Birmingham] and other disreputible US Attorneys. See The Face of a "Loyal Bushie".

See Time to Go.

An old friend from my Pittsburgh days was also the attorney for Wecht, so I was delighted to see that he prevailed in such a high profile case.

But the best news about the outcome of this matter is that it removes any question of partisanship if Buchanan is now booted from her position by Attorney General Eric Holder. It's long overdue. As Will Bunch of AttyTood put it, One American job that should be shed:

The new president typically exercises the ability to appoint new U.S. Attorneys shortly after taking office; there are some prosecutors, like Chicago's Patrick Fitzgerald, who manage to rise above partisan politics, but Mary Beth Buchanan is not one of them. Aggressively and overtly political prosecutions of people like Wecht and former Alabama Gov. Don Siegelman -- not unlike torture -- were more the hallmarks of a banana republic than the United States of America. The sooner the Obama administration moves to clean up Justice, the better.

Along with Alice Martin of Alabama, who has persecuted former Alabama Governor Don Siegelman on flimsy charges, Buchanan should be on the top of the list of Gotta Goes. As the Tribune Review remarked:

U.S. Attorney General Eric Holder recently announced the replacement of a number of U.S. attorney holdovers from the Bush administration is imminent. Don't be surprised if Buchanan is among the first to go.

In the wake of this costly, colossal, time-consuming failure, Buchanan will leave the job with a dubious legacy.

She exits not with a Wecht, but a whimper.

What's the Matter With Yoo?

The fact that I had to read about it elsewhere is perhaps most telling of all.

The editorial/op-ed section used to be the first stop on my daily perusal of the paper, which I read front-to-back (other than the sports section). No more. In fact, I no longer read the opinion pages of the Inquirer -- what I now not-so-affectionately refer to as the "Conservative Corner" of the paper.

In a recent piece by Steven Reynolds on Why the Philadelphia Inquirer is in Bankruptcy and its hiring of Rick Santorum as a columnist (coincidence? I think not), I commented:

Not to mention that Philly is a strongly Democratic town & the editorial page is now a GOP rag (I stopped reading it a while ago). Santorum, Krauthammer & Smerconish on the same masthead makes one think of the Washington (”Moonie”) Times, not the Inky.

[Brian] Tierney is supposedly trying to appeal to the suburbanites who were turned off by the “liberal bent” of the Inky, but he misunderstands that most don’t hold his hard right views. What’s particularly ironic about the choice of Santorum is that he was mainly defeated because the republicans in SE PA rejected his brand of conservationism. And, of course, it doesn’t help that he can’t express a complete thought in a rational manner.

Despite that, I was still surprised by the most recent addition to the Conservative Corner -- none other than Mr. Torture himself, John Yoo.

As Will Bunch reveals in his AttyTood blog, Inquirer defends the indefensible: A monthly column by torture architect John Yoo:

By late last year, the world already knew a great deal about John Yoo, the Philadelphia native and conservative legal scholar whose tenure in the Bush administration as a top Justice Department lawyer lies at the root of the period of greatest peril to the U.S. Constitution in modern memory. It was widely known in 2008, for example, that Yoo had argued for presidential powers far beyond anything either real or implied in the Constitution -- that the commander-in-chief could trample the powers of Congress or a free press in an endless undeclared war, or that the 4th Amendment barring unreasonable search and seizure didn't apply in fighting what Yoo called domestic terrorism.

Most famously, Yoo was known as the author of the infamous "torture memos" that in 2002 and 2003 gave the Bush and Cheney the legal cover to violate the human rights of terrorism suspects at Guantanamo Bay and elsewhere, based on the now mostly ridiculed claim that international and U.S. laws against such torture practices did not apply. Working closely with Dick Cheney, Cheney's staff and others, Yoo set into motion the brutal actions that left a deep, indelible stain on the American soul.

Yet none of that was enough to prevent my colleagues upstairs at the Philadelphia Inquirer -- with none of the fanfare that might normally accompany such a move -- to sign a contract with Yoo in late 2008 to give him a regular monthly column.

* * * *

Because Yoo's working arrangement with the Inquirer was never formally announced, even people who work here at 400 North Broad Street, the home of the Daily News and Inquirer,weren't immediately aware (myself included)that Yoo was now a regular columnist, joining an increasingly rightward-tilting lineup that also includes the likes ex-Sen. Rick Santorum (at $1,750 a pop), Michael Smerconish, a moderate Republican who is also a forceful advocate for torture, Kevin Ferris and others.

I've already written about the what's the matter with Yoo many times in the past, including a riff on an earlier op-ed piece, Yoo What?, in which Yoo audaciously argued that the Supreme Court exceeded its authority by deciding issues of constitutional import in a manner that did not give sufficient weight to the President -- or even Congress. Of course, I'm sure he'd concede the error of his ways, now that there's a President of a different color in the House (that is, blue rather than red, of course). See also, The Horror of Yoo and Yoo Who.

Yoo's latest dribble for the Inky is to echo the latest GOP talking point, that "empathy" is not a qualification for the Supreme Court. John Yoo Argues for Neutrality, Needs Empathy. According to Orin Hatch, empathy is Code for activist. I realize that empathy is not a word in the conservative vocabulary. Not surprisingly, the Republicans believe that you have to be cold, cruel and souless in order to serve on the Court (think Thomas, Scalia and Alito).

Jonathan Valania of Phawker also has a compendium of opinion on the Inquirer's hiring of Yoo, HECKUVA JOB TIERNEY: Why Is THIS Man Bloviating About Supreme Court Replacements In The Inquirer?. As he says:

First Santorum, now Yoo. Increasingly, the Inquirer’s editorial page has become the place where the last eight years go to die. What’s next? Replacing Craig LaBan with Dick Cheney? Tom DeLay’s pitbull movie reviews? Karl Rove reviving the Marley & Me franchise?

One good thing. Yoo doesn't need a law license to write his discredited opinions on the law, so if Pennsylvania were to disbar him, as has apparently been recommended by the report for the DOJ on torture, he could still pontificate to the readers of the Inky, who appear to be matching the numbers of the GOP itself -- an ever downward spiral.

Jumping Up & Down

Ever since the announcement earlier this week of Justice Souter's retirement from the Supreme Court, the expectation is that the conservatives will try to nix whoever is nominated by President Obama, as the GOP gears up for Court fight. In keeping with being the "Party of No," as the Politico notes:

Senate Republicans admit they have virtually no shot at stopping President Barack Obama’s pick to replace Supreme Court Justice David Souter — but they see a definite political upside in waging a fight.

A small cadre of GOP researchers has already begun scouring the records of Souter’s potential replacements — hoping to find a trove of inflammatory legal writings or off-the-wall positions to hang around the necks of vulnerable Democrats in the 2010 midterms . . . .

“Whoever they get is basically a zero-sum replacement for Souter — so I think it’s more of an opportunity for us than it is for them,” said a senior Republican leadership aide, adding that a liberal nominee could hurt conservative Democrats like Sens. Blanche Lincoln (Ark.) and Evan Bayh (Ind.), both of whom are up for reelection in 2010. “I don’t think, given their majority, that we can stop them, but it’s a great opportunity for us to tie their incumbents to whatever crazy opinions or statements come to light.”

There has even been discussion of the possible filibuster of the nominee. As was noted by Booman Tribune, Will GOP Filibuster SCOTUS Pick?:

When Samuel Alito was confirmed, only four Democrats voted for him (Tim Johnson of South Dakota, Kent Conrad of North Dakota, Ben Nelson of Nebraska, and Robert Byrd of West Virginia). However, the real vote was to invoke cloture. On that vote, the Democrats were much more generous. The following Democrats (in addition to the previous four) voted for cloture: Daniel Akaka of Hawaii, Max Baucus of Montana, Jeff Bingaman of New Mexico, Maria Cantwell of Washington, Tom Carper of Delaware, Byron Dorgan of North Dakota, Daniel Inouye of Hawaii, Herb Kohl of Wisconsin, Mary Landrieu of Louisiana, Joe Lieberman of Connecticut, Blanche Lincoln of Arkansas, Bill Nelson of Florida, Mark Pryor of Arkansas, and Ken Salazar of Colorado.

Progressives were furious with all of these Democrats who voted for cloture because they allowed Alito to be confirmed with less than 60 votes (he got 58 votes).

* * * *

However, the Republicans of today are a different breed from the Democrats of 1991 and 2005. They just might attempt to filibuster a pro-choice Justice with every pro-life member that they have. That would be thirty eight members, and if anti-choice Democrats Mark Pryor, Bob Casey Jr., and Ben Nelson joined them, they could sustain a filibuster. It's theoretically possible.

How could anyone even be seriously discussing the issue. A filibuster for Supreme Court by the GOP? But that couldn't be. After all, the Republicans are the strenuous proponents of up and down votes for judicial nominees. I can still recall their strident cries against even the possibility of a filibuster by the Democratic minority during the Bush years.

To refresh our collective recollection, Media Matters has assembled the quotes of various legislators on the topic, In Their Own Words: The Majority's Prerogative, observing:

In 2005, many Republican Senators went so far as to claim the filibuster of judicial nominees was unconstitutional. Now four years later, with President Obama's first Supreme Court appointment looming, will they remain consistent in their position or commit one of the most blatant acts of hypocrisy in the 220-year history of the United States Senate?

On the other hand, as Steve Benen said, in A TRIP DOWN MEMORY LANE....

A talking point emerges.

...Republicans are eagerly pointing out that Barack Obama, while in the Senate, voted to filibuster the nomination of Samuel Alito to the court.

Well, that's at least accurate. Obama, as a senator, declined to filibuster the Roberts nomination, but opposed cloture on the Alito nomination. On this point, Republicans are not lying or playing fast and loose with reality.

That said, this stroll down memory lane may not be as fruitful for the GOP as they'd like. For one thing, Obama, right around the time of the Alito hearings and floor vote, made a variety of comments that Republicans may find interesting. For example, he told ABC News in January 2006, "[T]here is an over-reliance on the part of Democrats for procedural maneuvers and mechanisms to block the president [on judicial nominees] instead of proactively going out to the American people and talking about the values that we care about. And, you know, there's one way to guarantee that the judges who are appointed to the Supreme Court are judges that reflect our values and that's to win elections."

For another, the more Republicans focus on Obama's efforts during the Bush years, the more it's a reminder of their own efforts during the same period.

* * * *

I don't doubt that Republicans will shamelessly pretend none of this ever happened, and will pretend they never said the things they really did say, but I'm looking forward to the rhetorical acrobatics.

And even if there's not a direct filibuster, there may be a way for the Republicans to stymie the pick in Committee. Cornell Law Professor Michael Dorf suggests that Specter's defection from the GOP may allow that to happen, How Specter's Defection Could Make It Harder to Confirm Pres. Obama's Judicial Nominations:

Does Arlen Specter's defection from R to D strengthen the President's hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

Sam Stein of the Huffington Post confirmed this maneuver, but says that there may still be another Judiciary Committee procedural rule to get around that one. He explains the process, in How Obama's Supreme Court Nominee Can And Can't Be Filibustered:

The Majority Leader in the Senate has the power, it seems, to go around the Judiciary Committee's process. A source familiar with the rules of the Senate notes that "a judicial nomination may be discharged from a committee by unanimous consent." However, since -- in this hypothetical scenario -- Republicans are already objecting to the nominee, it seems likely that unanimous consent would fail.

That said, the source adds, "A motion to discharge a nominee from committee is also in order, but if there is objection to that motion, it must lie over a day. On the next day, you move to executive session to the motion to discharge, the vote on proceeding to executive session is majority vote, however, once you are on the motion to discharge it can be filibustered, so you would need 60 votes on the motion to discharge and then presumably on the nomination too."

In short: There is a parliamentary path to getting a stalled Supreme Court nominee out of the Judiciary Committee and to the Senate floor. That process would, like the ultimate confirmation vote, involve getting the 60 votes needed to break a filibuster just to get the nomination to the Senate floor. But with a bigger pool of Republicans (including some of like mind) it would seem likely that the White House could get the 60 votes needed to cut off debate.

No matter what, one thing is sure: That the Republicans will be jumping up & down about whomever is proposed by Obama, trying to figure out a way to stop the Senate from a straight up & down vote on the candidate.

It's Not What You Do, It's Who You Are

Of all of the of the consequences of the current economic downturn, the worst is the rising number of suicides (especially family member murder/suicides). It seems to be a weekly, if not daily occurrence. And it seems that no one is immune.

Just last week, a Manhattan lawyer killed himself and his family in a Baltimore hotel room, while visiting their daughter at college. In that case, it appears that the lawyer, may have been involved in a financial scam that was about to be exposed.

As I've mentioned before, the legal community has been experiencing the same economic pain as is felt everywhere. Wolf, Block, a large Philly firm, decided to close last month. Lawyer layoffs are becoming a common occurrence, especially at the large firms and there doesn't appear to be an end in sight any time soon.

Another casualty of law firm layoffs was the suicide of an attorney who was told that he was being laid off by his firm. As reported by the Washington Post, Bethesda Lawyer Who Argued Before High Court Kills Self in Office on Layoff Day:

A 59-year-old lawyer with an Atlanta-based firm who was about to lose his job because of the economy was found dead in his Washington office yesterday of an apparently self-inflicted gunshot wound, according to police.

Mark I. Levy, a Bethesda resident who was a former deputy assistant attorney general in the Clinton administration, was discovered by a co-worker about 8 a.m. in his 11th-floor office at Kilpatrick Stockton, in the 600 block of 14th Street NW, police said. They said evidence indicates that Levy shot himself in the head with a .38-caliber handgun.

In typical lawyerly fashion, Levy made sure all of the details were taken care of. The ABA Journal reports, Reportedly Laid-Off Lawyer is an Apparent Suicide at Kilpatrick Stockton:

An e-mail sent to Levy this morning produced this auto-reply message: "As of April 30, 2009, I can no longer be reached. If your message relates to a firm matter, please contact my secretary ... . If it concerns a personal matter, please contact my wife ... . Thanks."

His body was discovered at about 8 a.m. by a co-worker in his 11th-floor office, apparently shot with a .38-caliber handgun of which Levy was the registered owner. Today was to have been his last day, although he was to receive four months of severance pay, the Post reports, citing an unidentified source.

"The source said Levy left a note in his home, saying he loved his family and instructing his wife on how to handle finances and other matters," the newspaper writes. His teenage son found the note this morning and a Montgomery County police officer was in the home and broke the news to the family when someone called from Kilpatrick Stockton to report his death.

By all appearances, Levy was a successful lawyer. He was a Yale Law School graduate who headed Kilpatrick's Supreme Court and appellate advocacy practice group. He also worked in the U.S. Department of Justice as a senior political appointee during the Clinton administration. Yet, I'm sure that for him to face the loss of his career this way, at the age of 59, without another potential opportunity, had to be devastating. Lawyers, especially those who have done well, have a difficult time losing their identity as a lawyer. For many in the legal profession, a legal career defines them. In other words, "it's not merely what you do, it's who you are." That was the first thought that came to mind when I heard of the sad news of the suicide at the firm.

And apparently, Mark Levy was just that kind of person. It certainly didn't help that he had an appellate practice, which is extremely difficult to sustain. As noted in Mark Levy's Battle for Success:

In his 59 years, Mark Levy, head of Kilpatrick Stockton's Supreme Court practice, achieved more than many lawyers ever hope to. But friends and former colleagues believe he felt the pressure to accomplish even more.

After spending the past five years at Kilpatrick, Levy was found dead in his office Thursday morning, in what police are investigating as a gun-related suicide. Friends describe Levy as an upbeat but reserved person, who always turned out top-quality briefs and often arrived at the office before the sun came up. His career included stints at some of the most prestigious law firms around, as well as the Department of Justice.

But friends say he wasn't satisfied. And just two days prior to his death, Kilpatrick laid off 24 associates and counsel, including Levy, according to a close friend of Levy. . . .

Levy, who joined Kilpatrick as a counsel in 2004, had struggled to establish his appellate and Supreme Court practice, according to lawyers that knew him. Levy, who argued a total of 16 times before the high court, won a case for DuPont last October in Kennedy v. Plan Administrator for DuPont Savings. But prior to winning that employee benefits matter, Levy hadn't argued in front of the high court since 1989.

* * * *

Levy's age, however, may have been a factor in his unhappiness, according to psychologists.

"At age 60, you're starting to think of retirement. You're thinking that you should be immune to layoffs due to your prominence and your position," says Sherry Molock, a professor of clinical psychology at George Washington University, who studies suicidal behaviors. "You've paid your dues. You feel that you should have arrived by now."

An accompanying ABA Journal piece discusses the higher risk of suicide among attorneys, Lawyer Personalities May Contribute to Increased Suicide Risk:

Personality characteristics often associated with lawyers, such as perfectionism and competitiveness, when combined with depression may be contributing to a higher suicide rate in the legal profession, an expert says.

Lanny Berman, executive director of the American Association of Suicidology, a group devoted to suicide prevention, says risk factors for suicide include depression, anxiety, substance abuse, suicide ideation, divorce and stress. And lawyers experience many of these risk factors at higher rates than the general population, he says. Lawyers are also more likely to be perfectionist and competitive, personality traits that make a person considering suicide less likely to seek help.

Those factors may be contributing to the increased suicide rate for lawyers, he says. A major study conducted some 20 years ago by the National Institute for Safety and Health found that male lawyers between the ages of 20 and 64 are more than twice as likely to die from suicide than men of the same age in other occupations.

What did Levy's firm have to say about this news? As noted by the Washington Post, it was PR all the way:

Diane Prucino, a co-managing partner of the century-old firm in Atlanta, confirmed the layoffs Tuesday in a statement quoted by the Fulton County Daily Report.

"These actions are driven by the economic downturn," she said, adding that the belt-tightening was "structured to further the long-term success of the firm and to enhance the achievement of our strategic goals."

Of course, achievement of our strategic goals is another way of saying that cutting lawyers & staff comes before cutting compensation for the big partners. These guys deserve the big bucks, you know, even if the rest of the world is cutting back. So, I wonder, how's that working for you now?

We Remain Unpersuaded

Via Philadelphia Freedom Blog, I discovered that the federal appeals court in Atlanta had denied the appeal of Troy Davis. I've written about the case several times before. Unfortunately, the news is not surprising. Even when the court granted the appeal, I noted in Hold On, that "the remaining hurdles that Troy Davis still faces are still overwhelming. Although there is much evidence that brings his conviction into question, even getting approval to hold a hearing where such testimony would be considered is difficult. The legal standard that must be met before a hearing would be permitted is exceedingly stringent."

On the latest decision, the Atlanta Constitution reports, Georgia Death Row Inmate Loses 11th Circuit Appeal:

In a 2-1 opinion, the 11th U.S. Circuit Court of Appeals ruled that Davis could not establish by clear and convincing evidence that a jury would not have found him guilty.

Davis’ innocence claims have attracted international attention. They rely largely on the recantations of key prosecution witnesses who testified at trial and on statements by others who say another man told them he was the actual killer.

* * * *

On Thursday, the two-judge majority noted that state courts and the Georgia Board of Pardons and Paroles had exhaustively reviewed Davis’ claims and rejected them.

Judges Joel Dubina and Stanley Marcus said they agreed with those conclusions. “Davis has not presented us with a showing of innocence so compelling that we would be obligated to act today,” they wrote.

The judges said they view the recantations with skepticism and, after reviewing Davis’ claims, “remain unpersuaded.”

Although the article suggests that Davis' claims of innocence were reviewed in detail and found to be insufficient, the reality is that his appeal merely focused on granting him the right to assert his claims before a federal court. As explained by the ACLU's blog, Troy Davis Suffers Another Blow:

Late last week, the 11th Circuit Court of Appeals rejected Troy Davis’s petition for a hearing to prove his innocence. Although seven of the nine non-police witnesses against him have recanted or contradicted their trial testimony, that evidence will not be heard unless the United States Supreme Court decides differently. Troy Davis still has a 30-day stay of execution to file a petition with the Supreme Court.

The 11th Circuit refused to hear Davis’ claims of innocence by a 2-1 vote. The decision was largely based on the onerous procedural obstacles that a death row inmate must overcome before a federal court will consider the merits of his or her constitutional claims – in Troy’s case, his claim that the execution of an innocent person violates the cruel or unusual punishment clause of the U.S. Constitution. (Emphasis added).

This is echoed in the dissenting opinion of the Court, by Judge Rosemary Barkett Georgia Death Row Inmate Loses 11th Circuit Appeal:

The third judge on the panel, Judge Rosemary Barkett, dissented. She said executing an innocent person violates the 8th Amendment ban on cruel and unusual punishment and the 14th Amendment's guarantee of due process of law.

Stephen B. Bright, president and senior counsel of the Southern Center for Human Rights, echoed Barkett's dissent in an e-mail.

'The judges have completely lost sight of justice,' said Bright. 'They are lost in a maze of procedural rules that obscure the truth instead of revealing it.'

I guess it's not hard to "remain unpersuaded" when you're not really reviewing the full record on guilt or innocence. Justice is definitely missing in this case.

And, let's not forget what is at issue here. As Mary Shaw of Philadelphia Freedom says:

This is despite the fact that the evidence could show that Davis is innocent.

Does Georgia really want to risk executing an innocent man?

And what's to lose by granting him a new hearing? Doesn't Georgia want to be absolutely certain that they are punishing the right guy?