Saturday, June 20, 2009

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.

A Pox on You

After a busy start to the week, with the annual dinner meeting of a non-profit whose Board I recently joined and a celebratory dinner for a friend who was just appointed Dean of the University of Maryland School of Law, I've been plagued for the last few days with the worst of the worst -- a summer flu.

I suppose there's some consolation in the non-stop dreary, rainy weather that we've had, so at least I'm consoled by the fact that I'm not missing any prime pool time.

I have my own suspicions about how I contracted it. Last week-end in Scranton, I attended our Church picnic in McDade Park, but I left just as the priest began setting up for an outdoor mass. I believe a curse was put on me for skipping out early.

Of course, I've had no end of diagnoses and suggested remedies to try. The "advantage" of having physicians as clients, I suppose. However, can I say that I wasn't especially thrilled when an ER doctor client said that it sounded like I had swine flu & should get tested. Bed rest & lots of fluids were also recommended (and even a homeopathic remedy, believe it or not) -- as soon as I finished whatever project that the particular client had called about.

Luckily, it looks like on the fever & chills are gone, along with the sore throat. So I'm just left with the dull headache, fatigue and of course, the sniffles, coughing & sneezing. And with the pitter patter of the rain outside my window, I have no desire to go outside today, so I'm sure to get the all of the R&R I need.

Cartoon of the Day


(click to enlarge)
Sage Stossel, The Atlantic

Monday, June 15, 2009

Sailing Away

I'm back from a long week-end in Scranton for my nephew's Graduation Party. Another trip back in time as I wander the halls of the Tripp House. As I mentioned 2 years ago when my other nephew graduated, Ain't No Party Like a Scranton Party:

The trip to Scranton was a real trip down memory lane for me. The Graduation Party was held at The Tripp House, which is Scranton's oldest home. Even more, years before it was taken over by the Junior League and restored as an event venue, my grandmother lived there. My brothers and I went to the house early to help set up for the party, so I got to wander around the house and remember spending time there with Noni. Great memories.

The rest of the week-end was also filled with family-related activities. On Saturday, we attended a Church picnic at McDade Park and another graduation party that evening.
Scranton has some of the best state parks around. After the bucolic setting of McDade Park, on Sunday the family spent the day at Lackawanna State Park, where we went kayaking and canoeing. After the rest of the gang headed out on the lake, my brother & I sat with my parents for a while, before we decided to hop into our own canoe.

Of course, anyone who knows me knows that me in a canoe isnn't exactly a picture that easily comes to mind. I probably haven't been in a canoe since the days when we had our vacation house in the Poconos. In fact, after the shock wore of the faces of my niece and nephews when we caught up with them, I had to take pictures to prove to doubters that I really was sailing the lake in my canoe.

Wednesday, June 10, 2009

Cartoon of the Day

Rob Rogers, Pittsburgh Post Gazette

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.


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.

Cartoon of the Day

Signe Wilkinson, Philadelphia Daily News

Tuesday, June 09, 2009

Screwball Sarah

I'm sure it's no surprise that the subject matter of my first return post is Sarah Palin. Like me -- she's back! A few friends & blogging buddies have emailed me, wondering why I haven't written about her Palinness.

I have to admit that I can't believe I'm still writing about Sarah Palin. It's amazing to me that she still manages to make the news with her royal rants on nothing. In fact, if our Palin-Be-Gone Wager hadn't ended in mid-March, I would have surely lost. Rather than a Palin Barbie, they should have made a Sarah Energizer Bunny.

Her Royal Governor, Sarah Palin, first made the news last week over her comments accusing the Obama Administration of trying to "control the people."

As she said (via Gort42), Palin blasts Obama administration: Government wants to "control the people":

In a speech introducing Michael Reagan — the son of former President Ronald Reagan — to an audience in Anchorage, Palin warned that the government is planning to "bail out debt ridden states" so it can "get in there and control the people."

"Since when can you get out of huge national debt by creating trillions of dollars of new debt?" Palin asked. "It all really is so backwards and skewed as to sound like absolute nonsense when some of this economic policy is explained."

"We need to be aware of the creation of a fearful population, and fearful lawmakers, being led to believe that big government is the answer, to bail out the private sector, because then government gets to get in there and control it," she said. "And mark my words, this is going to be next, I fear, bail out next debt-ridden states. Then government gets to get in there and control the people."

"Some in Washington would approach our economic woes in ways that absolutely defy Economics 101, and they fly in the face of principles, providing opportunity for industrious Americans to succeed or to fail on their own accord," she said. "Those principles it makes you wonder what the heck some in Washington are trying to accomplish here."

As Crooks & Liars notes, "[t]here's something pretty weird hearing the term 'Economics 101,' being uttered by Sarah because she showed little knowledge of economics on the campaign trail." Even stranger is the thought that the Democrats are out to "control the people." Really? Does the Obama Administration want to dictate who people can legally marry? Are the Democrats the party interested in restricting contraceptives? Banning abortion? And remind me -- which political party has been wiretapping citizens? Infiltrating the ranks of war protesters to spy on legitimate activities? Let's talk control. Really.

Palin's Anchorage speech has provided much fodder, well beyond the usual Malaprops. She also applauded Michael Regan, son of Ronny, for his ability to "screw political correctness." See "Screw Political Correctness" -- Sarah Palin in Her Own Words.

And then, of course, was the kerfuffle over the fact that she plagerized several remarks in the speech. As Geoffrey Dunn at Huffington Post notes, Palin Lifts From Gingrich in Anchorage Speech, along with a side-by-side comparison of the offending lines:

Sarah Palin's speech delivered in Anchorage on Wednesday -- the one in which she declared "screw political correctness" and wondered why "we have to pussyfoot around our troublesome foes" -- repeatedly lifted from an article written four years ago by Newt Gingrich and Craig Shirley without attribution.

While Palin twice mentioned Gingrich in the speech (she never acknowledged Shirley), she frequently mixed her own remarks about Reagan with passages that appear to be pulled directly from the Gingrich-Shirley article.

And finally, in one of her famous "will she or won't she" moves, last night Sarah Palin deigned to put in an appearance at a GOP fundraiser after playing coy for a while. Dana Milbank reports, in Keynoter or Not, Palin Steals Spotlight at GOP Fundraiser:

First the Alaska governor and 2008 GOP vice presidential nominee was invited to be the keynote speaker at the party's annual congressional fundraising dinner.

Then she was not the keynoter, replaced by former House speaker Newt Gingrich.

Then she was invited to speak, again. Then that invitation was rescinded.

Then she let word slip out that she was unhappy about the whole state of events and was thinking of not attending at all.

Then -- after much public bickering between Palin loyalists and party officials -- she finally agreed to come, speaking slot or no.
As with everything Sarah, even her mere appearance at the event is the subject of controversy. Milbank says she was the center of attention at the event, while Politico says she was hardly noticed, Sarah Palin makes little splash at dinner:
Ending weeks of she-said, they-said drama, Alaska Gov. Sarah Palin turned in a cameo appearance at the gala fundraising dinner for her party's House and Senate candidates in Washington Monday night.

But in spite of all the back-and-forth between her camp and dinner organizers leading up to the event, Palin's presence went little-noticed.

* * * *

If she hadn't walked quickly across the stage the outset and if her presence hadn’t been mentioned briefly in the remarks of some of the evening's speakers, it would have been hard to know that she had, in fact, shown up.
Oh Sarah, I'm so glad you're back.

(Video via Crooks and Liars)

Cartoon of the Day

Milt Priggee, Puget Sound Business Journal

She's Back

I haven't disappeared into the great beyond of the "ethernets" -- at least not yet, anyway.

Blogging has been light or non-existent for the past month or so due to my crazy schedule, both at work and home. Despite the fact that my blogging has suffered, most of the stuff going on in my life is good.

Work has been especially hectic, with the usual emergency client matters, as well as the latest technical difficulties compounding the problem. Trust me, I'm not complaining about the client workload -- especially when I see the severe problems faced by BigLaw these days. I realized many years ago that the big firm life was not for me, so I left before things got really out of hand and I've never looked back (other than with great relief).

On the other hand, technical difficulties at work continue to plague the office. We recently switched our phone system, moving to T1/PRI lines. Unfortunately, the transition has been anything but smooth. Our system has been down several days each week since the move two months ago. What makes it worse is the fact that the PRI lines hold not only our phones, but our internet & fax as well, so when they go down, we are totally shut down. No fun. The frustration and hassle of dealing with our work under these conditions has been burdensome and annoying, to say the least.

Outside of work, I've been on the road, visiting family in Scranton, Delaware & Pittsburgh for a funeral, wedding & graduation. Another trek to Scranton is scheduled for this week-end for more graduation festivies.

Our daughter is home for the summer & we've had to adjust to having her around again. Thankfully, she is also gainfully employed. Of course, her job is selling kitchen knives, so our assistance is required -- imposing on friends & family to listen to her sales spiel. But at least she has finally gotten a real paycheck & she's enjoying her job.

Besides that, my social life has been more active of late and I've even started going to the gym a few times a week after work, in my attempt to prepare for beach blanket sun & fun. In fact, with the beautiful weather on Sunday, I spent a good part of the day at the pool. Next to the beach, my favorite summer pasttime is the pool.

With all that's been happening in my life, most of my blogging has been written in my mind, with not much time to actually sit down & write it down to post. But I'm hoping things will calm down just a bit, so I can get back to my blogging routine.

(Sign via Gort42)