More on Jim Webb

Yesterday I wrote about Sen. James Webb's goal of reforming the prison system in the U.S. The Washington Post article describing Webb's goal referenced a story Webb wrote for Parade magazine back in 1984:

A journalist at the time, he was working on an article about Ed Arnett, an American who had spent two years in Fuchu Prison for possession of marijuana. In a January 1984 Parade magazine piece, Webb described the harsh conditions imposed on Arnett, who had frostbite and sometimes labored in solitary confinement making paper bags.

"But, surprisingly, Arnett, home in Omaha, Neb., says he prefers Japan's legal system to ours," Webb wrote. "Why? 'Because it's fair,' he said."

The Senator's "Webbsite" has a link to the original article, entitled 'What we can learn from Japanese Prisons," which describes Arnett's experience in the Japanese legal system and, later, one of its prisons:

FUCHU PRISON, near Tokyo is home to 2500 of Japan's most hardened criminals. Ed Arnett is an alumnus who thinks of Fuchu daily. The dank, unheated buildings, the harshness of the guards' reports to their superiors, the high stone walls--these are as near to him as the scars on his legs, from the frostbite he picked up in his Fuchu cell.

"I didn't know I could still cry until I went to prison in Japan," says Arnett, convicted in 1979 for possession of two kilograms of marijuana. "I wouldn't put that experience on anybody."

How does Arnett rate this harsh experience compared to the prison system in his own country?

But, surprisingly, Arnett, home in Omaha, Neb., says he prefers Japan's legal system to ours. Why? "Because it's fair," he says. "The never tried to trick me, even in interrogation. They were always trustworthy. 1 could have got five years and they gave me two. The Americans who were helping them wanted me to get 20. The guards at Fuchu were hard, but they never messed with you unless there was a reason. You didn't have to worry about the other prisoners coming after you, either. And the laws of Japan are for everybody. That's the main thing. The laws in this country depend on how much you can pay. I'd rather live under a hard system that's fair."

'An Act not of Weakness but of Strength'

It's great to hear that Virginia Senator Jim Webb has set his sights on reforming the prison system in the U.S. As the Washington Post article states today:

This spring, Webb (D-Va.) plans to introduce legislation on a long-standing passion of his: reforming the U.S. prison system. Jails teem with young black men who later struggle to rejoin society, he says. Drug addicts and the mentally ill take up cells that would be better used for violent criminals. And politicians have failed to address this costly problem for fear of being labeled "soft on crime."

It is a gamble for Webb, a fiery and cerebral Democrat from a staunchly law-and-order state. Virginia abolished parole in 1995, and it trails only Texas in the number of people it has executed. Moreover, as the country struggles with two wars overseas and an ailing economy, overflowing prisons are the last thing on many lawmakers' minds.

But Webb has never been one to rely on polls or political indicators to guide his way. He seems instead to charge ahead on projects that he has decided are worthy of his time, regardless of how they play -- or even whether they represent the priorities of the state he represents.

As I wrote earlier, this troubling New York Times article describes how:
- The U.S. "has 751 people in prison or jail for every 100,000 in population.
- Russia is second with 627 prisoners for every 100,000 people.
- England’s rate is 151; Germany’s is 88; and Japan’s is 63.

No wonder Webb thinks Japan's prison system could become a model for ours:

Still, Webb said, the United States could learn from the Japanese system. In his book, "A Time to Fight," he wrote that the Japanese focused less on retribution. Sentences were short, and inmates often left prison with marketable job skills. Ironically, he said, the system was modeled on philosophies pioneered by Americans, who he says have since lost their way on the matter.

Webb believes he can guide the nation back. "Contrary to so much of today's political rhetoric," he wrote, "to do so would be an act not of weakness but of strength."

Don't Force Divorce

Here is an excellent slideshow of the faces of those affected by the push to nullify gay marriage in California. Maybe I've missed these in the past, but this seems like an amazing way to bring an issue down to the heart level. I recently found out that a friend of mine was married earlier this year in California and now, after witnessing the passage of Prop 8, she has to worry about the legality of her marriage being in jeopardy. Finding that out, and seeing pictures of the wedding last weekend, really brought the issue "home" for me. Whether you know someone who's affected or not, the slideshow will likely bring the issue "home" too.

Does He Who Makes the Rules Get to Break Them Too? (UPDATED)

When I was sworn in as a Nebraska lawyer, I took the following oath:

"You do solemnly swear that you will support the Constitution of the United States, and the Constitution of this state, and that you will faithfully discharge the duties of an attorney and counselor, according to the best of your ability."

It's similar to the oath George Bush took and that Barack Obama will take in that it requires the taker to "support [and uphold] the Constitution of the United States." Since I practice criminal defense law, I'm constantly asked, in defending my clients at sentencing and upon requesting a particular sentence, whether subjecting the person standing beside me to the penalty I request will deter lawbreaking in the future.

We ask that question automatically in criminal court and I find myself addressing it frequently as people ask me, "how can you defend those people?" This common question assumes somehow that "these people" are almost all guilty, that I'm a little suspicious for standing beside them, and that "these people" are not sufficiently punished, likely through my efforts, in court.

This question springs from a common, modern belief in America that somehow we're not punishing criminals enough and that punishment alone will deter criminals. As I've written before, however, (quoting from the New York Times) it's not like we haven't tried punishment through incarceration at alarming rates. As the NYT article I referenced in that post shows: "The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners." The article goes on to show that:

- Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries.
- And in particular they are kept incarcerated far longer than prisoners in other nations.
- Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

But what do you do when a political leader goes on national t.v. and admits to approving waterboarding, as Dick Cheney did last week? Do you, like Mayor Diamond Joe Quimby create a "blue ribbon commission" to investigate, which will likely take up enough time to ensure that criminal prosecutions growing out of it are very unlikely because of statute of limitations issues?

Do you appoint a Republican prosecutor, like Patrick Fitzgerald, to investigate and potentially prosecute the Bush, Cheney, Yoo, Addington, et al, as Greenwald called for on Bill Moyers' Journal last week? Do you simply forgive, forget and move on, as many beltway Democrats will likely prescribe?

As Glenn Greenwald shows, mainstream media calls for prosecutions are growing, as are cries for forgiving and forgetting?

Greenwald yesterday addressed the question "If criminal penalties are removed, what will deter lawbreaking by political officials?" Ironically, in a country with 1/20th of the world's population and 1/4th of its prisoners- which constantly asks itself the question "but won't letting this potential criminal off easy promote disrespect for and violation of the law in the future?"- it has somehow become fashionable to suddenly forgive and forget when it comes to potential criminality on the part of political leaders.

Molly Ivins (in a column I can't find) once said she thought the country which believed it essential to prosecute Nixon had now lost its appetite to prosecute its leaders. This is dangerous whatever your political stripe as not only do we not want to allow law breaking to go unpunished, we certainly don't want to create a climate in which "some pigs are more equal than others" as occurred on the Animal Farm.

In short, if our leaders, who each take oaths to defend and uphold the Constitution, violate it, even having the gall to admit this on national television, they need to be prosecuted in the same way those who carried out their orders were brought to court to answer for these crimes. This should be the case whether we're discussing Obama or Bush, Biden or Cheney, Democrat or Republican. In America, the "law is king" and the Equal Protection clause ensures that, in America, no one is above the law, no matter what his political party.

But when that portion of the Constitution is not enforced against the leaders who swore to uphold it, the system fails and a failed system can only result.

Along these lines, what can we do as lawyers to ensure that the law is applied equally to leaders and laypeople alike? When you defend people, whom the law does apply to (with a vengeance!) it can be difficult to find the time to stand up against a drive to make it not apply to the powerful or the money to give to those who have taken on this fight.

Why not sign a petition aimed at compelling Democrats to seek prosecution of the Bush administration who violated the law of the land and the Constitution they swore to uphold? The American Freedom Campaign is assembling a petition to do just that, which reads:

"We are lawyers and law students in the United States of America. As such, we have all taken (or will be taking) an oath obligating us to defend the Constitution and the rule of law from those who would violate and subvert them, and to hold wrongdoers accountable.

We believe the Bush administration has committed numerous offenses against the Constitution and may have violated federal laws. Evidence exists that it has illegally spied on Americans, tortured and abused men and women in its direct custody, sent others to be tortured by countries like Syria and Egypt, and kept people in prison indefinitely with no chance to challenge the bases of their detention. Moreover, the administration has blatantly defied congressional subpoenas, obstructing constitutional oversight of the executive branch.

Thus, we call on House Judiciary Chairman John Conyers and Senate Judiciary Chairman Patrick Leahy to launch hearings into the possibility that crimes have been committed by this administration in violation of the Constitution, federal statutes, and international treaties. We call for the investigations to go where they must, including into the offices of the President and the Vice President. Should these hearings demonstrate that laws have in fact been broken by this administration, we support all such legal and congressional actions necessary to ensure the survival of our Constitution and the nation we love."

Patrick Fitzgerald (who was nominated to his current position by Republican Senator but who has also taken many steps to disassociate himself from either political party) has the expertise, independence and commitment to the rule of law to pursue these prosecutions. There's an old Jewish proverb I think of frequently that says "He who has the gold makes the rules." This may simply describe human nature and the nature of power. But today this proverb is in danger of becoming "He who has the gold (and the power) and breaks the rules later escapes them" we are in real trouble, as the King, who proclaimed himself above the law and that we therefore had to rebel against and defeat, has returned to power.

UPDATE: In response to a comment by former federal prosecutor and Firedoglake diarist Looseheadprop, I revised the post above and removed any reference to Fitz being a registered or affiliated Republican. After leaving the comment below, I did some research and found that the nomination of Fitz by Sen. Fitzgerald (no relation) drew his party's wrath, especially that of Karl Rove. Fitz apparently even changed his registration from "independent" to "none" after discovering that "independent" denoted a party, which he sought to avoid.

My mistake; you don't have to "lighten up" after all. I'm just happy you stopped by to correct my mistake. I always enjoy your well-researched work at FDL.

Denial of Due Process?

I helped my friend write a brief a few months back. The issue was whether a statute which stated:

any presentence report . . . shall be privileged and shall not be disclosed directly or indirectly to anyone other
than a judge, probation officers to whom an offender’s file is duly transferred, the probation administrator or his or her designee, or others entitled by law to receive
such information, including personnel and mental health professionals for the nebraska state patrol specifically
assigned to sex offender registration and community notification for the sole purpose of using such report or examination for assessing risk and for community notification of registered sex offenders. ... the court may permit inspection of the report or examination of parts thereof by the offender or his or her attorney, or other person having a proper interest therein, whenever the court finds it is in the best interest of a particular offender.

requires the court to make a finding of "best interests" finding before allowing the prosecution to review the PSI.

In short, the issue was whether the prosecutor was (1) automatically entitled to review the report (a member of the group of "others entitled by law" to review the PSI) or (2) whether he or she was- like the Defendant and his or her attorney- not automatically entitled to review it until the court found that viewing it was in the Defendant's best interests.

Note that if the Nebraska Supreme Court found that the prosecutor was a member of group (1), an absurd result, where the prosecutor saw it and the Defendant could not, was bound to happen. After all, if the prosecutor doesn't have to ask before viewing this "privileged" document and the defendant does, all it takes is for one judge to say no before a situation arises in which the prosecutor and the probation officer have access to a document that the Defendant doesn't, prior to sentencing.

The opinion was released today and that's exactly how the court ruled:

In order to facilitate full adversary testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the psI in order to evaluate factors relevant to
sentencing and make informed arguments to the court regarding the proper sentence. For these reasons, we conclude that prosecutors are among the “others entitled by law to receive” the information in a psI under § 29-2261(6). We conclude as a matter of law that because prosecutors
are “entitled by law to receive” the information in the psI, it is not necessary under § 29-2261(6) for a court to determine whether it is in the best interest of the defendant before allowing the prosecutor access to the psI. We therefore conclude that the county court did not err in overruling albers’
motion to preclude review of the psI by the prosecuting authority and that the district court did not err in affirming such decision.

However, compare the Court's reasoning below with the statute above:

[S]entencing is a critical stage of a criminal proceeding, Mempa v. Rhay, 389 U.s. 128, 88 s. Ct. 254, 19 L. ed. 2d 336 (1967), and the information in a psI is relevant to sentencing. In order to facilitate full adversary testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the psI in order to evaluate factors relevant to sentencing and make informed arguments to the court regarding the proper sentence.

If sentencing is a "critical stage" and "full adversar[ial] testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the PSI... to evaluate factors relevant to sentencing and make informed arguments... regarding the proper sentence" then how can the statute at issue not violate due process since it requires the Defendant to ask the judge to view this document but entitles the prosecutor automatic access "as a matter of law?"

It's not surprising that a Court would exalt a prosecutor- that's the age we live in- but in exalting him in this way, didn't the Nebraska Supreme Court create a scheme that violates Due Process? All it takes is for one judge to say no to a Defendant and the prosecutor will see what the accused cannot.

If "it is necessary for the prosecutor to have access to information in the PSI" but also necessary for the Defendant to ask the Court before doing so, and likely that a court will soon say no, how is Due Process not violated by this interpretation?

Will someone help us appeal this issue to the U.S. Supreme Court, to avoid this absurd result?

The Velveteen Rabbit

It doesn't have much to do with criminal defense work or the law in general, but I found the quote below in a stack of books my kids have long forgotten. It's from The Velveteen Rabbit and it reminded me of last weekend and of my trip to TLC:

"What is Real?" asked the Rabbit...

"It doesn't happen all at once," said the Skin Horse. "You become. It takes a long time. That's why it doesn't often happen to people who break easily or have sharp edges, or who have to be carefully kept. Generally, by the time you are Real, most of your hair has been loved off, and your eyes drop out and you get loose in the joints and very shabby. But these things don't matter at all, because once your are Real you can't be ugly, except to people who don't understand."

The part about being real not happening to people who "break easily" reminds me of the Hemingway quote that says "the world breaks everyone, and afterward, some are strong at the broken places." Not everyone becomes real and not everyone learns to become stronger at the broken places, but some succeed.

Undercover Mother

From MSNBC:

Doreen Giuliano was obsessed with saving her son from a life behind bars after he was convicted of murder.

She gave herself an extreme makeover — blonde dye job, fake tan, sexy wardrobe, phony name — and began spying on jurors. She befriended one juror to root out any possible misdeeds at the trial, and for nearly eight months, they drank at bars, smoked marijuana and shared meals in her tiny Brooklyn hideaway.

The juror eventually opened up to her about his time as a juror, completely unaware that this seductive older woman was the same dutiful mother who sat through the entire trial just a few feet away from him.

Giuliano says "she was driven by the belief her son was set up by authorities and vilified in the press." So she hatched a plan:

In the fall of 2007, Giuliano reinvented herself. She slimmed down at the gym, rented an apartment in Allo's neighborhood and printed business cards with her assumed name: Dee Quinn, a recent West Coast transplant.

Her husband initially told her she was crazy, but backed down. Soon she orchestrated a chance meeting with Allo on the street, pretending to be a lonely single woman from California and giving him her phone number.

Giuliano began inviting Allo over to her place to soften him up. He never recognized her from her days sitting through the trial.

"She was offering me wine, offering to smoke weed," he said. There also was flirting. But both said it never went any further. Mainly, they talked. And her digital tape recorder rolled.

She says she struck gold in late 2007, while grilling her new friend about his jury duty. "I'll tell you this but I would never tell anybody else," he said, according to transcripts prepared by the defense. "I actually had some type of information."

Allo went on to explain that he didn't know Giuca directly, but used to hang out in his clique and heard rumors about the Fisher slaying — something he failed to mention when questioned under oath during jury selection. Asked if he had been curious about newspaper accounts of the trial, he responded that he'd read them. He also bragged that he had been the first one during deliberations to vote for a conviction. "I shouldn't have been in that jury," he said.

The Purpose Driven Death

Remember when the person who killed several in an Georgia courthouse escaped and then a recovering meth-addict convinced him to turn himself in, referencing the book, The Purpose Driven Life? Pastor Rick Warren's book, already a best-seller, became even more popular and he ended up moderating the debate in California between Obama and McCain concerning "evangelical issues."

Right now I am reading Robert Baer's excellent book, The Devil We Know, so Warren's comments to Sean Hannity about the "wisdom" of killing Iranian President Mahmoud Ahmadinejad strike me not only as stupid both militarily and diplomatically, but also an incredible considering they are coming from the mouth of an evangelical leader.

Appearing on Hannity and Colmes, Pastor Rick Warren said the following, as reported in the Washington Monthly:

Last night, on Fox News, Sean Hannity insisted that United States needs to "take out" Iranian President Mahmoud Ahmadinejad. Warren said he agreed. Hannity asked, "Am I advocating something dark, evil or something righteous?" Warren responded, "Well, actually, the Bible says that evil cannot be negotiated with. It has to just be stopped.... In fact, that is the legitimate role of government. The Bible says that God puts government on earth to punish evildoers. Not good-doers. Evildoers."

Reminds me of how much I love the comments of the wonderful Kurt Vonnegut, who wrote:

For some reason, the most vocal Christians among us never mention the Beatitudes. But, often with tears in their eyes, they demand that the Ten Commandments be posted in public buildings. And of course that’s Moses, not Jesus. I haven’t heard one of them demand that the Sermon on the Mount, the Beatitudes, be posted anywhere.

“Blessed are the merciful” in a courtroom? “Blessed are the peacemakers” in the Pentagon? Give me a break!

Not only do they not mention the Beatitudes, Kurt, they've now modernized and reinterpreted that rule about "Thou Shalt Not Kill." That doesn't apply if they're "evil."