Saturday, June 17, 2006

Only The Good Die Young

There is nothing much to add to this. It is tragedy on a Shakespearean level.

My heart goes out to Fireman Robert (Bobby) Getschel and his classmates in New Hyde Park NY. This seemed to be a very special boy and friend. That all our kids should know a soul like his, and be so honored as to call him their friend. I will pray for you.

Thursday, June 15, 2006

A Proposal For Changing The Way We Select Candidates: That Lawyer Dude Gets Political in Washington D.C.

I will be in Washington D.C. for the rest of the week. This could mean I barely blog or it could mean I blog a lot. It depends on how tired I am after a day of learning how to be the parent of a "Colonial".

My eldest son (the one that gave me the nickname "That Lawyer Dude")has decided to spend the next four years of his education at The George Washington University in our nation's capitol. Though I was initially disappointed that he decided not to attend my alma mater, I have to admit, GW is a really good school and an excellent fit for him. Though not active in politics, "Jr. Lawyer Dude" has always been into current affairs and excelled in Extemporaneous speech events through out High school. He also loves Jazz and jam band music. Hence a city like D.C. will give him a lot of outlet for his playing and listening pleasure.

Orientation, or what George Washington U. calls Colonial Inauguration is taking place this week and I will be seeing how they will be spending my money. In the meantime coming out of Union Station and seeing the Capitol Building got me thinking about politics. I ran across this story which is making for some real buzz down here.

The issue is that Senator Joseph Lieberman is running into trouble in Conneticut in the Democrat primary because his opponent is trying to paint Joe into a corner. He and other liberal democrats are upset that Lieberman has close ties to the Bush Administration. As a result Lieberman (who runs really well with both Republicans and independents in his state) is considering whether he should launch an independent campaign should he lose the in the Democrat primary.

I don't have the time here to go into all of it, but I spent a lot of time in my youth helping moderate democrats win in a boss controlled and somewhat corrupt Nassau County in the 70's. I watched them shoot themselves in the foot too many times to count, just over this issue. The fact is that Lieberman would trounce both the Republican and his Democrat challenger in the general election. To assure a win in the Primary however he would have to abandon his principals and join the far left wing of his party. The modern Republican party is no better. For a moderate to win there he has to join the Far right. Hence the rest of us do not get a candidate to vote for if they do not run as an independent. I am not a fan of the old Boss system of naming candidates, but the primary process has marginalia the majority of the electorate and left them with no one to vote for, so they either vote against someone or do not vote.

I think that the way we go about nominating people for these offices is the problem. I would rather see each party put up 2 or 3 candidates from the various wing of that party, hold a run off "primary" and then let the top 2-3 run in the general election. The difference would be that everybody could vote for anyone in both the primary and the General Election. Hence the nominators would hold a meeting each would identify himself as a liberal moderate or conservative. They would hold a caucus and nominate a person from their party and their "wing" of said party. Then they would all run in a "runoff" style primary. Any candidate garnering 30% of the primary vote would run in the head to head, or the top two candidates would run off into the general election.

I am not sure if this "solution" will help bring the rest of us back into the election fold but as Bill Murray said in Groundhog Day "anything different is good.".

Sunday, June 11, 2006

Is It Me Or Does The Duke Lacrosse Rape Case Just Keep Getting Worse And Worse

I am loath to discuss cases where the testimony hasn't come out yet. Unless you are a party to the case, there is no saying what the otherside may have in its trial bag. Nevertheless, the Duke University Lacrosse team rape case has more holes in it than a Swiss cheese.

For those that are unaware: a party was held by some of the students on the Duke Lacrosse team. The Team at the time was favored to win the NCAA National Men's Lacrosse championship. At the party the boys invited (hired) two strippers to perform. At the end of the night, one woman, a 27 year old mother and student at a local college, Ms. Crystal Gail Mangum claimed she was raped and sodomized. Ms. Mangum is also a former member of the US Navy reserve and a convicted criminal who stole a cab and tried to run down a sheriff's deputy. She has claimed to have been raped before. She also has charged her ex-husband with threatening to Murder her, a charge he denies.(I learned most of this by reading the Johnsonville News which has excellent coverage.)

Now why all this information in this post? Because it seems to me that before a District Attorney brings charges like these against a young person (let's remember these kids are in their early 20's)he ought to have a very good case. In this case he has more reasonable doubt than hard facts.

Forcible Rape: a legal definition

The forcible sexual penetration of the human body by the penis or the forcible insertion of any other object into either the vagina or the anus."(link).

1.We must have force and 2.We must have penetration of the vagina or the anus. And 3. It must be by a penis or any other object.

In this case, all three elements are in dispute. First, lets deal with elements number two and three. There is proof that someone penetrated the accuser with his penis. However that someone's DNA matches the accusers boyfriend's. That doesn't mean that she wasn't raped. Nor does it come in to show the accuser has had out of wedlock sex. In fact, I don't think it matters a wit that she had semen in her vagina. What matters, is that not one of the three boys she has accused of violating her had his semen in her vagina... or seemingly anywhere else.

Then there is the issue that she alleged she was force to have anal and oral sex. Again no semen. Now I have read on a feminist blog that sometimes men do not ejaculate enough semen to test. Ok maybe that happened here... but three times with three different 20 year old boys?.

Then there is the statements of the women who was dancing with the accuser. She originally called the allegation of Rape "a "crock" and said she and the accuser were together for all but 5 minutes of the evening. The accuser said the rape happened over a half hour.

Even assuming that when one is being assaulted it feels like a lot longer than it might have been, and assuming that the rapes could have occurred within five minutes, how do you account for the fact that both the witness (who has since said the story may be true)and the first security person to see the accuser ( woman security guard at a local Wal-mart both said the accuser never mentioned being assaulted and that the first police officer on the scene said she didn't appear to have been a victim of assault but rather appeared to be drunk.? (See posts here, here and here for attribution of alleged facts herein.) All of these things seem to negate the truth and veracity of the accuser.

Not to mention that there may not have been any alcohol or drug testing of the victim and that according to hospital records given to the defense attorney's the only harm to the accuser seems to be a cut, a scratch, and some vaginal swelling that would be just as consistent with consensual sex as it would with rape.

Remember the Burden of Proof

The Prosecution, in this case Durham NC. District Attorney Mike Nifong has a heavy burden of proof. He must prove this accuser was raped by these three boys,Beyond a Reasonable Doubt. Even if he personally feels that the accused boys raped this woman, it seems to me that as a trial attorney he should be able to see that there is reasonable doubt all over this case. His obligation unlike the defense attorney is to do justice. Justice when used in a criminal justice system is not truth, justice means fairness.

It is beyond unfair that the three accused kids in this case should have to face a jury and the public for the rest of their lives as accused rapists. It is unfair that they have had there faces and lives shoved in front of America for a crime that this District Attorney's office should not be able to prove beyond a reasonable doubt. This case is a sad commentary on what has become of our criminal justice system. Maybe we should have complete press blackouts of names of accused until a court finds that there is at least proof of a clear and convincing case.

Nifong is not stupid and he is not to be underestimated. He is Phi Beta Kappa and has been a teacher and a social worker while he worked toward his law degree. He has tried over 300 felony trials many as serious as murder. Nevertheless he has a duty as the distict attorney an elected official to speak to the press and to the public before he costs his county anymore money on this case. He needs to show some kind of a smoking gun and to do it soon. He has spent hundreds of thousands of tax dollars in police time, testing, and court time. That is an unfair burden on taxpayers because one doesn't have the intestinal fortitude to tick off substantial parts of the electorate.

Worse it leaves him open to attacks of playing politics with a criminal case. It wouldn't be the first time a District Attorney was accused of that, nor would it be the first time it actually happened. It just shouldn't. And this time America is watching.

Sunday, June 04, 2006

Gideon's Trumpet is Being Muted

Click the title of this post to link to an article in Slate the online e-zine, concerning what is passing for indigent criminal defense in many parts of the country.

The need for fairness in Criminal defense is running right into the frustration with higher defense costs and the unbearable cost of a systemic vision that wants to incarcerate rather than rehabilitate more and more people.

It seems that with the economy in relative good shape and crime down dramatically over the last 2 decades, now would be a good time to reduce incarceration and dockets and put more money (not all money) into rehabilitation programs which will further reduce Criminal Justice costs.

Moreover the need to fairly fund defense costs is a constitutional guarantee. As a nation we are not doing it. As a state we are barely doing it. Counties seeking to put a cap on defense costs are going to underfunded Public defense offices. Many (definitely not all) are no more than ministering to the plea bargain machine.

Meanwhile in giving people convictions they should not take we are destroying their job prospects. The cycle is going to catch up with us sooner than later and we are lacking a real national criminal justice dialogue because the powers that be are talking at each other not to each other.

Politicians, especially House Judiciary Committee chairmanF. James Sensenbrenner, Jr. need to stop the pandering and really focus on the long term issues.

Truth first. There is no need to fix the Federal Sentencing Guidelines. So far they do not seem to be broken. Booker was a good fix.
Second. We have got to have a way for people who make mistakes to fix their lives and to be fully restored to full citizenship. If we incarcerate we need to be sure these people can support themselves when they get out without committing new crimes. It is important we get bills that take away some of the post conviction penalties to employment or we are going to have a bigger and bigger permanent underclass.

Third. Most crime is best handled on the local level STOP FEDERALIZING CRIME. CONGRESS DOES NOT KNOW BEST. I do not want the mores of the Utah citizenry or the Wisconsin citizenry or even the New Jersey citizenry telling me what I should have as laws here in NY. I like living in NY and especially on Long Island. I do not feel the need to tell Arizona how to act. Why do they feel the need to tell me?
.08 may be the perfect breath reading to have in congested cities or states to determine intoxication. It may not be in a state that or area where .10 or even .15 works as well. .08 may be destroying the restaurant scene and costing the state and it's people a lot of money in taxes. Maybe people are safer at .08 but people in a certain state may want to live with the risk and pay less taxes associated with .10. They may not even want to have a breath test relying instead on common law proof of intoxication. It should be up to the state's citizenry as a whole.
Same thing with guns.
Drugs importation is a national issue as they are distributed all over and rather easily. However maybe we need to focus on the importers and not on the corner salesman. By the time it gets to the street pusher, it is already too late. We cannot afford to clog our jails with these small time users. It costs too much and in fact as they age out it costs way to much and we get nothing for it.

Defense attorneys need to be more than a rubber stamp for plea bargains. If too many cases are being plead out we have to begin to look at whether we are properly paying enough to the people who are defending the cases. They can't defend a case if they have caseloads in the 100's. It just isn't physically possible.

We have to be realisitic about what a criminal justice system can accomplish and who it accomplishes it for. It is there for society as a whole. More victims rights legislation is not needed. In fact less is appropriate. They have a sufficient say through proper use of the civil justice system. Strengthen that. Stop introducing legislation and guidelines that have nothing to do with the proper goals of a criminal justice system.

Mandatory Minimum Sentencing is quackery. There isn't a real theory of mandatory minimum that fits into a fair sentencing system. Proof is that it is more of a harm than a good even when individually considered. STOP THE MADNESS THAT IS MANDATORY MINIMUM SENTENCING.

Stop trying to control the whole thing. You are not powerful enough to control the conduct of everyone. We don't need you micromanaging courts.

Side note to the Supreme Court of the United States of America. Pay serious attention to the 5th and 6th amendment and the rights of the judiciary and stop cedeing so much power to the Legislature. They have a right to make laws, the court should be deciding how those law impact individuals. Stand up for that right.

There are some excellent blogs out there talking about these issues daily. If you want more information on federal sentencing and sentencing on a whole, Try Doug Berman's Sentencing Law and Policy Blog here and in the Second Circuit a newcomer the Second Circuit Sentencing Blog by clicking here.